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Policing and Accountability in a DynamicEuropean ContextW. Bruggeman aa Europol , The HaguePublished online: 27 Oct 2010.

To cite this article: W. Bruggeman (2002) Policing and Accountability in a Dynamic EuropeanContext, Policing and Society: An International Journal of Research and Policy, 12:4, 259-273, DOI:10.1080/1043946022000046694

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Policing and Society, 2002, Vol. 12, No. 4, pp. 259–273

POLICING AND ACCOUNTABILITY IN A

DYNAMIC EUROPEAN CONTEXT

W. BRUGGEMAN*

Europol, The Hague

European policing is undergoing several transformations which are influenced by the European unificationprocess, shifts in national sovereignty, the exponential growth in international law instruments, the emergenceof a universal jurisdiction, and the increased employment of covert investigation techniques. At theorganisational level of law enforcement, new actors have emerged at strategic and executive level, whichgives rise to competition and fragmented monitoring systems. Police accountability has thus far mainlybeen organised on a national level, and the recent changes in the international context require a translationof accountability system into international standards. This article provides an overview of current account-ability mechanisms which apply to Europol. These principally concern supervision by its ManagementBoard, data protection provisions and the system of national and European parliamentary control.Particularly the European Parliament has called for a more extensive democratic and judicial control, andrecommends an institutionalised and regular information exchange between the European Parliamentand the national parliaments. A future accountability regime should be structural, solid and applicable tointergovernmental as well as supranational law enforcement agencies that are active within the EuropeanUnion, such as OLAF and Eurojust.

Keywords: Europe; Europol; Policing; Accountability; Parliaments

1. INTRODUCTION

Safety and security are among citizen’s main concerns, these are also major issues forboth local and national authorities, and at European Union level. For this reasonthe legitimacy of the police is closely related to the position of law enforcement. Aprecarious relationship exists between police powers and the democratic control ofthe police in all democratic states.

The growing unification of the European countries, the growth of organised crimeand terrorism, migration movements and the severity of crime problems as such,are some of the major challenges for states and the European Union.

New basic questions arise, especially at European Union level, what kind of policeare we talking about, what controls are now needed to ensure that equivalentaccountability is in place.

There are several ways to approach the subject of police accountability. One of themcould be to list the control mechanisms of police forces state by state in Europe, andthen to repeat this exercise at European Union level (Europol, OLAF). The result

*Senior Deputy Director Europol, The Hague.

ISSN 1043-9463 print; ISSN 1477-2728 online/02/040259-15 � 2002 Taylor & Francis Ltd

DOI: 10.1080/1043946022000046694

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would be, when focussing on the national approaches, the exposure of an unoriginalrange of similarities, given that the control mechanisms of the police are quite similarall over Europe. Such control has traditionally been analysed from the individualbehaviour of police officers, and from both penal and disciplinary standpoints. Theregulations established in each state are varied, and they are aimed at stopping anytransgression and abuse. However, the control of a police body is much more complexand difficult, and requires an ex ante setting of objectives and an ex post checking ofthe performance on these objectives. This kind of method is less developed than theindividually based method (De Valkeneer, 1991).

A general distinction is drawn between internal and external accountability. Forobvious reasons most of the attention, included in this article, relates to all aspectsof external accountability.

Particularly international policing is especially becoming increasingly complex, whichstarts to have a limited focus on the identification of misbehaviour or dysfunctioning.Very diverse and fragmented monitoring and accountability systems are in place(Van den Wyngaert, 1997: 163).

2. POLICE AND POLICING AT EUROPEAN UNION LEVEL

All modern State theories are based on the trinomial: sovereign state – power ofcoercion – police (Recasens, 2000). Until recently it was sufficient to keep the controlmechanism ultimately in the hands of the sovereign nation, which should control thestate, which should in its turn control police forces.

Particularly during the last two decades the main problem encountered in Europe isprecisely the breakdown of that trinomial. The emergence of new elements transcendingthe concept of state and sovereignty such as those observed from the Europeanunification process as well as those elements originated in the privatisation of somesecurity sectors, have plunged the traditional model into a probable irreversible change.

Seen from the perspective of the nineties, European police co-operation is an opaqueand complex patchwork of institutions, which aim to promote different forms ofco-operation.

The birth and development of a European police/law enforcement sphere is, in anincreasingly pressing way, demanding the handing over of State sovereignty toEuropean institutions and instances in all areas, including police powers. Despite thereluctance of some States, police/law enforcement spheres seems to be increasingly‘communitarised’ as they move forward, according to the Trevi action programme,the Schengen agreement, the Maastricht Treaty on European Union and reformswhich were introduced in the Amsterdam Treaty on the European Union (TEU).

