Proposal for a Council Decision on the improvement of police cooperation between the Member States of the European Union, especially at the internal borders and amending the Convention implementing the Schengen Agreement
Date: 2005-07-18
Institutions: European Commission
Subjects: EU police cooperation, Schengen Agreement, fight against crime, frontier region, internal border of the EU, public safety

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.7.2005 
COM(2005)317 final 

2005/0131(CNS) 

Proposal for a 

COUNCIL DECISION 

on the improvement of police cooperation between the Member States of 
the European Union, especially at the internal borders and amending 
the Convention implementing the Schengen Agreement 

. 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1) 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The  proposal  for  a  Council  Decision  on  the  improvement  of  cooperation  at  the  internal 
borders  of  Member  States  of  the  European  Union  is  mentioned  in  the  Legislative  and 
Working Programme of the Commission (CLWP) for 2005, ref. IRMS 2004/JLS/036 since it 
was already mentioned in the CLWP for 2004. 

In the Hague Programme of 4 November 2004, the European Council invites the Commission 
to  bring  forward  proposals  to  further  develop  the  Schengen-acquis  in  respect  of  operational 
cross  border  police cooperation, and in its Declaration on combating terrorism of  29  March 
2004, it had instructed the Council, among other things, to examine measures in the area of 
"cross-border hot pursuit" and called for further development of the legislative framework. 

•  General context 

The Treaty of Amsterdam made the progressive establishment of an area of freedom, security 
and justice a new goal of the Union. 

Free movement of persons within that area requires action to counter security deficits caused 
by the abolition of border controls, as perpetrators of criminal acts are equally able to move as 
freely as law abiding citizens. Impunity caused by obstacles to cooperation must be removed. 

In  border  regions  the  impact  of  the  permeable  coexistence  of  different  jurisdictions  is  most 
felt in everyday police work. The need for appropriate cooperation mechanisms  is therefore 
most  acute  in  those  regions,  i.e.  to  address  the  security  challenges  exceeding  those  existing 
elsewhere in the Union. Although each region is unique, as regards demography, geography 
and prosperity,  similarities in  cooperation needs permit to develop a common framework to 
tackle  the  obstacles  to  cooperation,  coordination  of  activities  and  information  exchange.  If 
this common framework fails, the different practices and rules for detection, investigation and 
prosecution of crimes with cross-border implications will thwart law enforcement and lead to 
distortions in security. 

To  meet  these  challenges,  and  in  the  absence  of  a  general  framework,  Member  States 
concluded bilateral agreements between themselves. The Schengen Convention limits itself to 
generalities,  leaving  details  to  Member  States.  However,  the  situation  that  emerged,  the 
experience  gained  and  the  demands  made  to  the  EU  level,  require  to  legislate  on  basic 
common  principles,  to  improve  existing  mechanisms  and  provide  for  structures  that  further 
development. 

Among the structures that emerged, some have proven to be extremely efficient, such as the 
permanent cooperation centres that bring the local law enforcement stakeholders at both sides 
at the border under one roof. 

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•  Existing provisions in the area of the proposal 

The  Tampere  Council  Conclusions  of  1999  provided  for  details  on  the  normative  and,  to  a 
lesser degree, operational underpinnings to the area of freedom, security and justice that were 
introduced by the Treaty on European Union, i.e. the Treaty of Amsterdam of 1997. 

The  1998  Vienna  Action  Plan1,  that  remains  valid  under  the  Amsterdam  Treaty,  called  for 
extension  of  cross-border  cooperation,  like  the  establishment  of  permanent  cooperation 
structures in the form of Joint Police Stations and Police and Customs Cooperation Centres at 
internal borders. 

The  Schengen  Convention  of  1990  that  was  incorporated  into  the  EU  framework  by  the 
Treaty  of  Amsterdam,  provides  for  the  abolition  of  border  controls  while  at  the  same  time 
reinforcing control measures at the external borders. To off set security deficits caused by the 
abolition of border controls new mechanisms were introduced to enable and promote police 
cooperation. 

In the Hague Programme of 5 November 2004, the European Council invites the Commission 
to  come  up  with  proposals  to  further  develop  the  Schengen  acquis  in respect  of  operational 
cross border police cooperation. 

•  Consistency with other policies and objectives of the Union 

This Decision is consistent with the policies for the progressive establishment of the area of 
freedom, security and justice. 

2) 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

No specific consultations were necessary. The conclusions that such consultations could have 
provided exist in the context of previous and ongoing activities at EU level (research, Council 
groups  and  other  European  forums  dealing  with  police  cooperation).  They  had  consistently 
flagged  the  issues  that  are  dealt  with  in  the  Decision  as  structural  cross-border  framework 
needs.  The  most  important  sources  that  were  used  are  (1)  the  Communication  from  the 
Commission  to  the  European  Parliament  and  the  Council  on  enhancing  police  and  customs 
cooperation  in  the  European  Union  (COM(2004)376  final)  of  18.05.2004,  in  which  context 
the Commission has consulted the law enforcement authorities of the Member States, and was 
based a) on extensive research, and b) the results of the Schengen Evaluation process over the 
years  2000-2004  ;  (2)  the  Catalogue  of  recommendations  for  the  correct  application  of  the 
Schengen acquis and best practices: part on Police Co-operation (doc 9788/01/03 SCH-EVAL 
40 COMIX 328 rev 1 of 16 June 2003), that contained concrete recommendations by the law 
enforcement authorities for improvements in the field covered by the current proposal ; (3) the 
outcome  of  discussions  in  the  European  Chiefs  of  Police  Task  force  on  reinforcing  police 
cooperation in the areas at the common borders ; (4) the conclusions of the seminar "Policing 
without frontiers", held in The Netherlands in March 2004. 

1 

OJ C 19 of 23.1.1999, p. 1. 

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•  Collection and use of expertise 

Not applicable. 

