Action plan to combat organized crime (Adopted
by the Council on 28 April 1997)
Official Journal C 251 , 15/08/1997 p. 0001 - 0016
Dates:
OF DOCUMENT:
28/04/1997
OF END OF VALIDITY:
99/99/9999
Subject matter: JUSTICE AND HOME AFFAIRS
Directory classification code: 19000000
EUROVOC descriptor: organized crime ; action programme ; fight
against crime ; EU police
cooperation ; EU judicial cooperation ; Europol
ACTION PLAN TO COMBAT ORGANIZED CRIME (Adopted by the Council
on 28 April 1997) (97/C
251/01)
PART I
INTRODUCTION
Chapter I
Background
1. Organized crime is increasingly becoming a threat to society
as we know it and want to preserve it.
Criminal behaviour no longer is the domain of individuals only,
but also of organizations that pervade
the various structures of civil society, and indeed society as
a whole. Crime is increasingly organizing
itself across national borders, also taking advantage of the
free movement of goods, capital, services
and persons. Technological innovations such as Internet and electronic
banking turn out to be
extremely convenient vehicles either for committing crimes or
for transferring the resulting profits into
seemingly licit activities. Fraud and corruption take on massive
proportions, defrauding citizens and
civic institutions alike.
In comparison, effective means of preventing and repressing these
criminal activities are developing
only at a slow pace, almost always one step behind. If Europe
is to develop into an area of freedom,
security and justice, it needs to organize itself better, and
to provide strategic and tactical responses
to the challenge facing it. This requires a political commitment
at the highest level.
2. The European Council (Dublin 13 and 14 December 1996) underlined
its absolute determination to
fight organized crime and stressed the need for a coherent and
coordinated approach by the Union. It
decided to create a High Level Group to draw up a comprehensive
Action Plan containing specific
recommendations, including realistic timetables for carrying
out the work. The Group was requested to
examine the fight against organized crime in all its aspects
on the clear understanding that it would
refer any issues involving Treaty change to the Intergovernmental
Conference (IGC) which is
addressing Treaty changes in this area as a priority. The Group
should complete its work by
March/April 1997 (1). The letter of the Chairman of the High
Level Group to the Chairman of the IGC
containing the results of this examination is set out in an Annex
to this report.
3. The High Level Group has held six meetings in pursuance of
this mandate. Its findings have led to
the drawing up of 15 Political Guidelines and 30 Specific Recommendations,
together with a proposed
timetable and an indication of where the responsibility for implementation
of each recommendation
might be considered to lie. These are set out in Part III of
this report in the form of a detailed Action
Plan.
4. In submitting this Action Plan to the Heads of State and Government,
the High Level Group
underlines its conviction that the fight against organized crime
and terrorism is a never-ending
endeavour. The fight must be uncompromising but must always use
legitimate means and pay full
respect to the principles of the Rule of Law, democracy and human
rights, not losing sight of the fact
that it is the protection of those values which is the raison
raison d'être for fighting organized crime.
Chapter II
General approach of the High Level Group
5. In seeking to respond to the high level of urgency and political
importance attached by Heads of
State and Government to the problem of combating organized crime,
as reflected in the Dublin
European Council conclusions, the Group has based its approach
on the following elements:
(a) full account should be taken of the work already being pursued
on this same question nationally,
within the European Union itself and in a number of international
fora. This has been particularly
relevant since some of the most significant of these international
fora, notably the P-8 and the Visby
Group, involve several European Union Member States. It also
means working closely with the
countries that are candidates for membership of the Union, with
the Union's Transatlantic partners,
with other countries such as Russia and the Ukraine and with
the major international players active in
the fight against organized crime (Interpol, United Nations bodies
such as the United Nations
International Drug Control Programme (UNDCP) and the Commission
on Crime Prevention and Criminal
Justice, Council of Europe, the Financial Action Task Force (FATF)
etc.);
(b) the Group's recommendations should, however, focus on the
particular strengths and objectives of
the European Union as such, as set out in the Treaty. This provides
its Member States with a range of
instruments, resources (including budgetary resources), institutions
and mutual commitments not
available to any other group of nations seeking to address a
problem of this magnitude.
