Theme: European governments are making a serious, long-term investment in cross-border law enforcement co-operation against organised crime.
Summary: The EU has no powers to dictate to its member states how to structure their police forces or go about law enforcement. Rather, the governments are using the EU to get police and prosecutors across Europe to think and act together against organised crime; to agree common action against drugs and human trafficking in particular; and to bring national criminal laws closer. Despite differences between European legal systems, the EU has developed some innovative, but untested, ideas that respect national sensitivities, such as a non-state model for using pooled national criminal intelligence to plan joint operations. More remains to be done, particularly to develop the role played by EU bodies like Europol.
Transnational organised crime is a rising threat in the post-Cold War world. The opportunities for the criminal underworld to operate across borders are multiplying in tandem with the availability of communications and information technologies; the increasing mobility of people, goods and services across national boundaries; and the emergence of a globalised economy. Criminal gangs now sell arms, smuggle migrants, traffic people and drugs and perpetrate fraud across borders everywhere.
Organised crime is therefore a priority area for EU legislation and its fast-growing justice and home affairs agenda (JHA). In 2004, member states agreed a radical expansion of EU powers in crime and policing, issues which cut to the bone of national sovereignty. In negotiations on the EU constitutional and reform treaties, governments agreed to drop national vetoes on decisions about crime and policing, though actual law enforcement will remain strictly national. They also agreed to make it easier for the EU to initiate criminal legislation and align national court procedures.
Initial sceptics, police on the ground throughout Europe have come to view the EU police office, Europol, more favourably and a potentially useful channel for co-ordinating the fight against organised crime. In a world where crime respects no border, they have been convinced that gains are to be made from more proactive cross-border police co-operation: ‘By making Europe a safer place, we add to the safety and security of this country’, says one senior police officer at the London metropolitan police. ‘Our security starts, not just at our own borders, but at the Greek islands or the Finnish frontier’. Much remains to be done, however. EU bodies have won the acceptance of the European law enforcement community; not its universal admiration. Europol has yet to become indispensable in cross-border investigations, partly due to serious bureaucratic problems that inhibit its usefulness. Governments are in the process of negotiating a major overhaul of the organisation’s basic powers.
These sensitive reforms have national support because the governments consider the EU as important to their efforts to dismantle and disrupt the worst organised crime and to seize the financial assets of gangs. Police and magistrates cannot fully dismantle such cross-border European crime networks by acting only within their own borders. Transnational gangs carry out crimes in one country while their leadership and financial assets remain safely hidden abroad (Europol Threat Assessment 2006, p. 20). Law enforcement co-operation across Europe as a whole has yet to match the degree of co-operation achieved by the criminals. Still, concerns over national sovereignty as well as cultural and legal differences constrain effective cross-border investigations of organised crime.
Police Co-operation in Europe
Europe’s 1.2 million police officers operate in very different, and at times, incompatible ways. Denmark, Finland and Ireland each have one single national police service, centralised under a clearly designated ‘chief’. But in the UK and the Netherlands the police are decentralised –the UK, for example, has 50 separate police forces–. In some countries the police have independent powers of investigation while others take their lead from national prosecutors. Police answerable to prosecutors tend to react to crime, acting only after an offence has been committed. They do little preventative work. This difference in roles means that both police officers and prosecutors from different countries divide into two camps –proactive and reactive– when talking about how transnational crime should be tackled.
Countries also have different rules for starting investigations and gathering evidence. These different rules make it harder to work seamlessly on investigations together. In Britain, for example, it is illegal to use phone taps as evidence in court but police can and do rely on closed circuit television (CCTV) footage. By contrast, France sees phone tapping as legitimate and human rights-compliant, but considers indiscriminate use of CCTV footage as far more intrusive. In some other European countries, public CCTV cameras are unknown; in Denmark, for example, they are banned by law.
Police may be able to get around these differences when working informally with their foreign colleagues. But they and the courts still face a range of obstacles to the conduct of cross-border investigations and prosecutions. If they need a witness summons, an order to compel somebody to produce evidence, a search-and-seizure warrant or an order to freeze bank accounts, they may have to ask a court in another country to issue one. Their main tool for getting this kind of work done is the 1959 Council of Europe Convention on Mutual Assistance in Criminal Matters, under which judges approve requests for help with investigations and prosecutions from abroad. In 2000, the Council of Europe updated the convention to include requests for undercover operations abroad, the interception of phone and Internet communications across borders and surveillance operations such as ‘controlled deliveries’ (where authorities secretly monitor crimes such as drug trafficking to unearth a criminal network).
