Proposal for a Council Decision on conclusion of the Agreement between the European Community and Romania on certain aspects of air services
Date: 2005-08-10
Institutions: European Commission
Subjects: European Community, Romania, air transport, ratification of an agreement, transport licence, transport regulations

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 18.5.2004 
COM(2004) 376 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

ENHANCING POLICE AND CUSTOMS CO-OPERATION IN THE EUROPEAN UNION 

I. REPORT ON ACHIEVEMENTS SINCE THE ENTRY INTO FORCE OF THE TREATY OF 
AMSTERDAM 

II. PROPOSALS FOR IMPROVEMENTS 

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TABLE OF CONTENTS 

1. 

I 

1. 

2. 

Introduction .................................................................................................................. 4 

REPORT ON ACHIEVEMENTS SINCE THE ENTRY INTO FORCE OF THE 
TREATY OF AMSTERDAM ..................................................................................... 7 

Legal Obligations and political Commitments for Police and Customs Co-operation 
(TEU, Schengen, Vienna Action Plan and Tampere European Council Conclusions) 7 

Co-operation since May 1999 - achievements and assessment ................................... 9 

2.1. 

Police Co-operation...................................................................................................... 9 

2.1.1.  Police aspects of Schengen Co-operation .................................................................... 9 

2.1.2.  Europol....................................................................................................................... 14 

2.1.3.  Operational police co-operation, including the Task Force of EU Police Chiefs 

(TFPC) ....................................................................................................................... 19 

2.1.4.  The European Police College (CEPOL) .................................................................... 21 

2.1.5.  Other subjects mentioned in Art. 30 TEU.................................................................. 23 

2.1.5.1.  Investigative techniques ............................................................................................. 23 

2.1.5.2.  Forensic science ......................................................................................................... 24 

2.1.6.  Other subjects of police co-operation ........................................................................ 26 

2.1.6.1.  Terrorism.................................................................................................................... 26 

2.1.6.2.  Other police co-operation subjects............................................................................. 29 

2.1.6.3.  Article 32 TEU........................................................................................................... 29 

2.2. 

2.3. 

II 

1. 

1.1. 

1.2. 

1.3. 

1.4. 

1.5. 

1.6. 

Customs co-operation ................................................................................................ 31 

The OISIN and AGIS programs as instruments to promote police and customs co-
operation in the EU. ................................................................................................... 34 

PROPOSALS FOR IMPROVEMENTS.................................................................... 36 

Factors affecting police and customs co-operation.................................................... 36 

Nature of police work ................................................................................................ 36 

Lack of strategic approach ......................................................................................... 37 

Proliferation of non-binding instruments ................................................................... 38 

Decision-making procedures in the Third Pillar ........................................................ 39 

Insufficient implementation of legal instruments adopted by the Council ................ 39 

Lack of empirical research on police and customs co-operation ............................... 40 

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1.7. 

1.8. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

2.5. 

3. 

The nature of co-operation between police and customs ........................................... 41 

Third-pillar databases and communication systems .................................................. 41 

Conclusions and Recommendations .......................................................................... 43 

Improving the flow of information ............................................................................ 43 

Improving cross-border co-operation......................................................................... 45 

Creating a common culture, common instruments and methods. .............................. 47 

Counter-terrorism....................................................................................................... 48 

Customs co-operation ................................................................................................ 50 

Final remarks.............................................................................................................. 51 

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1. 

INTRODUCTION 

The policy area of justice and home affairs, including co-operation between Member 
States'  police  services  and  customs  administrations,  was  incorporated  into  an  EU 
Treaty for the first time with the Maastricht Treaty of 19921. Article K of this Treaty 
mentioned  customs  and  police  co-operation  as  "matters  of  common  interest…(F)or 
the purpose of achieving the objectives of the Union." Improved possibilities for co-
operation  in  the  field  of  justice  and  home  affairs  were  opened  up  by  the  Treaty  on 
European Union as amended by the Treaty of Amsterdam (hereafter abbreviated as 
TEU)2,  which  entered  into  force  on  1st  May  1999.  This  Treaty  included  clearer 
objectives and a detailed description of actions to be taken in the field of police and 
customs  co-operation.  Moreover,  it  strengthened  the  institutional  framework  and 
further developed the decision-making process in this area. 

From  the  outset,  the  Heads  of  State  and  Government  were  committed  to  bring 
forward  the  implementation  of  the  Treaty  provisions  on  justice  and  home  affairs. 
Thus, the European Council of Cardiff of 15 and 16 June 1998 called on the Council 
and  the  Commission  to  submit,  at  its  meeting  in  Vienna  in  December  of  1998,  an 
"Action  Plan  on  how  best  to  implement  the  provisions  of  the  TEU  on  an  area  of 
freedom, security and justice." The resulting Vienna Action Plan of December 19983 
included  a  considerable  number  of  measures  regarding  police  and  customs  co-
operation. Some of these should be implemented  within two  and  others within five 
years after entry into force of the Treaty.  

A special European Council on justice and home affairs matters was held in Tampere 
in October 1999, only five months after the entry into force of the TEU. Regarding 
police and customs co-operation, the Tampere European Council called for a number 
of measures in addition to those mentioned in the Vienna Action Plan. The Tampere 
program  called  on  the  Council  and  the  Commission  to  promote  the  full  and 
immediate  implementation  of  the  TEU  on  the  basis  of  the  Vienna  Action  Plan  and 
the measures agreed in Tampere. Both the Vienna Action Plan and the TEU created 
the obligation to implement certain measures within five years of entry into force of 
the Treaty, that is, by October 2004. 

The  Tampere  European  Council  tasked  the  Commission  with  the  preparation  of  a 
Scoreboard to keep track of progress made toward the goals set out in that program. 
In establishing the Scoreboard, as well as in its regular updating, the Commission has 
concentrated  on  the  measures  called  for  by  the  Tampere  Council.  This  Scoreboard 
has  proven  an  effective  tool  for  monitoring  the  evolution  of  the  area  of  freedom, 
security and justice. 

The Laeken European Council of December 2001 carried a mid-term review of the 
implementation of the Tampere conclusions. The Commission is currently preparing 

1 

2 
3 

OJ C 191 of 29 July 1992. This Treaty marks a “new stage in the process of European integration” and 
introduces a new objective, i.e. “to facilitate the free movement of persons while ensuring the safety and 
security of their peoples, by including provisions on justice and home affairs” 
OJ C 340 of 10 November 1997 
"Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty 
of Amsterdam on an area of freedom, security and justice", OJ C 19/1 of 23 January 1999. 

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an evaluation of the full five-year period since Tampere. This Communication does 
not  intend  to  pre-empt  that  formal  evaluation  exercise.  It  rather  intends  to  identify 
those  priority  police  and  customs  co-operation  measures  which  should  remain,  or 
should  be  added  to,  the  EU  agenda  in  the  next  few  years  in  order  to  achieve  the 
necessary progress. 

Since  the  entry  into  force  of  the  TEU,  the  European  Union  has  adopted  a 
considerable  number  of  measures to improve co-operation between Member States' 
police services and customs administrations. Towards the end of 2002, however, the 
Commission  became  increasingly  aware  of  the  need  to  review  the  major 
developments in this area in a Communication.  

To begin with, it became evident that a number of measures contained in the Vienna 
Action Plan were not being implemented and that some of the bodies established by 
the Tampere European Council, such as the Task Force of EU Police Chiefs (TFPC), 
were facing difficulties. Moreover, there were indications that improvements in co-
operation  between  the  police  and  customs  services  of  the  Member  States  were 
necessary.  There  were  also  examples  of  highly  successful  co-operation  between 
certain Member States in regions along their common borders, which were not being 
discussed at EU level.  

Furthermore, police and customs co-operation is a broad area covering many diverse 
and  highly  technical  subjects  that  are  discussed  in  a  variety  of  separate  working 
groups and bodies, making it difficult to keep track of all relevant developments. A 
Communication would allow for a clear and comprehensive view of the state of play 
of police and customs co-operation in the EU. 

The enlargement of the Union also made it necessary to clarify and set priorities for 
police  and  customs  co-operation  in  the  near  future.  The  integration  of  ten  new 
Member States into all the EU's police and customs co-operation structures will have 
considerable effects on an already complicated decision-making process. 

Finally, progress in police and customs co-operation seemed to be slower than that 
achieved  in  the  field  of  judicial  co-operation  in  criminal  matters  in  the  EU.  A 
Communication  could  provide  elements  to  better  judge  the  factors  affecting  the 
degree of progress in police and customs co-operation. 

In  the  light  of  the  above,  the  European  Commission  considered  it  necessary  to 
provide an overview and analysis of police and customs co-operation in the EU as it 
has been evolving since the entry into force of the Treaty of Amsterdam in 1999. Its 
aim is to provide clarity as to what measures are required to make co-operation more 
effective toward the achievement of one of the main objectives of the Union, namely 
"… to provide citizens with a high level of safety within an area of freedom, security 
and justice…" (Article 29 TEU). 

This  Communication  is  limited  to  co-operation  between  police  and  customs 
authorities of the Member States in the fight against crime. It excludes matters that 
relate  exclusively  to  judicial  co-operation,  as  well  as  administrative  assistance  in 

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customs  matters4  and  customs  cooperation  defined  under  article  135  of  the  Treaty 
establishing the European Community (TEC)5, although it briefly touches upon these 
related  areas  when  necessary.  Furthermore,  this  Communication  does  not  address 
preventive  measures  either  adopted,  or  in  the  course  of  adoption,  within  the 
Community  framework,  however  we  should  recognise  that  the  Community  has 
gradually  taken  measures  to  prevent  intentional  illegal  acts,  particularly  relating  to 
terrorism  in  the  area  of  air  and  maritime  transport.  It  should  also  be  noted  that  the 
European Union Millennium Strategy on Organised Crime of May 2000 includes a 
number of recommendations regarding police co-operation. Where appropriate these 
measures are briefly examined in this Communication.6 

The  Communication  is  structured  as  follows.  Part  I  recalls  the  specific  legal 
obligations  and  political  commitments  set  out  regarding  police  and  customs  co-
operation  in  the  TEU,  the  Schengen  Convention,  the  Vienna  Action  Plan  and  the 
Tampere European Council. It also presents a summary and a brief assessment of the 
developments  in  the  main  areas  of  police  and  customs  co-operation,  as  well  as 
suggestions  on  how  to  improve  co-operation  in  the  future.  Part  II  provides  an 
analysis of the main factors affecting police and customs co-operation in the EU, as 
well as recommendations as to the measures that, in the Commission's view, should 
be taken to ensure tangible progress in co-operation in the near future. 

4 

5 
6 

OJ  L  82  of  22  March  1997,  Council  Regulation  n°515/97  of  13  March  1997  on  mutual  assistance 
between the administrative authorities of the Member States and cooperation between the latter and the 
Commission to ensure the correct application of the law on customs and agricultural matters. 
OJ C 325 of 24 December 2002. 
The European Union Action Plan for the Beginning of the New Millennium on Prevention and Control 
of Organised Crime, OJ C 124 03 May 2000. 

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I 

1. 

REPORT ON ACHIEVEMENTS SINCE THE ENTRY INTO FORCE OF THE 
TREATY OF AMSTERDAM 

LEGAL OBLIGATIONS  AND  POLITICAL COMMITMENTS  FOR POLICE  AND CUSTOMS 
CO-OPERATION  (TEU,  SCHENGEN,  VIENNA  ACTION  PLAN  AND  TAMPERE 
EUROPEAN COUNCIL CONCLUSIONS) 

The legal obligations and political commitments for police and customs co-operation 
in  criminal  matters  in  the  EU  can  be  found  in  the  Treaty  on  the  European  Union 
(TEU), the Convention Implementing the Schengen Agreement (hereafter referred to 
as  the  Schengen  Convention)7,  the  Vienna  Action  Plan  of  1998  and  the  Tampere 
European Council Conclusions of October 1999. 

The TEU states in article 29 that "…the Union's objective shall be 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  field  of  police  and 
judicial  co-operation  in  criminal  matters.”  This  objective  shall  be  achieved  by 
preventing  and  combating  crime,  organised  or  otherwise,  through  i.a.  closer  co-
operation between police forces, customs authorities and other competent authorities 
in the Member States, both directly and through Europol. 

Article  30  explains  that  common  action  in  the  field  of  police  co-operation  shall 
include: 

– 

– 

– 

– 

operational  co-operation  between  the  competent  authorities,  including  the 
police, customs and other specialised law-enforcement services of the Member 
States in the prevention, detection and investigation of criminal offences; 

in  the  collection  and  storage,  processing  and  exchange  of  information,  in 
particular through Europol;  

joint initiatives in training, exchange of liaison officers and forensic research; 

and common evaluation of investigative techniques. 

This article also specifies a number of general and specific obligations as regards co-
operation through Europol. 

In addition  to articles 29 and  30 TEU,  there are also obligations resulting from the 
incorporation into the  EU law of  the Schengen Convention of 1990. The Schengen 
Convention  provides  for  the  abolition  of  border  controls  among  Member  States, 
while  at  the  same  time  reinforcing  control  measures  at  common  external  borders. 
Police  co-operation  obligations  were  introduced  so  as  to  counteract  any  security 
deficit  caused  by  the  abolition  of  the  checks  at  the  internal  borders.  Matters 
concerning immigration, visas and asylum were incorporated into the Treaty on the 
European  Community  (Title  IV,  ‘first  pillar’)  and  matters  relating  to  police  and 

7 

OJ L 239 of 22 September 2000. 

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judicial co-operation in criminal matters were incorporated into Title VI TEU, (‘third 
pillar’).  

In  addition  to  these  legal  obligations  there  exist  other  important  documents  which 
contain  commitments  at  the  highest  political  level  to  achieve  concrete  progress 
regarding  police  co-operation:  The  Action  Plan  to  Combat  Organized  Crime  of 
19978,  the  Vienna  Action  Plan  of  December  1998  and  the  Conclusions  of  the 
Tampere  European  Council  of  October  1999.  More  recently,  the  Commission 
published  the  document  "The  Prevention  and  Control  of  Organized  Crime:  a 
European Union Strategy for the beginning of the New Millennium".9 

After  the  Amsterdam  Treaty  entered  into  force,  the  European  Council  of  Tampere 
added a number of important measures to be implemented in the area of police co-
operation.  The  main  ones  were  the  establishment  of  a  European  police  chiefs' 
operational task force to i.a. contribute to the planning of operative actions; a call to 
enable Europol to participate in investigation teams and to ask Member States to start 
investigations; and the establishment of a European Police College for the training of 
senior  police  officials.  The  Tampere  conclusions  explicitly  state  that  the  Vienna 
Action Plan remains valid. 

The fact that two European Councils agreed on such important measures just before 
and immediately after the entry into force of the TEU clearly shows the commitment 
to  achieve  concrete  and  speedy  progress  in  police  and  customs  co-operation  at  the 
highest political level in the Union. 

In addition to the measures called for by the TEU, the Vienna Action Plan and the 
Tampere conclusions, other events have given political impulse to move forward in a 
number  of  areas.  Thus,  after  the  public  order  disturbances  during  the  European 
Councils of Nice and Gothenburg in 2001, co-operation in the maintenance of public 
order was intensified. Similarly, in the wake of 11 September 2001 many measures 
were agreed upon to step up co-operation in the fight against terrorism. 

Police  co-operation  in  the  Union  extends  and  supplements  already  existing, 
successful  bilateral  co-operation  between  Member  States.  A  more  recent 
development in bilateral co-operation is the formalisation and intensification of co-
operation  between  Member  States  sharing  a  common  border  through  joint  police 
stations or joint police and customs co-operation centres. The inter-linkage between 
bilateral  developments  and  EU  police  co-operation  is  made  by  the  Vienna  Action 
Plan,  which  specifically  calls  for  the  further  development  of  such  co-operation 
throughout the Union. 

8 
9 

OJ C 251 of 15 August 1997. 
OJ C 124 of 03 May 2000. 

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2. 

CO-OPERATION SINCE MAY 1999 - ACHIEVEMENTS AND ASSESSMENT 

2.1. 

Police Co-operation 

2.1.1.  Police aspects of Schengen Co-operation 

As  stated  in  Chapter  2,  the  Treaty  of  Amsterdam  of  1997  incorporated  the 
Convention Implementing the Schengen Agreement of 1990 in the framework of the 
European Union. 

The  aim  of  Schengen  was  “to  abolish  checks  at  [the]  common  border  on  the 
movement  of  persons10”.  Police  co-operation  was  thought  of  as  one  of  the 
“complementary measures to safeguard internal security11.” 

The  Schengen  Convention  entails  a  number  of  obligations  for  Member  States12 
regarding  police  co-operation  at  their  common  internal  borders,  at  the  external 
borders  of  the  Schengen  territory  (land,  international  airports,  sea)  and  within  the 
Schengen area in general to counteract any security deficit caused by the abolition of 
the checks at the internal borders. The Vienna Action Plan of 1997 and the Tampere 
Council  Conclusions  of  199913  provided  the  normative  and,  to  a  lesser  degree, 
operational  underpinnings  to  the  area  of  freedom,  security  and  justice.  The 
importance of ‘Schengen’ in that context is fundamental, since it is the core of that 
area,  providing  freedom  to  travel  together  with  the  minimum  measures  to  offset 
security  deficits  and  guarantees  that  the  justice  system  can  cope  with  the 
consequences  of  increased  mobility.  The  Schengen  Convention  provides  the 
legislative framework for the abolition of internal border controls, the introduction of 
checks  at  the  external  borders  on  the  basis  of  common  standards  and  the  ensuing 
mandatory and enabling rules to spur law-enforcement co-operation.  

The  following  obligations  created  by  the  Schengen  Convention  are  the  most 
important ones concerning police co-operation. 

Article 39 stipulates that Member States “undertake to ensure” that police authorities 
shall  assist  each  other  to  prevent  and  detect  criminal  offences.  The  requests  for 
assistance  must  be  exchanged  via  “central  bodies  responsible  for  police  co-
operation”,  unless  the  urgency  of  the  matter  justifies  that  requests  are  exchanged 
directly between competent police authorities. Challenges do exist however, because 
the  competences  of  police  in  the  different  Member  States  differ  widely,  and  also 
because article 39(2) CAAS stipulates that written information can only be used as 
evidence in criminal proceedings in the recipient Member State with the consent of 
the competent judicial authorities of the requested Member State. 