(c) the right balance should be sought between the respective
contributions that can be mobilized by
practical cooperation on the one hand and approximation or harmonization
of laws on the other. The
extent to which approximation or harmonization should be a long-term
objective of the Union will
remain the subject of ongoing study. In the meantime, the Group
has sought to establish the degree
of approximation or harmonization necessary to ensure the most
effective possible framework for
practical cooperation;
(d) judicial cooperation needs to be brought up to a comparable
level to police cooperation. Otherwise,
it will not, in the long run, be possible to enhance further
police cooperation without distortions in the
system. Therefore, it is necessary to seek to achieve maximum
synergy in cooperation between law
enforcement (2) and the judiciary;
(e) when it comes to the collection and analysis of data to fight
organized crime, the relevant data
protection rules have to be taken into account;
(f) prevention is no less important than repression in any integrated
approach to organized crime, to
the extent that it aims at reducing the circumstances in which
organized crime can operate. The Union
should have the instruments to confront organized crime at each
step on the continuum from
prevention to repression and prosecution. It is particularly
important that legislation does not invite
fraud and other undue exploitation. The Member States and, where
applicable, the institution issuing
such rules should ensure that this is not the case;
(g) the major driving force behind organized crime is the pursuit
of financial gain. This both attracts it
into an ever-increasing number of areas of activity where it
sees possibilities for economic crime
(corruption, counterfeiting, VAT and other fiscal fraud, piracy,
fraud against the Community'sfinancial
interests) and also faces it with a need to launder the profits
thereafter;
(h) organized crime has shown itself well able to turn to its
advantage the speed and anonymity
offered by modern forms of communication. This is a vast and
fast-moving area, deserving of the
sustained attention of legislators and law enforcement authorities
alike.
Chapter III
Means to combat organized crime
6. Taking into account this general approach, the Group has identified
the use of the following means,
available to the Union, to ensure that the fight against organized
crime is carried out in an effective
and coordinated manner and that a new impetus is given to the
protection of the citizens of the Union:
(a) the Union and its Member States must mobilize its full potential
by introducing a maximum level of
two-way involvement between those who draw up the initial legislation,
often at Community level, and
those whose task it is to enforce it in the police, the customs
and the judiciary. This implies the full
involvement of the Member States as well as the European Commission
and a coordinated effort
between the first and third pillars of the Union, including a
full and reciprocal exchange of relevant
information;
(b) in combating organized crime, there is a clear need to 'know
your enemy` and to agree on the
characteristics which make it both dangerous and, it is hoped,
vulnerable. This in turn requires the
building up and pooling of analytical expertise, including support
from the scientific community, from all
Member States and, where appropriate, the European Institutions
and Europol. So far as possible, this
should be done according to common definitions, common standards
and a common methodology with
a view to facilitating the recognition of the phenomenon when
it appears and the formulation of an
effective policy to counter it, including its repression at the
level of law enforcement and prosecution;
(c) the adoption, ratification and effective implementation of
all instruments directly or indirectly
relevant to the fight against organized crime will continue to
be an essential part of the Union's
armoury. Political input from the European Council is needed
to ensure:
- that any remaining obstacles to the finalizing of the texts
of unfinished instruments (for example, the
draft Conventions on Mutual Legal Assistance and on Corruption
as well as the draft Third Protocol to
the Convention on the Protection of the European Communities'
Financial Interests and the Naples II
Convention concerning customs cooperation) are quickly overcome,
- that any necessary ratification procedures are urgently put
on the agenda of national parliaments,
- that the necessary implementing measures are rapidly and fully
introduced;
(d) there is a need for an effective system to be introduced to
monitor the implementation by Member
States of all the relevant instruments adopted by the Union to
combat organized crime. As far as
instruments adopted under Community law is concerned, such a
system to some extent exists in the
form of the Article 169 procedure which the Commission is responsible
for initiating. No comparable
system exists under the existing provisions of the Third Pillar.