•  Impact assessment 

As regards impact on fundamental rights, it should be emphasised that the direct aim of the 
Decision  is  to  contribute  to  the  implementation  of  Articles  2  and  3  of  the  Charter  of 
Fundamental  Rights  which  state  that  everyone  has the  right  to  life  and  physical  integrity;  it 
does  this  by  promoting  cross  border  law  enforcement  cooperation  while  respecting  the 
different  legal  traditions  and  systems  of  the  Member  States  as  well  as  other  fundamental 
rights  and  principles  recognised  by  the  Charter.  Furthermore,  the  processing  of  data  is 
protected in accordance with Article 8 of the Charter. 

3) 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The  Decision  provides  for  a  transparent,  common  framework  within  which  cross-border 
police cooperation, especially at the common borders, is carried out and can further develop. 
To  that  end,  the  Decision  lays  down  general  rules  to  promote  strategic  and  operational 
cooperation between law enforcement authorities, and in doing so work towards fulfilling the 
mandate  of  Article  29  TEU,  i.e.  to  provide  the  citizens  of  the  European  Union  with  a  high 
level  of  safety.  More  specifically,  this  aim  is  met  by  (a)  strengthening  and  improving 
information  exchange  on  all  matters  concerning  cooperation  between  law  enforcement 
authorities; (b) taking joint action in the coordination of strategic and operative activities on a 
permanent  basis;  (c)  taking  joint  action  in  carrying  out  operational  activities,  (d)  extending 
existing  cross-border  capabilities  and  (e)  providing  oversight  and  cooperation  structures  to 
further  future  development.  This  Decision  does  not  affect  the  abolition  of  internal  border 
checks as laid down in Article 2 of the Schengen Convention. 

•  Legal basis 

The  legal  basis  for  the  proposal  is  provided  by  Articles  30(1)(a),  (b),  (c),  32  and  34  (2)(c) 
TEU. Under Article 5(1) of the Protocol integrating the Schengen acquis into the framework 
of  the  European  Union,  proposals  and  initiatives  to  build  upon  the  Schengen  acquis  are 
subject to the relevant provisions of the Treaties. 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the European Union. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reasons: 

The aim of the proposal is to bring out in a transparent framework the common principles for 
law enforcement cooperation that apply across the Union. This will promote law enforcement 
at an equivalent high level, and avoid distortions because of discrepancies detrimental to the 
security of citizens. This objective can -as a matter of fact- not be achieved by Member States 

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acting alone. In addition to this the amendment of the Schengen Convention achieved by the 
Decision can not be attained by Member States acting alone. 

Member  State  can  not  manage  its  security  in  isolation,  because  of  the  permeability  of  the 
borders, but also because of the interdependency of their law enforcement communities. The 
resulting joint responsibility for the security of the Union, conceived as an area of freedom, 
security and justice, in general and for each other's security in particular require instruments 
like the current Decision. The proposal brings the different forms and features that came into 
being  since  the  entry  into  force  of  the  Schengen  Convention  under  one  transparent 
framework. Failing this law enforcement practice in the different parts of the Union, and with 
that, the level of security of citizens, risk to develop in an uneven manner.  

Action  on  the  level  of  the  Union  will  better  achieve  the  objectives  of  the  proposal  for  the 
following reasons. 

The  Decision  lays  down  "general  rules  to  promote  strategic  and  operational  cooperation" 
between the Member States' law enforcement authorities, and increases "the level of security 
of  the  citizens  of  the  European  Union".  The  Decision  subsumes  in  a  transparent  framework 
furthering future development, the common cross-border cooperation principles and practices 
that emerged in the course of the last decade in the context of Schengen and of the last five 
years in the context of operation of the area of freedom, security and justice. The concept of 
the area of freedom, security and justice in Article 61 TEC and 29 TEU requires a common 
policy on, inter alia, cross-border security cooperation because of the interdependence of the 
national  law  enforcement  activities.  The  proposal  seeks  to  attain  a  balance  between 
consolidation  of  practice,  facilitation  of  cooperation,  and  joint  development  of  operational 
practice.  In  this  respect,  the  sovereign  responsibilities  of  Member  States  are  respected,  for 
instance  the  selection  of  means  and  the  decision  of  the  law  enforcement  strategies,  whilst 
providing common pathways for cooperation if deemed necessary. 

Qualitative  evaluation  of  cross-border  law  enforcement  cooperation  is  the  hallmark  of  the 
Schengen  Evaluation  process.  In  that  context,  consensus  exist  that  respect  of  commonly 
agreed upon principles is required to achieve an equivalent high level of security through the 
area  of  freedom,  security  and  justice,  so  as  to  avoid  shifts  in  crime  patterns  and  negative 
collateral  effects  for  national  security.  At  the  same  time,  all  Member  States  agree  that  the 
respect  of  common  principles  must  leave  sufficient  margin  for  Member  States  to  decide 
autonomously  to  what  extent  they  engage  in  cross-border  cooperation  and  leave  it  to  the 
unfolding operational reality. To achieve that balance but also to improve the quality of and 
capabilities  for  cooperation,  experience  gained  over  the  past  decade  is  subsumed  in  the 
current  Decision.  The  Decision  feeds  the  development  back  into  common  cooperative 
structures  and  in  doing  so  it  supports  the  fruition  of  best  practice  and  continuous 
improvement. The project-driven programmes sponsored by Commission (AGIS), or the peer 
review  organised  under  the  aegis  of  the  Council,  point  towards  the  need  for  such  common 
principles and practices. 

The proposal brings transparency in the developments over the past decade, provides for the 
infrastructures to improve cooperation, coordination and information exchange, and leave it to 
Member  States  to  decide  autonomously  to  what  extent  they  engage  in  cross-border 
cooperation, tailored to the needs of the unfolding operational reality. It ensures, however that 
if  Member  States  decide  to  engage  in  cooperative  activities,  they  do  so  on  the  basis  of 
common standards. It also provides for common oversight and review mechanisms to adjust 

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the processes and permit transparent evolution. The amendment of Articles 40 and 41 of the 
Schengen Convention need to be done on EU level. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

The  proposal  provides  for  common  principles  and  structures  for  cooperation,  leaving  the 
operational aspects to the discretion of Member States. The proposal does not interfere with 
the  national  responsibility  to  provide  citizens  with  security,  nor  with  the  competence  to 
organise  law  enforcement  in  a  way  that  is  deemed  appropriate  to  connect  with  national 
practice.  At  the  same  time,  the  proposal  avoids  that  the  application  of  the  subsidiarity 
principle entails disparities that are detrimental to societal security needs, or to the operation 
of the area of freedom, security and justice. For that reason, it is sufficient and adequate to lay 
down common minimum standards with regard to the presence of sufficient law enforcement 
capabilities in border regions to address crime in an equivalent manner. 