We are now witnessing an era in which the legitimate monopoly of policing societywas born, developed, and is finally about to collapse. The era began with theDeclaration on the Rights of Men and Citizens of 1789, and has lasted, in generalterms, until the constitution of OLAF (end of 2001); Europol (in force since October1998 and implemented in July 1999), and the creation of Eurojust (2002). If suchtrends are consolidated it is likely that this coming century will be a time of profoundchange regarding the patterns (Recasens, 2000: 250), structure and dependency ofwhat we know in Europe today as the police.

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This is generating a specific European space and a void in each nation state thatwill undoubtedly affect police functioning and powers as well as the control of mechan-isms of police activity, which will be created in the various gaps that will appear or thatwill be modified in a European, as well as a nation state context.

Similar to this, deep transformations are also taking place in the laws spaces, whichalso implies in itself important changes in the role played by the social actors involved.For example, European codes of law allow us to contemplate how citizens andvictims in particular are claiming their own space. The model is also shifting towardspartnership (IHESI, 1998: 33) where the police are irreversibly becoming one ofmany actors in the game together with citizens, victims, aggressors, other institutions,other services, and so on.

The main relationships are now: liberties – security and safeguard – efficacy. Ifgreater security is recognised then certain liberties must be sacrificed. Especially,in order to safeguard the enjoyment of liberties an efficient protection is necessary,and to obtain it, those charged with that protection must be empowered with theadequate (effective) means and possibility of action. The balance is now increasinglyas follows: more security implies less freedom; more efficacy means less safeguards.Within the European Union, some are of the opinion that there is a ‘security deficit’and are claiming greater security measures. The European Parliament has warned1

against a ‘democracy deficit’ within the European institutions, that affects the protec-tion of rights and liberties, which – among others – prevents the full achievement ofa Europe of citizens or of the people (Duverger, 1994).

The emergence of a European police/law enforcement space generates doubt as towhether traditional police powers are going to be mimetically repeated in the newEuropean structure, or whether new powers are going to emerge from the new functionsand structures. What seems clear is that when these European executive structures(e.g. OLAF), the pattern of the traditional division of powers of the liberal state isbeing unevenly reproduced, generating what the European Parliament has labelled inseveral reports as a ‘democratic deficit’.

Before developing this item further, it is interesting to examine what changeshave occurred recently. The basic principles are now becoming (Bruggeman, 2001):

. from an informal to a formal form of co-operation, mostly based on intergovern-mental law enforcement (Schengen, Europol);

. moving from locally oriented co-operation towards a global police/justice (Eurojust)form of co-operation;

. rising influence of new interests such as human rights in general and principles ofpersonal privacy in particular;

. from a thematic (drugs, terrorism) towards a more general (organised crime)oriented approach;2

. from a national (principle of sovereignty) towards a horizontal supranational lawenforcement level. Vertical enforcement (e.g. UN Yugoslavia Tribunal) still remainsthe exception;

. parallel growth of the need for supranational political/democratic controlmechanisms.

1In Resolution A3-01/23/92 of 8 April 1992.2E.g. UN Convention Against Transnational Organised Crime, 2000; European Union Convention on

Mutual Assistance In Criminal Matters, 2000.

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Therefore, the European Union is having specific interests in a tendency to buildup a network or framework, basically to set up a data exchange through a powerfulinformation system (Schengen/Europol). In addition, Europol has other tasks: crimeanalysis, support, research and training and just recently the right to ask to investigateand to support joint teams.

Other ideas concerning co-operation models launched at EU level thus far include:

– A gradual harmonisation of national criminal laws involving a harmonisationof minimum penalties for certain offences (initially perhaps even in absence ofharmonised constituent elements) and (perhaps later) a harmonisation of theconstituent elements of certain offences. These offences could include organisedcrime, drug trafficking, money laundering and terrorism.

– Improving co-operation between police and judicial authorities in the areas of preven-tion, investigation, prosecution, court proceedings and enforcement.

– A further strengthening of the role of Europol, for instance, by making it obligatoryfor the Member States to supply Europol with operational powers has proved to bevery controversial.

– The creation of a Eurojust3 composed of national prosecutors or magistrates vestedwith certain powers to prosecute cross-border criminal activities. National liaisonofficers could be seconded to this body, each of which would have the task ofinitiating and directing investigations within his national territory according tonational law.

– The conclusion of agreements with third countries (the Candidate countries, the USA,Switzerland or Russia, for instance) on matters of police co-operational and criminaljustice.

– The creation of a EU border police.

So international co-operation in criminal matters takes different forms. Some ofthem have a long tradition, others are of recent origin.

Some of them are relatively complicated and only granted when many differentconditions have been met, others are more easily obtained. Some of them involvepolice authorities only; others require the intervention of public prosecutors and courts.