This article, together with article 46 (see below), has been the basis of a large number 
of  bilateral  agreements  between  Schengen  States.  The  most  comprehensive 
agreements  are  those  that  established  permanent  co-operation  and  information 

10 
11 
12 

13 

See preamble of the Schengen Convention. 
Art. 17 of the Schengen Agreement of 1985. 
The Schengen Convention speaks of “Contracting Parties”. The expression “Member States” is used in 
this Communication for ease of reading. 
See annex III. 

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exchange  structures  in  the  form  of  Joint  Police  Stations  (JPS)  and  Police  and 
Customs Co-operation Centres (PCCC) at internal borders. Examples are the PCCC 
at  Kehl/Offenburg  (Germany/France)14,  at  Tournai  (Belgium/France)15;  Ventimiglia 
and  Modane16  (France/Italy),  Canfranc-Somport-Urdos,  Le  Perthus-La  Junquera, 
Melles  Pont  du  Roy-Les  et  Biriatou-Irún  (France/Spain)17,  Tuy/Valença  do  Minho, 
Caya/Elvas,  Vilar  Formoso/Fuentes  de  Oñoro,  Vila  Real  de  Santo 
Antonio/Ayamonte (Spain/Portugal)18.  

Important  trilateral  forms  of  police  co-operation  have  developed  between  the 
Netherlands,  Belgium  and  Germany  in  the  area  around  Maastricht,  Aachen  and 
Eupen. An agreement between France and Luxembourg has been concluded19, which 
is  not  yet  operational.  A  quadrilateral  co-operation  structure  between  Luxembourg, 
France,  Belgium  and  Germany  is  close  to  being  formalised.  Such  co-operation 
centres  have  proven effective in addressing  the ‘security deficits’  in border regions 
caused by the abolition of border controls and the fact that law-enforcement services’ 
intervention  has  to  stop  at  the  internal  borders.  Co-operation  involves  facilitating 
exchanges  of  information,  joint  operations  and  controls,  and  the  planning  of  co-
ordinated actions. It should be noted that such forms of co-operation are considered 
useful by both the services of the Member States involved and the population in the 
regions where they have been set up.  

The  Vienna  Action  Plan  calls  for  the  extension  of  such  cross-border  co-operation. 
The Commission has concluded that a wider application of this model throughout the 
Union would be a significant contribution to fighting crime and to improving mutual 
trust  and  co-operation  between  law-enforcement  services  from  different  Member 
States. It would be useful if examples of such co-operation could be agreed upon as a 
model  to  be  applied  by  those  Member  States  that  have  not  yet  done  so.  The  draft 
Council  Recommendation  on  common  commissariats  and  police  and  customs  co-
operation centres20 prepared by Belgium during its Presidency would be an excellent 
basis.  The  Commission  will  use  the  AGIS  program  to  further  promote  the 
establishment of such models of co-operation.  

Article 44 of the Schengen Convention contains the short-term obligation, as well as 
a  long-term  undertaking,  to  improve  communication  links,  in  particular  in  border 
areas. There is, however, not enough information available to determine the extent to 
which  this  has  actually  been  done.  The  links  to  be  established  are  not  limited  to 
phone and fax, but also encompass data and computer links. The options to examine 
in the long term focus on improvement of radio communications.  

14 

15 

16 
17 
18 
19 
20 

Agreement of 07 December 1995 on police co-operation in border regions through the development of 
permanent,  joint  Franco-German  police  stations  as  well  as  the  Intergovernmental  Agreement  of 
Mondorf-les-bains of 09 October 1997 on co-operation between police and customs authorities in the 
border regions (entered into force on 01 April 2000). 
Agreement  of 05  March 2001  on  police  and  customs  co-operation  in  the  border  regions  (creating  the 
Tournai Police/Customs Co-operation Centre). 
Agreement of Chambéry of 03October 1997 setting up the joint services of Ventimiglia and Modane. 
Agreement of Blois of 07 July 1998 on cross-border customs and police co-operation. 
Agreement of 19 November 1997. 
Agreement of 15 October 2001 with Luxembourg. 
Council document ENFOPOL 45 of 05 April 2002. 

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Radio  communications  are  mostly  hindered  by  the  technical  diversity  of  the  two 
main  communication  standards,  TETRA  and  TETRAPOL.  To  overcome  this 
problem, the exchange of radio equipment between police services in border regions 
is foreseen in a large number of the aforementioned bilateral agreements. In order to 
promote inter-operability, the Article 36 Committee on 15 December 2002 endorsed 
the conclusions of a seminar held in Helsinki on 20 and 21 September 199921, that 
proposed  interoperability  between  TETRA  and  TETRAPOL.  In  this  context,  the 
Commission welcomes the questionnaire established by the Greek Presidency in the 
first half of 2003 to get a clearer view of developments regarding the procurement, 
installation, operation and interoperability of the digital wireless systems22. 

Direct  radio  communications  are  especially  required  in  case  of  cross-border 
operations. In all other cases, information exchange on the basis of articles 39 or 46, 
and increasingly via direct (radio) relays with the JPS or PCCC, is usually enough to 
cover communication needs. Since no data are available for cross-border operations, 
it  is  not  possible  to  assess  whether  real  communication  needs  remain  unattended. 
Besides interoperable communication systems, the exchange of phone numbers and 
frequency  tables,  plus  knowledge  of  the  language  of  the  other  Member  State  are 
equally  necessary  for  efficient  communication.  The  Commission  therefore  strongly 
supports  language  training  of  police  as  one  of  the  key  issues  to  make  cross-border 
police co-operation work.  

Police in border areas could also consider using GSM/GPRS phones to contact their 
equal number across the border when direct contacts are necessary. Although it may 
seem self-evident, there is resistance among some police services on the grounds of 
risks to confidentiality and dependence on commercial providers. As some Member 
States’  police  have  proven,  however,  such  concerns  can  be  addressed  by  using 
encryption. 

that  non-nationals  complete  and  sign 

Article 45 stipulates that Member States “undertake to adopt the necessary measures” 
the  registration  forms  of 
to  ensure 
commercially  rented  accommodation,  confirm  their  identity  by  providing  a  valid 
identity  document,  and  that  these  forms  are  kept  or  forwarded  to  the  competent 
authorities. This information can be important for law enforcement, as past successes 
in the fight against terrorism have shown.  

However, it is currently not clear how Member States implement this obligation and 
how  the  information  is  used  in  law-enforcement  practice.  It  therefore  seems 
necessary to discuss the subject in the Council.  

The data that are exchanged must be protected in accordance with article 129, as well 
as  with  articles  126  and  127  of  the  Schengen  Convention,  which  entail,  inter  alia, 
that  the  Recommendation  No  R(87)15  of  17  September  1987  of  the  Committee  of 
Ministers of the Council of Europe regulating the use of personal data in the police 
sector  must  be  respected  as  mandatory.  One  obligation  worth  mentioning  here 
because of its operational usefulness for cross-border co-operation is the undertaking 
to  revise  every  six  months  the  so-called  "Handbook  on  cross-border  police  co-

21 
22 

See Council document 11626/2/99 ENFOPOL 64 Rev 2, and 142117/99 CATS 40. 
See Council document 15788/02 ENFOPOL 159. 

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operation".  This  obligation  results  from  the  decision  of  the  Schengen  Executive 
Committee  of  16  December  199823.  The  importance  of  the  Handbook  lies  in  its 
provision  of  practical  details  on  how  to  conduct  co-operation  between  police 
authorities across the internal borders. The Handbook contains data such as contact 
addresses and phone numbers, and limitations and obligations of cross-border police 
co-operation.  Member  States  undertook  to  integrate  the  Handbook  in  their  national 
orders  and  to  update  it.  The  initiative  of  the  2003  Greek  Council  Presidency  to 
update  the  Handbook  and  the  submission  by  the  Italian  presidency  of  a  revised 
version, should therefore be welcomed.. 

Besides  the  above-mentioned  obligations,  the  Schengen  Convention  created  the 
following co-operation instruments, or enabling rules, that facilitate accomplishment 
of its objectives. 

The first one concerns discrete surveillance of a suspect (article 40) and the second 
one  the  case  where  a  person  is  caught  in  the  act  and  flees  arrest  by  crossing 
international  borders  (the  so-called  ‘hot  pursuit’,  articles  41  to  43).  Because  the 
permission  to  operate  outside  the  national  jurisdiction  is  an  exception,  legal 
guarantees  and  limitations  are  included  in  the  set  of  rules,  which  make  them  very 
cumbersome for the police to use. Although no precise figures are available, there are 
indications that little use is made of these instruments.  

These  restrictions  can  be  relaxed  by  means  of  bilateral  agreements,  but  no 
information  is  available  about  increased  use  of  cross-border  operations  in  that 
context. At EU level, a number of initiatives have been taken to make the application 
of  these  articles  easier.  Thus  in  October  2000  the  Council  adopted  a  Decision  to 
simplify  the  procedure  to  amend  the  references  to  inter  alia  “officers”  and 
“authorities”  in  articles  40  and  41  of  the  Schengen  Convention24.  Also,  a  Council 
Decision was adopted to extend the scope of article 40 by allowing surveillance for 
more  criminal  offences  and  also  to  encompass  persons  that  could  lead  to  the 
suspect25.  In  the  second  half  of  2001,  the  Belgian  Council  Presidency  convened  an 
expert group to make concrete recommendations on how to extend the possibility of 
cross-border  pursuits  via  air,  rails  (international 
trains)  and  water.  These 
recommendations were not further discussed in the Council.  

The Commission considers that the establishment of an area of security requires the 
elimination of obstacles to co-operation caused by the type or means of cross-border 
movement. Police should be able to use cross-border pursuits for more types of crime 
and have, in cases where the competent local authorities of the Member States where 
the  pursuit  takes  place  are  unable  to  intervene  promptly,  the  means  to  effectively 
intervene  with  a  view  to  establishing  the  pursued  person’s  identity  by  and 
transferring  him/her  to  the  aforementioned  competent  local  authorities.  It  therefore 
recommends  continuing  the  work  of  the  expert  group  mentioned  above,  to  further 
examine conditions and competencies for cross-border operations. The Commission 
is  of  the  opinion  that  the  efficacy  and  viability  of  the  instrument  would  increase  if 
Member States applied a uniform set of rules and conditions. 

23 
24 
25 

Council document SCH.Com-ex (98) 52. 
Council Decision of 28 September 2000, OJ L 248 of 03 October 2000. 
Council Decision of 02 October 2003, OJ L 260 of 11 October 2003. 

EN 

12 

   EN 

 
                                                 
Article 46 of the Schengen Convention gives police authorities the right to exchange 
information  “which  may  be  important  in  helping”  to  prevent  crime  and  threats  to 
public  order  with  another  Member  State  on  their  own  initiative,  “without  being 
asked”. No comparable data are available to determine the degree of implementation 
of this article, nor whether police action has been taken on the basis of information 
exchanged  under  it.  This  is  also  the  case  for  the  application  and  use  of  the  other 
articles referred to in this section.  

An  effective  means  of  obtaining  and  exchanging  information  is  the  secondment  of 
liaison officers, to which article 47 refers. The specific procedure to be able to make 
use  of  the  services  of  such  officers  posted  in  third  countries  was  amended  by  a 
Council  Decision  adopted  on  27  February  2003  on  the  initiative  of  the  Danish 
Council Presidency26. The extent to which the Decision is being used in practice is 
not  clear.  The  Commission  therefore  proposes  that  the  Council  examines  this 
question. 

The articles covering the Schengen Information System (SIS) create the obligation to 
“set  up  and  maintain  a  joint  information  system”  describing  the  action  to  be  taken 
when  a  positive  identification  is  made  on  the  basis  articles  95-100  and  prescribing 
the  data-protection  regime.  These  articles  open  the  possibility  to  enter  and  query 
certain data as described in articles 95-100. The links between the Member State that 
enter  SIS-data  and  the  law-enforcement  officers  who  identify  a  wanted  person  or 
object  are  the  SIRENE  offices  in  each  Member  State.  In  most  Member  States, 
SIRENE is also the ‘central body’ mentioned in article 39 and 46 (see above). 

In 1999, ten Member States used the SIS. By March 2001 the number had grown to 
15,  after  the  five  Nordic  countries  joined  the  SIS.  On  29  May  2000,  the  Council 
approved  the  request  of  the  United  Kingdom  to  participate  in  some  aspects  of 
Schengen,  inter  alia  police  co-operation,  the  fight  against  drugs  and  the  SIS.  A 
similar decision was taken on 28 February 2002 with regard to Ireland. Preparations 
are under way to connect the United Kingdom to the SIS by the end of 2004.. Ireland 
is expected to follow later. That will bring the total number of SIS users to 17.  

The current SIS has only eighteen slots, however, and ten new Member States must 
be  connected  in  the  future.  The  Commission  was  therefore  entrusted  with  the 
development  of  a  second-generation  SIS.  Because  of  legislative  initiatives  by  the 
Spanish presidency in the first half 2002 to add new functions to the SIS27 and the 
Council  Conclusions  on  SIS  II28,  the  new  SIS  will  have  a  much  larger  number  of 
users (not only Member States, but also Eurojust and Europol) and also contain new 
functionalities (e.g. search on incomplete data, interlinking of alerts on persons) and 
more data categories (e.g.. biometrics, aircraft and containers). Having regard to the 
profound  positive  operational  impact  and  significance  of  SIS  for  fighting  crime,  a 
rapid  introduction  of  new  functionalities,  if  possible  in  the  current  SIS,  should  be 
promoted. 

26 
27 
28 

Council Decision 2003/170/JHA of 27 February 2003, OJ L 067 of 12 March 2003.  
OJ C 160, 04 July 2002. 
Adopted by the JHA Council of 5 and 6 June 2003. 

EN 

13 

   EN 

 
                                                 
In  July  2003  the  Commission  submitted  a  proposal  to  give  Member  States'  vehicle 
registration  authorities  access  to  SIS  to  prevent  stolen  vehicles  from  being 
registered29. The procedures for SIS-SIRENE interworking are compiled in a manual 
that  needs  regular  updating  in  order  to  ensure  that  organisational  and  new  legal 
obligations are met effectively. This has never been done so far. In the first half of 
2003 the Greek Presidency took the initiative for the adoption of a formal procedure 
to update the manual regularly. It proposed that the Commission be put in charge of 
this task. It is essential that the procedure be adopted soon30. 

The SIS is a major accomplishment in the field of police co-operation in the Union. 
By  March  2003,  more  than  11  million  records  on  wanted  persons  and  objects  had 
been recorded. Over 35.000 positive identifications of persons or objects are reported 
annually to the national SIRENE. The success is mainly due to the central role which 
SIS  plays  in  the  concept  of  the  abolition  of  border  controls,  the  performance  of 
external  border  controls,  its  integration  in  the  normal  national  police  and  border-
control applications, and the intense follow-up on the level of the Council Working 
Groups under each EU Council Presidency.  

SIS has fulfilled the high expectations of the law-enforcement community and is now 
set for an ambitious enlargement (SIS II) with more functionalities. Over time, more 
sophisticated functionalities mean that the SIS could gradually evolve into a tool that 
could be used for other purposes, to better reflect the reality of shared responsibilities 
for a common security area. An example of such a more sophisticated functionality 
would  be  the  possibility  to  store  biometric  data.  An  essential  benefit  of  such  an 
evolution would be the possibility to run more precise searches in order to avoid the 
problems  of  today's  alphanumeric  searches  that  will  inevitably  become  less  precise 
as  the  database  grows.  This  does  not  mean,  as  the  Justice  and  Home  Affairs 
Ministers  confirmed  at  their  meeting  of  5  and  6  June  2003,  that  the  nature  of  the 
system as a simple and fast “hit-no hit” system should be amended.. In any case, this 
possible evolution should not affect the current SIS, but rather the future SIS II. 

2.1.2.  Europol 

Articles  29  and  30  of  the  TEU  and  the  Tampere  conclusions  emphasise  the  role  of 
Europol  in  law-enforcement  co-operation  in  the  European  Union  and  contain  a 
number of concrete measures to be taken within five years after the TEU’s entry into 
force. Earlier, the Vienna Action Plan had listed a number of measures to be taken 
regarding Europol. 

Formally, most subjects relating to Europol mentioned in the TEU and the Tampere 
program have been addressed through Council Decisions. Many measures mentioned 
in the Vienna Action Plan have been implemented as well. 

The first step was taken in 2000, with the adoption by the Council of a Protocol to 
this 
extend  Europol’s  competence 

in  general.  As 

to  money 

laundering 

29 
30 

COM (2003) 510 final 
Initiative of the Hellenic Republic with a view to the adoption of a Council Regulation on procedures 
for  amending  the  Sirene  Manual  OJ  C  082  ,  05  April  2003,  as  well  as  the  Initiative  of  the  Hellenic 
Republic  with  a  view  to  the  adoption  of  a  Council  Decision  on  procedures  for  amending  the  Sirene 
Manual OJ C 082 , 05 April 2003.  

EN 

14 

   EN 

 
                                                 
Communication goes to print, there are still nine Member States which have not yet 
ratified the Protocol. 31  

In December 2001, recognizing that international organised crime does not limit its 
activities to the areas for which Europol is competent, the Council decided to extend 
Europol’s  mandate  to  all  forms  of  crime  mentioned  in  the  Annex  to  the  Europol 
Convention.32  The  extension,  which  will  make  it  easier  for  Europol  to  organise  its 
work effectively, took effect on 1 January 2002.  

In  November  2002,  the  Council  adopted  a  Protocol  amending  the  Europol 
Convention with specific articles on Europol’s participation in Member States' joint 
investigation  teams  and  the  possibility  for  Europol  to  request  the  competent 
authorities  of  the  Member  States  to  start  or  co-ordinate  criminal  investigations  in 
specific  cases.  The  Protocol  is  now  in  the  process  of  being  ratified  by  Member 
States.33  

A  new  protocol  has  been  adopted  by  the  Council  in  November  2003.  It  tackles 
several  problems  preventing  the  extension  of  Europol’s  operational  capacities.  It 
allows  direct  contacts  between  Europol  and  the  relevant  police  departments  of  the 
Member States, and the query by the latter of the Europol Information System.  