Even revamped, the Council of Europe convention is too complex and inflexible to provide a basis for modern crime-fighting: the new changes are taking years to ratify and requests can take weeks, months and even years to be answered. The UK, for instance, requires too much detail from countries making requests while the Spanish bureaucracy can misplace requests altogether (Eurojust, Annual Report 2005, p. 46).
Aside from the pitfalls of formal legal co-operation, European governments have made efforts to boost operational co-operation among police. This is especially true between those countries that have abolished border controls between them in Europe’s passport-free zone. The zone currently consists of 15 countries: the ‘old’ EU minus Britain and Ireland with the addition of Norway and Iceland (Switzerland decided in a 2005 referendum that it would soon join too). By 2008, except for Cyprus, the countries that became EU member-states in 2004 will join as well.
Police forces from Schengen countries have extra powers to pursue crimes with a cross-border dimension. For example, Dutch officers can carry out surveillance on suspects in Belgium, with or without prior notification. Italian policemen can follow a suspected drug smuggler in ‘hot pursuit’ into Austria –until the local police arrive–. Officers across the Schengen area also share information on suspects, stolen goods and cars via the Schengen information system (SIS), a multinational police database. Although Britain and Ireland choose to maintain their own border controls, they do use parts of the Schengen agreement. Britain participates in cross-border surveillance operations and has signed up for the SIS system. So too has Ireland.
Police in parts of the Schengen area co-operate even more intensely thanks to a patchwork of bilateral and multilateral agreements. Co-operation is most sophisticated when countries share land borders, have similar legal systems and face common threats from the same organised gangs or terrorists. Police in the Benelux countries assist each other in every day law and order matters and even have common standards for training and equipment. Before the 2006 FIFA World Cup, Germany and Austria signed a treaty placing their police under each others’ command at need and allowing officers from each to carry out unrestricted undercover operations in the other’s territory. Germany later signed a similar treaty with the Netherlands. The Nordic countries have been running joint patrols and police stations in sparsely populated border regions for years. So too have the Spanish with their French counterparts along the Pyrenees.
EU police chiefs work together to combat some of Europe’s most notorious heads of organised crime through the European police chiefs’ task force (PCTF). The informal body meets four times a year at Europol’s offices in The Hague as well as in Brussels. The body plans joint European operations against organised crime networks with Europol and Interpol. At first, these meetings were little more than talking shops for senior EU law enforcement officers. But the PCTF began proper operations in May 2005 with the Swedish-led Operation Callidus, a successful EU-wide crackdown on child pornographers involving hundreds of police officers from Sweden, Britain, Denmark, France, the Netherlands, Malta, Norway and Poland.
The EU police chiefs organise their work by appointing multi-country policing teams using a planning system called COSPOL (Comprehensive Operational Strategic Planning for the Police). COSPOL simply refers to how the police chiefs divide responsibility for various investigations. Each COSPOL investigation is led by a ‘driver’, a country directly affected by a particular criminal network and responsible for leading operations against it (Sweden, for example, was the driver country for Operation Callidus; similarly Poland leads COSPOL operations against East European crime).
The EU’s Role
Interior and Justice Ministers now meet in the EU’s Council of Ministers (or JHA Council) to close legal loopholes between member states’ criminal laws and agree legislation and practical steps to make cross-border police investigations easier. All 27 countries must currently agree unanimously on any new measure. Officials develop new proposals in an enormously complicated web of committees making up four different levels of decision-making. These include working groups on police, customs and criminal justice co-operation as well as the so-called ‘multi-disciplinary group on organised crime’. This is a group of national policing experts with powers to evaluate crime-fighting methods throughout the EU. Staff from the Council’s secretariat and the European Commission help with first drafts of legislation and evaluate previous EU agreements. Two of the most important committees are COREPER, the powerful grouping of national ambassadors to the EU and a committee of high-ranking Interior and Justice Ministry officials (called CATS, after its French acronym). 
