EUROPEAN COMMISSION Brussels, 8.12.2021 SWD(2021) 375 final COMMISSION STAFF WORKING DOCUMENT



STAKEHOLDER CONSULTATION - SYNOPSIS REPORT

Accompanying the Proposal for a Council Recommendation on operational police cooperation {COM(2021) 780 final}



Synopsis Report This report provides a summary of all stakeholder consultation activities undertaken while preparing the Commission proposal for a Council Recommendation on operational police cooperation. 1.Consultation strategy The aim of the consultation was to receive relevant input from stakeholders to enable an evidence-based preparation of future Commission initiatives on improving law enforcement cooperation between Member States. Stakeholders were consulted between July 2019 and July 2021. This consisted of expert workshops in 2019 followed by expert and policy discussions in relevant Council working parties, which led to Council Conclusions on issues covered by this proposal. The Commission also gained extensive knowledge of the issues at hand from the ongoing Schengen evaluations on police evaluation that have been carried out in all Schengen States since 2019 and are still ongoing. In addition, it conducted targeted stakeholder consultations by way of an external study and two workshops it hosted with Member States and Schengen Associated Countries’ representatives. The Commission identified relevant stakeholders and consulted them throughout the development of this proposal. It sought views from a range of subject matter experts, national authorities, civil society organisations and from members of the public on their expectations and concerns relating to strengthening law enforcement cooperation in the EU. 2.Consultation activities (summary) 2.1. Feedback on the inception impact assessment As part of the inception impact assessment on an ‘EU police cooperation code – tackling cross-border serious & organised crime’, the Commmission organised a call for feedback, seeking views from interested stakeholders, from 28 September to 16 November 2020. The consultation, which sought feedback from public authorities, businesses, civil society organisations and the public, was open from 4 May 2020 to 9 July 2020. Respondents were able to provide online comments and submit position papers to provide more background on their views. The Commission received four contributions , which were integrated as part of the study’s findings. 2.2. Consultations during the study to support the preparation of an impact assessment on EU policy initiatives facilitating cross-border law enforcement cooperation 2.3.1. Feedback on the public consultation The public consultation was carried out from 19 April to 14 June 2021. The Commission received 20 contributions, which it integrated as part of the study’s findings. 2.3.2.Targeted consultation – questionnaires The Commission also held an online survey in the form of questionnaires made accessible to targeted stakeholders via the EUSurvey tool as part of the study. This consultation aimed to receive feedback, comments and observations on the challenges identified in the legal proposal. The questionnaires were tailored to different stakeholders. The Commission received 239 contributions, which served as the basis for the study’s findings. 2.3.3.Consultation of Member State experts by way of meetings In the course of the consultation undertaken as part of the study, the contractor organised two workshops on 24 March and 25 May 2021. Representatives of the Member States, the Council Secretariat and the Commission were invited. The first workshop aimed to exchange views with and between Member States and Schengen Associated Countries on their current challenges when engaging in cross-border law enforcement cooperation and on possible options addressing them and their respective impacts. The Commission also made use of the Law Enforcement Working Party (LEWP) meetings of 22 February and 16 March 2021 to brief Member States on its preparatory work and relevant technical deliberations, in the context of strengthening law enforcement cooperation, and to explore Member States’ views on the problems and potential solutions. The same was done at the Customs Cooperation Working Party (CCWP) on 23 March 2021. On 26 May 2021, the contractor carrying out the study presented the findings from the questionnaire sent to national Single Points of Contact to gather additional information. 2.3.4. Semi-structured interviews