Developments  regarding  Europol  over  the  past  few  years  were  not  limited  to 
measures required by the TEU, the Vienna Action Plan and Tampere. Already during 
the first year of Europol’s being operational it was realised that the organization was 
not yet as effective as it should be.  

One  key  problem  is  the  reluctance  of  Member  States  to  transmit  information  and 
intelligence  to  Europol,  which  affects  Europol's  capacity  to  provide  the  necessary 
added value in criminal analysis at EU level. As a consequence, Member States often 
consider  that  Europol  is  not  meeting  the  demands  of  its  customers,  their  law-
enforcement  services,  and  are  not  motivated  to  provide  it  with  more  information. 
Another  reason  is  the  absence  of  an  information  system,  which  is  still  being 
developed as this Communication goes to print (see below). 

In  2002  an  evaluation  process  was  therefore  begun  by  the  Europol  Management 
Board with the aim of identifying the main factors hampering effective co-operation 
with  Europol.  Subsequently,  the  Heads  of  Europol  National  Units  (HENU) 
elaborated  a  long  list  of  difficulties  and  possible  solutions.  One  of  their  main 
conclusions was that the Europol Convention needed to be adapted and made more 
flexible. Other important HENU conclusions concern the need to do away with the 
various obstacles to the transmission of information, often of a legal nature, existing 
in the Member States. These conclusions, contained in an internal 'matrix document' 
of the summer of 2002, are proposed for implementation within 12 months. 

Detailed  reflections  in  the  first  half  of  2002  led  to  the  elaboration  of  a  Protocol 
overhauling  the  Convention.  The  Protocol  covered  not  only  the  areas  of  analysis, 

31 

32 
33 

OJ C 358 of 13 December 2000. Until 5 June 2003, the protocol had been ratified and notified by DE, 
ES, FR, GR, PT and SW. 
OJ C 362 of 18 December 2001. 
OJ C 312 of 16 December 2002. 

EN 

15 

   EN 

 
                                                 
data  access,  and  data  protection,  but  also  democratic  control  over  Europol.  On  19 
December 2002 the Council reached a political agreement on it.34 In addition, in the 
spring of 2003 the third round of mutual evaluations started to examine the exchange 
of information and intelligence between the Member States and Europol, and among 
the  Member  States,  respectively.  This  evaluation  should  lead  to  important 
recommendations on how to improve this aspect of co-operation further. 

Apart  from  information  coming  from  EU  Member  States,  Europol  also  depends  on 
information  held  outside  the  EU  in  order  to  have  a  better  information  basis  for  the 
performance  of  its  tasks.  Notable  progress  was  achieved  in  Europol’s  co-operation 
with third countries and international organisations on the basis of the list established 
by  a  Council  Decision  of  27  March  2000.35  These  co-operation  agreements  are 
essential for Europol's work, since they are the formal requirement to enable Europol 
to exchange personal data with the respective third countries and bodies.  

To  date,  Europol  has  signed  co-operation  agreements,  including  the  possibility  to 
exchange  personal  data,  with  several  accession  countries,  Iceland,  Norway,  and 
Interpol.  It  has  also  signed  agreements  with  the  European  Commission  and  the 
European Central Bank. Currently Europol is negotiating an agreement with Eurojust 
and an administrative arrangement with the European anti-fraud Office (OLAF). By 
the end of 2003 Europol will have concluded agreements with all the accession and 
candidate countries.  

The events of 11 September 2001 helped to speed up the conclusion of agreements 
with  the  US.  On  6  December  2001,  Europol  signed  a  strategic  co-operation 
agreement with the United States, and in December 2002 an agreement covering the 
exchange  of  personal  data.  The  conclusion  of  the  latter  agreement  is  a  positive 
development in view of the different data-protection legislation of the United States 
and the European Union. 

A key prerequisite for Europol's effective functioning is the existence of the Europol 
Information  System  (EIS).  For  the  past  few  years,  Europol  has  been  working  on  a 
very  sophisticated  system  that  would  allow  decentralised  storage  and  retrieval  of 
information on organised crime held by Member States and Europol. Until now it has 
not been possible to put a system into place, however, due to the complexity of the 
system  (free  text  translation  into  11  languages).  The  Commission  considers  it 
essential  for  Europol's  performance  that  a  simplified  version  of  the  EIS  becomes 
available as soon as possible. The more sophisticated version should be implemented 
at a later stage. 

Europol's  management  has  also  been  subject  to  a  continuous  review.  It  gradually 
became  apparent  that  Europol’s  staff  regulations  were  not  applicable  to  or  lacked 
specific  provisions  for  the  Europol  Directorate.  These  regulations  were  therefore 
amended  to  include  provisions  on  the  selection,  dismissal  and  disciplinary 
procedures for the Europol Director and the Deputy Directors.36 

34 
35 
36 

Council Document 13254/02-EUROPOL 76 rev 5. 
OJ C 106 of 13 April 2000. 
Council  Act  amending  the  Europol  Staff  regulations  of  19  December  2002,  OJ  C  24  of  31  January 
2003. 

EN 

16 

   EN 

 
                                                 
that  control  over  Europol 

Another  important  subject  is  democratic  control  over  Europol.  In  particular  the 
is 
European  Parliament  has  regularly  criticised 
unsatisfactory.  In  order  to  provide  a  clear  view  of  this  question,  the  European 
Commission submitted a Communication on Democratic Control over Europol to the 
European  Parliament  and  the  Council  on  26  February  200237.  It  described  and 
assessed  the  many  types  of  control  over  Europol  (Europol  Convention,  data-
protection  rules,  the  supervisory  functions  of  the  Management  Board).  The 
conclusion  was  that,  in  view  of  the  fact  that  Europol  has  limited  competences 
compared to the national police services of the Member States, it can not be said that 
there is a lack of democratic control in its case.  

The  Commission  considered,  however,  that  the  control  exercised  by  fifteen 
individual national parliaments and the limited role given to the European Parliament 
fragmented  democratic  control  over  Europol. 
some 
recommendations to improve the situation. The main one was the establishment of a 
joint  Committee  of  representatives  from  the  national  Parliaments  and  the  European 
Parliament,  which  should  closely  monitor  developments  concerning,  and  exchange 
information with, Europol.  

therefore  made 

It 

Much  has  been  achieved  by  Europol  in  the  past  four  years.  The  Europol-related 
points  from  the  Treaty  and  the  Tampere  Conclusions  have  been  implemented,  but 
there  are  still  several  subjects  from  the  Vienna  Action  Plan  which  need 
implementation or have not yet been examined in detail. In some cases it might be 
necessary,  however,  to  examine  if  the  recommendations  made  in  1998  are  still 
relevant. 

Among  the  measures  to  be  taken  within  two  years  after  the  entry  into  force  of  the 
TEU, the Vienna Action Plan calls for the examination of Europol access to SIS data. 
This has been under discussion for some time. The Council has agreed in principle 
that  Europol  will  get  partial  access  to  the  SIS,  in  particular  to  data  stored  pursuant 
articles  95,  99  and  100  of  the  Schengen  Convention.  To  that  end,  the  Council  will 
soon  decide  on  an  amendement  to  the  SIS  Convention,  introducing  a  new  Article 
101A, which will establish the legal basis for Europol's access to the SIS.  

Nevertheless,  due  to  technical  restrictions  there  is  a  risk  that  Europol's  access  will 
only  be  possible  once  the  SIS  II  has  been  implemented,  which  would  mean  not 
before  2006.  The  Commission  considers  that  this  period  is  much  too  long  and 
suggests  that  pragmatic  alternative  solutions  should  be  considered,  for  example 
giving Europol read-only access via National SIS. It should be recognized, however, 
that such an arrangement would require a corresponding amendment of the Schengen 
Convention. 

The call for a database of pending investigations was discussed at Europol with the 
Europol  National  Units,  but  no  further  action  has  been  taken  yet.  In  view  of  the 
technical  and  legal  complexity  that  such  a  project  would  entail,  it  would  seem 
unrealistic to expect it to come into being in the near future. .  

37 

COM(2002) 95 final. 

EN 

17 

   EN 

 
                                                 
Concerning  the  measures  to  be  taken  within  five  years  laid  down  in  the  Vienna 
Action Plan, the following subjects require further examination:  

No progress has been made in the area of improving statistics on cross-border crime. 
There  are  no  agreed  criteria  for  EU-wide  statistics  yet.  This  is  due  to  a  lack  of 
common  definitions  of  offences,  which  leads  to  national  statistics  not  being 
comparable.  Discussions  about  the  extension  of  Europol's  mandate  showed  that  it 
would be difficult to agree on common definitions for certain crimes. 

The  question  of  whether  and  how  Europol  could  have  access  to  the  Customs 
Information System (CIS) has not been discussed in depth yet. The CIS Convention, 
in its Article 7 III, would in principle allow for Europol to have access. In order for it 
to do so, though, an additional protocol is necessary. The Commission takes the view 
that this important question should be settled as soon as possible.  

Concerning  the  research  and  documentation  network  on  cross-border  crime,  one 
concrete  step  has  been  the  establishment  of  the  Knowledge  Management  Centre  at 
Europol, providing information about the existence of special expertise in the area of 
law  enforcement  in  the  Union,  for  example  at  universities,  but  also  about  more 
operational  issues,  such  as  technical  equipment.  Moreover,  Europol  is  working 
together  with  Member  States  and  the  Commission  towards  an  upgrading  of  the 
annual  EU  Organised  Crime  (OC)  Situation  Report,  from  a  descriptive  document 
towards a threat assessment. The aim is to make the OC report an essential planning 
instrument  in  the  EU's  fight  against  organised  crime.  The  Commission  proposes  to 
discuss  with  Europol  whether  the  measures  taken  so  far  are  those  intended  by  the 
Vienna Action Plan, and what possible additional action needs to be taken. 

As regards the call for the elaboration and implementation of an information strategy 
to make the work and powers of Europol known to the public, in the past two years it 
has become evident that it is more important to raise awareness within the Member 
States' law-enforcement communities than among the general public. Therefore, the 
focus  of  Europol's  and  Member  States'  information  strategies  has  been  the 
development of an awareness programme for law-enforcement agencies. This will be 
implemented in 2003 and 2004, co-funded by the EU’s AGIS Programme.  

The  Commission  takes  the  view  that  an  effective,  long-term  awareness  program  is 
essential to improve mutual understanding and co-operation between Europol and the 
Member States’ law-enforcement services. The Commission is pleased that the AGIS 
program can provide temporary support to launch the program. Nevertheless, longer-
term financing must be provided by Europol and the Member States. 

In  the  first  semester  of  2002  the  Council  examined  the  possibility  of  a  simplified 
procedure  for  future  amendments  to  the  Europol  Convention.  Such  a  measure  was 
considered necessary because current procedures require each and every amendment 
to  the  Convention  to  be  ratified  by  all  Member  States.  Until  now  the  discussions 
could  not  be  concluded.  In  the  Commission's  view,  it  is  crucial  to  simplify  the 
procedure for future amendments to the Europol Convention, especially in the light 
of enlargement. The only workable option is to replace the Convention by a Council 
Decision  pursuant  Article  34  (2)  c.  The  Commission  is  prepared  to  put  forward  a 
proposal for such a draft Council Decision in this regard. 

EN 

18 

   EN 

 
Europol has been fully operational for four years now. During that time its potential 
as an essential tool in the EU's fight against serious international crime has become 
ever  clearer.  All  the  concrete  measures  called  for  by  the  TEU  and  Tampere  have 
been  adopted  by  the  Council  in  the  form  of  Decisions  or  Acts,  some  requiring 
ratification  by  the  Member  States.  The  full  ratification  and  implementation  of  all 
these measures will enable Europol to function more effectively.  

As  regards  the  future  of  Europol,  what  is  required  in  the  short  term  is  a  period  of 
consolidation  during  which  all  legal  acts  relating  to  Europol  are  ratified  and 
implemented,  the  awareness  programme  continued,  a  simple  version  of  the  EIS  is 
established and the report of the HENUS implemented. 

After this consolidation, certain investigative powers should be attributed to Europol. 
The  discussion  about  such  an  important  development  would  have  to  include  the 
possible consequences for judicial and parliamentary control over Europol. 

2.1.3.  Operational  police  co-operation,  including  the  Task  Force  of  EU  Police  Chiefs 

(TFPC) 

The Vienna Action Plan called for the development and expansion of operational co-
operation  between  law-enforcement  services  in  the  Union  within  two  years  after 
entry  into  force  of  the  TEU.  It  proposed  to  use  the  joint  actions  carried  out  by  the 
Member States' customs administrations as a model.  

Conclusion  44  of  the  Tampere  European  Council  can  be  considered  as  a  first 
concrete  effort  to  develop  and  expand  such  co-operation.  It  calls  for  the 
establishment of a "European Police Chiefs Operational Task Force to exchange, in 
co-operation  with  Europol,  experience,  best  practices  and  information  on  current 
trends in cross-border crime and contribute to the planning of operative actions." 

Since its first meeting in April 2000 the Task Force of EU Police Chiefs (TFPC) has 
met eight times, once per Council Presidency. A large part of the meetings was spent 
trying to agree on the exact tasks it should perform. At its meeting in Copenhagen in 
July 2002 the TFPC agreed on the following main functions:  

•  To  promote  a  coordinated  approach  focused  on  cross-border  criminality  in  the 

EU, based, inter alia, on the Europol organized crime analyses. 

•  To adopt initiatives, plan and start operations involving the participation of two or 
more  Member  States  and  directed  towards  priority  sectors  in  the  fight  against 
organised crime. 

•  To serve as a forum for the exchange of information and for discussions on crime 

trends and to define strategies to combat crime. 

•  To make policy recommendations to the Council in relation to the police (generic 

term) and ensure their implementation and follow-up.  

•  To contribute to achieve a high standard of European police systems regarding the 

rule of law and democratic principles.  

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19 

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The Copenhagen meeting in 2002 also agreed on a methodology for the preparation, 
implementation  and  follow-up  of  joint  operations.  From  that  moment  on,  joint 
operations  would  be  proposed  by  a  "leading  country"  on  the  basis  of  strategic 
analyses  prepared  by  Europol;  other  interested  countries  could  join  the  operational 
team; Europol would provide the analytical support; progress and final reports are to 
be submitted to the TFPC. It is still not fully clear, however, who is responsible for 
the preparation, planning, monitoring and evaluation of the joint operational actions.  

At  its  meeting  in  April  2002,  the  TFPC  agreed  on  the  creation  of  a  "Steering 
Committee"  to ensure the  continuity  of  its  work  by  adequately  preparing  meetings, 
monitoring  the  follow-up  of  recommendations  and  identifying  and  proposing 
subjects to be discussed. The Steering Committee is composed of the incumbent, the 
outgoing and future Council Presidencies, Europol, the Commission and the General 
Secretariat of the Council. According to the Rome meeting of the TFCP in 2003, the 
role  of  this  Steering  Committee  should  be  strengthened,  for  example  by  meeting 
more  frequently  or  opening  its  sessions  to  representatives  of  the  International 
Relations  Unit  of  the  Member  States’  Police.  The  next  meeting  of  the  Steering 
Committee will take place on 30 January 2004. 

The TFPC has taken a considerable number of initiatives for activities, e.g. regarding 
the protection of the Euro, illegal immigration, trafficking in human beings, vehicle 
crime and child abuse. There is general agreement, however, that, so far, these efforts 
have not led to an operational added value at EU level (although the decisions taken 
at  the  last  TFPC  meeting,  on  19  and  20  May  2003,  on  future  joint  actions  against 
illegal immigration and the trafficking in human beings and drugs are encouraging).  

This lack of effectiveness can be explained by a number of factors. Leading police 
officials  of  the  Member  States  usually  have  to  deal  with  a  great  number  of  issues 
ranging  from  the  administrative  to  the  highly  political,  so  that  European  issues  are 
only one of many priorities.  

Moreover,  there  are  considerable  differences  in  the  competences  of  the  Member 
States' police representatives in the TFPC. In some cases there is clearly one national 
head  of  police  who  is  able  to  take  decisions  on  the  commitment  of  resources, 
whereas in other Member States the main police delegate to the TFPC represents a 
decentralised national police force. In countries with federal systems representation 
is quite complex. Finally there is the problem of continuity between plenary meetings 
of  the  TFPC,  although  the  situation  has  improved  with  the  creation  of  the  Steering 
Committee mentioned earlier.  

Organizational  weaknesses  have  added  to  the  problems  of  the  TFPC.  The  fact  that 
there  is  usually  only  one  meeting  of  the  TFPC  per  Council  Presidency  leads  to 
overloaded agendas, which in turn lead to little in-depth discussion; late delivery of 
documents also leads to insufficient preparation by delegations. It should be pointed 
out  that  the  functioning  of  the  TFPC  is  not  facilitated  by  its  operating  outside  the 
Council structures. 

Nevertheless,  the  importance  of  TFPC  meetings  in  improving  bilateral  and 
multilateral  contacts  between  the  leading  police  officials  in  the  Member  States 
should not be underestimated, since these are the only meetings where they all come 
together at the one time. 

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As  the  leading  police  officials  in  the  Union,  the  members  of  the  TFPC  play  an 
important  double  role:  by  virtue  of  their  proximity  to  ministers,  they  can  influence 
political  decisions  concerning  police  matters,  while  at  the  same  time  having  the 
competence to decide on the use of police resources. As to the future of the TF, the 
Commission  takes  the  view  that  serious  consideration  should  be  given  to  its 
integration  into  the  formal  structures  of  the  Council.  This  would  enable  the  TF  to 
participate in the decision-making process on all relevant police co-operation matters 
in  the  EU.  As  long  as  this  integration  is  not  realised,  the  TF  should  focus  on  the 
preparation,  planning  and  follow-up  of  joint  operational  police  activities  in  priority 
areas. 

At the last meeting of the TFCP in March 2004, a reflection document dealing with 
the future of the Task Force in the light of the proposal set out in the Draft Treaty on 
a Constitution for Europe was discussed. 