A major part of the Council of Ministers’ work in JHA involves replacing the slow Council of Europe procedures for police and criminal justice co-operation with faster, more efficient EU rules, such as ‘warrants’ speeding up the extradition of suspects and sharing of evidence between the member-states. Eurojust, a unit of senior prosecutors, judges and police officers nominated by the member states, helps with making these legal agreements work in practice, and co-ordinates multi-country prosecutions in the EU. Eurojust’s caseload has been growing rapidly since it began operating in 2003: for example, the unit reported a 31% increase in its workload in 2006 and a 54% rise the previous year (Eurojust Annual Report 2006, p. 24).
While Eurojust mostly deals with prosecutions, Europol is the EU’s main tool for assisting investigations into transnational organised crime. Europol gathers and analyses intelligence on crimes ranging from drug trafficking to counterfeiting and terrorism. Its office is organised on a hub-and-spoke structure. All member states send police officers to its headquarters in The Hague. These officers act as spokes, sharing information directly with each other and a hub of Europol crime analysts. These analysts comb the combined body of European criminal intelligence for transnational trends and links that can be missed by national or regional police forces concentrating on their own backyard. Europol officers cannot make arrests or initiate investigations but they can assist during investigations and be present during the questioning of suspects if allowed by a member-state. Since 1999 Europol has focused on developing the analytical abilities needed to add value to national investigations.
In 2005 Interior Ministers agreed on a ‘European criminal intelligence model’ (ECIM), a non-state policing plan for co-ordinating investigations against organised crime throughout the EU, according to a method called intelligence-led policing. Intelligence-led policing is a British-inspired law enforcement theory that stresses intelligence gathering and the targeting of police resources on the worst criminals. The idea is to get police from different countries to plan investigations together using the best intelligence available. The ECIM sets out how the EU can achieve this by ensuring national police forces, Europol’s criminal intelligence analysts and the police chiefs’ operations work together against the same criminal threats.
The model follows several steps. First, member-state police forces share intelligence with Europol, which draws up an assessment of the overall assessment of the threat facing the EU from organised crime. Based on this assessment, the Council of Ministers agrees which law enforcement priorities their police will tackle together. The EU police chiefs then mount joint operations against the criminals and feed back information and lessons learned into Europol, in time for the next threat assessment to be prepared.
EU member-states tested this new way of working together for the first time in 2006. Based on Europol’s first threat assessment, EU governments set four regional priorities in the fight against organised crime in Europe. These were drugs and human trafficking by African gangs operating in the Mediterranean; Albanian gangs trafficking both heroin and women from the Balkans; commodity smuggling in the Baltic Sea region; and illegal factories for synthetic drugs in Belgium, the Netherlands, Germany and the UK (ENFOPOL 30, p. 1-3). Initial evidence suggests that neither governments nor police are taking the ECIM seriously enough; though this was also the initial reception of the establishment of Europol. But the adoption of an EU law enforcement model is a significant step forward. The model is also a subtle attempt to promote the use of intelligence-led policing methods throughout the EU.
In private, police officers worry that some EU initiatives are more politically motivated than tailored to meet their needs when co-operating in the field. Officers are supposed to organise multi-country COSPOL investigations using EU legislation to set up joint investigation teams (JITs). Under the legislation, police from several different countries have powers to work on the same investigation as a team, almost as if they were all working in a single jurisdiction.
JITs have the potential to be an innovative tool in the fight against cross-border organised crime. But so far police have only set up a handful –mostly on drug trafficking, fraud and terrorism– and none involve more than two countries each. Police argue that this is because JITs are too bureaucratic to start and complicated to operate and say they prefer to use the old Council of Europe procedures or informal agreements. EU officials counter that JITs will become more common, and more ambitious, as soon as police and prosecutors get used to the new system.
Setbacks in Intelligence-sharing
Europol is wholly reliant on criminal intelligence received from the member states. So it has had to work hard to prove its files can add value to national criminal investigations. Under its present Director, Max-Peter Ratzel, Europol is slowly convincing member states of its potential. ‘Europol has matured’, says one senior UK police officer. ‘Its analysts understand better what we need from them and are starting to deliver. We are doing a lot of business through Europol now’. First off, aside from its improved intelligence work, police say the simple fact of having officers from 27 European countries on the same corridor in The Hague is an unparalleled resource in day-to-day police co-operation.