Roughly speaking there are four different forms of international co-operation incriminal matters subject to recent developments: extradition, mutual assistance in theinvestigation and prosecution of criminal offences, transfer of criminal proceedingand transfer of the enforcement of criminal justice.Horizontal enforcement is the rule. Horizontal enforcement means enforcing criminal

law on the national level. The advantage is obvious, the entire machinery of nationalcriminal law can be used for enforcement purposes. Nevertheless, the two mainobstacles to horizontal enforcement are the following: possible ‘political’ hesitationto prosecute, and the necessary criminalisation of the act in order to permit prosecution(Mueller and Besharov, 1999).

An international tribunal directly enforcing an international norm is vertical enforce-ment. The only possible fora where direct prosecution is possible so far have been three:

1. the tribunal(s) provided for under the 1919 Treaty of Versailles (which in the endresulted in national prosecutions in Leipzig);

3Council Decision setting up Eurojust with a view to reinforcing the fight against serious crime, 28 February2002.

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2. the International Military Tribunal for the Far East (the Tokyo trials) at the end ofWorld War II; and

3. the International Criminal Tribunal for the Former Yugoslavia in The Hague(Yepes-Enriquez, 2001).

Some initiatives can be identified as belonging to the mixed model, which mergethe two logics to a certain extent (such as the Lockerbie Tribunal), and which appearsto be the most preferrred logic until now.

Based on the horizontal approach especially in the United Nations and in theEuropean Union there has been an exponential growth in the numbers of internationalinstruments with various aspects of international criminal law (Van den Wyngaert,2001: 1091). A growing number of national courts are confronted with questionsof international criminal law. As indicated before, the police were first in facing thepractical difficulties of investigating transnational cases, but a new generation ofjudges, prosecutors and lawyers are gradually waking up to the fact that internationalcriminal law exists. Many important new international criminal law conventions havebeen opened for signature, including: the Rome Statute for an International CriminalCourt (1998); the Conventions on Terrorist Bombings (1994); the Financing ofTerrorism (2000); the EU Convention on Mutual Assistance in Criminal Matters(2000) and the UN Convention against Transnational Organised Crime (2000).The two last conventions especially reveal a trend of focusing on organised/serioustransnational crime, rather than on specific crime areas.

When analysing the horizontal and/or vertical enforcement model the developmentof universal jurisdiction is also interesting. All this influences the accountabilitymodels, which were previously based on national sovereignty, but nowadays dramati-cally affected by new models for international transborder co-operation. We caneasily state that almost no new initiatives – not even the Europol concept – includesufficiently enforceable accountability needs.

Universal jurisdiction refers to the assertion of jurisdiction over offences, regardlessof the place where they are committed or the nationality of the perpetrators. It appliesto a range of offences when repression by all states is justified, or required as a matter ofinternational public policy. Certain offences are regarded as being subject to universaljurisdiction as a matter of customary international law. A key distinction must bemade between those offences in relation to which States are obliged to assert universaljurisdiction (mandatory universal jurisdiction) and those offences in relation towhich a State may, if it so chooses, assert universal jurisdiction (permissive universaljurisdiction).

3. ACCOUNTABILITY IN PRACTICE IN INDIVIDUAL

EU MEMBER STATES

Several mechanisms are in place to exercise control over policing. Whether it is a muni-cipality, region, State or European level, control of security and efficacy principles areset out at the top through committees or councils, where under the direction of Mayor,a regional authority (e.g. German Lander, Spanish Autonomous Communities) orState authorities are responsible for setting out the guidelines and evaluating results.

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Other control organs emanate from these usually adapted to the police structure andorganisation. The main problem with these security councils or organs derives fromtheir varied and changeable composition (namely political, mixed with or withouttechnicians). The ones that seem to work better are the mixed councils, made up ofpoliticians, relevant citizens’ associations and organisations, and police technicians.

New initiatives (e.g. Committee P. in Belgium) are sometimes negotiated followinga crisis situation and coming into competition with the existing mechanisms.

The police must differentiate several levels in the implementation of power. Not onlymust the territorial level be consistent but also the operative level in a very decisive way.The operative level is most frequently divided between the judicial police and theadministrative police. The judicial police is sometimes defined as a function, sometimesas an organisational structure. The control of the judiciary police is usually shared.In the majority of cases the judicial authorities can request the police chiefs to sanctionthose officers who have incurred disciplinary faults. In several countries this policefunction is coming more and more under the overall authority of the political authori-ties (e.g. Belgium, Netherlands). On the other hand, many police organisations invarious EU Member States exercise competences which may have a serious impacton citizens’ rights: the power to select, the power to define, the power to accuse/sanctionor ‘ignore’ the accusations/sanctions. So this implies that control should not be leftin the hands of sole body, it requires a co-operation of the political, judiciary, admin-istration and citizen domains.