2.1.4.  The European Police College (CEPOL) 

The  Tampere  European  Council  called  for  the  establishment  of  a  European  Police 
College for the training of senior law-enforcement officials, starting as a network of 
existing  national  training  institutes.  On  22  December  2000,  the  Council  adopted  a 
Decision establishing a European Police College38, known as CEPOL for its French 
abbreviation. 

Article 6, paragraph 1 of the Council Decision of 22 December 2000 states that "the 
aim of CEPOL shall be to help train the senior police officers of the Member States" 
and  "support  and  develop  a  joint  approach  to  the  main  problems  facing  Member 
States in the fight against crime, crime prevention, and the maintenance of law and 
order  and  public  security,  in  particular  the  cross-border  dimensions  of  those 
problems." 

CEPOL’s main objectives and tasks are to increase knowledge of the national police 
systems and structures of other Member States, of Europol and of cross-border police 
co-operation  within  the  European  Union;  to  strengthen  knowledge  of  international 
instruments,  in  particular  those  which  already  exist  at  European  Union  level  in  the 
field of co-operation on combating crime; to provide appropriate training with regard 
to  respect  for  democratic  safeguards  with  particular  reference  to  the  rights  of 
defence; and to encourage co-operation with other police training institutes. 

In  order  to  achieve  its  objectives,  CEPOL  may  undertake  a  number  of  actions, 
mainly  provide  training  sessions,  based  on  common  standards,  for  senior  police 
officers;  contribute  to  the  preparation  of  harmonised  programmes  and  help  set  up 
appropriate advanced training programmes; provide specialist training; develop and 
provide training for trainers; disseminate best practice and research findings; develop 
and provide training to prepare police forces of the European Union for participation 
in non-military crisis management and for police authorities from the States applying 
for  membership  of  the  European  Union,  and  facilitate  relevant  exchanges  and 
secondments  of  police  officers  in  the  context  of  training.  CEPOL  may  co-operate 
with  the  national  police  training  institutes  of  non-member  States  of  the  European 

38 

Official Journal L 336, 30 December 2000. 

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Union.  In  particular,  it  makes  its  infrastructures  available  to  senior  police  officers 
from  the  applicant  countries  and  Iceland  and  Norway,  and  will  consider  the 
possibility  of  allowing  officials  of  the  European  Institutions  and  other  European 
Union bodies access to its facilities. 

According  to  the  Council  Decision  creating  it,  by  the  end  of  2003  CEPOL  shall 
submit  to  the  Council  a  report  on  its  operation  and  its  future.  Because  the  Council 
Decision  of  22  December  2000  provided  it  with  neither  legal  personality  nor  a 
budget, CEPOL has had a difficult beginning. During its first year of existence, it had 
neither  a  budget  nor  a  Secretariat;  moreover,  once  a  decision  was  made  to 
provisionally house its Secretariat in Copenhagen, it continued to face administrative 
difficulties, as no personnel could be made available to it.  

It  is  against  the  background  of  this  difficult  beginning  that  any  evaluation  of 
CEPOL’s work should be undertaken. The progress achieved is considerable. In the 
period  since  2001,  CEPOL  has  offered  a  growing  number  of  courses:  from  10  in 
2001  to  38  in  2003,  covering  an  ever  broader  spectrum  of  subjects,  from  counter-
terrorism  to  public  order  to  border  control.  CEPOL  has  also  developed  its  website 
and, more importantly, the European Police Learning Network (EPLN), which is an 
innovative  instrument  offering  virtual  police  training  on  the  Internet.  The 
Commission  has  supported  the  development  of  the  EPLN  through  the  OISIN  and 
AGIS programs. 

The  European  Council,  meeting  in  Brussels  on  13  December  2003,  agreed  on  the 
seats of a number of European agencies, among them CEPOL (United Kingdom). As 
this Communication goes into the final stages of its adoption, there are two CEPOL-
related initiatives under discussion: an Irish one to amend the Council Decision of 22 
December 2000 in order to give CEPOL legal personality39, and one from the United 
Kingdom, establishing CEPOL’s seat in Bramshill40.  

The  adoption  of  these  two  initiatives  should  help  CEPOL  overcome  its  two  most 
pressing  problems  in  the  short  term.  However,  it  is  clear  that  these  amendments  to 
the  original  Council  Decision  creating  CEPOL  are  only  partial  solutions  to  its 
problems, and that a farther-reaching debate about CEPOL’s future structure should 
take place. 

Apart  from  the  specific  problems  deriving  from  CEPOL’s  lack  of  legal  personality 
and  the  question  of  the  permanent  seat  of  its  Secretariat,  some  structural  problems 
have  become  evident  in  its  operations.  These  problems  were  mostly  related  to 
individual  police  schools'  inability  to  properly  organize  courses,  and/or  to  reduced 
participation caused by insufficient knowledge of foreign languages among potential 
beneficiaries.  Some  candidate  countries  also  faced  financial  problems  that  limited 
their participation in CEPOL activities. 

The  structural  problems  summarized  above  have  been  the  subject  of  ongoing 
reflection  and  discussion  within  CEPOL.  The  need  to  provide  better  language 
training for police officers in the EU has been recognized and will be tackled, at least 

39 
40 

Official Journal C 1 of 06 January 2004. 
Official Journal C 20 of 24 January 2004. 

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in part, by the EPLN. Nonetheless, it remains one of the most important obstacles to 
improved co-operation in police training and should be a priority in this field.  

The fact that different police schools in the EU have different approaches to training 
should  not  be  a  problem  in  itself.  However,  a  common  methodology  and  shared 
standards  of  quality  are  necessary  in  order  to  ensure  a  certain  minimum  level  of 
police  training  across  the  EU,  at  least  in  those  areas  of  common  interest  and  for 
officers directly involved in them. 

As to the future, CEPOL should focus on the development of common curricula and 
teaching  methods  in  priority  areas  of  police  co-operation,  which  would  then  be 
applied in a uniform manner in all national police schools. To fulfil its role properly 
CEPOL  should  have  a  legal  personality,  an  adequately  staffed  secretariat  and  be 
financed from the EU budget.  

2.1.5.  Other subjects mentioned in Art. 30 TEU 

2.1.5.1.  Investigative techniques 

In  their  dealing  with  crime,  police  perform  a  double  function:  On  one  hand,  they 
collect  information  to  detect  crime  and  threats  to  public  security  and,  on  the  other 
hand,  they  investigate  crime,  providing  support  to  the  judicial  authorities  in  their 
prosecution  activities.  In  order  to  fulfil  these  tasks,  the  police  use  different 
investigative techniques. 

Art.  30.1(d)  of  the  TEU  stipulates  that  common  action  in  the  field  of  police  co-
operation shall include “the common evaluation of particular investigative techniques 
in relation to the detection of serious forms of organised crime.” The Vienna Action 
Plan calls for this evaluation to be made within two years after the entry into force of 
the  TEU.  However,  although  common  guidelines  have  been  developed  in  the 
framework  of  Europol,  for  example  on  the  use  of  informants  or  on  controlled 
deliveries,  these  are  but  guidelines  and  are  not  necessarily  applied  in  all  Member 
States. Until now, there is no generally agreed interpretation of article 30.1 (d) TEU 
at the EU level. 

Article  30.1  (a)  TEU  makes  a  clear  distinction  between  “prevention,  detection  and 
investigation  of  criminal  offences”.  This  would  seem  to  confirm  that  detection  is 
different  from  investigation.  It  could  therefore  be  concluded  that  the  “particular 
investigative  techniques”  referred  to  in  Art  30  (1)  (d)  are  techniques  used  by  law-
enforcement services in finding traces which may lead to determine the existence of 
criminal  activity,  such  as  risk  analysis,  profiling,  and  the  monitoring  of  money 
transfers.  Such  techniques  have  proven  to  be  effective  tools  in  the  detection  of 
serious  crime  related  to  drug  trafficking  and  money  laundering41.  The  Commission 
therefore takes the view that it would indeed be useful to have a common evaluation 
of these techniques by experts, to see which of them can be used as 'good' or 'best' 
practices in given situations. 

41 

Reports  on  the  second  round  of  mutual  evaluation:  "Law  enforcement  and  its  role  in  fighting  drug 
trafficking". Document 9615/3/03 REV 03 CRIMORG 43 of 22 September 2003. 

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The Commission also considers that it would be advisable not to limit the evaluation 
exercise to the investigative techniques used for the detection of crimes, but extend it 
to  those  that  are  of  particular  relevance  to  investigate  serious  crime.  Examples  of 
such techniques are the ones used in the collection and handling of information (e.g. 
management  of  informants,  surveillance,  controlled  deliveries,  covert  operations, 
searches  and  seizures),  as  mentioned  in  the  Convention  on  Mutual  Assistance  and 
Co-operation  between  Customs  Administrations42  and  the  Convention  on  Mutual 
Legal  Assistance  in  Criminal  Matters43.  Other  examples  come  from  the  field  of 
forensics, such as crime scene management. 

The draft Constitutional Treaty proposed by the Convention on the future of Europe 
slightly  modifies  the  text  of  article  30  (1)  (d).  It  does  not  speak  of  the  "common 
evaluation" of investigative techniques, but of the possibility of a framework law to 
establish  "measures  concerning…the  common  investigative  techniques  concerning 
the detection of serious forms of organised crime".  

In the view of the Commission, the aim now should be for the Council to agree on 
the  use,  throughout  the  Union,  of  proven  investigative  techniques  to  detect  serious 
forms  of  crime.  The  Commission  is  of  the  opinion,  however,  that  such  measures 
should  not  be  limited  to  the  detection  of  crimes,  but  should  also  cover  their 
prevention and investigation. 

Finally, the Commission deems it useful to refer briefly to the importance of using 
DNA profiles in solving crime. In recent years some Member States have achieved 
impressive  successes  in  solving  crimes  more  quickly,  or  at  all,  with  the  help  of 
national DNA data bases which they have been building up. The Union's capacity to 
solve  crimes  better  and  more  efficiently  would  be  greatly  strengthened  if  such 
databases were set up in all Member States. Care should be taken that national and 
EU  data  protection  legislation  are  fully  respected.  The  Union's  crime  solving 
capacity  would  be  enhanced  further  if  Member  States'  law-enforcement  services 
were able to compare DNA profiles.  

2.1.5.2.  Forensic science 

Forensic  science  refers  to  the  examination  of  crime  scenes,  recovery  of  material 
evidence, laboratory examinations, interpretation of findings and presentation of the 
conclusions for intelligence and investigation purposes, or as evidence in court. The 
various  fields  of  forensic  expertise  include  for  example  toxicology,  serology  and 
DNA  profiling,  trace  evidence  (e.g.  fire  debris,  glass,  paint,  gunshot  residues), 
firearms  and  ballistics,  handwriting  and  document  examination,  fingerprints,  marks 
and  impressions  (e.g.  tool  marks,  shoe  prints),  audio,  video  and  computer  analysis, 
accident investigation, crime scene investigation and forensic pathology. 

The  final  aim  of  these  activities  is  to  contribute  to  the  truth-finding  process  in 
criminal cases. It is therefore essential that forensic investigations have a very high 
quality and are performed by an independent, impartial and integer person.  

42 
43 

COUNCIL ACT of 18 December 1997, OJ C 024 23 January 1998. 
OJ C 197 of 12 July 2000. 

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In  Europe,  governmental  forensic  laboratories  routinely  perform  thousands  of 
casework investigations, i.e. investigations performed in connection with individual 
criminal  investigations  in  the  various  fields  of  forensic  science  every  year.  Besides 
the casework, the laboratory’s work also cover other activities such as research and 
development, or education and training. 

Most  forensic  laboratories  belong  to  police  organisations  or  are  public-sector 
laboratories co-operating closely with law-enforcement authorities.  

Since the early 1990’s the main European forensic laboratories exchange knowledge 
within  the  European  Network  of  Forensic  Science  Institutes  (ENFSI).  Currently, 
ENFSI  has  49  laboratories  from  33  countries  as  members.  ENFSI's  Constitution 
states as its aim "to ensure that the quality of development and delivery of forensic 
science throughout Europe is at the forefront of the world". ENFSI achieves its goals 
through  meetings  and  the  work  of  the  15  Expert  Working  Groups  dealing  with  all 
aspects of the various forensic expert fields. 

In recent years the forensic laboratories of the Member States of the European Union 
have considerably increased - within ENFSI - the co-operation between themselves 
as well as with forensic laboratories of other European countries. 

In  most  countries,  including  the  EU  Member  States,  only  few  formal  requirements 
regarding quality standards apply to forensic laboratories. This contrasts sharply with 
the situation in the food and beverages sector, the control of meat, the admission of 
new medicines, drinking water, etc. In all these areas formal bodies are responsible 
for verifying that standards of quality are upheld so that the results of laboratory tests 
are  beyond  any  reasonable  doubt  and  can  be  accepted  as  the  basis  for  usually  far-
reaching decisions. 

A first essential step to improve the quality level of forensic laboratories in the EU is 
to demand concrete quality requirements. Since the 1980s a generally accepted way 
to  improve  the  quality  of  a  given  laboratory  is  to  demand  a  generally  recognised 
standard as the basis of its quality-assurance system. Such standards have existed for 
many  years  and  comprise  all  technical  and  organisational  aspects  which  are 
necessary to guarantee a certain minimum level of quality. The standards which are 
recommended  for  the  forensic  science  laboratories  are  NEN-EN-ISO/IEC  17025,  a 
standard which is not specific for forensic laboratories, and ILAC-G19:2002, which 
explains 17025 with reference to forensic laboratories. Such an approach is far more 
efficient and effective than a rigid harmonisation of methods.  

The  introduction  of  a  quality  assurance  system  is  costly  and  time-consuming.  It  is 
therefore reasonable that laboratories have an acceptable time period to comply with 
these  standards.  Parallel  to  this  process  of  implementing  an  (accredited)  quality 
assurance  system  by  the  forensic  laboratories,  the  police  and  judicial  authorities 
should be stimulated to cooperate only with 'accredited' laboratories. 

Until now, only 6 ENFSI member laboratories (all from EU Member States) have a 
formal  recognised  quality  assurance  system  based  on  the  two  above-mentioned 
standards.  A  first  essential  step  in  raising  the  quality  of  forensic  laboratories 
throughout  the  Union  is  therefore  that  all  forensic  laboratories  in  the  EU  adopt  a 
quality assurance system based on these two standards and that these are recognised 

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by their national accreditation body (under the assumption that this national body is 
part of the international accreditation and certification circuit). 

ENFSI  has  developed  into  a  useful  co-operation  body  for  forensic  science  in  the 
Union. Since it comprises also members which are not part of the European Union, it 
is not possible for the EU to use ENFSI as an official body representing its forensic 
science  interests.  It  would  therefore  be  advisable  for  ENFSI  members  of  the 
European  Union  to  constitute  a  formal  sub-group  within  ENFSI,  with  which  the 
European Union could communicate formally. 

At  EU  level,  only  two  instruments  exist  relating  to  forensic  science:  the  Council 
Resolution  of  9  June  of  1997  on  the  exchange  of  DNA  analysis  results44  and  the 
Council Resolution of 25 June 2001 on the same subject45. These two instruments are 
not legally binding. Several projects co-financed under the OISIN program aimed at 
setting  common  quality  standards  for  forensic  laboratories.  The  results  of  these 
studies  could  be  useful  at  EU  level.  The  Commission  proposes  to  compile  these 
results and present them to the Police Co-operation Working  Group of the Council 
for discussion and further work. 

2.1.6.  Other subjects of police co-operation 

2.1.6.1.  Terrorism 

The  need  to  combat  terrorism  is  mentioned,  in  general  terms,  in  article  29  TEU. 
Terrorism is a specific form of serious crime. This Communication is not intended to 
deal with individual crime phenomena. However, since the events of 11 September 
2001  and  11  March  2004,  the  fight  against  international  terrorism  has  received  the 
highest political attention and the Union has taken many initiatives, including some 
in  the  field  of  police  co-operation,  to  enhance  the  effectiveness  of  the  Member 
States’ law-enforcement services in the fight against terrorism. A Communication on 
police co-operation would therefore not be complete without a brief analysis of co-
operation in this particular area. 

Countries'  counter-terrorism  activities  are  mainly  based  on  co-operation  between 
intelligence  services,  police  services  and  judicial  authorities.  Member  States  that 
traditionally  have  been  confronted  with  internal  terrorist  threats  have  developed 
intelligence services within the police which are at the forefront of the fight against 
terrorism. In these countries, the intelligence services within the police usually deal 
with terrorist threats, while the traditional intelligence services direct their attention 
more  to  external  threats  to  national  security.  In  Member  States  that  do  not  have  a 
history  of  domestic  terrorism,  the  responsibility  for  the  collection,  analysis  and 
diffusion  of  intelligence  in  the  fight  against  terrorism  is  the  responsibility  of  the 
security and intelligence services. 

Thus,  two  different  concepts  of  co-operation  can  be  distinguished  in  the  Union, 
which  determine  to  a  large  extent  the  capacity  of  the  institutional  structures  to 
manage  co-operation  to  combat  terrorism  effectively:  one  between  the  police 

44 
45 

OJ C 193 of 24 June 1997. 
OJ C 187 of 03 July 2001. 

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services and one between the security/intelligence services. The intelligence services 
of the Member States have co-operated in the fight against terrorism for considerable 
time within the informal framework of the so-called 'Club of Bern', where some other 
European  countries  participate  as  well.  This  co-operation  is  based  on  mutual  trust 
and  flexibility.  After  11  September  2001,  Member  States'  intelligence  services, 
following  the  conclusions  of  the  European  Council  of  21  September  2001,  have 
stepped up their counter- co-ordination within the "Counter-terrorism group" (CTG) 
of  the  Club  of  Bern,  which  brings  together  the  counterterrorist  experts  of  the 
intelligence services. Police services do not participate in this group. 

Institutional  counter-terrorism  co-operation  in  the  Union  within  the  third  pillar  is 
coordinated  in  the  Terrorism  Working  Group  of  the  Council  (TWG).  Some 
delegations  to  the  TWG  represent  the  “police  intelligence  services”,  others  the 
security/intelligence  services,  and  others  both.  This  heterogeneous  composition  of 
delegations is one factor hindering co-operation, because of the lack of trust between 
the different services. Europol also participates in the group. 