But major challenges remain. Some member states still do not give Europol sufficient or consistent support. In 2006, while one member state contributed over 500 pages of criminal intelligence to Europol’s first organised crime threat assessment, another offered only a single page. Some member states send police officers to Europol without the necessary authority at home to help other colleagues resolve cross-border issues. This poses real difficulties for building trust and strengthening co-ordination in international investigations. Officers become uncertain about the level of co-operation they should expect from their foreign counterparts. The same problem inhibits the work of Eurojust where prosecutors do not have a similar level of powers. Only some Eurojust prosecutors have basic powers to issue and activate formal requests for evidence and authorise controlled deliveries, phone taps and undercover operations, for example.
Europol’s effectiveness is also stymied by its founding convention which made the body awkward to manage and hampered the actions of its staff. Even minor administrative decisions of its Director need the unanimous approval of all 27 EU countries represented on its management board. Moreover, under the convention, Europol analysts and ordinary police officers can only work together via the liaison officers in The Hague, themselves working through special units based in national capitals. The result can be a bureaucratic standstill.
The member states tried to free up Europol’s bureaucracy by tweaking the convention after the body started work in 1999. They added new protocols to the convention giving Europol officers simpler procedures to work with, as well as more powers to investigate money laundering and assist ongoing multi-national investigations on the ground. But since such changes needed to be ratified by all EU national parliaments, they have only just entered into force after a delay of several years. Hence the member states are junking the old convention. Europol will be re-established using EU legislation that can be more easily amended in future, like the agreements used to set up Eurojust or the EU border agency, Frontex.
Under the new legislation, Europol will get wider investigative powers covering more crimes, be less bureaucratic and have more freedom to gather intelligence and information like DNA data. It will also report yearly to the European Parliament and have some communication with national parliaments, making it somewhat more accountable. These changes fall far short of turning Europol into a US-style Federal Bureau of Investigation (FBI). FBI officers in the US have full police powers to investigate over 3,000 federal crimes. The EU has no such body of federal criminal laws for Europol to police. Indeed Europol’s ‘added value’ to national police forces would be destroyed if the office became a competitor with operational powers. Hence the new-look police office will not be able to arrest people or start investigations independently of the member states.
Such reforms are needed. But they fail to address the fundamental problem of European police co-operation: the different roles played by prosecutors and police across the EU. Representatives to both Europol and Eurojust need to have equivalent powers if either organisation is to function properly. The obvious way to overcome such challenges would be to merge both Europol and Eurojust to form a single European law-enforcement co-ordination body, incorporating also the police chiefs’ task force. A single body could underpin a uniform level of co-operation across the EU whatever the national law enforcement structures. It would also prevent duplication in intelligence-gathering and analysis and ensure better follow-through from investigation to prosecution in cross-border cases. Both Eurojust and Europol are due to co-locate in 2009, the ideal opportunity to initiate this merger.
Conclusion: The aim of EU co-operation should not be to centralise law enforcement co-operation in bodies like Europol and Eurojust. Nor should all forms of police co-operation be subject to formal procedures. A mixture of formal and informal channels guarantees the best results. Rather the EU should become a focal point for the emergence of a new pan-European community of police officers. In this respect, law enforcement officials have much to learn from their counterparts in customs. Due to the fact that their work has always been international in nature, co-operation between European customs officials is highly sophisticated, particularly in the areas of information-sharing, joint threat assessments and co-ordinated seizures of illegal goods.
European governments are making a serious, long-term investment in cross-border law enforcement co-operation against organised crime. Their determination to drop national vetoes on crime and policing decisions, to reform Europol and other bodies and to share ever more law enforcement information through various channels illustrates this. The returns from this investment will be realised only if governments can get their police forces to take the ECIM seriously, a process that will probably take a number of years. And a merger of Europol, Eurojust and the police chiefs’ task force is a convincing answer to the persistent problems caused by differing legal systems, divergent traditions and the high risk of duplication of efforts.
Research Fellow, Centre for European Reform
 See also ‘The EU and the fight against organised crime’ by Hugo Brady, a 2007 working paper published by the Centre for European Reform (www.cer.org.uk).
 My sincerest thanks go to the many EU and national government officials and police officers who gave their time to contribute in various ways to this publication. They would understandably prefer to remain anonymous.
 An authoritative overview of EU police and judicial co-operation is available in Policing the European Union by Anderson, den Boer, Gilmore, Raab and Walker, Oxford University Press, reprinted 2003. See also The Politics of EU Police Co-operation by John D. Occhipinti, Lynne Rienner Publishers, 2003.