The consultation conducted as part of the study included targeted bilateral and multilateral semi-structured interviews with stakeholders on the basis of formalised and open-ended questions allowing for open and in-depth discussions. These interviews were conducted from March to June 2020 via teleconferencing. They included in particular relevant EU agencies, services and Commission Directorates-General, national experts and academics. 3.Stakeholder participation A large number of stakeholders were consulted either directly by the Commission, during the study or during the discussions in the relevant Council working parties that addressed the issues covered by the present proposal. The stakeholders included: ·EU institutions, agencies and bodies (e.g. Europol, Frontex, eu-LISA, Eurojust, EU Agency for Fundamental Rights (FRA), EU Agency for Law Enforcement Training (CEPOL), the General Secretariat of the Council); ·law enforcement and judicial authorities in the Member States and Schengen Associated Countries (e.g. police, customs); ·data protection authorities; ·non-governmental organisations, academia, civil society organisations. Feedback on the inception impact assessment included responses from members of the public and non-governmental organisations with an interest in this field. 4.Methodology and tools During the consultation process, the Commission applied a variety of methods and forms of consultation. They included: •open consultation on the inception impact assessment, which sought views from all interested parties; •targeted stakeholder workshops that focused on subject matter experts, including practitioners at national level. Taking into account the technicalities and specific requirements and characteristics of the subject, the Commission focused on targeted consultations, addressing a broad range of stakeholders at national and EU level. The Commission took into account the findings of the ‘Study to support the preparation of an impact assessment on EU policy initiatives facilitating cross-border law enforcement cooperation’. This was commissioned by DG HOME and developed by a consortium of contractors based on desk research and the following stakeholder consultation methods: scoping interviews, questionnaire and online survey (open public consultation), semi-structured interviews, case studies and two online workshops. The Commission also took into account the findings of the Schengen evaluations on police cooperation carried out by the Commission and Member State experts, which included adetailed questionnaire, planned and unplanned on-site visits and interviews. The Commission participated in the following evaluations in the field of police cooperation: 2015 – Austria, Belgium, Germany, the Netherlands, Liechtenstein; 2016 – Luxembourg, Italy, Greece, Croatia, Malta, France; 2017 – Denmark, Iceland, Sweden, Norway, Portugal, Spain; 2018 – Estonia, Finland, Latvia, Lithuania, Switzerland; 2019 – Czechia, Hungary, Poland, Slovakia, Slovenia; 2020 – Germany, Austria, Lichtenstein; 2021 – Belgium, the Netherlands, Cyprus, France, Italy, Malta. In addition, the Commission took into account the expert discussions that took place in the Council for the preparation of Council Conclusions on the subject. These included replies to written questionnaires together with expert and policy discussions in the relevant Council working parties. The aforementioned range of viewpoints ensured that the Commission proposal addressed the needs and took account of the concerns of a wide range of stakeholders. Moreover, it allowed the Commission to gather necessary data, facts and views on the relevance, effectiveness, efficiency, coherence and EU added value of the proposal. Taking into consideration the COVID-19 pandemic and related restrictions and inability to interact in person with relevant stakeholders, the consultation activities focused on alternatives such as online surveys, semi-structured phone interviews as well as meetings via video conference.