Additional  costs,  estimated  at  202.500  Euro  annually,  will  arise  in  the  context  of  the 
Regulatory Committee, set up under this Decision. Economic operators or citizens, although 
beneficiaries  of  the  cooperation  brought  about  by  this  instrument,  are  not  concerned  by  the 
operation of this Decision. 

•  Choice of instruments 

The  instrument  chosen  is  a  Decision  based  on  Article  34  (2)  (c)  of  the  Treaty  on  European 
Union. Other means would not be adequate for the following reasons: 

Refraining  for  legislation  would  fall  short  of  the  ambitions  expressed  in  the  Hague 
Programme. Besides it would fail to bring out the common operational elements that underlie 
the  diverse  bi-  and  multilateral  cooperation  instruments.  Legislation  containing  stricter  or 
more  detailed  rules  would  ignore  the  differences  that  exist  at  the  borders  in  terms  of 
demography, geography and organisational idiosyncrasies. 

Regulatory  alternatives  (subsidising  multilateral  law  enforcement  projects,  handbooks, 
catalogues  of  best  practices,  peer  review)  already  exist,  but  they  have  shown  not  to  be 
sufficient to provide the framework of common cooperative principles. The improvement of 
cross-border  cooperation  that  the  Decision  brings  out  was  requested  by  the  Hague 
Programme. 

4) 

BUDGETARY IMPLICATION 

An estimated total annual amount of 202.500 Euro have to be incurred on the EU budget for 
human  resources  and  administrative  expenditures,  in  the  context  of  the  meetings  of  the 
Regulatory Committee set up by this Decision, that lays down the tasks of the Committee. At 
the beginning of its activities, until such time as the proposals contained in the Decision have 
become  operational,  the  Committee  will  have  to  meet  more  frequently  and  will  need  more 
intensive administrative support to find solutions, for example, in the context of the drafting 
of model agreements, creation of common structures and evaluation aspects. The Regulatory 
Committee  should  meet  regularly,  estimated  twice  a  year,  to  discuss  what  planning  and 

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measures  need  to  be  taken  in  order  to  implement  Article  3  of  the  Council  Decision  on 
improved  police  and  customs  cooperation.  These  meetings  will  have  to  be  organised  and 
hosted by the Commission. 

5) 

ADDITIONAL INFORMATION 

•  Repeal of existing legislation 

The adoption of the proposal will lead to the repeal of existing legislation. 

•  Detailed explanation of the proposal 

Article  1  describes  the  object  and  purpose,  i.e.  to  increase  the  level  of  security  of  citizens 
through  the  promotion  of  operational  and  strategic  cooperation  between  police  and  customs 
services, in particular at the internal borders of the Schengen Area. It provides for the general 
structure of measures with regard to improved cooperation. 

Article 2 defines key terminology. 

Article 3 builds on Article 39 of the Schengen Convention and the Decisions of the Executive 
Committee of 16 December 1998 and of 28 April 1999 providing for a non-exhaustive list of 
areas in which information-exchange shall be improved. 

Article  4  (coordination)  lists  the  particular  law  enforcement  activities  in  border  regions  that 
should  be  subject  of  coordination  and  the  conditions  for  the  facilitation  of  the  coordination 
function. It also deals with deployment of non-compatible equipment that was identified as a 
major obstacle to cross-border cooperation. 

Article 5 lists operational cooperation techniques, such as assigning tasks to liaison officers or 
to officials of other Member States. The measures described will assist in making efficient use 
of available resources. 

Article 6 entails an obligation to establish permanent cooperation structures in border regions. 

Article 7 provides for data protection by applying the standards of Title VI of the Schengen 
Convention. 

Article  8  provides  for  regular  peer  evaluations  and  invites  the  Commission  to  submit 
evaluation reports to the Council. 

Article 9 defines the relation of the proposal to bilateral agreements or treaties. 

Article  10  establishes  a  Regulatory  Committee  composed  of  representatives  of  the  Member 
States and chaired by the Commission. 

Article 11 amends Article 40 paragraphs (1), (2) and (7) (observation) and broadens the scope 
and  removes  the  limitation  to  land  borders  as  foreseen  in  Article  41  (hot  pursuit)  of  the 
Schengen Convention. 

Article 12 lists the Schengen Acquis to be repealed in the light of the proposal. 

Article 13 sets out the periods for the application of the proposal. 

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2005/0131(CNS) 

Proposal for a 

COUNCIL DECISION 

on the improvement of police cooperation between the Member States of 
the European Union, especially at the internal borders and amending 
the Convention implementing the Schengen Agreement 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on European Union, and in particular Article 30(1)(a), (b) and (c), 
Article 32 and Article 34(2)(c) thereof, 

Having regard to the proposal from the Commission2, 

Having regard to the opinion of the European Parliament3, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

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4 

5 

6 

Article  29  of  the  Treaty  on  European  Union  states  that  the  Union’s  objective  is  to 
provide  citizens  with  a  high  level  of  safety  within  an  area  of  freedom,  security  and 
justice by developing common action among the Member States in the fields of police 
and judicial cooperation in criminal matters. 

The  Vienna  Action  Plan  of  11  December  19984  encourages  the  close  cooperation  of 
judicial,  police,  customs  and  other  relevant  authorities  in  preventing  and  combating 
crime,  organised  or  otherwise,  and  calls  for  determination  of  the  conditions  and 
limitations under which the competent police and customs authorities of one Member 
State may operate in the territory of another Member State, in liaison and in agreement 
with the latter. 