This gap could be filled by drawing on
the experiences of, for instance, the FATF;
(e) the problem of imperfect cooperation between the various authorities
responsible for law
enforcement and prosecution has to be addressed both within and
among Member States. Centralized
national points are recommended as an addition to, but not a
replacement for, existing networks to
facilitate exchanges of information between Member States;
(f) it is important to optimize the role Europol might play at
each stage of the fight against organized
crime. The Europol Convention, as presently drafted, provides
scope for a considerable role, and
priority must continue to be attached to the rapid ratification
and implementation of the Convention,
without prejudice to the need to enable the Europol Drugs Unit
(EDU) to fully fulfil its mandate.
However, following the ratification of the Europol Convention,
the Group sees an enhanced role for
Europol which is set out in the detailed recommendations and
could be seen to go beyond that
provided for in the Convention;
(g) To counter money laundering in particular the international
community has drawn up a number of
conventions, agreements and recommendations (Strasbourg, Vienna,
the FATF) which are applied with
varying degrees of rigour. The Union and its Member States must
be totally rigorous, both in the
implementation of the various international instruments to combat
money laundering, as well as its
own legislation (including the 1991 Directive), and in ensuring
the maximum level of cooperation and
two-way information exchange between its financial and fiscal
institutions and its law enforcement and
judicial authorities. This can in turn require adjustments in
national procedures and a higher level of
specialized training than is currently undertaken.
PART II
POLITICAL GUIDELINES
7. The High Level Group recommends the European Council to approve
this Action Plan and the
time-frame indicated for its realization.
8. Among the recommendations set out in the Action Plan are a
certain number which the Group
considers appropriate to be drawn to the particular attention
of Heads of State and Government, as
they require a commitment at the highest level. The High Level
Group recommends that the European
Council adopts the following recommendations as its own political
guidelines:
(1) The Council is requested rapidly to adopt a joint action aiming
at making it an offence under the
laws of each Member State for a person, present in its territory,
to participate in a criminal
organization, irrespective of the location in the Union where
the organization is concentrated or is
carrying out its criminal activity.
Moreover, the European Council calls upon the Council to examine
to what extent, and within which
priority areas, a possible approximation or harmonization of
Member States' laws could contribute to
the fight against organized crime.
(2) The European Council urges the early adoption of the Conventions,
as listed in Recommendations
13 and 14 in Part III and within the time-frame indicated there,
which are considered essential for the
common fight against organized crime.
In order to further an effective implementation of the European
Union Conventions on Extradition
already drawn up, the European Council asks the Member States
to take, at national level, the
necessary measures to ensure that extradition requests can be
dealt with in the most simple and
expeditious manner.
In this context, the Council should also examine, taking into
account the Member States' undertakings
under international treaties, the means to ensure that the right
of asylum is not abused to avoid
justice by offenders involved in serious crime.
(3) The Council is requested to establish a mechanism, based on
the experience with the model
developed in the FATF, for mutually evaluating the manner in
which instruments concerning
international cooperation in criminal matters, are applied and
implemented in each of the Member
States.
(4) The European Council reiterates that it attaches the greatest
importance to an early agreement on
the draft Convention on Mutual Assistance in Criminal Matters
between the Member States of the
European Union. The draft should include, among other matters,
provisions which aim at rendering
reservations made to the Council of Europe Convention on Mutual
Assistance in Criminal Matters and
its Protocol superfluous in the relations between the Member
States. In this context, special attention
should be given to the reconsideration of the requirement of
double criminality.
(5) The European Council encourages the Council and the Commission
to define in common with the
candidate countries of Central and Eastern Europe, including
the Baltic States, a Pre-accession Pact on
cooperation against crime, which shall be based on the acquis
of the Union and may include provisions
for close cooperation between those countries and Europol and
undertakings by those countries to
rapid ratification and full implementation of the Council of
Europe instruments which are essential to
the fight against organized crime.
The European Council stresses the need to develop closer cooperation
in the fight against organized
crime with other countries such as Russia and Ukraine and asks
the Council and the Commission to
develop proposals to that end.