5.Results 5.1.Consultation on the Inception Impact Assessment This public consultation on the inception impact assessment received four answers. Two were from members of the public, one from a private company and one from a European police trade union association. All the responses have been published in full online. The European Confederation of Police (EuroCOP) indicated the need to improve police cooperation, which is particularly relevant for border territories. They should be allowed to develop direct cooperation between corresponding police forces under Article 40 of the 1990 Convention Implementing the Schengen Agreement (CISA). EuroCOP supported streamlining and developing the different EU legal texts and non-binding guidelines on police cooperation into one consolidated legal text and turning some of the most advanced types of police cooperation included in recent bilateral cooperation agreements between Member States into EU law. This includes the creation of a comprehensive list of investigative tools for effectively fighting serious and organised crime. 5.2.Study to support the preparation of an impact assessment on EU policy initiatives facilitating cross-border law enforcement cooperation The study highlighted specific areas where there is scope for improvement on cross-border cooperation. This includes the use of joint patrols at border regions. While recognised as good practice and despite the existence of specific EU measures aimed at regulating their use, there is evidence that they are underused. Besides joint patrols, mutual assistance during large-scale events has also proved to be limited. Three main drivers contribute towards an insufficient deployment of joint operations: a) the legal driver, namely the limited and at times asymmetric conferral of executive powers of law enforcement officials operating in the respective host countries, as well as limited awareness of these powers on the ground; b) the technical driver, namely that officials on the ground have limited remote access to relevant law enforcement databases; c) structural drivers, namely that specialised national analytical departments rarely cooperate with similar departments in other countries to design actionable joint cross-border threat assessments/risk analysis and the limited integration of police and customs information and analysis. With respect to hot pursuits, the study identified inconsistencies that hamper the efficient use of this tool during cross-border operations. Even though the use of CISA as the legal basis ensures a certain degree of consistency, bilateral agreements often add a number of more specific and operational rules for the implementation of the tool in the different regional contexts. This results in the same tool being regulated differently depending on the regional agreement under which it is applied. Issues mainly relate to differences in the right granted by the national law to foreign officials to arrest/apprehend a suspect. Differences in territorial and time restrictions represent another barrier to the use of cross-border hot pursuits, with countries applying different restrictions to foreign officials when implementing these tools. On surveillance, besides differences in the surveillance methods adopted at national level, there are also differences in the maximum time allowed by different Member States or Schengen associated countries to carry out surveillance activities. This leads to cases (in countries where this period is comparatively shorter) in which the timeframe might not be sufficient to get evidence about a criminal activity or organisation. The study also identified the limited availability of training for law enforcement staff involved in cross-border cooperation. Training is not conducted on a regular basis and does not always take into account the latest developments. There is also a limited awareness and knowledge of relevant databases and about the executive powers conferred by different Member States. Language barriers also hamper effective cross-border operational police cooperation. 5.3.Workshops on the future of EU law enforcement. Given the sensitivities relating to police cooperation between Member States, the Commission launched a series of consultations with external stakeholders as early as 2019 as part of the ‘future of EU law enforcement’ initiative. It gathered experts from the Member States and relevant Justice and Home Affairs agencies in a series of workshops to discuss the current challenges and outlook on different topics relating to police cooperation and information exchange. Participants included all 27 Member States, Schengen Associated Countries, relevant EU agencies such as Europol, Frontex, eu-LISA, Eurojust and FRA, and the General Secretariat of the Council. In July 2019, the Commission organised a first expert workshop that covered topics on best practices and challenges of the Police Customs Cooperation Centres (PCCCs), joint police stations, and cross-border investigations. The workshop also discussed the need to review the current legal framework on cross-border operational police cooperation. The majority of Member States supported the consolidation and modernisation of the EU legal framework on police cooperation. There was agreement that the different EU texts and bilateral/trilateral/multilateral agreements on police cooperation leave officers confused as to what they can or cannot do, which often significantly limits their actions. A number of Member States called for the need to reinvent the PCCC model and strengthen it. The presentation on the permanent joint Franco-Swiss operational brigade carrying out cross-border investigations in France and Switzerland garnered interest from other Member States. The first workshop concluded with a broad consensus among Member States on the need to develop a national risk analysis structure in each Member State. This would better target operations involving police, customs and border guards. National risk analysis should fully cover the cross-border dimension and be translated at tactical and operational levels. Importantly, PCCCs could contribute to the development of a more precise local/regional crime threat picture. Participants agreed with the need to develop permanent structures for joint cross-border investigation at local/regional level, possibly by setting up mixed investigator teams inspired by the Franco-Swiss and German-Czech permanent police stations. In addition, there was broad agreement on the need to: ·simplify and consolidate the EU legal framework on police cooperation so as to facilitate and broaden the use of cross-border operational tools, in particular cross-border hot pursuits and surveillance operation; ·clarify the powers of police officers when acting on a foreign territory (same power to arrest, detain, use his firearms, liability); ·facilitate action in a neighbouring country. In October 2019, the Commission organised a second expert workshop that covered topics on police cooperation training. It aimed to identify good practices and concrete measures to boost the added value of EU support to law enforcement training in a cross-border context. The workshop discussed the role of CEPOL and Member States in providing training and the opportunity to create an ‘Erasmus of Police’ large-scale exchange programme in order to foster a true culture of European policing. The presentation on the integrated joint training of police cadets between the French gendarmerie and Spanish Guardia Civil garnered interest from other Member States. In December 2019, the Commission organised a third expert workshop that covered topics on information management (access to, exchange of and analysis of information for law enforcement purposes), notably the role of national Single Points of Contact. The workshop also addressed the impact of new technologies and innovation on law enforcement, in particular the development of the Europol Innovation Lab.