The  conclusions  of  the  European  Council  of  15  and  16  October  1999  in  Tampere 
affirm  the  need  to  step  up  cooperation  against  crime  by  deriving  maximum  benefit 
from cooperation between Member States’ authorities when investigating cross-border 
crime  in  any  Member  State  and  call  for  joint  investigation  teams  as  provided  for  in 
Council Framework Decision 2002/465/JHA5. 

The Convention of 1990 implementing the Schengen Agreement of 14 June 1985 on 
the  gradual  abolition  of  checks  at  common  borders6  (hereinafter  referred  to  as  "the 
Schengen  Convention"),  and  integrated  into  the  framework  of  the  European  Union 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C 19, 23.1.1999, points 42 and 44(b). 
OJ L 162, 20.6.2002, p.1. 
OJ L 239, 22.9.2000, p.19. 

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pursuant  to  the  Protocol  annexed  to  the  Treaty  on  European  Union  and  the  Treaty 
establishing the European Community, introduced new forms of cooperation between 
police authorities of the Member States as one of the measures to compensate for the 
abolition of the checks at the common borders of the Schengen Member States. The 
Schengen  Convention  came  into  effect  on  26  March  1995,  since  when  cooperation 
between Member States’ police and customs authorities has increased significantly. 

(5)  Member  States  have  concluded  a  large  number  of  bilateral  agreements  and 
arrangements  to  attend  to  the  specific  cooperation  needs  in  border  regions.  In  the 
absence  of  a  Union  approach,  differences  in  the  level  of  security  along  the  common 
borders  may  exist,  as  can  be  derived  from  the  recommendations  issued  by  the 
Ministers on the basis of the reports of the Standing Committee on the evaluation and 
implementation of the Schengen Convention. 

(6) 

(7) 

(8) 

(9) 

In its Communication to the European Parliament and the Council on enhancing police 
and customs co-operation in the European Union7, the Commission highlights the need 
to  significantly  increase  the  instruments,  operational  measures  and  efforts  that 
Member States deploy at their internal borders to transform the Union into a genuine 
area of freedom, security and justice.  

The programme adopted by the European Council at its meeting of 4 and 5 November 
2004 in The Hague, invites the Commission present proposals to further develop the 
Schengen  acquis  in  respect  of  cross  border  operational  police  cooperation.  The 
Programmes acknowledges that an optimal level of protection of the area of freedom, 
security and justice requires multi-disciplinary and concerted action both at the level 
of the Union and at national level between the competent law enforcement authorities, 
especially police, customs and border guards. 

It  is  therefore  necessary  to  improve  police  cooperation  especially  at  the  internal 
borders  of  the  European  Union  by  multilateral  means  in  order  to  bring  about  an 
improved  exchange  of  information,  better  coordination,  and  operational  cooperation. 
This  Decision  should  aim  at  standardisation,  simplification  and  acceleration  of 
procedures, emphasise operational aspects based on common strategic considerations, 
and increase the effectiveness and efficiency of the deployment of human and material 
resources. 

A  comprehensive  exchange  of  information  has  been  unanimously  identified  as  a 
fundamental prerequisite to ensure the effectiveness of law enforcement cooperation. 
For the purpose of a coherent application of Article 39 of the Schengen Convention it 
is  necessary  to  determine  which  types  of  information  could  be  directly  exchanged 
between  law  enforcement  authorities  of  the  Member  States  to  prevent  and  detect 
criminal  offences,  without  having  to  make  or  channel  the  request  via  the  judicial 
authorities. 

(10)  Efficient  cooperation  can  only  be  achieved  through  comprehensive  coordination. 
Therefore,  Member  States  should  coordinate  the  activities  of  police  and  customs  in 
border  regions  by  such  means  as  common  operational  and  resource  planning,  a 
permanent  mutual  consultation  and  information  mechanism  and,  if  need  be,  joint 

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COM(2004)376 final of 18 May 2004. 

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training and special situation exercises (i.e. handling of kidnapping, hostage-taking, or 
demonstrations). 

(11)  Forms  of  operational  cooperation should  be established in order to increase the joint 
availability  of  resources,  the  efficiency  of  their  deployment,  and  the  effectiveness  of 
the handling of routine tasks as well as of special situations. 

(12)  Permanent  structures  for  exchange  of  information  should  be  established  in  order  to 
promote cooperation and coordination, and to monitor the underlying processes.  

(13)  The  regulatory  procedure  provided  for  in  Article  10  of  this  Decision  should  be 
followed  as  regards  measures  of  general  scope  designed  to  apply  the  provisions  of 
Article 3 as for instance the development of standard technical solutions and formats 
for the transmission of information. 

(14)  The provisions of the Schengen Convention concerning cross-border surveillance and 
cross-border hot pursuit should be amended with a view to increase the effectiveness 
and  success  of  criminal  investigations  and  operations  by  authorising  cross-border 
surveillance and cross-border hot pursuit in the case of criminal investigations into a 
criminal  offence  for  which  surrender  or  extradition  is  possible.  Furthermore,  cross-
border hot pursuit should not only be over land borders. 

(15)  Since  the  objectives  of  the  proposed  action,  namely  improving  operational  co-
operation  between  police  and  customs  authorities,  especially  at  the  internal  borders, 
cannot be sufficiently achieved by the Member States, given the cross-border nature of 
security issues, and can therefore by reason of the interdependence of Member States, 
be  better  achieved  at  the  level  of  the  European  Union,  the  Council  may  adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
EC  Treaty  and  referred  to  in  Article  2  of  the  EU  Treaty.  In  accordance  with  the 
principle of proportionality as set out in Article 5 of the EC Treaty, this Decision does 
not go beyond what is necessary, in order to achieve those objectives.  

(16)  The  United  Kingdom  is  taking  part  in  this  Decision,  except  for  Article  11  point  2of 
this  Decision,  in  accordance  with  Article  5  of  the  Protocol  integrating  the  Schengen 
acquis into the European Union annexed to the Treaty on European Union and to the 
Treaty  establishing  the  European  Community,  and  Article  8(2)  of  Council  Decision 
2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great 
Britain  and  Northern  Ireland  to  take  part  in  some  of  the  provisions  of  the  Schengen 
acquis. 