As regards Europol's role in EU counter-terrorism policy, Member States' police and 
intelligence  services  often  still  consider  that  Europol  lacks  the  capacity  to  exercise 
leadership  in  this  field  and  that  its  system  of  exchange  of  information  is  too  rigid. 
The intelligence services in particular remain reluctant to accept Europol as a partner. 
The provision by the Member States of all operational information and intelligence 
to Europol is one of the measures identified by the Commission in its contribution to 
the  European  Council  meeting  dedicated  to  improving  counter-terrorism  co-
operation in the EU46, which was held in Brussels on 19 March 2004, as a response 
to the terrorist attacks in Madrid a meek before. 

Having  said  this,  however,  it  must  be  recognized  that  co-operation  in  the  Union 
regarding counter-terrorism improved after 11 September. On 20 September 2001 a 
special  meeting  of  the  JHA  Council  took  place.  It  adopted  a  long  list  of  important 
measures  to  enhance  the  Union's  effectiveness  to  deal  with  the  problem,  aiming  at 
improving  judicial  co-operation,  police  co-operation,  combating  financing  of 
terrorism,  border  checks,  aviation  and  maritime  security  and  co-operation  with  the 
US  (that  led  to  agreements  between  Europol  and  the  American  police  services  on 
exchange of personal data or of liaison officers). 

As  regards  police  co-operation  good  progress  was  achieved  in  agreeing  concrete 
measures  to  improve  relations  between  the  police  forces,  Europol  and  the 
intelligence services of the Member States. In this context, it is important to highlight 
the creation of a team of counter-terrorism experts ('Counter Terrorism Task Force') 
at  Europol;  the  creation  of  multinational  teams  for  the  collection  and  exchange  of 
information on terrorists; the meetings of Heads of the counter-terrorist Units and of 
the police intelligence services, the strengthening of controls at external borders and 
of  safety  requirements  at  airports  and  on  aircraft;  and  the  development  of  terrorist 
profiles. In addition, the Task Force of EU Police Chiefs agreed on improvements in 
information processing and in the co-operation between the intervention units. 

46 

SEC  (2004)  348  « Commission  paper  on  terrorism  to  the  Council,  providing  input  for  the  European 
Copuncil », 18 March 2004. 

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In the field of judicial and police co-operation the Council adopted on 13 June 2002 a 
Framework  Decision  on  the  fight  against  terrorism47,  which  aims  at  approximating 
the definition of terrorist offences in all Member States and establishing a common 
threshold for penalties and sanctions. Another new instrument is the European arrest 
warrant48, whose aim is to facilitate extradition between Member States by replacing 
existing instruments. It covers, inter alia, the infringements and crimes committed by 
terrorists.  Moreover,  in  February  2002  Eurojust  was  created49,  bringing  together 
prosecutors and magistrates or law-enforcement officials with an equivalent capacity. 
On  28  November  2002  the  Council  adopted  a  decision50  establishing  a  mechanism 
for  evaluating  legal  systems  and  their  implementation  at  national  level  in  the  fight 
against terrorism. On 19 December 2002 a Council Decision on the implementation 
of  specific  measures  for  police  and  judicial  co-operation  to  combat  terrorism  was 
adopted51. 

Nevertheless,  as  the  attacks  in  Madrid  made  clear,  terrorism  is  still  a  threat  to  the 
security of the EU. As is pointed out in the Commission’s response to the European 
Security Strategy with regard to fighting terrorism52, “terrorism poses challenges to 
the  core  EU  objectives  of  the  promotion  of  free  movement  of  persons,  goods, 
services  and  capital  and  makes  evident  the  intrinsic  link  between  internal  and 
external  security”.Therefore,  effective  coordination  is  essential  to  more  effectively 
fight terrorism in the EU.  

In view of the above, it is essential to improve co-ordination between all the services 
involved  in  the  fight  against  terrorism  within  the  Council  structures.  A  first  step 
would  be  to  have  all  delegations  to  the  TWG  include  both  intelligence  services 
(police  and  non-police)  and  strengthening  the  role  of  Europol  in  EU  counter-
terrorism policy. Later it would be necessary to bring the CTG of the Club of Bern 
closer to the TWG and COTER. Europol should be transformed into a true center of 
intelligence  including  the  creation  of  a  common  database  on  terrorism,  including 
persons,  incidents,  indications  and  operations,  fully  complying  with  the  data 
protection provisions of the Europol Convention. Good progress was recently made, 
since Europol can assist the multinational ad hoc teams for gathering and exchanging 
information on terrorism and will consequently be granted a connexion to the BDL 
network,  as  soon  as  it  satisfies  security  safeguards  and  Europol’s  Convention.  The 
Council  Recommendation  concerning  the  constitution  of  multinational  teams  to 
gather  information  about  terrorists53  should  be  changed  into  a  legally  binding 
instrument.  

As  is  pointed  out  in  the  above-mentioned  Commission  paper  on  fighting  terrorism, 
there are good arguments to improve the coordination of counter-terrorism activities 
inside  the  EU  institutions  (following  the  good  example  of  the  EU  compendium  of 
threat assessments written by TWG and COTER, or common meetings of these two 
working  parties)  and  to  reinforce  the  role  of  the  Terrorism  Working  Group  in 

47 
48 
49 
50 
51 
52 
53 

Council Framework Decision 2002/475/JHA of 13 June 2002. OJ L 164, 22 June 2002. 
Council Framework Decision 2002/584/JHA of 13 June 2002. OJ L 190, 18 July 2002. 
Council Decision 2002/187/JHA of 28 February 2002. OJ L 063, 06 March 2002. 
Council Decision 2002/996/JHA of 28 November 2002 OJ L 349, 24 December 2002. 
Council Decision 2003/48/JHA of 19 December 2003. OJ L 16, 22 January 2003. 
SEC (2004) 332 of 19 March 2004. 
Recommendation of JAI Council of 13 June 2002. 

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28 

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preparing  EU  policy-making.  Needless  to  say  that  all  the  measures  foreseen  in  this 
chapter should fully respect existing personal data protection legislation. 

2.1.6.2.  Other police co-operation subjects 

Public order and security of high-level meetings 

After  the  violent  demonstrations  during  the  European  Councils  in  Nice  and 
Gothenburg, and especially after the G-8 meeting in Genoa in July 2001, there has 
been growing concern about the ability of police forces to guarantee public order and 
security  while  at  the  same  time  respecting  fundamental  rights.  On  13  July  2001  a 
special  Justice  and  Home  Affairs  Council  met  to  deal  with  this  issue.  A  series  of 
measures  to  prevent  violent  disturbances  during  high-level  meetings  were  agreed 
upon,  among  them  intensified  co-operation  in  the  fields  of  police,  exchange  of 
information  while  respecting  the  right  to  protection  of  personal  data,  crossing  of 
borders, judicial co-operation, and organisation.  

At  the  same  time,  the  Council  underlined  the  need  to  guarantee  that  citizens  can 
enjoy their rights to freely express their opinions and assemble in a peaceful manner, 
in  conditions  where  there  is  no  threat  to  their  security,  that  of  others  or  to  their 
property.  It  recommended  a  constructive  dialogue  between  organisers  of  public 
demonstrations  and  the  authorities  of  the  host  country,  and  close  international 
contacts  to  ensure  that  legitimate  demonstrations  are  not  exploited  or  abused  by 
violent groups. 

The  Task  Force  of  EU  Police  Chiefs  suggested  to  the  Council  to  create  a  group  of 
experts  charged  with  writing  a  common  manual  for  use  by  police  and  authorities 
while preparing high-level meetings. As a result of the group's work, a Handbook has 
been drawn up. 

The Council has also adopted a series of instruments to enhance police co-operation 
in  other  areas.  Some  of  these  are  legally  binding,  as  for  examples  the  Council 
Decision of 25 April 2002 concerning security in connection with football matches 
with an international dimension54, the Council Decision of 13 June 2002, creating a 
network of national contact points in respect of persons responsible for genocide, war 
crimes  and  crimes  against  humanity55  and  the  Council  Decision  of  28  November 
2002 creating a network for the protection of public figures56.  

However,  a  considerable  number  of  documents  adopted  are  of  a  non-binding 
nature.The  proliferation  of  non-binding  instruments  is  one  of  the  factors  affecting 
police  co-operation  in  the  EU,  which  will  be  examined  more  closely  in  the  next 
chapter. 

2.1.6.3.  Article 32 TEU 

This  Article  stipulates  that  "The  Council  shall  lay  down  the  conditions  and 
limitations  under  which  the  competent  authorities  referred  to  in  Articles  30  and  31 

54 
55 
56 

JHA/348/2002 of 25 April 2002, OJ L 121 of 08 May 2002.  
2002/494/JHA of 13 June 2002, OJ L167 of 26 June 2002. 
2002/956/JHA of 28 November 2002, JO L333 of 10 December 2002. 

EN 

29 

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may  operate  in  the  territory  of  another  Member  State  in  liaison  and  in  agreement 
with the authorities of that State." The Vienna Action Plan mentions the Article as an 
area where progress should be realised within two years after the entry into force of 
the TEU, "taking into account the Schengen acquis." It stresses that the creation of a 
collective framework for this type of operation is one of the priorities for police co-
operation, adding that the framework can be a flexible one. 

Until now Article 32 has not been used as a legal basis for legislative proposals or 
initiatives.  However,  decisions  have  been  adopted  in  the  spirit  of  this  article,  for 
example  the  Convention  on  Mutual  Legal  Assistance  in  Criminal  Matters  of  2000 
and the Framework Decision on Joint Investigative Teams of 2002 57. Both lay down 
new conditions and limitations under which the police can operate on the territory of 
another Member State. Additional examples are the initiatives taken to extend the use 
and  scope  of  articles  40-43  of  the  Schengen  Convention  (cross-border  surveillance 
and hot pursuit). Also, a number of bilateral agreements concluded in the context of 
Schengen extend the competencies of officials to operate on the territory of the other 
Member State.  

Because of its potential importance for operational police co-operation and since the 
Vienna  Action  Plan  mentions  it  as  a  top  priority,  the  Commission  considers  it 
essential  that  the  possible  ways  of  implementing  this  article  be  discussed  in  the 
Council.  

Concrete examples of the need to set clear conditions for the  operation of  Member 
States'  services  on  the  territory  of  another  Member  State  are  the  discussions 
regarding better co-operation between the police intervention units and also between 
the  intervention  units  for  nuclear  biological,  nuclear,  chemical  and  radiological 
protection. Future crisis situations may require these services from one Member State 
to operate and possibly use force on the territory of another Member State. 

This need also exists from the perspective of improving cross-border co-operation in 
Member  States'  regions  sharing  common  borders  (see  also  on  Schengen  co-
operation).  These  discussions  could  usefully  include  the  possibility  of  a  common 
model  for  cross-border  co-operation,  based  on  the  positive  experience  which  some 
Member  States  have  gained,  as  well  as  on  existing  bilateral  police  co-operation 
agreements.  

In this context, a recently negotiated bilateral police co-operation agreement between 
Austria  and  Germany  must  be  mentioned,  since  it  represents  an  important  step 
forward compared with existing ones. Among its provisions, this agreement includes 
the possibility for national officials to be subordinated to the authorities of the other 
Member State, for the exercise of certain coercive powers on the territory of the other 
Member  State,  for  participation  in  activities  for  the  protection  of  persons  and 
property on the territory of the other Member State, for the transfer and matching of 
DNA profiles, for simplification and extension of cross-border surveillance and hot 
pursuit, and for allowing surveillance also for the protection of persons and property. 
In  the  view  of  the  Commission,  this  a  promising  example  of  how  EU  police  co-
operation should develop. 

57 

Framework Decision 2002/465/JHA of 13 June 2002. OJ L 162 of 20 June 2002. 

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30 

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2.2. 

Customs co-operation 

Together  with  police  co-operation,  customs  co-operation  was  introduced  into  the 
inter-governmental part of the Maastricht Treaty on European Union in 1992. Article 
29  of  the  TEU  provides  for  closer  co-operation  between  police  forces,  customs 
authorities,  and  other  competent  authorities  in  the  Member  States.  Although  the 
Tampere  conclusions  do  not  expressly  refer  to  customs  co-operation,  many  of  the 
issues relate specifically to matters of customs competence. Member States' customs 
authorities play a vital role in fighting serious international crime. Examples are the 
fight against the illicit traffic in drugs, weapons, munitions, explosive materials, the 
theft of cultural goods, the protection of national treasures possessing artistic, historic 
or  archaeological  value  (article  30  of  TEC),  dangerous  and  toxic  waste,  nuclear 
material,  or  materials  or  equipment  intended  for  the  manufacture  of  atomic, 
biological and/or chemical weapons. 

Unlike in the case of police co-operation, there is an important first-pillar element in 
customs co-operation, which is reflected in the inclusion of Article 135 in the Treaty 
establishing the European Community. When looking at customs co-operation in the 
European  Union,  therefore,  it  is  important  to  take  into  account  the  varied 
responsibilities of customs under the different pillars. 

More  specific  aims  in  relation  to  customs  co-operation  are  set  out  in  the  Vienna 
Action  Plan.  The  measures  to  be  taken  are  the  ratification  of  the  Convention  on 
Mutual  Assistance  and  Co-operation  between  the  Member  States  (Naples  II)58  and 
the Convention on the use of Information Technology for customs purposes (CIS)59. 
Although  progress  has  been  made  on  both  Conventions,  some  Member  States  still 
have to complete their ratification procedures.  

Of  those  Member  States  who  have  ratified  the  Conventions  (currently  13  have 
ratified  the  CIS  Convention,  and  10  Naples  II),  none  currently  apply  the  special 
forms  of  co-operation  provided  for  in  Naples  II  or  provide  data  for  the  third-pillar 
CIS  database,  in  spite  of  the  fact  that  those  who  have  ratified  could  provisionally 
apply these Conventions. It is therefore too early to evaluate whether the application 
of  these  Conventions  is  improving  mutual  assistance  and  co-operation  between  the 
Member States' law-enforcement agencies. 

There  are  many  ways  in  which  customs  contribute  to  the  fight  against  illicit  trade. 
One of these is by sharing information and intelligence. It is in this area that the CIS 
Convention  and  the  third-pillar  database  will  facilitate  exchange  and  dissemination 
of  information  in  order  to  prevent  or  detect  infringements  of  national  laws  and 
requests  for  action.  The  Commission  (OLAF),  with  the  support  of  the  Member 
States,  has  made  good  progress  with  the  technical  development  of  the  database, 
which became fully operational on 24 March 2003. 

The third-pillar CIS is to be further expanded by the addition  of the Customs Files 
Identification  Database  (FIDE).  This  will  provide  valuable  information  to  customs 
authorities on natural or legal persons who have committed, or are being investigated 

58 
59 

OJ C 24, 23 January 1998. 
OJ C 316, 27 November 1995. 

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31 

   EN 

 
                                                 
for serious contraventions of customs legislation. The necessary amending Protocol 
to  the  CIS  Convention  was  adopted  by  the  Council  on  8  May  200360.  The 
Commission  (OLAF)  has  committed  resources  for  the  development  of  FIDE  and 
started a feasibility study in 2003. The technical development will commence during 
2004  so  it  will  not  be  too  long  before  this  valuable  addition  to  the  third-pillar  CIS 
will be operational. 

The  Naples  II  Convention  was  signed  on  18  December  1997.  The  purpose  of  the 
Convention  is  to  improve  the  effectiveness  of  customs  co-operation  and  law 
enforcement  in  the  European  Union,  by  preventing  and  detecting  infringements  of 
national  customs  provisions  and  prosecuting  and  punishing  infringements  of 
Community and  national  customs  provisions. The Convention  provides  for specific 
forms  of  co-operation  such  as  hot  pursuit,  cross-border  surveillance,  controlled 
deliveries, covert investigations, and joint special investigation teams. These special 
measures were considered to be essential following completion of the single market 
and the abolition of routine customs controls at the internal borders of the European 
Union. 

Although  the  text  of  the  Convention  refers  specifically  to  'customs  administrations' 
these are defined in Article 4(7) as being Member States' customs authorities as well 
as  other  authorities  with  jurisdiction  for  implementing  the  provisions  of  the 
Convention.  The  Convention  therefore  provides  for  co-operation  between  law-
enforcement  agencies  with  the  relevant  powers  to  act  in  relation  to  customs 
infringements as defined in Articles 4(1) and 4(2). 

To assist with the practical application of the Convention, a handbook was prepared 
in 2002 by the Customs Co-operation Working Group (CCWG) of the Council. This 
handbook  will  assist  practitioners  by  providing  an  explanation  of  the  provisions 
within the Convention and how they should be applied.  

Member  States  have  also  initiated  some  bilateral  actions.  As  was  explained  in 
chapter  2.1.1,  joint  customs/gendarmerie/police  operation  centres  have  been 
established  under  article  39  of  the  Schengen  Convention.  These  common  centres 
have  been  established  to  promote  closer  work  and  exchange  of  information  at  the 
border  between  the  relevant  agencies  in  relation  to  cross-border  crime,  smuggling, 
and  illegal  immigration.  These  centres  are  key  to  improved  co-operation  and  the 
development of mutual knowledge and understanding between the law-enforcement 
agencies concerned. 

Every  year  the  Member  States  carry  out  at  least  four  joint  customs  surveillance 
operations,  often  with  the  support  of  the  OISIN,  and,  from  2003  on,  the  AGIS 
programs. In recent years these have targeted the smuggling of hard drugs, cigarettes, 
alcohol, and the movement of illicit cash, with the aim of combating the activities of 
criminal groups.  

These  operations  are  extremely  valuable,  maintain  pressure  on  criminal 
organisations,  produce  good  results  in  terms  of  seizures  and  increased  intelligence, 
while publicising the role of customs in protecting society and contributing to an area 

60 

OJ C 139, 13 June 2003. 

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32 

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of  freedom,  justice,  and  security.  They  also  improve  the  working  relationship 
between  customs  authorities,  not  only  by  virtue  of  their  working  together,  but  by 
further  enhancing  special  forms  of  cooperation,  risk  profiling,  threat  assessments, 
targeting,  and  information  exchange.  The  reports  of  the  operations  also  include 
recommendations for improvement. It is apparent, however, that during the planning 
of operations previous recommendations have not always been taken into account. 