In January 2020, the Commission organised a fourth and final expert workshop on the future of EU law enforcement. It focused on improving EU information systems in the area of law enforcement. The topics discussed related to IT systems such as Prüm, API or ETIAS, which are out of the scope of this Recommendation. 5.4.Schengen evaluations on police cooperation The Schengen acquis includes rules and compensatory measures to counterbalance the absence of internal border controls. The Schengen Evaluation and Monitoring Mechanism monitors the implementation of the Schengen acquis by the countries that apply it in part or in full . It also assesses: ·the capacity of those countries where internal border controls have not yet been lifted to implement the Schengen acquis in full ; ·the implementation of measures in the areas of external borders, return, visa policy, police cooperation, the Schengen Information System, data protection, and the absence of internal border controls. The Commission carries out evaluations over a five-year cycle following multiannual and annual programmes, together with experts from Member States and EU agencies participating as observers. Each country is evaluated at least once every 5 years. These evaluations provide extremely important evidence of obstacles that hamper police cooperation and good practices deployed in some Member States. The following paragraph summarises the main findings of these evaluations. CISA introduced provisions to increase cooperation and information exchange between the police forces of Member States as a compensatory measure to the abolition of internal border controls. These cover: ·cooperation to prevent and detect crime; ·operational cooperation, e.g. the possibility to extend surveillance or to pursue criminals across internal borders; ·the sharing of information to prevent and repress crime or threats to public order and safety. The Schengen evaluations carried out by the Commission in relation to police cooperation between 2015-2021 led to the conclusion that Member States are generally compliant with the Schengen acquis in the field of police cooperation. However, a number of recurring deficiencies prevent Member States from reaching the full potential of some of the existing police cooperation and information exchange tools. The improvements most needed include: ·developing and sharing strategic crime threat assessments and risk analyses to allow a better joint response to cross-border crime ; ·revising the bilateral or multilateral agreements concluded by the Member States to extend and facilitate the possibilities for operational cross-border cooperation (in particular cross-border surveillance and hot pursuits); ·the need for sufficient collection and analysis of statistics and radio communication interoperability. Cross-border surveillance and hot pursuit CISA provides the legal bases for cross-border surveillance (Article 40 CISA) and hot pursuit (Articles 41 to 43 CISA). The evaluations confirmed that the regulatory structure of Article 41 CISA, namely the different options to choose from by way of unilateral declaration, leads to a scattered regulatory framework for hot pursuits. Moreover, the notion of ‘caught in the act’ as a prerequisite for cross-border hot pursuits can lead to uncertainties and different interpretations if suspected criminals are not directly caught in the act, but detected during controls away from the scene of crime, i.e. in the immediate border area. The evaluations also revealed that even though the use of CISA as the legal basis for conducting hot pursuits or surveillance ensures a certain degree of consistency, bilateral agreements often add a number of more specific and operational rules for the implementation of these tools in the different regional contexts. This results in the same tool being regulated differently depending on the regional agreement under which it is applied. Issues identified mainly relate to differences in the right granted by the national law to foreign officials to arrest/apprehend a suspect. Some agreements grant foreign officials only the right to arrest/apprehend a suspect, while others do not. Territorial and time restrictions represent another barrier to the use of cross-border hot pursuits, with countries applying different restrictions to foreign officials when implementing these tools. The evaluations identified in particular that the majority of Schengen States impose a too narrow geographical limit or time limit for hot pursuits. The majority of Schengen States were also found to apply other rules that discourage hot pursuits in practice, for instance by prohibiting the right to stop, interrogate or detain a person and to use firearms for legitimate self-defence or the defence of others. Besides differences in bilateral/trilateral/multilateral agreements, issues were also identified in relation to the relevance of EU provisions on cross-border hot pursuits. Since the definition included in Article 41 CISA only covers land borders, countries having sea or river borders cannot use cross-border hot pursuits unless covered in bilateral/trilateral/multilateral agreements.