Some states place vertically structured organisations into roles which are not clearlydefined and which are sometimes badly distributed and co-ordinated due to rigidregulations, which in turn make them incapable of adjusting themselves to citizendemands. Others have a decentralised system in place. Some have one police force;others have a mosaic of systems in place. Practically all countries have, however, under-gone some restructuring during the last decade (den Boer, 2002). The most centralisedState administrations have tried to decentralise (France, Spain, Italy), while tradition-ally decentralised countries have been making huge efforts to concentrate their policeforces and join part of it (UK, Netherlands). Other States were, or are, undergoinginternal transformation and restructuring (Belgium, Germany). These processesare for a large part the result of transformation of social and citizens demands,which has transcended the scope of the nation-state and become polarised: one‘macro’ (Europe, high criminality and organised crime) and the other ‘micro’ (com-munity policing at local level). All this together is at the core of ongoing debatesabout demilitarisation, decentralisation, and community policing.

These structures and changes not only influence the accountability mechanismswhich are already in place, but also the quality and applicability of such systems.

4. UNDERCOVER POLICING AND ACCOUNTABILITY

The increased interest in international organised crime and the subsequent rise inundercover policing methods are accompanied by two interrelated developments(den Boer, 1997). The first concerns the organisation of criminal justice systems, thesecond the increased pressure on accountability systems for law enforcement actionsin the domain of (proactive) criminal investigation.

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Taking into account the general thesis that there are substantial general difficultieslying in the way of developing effective accountability mechanisms in respect ofEuropean policing matters, it is easy to state that these general difficulties are exagger-ated in the particular context of undercover policing. This argument can be developedunder four headings, ranging from the macro-political context to the general dynamicsof European integration, the micro-political context of the peculiarities of policeorganisation and culture (Walker, 1997: 205).

Unlike domestic policing institutions, no systems of formal accountability areestablished at international (EU) level. Especially the link between effectiveness,public co-operation and accountability is less secure at international level, particularlywhen an undercover dimension is present. Self-regulation has shown its limits while itwould be naıve to assume that the interests of law enforcement ‘‘elite’’ would necessaryfavour a transparent system of external accountability, it would be equally naıve toassume the opposite!

They also come under more and more pressure to ensure that their organisationsconform to acceptable standards of balance and performance. At national level thereis a tendency within domestic policing systems towards a light framework of regulationsfor undercover policework, and in turn, for relatively unconventional and simpleundercover methods. This is not sufficiently the case at international level.

In principle most of the organisations (Interpol, Europol) have no direct possibilityto use undercover policing techniques, but they handle intelligence which resultsfrom those operations. Therefore, it is necessary to further explore new capabilitiesto enhance transparency and accountability.

5. NEW POLICE REALITY AND ACCOUNTABILITY AT

EUROPEAN LEVEL

5.1. Accountability Mechanisms

During the last few years pressure groups and some governments have increasinglycriticised the persisting difficulties in citizens’ rights of access to justice in relation tocross border litigation (i.e. litigation which involves parties from different states incases where evidence has to be received from a state other than where the proceedingstake place. Some ministers, especially Mrs Elisabeth Guigou from France, have repeat-edly pointed out the difficulties citizens experience when they want to find out whichjudicial authority to approach, what they have to do to enforce their rights and howto obtain legal aid. Serious problems also persist with the serving of legal documentsto enforce judgements in another Member State. Most Member States regard these def-icits as incompatible not only with an ‘Area of Freedom, Security and Justice’’ but alsowith the Internal Market and Citizenship of the Union. A majority of Member Statesseems willing to consider gradual harmonisation in the area of civil law and a moreextensive use of mutual recognition in the area of criminal law.

5.2. Europol’s Accountability Mechanisms

The objective of Europol is the improvement of the effectiveness and co-operationof law enforcement authorities of Member States in combating and preventing drug

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trafficking, other serious forms of international organised crime and terrorism. Thisshould mainly be achieved through the facilitation of information exchange betweenMember States and through obtaining, collating and analysing information. Europolis only competent when a case affects two or more Member States and cross bordercriminal investigations are necessary.

The fact that the Convention limits Europol’s tasks basically to crime analysis, infor-mation exchange and co-ordination shows that Europol has only a limited functioncompared with the wide range of functions entrusted to the police forces of theMember States. Europol has no executive powers: it has no power to conduct wiretapping, house searches or arrests. These executive police powers potentially infringethe fundamental rights of citizens and thus have to be subjected to an adequatelegal basis and have to be monitored by public prosecutors and/or democraticallyaccountable authority.

The Europol Convention describes in detail what Europol is allowed to do andhow it should operate in performing its functions. Two main aspects should brieflydiscuss

. the protection of personal data and

. the central role which has been assigned to the Management Board, in which allMember States and the Commission are represented, in supervising Europol.