(17) 

Ireland is taking part in this Decision, except for the Article 11points 1 and 2 of this 
Decision, in accordance with Article 5 of the Protocol integrating the Schengen acquis 
into the European Union annexed to the Treaty on European Union and to the Treaty 
establishing  the  European  Community,  and  Article  6(2)  of  Council  Decision 
2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of 
the provisions of the Schengen acquis. 

(18)  This  Decision  is  without  prejudice  to  the  arrangements  for  the  United  Kingdom  and 
Ireland's  partial  participation  in  the  Schengen  acquis,  as  defined  in  Decision 
2000/365/EC and 2002/192/EC, respectively. 

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(19)  As  regards  Iceland  and  Norway,  this  Decision  constitutes  a  development  of  the 
provisions of the Schengen acquis within the meaning of the Agreement concluded by 
the Council of the European Union and the Republic of Iceland and the Kingdom of 
Norway  concerning  the  association  of  those  two  States  with  the  implementation, 
application  and  development  of  the  Schengen  acquis,  which  fall  within  the  area 
referred to in Article 1, point H of Council Decision 1999/437/EC of 17 May 1999 on 
certain arrangements for the application of that Agreement8. 

(20)  As  regards Switzerland,  this Decision constitutes a  development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  signed  by  the  European 
Union,  the  European  Community  and  the  Swiss  Confederation  concerning  the 
association  of  the  Swiss  Confederation  with  the  implementation,  application  and 
development of the Schengen acquis which fall within the area referred to in Article 1, 
point  H  of  Council  Decision  1999/437/EC  of  17  May  1999  on  certain  arrangements 
for  the  application  of  that  Agreement  read  in  conjunction  with  Article  4  (1)  of  the 
Council Decision 2004/849/EC9 on the signing, on behalf of the European Union, and 
on the provisional application of certain provisions of that Agreement. 

(21)  This Decision constitutes an act building on the Schengen acquis or otherwise related 
to it within the meaning of Article 3(1) of the 2003 Act of Accession, except for the 
Article 11 of this Decision for which the provisions of Article 3(2) of the 2003 Act of 
Accession apply. 

(22)  This Decision respects the fundamental rights, and observes the principles recognised 

in particular by the Charter of Fundamental Rights of the European Union, 

HAS DECIDED AS FOLLOWS:  

Article 1 
Subject-matter 

This  Decision  lays  down  general  rules  to  promote  strategic  and  operational 
cooperation between the authorities covered by this Decision as defined in Article 2, 
in  particular  at  the  internal  borders,  and  to  increase  the  level  of  security  of  the 
citizens of the European Union, by: 

(a) 

(b) 

strengthening  and  improving  information  exchange  on  all  matters 
concerning  cooperation  between  the  authorities  covered  by  this 
Decision; 

taking  joint  action  in  the  coordination  of  strategic  and  operative 
activities on a permanent basis; 

(c) 

taking joint action in carrying out operational activities. 

Member States sharing a common border shall intensify cooperation in particular in 
border regions in order to: 

OJ L 176, 10.7.1999, p. 31. 
OJ L 368 of 15.12.2004, p. 26. 

1. 

2. 

8 

9 

EN 

11 

   EN 

 
                                                 
(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

prevent,  detect  and  investigate  any  type  of  crime  originating  in  or 
having a particular impact on the level of security of border regions; 

prevent  threats  to  public  order  and  internal  security,  and  address 
disturbances to public order; 

promote  the  security  of  cross-border  road,  water,  rails  and  air  traffic 
when under the responsibility of authorities covered by this Decision; 

assist each other to prevent, and combat criminal offences that cause 
or are likely to cause emergencies, calamities or serious accidents; 

develop  and  maintain  a  high  level  of  knowledge  of  the  authorities 
covered by this Decision and their respective legal and administrative 
systems; 

including 

improve  the  skills  of  the  officers  of  the  authorities  covered  by  this 
Decision, 
to  expert 
knowledge required for cooperation in a specific border region that is 
not  or  not  sufficiently  provided  for  in  the  general  curriculum  of  the 
European Police College (CEPOL). 

training,  with  regard 

language 

3. 

This Decision does not affect the abolition of internal border checks as laid down in 
Article  18  of  the  Regulation  of  the  European  Parliament  and  of  the  Council 
establishing  a  Community  Code  on  the  rules  governing  the  movement  of  persons 
across the borders10. 

For the purpose of this Decision: 

Article 2 
Definitions 

a) 

b) 

c) 

10 
11 

“Internal  borders”  shall  have  the  meaning  given  by  Article  1  of  the  Schengen 
Convention.11 

“Border  region”  means  an  area  to  be  defined  as  such  by  the  Member  States,  but 
which in any event comprises all the territory of a Member State within a maximum 
distance from the border of 50 kilometres. 

“Authorities  covered  by  this  Decision”  mean  the  police,  customs  and  other 
authorities  operating  under  Title  VI  of  the  Treaty  on  European  Union,  with  the 
exception of judicial authorities. 

OJ L […], […], p. […]. 
[PM:  may  have  to  be  revised  in  the  context  of  the  adoption  of  the  Regulation  contained  in  the 
Communication COM(2004)391final on the rules of the movement of persons across borders] 

EN 

12 

   EN 

 
                                                 
Article 3 
Information exchange 

1. 

For the purpose of applying Article 39 of the Schengen Convention, assistance shall 
be given and information shall be transmitted on request by the police authorities of 
the Member States, in particular in the following areas: 

(a) 

(b) 

identification  of  vehicle  owners  and  drivers,  including  ships  and 
aircraft; 

(driving  licence  enquiries,  including  those  relating  to  ships  and 
aircraft; 

(c) 

tracing whereabouts and residence; 

(d) 

(e) 

identification  of  telecommunications  subscribers  (telephone,  fax  and 
internet); 

obtaining information from the persons concerned by the police on a 
voluntary basis; 

(f) 

identification of persons; 

(g) 

(h) 

(i) 

(j) 

transmission of criminal intelligence from databases or files controlled 
by the authorities covered by this Decision subject to compliance with 
the relevant provisions governing data protection; 

preparation  of  plans  and  coordination  of  search  measures  and  the 
initiation of emergency searches ; 

tracing  the  origins  of  goods,  particularly  weapons  and  vehicles,  for 
instance, by tracing sales channels; 

examination  of  evidence,  for  instance,  vehicle  damage  after  hit  and 
run accidents, and erasures in documents; 

(k) 

examination of national official documents; 

(l) 

organisation of operational actions involving cross-border surveillance 
and pursuit, controlled deliveries and covert operations; 

(m) 

local criminal groups or individuals and their modus operandi. 