(6) The European Council stresses the importance for each Member
State to have competent law
enforcement agencies coordinate their action, at national level,
in the fight against organized crime as
well as share information and act in a concerted manner.
(7) Each Member State shall ensure that, in order to facilitate
contacts with other Member States, with
Europol and with the Commission, it shall have a single contact
point providing access to all the law
enforcement agencies having a responsibility to fight organized
crime.
(8) Similarly, and without prejudice to the need to foster direct
contacts between judicial authorities of
the Member States, a network for judicial cooperation should
be established at the European level. In
order to develop this network, each Member State shall set up,
where this does not already exist, in
accordance with its constitutional structure, a central contact
point permitting the exchange of
information between national judicial authorities.
(9) Within the Council a permanent multidisciplinary Working Party
on organized crime shall be
established, consisting of competent authorities, to develop
policies to coordinate the fight against
organized crime. The setting up in each Member State of comparable
multidisciplinary teams with the
same tasks and their input into the Council Working Party would
facilitate a coordinated approach at a
European level.
(10) The European Council reiterates its view that Europol should
be given operative powers working
together with national authorities. To that end, and without
prejudice to the outcome of the IGC,
Europol should, as soon as possible, be enabled to:
(i) facilitate and support the preparation, coordination and carrying
out of specific investigative actions
by the competent authorities of Member States, including operational
actions of joint teams comprising
representatives of Europol in a support capacity;
(ii) ask the competent authorities of the Member States to conduct
investigations in specific cases and
develop specific expertise which may be put at the disposal of
Member States to assist them in
investigating cases of organized crime;
(iii) be instrumental in the collation and exchange of information
by the law enforcement agencies of
reports on suspicious financial transactions.
Insofar as the legal instruments of the Union have to be changed
in order to enable Europol to carry
out this mandate, the European Council requests the Council to
take the necessary steps rapidly to do
so. In the meantime, the European Council stresses the need to
enable the EDU to fully fulfil its
mandate.
An in-depth study should be carried out with a view to examining
the place and the role of judicial
authorities in their relations with Europol, in step with the
enlargement of Europol's competences.
(11) The European Council stresses the importance for each Member
State of having well-developed
and wide ranging legislation in the field of confiscation of
the proceeds from crime and the laundering
of such proceeds. The Council, and the Commission, are requested
to develop proposals aiming at a
further enhancement of such legislation bearing in mind the importance
of:
- introducing special procedures for tracing, seizure and confiscation
of proceeds from crime,
- preventing an excessive use of cash payments and cash currency
exchanges by natural and legal
persons from serving to cover up the conversion of the proceeds
from crime into other property,
- extending the scope of the laundering provisions to the proceeds
from all forms of serious crime, and
making a failure to comply with the obligation to report suspicious
financial transactions liable to
dissuasive sanctions,
- addressing the issue of money laundering on the Internet and
via electronic money products.
(12) The European Council stresses the need for developing closer
cooperation, at the national level,
between fiscal and law enforcement authorities, in the fight
against organized crime. Rules should be
examined so that:
- financial centres and offshore facilities subject to the jurisdiction
of Member States shall have
adequate defences against being used by organized crime,
- in cases linked with organized crime, there is no legal bar
to allowing or obliging the fiscal authorities
to exchange information with the competent authorities of the
Member States concerned, and in
particular with the judiciary, while fully respecting fundamental
rights,
- fiscal fraud linked with organized crime is treated as any
other form of organized crime,
notwithstanding that fiscal laws may contain special rules on
recovering the proceeds of fiscal fraud,
- disbursements for criminal purposes such as corruption, are
not tax-deductible.
Moreover, the prevention and the suppression of organized fiscal
fraud such as VAT and excise fraud,
including in particular its transnational aspects, should be
considerably improved at both national and
European level.