The only fundamental right of citizens affected by Europol’s work is the right ofaccess to personal files (knowledge of the existence and content of personal files).Therefore, it was particularly necessary to create instruments for the controlof Europol in this respect. As a result the Europol Convention provides agreat number of articles dedicated to the handling of personal data and dataprotection.

There are so many that there is no time to mention them all. One of the mostimportant provisions is the establishment of the Joint Supervisory Body (JSB)(Article 24). This is an independent body responsible for the constant monitoringof the activities of Europol in order to ensure that the rights of individuals arenot violated by the storage, processing and utilisation of data by Europol.Europol has the obligation to assist this body in carrying out its tasks successfully,in particular to allow free access to all its premises, to supply requested information,to give access to all kind of data and to carry out the JSB decisions on appeals.Each individual has the right to request the JSB to ensure that the treatment ofpersonal data by Europol is lawful and accurate. The instrument of the JSB iscompleted by the introduction of National Supervisory Bodies in the MemberStates. These ensure at national level that the handling of personal data receivedfrom or sent to Europol does not violate individual rights in accordance with therespective national law.

Last but not least, very detailed regulations are provided – in the Convention itselfand in several complementary Council decisions – which lay down the rules on theuse of data and the communication of data to third states and third bodies. This isan essential requirement for the full implementation of close co-operation betweenEuropol and the police forces of candidate countries.

As regards the day-to-day work of Europol the main role in steering the organisationis played by the Management Board (Article 28), which is composed of one represen-tative of each MS. The Commission also attends its meetings. The Management

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Board meets at least twice per year, but in practice about six times per year. Its tasksare, amongst many others to:

. prepare the implementing rules governing data files

. approve orders to open data files

. take part in the appointment and dismissal of the Director and Deputy Directors

. take part in the drawing up of the budget

. adopt the five-year financing plan

. appoint the financial controller and oversee the performance of his duties

. take part in any amendment to the Convention

This shows that Europol’s functioning is monitored very closely by the MB. MSauthorities are informed in great detail about Europol’s functioning through theirrepresentatives in the MB. Decisions are taken by unanimity.

The detailed provisions on data protection, including the appeal procedures, assurethat EU and MS data protection regulations are adhered to.

All this constitutes a high-level of control of Europol. From our point of view,all these controls taken together may even reach further than the controls that applyto national police services, realising that their powers are much wider than those ofEuropol.

5.3. EUROPOL AND PARLIAMENTARY CONTROL

Concerning parliamentary control, the starting point is the Europol Convention itself,which was adopted by the Council by unanimity. The responsibility for the functioningof Europol belongs to the Management Board composed by 15 representatives ofthe MS, who report to the Member competent for police matters in each MS. Eachof them can be held accountable before his or her national Parliament on nationalpolicy as regards Europol. Through their Ministers responsible for police matters,the national Parliaments can remain informed about the functioning of Europol.

The first and most important provision regarding possible control by the EuropeanParliament can be found in the Treaty of the European Union (TEU) itself. Article 39lays down an obligation for the Council to consult the Parliament before theadoption of legally binding measures, such as framework decisions, decisions andconventions. This provision also applies to Europol. In quite a number of articles,the Europol Convention itself stipulates that decisions have to be taken by theCouncil in accordance with the procedures foreseen in Title VI of TEU. This meansthat the above-mentioned obligation of Article 39 TEU to consult the Parliamentapplies. Thus it is assured that the EP participates in many important decisions asregards the development of Europol, e.g. any amendment to the Convention.

These provisions of the Amsterdam Treaty improved the role of the EP. Even if theseimprovements are considered to be modest, they do not only apply to Europol, butto all provisions in the field of EU police and judicial co-operation in criminal matters.

The Europol Convention also contains provisions on the European Parliament.Article 34 stipulates that the Presidency shall forward each year a special report onthe work of Europol to the European Parliament. In addition to Article 39 TEU, theConvention lays down that the EP has to be consulted before any change of theConvention. Furthermore, the Parliament has the possibility, through the acting

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Presidency of the Council and the Commission, to remain informed about the workof Europol. It has to be emphasised that the Commission does not take part in thedecision-taking process in Europol structures, nor has it any power of control over it.

Before continuing the debate on whether parliamentary control should cover more ofthe work of Europol than it currently does, we should remember that Europol is apolice office which is working above all in a highly sensitive area: organised crimeand terrorism. The main challenge is to find the right balance between a high level ofparliamentary control and the need for confidentiality and discretion of a policebody working in such a highly sensitive area.