In  recent  years,  particular  attention  has  been  given  to  the  involvement  of  the 
accession  and  candidate  countries  to  assist  with  their  future  accession  to  the  EU. 
Europol  has  been  involved  in  several  operations  by  providing  premises  and 
equipment for meetings and operational control centres as well as assistance with the 
analysis  of  results.  In  addition,  the  Commission  (OLAF)  has  provided  valuable 
technical  support  to  the  operations  via  the  AFIS  (Anti  Fraud  Information  System) 
infrastructure to ensure the confidential exchange of information, including physical 
support  to  the  operational  co-ordination  unit  (OCU).  The  recent  development  of  a 
virtual  OCU  application  by  the  Commission  will  further  assist  these  operations  by 
reducing  costs  and  ensuring  participation  in  the  activities  of  the  OCU  by  all 
participating  countries  without  the  need  for  a  physical  presence.  Europol's 
participation  has  proved  useful  and  should  be  further  developed  in  the  future, 
particularly  in  relation  to  crime  analysis.  Europol's  assistance  in  the  planning  and 
preparation of operations is also another area to be developed, since it could provide 
for better targeting and ensure that current trends and threats are taken into account. 

Since  entry  into  force  of  the  TEU,  Member  States'  customs  administrations  have 
continued to take measures to improve co-operation between themselves. They have 
established a network of operational contact points to develop further the exchange 
of  information  and  mutual  assistance.  This  co-operation  will  be  further  improved 
once the CIS and Naples II Conventions have been ratified and are fully applied in 
all  Member  States.  The  joint  operations  have  continued  to  provide  good  results, 
although  there  is  a  need  to  ensure  that  previous  recommendations  are  taken  into 
account.  It  is  desirable  that  other  law-enforcement  agencies  and  Europol  become 
fully involved in future operations with the aim of promoting closer co-operation.  

In July 2003 the Commission submitted to the European Parliament and the Council 
a  Communication  on  the  role  of  customs  in  the  management  of  external  borders61. 
This  Communication  covers  both  first  and  third-pillar  customs  co-operation.  It 
suggests  rationalisation  of  the  work  involved  in  checks  at  external  borders  by 
focusing  on  priority  checks,  establishing  a  common  approach  to  risk  management, 
promoting  cooperation  and  rapid  exchange  of  information  between  all  services 
responsible for security, or possible action in relation to the availability of equipment 
and  the  need  for  equivalent  levels  of  control  along  the  EU’s  external  border.  The 
ECOFIN  Council  of  4  November  2003  called  on  the  Member  States  and  the 
Commission  to  work  towards  an  integrated  management  of  the  external  borders  to 
assure  a  coordinated  approach  between  the  services  responsible  for  the  control  of 
persons and those responsible for the control of goods.  

61 

"Communication  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  role  of 
customs in the integrated management of external borders." COM(2003) 452 final of 24 July 2003. 

EN 

33 

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Within  the  Council,  the  CCWP  has  developed  a  multi-presidency  program  (18 
months) for customs co-operation in the third pillar. In relation to this program, on 2 
October  2003  the  Council  adopted  a  Resolution  calling  for  a  strategy  regarding 
customs  co-operation62.  In  it,  the  Council  recognises  that  an  integrated  approach 
towards  combating  crime,  including  a  contribution  to  the  fight  against  terrorism, 
inside  an  area  of  freedom,  security  and  justice  should  include,  besides  customs 
cooperation, close and efficient multilateral cooperation between customs and other 
law enforcement authorities as well as other European bodies and Institutions such as 
Europol, Eurojust and the Commission (OLAF). 

The  strategy  and  related  action  plan  were  agreed  by  the  CCWP  in  December  2003 
and  implementation  will  commence  during  the  Irish  Presidency  of  the  Council. 
These  instruments  provide  the  framework  for  enhanced  co-operation  between 
customs  authorities  for  the  next  few  years.  The  strategy  includes  a  number  of 
measures  suggested  by  the  Commission  to  further  enhance  the  effectiveness  of  EU 
customs  co-operation  for  example  by  creating  a  permanent  Operational  Co-
ordination  Unit  (OCU)  sharing  liaison  officers,  establishing  EU-wide  threat 
assessments and common risk profiles, common training, and training together with 
police where relevant, and possible action in relation to the availability of equipment 
and the need for an equivalent level of control at the EU external border It remains 
essential  that  all  Member  States  immediately  and  fully  ratify  the  Naples  II 
Convention. 

It  is  important  that  in  the  above  areas  close  links  are  maintained  with  the  relevant 
work undertaken in first pillar customs co-operation. 

2.3. 

The OISIN and AGIS programs as instruments to promote police and customs 
co-operation in the EU. 

On  20  December  1996,  the  Council  adopted  a Joint  Action  establishing  a  common 
program  for  the  exchange  and  training  of,  and  co-operation  between  law-
enforcement authorities (the OISIN Programme63). A second phase of the program, 
OISIN II, was established for the period 2001 to 2002 by the Council Decision of 28 
June 200164. 

The OISIN II program was replaced, along with the other programs managed by the 
Commission  under  Title  VI65,  by  the  AGIS  program,  established  by  the  Council 
Decision  of  22  July  200266  with  the  aim  of  promoting  police  and  judicial  co-
operation  in  criminal  matters  and  to  support  the  efforts  of  practitioners  to  develop 
European policy in this area. In the period between 1999 and 2002, the Commission 
supported 192 projects in the areas of police and customs co-operation through the 
OISIN and OISIN II programs67. 

62 
63 
64 
65 
66 
67 

OJ C 247, 15 October 2003. 
97/12/JHA. OJ L 007 of 10 January 1997 
2001/513/JHA OJ L 186 of 07 July 2001. 
Grotius II Criminal, Falcone, Hippokrates and Stop II. 
2002/630/JHA, OJ L 203 of 01 August 2002. 
See report of the OISIN II program 2001 to the European Parliament and the Council, SEC(2003) 316 
of 14 March 2003.  

EN 

34 

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Examples of successful projects are operations Viking and TRACK, which targeted, 
respectively, shipments of drugs and vehicle theft, as well as several projects aimed 
at  establishing  common  quality  standards  for  crime  scene  management  for  forensic 
technicians.  The  OISIN  programs  have  proved  a  valuable  instrument  in  promoting 
concrete police and customs co-operation in the EU and also with the accession and 
candidate  countries.  For  every  Euro  invested,  the  programs  generated,  on  average, 
almost 2 Euros in terms of co-operation among the law-enforcement services of the 
Member States and accession and candidate countries. 

As to the AGIS program, during the first call for proposals launched in early 2003, 
216  proposals  were  received,  of  which  99  were  police  and  customs  co-operation 
projects. In total, the Commission proposed to co-finance 148 projects this year, of 
which 77 are police and customs co-operation projects. 

It  is  essential  that  projects  co-financed  by  AGIS  contribute  to  solving  objective 
problems  in  priority  areas  of  EU  police  and  customs  co-operation.  Member  States 
and  the  Commission  should  work  together  more  closely  to  achieve  greater 
effectiveness of AGIS funding in this field. The Commission will therefore propose 
that from 2004 on, the AGIS work program focuses, as regards co-operation between 
police  and  customs  services,  on  the  priorities  identified  in  this  Communication. 
Greater coordination at the level of the Member States would be desirable in order to 
make  project  proposals  by  the  police  and  customs  services  more  focused  on  the 
priorities reflected in the AGIS work program. The Commission will also examine to 
what extent it is possible to further simplify the application procedures, as well as the 
speeding up of payments. 

Finally, the Commission will draw up a catalogue of the reports of the projects co-
financed by the OISIN and OISIN II programs through the years. This will enable a 
clearer view of the areas in which police co-operation is more or less advanced, as 
well as areas for future co-operation. 

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35 

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II 

1. 

PROPOSALS FOR IMPROVEMENTS 

FACTORS AFFECTING POLICE AND CUSTOMS CO-OPERATION 

1.1. 

Nature of police work 

The  enforcement  of  the  law  and  the  maintenance  of  public  order  and  security  by 
police go to the heart of what constitutes a sovereign state, namely the monopoly on 
the use of force, such as the right to arrest, interrogate and detain persons, and use 
firearms. From a national perspective, it is therefore understandable that countries are 
reluctant  to  participate  in  international  arrangements  which  encroach  on  national 
sovereignty. Such reluctance on the part of national authorities is present in particular 
with relation to arrangements enabling the police of other countries or representatives 
of  an  international  body  to  perform  police  functions  on  their  territory,  even  if, 
objectively, their presence is necessary for a more effective fight against crime. 

In  addition  to  those  mentioned  above,  three  other  factors  hindering  international 
police  co-operation  can  be  identified:  a  natural  reluctance  to  share  information,  the 
co-existence  in  Member  States  of  different  police  services  and  the  fact  that  further 
development of police co-operation is closely linked to the improvement of judicial 
co-operation in criminal matters. 

Gathering  and  processing  information  is  essential  in  police  work,  in  particular  to 
prevent,  detect  and  investigate  crime.  The  success  of  investigations  and  the 
subsequent prosecution of crimes depend on the quality of the information gathered, 
on its analysis, and especially on protecting it from leakage to unauthorised persons 
or organisations. This explains a natural reluctance to share information, in particular 
with services or persons with whom no relation of mutual trust and confidence exists.  

Such  reluctance  is  not  only  evident  in  international  contacts,  but  also  between 
different police forces within countries (and sometimes even within one same force). 
This  is  why  informal  contacts  and  liaison  officers  are  still  being  used  for 
international exchanges. Mutual trust and confidence will gradually grow over time 
as  a  result  of  continuing  and  deepening  co-operation  within  the  formal  bodies 
established  by  the  Union,  such  as  Council  working  groups,  Europol,  or  the  Task 
Force of Police Chiefs. This natural process is very slow in developing, however. It 
is therefore necessary to find ways to achieve progress more rapidly. 

Effective  ways  to  build  up  a  culture  of  trust  and  co-operation  are  the  training 
activities  of  CEPOL  and  the  Europol  awareness  program,  which  should  be  stepped 
up.  The  extension  of  cross-border  co-operation  structures  to  all  internal  border 
regions in the Union should greatly contribute to building up mutual confidence and 
trust. 

International  co-operation  is  further  complicated  by  the  co-existence  in  many 
countries  of  different  police  bodies,  e.g.  civil-status  police,  military-status  police, 
national, regional, local police or a fully regionalised police. From an organisational 
perspective,  it  is  understandable  that  the  co-existence  of  several  separate  police 
corporations complicates co-operation, including the sharing of information. Member 

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States  have  therefore  usually  designated  one  service  which  is  competent  for  all 
international  contacts.  It  is  essential  that  each  Member  State  organizes  its  internal 
coordination in such a manner that all relevant services will be able to participate in 
international co-operation. 

To  improve  the  international  exchange  of  information  it  is  necessary  for  Member 
States to have certain structures in place both within the country and at international 
level. Within the country an effective electronic information exchange system should 
exist  to  enable  the  rapid  and  secure  exchange  of  information  between  all  relevant 
services. It should include a criminal analysis capacity at national level to which all 
services can contribute and from which they receive results.  

Concerning  the  international  exchange  of  information,  it  is  essential  that  central 
national contact points be designated (CNCP) in all Member States. This was already 
recommended in the Action Plan to Combat Organised Crime of 1997 68 and stressed 
again  in  the  final  report  on  the  second  round  of  mutual  evaluations69,  which  under 
point 5.4.1 concluded that "(i)nternational co-operation was still not optimised, as not 
all  Member  States  had  established  a  central  contact  point.  Particularly  at  the 
beginning of an investigation, the multitude of law-enforcement agencies throughout 
the Union can render it into a haphazard task to identify the appropriate co-operation 
partner."  The  CNCPs  should  bring  together,  ideally  in  one  office,  the  Europol 
National  Units,  the  Sirene  offices,  customs,  the  Interpol  NCBs  and  representatives 
from  the  judicial  authorities.  Those  Member  States  which  have  established  such 
contact  points  are  witnessing  clear  improvements  in  communication  between  the 
services concerned and in the exchange of information with other countries.  

The third factor relates to international police co-operation in concrete investigations. 
Most  investigative  techniques  used  by  the  police,  e.g.  surveillance,  interception, 
controlled  deliveries,  covert  operations,  etc.,  require  the  prior  authorisation  of  the 
judicial  authorities  in  accordance  with  national  legislation  regarding  criminal 
procedures.  The  Convention  on  Mutual  Legal  Assistance  in  Criminal  Matters  of 
2000  aims  at  simplifying  the  general  judicial  co-operation  procedures,  and 
facilitating co-operation concerning special investigative techniques.  

The  Convention  has  thus  far  been  ratified  by  only  three  Member  States.  This 
situation  is  extremely  worrisome,  since  it  prevents  the  Union  from  using  this 
potentially  important  instrument.  Moreover,  there  are  those  who  feel  that  the 
provisions of the Convention on a number of investigative techniques will probably 
not result in real progress compared with currently existing co-operation, since their 
application is usually left to national legislation. The Commission therefore considers 
it necessary to examine to what extent it might be necessary to agree on a text which 
would bring substantial progress in judicial co-operation regarding these techniques. 

1.2. 

Lack of strategic approach  

One of the main problems in police and customs co-operation in the EU has been an 
apparent lack of strategic approach. The Commission Scoreboard only keeps track of 

68 
69 

Council Decision of 28 April 1997,OJ C 251/01. 
Council document 9615/1/03 REV 1 LIMITE CRIMORG 43 of 30 June 2003. 

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the development of those measures which have been agreed upon. But the fact that 
the right of initiative remains with the Member States means that, in practice, every 
Council Presidency defines a set of priorities according to its own priorities. The fact 
that  unanimity  is  still  the  rule  in  decision  making  in  this  area  slows  progress  even 
more. 

The  Convention  on  the  future  of  Europe  has  proposed  improved  decision-making 
mechanisms, as well as amendments with regard to the right of initiative. These are 
considered  below  (see  point  1.4).  But  even  if  the  Intergovernmental  Conference 
(IGC) in the end agrees on these new rules, it will take some years until the ICG's 
decisions have been ratified by all Member States. It is therefore essential that within 
the  existing  decision-making  procedures,  working  methods  are  agreed  to  enable 
concrete  and  substantial  progress  between  now  and  the  end  of  the  ratification 
process.  

One major improvement would be to define a number of concrete priorities for each 
year, on the basis of a multi-annual work-program. The Council Decision of 22 July 
2002  requires  the  General  Affairs  and  External  Relations  Council  (GARC)  to 
recommend  to  the  European  Council  for  adoption  a  multi-annual  strategic  program 
for the three years to come.70 The programs should be based on a joint proposal by 
the  Council  Presidencies  concerned,  in  consultation  with  the  Commission.  In  the 
light of the multi-annual strategic program the two Council Presidencies due to hold 
office in the following year should jointly submit a draft annual operational program 
of  Council  activities  during  that  year.  The  draft  program  is  to  be  submitted  in 
December every year to the GARC. 

As  is  currently  the  case,  the  Scoreboard  will  remain  the  instrument  to  monitor  the 
progress being realised in the area of police and customs cooperation. The need for 
an  objective  priority  setting  and  work-planning  as  regards  police  co-operation  has 
been  taken  up  by  a  number  of  Member  States  recently.  For  instance  Belgium, 
Luxembourg and the Netherlands have drawn up a proposal for concrete procedures 
for  objective  priority  setting  and  the  definition  of  annual  and  multi-annual  work 
programs.  Another  aim  of  the  paper  is  to  ensure  effective  operational  police  co-
operation in the Union and to integrate such co-operation into the formal police co-
operation. The subject of operational co-operation is discussed in section 2.1.3 of this 
Communication. 

1.3. 

Proliferation of non-binding instruments 

Another  problem  in  the  third  pillar  is  the  proliferation  of  non-binding  instruments 
approved or taken note of by the Council, such as recommendations or conclusions. 
There is limited added value in this type of instruments, which take up valuable time 
and resources and tend to lead to confusion, since different interpretations arise as to 
the obligation to implement them. In the view of the Commission, if Member States 
consider a given subject important enough to be discussed at the level of the Council, 
then discussions should result in measures which are effectively implemented by all. 

70 

OJ L 230 of 28 August 2002. 

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1.4. 

Decision-making procedures in the Third Pillar 

A  main  explanation  for  the  slow  progress  in  police  and  customs  co-operation  over 
the  past  few  years  can  be  found  in  the  current  decision-making  rules  in  the  Union 
regarding  the  subjects  mentioned  in  Title  VI  TEU.  Article  34(2)  stipulates  that  the 
Council  can  only  decide  by  unanimity  and  that  the  right  of  legislative  initiative  is 
shared between all fifteen Member States and the Commission. 

This  situation  leads,  at  best,  to  long  and  slow  decision  making  at  all  levels  in  the 
Council structures and bodies such as Europol, CEPOL and the Task Force of Police 
Chiefs. At worst, it leads to no decisions being taken at all, or to instruments being 
adopted  which  are  not 
legally  binding,  such  as  Council  Conclusions  or 
Recommendations.  Council  Presidencies  want  to  show  that  their  tenure  has  led  to 
visible progress in co-operation in third-pillar matters.  

The possibility offered by Article 34(2)(c) to adopt, by qualified majority, measures 
necessary to implement Council Decisions that promote co-operation has never been 
used. In view of improving co-operation it is important that better use is made of the 
possibilities offered by this article. 

The  question  of  voting  procedures  and  the  right  of  initiative  regarding  subjects 
currently covered by  Title VI  was  discussed by the Convention. It is proposed that 
the right of initiative lies with the Commission and a group representing at least 25% 
of  all  Member  States.  The  draft  Constitutional  Treaty  offers  a  considerable 
improvement in the decision-making procedure for police and customs co-operation. 
Whilst  decisions  on  operational  cooperation  and  decisions  on  operation  by  one 
Member  State  in  the  territory  of  another  would  remain  subject  to  unanimity, 
decisions  relating  to  the  framework  and mechanisms for cooperation (e.g. Europol) 
would be taken by qualified majority and co-decision. The Commission believes that 
the  balance  achieved  in  the  draft  Constitutional  Treaty  reflects  well  the  respective 
competences of the Member States and the Union in this area.  

