Initiative of the Kingdom of Belgium and the Kingdom of Spain with a view to adopting a Council Act drawing up a Protocol amending the Convention on the establishment of a European Police Office (Europol Convention), the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol

(2002/C 42/07)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Convention on the establishment of a European Police Office(1), and in particular Article 43(1) thereof,

Having regard to the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office(2), and in particular Article 7 thereof,

Having regard to the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol(3), and in particular Article 18 thereof,

Having regard to the initiative of the Kingdom of Belgium and the Kingdom of Spain(4),

Having regard to the Opinion of the European Parliament(5),

Having regard to the opinion of the Management Board,

CONSIDERING that Europol's participation in joint investigation teams would enhance the fight against organised crime,

CONSIDERING that Article 30(2)(a) of the Treaty on European Union explicitly foresees the participation of Europol in joint investigation teams,

CONSIDERING that the effective fight against organised crime requires Europol to react in a flexible way to the changing international environment and that therefore the procedure for amending the Europol Convention needs to be simplified,

CONSIDERING that the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office at present provides for jurisdiction only to give preliminary rulings on the interpretation of the Convention itself. It is deemed appropriate to give the Court also jurisdiction with regard to the implementation measures,

CONSIDERING that Europol's participation in joint investigation teams requires a clarification of the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol,

HAS DECIDED on the drawing up of a Protocol, the text of which is attached, amending the Convention on the establishment of a European Police Office (Europol Convention), the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the convention on the establishment of a European Police Office and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol, which has been signed today by the representatives of the governments of the Member States of the European Union,

RECOMMENDS that it be adopted by the Member States in accordance with their respective constitutional requirements.

Done at ...

For the Council

The President

...

(1) OJ C 316, 27.11.1995, p. 2.

(2) OJ C 299, 9.10.1996, p. 2.

(3) OJ C 221, 19.7.1997, p. 2.

(4) OJ ...

(5) OJ ...

ANNEX

PROTOCOL AMENDING THE CONVENTION ON THE ESTABLISHMENT OF A EUROPEAN POLICE OFFICE (EUROPOL CONVENTION), THE PROTOCOL ON THE INTERPRETATION, BY WAY OF PREMLIMINARY RULINGS, BY THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES OF THE CONVENTION ON THE ESTABLISHMENT OF A EUROPEAN POLICE OFFICE AND THE PROTOCOL ON THE PRIVILEGES AND IMMUNITIES OF EUROPOL, THE MEMBERS OF ITS ORGANS, THE DEPUTY DIRECTORS AND THE EMPLOYEES OF EUROPOL

THE HIGH CONTRACTING PARTIES to this Protocol and Contracting Parties to the Convention on the establishment of a European Police Office, to the Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol of a Protocol amending that Protocol, Member States of the European Union,

REFERRING to the Act of the Council of the European Union of ...,

WHEREAS:

(1) In accordance with Article 30(2)(a) of the Treaty on European Union, rules need to be laid down governing the participation of the European Police Office (hereinafter referred to as "Europol") in joint investigation teams.

(2) The rules governing Europol's participation in joint investigation teams should determine the role of Europol officials in these teams, the exchange of information between Europol and the joint investigation team as well as the criminal and civil liability arising from the participation of Europol officials in these teams.

(3) Article 30(2)(b) of the Treaty on European Union makes provision for Europol to be allowed to ask the competent authorities of the Member States to conduct and coordinate investigations in specific cases.

(4) In order to enable Europol to react in a more flexible way to the changing international environment, the procedure for amending the Europol Convention should be simplified.

(5) The jurisdiction of the Court of Justice should be enlarged in such a way as to cover not only the interpretation of the Europol Convention but also the validity and interpretation of acts amending the provisions of the Europol Convention and measures adopted by, or within, the Council of the European Union implementing the Europol Convention.

(6) The Court of Justice should also have jurisdiction with regard to the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol, as well as jurisdiction to rule on disputes between Member States regarding the Europol Convention.

(7) The Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol should be amended in order to clarify that the immunity of Europol's staff in respect to words spoken or written, and or acts performed by them, in the exercise of their official functions, does not apply to their participation in the activities of the joint investigation teams,

HAVE AGREED ON THE FOLLOWING PROVISIONS:

Article 1

The Europol Convention is hereby amended as follows:

1. the following points shall be added to Article 3(1): "(6) to participate in a support capacity in joint investigation teams, according to Article 3a;

(7) to ask the competent authorities of the Member States concerned to conduct or coordinate investigations in specific cases.";

2. the following Articles shall be inserted: "Article 3a

Participation in joint investigation teams

1. Europol officials may participate in a support capacity in joint investigation teams, including those teams set up in accordance with Article 1 of the Framework Decision of ... on joint investigation teams(1) or in accordance with Article 13 of the Convention of 29 May 2000 on mutual assistance in criminal matters between the Member States of the European Union, as far as those teams are investigating criminal offences for which Europol is competent under Article 2. Europol officials may, within the limits provided for by the law of the Member States where the joint investigation team operates and in accordance with the arrangement referred to in paragraph 2, assist in all activities and exchange information with all members of the joint investigation team, in accordance with paragraph 3. However, they may not assist in the execution of any coercive measures in relation to arrest and detention.