The European Parliament has raised the subject of democratic control several times.In April 1999 it adopted a Recommendation to the Council on the extension ofthe powers of Europol and the reinforcement of parliamentary control over it.4 InOctober 2000 it adopted a Report on the Portuguese initiative to extend Europol’scompetence to money laundering in general.5 More recently, in October 2001, itadopted a report on the joint Belgian-Swedish initiative to extend Europol’scompetence to all forms of crimes listed in the annex to the Europol Convention.6

In its 1999 Recommendation, which was approved before the entry into force of theTreaty of Amsterdam, the Parliament stated that existing parliamentary controlarrangements were too cumbersome and, as a result of the intergovernmental natureof decision-making procedures in the police co-operation area, ineffective. It doesnot relate to the way in which information on Europol’s activities is given to theEuropean Parliament as representing an adequate form of parliamentary control.However, the parliament also argued that Europol’s new powers, based on its supportrole in the co-ordination of police deployment made possible by the Amsterdam Treaty,did not fundamentally alter the system or imperatives of parliamentary control.7

In particular the Parliament

– calls on the Council to incorporate into the Treaty provisions on full parliamentaryand judicial scrutiny of Europol at the level of the European Union and not togive any operational powers to Europol without providing for adequate scrutinyby the European Parliament. The Parliament urges the Council to take account ofthe already established rights of the European Parliament to be informed andconsulted;

– proposes to incorporate Europol’s budget in the Community budget;– suggests that, in the event of Europol’s evolving into a police organisation with cross-border operational powers, the Council should look into setting-up a Europeanpublic prosecutor’s office or some other judicial body. In this case Europol shouldbe given a basis in Community law and should be placed under the responsibilityof a member of the Commission;

4European Parliament recommendation to the Council on Europol: reinforcing parliamentary controls andextending powers; A4-0064/1999 adopted on 13 April 1999 (Rapporteur: Hartmut Nassauer).

5Report on the initiative from the Portuguese Republic with a view to the adoption of a Council Act on thedrawing up on the basis of Article 43(1) of the Europol Convention of a protocol amending Article 2 and theAnnex to the Convention: A5-0312/2000 adopted on 14 November 2000 (Rapporteur: Anna Karamanou).

6Report on the initiative of the Kingdom of Belgium and the Kingdom of Sweden with a view to adopting aCouncil decision extending Europol’s mandate to deal with the serious forms of international crime listed inthe Annex to the Europol Convention.; A5-0370/2001 Final of 24 October 2001 adopted on 13 November2001 (Rapporteur Maurizio Turco).

7See consideration Q and S of the 1999 Recommendation.

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– calls on the Parliaments of the Member States to take consistent account of their rightand duty to supervise the actions of their national Council member responsiblefor Europol and the member States’ representatives appointed to the EuropolManagement Board. This should happen in close co-operation with the EuropeanParliament.

On the occasion of its Report on the Portuguese initiative adopted on 14 November2000, the Parliament repeated its earlier criticism and proposed additional ideas on howto enhance the democratic accountability of Europol (e.g. the appearance of theEuropol Director before the competent Parliamentary Committee; the right of theParliament to request an exchange of views on the special annual report; makingthe European Court of Justice competent to rule on any dispute or conflictbetween Member States regarding the interpretation or application of the EuropolConvention).8

The suggestions which were raised by the European Parliament on the occasion ofthe report on the joint Belgian–Swedish initiative (which related to the extensionof Europol’s mandate to all serious forms of crime listed in the Annex to theEuropol Convention adopted on 13 November 2001) also mainly aims at increasingthe control of the European Parliament over Europol. Thus the Parliament requestedfor example that the Commission should present by the end of 2001 a proposal torevise the Europol Convention following best practices and methods of democraticcontrol of police services in the Member States: ‘‘A proposal for the comprehensivereform of the instruments of police and judicial co-operation, including revision ofthe Europol Convention to bring it into line with higher standards and methods ofdemocratic control of the police forces of the Member States is to be submittedby the Commission by the end of 2001; that comprehensive reform should aim gradu-ally to communitarise those instruments, to strengthen judicial control by the courtof Justice and to fund those instruments through the Community budget.’’9

At the time the Parliament put forward this request the Council had already madean inventory of the amendments to the Europol Convention that were considerednecessary to make Europol function more effectively. Member States judged it usefulto postpone a fundamental discussion on the question of democratic control overEuropol until the Commission’s Communication on the subject. The Communicationcan be considered as an important first step in the process of gradually improvingdemocratic control over Europol: much of it is devoted to clarifying some basic ques-tions concerning the exact tasks and functions of Europol as compared with those ofthe police services of the Member States as well as the currently existing types of controlover the organisation.

It is interesting to observe the organisation of a conference on the subject ofparliamentary and judicial control on Europol (The Hague, 8 June 2001), whichbrought together representatives from all EU Member States and from the EuropeanParliament. Mr. Vitorino stated at this conference:

‘That formally speaking there does not seem to be an urgent need for further parlia-mentary control. But even if this is formally correct, I think that this would have to beconsidered as quite unsatisfactory and short-sighted in light of some of the develop-ments taking place around Europol.’