2. 

3. 

The  information  referred  to  in  paragraph  1  may  also  be  transmitted  on  the  own 
initiative of the providing service to any authority concerned which is covered by this 
Decision. 

Any further detailed rules necessary for the implementation of this Article, relating to 
the  definition  of  information  that  can  be  made  available,  the  modalities  for  access 
and  the  channels  for  exchange  shall  be  adopted  in  accordance  with  the  regulatory 
procedure referred to in Article 10. 

EN 

13 

   EN 

 
Article 4 
Structural coordination 

1. 

Without  prejudice  to  the  competencies  of  judicial  authorities,  Member  States  shall 
coordinate  cross-border  activities  of  the  authorities  covered  by  this  Decision  in 
border regions. 

This coordination shall include in particular: 

(a) 

(b) 

(c) 

the  preparation,  harmonization  and  implementation  of  operational 
planning  and  activities,  e.g.  surveillance  operations,  searches,  and 
crime  prevention  measures, 
including  management  of  public 
demonstrations and the respective resources scheduling; 

the examination of compatibility and interoperability of equipment, in 
particular communication and surveillance technology; 

the  development  and  implementation  of  joint  training  schemes, 
including common special situation exercises. Action in this area may 
consist  of  work  visits,  exchange  programmes,  common  schooling 
projects, including language training, and the development of common 
education  modules  in  relation  to  cooperation  in  a  specific  border 
region. 

2. 

To facilitate the coordination of activities of the authorities covered by this Decision 
in border regions, Member States shall in particular: 

(a) 

keep  those  authorities  and  the  permanent  cooperation  structures 
mentioned  in  Article  6(1)  informed  on  their  own  initiative  and  in  a 
timely  manner,  of  work  schedules,  intended  operations  and  actions, 
including surveillance, covert operations and controlled deliveries, and 
upcoming events that may have an impact on those authorities on the 
other side of the border; 

(b) 

draw up common risk assessment and situation reports; 

(c) 

keep  those  authorities  on  the  other  side  of  the  border  abreast  of 
administrative  and  organisational  developments  that  can  have  an 
impact on the performance of those authorities ; 

(d)  make all relevant information available to the permanent cooperation 
structures within the meaning of Article 6(1) of this Decision; 

(e) 

share  all  relevant  operational  information  with  those  authorities  and 
with  the  permanent  cooperation  structures  mentioned  in  Article  6(1), 
in  particular  by  updating  the  Handbook  on  cross-border  police 
cooperation  adopted  by  the  Decision  of  the  Executive  Committee  of 
16 December 199812. 

12 

OJ L 239, 22.9.2000, p. 408. 

EN 

14 

   EN 

 
                                                 
Article 5 
Operational cooperation 

Operational cooperation shall, in particular, consist of: 

a) 

b) 

c) 

1. 

2. 

3. 

conducting joint patrols, as well as joint intervention and surveillance operations in 
border regions to pursue the objective and purpose of Article 1, it being understood 
that these patrols are carried out in accordance with Article 19 a) of the Regulation of 
the European Parliament and of the Council establishing a Community Code on the 
rules governing the movement of persons across the borders13; 

providing  assistance  in  the  establishment  of  joint  investigation  teams  in  border 
regions set up in accordance with Council Framework Decision 2002/465/JHA14; 

assigning  police  tasks  to  liaison  officers  or  to  officials  of  the  other  Member  State 
insofar as these tasks do not include the application of coercive measures. 

Article 6 
Information exchange and coordination structures 

Member  States  shall  establish  permanent  cooperation  structures  between  the 
authorities  covered  by  this  Decision  in  each  of  the  border  regions  at  the  internal 
borders. 

The cooperation structures referred to in paragraph 1 shall support and monitor the 
implementation of Articles 3, 4 and 5. 

Member States shall inform the Commission and the Council of the assignments and 
competencies of the permanent cooperation structures set up pursuant to this Article. 
The Commission shall bring this information together in a report on a regular basis. 
The  Handbook  referred  to  in  Article  4(2)(e)  shall  be  updated  if  necessary  in 
accordance with the procedure foreseen to that effect. 

Article 7 
Data protection 

Any  exchange  of  information  that  takes  place  pursuant  to  this  Decision  shall  be  subject  to 
compliance with the relevant legal provisions concerning data protection and data security as 
laid down in Title VI of the Schengen Convention. 

Article 8 
Evaluation of implementation 

Member  States  shall  carry  out  bilateral  evaluations  in  border  regions  at  regular 
intervals to assess the level of cooperation  achieved,  in order to determine whether 
adjustments are necessary and where cooperation can be improved within the context 

OJ L […], […], p. […]. 
OJ L 162, 20.6.2002, p. 1. 

15 

   EN 

1. 

13 
14 

EN 

 
                                                 
of this Decision. They shall inform the Council and the Commission of the results of 
the evaluations. 

2. 

On the basis of the evaluations referred to in paragraph 1, the Commission shall, no 
later  than  three  years  after  this  Decision  has  taken  effect,  submit  a  report  to  the 
Council  on  the  operation  of  this  Decision.  The  Council  shall  assess  the  extent  to 
which the Member States have complied with this Decision, and take the appropriate 
measures. 

Article 9 
Bilateral agreements on cooperation between the authorities covered by this Decision 

This Decision shall not preclude more  detailed  present or future agreements  consistent  with 
this  Decision  between  Member  States  with  a  common  border  on  cooperation  between  the 
authorities covered by this Decision.  

Member States shall inform the Council and the Commission of such agreements. 

Article 10 
Committee 

1. 

2. 

3. 

4. 

5. 