1.5. 

Insufficient implementation of legal instruments adopted by the Council 

Progress in the area of police and customs co-operation is affected negatively by the 
slow  and  insufficient  implementation  of  legal  instruments  adopted  by  the  Council. 
Examples  of  this  problem  are  the  Naples  II  Convention  of  1997  and  the  Protocol 
extending  Europol’s  competence  to  Money  Laundering  in  general  of  September 
2000. Neither has been ratified by all Member States.  

In  view  of  the  general  state  of  affairs  regarding  implementation,  the  Laeken 
European  Council  of December 2001  reaffirmed the need to transpose quickly into 
national law decisions taken by the Union. It also stressed the importance of ratifying 
as  soon  as  possible  the  Conventions  signed  since  the  entry  into  force  of  the 
Maastricht  Treaty.  This  call,  however,  does  not  seem  to  have  had  much  concrete 
effect on the justice and home affairs area.  

Although  there  exist  different  mechanisms  to  systematically  examine  the  state  of 
implementation by the Member States of the legally binding instruments adopted by 
the  Council,  such  as  Framework  Decisions,  there  is  no  standard  mechanism  to 
enforce  their  implementation.  Through  its  abolition  of  the  pillar  structure,  the  draft 

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Constitutional  Treaty  implies  that,  in  future,  the  usual  rules  for  infringement 
procedures would apply to legal instruments regarding matters which are currently in 
the third-pillar area. In the meantime, the Commission examines implementation by 
the Member States on a systematic basis.  

1.6. 

Lack of empirical research on police and customs co-operation 

The development of effective public policy in a given area is facilitated greatly if it 
can be based on an objective analysis of problems and possible solutions, as well as 
on statistics which enable comparisons between countries. This is even more true for 
complex  and  sensitive  policy  areas  such  as  police  and  customs  co-operation. 
Independent  scientific  experts  have  an  important  role  to  play  in  providing  such 
analysis. 

Current scientific research in the EU regarding police and customs co-operation has a 
number of shortcomings. There is not much research done as such on this subject and 
the  research  which  does  exist  is  often  limited  to  a  normative  analysis  of  treaties, 
institutions,  competencies  and  procedures,  but  does  not  sufficiently  cover  the  real 
functioning of existing co-operation. Conversely, research may often focus on certain 
aspects  of  police  co-operation  and  not  offer  adequate  insight  into  the  organisation 
and  functioning  of  the  larger  whole.  Most  research  does  not  cover  the  concrete 
problems confronting the Union in the area of cross-border crime.  

Furthermore,  research  usually  remains  limited  to  an  analysis  of  the  methods  of  co-
operation and does not pay adequate attention to its necessary incorporation into the 
police and judicial systems of the Member States. Little research has been done into 
the  investments  necessary  for  such  co-operation  and  the  possible  adaptation  of  the 
national  systems  to  it.  Finally,  there  is  a  lack  of  statistical  data  on  the  main  crime 
phenomena  in  the  Member  States.  Such  data  is  necessary  to  identify  differences  in 
the occurrence and seriousness of these phenomena. Their availability would enable 
the development of effective policy measures at EU level. 

A positive development regarding research on justice and home affairs matters in the 
Union  is  the  availability,  in  the  context  of  the  Sixth  Framework  Program  for 
Research  and  Technological  Development71,  of  funds  for  research  projects  dealing, 
inter alia, with the fight against crime. A new call for proposals for project bids under 
this program will be published in October 2004. 

The  Commission  considers  it  essential  that  the  knowledge  base  for  EU  police  and 
customs co-operation be improved considerably over the next few years. A first step 
would be to obtain a clear picture of the demand for research on the part of the EU 
law-enforcement  community  on  the  one  hand  and  of  the  potential  offer  from  the 
research community on the other. The Commission considers that CEPOL is ideally 
situated to carry out such a task at EU level.  

Adequate  funding  needs  to  be  made  available  for  research.  This  is  a  shared 
responsibility of the Member States and the Union. The Commission proposes to set 
aside funds in the context of the AGIS program for research on the priority subjects 

71 

Council Decision of 30 September 2002 (2002/834/EC), OJ L294/1 of 29 October 2003. 

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identified in this Communication. At the same time, it will continue to give its input 
relating  to  justice  and  home  affairs  matters  in  the  context  of  the  Sixth  Framework 
Program. As regards the longer term, it will begin examining the possible need for a 
separate research programme in the field of justice and home affairs. 

1.7. 

The nature of co-operation between police and customs 

Article  29  of  the  TEU  provides  for  closer  co-operation  between  police  forces, 
customs authorities, and other competent authorities in the Member States. 

As regards co-operation between customs and police this appears to work in different 
ways in Member  States  at the international level; however there is evidence that at 
national  level  such  co-operation  does  not  exist  in  all  Member  States  This  is 
particularly evident in the area of drugs. Some Member States have initiated closer 
working  arrangements  between  police  and  customs  services  regarding  the  fight 
against drugs, as is required by the Council Resolution of 29 November 199672. In it; 
the  Council  urged  Member  States  to  establish  formal  agreements  or  other 
arrangements at national level which take account of the broad guidelines laid down. 
These provisions include the precise delineation of, and respect for, the competencies 
of  each  of  the  two  services,  and  the  exchange  and  sharing  of  relevant  intelligence 
information. 

Other  areas  where  co-operation  between  customs  and  other  law-enforcement 
agencies  is  being  enhanced  are  the  fight  against  terrorism  and  the  security  of  the 
international  supply  chain.  This  stepped-up  co-operation  follows  in  the  wake  of 
recent  terrorist  activities  throughout  the  world.  It  will  hopefully  assist  in  the 
identification of known or suspected terrorists and provide increased security for the 
movement of goods.  

In certain Member States, co-operation has been developed closely with respect for 
the specific expertise of the actors, for example co-operation and mutual assistance at 
border  areas,  multi-agency  enforcement  activity,  common law-enforcement actions, 
improved enforcement capability, joint intelligence cells for exchanging information 
and intelligence to the benefit of all participating bodies. 

Having  taken  account  of  the  current  situation  and  having  consulted  the  Member 
States,  the  Commission  is  of  the  opinion  that  more  effective  co-ordination  and 
communication  between  the  respective  police  and  customs  services  should  be 
established in the Member States and within the working structures of the Council. 

1.8. 

Third-pillar databases and communication systems 

In the past few years a number of databases and communication systems have been 
or  are  being  developed  in  the  Union  for  use  by  law-enforcement  services  in  the 
Member  States.  All  of  these  are  mentioned  in  the  relevant  sections  of  this 
Communication.  The  main  examples  are  the  Europol  Information  System,  the 
Schengen Information System, the Customs Information System (both first and third 
pillar),  the  Customs  Files  Identification  Database  and  the  Europol  virtual  private 

72 

OJ C 375, 12 December 1996. 

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network. There is a potential risk duplication between at least some of these systems 
and there could also be questions as to the required interoperability.  

In  order  to  enable  the  Council  to  have  a  clearer  view  of  this  highly  technical  and 
complex  issue  and  to  be  able  to  take  the  necessary  decisions,  early  in  2002  the 
Commission submitted a room document to the Article 36 Committee, describing in 
summary  form  the  purpose  and  functioning  of  each  of  the  data  bases  and 
communication systems. This document became the basis of the work of the ad-hoc 
Group  which  the  Article  36  Committee  set  up  in  November  of  2002  to  study  the 
issue and come up with proposals.  

The  ad-hoc  group,  which  comprised  the  Presidency,  the  Commission,  EUROPOL, 
EUROJUST,  the  Joint  Supervisory  Authority  for  data  protection  and  the  Council 
General Secretariat, concluded that the possibility for overlap of data was limited and 
had  so  far  not  presented  problems73.  They  presented  three  possible  options  for  the 
long-term future of law-enforcement systems: 

•  To  merge  the  existing  systems  in  a  single  “Union  Information  System”,  which 
would evolve to encompass future system needs in all relevant business areas; 

•  to keep the systems independent and allow creation of new systems on the basis of 

future business needs; 

•  to  investigate  and  implement  the  harmonisation  of  the  data  formats  and  their 
respective  access  rules  between  the  various  systems,  while  allowing  current 
systems  to  evolve  to  provide  interoperability74between  them  (middle-ground 
solution). 

They recommended that, in order to establish the exact technical, financial and legal 
implications  of  the  three  options,  a  further  detailed  study  should  be  undertaken.  It 
was also suggested that in the meantime, regular meetings of the representatives of 
the organisations responsible for the aforementioned information systems should take 
place, in order to identify problems and to exchange best practices. 

The  Article  36  Committee  endorsed  the  report  and  agreed  that  further  work  was 
necessary. The Commission considers that the most viable option in the short term 
would be the middle-ground solution. In the longer term the creation of a single EU 
system should be considered. 

The Commission considers that this matter should be taken forward urgently, so as to 
ensure that final recommendations and decisions on the long-term future of EU law-
enforcement information systems can be made as quickly as possible. 

73 
74 

8857/03 JAI 118 of 06 May 2003. 
Identification of data categories (business objects) and standardisation of data format to be exchanged; 
harmonisation  on  the  security  rules  applicable  to  data  access  and  manipulation;  development  of 
standard interfaces allowing the interconnection of systems without human intervention. 

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2. 

CONCLUSIONS AND RECOMMENDATIONS  

On the basis of the obligations mentioned in the TEU, the Schengen Convention, the 
Vienna  Action  Plan  and  the  Tampere  European  Council,  the  Union  has  taken  a 
considerable number of measures to improve police and customs co-operation since 
the entry into force of the TEU in May 1999. These have contributed to making the 
Union more effective in the fight against crime and thereby contributed to achieving 
the objective stated in article 29 TEU. 

Formally speaking, all measures called for by the Tampere Conclusions in the field 
of police co-operation have been implemented (i.e. the establishment of a Task Force 
of EU Police Chiefs and a European Police College). As regards the Vienna Action 
Plan,  a  number  of  important  measures  have  still  not  been  implemented,  even  some 
which should have been within two years after the entry into force of the TEU. Also, 
a number of provisions of the TEU, including the Schengen Protocol, still have to be 
implemented (e.g. Articles 30.1.d and 32 TEU; Articles 44 and 45 of Schengen).  

The Commission therefore considers that the measures described below for the main 
policy areas are essential to concretely improve and speed up police and customs co-
operation  in  the  EU.  All  of  them  could  be  implemented  within  the  existing  Treaty 
provisions,  with  the  exception  of  the  possible  attribution  of  certain  investigative 
competences to Europol and a general reshaping of this body, where the Convention 
has proposed a series of amendments which the Commission supports. The recast of 
the Europol Convention is an option to be carefully assessed. 

These  measures  concern  both  content  of  policies  and  improvement  in  working 
methods. As regards the latter category, as an overarching measure, multi-annual and 
annual  work programs should be developed for the field of  police and customs  co-
operation  by  the  Council  and  the  Commission  working  together.  Such  programs 
should  contain,  inter  alia,  the  priority  measures  identified  in  this  Communication. 
Where  appropriate,  they  should  be  coordinated  with  first-pillar  initiatives.  The 
Council should adopt legally binding instruments pursuant article 34 (2) TEU instead 
of  non-binding  measures  which  bring  little  added  value.  The  Commission  will 
prepare  a  first  draft  of  this  work  program.  Member  States  should  improve  the 
implementation of both binding and non-binding instruments. A general monitoring 
system should be developed to monitor and report on implementation. 

As far as concrete measures in policy areas are concerned, there are two great axes 
around which measures to improve police and customs co-operation in the EU can be 
grouped: the first regards the flow of information, and the second actual cross-border 
co-operation.  

2.1. 

Improving the flow of information 

A necessary condition for effective co-operation between Member States is effective 
cooperation  between  the  various  police  and  other  law-enforcement  services  within 
Member  States.  A  good  instrument  to  achieve  this  is  the  designation  of  central 
national  contact  points  (CNCP)  for  the  international  exchange  of  information 
(already recommended in the Action Plan to Combat Organised Crime of 1997). The 
CNCPs should bring together, ideally in one office, the Europol National Units, the 
Sirene  offices,  customs,  the  Interpol  NCBs  and  representatives  from  the  judicial 

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authorities. Finally, mechanisms should be put in place for the regular assessment of 
whether  Member  States  are  implementing  the  instruments  satisfactorily,  as  was 
established already in the Joint Action of 05 December 199775.  

The  interoperability  of  the  different  databases  and  communication  systems,  both 
police  and  customs,  used  by  Member  States'  law  enforcement  services  should  be 
ensured.  At  the  EU  institutional  level,  mechanisms  should  be  found  to  promote 
collaboration  and  data  exchange  between  OLAF  and  Europol.  The  arrangement  to 
cover  the  exchange  of  personal  data  between  the  two  should  be  concluded.  The 
Commission  intends  to  adopt  a  Communication  on  law-enforcement  information 
policy in the near future, with the aim of contributing to develop intelligence-led law 
enforcement at the EU level. 

In order to enhance the effectiveness of Europol, the Commission does not consider 
it necessary for the Council to adopt new legal instruments before the entry into force 
of  the  Constitutional  Treaty.  New  Member  States  need  to  ratify  the  Europol 
Convention  and  the  amending  instruments  at  the  same  time.  What  is  required  is  a 
period of consolidation, during which all decisions adopted by the Council in recent 
years regarding Europol should be ratified and implemented. At the same time, the 
awareness  program  launched  recently  to  improve  mutual  understanding  between 
Europol and Member States' law-enforcement services should be implemented76.  

It is essential that a simplified version of the Europol Information System becomes 
available as soon as possible. It is also essential that the recommendations from the 
HENU  report  of  the  summer  of  2002  on  how  to  improve  the  transmission  of 
information by Member States be implemented. In this context it is important that the 
conclusions from the recently begun third round of evaluations be implemented once 
they are available. 

A discussion about the feasibility of the database of pending investigations called for 
in  the  Vienna  Action  Plan  should  be  conducted.  This  issue  should  be  brought 
forward  in  the  Council.  .  Furthermore,  concrete  steps  should  be  taken  to  improve 
statistics  on  cross-border  crime  and  to  allow  Europol  access  to  the  Customs 
Information System (CIS). The Commission considers it necessary that Europol has 
direct access to both the CIS and FIDE, since both legal instruments provide for it. 

Once Europol has achieved its consolidation and assuming that a new Constitutional 
Treaty will provide for the replacement of the Convention with a European law, one 
issue to be addressed will be the possible attribution of certain investigative powers 
to  it.  An  appropriate  policy  area  to  start  with  would  be  the  fight  against 
counterfeiting  of  the  Euro,  since  this  is  a  form  of  organized  crime  which  attempts 
against the interests of the Union as a whole. Furthermore, Europol, together with the 
European  Central  Bank  and  the  Commission,  has  been  active  in  the  field  since  the 
introduction  of  the  Euro  and  therefore  has  considerable  expertise.  The  discussion 
about such an important development would, of course, have to be accompanied by 

75 

76 

Joint Action creating a mechanism for evaluating the application and implementation at national level 
of undertakings in the fight against organized crime. 97/827/JHA, OJ L 344 of 15 December 1997. 
"Corporate Europol awareness strategy and program". AGIS project JAI/2003/188.  

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deliberations  about  judicial  and  parliamentary  control  over  Europol.  This  is  an 
important debate for the next few years. 

2.2. 

Improving cross-border co-operation. 

The  Task  Force  of  EU  Police  Chiefs  is  best  placed  to  coordinate  measures  to 
improve actual cross-border co-operation on the ground. As has been pointed out in 
chapter 2.1.3 of the first part of this Communication, the Task Force has encountered 
problems  stemming  from  the  fact  that  it  is  not  fully  integrated  in  the  institutional 
structures  of  the  EU.  To  ensure  its  effectiveness,  there  is  no  alternative  to 
incorporating  the  Task  Force  into  the  Council  structures.  Clearly  the  body  would 
continue to focus on operational issues and would not be involved in the preparation 
of legislation, which would still be a matter for CATS. 

The body would meet at least once per Presidency and be consulted on operational 
police co-operation subjects and other selected issues. This would be in line with the 
possible  establishment  of  a  Committee  to  promote  operational  co-operation  on 
internal  security  in  the  Union,  as  proposed  in  the  final  draft  Constitutional  treaty 
prepared by the European Convention. 

Optimal use should be made of existing permanent bodies such as Europol to assist 
the police chiefs in the examination of proposals and initiatives for operations and to 
implement,  monitor  and  evaluate  them.  The  Commission  therefore  proposes  that 
Europol  be  tasked  with  submitting,  on  the  basis  of  regular  threat  assessments, 
proposals  for  joint  operations  to  the  police  chiefs  meeting.  Europol  should  also  be 
responsible  for  their  co-ordination,  monitoring  and  evaluation,  while  closely 
associating  Member  States’  police  officers  responsible  for  operations.  Europol 
should also provide the operational support to the PCWG. 

The  Task  Force  of  EU  Police  Chiefs  should  be  involved  in  the  organisation  of  EU 
police  missions  abroad,  specifically  in  the  planning,  allocation  of  resources,  and 
logistical aspects of them.  

Especially  in  more  recent  years,  several  Member  States  have,  often  on  the  basis  of 
the  Schengen  Convention,  expanded  cross-border  co-operation  considerably,  with 
significant  success  on  reducing  crime.  There  appear  to  remain,  however,  a 
considerable  number  of  Member  States  which  are  not  yet  so  advanced.  The 
Commission  sees  the  establishment  of  Joint  Police  Stations  or  Police  and  Customs 
Co-operation  Centers  in  all  internal  border  regions  of  the  Union,  including  the 
candidate countries, as an effective instrument to simultaneously reach a number of 
important objectives: reduction of crime; increase visibility vis à vis the public; build 
up  mutual  confidence  and  trust  between  the  various  services  of  the  Member  States 
concerned; and finally the building of effective co-operation between police, customs 
and judicial authorities where these three services cooperate in such centers.  