8Report of the European Parliament; A5-0312/2000, p. 6–8.9Report of the European Parliament; A5-0370/2001 final, p. 6.

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‘Assuming that Europol, in the coming years will get more powers, I am of theopinion that it is only reasonable to launch the debate now and to start a process ofgradual enhancement of parliamentary control.’

The meeting appeared to set out a network for the exchange of information andtaking initiatives, under the name of PARLOPOL. Where those parliamentariansconcerned with police and judicial affairs will be subject to forms of EuropeanInformation Exchange with the Council of Ministers or with the governing bodies ofEuropol and Eurojust.

A second Parlopol-meeting was organised during the Belgian Presidency (October2001) and the general need to enhance parliamentary control was confirmed.

The analysis of the existing controls of Europol indicates that the current systemcannot be regarded as legally insufficient, given the limited nature of the powersattributed to Europol by comparison with those of national police forces. The existingcontrols (through the Parliaments, the national Supervisory Bodies, the JointSupervisory Body and the management Board) are, however, exercised in an indirect,fragmented and not easily understood manner. This gives rise to a general feeling –as widely expressed at the 7–8 June Conference in The Hague – that something clearerand more transparent is needed.

What is felt to be missing at the moment is first of all an institutionalised and regularinformation exchange between those responsible in national parliaments and theEuropean Parliament. If all the provisions and procedures regarding parliamentarycontrol existing at national or EU level were made known to all the other parliaments,the situation would already be improved considerably. In addition, there are no regularformal exchanges foreseen between the parliament and Europol and there is also roomfor improving the information basis of the European Parliament.

In the Commission’s view, such improvements would be achieved through a limitednumber of amendments to the Europol Convention itself, together with the establish-ment of a mechanism enabling national Parliaments and the European Parliamentto examine and co-ordinate their respective roles.

However, if in the future Europol would be entrusted with investigative powers,farther-reaching measures would become necessary. In the meantime the Commissionoffers the following recommendations for consideration in its Communication:

1. Establish a formal mechanism for information exchange and co-ordination betweennational Parliaments and the European Parliament. The current fragmented, andthereby less effective, control, would be gradually transformed into a structuredand unified control at European Union level, based upon an enhanced co-operationbetween the Member States’ parliaments and the European Parliament.To this end a joint committee, consisting of members of both the Member States’

and European Parliaments committees responsible for police matters could be estab-lished. This joint committee could meet twice a year to exchange information andexperience and to discuss matter relating to Europol.10

10An example might be the conference of the community and European Affairs Committees of theParliaments of the European Union (COSAC). COSAC was established in 1989 to reinforce the role ofnational parliaments in the community. The aim of this conference is to intensify the exchange of informationbetween the various committees in national parliaments specialising in European affairs and to meet twice ayear to discuss issues of common concern.

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2. Amend Article 34 of the Europol Convention, so as to come to a single annualreport on Europol’s activities for information of both the European Parliamentand the Council.

3. Amend Article 34 of the Europol Convention, so as to give the European Parliamentthe formal right to request an exchange of views on the Europol annual report withthe Presidency.

4. Amend Article 34 of the Europol Convention, so as to give the European Parliamentthe formal right to request the Europol Director to appear before the competentcommittee.

5. Amend Article 24(6) of the Europol Convention, so as to make it obligatory for theJoint Supervisory board to draw up its activity report on an annual basis and toforward it to the European Parliament. It could be envisaged to include inthese reports information on the controls carried out by the National SupervisoryBodies.

Hence, for the time being, the system of external controls seems inefficient. Thedeficit is partly due to the fact that there is no institutionalised judicial control inplace yet, despite the recent advances of the Treaty of Amsterdam and the agreementreached in the Tampere Summit (15–16 October 1999), with the creation of Eurojustby the end of 2001. Likewise, the lack of common European codes and the still farfrom possible penal code leads us to think about stability of a common deontologicalcode. The publication of Recommendation 1402 (1999) on the control of MemberStates Internal Security Services of the Council of Europe is a great advance in thisarea.

Last but not least, operative activities (even while limited at this moment) shouldbe subject to judicial authority with clear conditions on systems of accountabilityand improved and more effective democratic control must be organised.

6. OTHER EU INSTITUTIONS AND PARLIAMENTARY CONTROL

Several other third pillar organisations (Eurojust, Cepol) are in creation. Eurojustwas set up by Council Decision of 28th February 2002 inviting Eurojust to alsoestablish and maintain close co-operation with Europol in so far as relevantfor the performance of its tasks and for achieving its objectives, the essentialelements of this co-operation being determined by an agreement as for Europolnothing is foreseen on parliamentary control. Subsequently, the control mechanismto be put in place covers Europol as well as other intergovernmental institutionswhich operate in the area of police and judicial co-operation in criminal matters.