The evaluations revealed other difficulties that arise when pursuing officers use different classes of service weapons than the officers in the country where the pursuit takes place. The evaluation teams found that a police force that is prevented from performing identity checks or from using its service weapons to stop, question and apprehend a suspect or protect themselves is likely to simply avoid engaging in a hot pursuit. On cross-border surveillance operations, the evaluations revealed that some Schengen States impose heavy procedural conditions and/or impose additional restrictions on officers from other Schengen States, for instance prohibiting them from carrying service weapons. Apart from differences in the surveillance methods adopted at national level, there are also differences in the maximum time allowed among Schengen States to carry out surveillance activities. This leads to cases in which the timeframe is not sufficient to collect evidence on a criminal activity or organisation. Similarly, the different rules applied nationally to the use of audio and technical surveillance, including voice bugging and GPS tracking, and the fact that it is allowed in some but not all countries, hamper their use during cross-border operations. Furthermore, the differences in the types of institutions responsible for overseeing the cross-border implementation of investigative tools or the absence of a central authority in charge of coordination create additional obstacles to cooperation needed to conduct cross-border operations. Joint police patrols and other joint operations The evaluations found that joint patrols are not used to their full potential. They are often a random and routine exercise led only by quantitative indicators (for instance the requirement to perform two joint patrols per week), depending on bilateral agreements and/or practice, and are not deployed based on prior joint threat analysis. As a result, their benefit is questioned. In addition, deployed police officers do not usually have police powers in the hosting Member State and struggle to access relevant databases and use communication tools effectively. As for hot pursuits, the limitations affecting the right to stop, question and apprehend suspects and the use of service weapons in legitimate self-defence or the defence of others are hindering factors. Moreover, there is a lack of centralised statistics on joint operations carried out, which prevents further assessment on their use. Police and Customs Cooperation Centres (PCCCs) Schengen States have set up permanent structures to ensure cross-border police cooperation in intra-EU border areas, in particular PCCCs. There are currently 59 PCCCs across the Schengen Area, mostly located at Schengen internal borders in order to address the security needs in border regions. Police, customs and border officers of two, three or even four Schengen States work together in PCCCs and exchange data and information by accessing their own national databases and communication systems. The evaluations noted that only some PCCCs support cross-border operations, such as joint patrols and hot pursuits. PCCCs can also engage in a ‘chain request’, whereby an information request is passed from one PCCC to the next until it reaches its final recipient. This practice slows down the exchange of information and can create information gaps. Training The evaluations found that initial national training on cross-border police cooperation is provided to newly recruited police officers in the Schengen Area. However, joint training between the relevant national authorities and neighbouring countries on the use of police cooperation tools has been assessed as insufficient as it can cause discrepancies and different interpretations of the rules that can be applied in the field. Furthermore, life-long and specialised training is usually less common than initial training. Online training also remains underused by officers said to be ‘absorbed by their daily tasks’. As a result, both a poor level of awareness on the availability of such training materials and on the use of various international police cooperation instruments was noted. This, depending on the country evaluated, is extended to CEPOL training. There is often a lack of incentives for staff to commit to specialised training. In addition, certification processes are often not in place. This finding applies to the majority of the Schengen States evaluated. Radio telecommunication tools and mobile access to databases Cross-border radio communications between Schengen States are hindered by the lack of interoperability between radio equipment. As a result, the majority of Schengen States