The  Commission  therefore  proposes  that  those  Member  States  that  have  been 
successful in such cross-border cooperation report on their experience to the relevant 
working  group  of  the  Council.  On  the  basis  of  these  reports,  a  catalogue  of  best 
practices could be drawn up for use by interested Member States. If necessary, AGIS 
funding could be considered to prepare the catalogue, which in due course could also 

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serve as the basis for a legally binding instrument aiming at the institutionalisation of 
such co-operation in the EU.  

With  regard  to  the  extension  of  cross-border  pursuit  (articles  40  and  41  Schengen 
Convention),  the  Commission  is  of  the  opinion  that  the  European  area  of  security 
requires that limitations to co-operation caused by the type of means of cross-border 
transport  should  be  removed.  It  therefore  recommends  to  continue  the  work  of  the 
expert group created under the Belgian Presidency in 2001, with the aim of making 
concrete recommendations to extend the possibility to pursue a criminal via air, rail 
(international  trains)  and  water.  Besides,  police  should  have  better  possibilities  to 
conduct  cross-border  pursuits,  not  only  for  more  types  of  crime,  but  also  have  the 
means  to  effectively  transfer  the  pursued  wrongdoers  to  the  competent  local 
authorities,  always  in  compliance  with  the  relevant  legal  instruments  regarding 
judicial  cooperation  in  criminal  matters.  Police  should  be  able  to  pursue  when  an 
individual ignores an order to stop and flees across the border. 

As to the Schengen Police co-operation Handbook, it is important that it be updated 
regularly,  which  at  present  is  not  the  case.  To  reduce  the  burden  of  translation  as 
much as possible, templates with a minimum of variable information should be used. 
The  Handbook  should  contain  up-to-date  contact  information  to  facilitate  cross-
border contacts. 

An  evaluation  of  the  extent  to  which  article  44  of  the  Schengen  Convention 
regarding direct communication links between the police and customs services of the 
Member States has been implemented should be undertaken as soon as possible. The 
links  to  be  established  should  not  be  limited  to  phone  and  fax,  but  also  encompass 
data and computer links.  

At  this  moment,  it  is  unclear  how  Member  States  implement  article  45  of  the 
Schengen Convention concerning registration forms for rented accommodation such 
as hotels and use the information in law-enforcement practice. Putting the discussion 
on  the  use  of  this  information  on  the  EU  agenda  is  necessary,  since  it  allows 
improvement of law enforcement on the basis of existing obligations and structures.  

As to article 46 of the Schengen Convention regarding information exchanges on the 
initiative  of  a  Member  State,  the  Commission  proposes  that  a  survey  of  Member 
States'  competent  authorities  be  carried  out,  to  determine  the  degree  to  which  this 
article is being implemented and police action has been taken based on information 
exchanged  according  to  it.  The  conclusions  of  such  a  survey  could  be  used  to 
standardize certain models of co-operation at internal borders. 

Regarding SIS and the future SIS II, a rapid introduction of the new functionalities, if 
possible in the current SIS, should be promoted. Moreover, in September of 2003 the 
Commission  submitted  a  proposal  to  give  Member  States'  vehicle  registration 
authorities  access  to  SIS,  in  order  to  prevent  stolen  vehicles  from  being  registered. 
Furthermore,  the  Commission  was  requested  by  the  Greek  Presidency  to  regularly 
update, together with the Member States, the Manual for SIS-SIRENE interacting. 

Concerning article 32 TEU which calls for the Council to decide on the conditions 
under which the law enforcement services of one Member States can operate on the 
territory  of  another,  the  Vienna  Action  plan  stresses  its  central  importance  for  EU 

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police  co-operation.  The  Convention  on  Mutual  Legal  Assistance  in  Criminal 
Matters (MLA) of 2000 and the Framework Decision on Joint Investigative Teams of 
2002  seem  to  partly  cover  this  subject.  The  Commission  welcomes  the  discussions 
begun  on  this  subject  in  the  relevant  Council  working  parties  and  encourages  their 
continuation to examine this issue in depth. This is especially necessary with a view 
to  the  discussions  on  improving  cross-border  cooperation  and  also  to  clarify  the 
conditions under which the police intervention units could operate on the territory of 
other Member States in case of crises.  

Finally,  joint  surveillance  operations  carried  out  within  the  framework  of  the 
Customs  Co-operation  Working  Group  (CCWG)  and  the  Police  Co-operation 
Working  Group  (PCWG)  should,  where  appropriate,  include  officers  from  all 
relevant  law-enforcement  agencies  involved.  Europol  would  seem  an  obvious  body 
to  provide  the  Operational  Co-ordination  Unit  (OCU)  when  third-pillar  matters  are 
involved.  

2.3. 

Creating a common culture, common instruments and methods.  

In  order  to  improve  cross-border  co-operation,  it  is  important  to  promote  measures 
that contribute to developing commonalities among the police and customs services 
of the Member States dealing with similar issues in the fight against crime. One of 
the major factors in overcoming the obstacles to more effective police co-operation 
in the EU is the creation of a culture of trust and co-operation among different law-
enforcement  agencies.  Police  training  plays  a  key  role  in  the  creation  of  such  a 
culture.  As  the  only  EU  body  dedicated  to this  task,  CEPOL  should  have  a  central 
place in the future strategy of police co-operation in the EU.  

In  order  for  CEPOL  to  fulfil  its  tasks  properly,  it  must  be  given  the  necessary 
resources  and  legal  framework:  it  should  have  legal  personality,  a  fully  functional 
permanent secretariat and be financed through the Community budget.  

Besides  the  actual  organization  of  common  courses  in  certain  priority  areas  and 
aimed at key players in the police forces of the Member States -- such as courses for 
so-called  "fast  streamers"  or  the  next  generation  of  high-ranking  police  officers  --, 
CEPOL  should  concentrate  on  the  development  of  common  curricula  for  police 
training, which would be applied in all Member States' police colleges, as well as on 
the development of common quality standards for both courses and trainers. CEPOL 
should  have  the  mandate  to  proof,  on  a  regular  basis,  whether  these  common 
curricula  and  standards  are  being  applied  by  the  police  colleges  of  the  Member 
States, and issue a CEPOL certification based on a peer-review system.  

In  the  view  of  the  Commission,  CEPOL  also  has  an  important  role  to  play  in  the 
training of senior officers working in the area of third-pillar customs cooperation. It 
therefore  welcomes  the  fact  that  CEPOL  already  offers  courses  open  to  customs 
officials and thus provides joint training for police and customs in selected areas. In 
the long term, the Commission invites CEPOL and the Member States to reflect on 
the  convenience  of  extending  CEPOL's  mandate  to  include  also  national  customs 
training  institutions,  with  a  view  to  improving  the  EU's  capacity  to  combat  cross-
border crime. 

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The  Commission  proposes  to  step  up  programs  of  exchanges  and  secondments  in 
order to foster a culture of trust and co-operation. CEPOL, which will start work in 
these two areas in 2004, should play a central role in this regard. The importance of 
language  training  in  the  framework  of  such  secondments  and  exchanges  cannot  be 
overestimated. The use of AGIS and other relevant Community programs in relation 
to  both  exchange  programs  and  language  training  for  police  and  other  law-
enforcement officers should be better explored. 

Scientific research plays an essential role in improving the basis for decision-making 
in  all  areas.  Only  limited  research  is  being  done  as  regards  police  and  customs 
cooperation. More funds should be made available, which is a joint responsibility for 
the Union and the Member States. The Commission will enable the AGIS program to 
allocate funds to studies on priority subjects identified in this Communication. It will 
also ensure a targeted use of the relevant parts of the 6th Framework Program. It is 
also important that a better view emerges of the priorities for research on police and 
customs cooperation. CEPOL has a potentially useful role to play here. 

The subject of police ethics has been part of CEPOL's curriculum from the beginning 
of  its  activities.  The  Commission  invites  the  Member  States  to  reflect  on  the 
relevance of working towards an EU Code of Police Ethics. This would have positive 
effects on  public  opinion and contribute to  improving  confidence between Member 
States' police services. 

Concerning  the  uniform  evaluation  of  the  investigation  techniques  referred  to  in 
Article  30  (1)  (d)  TEU,  this  has  not  yet  started  in  the  Union.  The  Commission 
proposes  that  Member  States  experts  begin  examining  this  question  within  the 
Council in the light of the proposed similar article in the draft Constitution text. To 
this  end  the  Commission  is  ready  to  organise  a  meeting  of  experts  and  to  possibly 
make funds available from the AGIS program. It is important that all Member States 
build up DNA data bases which are effective and efficient tools in solving crimes. A 
system should be developed to enable member States to check if DNA found on their 
territory matches that found in other Member States. 

The subject of forensic science has not been dealt with structurally in the Union thus 
far.  A  first  priority  would  seem  to  be  raising  the  quality  level  of  the  forensic 
laboratories  of  the  EU  Member  States  by  requiring  them  to  introduce  quality 
assurance  systems  based  on  a  generally  recognised  standard.  The  Commission  also 
invites  the  relevant  Council  working  parties  to  re-examine  the  question  of  the 
European Network of Forensic Science Institutes’ (ENFSI) role in EU co-operation 
in this area.  

2.4. 

Counter-terrorism 

The field of co-operation in counter-terrorism in the EU exemplifies better than any 
other  the  need  to  improve  co-operation  on  both  axes  set  out  above:  the  flow  of 
information  between  relevant  services  and  actual  cross-border  co-operation  on  the 
ground. Counter-terrorism encompasses all aspects of law-enforcement co-operation, 
from joint investigation teams to special forensic techniques to allow the traceability 
of explosives. 

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As  has  been  identified  in  the  Commission’s  contributions  to  both  the  European 
Council  meeting  on  19  March  2004  and  to  the  implementation  of  the  European 
Security  Strategy  as  regards  the  fight  against  terrorism,  the  first  step  towards 
improving  action  in  this  field  is  to  improve  co-ordination  between  all  the  services 
involved in the fight against terrorism within the Council structures. In a first stage 
all  delegations 
include 
representatives of both the police and the non-police intelligence services. The role 
of Europol in EU counter-terrorism policy should be strengthened by substituting the 
information system via the Europol Liaison Officers by a system of direct relations 
between Europol's counter-terrorism unit and the Member States, connecting Europol 
to the Bureaux de Liaison (BDL) network and incorporating Europol into the Club of 
Bern. 

the  Terrorism  Working  Group  (TWG)  should 

to 

In  a  later  stage,  it  would  be  necessary  to  bring  the  work  of  the  Counter-terrorism 
Group (CTG) of the Club of Bern closer to the TWG. Europol should be transformed 
into  a  true  center  of  counter-terrorism  intelligence,  including  the  creation  of  a 
common database on terrorism (persons, incidents, indications, operations, etc.). The 
Council  Recommendation  concerning  the  constitution  of  multinational  teams  to 
gather information about terrorists77 (intelligence joint teams) should be changed into 
a  legally  binding  instrument  which  allows  intelligence  services  (police  officers  or 
not) and Europol to work together. 

There  are  also  good  arguments  to  improve  the  coordination  of  counter-terrorism 
activities  inside  EU  institutions  and  to  reinforce  the  role  of  the  Terrorism  Working 
Group in preparing EU policy making. The working methods of the TWG should be 
improved  by  allowing  Europol  a  more  proactive  role.  The  activities  of  the  TWG 
should include all aspects of the fight against terrorism, in particular its financing and 
co-operation with third countries in the application of resolution 1371 of the Security 
Council  of  the  United  Nations  and  have  a  role  in  preparing  EU  counter-terrorism 
policy.  

In  the  aftermath  of  the  terrorist  attacks  in  Madrid  on  11  March  2004,  a  number  of 
measures  were  agreed  by  the  Council  with  the  aim  of  improving  counter-terrorism 
co-operation  in  the  EU.  Some  of  these  regard  aspects  of  actual  operational  co-
operation  between  law-enforcement  services,  such  as  improving  controls  and 
traceability  of  firearms  and  explosives,  the  possibilities  of  establishing  an  EU 
database  on  forensic  material,  facilitating  cross-border  hot  pursuit,  and  simplifying 
the  exchange  of  information  and  intelligence  between  law-enforcement  services  of 
the Member States. Other actions concern the ratification and/or implementation of 
relevant legal instruments, such as the Convention on Mutual Legal Assistance and 
its Protocol, and the three Protocols to the Europol Convention.  

The  two  documents  prepared  by  the  Commission  in  the  aftermath  of  11  March 
200478 and mentioned already in section 2.1.6.1 above identify a series of measures 
to  improve  the  EU’s  operational  capabilities  to  more  effectively  prevent  and  fight 
terrorism.  Among  these  measures,  it  is  important  to  underline  here  better  use  of 
existing  instruments,  such  as  Europol  and  Eurojust,  or  the  Framework  Decision  on 

77 
78 

Recommendation of JHA Council of 13 June 2002. 
SEC (2004) 348 of 18 March 2004 and SEC (2004) 332 of 19 March 2004. 

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Joint  Investigation  Teams,  as  well  as  a  strengthened  role  for  the  Task  Force  of  Eu 
Police Chiefs.  

2.5. 

Customs co-operation 

There  exists  a  well  established  co-operation  between  customs  in  the  third  pillar. 
However, there is scope to further develop and improve this co-operation to make it 
more effective along the following lines. 

As  regards  joint  customs  surveillance  operations  in  this  area,  all  recommendations 
should  be  recorded  and  taken  into  account  during  the  planning  process  for  future 
similar  operations,  to  avoid  problems  of  repetition,  which  currently  arise.  A  single 
response form should be developed, using a single language for replies, during joint 
customs  operations.  Such  a  form  would  ensure  that  information  is  received  in  one 
recognised  language  and  thus  overcome  the  difficulties  encountered  at  present. 
Europol  should  provide  support  in  such  operations,  notably  through  the  analysis  of 
data.  

There is also a need to establish a permanent Operational Co-ordination Unit (OCU) 
to provide logistical and technical support for joint customs operations. Such a unit is 
essential for  an  effective  implementation  of  future joint  customs operations in both 
the  third  and  first  pillars.  The  Commission  services  should  examine  the  most 
efficient way of providing this support. 

Customs administrations in the EU should more actively share liaison officers. This 
system  would  provide  for  greater  efficiency  and  savings  in  terms  of  financial 
resources. 

To complete the study being undertaken for general customs control equipment at the 
external borders79, it may be also useful to make a study of the equipment available 
and  necessary  in  Member  States  for  the  control  of  the  external  border,  which  is 
specifically required for third pillar purposes. This study should recommend number 
and  type  of  equipment  needed,  as  well  as  the  possible  sharing  or  hire  of  such 
equipment to assist Member States who do not have sufficient resources.  

Common  risk  indicators  and  profiles  will  be  key  to  improved  controls  in  the  fight 
against trade in illicit goods and, as part of a coherent and cost effective approach, it 
should  be  examined  how  best  to  develop  this  in  the  third  pillar.  Specific  account 
should be taken of the cost benefits of building on the ongoing first pillar work on 
risk management. 

Additionally,  common  EU  threat  assessments  regarding  prohibited  and  restricted 
goods  should  be  developed.  This  is  necessary  to  set  clear  priorities  for  joint 
operations, to make them more effective in the fight against the trade in illicit goods. 

The Commission is concerned about the fact that five Member States have still not 
ratified the Naples II Convention of 1997, and about reports that this could be due to 
competence problems between police and customs services in some Member States. 

79 

"Communication  from  the  Commission  to  the  European  Parliament  and  the  Council  on  the  role  of 
customs in the integrated management of external borders." COM(2003) 452 final of 24 July 2003. 

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Naples  II  is  an  essential  instrument  in  the  fight  against  serious  international  crime 
and  should  be  ratified  immediately.  At  the  same  time,  the  Union  should  adopt  a 
system for the evaluation of all conventions and instruments in the field of customs 
cooperation  in  the  third  pillar,  in  order  to  ensure  consistent  implementation  and 
effective control of the external border by the Member States. 

Customs administrations should evaluate the development of a common approach to 
training for customs in third-pillar matters to ensure an equivalent level of expertise. 
Such  an  approach  could  include  making  places  available  in  national  courses  for 
officers  from  other  customs  administrations  in  the  EU,  as  part  of  their  induction 
training. The participation of foreign customs officials in training courses would also 
promote  awareness  and  help  develop  contacts.  It  should  be  noted  that  good 
experience  has  been  gained  with  customs  training  under  Community  programmes 
(Matthaeus and Customs 2002).  

Joint  training  for  customs  and  police  with  similar  responsibilities  and  functions 
should  be  provided.  In  this  respect,  the  mandate  of  CEPOL  could  be  extended  to 
include customs training institutions of the Member States. 

As  to  improvements  in  co-operation  between  police  and  customs,  the  Commission 
proposes that Member States first implement the Council Resolution of 1996 on the 
formalisation of co-operation between police and customs as regards the fight against 
drugs  trafficking.  In  a  second  phase,  such  co-operation  agreements  should  be 
extended to all other relevant crime areas. Enhancing cross-border co-operation has 
already  been  mentioned  above,  as  has  training.  The  participation  of  customs  in  the 
meetings  of  the  Heads  of  Europol  National  Units  should  be  extended,  and  the 
deployment  of  customs  liaison  officers  to  Europol  by  all  Member  States  should  be 
promoted.  The  creation  of  a  specific  customs  unit  within  Europol  should  be 
considered.  

Finally, the Commission proposes to use the experience of Member States that have 
established  effective  co-operation  arrangements  between  police  and  customs  as 
models.  It  proposes  that  such  arrangements  be  discussed  in  the  relevant  working 
groups  of  the  Council,  to  see  to  what  extent  these  could  be  used  by  other  Member 
States. In this regard, better coordination between the Police Co-operation Working 
Group,  the  Multidisciplinary  Group  on  Organized  Crime  and  the  Customs  Co-
operation Working Group of the Council would be welcome. 

3. 

FINAL REMARKS 

The Commission  calls on the European  Parliament and the  Council  to examine  the 
measures proposed in this Communication to improve the effectiveness of EU police 
and  customs  co-operation  and  thereby  contribute  to  the  full  implementation  of 
Article 29 TEU. 

After  having  discussed  this  Communication  with  the  European  Parliament  and  the 
Council,  the  Commission  intends  to  come  up  with  concrete  proposals  on  how  to 
address the specific problems identified. 

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