Draft Convention on Europol
01 January 1991
Draft Convention on Europol
bacdoc March=1996
Comments by the Standing committee of experts on international
Immigration, refugee and Criminal Law, Utrecht, Netherlands
1. Terrorist offences
The EU member States do not agree about the urgency of combating
terrorism, particularly as they have different experiences with
indigenous terrorism. Spain and Greece are fervently in favour
because of the November 17 Group and the ETA. The unequal readiness
of the Member States could have negative repercussions for the
mutual exchange of data: if a certain issue is not regarded with
equal priority, the condition of reciprocity, necessary for an
equal exchange of information may not be satisfied. There are also
fears that engagement with terrorism leads to a "double circuit"
between ordinary police organisations and state security agencies,
which could increase the sensitivity of information even more.
There may be good practical reasons not to include terrorism among
the initial tasks of Europol. Europol is a new organisation that
has to build up confidence among the Member States. This is easiest
to achieve in "neutral" areas. Probably many Member States would be
rather hesitating to communicate information on terrorism for
Europol to put in its analysis system, especially if that system
would be accessible to liaison officers of all Member States (see
also our comments on the analysis system below). On the other hand,
the network created by Trevi seems to function well. thus reducing
the need for cooperation within the framework of Europol
considerably. Finally, one has to take into account that, apart
from terrorism, the Annex to the Draft Convention includes such
offences as homicide, kidnapping and hostage-taking, illegal arms
trafficking, ammunition and explosives. Once Europol is competent
to deal with these offences most forms of political violence will
already come within its remit. The only other remaining offences
will probably be so-called purely political offences, e.g. treason
and espionage.
Just in passing we may note that "competent authorities"within the
meaning of Article 2, paragraph 3 of the Draft Convention may under
the law of some Member States include secret services. On the other
hand, Article 15, paragraph 2 seems to imply that they cannot be
considered to be competent authorities. This point probably needs
clarification.
2. Europol's functions and powers
Vague terms
Legally, the powers and functions of Europol will be fixed as soon
as the Member States have agreed on the text and have signed it. In
order to determine the powers and functions of Europol, Articles 2
and 3 are the most relevant. The Draft Convention limits the
activity of Europol to certain crimes mentioned in Article 2 and
the Annex to the Convention. According to Article 2, paragraph 1
the crimes for which Europol has been made competent are
characterised by an organised criminal structure and by the fact
that they affect two or more Member States. The criteria are so
vague that National Parliaments are unable to establish what to
consent to. What is an "organised structure", when are two or more
Member States "affected"? Some specification is necessary here.
Another problem of parliamentary control relates to the Annex to
Article 2, paragraph 2: "Under the procedure laid down in Title VI
of the Treaty on European Union, the Council may unanimously decide
to instruct Europol to deal with other forms of crime listed in the
Annex." Because of the wide definition of the crimes listed (see
our more detailed comments on the remit of Europol below), this
Annex gives unprecedented possibilities to extend powers.
Competence. can be expanded progressively, although only by
unanimous decision of the Council. There is nothing against
extending the tasks of Europol as Ion. as the National Parliaments
are fully informed about their possible implications. However, the
descrip