6. 

Where  reference  is  made  to  this  Article,  the  Commission  shall  be  assisted  by  a 
Committee composed of the representatives of the Member States and chaired by the 
representative of the Commission. 

The  Committee  shall  adopt  its  rules  of  procedure  based  on  the  standard  rules  of 
procedure for comitology committees. 

The representative of the Commission shall submit to the Committee a draft of the 
measures to be taken. The Committee shall deliver its opinion on the draft within a 
time limit which the chairman may lay down according to the urgency of the matter. 
The  opinion  shall  be  delivered  by  the  majority  laid  down  in  Article  205(2)  of  the 
Treaty  establishing  the  European  Community,  in  the  case  of  decisions  which  the 
Council  is  required  to  adopt  on  a  proposal  from  the  Commission.  The  votes  of  the 
representatives of the Member States within the Committee shall be weighted in the 
manner set out in that Article. The chairman shall not vote. 

The Commission shall adopt the measures envisaged if they are in accordance with 
the opinion of the Committee. 

If the measures envisaged are not in accordance with the opinion of the Committee, 
or  if  no  opinion  is  delivered,  the  Commission  shall,  without  delay,  submit  to  the 
Council  a  proposal  relating  to  the  measures  to  be  taken  and  shall  inform  the 
European Parliament thereof. 

The Council may act by qualified majority on the proposal, within two months from 
the date of referral to the Council. 

EN 

16 

   EN 

 
If within that period, the Council has indicated by qualified majority that it opposes 
the  proposal,  the  Commission  shall  re-examine  it.  It  may  submit  an  amended 
proposal to the Council, resubmit its proposal or present a legislative proposal. 

If  on  the  expiry  of  that  period  the  Council  has  neither  adopted  the  proposed 
implementing  act  nor  indicated  its  opposition  to  the  proposal  for  implementing 
measures, the proposed implementing act shall be adopted by the Commission. 

7. 

The  representatives  of  the  Member  States  are  designated  from  the  authorities 
responsible  for  the  implementation  of  this  Decision  Each  Member  State  shall 
designate one representative. 

Article 11 
Amendments to the Schengen Convention  

The Schengen Convention is amended as follows:  

1. 

Article 40 is amended as follows:  

(a) 

In paragraph 1, the first subparagraph is replaced by the following:  

”Officers of one Member State who are keeping a person under surveillance in their 
country  as  part  of  a  criminal  investigation  into  a  criminal  offence  for  which  a 
custodial sentence or a detention order for a maximum period of at least 12 months is 
possible,  because  he  is  suspected  of  involvement  in  such  an  offence  or,  as  a 
necessary part of a criminal investigation, because there is serious reason to believe 
that  he  can  assist  in  identifying  or  tracing  such  a  person,  shall  be  authorised  to 
continue their surveillance in the territory of another Member State where the latter 
has authorised cross-border surveillance in response to a request for assistance made 
in  advance  with  supporting  reasons.  Conditions  may  be  attached 
the 
authorisation.” 

to 

(b) 

In paragraph 2, the first subparagraph is replaced by the following: 

”Where  for  particular  urgent  reasons,  prior  authorisation  cannot  be  requested  from 
the other Member State, the officers carrying out the surveillance shall be authorised 
to  continue  beyond  the  border  the  surveillance  of  a  person  presumed  to  have 
committed criminal offences for which a custodial sentence or a detention order for a 
maximum  period  of  at  least  12  months  is  possible,  provided  that  the  following 
conditions are met.”  

(c) 

Paragraph 7 is deleted. 

2. 

Article 41 is amended as follows: 

(a) 

In paragraph 1, the first subparagraph is replaced by the following: 

”Officers of one Member State who are pursuing a person in their country caught in 
the  act  of  committing  or  participating  in  a  criminal  offence  for  which  a  custodial 
sentence or a detention order for a maximum period of at least 12 months is possible, 
shall  be  authorised  to  continue  pursuit  in  the  territory  of  another  Member  State 

EN 

17 

   EN 

 
without  the  latter’s  prior  authorisation  where,  given  the  particular  urgency  of  the 
situation, it is not possible to notify the competent authorities  of the other  Member 
State  by  one  of  the  means  provided  for  in  Article  44  of  the  Schengen  Convention 
prior  to  entry  into  that  territory  or  where  these  authorities  are  unable  to  reach  the 
scene in time to take over the pursuit.” 

(b) 

Paragraph 4 and paragraph 5(b) are deleted. 

Article 12 
Final provisions  

Section  1  of  the  principles  governing  police  cooperation  in  preventing  and  investigating 
criminal  offences  as  set  out  in  the  Presidency’s  note  doc.  SCH/I  (98)  75  rev  5  of  28  April 
1999,  approved  by  the  Decision  of  the  Executive  Committee  of  28  April  1999  on  the 
improvement  of  police  cooperation 
in  preventing  and  detecting  criminal  offences 
(SCH/Com-ex (99)18) is repealed. 

Article 13 
Date of effect 

This  Decision  shall  take  effect  six  months  after  the  date  of  its  publication  in  the  Official 
Journal of the European Union. 

Done at Brussels, 

For the Council 
The President 

EN 

18 

   EN 

 
 
 
LEGISLATIVE FINANCIAL STATEMENT 

Policy area(s): Justice and Home Affairs 

Activit(y/ies): 1806 – Establishing a genuine area in criminal and civil matters 

TITLE  OF  ACTION:  PROPOSAL  FOR  A  COUNCIL  DECISION  ON  THE  IMPROVEMENT  OF  POLICE 
COOPERATION  AT  THE  INTERNAL  BORDERS  OF  THE  MEMBER  STATES  OF  THE  EUROPEAN 
UNION 

1. 

BUDGET LINE(S) + HEADING(S) 

NA 

2. 

OVERALL FIGURES  

2.1. 

Total allocation for action (Part B): € million for commitment 

NA 

2.2. 

Period of application: 

NA (starting 2006) 

2.3. 