evaluated resort to non-secure radio communication tools or mobile phones in order to contact their respective dispatch unit for background checks when operating abroad. This carries a risk of communication failures (frequent in mountainous areas), misunderstandings (e.g. in the case of transliteration issues) or undue delays with alerts for discrete checks. Moreover, as part of hot pursuits for instance, the evaluations noted that national radio communication systems are interoperable only to a limited extent. In practice, this can lead to situations in which officials from one Member State cross the border to another Member State as part of a hot pursuit, but lose the radio connection to their operations centre. This can lead to a higher likelihood of suspects evading police forces. The evaluation also identified the absence of mobile access to databases, which entails similar risks to the lack of interoperability of communications. 5.5.Council conclusions Under the German Presidency, the Council adopted conclusions on internal security and European police partnership on 14 December 2020. The Conclusions – which were the object of discussions between Member States in the Council’s Law Enforcement Working Party (LEWP-Police) and the Council’s Standing Committee on Internal Security – reiterate a number of political priorities to be achieved between 2020 and 2025. These include establishing an upgraded acquis on cross-border police cooperation including, for example, adequate powers for cross-border surveillance and hot pursuit. The Conclusions emphasise the need to take all necessary steps to further strengthen operational cross-border cooperation by effectively implementing existing instruments and, where appropriate, by strengthening, consolidating and simplifying the legal foundations in order to keep the EU safe. The Conclusions observed growing discrepancies between CISA and the Prüm decisions on the one hand, and the dynamically evolving practice based on bilateral, trilateral and multilateral treaties and the practical requirements of contemporary law enforcement work on the other. This results in uncertainty over the applicability and scope of existing forms of cooperation in certain cases. As a result, they stressed the need to evaluate the legal requirements of cross-border cooperation instruments that enable activities such as cross-border surveillance and cross-border hot pursuits against the necessities of contemporary law enforcement work. They underlined the role of joint police patrols, units and offices, joint operation points, joint action days and joint investigations. These (i) strengthen the maintenance of public order, crime prevention and the fight against crime particularly in border regions; (ii) increase the subjective sense of security of citizens; and (iii) allow for cooperation between law enforcement authorities from different Member States to enable regular joint services, thereby creating the basis for mutual trust. In particular, the Conclusions called on the Member States to take all necessary steps to further strengthen operational cross-border law enforcement cooperation by (…) consolidating, simplifying and extending the legal foundations, including joint patrols, units, offices and operation points, and to further increase the use of these instruments and their effectiveness and cost efficiency. They also called on Member States to extend in certain clearly defined circumstances the allocation of mutually agreed and balanced executive powers to foreign officers operating outside the territory of their home country so they can fulfil their duties. On cross-border surveillance, the Conclusions called on Member States to clarify and consider simplifying the legal requirements for conducting such surveillance, while upholding the principle of national sovereignty, the existing standards for the protection of fundamental rights, existing legal systems in Member States and the decisive role of the host country to assess the standardisation of the measures that may be approved and the technical means that may be deployed, e.g. drones and localisation devices. They also called for improved authorisation procedures, including by: ·redefining the distinction between urgent and non-urgent surveillance; ·extending the required timeframe for obtaining authorisation for urgent surveillance as appropriate; ·considering, where necessary and proportionate under strict conditions and without affecting the existing instruments, including mutual legal assistance agreements where applicable, allowing surveillance to be launched in the territory of another country before it continues in the home country of the officers involved.