(13) The European Council stresses the importance of enhancing
transparency in public administration
and in businesses and preventing the use by organized crime of
corrupt practices. In this context, the
Member States, the Council and the Commission, should
- develop, while taking account of work carried out in other international
fora, a comprehensive policy
to tackle corruption, including appropriate and efficient sanctions,
but also tackling all aspects linked
with the proper functioning of the internal market and other
internal policies, as well as external
assistance and cooperation,
- develop rules allowing the exchange of information between
Member States with respect to legal
persons registered in each Member State and the physical persons
involved in their creation, direction
and funding, with a view to preventing the penetration of organized
crime in the public and legitimate
private sector,
- taking necessary steps to allow the exclusion of criminal organizations
or their members from
participation in tendering procedures, receiving subsidies or
governmental licences. Specific attention
should be paid to the illicit origin of funds as a possible reason
for exclusion from tendering
procedures.
Moreover,
- standards should be studied and developed, where necessary,
at the European level aimed at
preventing the liberal professions and other professions particularly
exposed to influences of
organized crime, from being involved in such crime or being exploited
by criminals. The active
assistance of the professional organizations involved should
be sought to that end,
- the Union institutions as well as the Member States should,
when drawing up legal instruments,
emphasize crime prevention aspects in order to ensure that the
rules do not invite fraud or other
undue exploitation, or in other ways may be used to commit or
conceal crime.
(14) The possibilities offered by the structural funds, notably
the European Social Fund and the URBAN
programme, should be mobilized to prevent large cities in the
Union from becoming breeding grounds
for organized crime. Particular attention should be given to
the circumstances in which socially
weakgroups become vulnerable to the prospect of a criminal career.
The exchange of information on
projects which proved successful in this field should be enhanced.
(15) A cross-pillar study on high-technology crime should be carried
out. This study should pave the
way for a policy ensuring that law enforcement and judicial authorities
have the possibility to prevent
and combat the abuse of these new technologies. Special attention
should be given to both illegal
practices and illegal content.
Moreover, the Council and the Commission should address the issue
of fraud and counterfeiting
relating to all payment instruments, including electronic payment
instruments.
The High Level Group recommends that the European Council should
ask the Council to report to it in
June 1998 on the progress made in the carrying out of the measures
proposed in the Action Plan.
The High Level Group recommends that the European Council should
instruct the Council to monitor at
regular intervals, for instance through the meetings of the K.4
Committee, progress made in the
carrying out of this Action Plan.
PART III
DETAILED ACTION PLAN
This Detailed Action Plan translates in operational terms the
Political Guidelines in Part II and adds
some technical elements to ensure a coherent approach to the
fight against organized crime. The
Recommendations made in the Detailed Action Plan should be seen
as a work programme, indicating
the direction which further work by the various Union institutions
and bodies shall take, rather than as
a legal instrument.
Chapter I An approach to the phenomenon of organized crime
This Chapter draws inspiration from political guidelines Nos
5-7 and 15 set by the European Council.
Recommendations:
1. It is for each Member State to decide on the organization of
its own structures to fight organized
crime. Nevertheless, the High Level Group considered it appropriate
that the European Council should
stress the importance of an appropriate coordination between
competent agencies at national level
(see political guideline No 6). Such a coordination might in
particular enable law enforcement agencies
better to share information and act in a concerted manner. Therefore,
each Member State should
examine whether it would be appropriate, in accordance with its
constitutional law or practice, to
designate a body at national level which would have an overall
responsibility for the coordination of
the fight against organized crime. It will be for the authorities
of the Member State - and for them
alone - to draw the consequences of such an examination.
Target date: end of 1997.
Responsible (3): Member States.
2. The Member States, and the Commission, should, where it does
not already exist, set up or identify
a mechanism for the collection and analysis of data which is
so construed that it can provide a picture
of the organized crime situation in the Member State and which
can assist law enforcement authorities
in fighting organized crime. Member States shall use common standards
for the collection and analysis
of data. The information so collected and analysed shall be organized
in such a way that it is readily
accessible for investigations and prosecutions at national level
and can be effectively used and
exchanges with other Member States.
To that end, the Member States and the Commission shall set up
a Contact and Support Network to
serve as advising mechanism for the collection of data and the
analysis at European level. Europol
shall be integrated in this work and produce annual reports on
the basis of the information from the
Member States. The academic and scientific world should be further
encouraged to contribute by their
studies and research to the understanding of the phenomenon of
organized crime.