The agreement to be concluded between at the one hand Europol and Eurojust andat the other hand Europol and CEPOL11 will be an ideal opportunity to further explorethe creation of common control instruments. At the time of writing, these agreementswere planned to be achieved during the first semester 2002.

11The European Police College.

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7. CONCLUSION AND RECOMMENDATIONS

It is probably correct to say that Europol’s accountability is dealt with at both nationaland international level. At national level, Europol can be held accountable by means ofnational court procedures as well as the national Data Protection Commissioners.Accountability would be tested in criminal cases, where the information suppliedby Europol could be checked (to determine whether it was collected and analysed incompliance with the convention and whether it falls within the scope of Europol’sremit), through data protection procedures (national control authorities) as well asthrough civil procedures in cases where damage was caused. Civil liability, as regulatedin Articles 37 and 38 of the Convention, can be seen as part of Europol’s accountability.Europol will be accountable to the national parliaments through the competentnational ministers and the Management Board.

At international level, Europol will be directly accountable to the ManagementBoard and the Joint Supervisory Board. Indirectly, and to a limited extent, it will beaccountable to the European Court of Justice, namely by means of a protocol. Therewill also be certain accountability to the European Parliament, even though Europolis only obliged to supply this institution with reports on its activities.

One specific problem particularly concerns Europol’s accountability to judicialauthorities. Reference is not made here to the role of the European Court, but tothat of the national penal courts and the prosecutors. This problem has alreadyemerged in the early intelligence stage of European co-operation (for instance inrelation to an important money laundering case with suspects in several countries).

In the past, the competent judicial authority has often been the one from the placewhere police action was first taken. There are no criteria at EU level for deciding inwhich country any proceedings should be brought, whereas provision is of coursemade in various conventions for the final stages of the judicial process (transfer ofcriminal proceedings and sentenced persons, extradition) (Storbeck, 1997: 117).

Accountability mechanisms are only partly in place and equally democratic andlegal accountability are insufficiently developed at international and EU level, andimprovements are becoming more and more pressing (Van den Wyngaert, 1997: 165).

Political and judicial control is especially in urgent need for improvement. As far asthe judicial accountability is concerned, two solutions are possible; a network ofspecialised Member State accountability systems or Eurojust.

Democratic control deserves an EU (European Parliament?) approach. The questionthen arises to what extent the European Parliament has the possibility to control aThird Pillar institution. Whatever the legal answer is, the actual initiation, as describedabove, must become subject of a final decision.

Such a structural accountability regime must be a sufficiently solid system, capable tosurvive the continuously changing EU institutional climate.

The new regime should get an overall responsibility for communautarian (OLAF) aswell as intergovernmental organisations (Europol, Eurojust) which operate on behalfof the EU.

References

Boer, M. den (Ed.) (2002). Organised Crime: A Catalyst in the Europeanisation of National Police andProsecution Agencies? European Institute of Public Administration, Maastricht.

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Boer, M. den (Ed.) (1997). Undercover Policing and Accountability from an International Perspective. EIPA,Maastricht.

Bruggeman, W. (2001). International law enforcement cooperation: a critical assessment. European Journal onCriminal Policy and Research, 283–290.

Duverger, M. (1994). Europa de los Hombres: Una Metamorfosis Inacabada. Madrid, Alianza.IHESI (1998). Les parteges de la Securite: Mediation, Partenariat et Securite. Paris.Mueller, G. and Besharov. (1999). Evolution and enforcement of international criminal law. International

Criminal Law, Vol. I., pp. 257–267.Recasens, A. (2000). The control of police powers. European Journal of Criminal Policy and Research,

247–269.Storbeck, J. (1997). Co-ordinating the flow of European intelligence: Europol’s accountability mechanisms.

In: Boer, M. den (Ed.), Undercover Policing and Accountability from an International Perspective.EIPA, Maastricht.

Valkeneer, D. De (1991). Le Droit de la Police. Bruxelles, De Boeck.Walker, N. (1997). Deficient weaponry, reluctant marksmen and obscure targets. In: Boer, M. den (Ed.),

Undercover Policing and Accountability from an International Perspective. EIPA, Maastricht.Wyngaert, C. Van den (2000). International Criminal Law. Kluwer, The Hague.Wyngaert, C. Van den (1997). Organised crime, proactive policing and international police cooperation in

criminal matters: who controls the police as an international context? In: Boer, M. den (Ed.),Undercover Policing and Accountability from an International Perspective. EIPA, Maastricht.

Yepes-Enriquez, R. (2001). Enforcement of the Prohibition of Chemical Weapons in its Wider Perspective.The Hague.

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