2. The way in which Europol officials participate in a joint investigation team shall be based on an arrangement between the Director of Europol and the Member States participating in the joint investigation team, with the involvement of the National Units. The rules governing such arrangements shall be determined unanimously by the Management Board of Europol. Europol officials shall carry out their tasks under the leadership of the leader of the team, taking into account the conditions laid down in the arrangement.

3. In accordance with the arrangement referred to in paragraph 2, officials of Europol may liaise directly with the members of the joint investigation team and provide members and seconded members of the joint investigation team with information from any of the components of the computerised system of collected information referred to in Article 6. In case of direct liaison, the National Units of the Member States represented in the team as well as the Member States which provided the information shall be informed thereof by Europol.

4. Information obtained by a Europol official while part of a joint investigation team may, with the consent and under the responsibility of the Member State which provided the information, be included in any of the components of the computerised system under the conditions laid down in this Convention.

5. In derogation from Article 41, during the operations of a joint investigation team referred to in this Article, Europol officials shall be regarded as officials of the Member State of operation with respect to offences committed against, or by, them."

"Article 39a

Civil liability with regard to Europol's participation in joint investigation teams

1. Where, in accordance with Article 3a, officials of Europol are operating in a Member State, Europol shall be liable for any damage caused by them during their assistance in operational measures, in accordance with the law of the Member State in whose territory they are operating.

2. The Member State in the territory of which the damage referred to in paragraph 1 was caused shall make good such damage under the conditions applicable to damage caused by its own officials.

3. Where Europol officials cause damage to any person in the territory of a Member State, Europol shall reimburse that Member State in full any sums it has paid to the victims or persons entitled on their behalf.";

3. Article 43 shall be replaced by the following: "Article 43

1. Amendments to this Convention shall be adopted by the Council acting unanimously, after having obtained the opinion of the Management Board, and, in so far as such amendments concern issues falling within its mandate, the Joint Supervisory Body provided for in Article 24. The European Parliament shall be consulted.

2. The Council shall determine the date and entry into force of any amendment to the Convention and shall ensure its publication in the Official Journal of the European Communities.".

Article 2

The Protocol on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office, is hereby amended as follows:

1. the title shall read as follows: "Protocol on the jurisdiction of the Court of Justice of the European Communities in matters related to the Convention on the establishment of a European Police Office (Europol Convention)";

2. Article 1 shall read as follows: "Article 1

The Court of Justice of the European Communities shall have jurisdiction, under the conditions laid down in this Protocol, to give preliminary rulings on:

- the interpretation of the Convention on the establishment of European Police Office, hereinafter referred to as 'the Europol Convention',

- the validity and interpretation of Council acts amending the provisions of the Europol Convention and measures adopted by or within the Council implementing the Europol Convention,

- the interpretation of the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol(2), hereinafter referred to as 'the Protocol on Privileges and Immunities';

- the validity and interpretation of measures adopted by or within the Council implementing the Protocol on Privileges and Immunities, if any."

3. the following Articles shall be inserted: "Article 2a

The Court of Justice of the European Communities shall have jurisdiction to review the legality of acts taken by the Council, pursuant to Article 43 of the Europol Convention, in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of the Treaty on European Union or of any rule of law relating to its application, or misuse of powers. The proceedings provided for in this Article shall be instituted within two months of the adoption of such an act by the Council.

Article 2b

The Court of Justice of the European Communities shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of the Europol Convention and measures adopted by, or within, the Council implementing the Europol Convention as well as the Protocol on Privileges and Immunities, whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members.".

Article 3

The following paragraph shall be added to Article 8 of the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol:

"4. In accordance with Article 17(2), the immunity referred to in paragraph 1(a) shall not be granted in respect of official acts required to be undertaken in fulfilment of the tasks set out in Article 3a of the Convention regarding the participation of Europol officials in joint investigation teams."

Article 4

1. This Protocol shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.

2. Member States shall notify the Secretary-General of the Council of the European Union of the completion of their constitutional requirements for adopting this Protocol.

3. This Protocol shall enter into force 90 days after the notification, referred to in paragraph 2, by the Member State which, being a member of the European Union on the date of adoption by the Council of the act establishing this Protocol, is the last to fulfil that formality.

Article 5

1. This Protocol shall be open to accession by any State which becomes a member of the European Union if this Protocol has not entered into force on the date of deposit of the instruments of accession to the Europol Convention in accordance with Article 46 of the Europol Convention.

2. Instruments of accession to this Protocol shall be deposited simultaneously with the instruments of accession to the Europol Convention in accordance with Article 46 thereof.

3. The text of this Protocol in the language of the acceding State, drawn up by the Council of the European Union, shall be authentic.

4. If, on the expiry of the period referred to in Article 46(4) of the Europol Convention, this Protocol has not entered into force, it shall enter into force for the acceding Member State on the date of entry into force of this Protocol in accordance with Article 4(3) thereof.

5. If this Protocol enters into force in accordance with Article 4(3) before the period referred to in Article 46(4) of the Europol Convention has expired but after the deposit of the instrument of accession referred to in paragraph 2, the acceding Member State shall accede to the Europol Convention as amended by virtue of this Protocol, in accordance with Article 46 of the Europol Convention.

Article 6

1. The Secretary-General of the Council of the European Union shall act as depository of this Protocol.

2. The depository shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions and also any other notification concerning this Protocol.

(1) OJ ...

(2) OJ C 22, 19.7.1997, p. 1.;