Target date: mid 1998.
Responsible: Member States/Council/Europol/Commission.
3. The European Council encourages the Council and the Commission
to define in common with the
candidate countries of Central and Eastern Europe, including
the Baltic States, a Pre-accession Pact on
cooperation against crime, which may include provisions for close
cooperation between these
countries and Europol and undertakings for the rapid ratification
and full implementation of the Council
of Europe instruments which are essential to the fight against
organized crime (see political guideline
No 5). The Pact should be based on the acquis of the Union in
the field of organized crime and form
part of the pre-accession strategy in which the potential of
the existing instruments such as the Phare
programme should be fully explored. In the discussions with the
candidate countries, the need should
be underlined for them to reach a standard which is comparable
to that of the Member States of the
Union, in particular as regards undertakings contained in international
instruments such as those
relating to terrorism. In this context, it should be examined
whether these countries could be
associated with some of the activities of the Multidisciplinary
Party on Organized Crime.
Target date: end 1998.
Responsible: Council/Commission.
4. Separate from the discussions on a Pre-accession Pact, it is
necessary to develop closer cooperation
with other countries and international organizations and bodies
involved in the fight against organized
crime. In particular relations with the Union's Transatlantic
partners as well as with Russia and Ukraine
need to be developed, the latter two for instance through the
Tacis programme. Concrete proposals
for closer cooperation, for instance through the intermediary
of Europol, should be developed by the
Council and the Commission (see political guideline No 5).
Target date: end 1998.
Responsible: Council/Commission.
5. A cross-pillar study on high-technology crime and its use and
links with organized crime should be
carried out within the Union (see political guideline No 15).
This study should pave the way for a policy
ensuring an efficient public protection. While avoiding undue
restrictions, law enforcement and judicial
authorities should have the means, as a complement to the specific
responsibilities incumbent on the
technology and service-providers, to prevent and combat the misuse
of these new technologies.
Attention should be paid both to illegal practices (such as the
use of these technologies by criminal
organizations to facilitate their activities) or illegal contents
(such as child pornography or
dissemination of synthetic drug recipes).
Target date: end 1998.
Responsible: Commission/Europol/Council.
Chapter II
Prevention of organized crime
This Chapter draws inspiration from political guidelines Nos 13-14 set by the European Council.
Recommendations:
6. A comprehensive policy against corruption should be developed,
taking into account the work
already carried out also in other international fora, in order
to enhance the transparency in public
administration, at the level of both the Member States and the
Communities (see political guideline No
13). This policy should primarily focus on elements of prevention,
addressing such issues as the impact
of defective legislation, public-private relationships, transparency
of financial management, rules on
participation in public procurement, and criteria for appointments
to positions of public responsibility,
etc. It should also cover the area of sanctions, be they of a
penal, administrative or civil character, as
well as the impact of the Union's policy on relations with third
States.
Target date: mid 1998.
Responsible: Commission/Council/Member States.
7. The Member States and the European Commission should ensure
that the applicable legislation
provides for the possibility for an applicant in a public tender
procedure who has committed offences
connected with organized crime to be excluded from the participation
in tender procedures conducted
by Member States and by the Community. In this context it should
be studied whether and under what
conditions persons who are currently under investigation or prosecution
for involvement in organized
crime could also be excluded. Specific attention should be paid
to the illicit origin of funds as a possible
reason for exclusion. The decision of exclusion of the person
from participation in the tender procedure
should be capable of being challenged in court.
Similarly, the Member States and the Commission should ensure
that the applicable legislation
provides for the possibility of rejecting, on the basis of the
same criteria, applications for subsidies or
governmental licences (see political guideline No 13).
Appropriate Community instruments and instruments of the European
Union, enabling inter alia
exchange of information among Member States and between Member
States and the Commission, and
containing specific provisions relating to the role of the Commission
both in administrative cooperation
and the setting up of black-lists, should be drawn up to ensure
that these commitments can be carried
out, while ensuring conformity with the relevant rules relating
to data protection.