Overall multiannual estimate of expenditure: 

(a) 

Schedule  of  commitment  appropriations/payment  appropriations 
intervention) (see point 6.1.1) 

(financial 

€ million (to three decimal places) 

[2006] 

[2007]

[2008] 

[2009] 

[2010] 

[2011] 

Total 

Commitments 

Payments 

(b) 

Technical and administrative assistance and support expenditure (see point 6.1.2) 

Commitments 

Payments 

Subtotal a+b 

Commitments 

Payments 

(c) 

Overall  financial  impact  of  human  resources  and  other  administrative  expenditure 
(see points 7.2 and 7.3) 

EN 

19 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
0.202 

0.202 

0.202 

0.202 

0.202 

0.202 

0.202 

Commitments/ 
payments 

TOTAL a+b+c 

Commitments 

Payments 

2.4. 

Compatibility with financial programming and financial perspective 

NA 

2.5. 

Financial impact on revenue: 

Proposal has no financial implications 

3. 

BUDGET CHARACTERISTICS 

Type of expenditure 

New 

EFTA 
contribution 

Contributions 
form applicant 
countries 

Heading in 
financial 
perspective 

Non-comp 

Non-diff 

NA 

NA 

NA 

No NA 

4. 

LEGAL BASIS  

Article 30(1)(a), (b) and (c) Article 32 and 34 (2)(c)TEU 

5. 

DESCRIPTION AND GROUNDS 

5.1. 

Need for Community intervention  

5.1.1.  Objectives pursued 

The objective is to set up a comitology procedure for the improvement of police and 
customs cooperation at the internal borders of the Member States. Article 12 of the 
proposal  stipulates  that  the  Commission  should  be  assisted  by  a  Regulatory 
Committee composed of the representatives of the Member States and chaired by the 
representative of the Commission. 

The preparation of a proposal for a Council Decision on improvement of police and 
customs cooperation at the internal borders between Member States of the European 
Union  is  mentioned  in  the  Commission  Legislative  and  Working  Programme  2004 
And 2005. 

In its Declaration on combating terrorism of 25 March 2004, the European Council 
instructs the Council, among other things, to examine measures in the area of “cross-
border hot pursuit” and calls for further development of the legislative framework. 

EN 

20 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
5.1.2.  Measures taken in connection with ex ante evaluation  

The  Regulatory  Committee  will  have  to  fulfil  its  tasks  on  the  basis  of  the  Council 
Decision on the improvement of police cooperation at the internal borders and on the 
basis of the input provided by the Member States. At the beginning of its activities, 
until such time as the proposals contained in the Decision have become operational, 
the  Committee  will  have  to  meet  more  frequently  and  will  need  more  intensive 
administrative support to find solutions, for example, in the context of the drafting of 
model agreements, creation of common structures and evaluation aspects. 

5.2. 

Action envisaged and budget intervention arrangements 

The Regulatory Committee should meet regularly, estimated twice a year, to discuss 
what planning and measures need to be taken in order to implement Article 3 of the 
Council Decision on improved police and customs cooperation. These meetings will 
have to be organised and hosted by the Commission 

5.3.  Methods of implementation 

The Commission will have to invite the representatives of the Member states 

6. 

FINANCIAL IMPACT 

6.1. 

Total financial impact on Part B - (over the entire programming period) 

6.1.1.  Financial intervention 

NA 

6.1.2.  Technical  and  administrative  assistance,  support  expenditure  and  IT  expenditure 

(commitment appropriations) 

NA 

Calculation  of  costs  by  measure  envisaged  in  Part  B  (over  the  entire 
programming period) 

6.2. 

NA 

7. 

IMPACT ON STAFF AND ADMINISTRATIVE EXPENDITURE  

The impact on staff and administrative expenditure will be covered in the context of 
allocation  of  ressouces  of  the  lead  DG  in  the  context  of  the  annual  allocation 
procedure. 

The allocation of posts also depends on the attribution of functions and resources in 
the context of the financial perspectives 2007-2013. 

EN 

21 

   EN 

 
7.1. 

Impact on human resources 

Staff to be assigned to management of the 
action using existing and/or additional 
resources 

Number of 
permanent posts 

Number of 
temporary posts 

1 B/0.5 A 

Description of tasks deriving from the 
action 

Gathering 
information, 

and 

processing 

of 

preparing the Committee meetings 

Total 

1rst 
year: 
1B 
0.5 A 

Types of post 

Officials or 
temporary staff 

A 

B 

C 

Other human resources 

Total 

7.2. 

Overall financial impact of human resources 

Type of human resources 

Amount (€) 

Method of calculation *  

Officials 

Temporary staff 

Other human resources 

1rst year: 
162 000 

1 X 108 000 
0.5 X 108 000 
= 162 .00 

(specify budget line) 

Total  162.000 

The amounts are total expenditure for twelve months. 

7.3. 

Other administrative expenditure deriving from the action 

Budget line 

(number and heading) 

Amount € 

Method of calculation 

Overall allocation (Title A7) 

40.000 

2 meetings* 27 * 740€ 

A0701 – Missions 

A07030 – Meetings 

A07031 – Compulsory committees 

A07032 – Non-compulsory committees 

A07040 – Conferences 

A0705 – Studies and consultations 

Other expenditure (specify) 

Information systems (A-5001/A-4300) 

Other expenditure - Part A (specify) 

Total  40.000 

The amounts are total expenditure for twelve months. 

Specify the type of committee and the group to which it belongs. 

EN 

22 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
I. 

II. 

Annual total (7.2 + 7.3) 

Duration of action 

III. 

Total cost of action (I x II) 

€202 500 

8. 

FOLLOW-UP AND EVALUATION 

8.1. 

Follow-up arrangements 

The  Committee  will  lay  down  its  rules  of  procedure,  including  rules  on 
confidentiality. The European Parliament will be informed analogous to Article 7 of 
Council  Decision  99/468/EC  of  28.6.1999  laying  down  the  procedures  for  the 
exercise  of  implementing  powers  conferred  on  the  Commission  (OJ  L  184, 
17.7.1999, p. 23). 

8.2. 

Arrangements and schedule for the planned evaluation 

NA 

9. 

ANTI-FRAUD MEASURES 

NA. 

EN 

23 

   EN