Target date: end 1998.
Responsible: Member States/Commission.
8. Member States shall, with respect to legal persons registered
in their territory, seek to collect
information, in compliance with the relevant rules relating to
data protection, with respect to the
physical persons involved in their creation and direction, as
well as their funding, as a means to
prevent the penetration of organized crime in the public and
legitimate private sector. It should be
studied how such data could be systematically compiled and analysed
and be available for exchange
with other Member States and, where appropriate, with bodies
responsible at Union level for the fight
against organized crime, on the basis of appropriate rules to
be developed by the Council (see political
guideline No 13).
Target date: end 1998.
Responsible: Member States/Council/Commission.
9. The possibilities offered by structural funds, notably the
European Social Fund in the context of
action to assist the labour market, and the Urban programme,
should be mobilized to prevent large
cities in the Union from becoming breeding grounds for organized
crime. Those funds can help those
most at risk of exclusion from the labour market and thus alleviate
the circumstances that could
contribute to the development of organized crime. Particular
attention should be given to groups not
fully integrated in society, since these may be vulnerable targets
for criminal organizations. The
exchange of information on projects which proved successful in
this field should be enhanced. The
results of the annual consultations of Chiefs of police from
the capitals of Member States should be
taken into account in this context (see political guideline No
14).
Target date: end 1998.
Responsible: Commission/Member States.
10. The Member States should consult regularly the competent services
of the Commission with a view
to analysing cases of fraud affecting the financial interests
of the Community, and deepening the
knowledge and understanding of the complexities of these phenomena
within existing mechanisms
and frameworks. If necessary, additional mechanisms shall be
put in place with a view to arranging
such consultations on a regular basis. In this context, future
relations between Europol and the
Commission's anti-fraud unit (Uclaf) should be taken into account.
Target date: end 1997.
Responsible: Member States/Commission/Europol.
11. The Council should adopt a joint action establishing a specific
multi-annual programme to combat
organized crime, including fraud affecting the financial interests
of the Communities, permitting specific
actions in the fields of training for key players responsible
for preventive policies, exchanges of
information, research, and other forms of improving skills and
operational methods.
Target date: end 1997
Responsible: Council/Commission.
12. Measures to shield certain vulnerable professions from influences
of organized crime should be
developed, for instance through the adoption of codes of conduct.
A study should propose specific
measures, including legislative action, to prevent notaries,
lawyers, accountants and auditors from
being exploited or getting involved in organized crime and ensure
that their professional organizations
are engaged in the establishment and enforcement of such codes
of conduct at the European level
(see political guideline No 13).
Target date: mid 1998 and, possibly, joint action mid 1999.
Responsible: Council/Commission/Member States (in cooperation
with the professional organizations
concerned, e. g. the Council of the Bars and Law Societies of
the European Community (CCBE)).
Chapter III
Legal instruments, scope, implementation
This Chapter draws inspiration from political guidelines Nos 1-5 and 15 set by the European Council.
Recommendations:
13. Member States consider that the conventions mentioned below
and in recommendation 14 are
essential to the fight against organized crime (see political
guideline No 2). Those States which have
not yet ratified them should make proposals to their Parliaments
with a view to a speedy ratification
within the given timetable. Should any convention not have been
ratified by the set target date, they
shall report to the Council in writing on the reasons therefor
every six months until the convention has
been ratified.
If a Member State has not ratified a convention within a reasonable
time for any given reason, the
Council shall assess the situation with a view to solving it.
As part of the Pre-accession Pact (see
political guideline No 5) to be defined with the candidate countries
of Central and Eastern Europe,
including the Baltic States, undertakings should be sought from
these countries of a similar character.
1. European Convention on Extradition, Paris 1957.
2. Second Protocol to the European Convention on Extradition, Strasbourg 1978.
3. Protocol to the European Convention on Mutual Assistance in Criminal Matters, Strasbourg 1978.
4. Convention on Laundering, Search, Seizure and Confiscation
of the Proceeds from Crime,
Strasbourg 1990.
5. Convention on Mutual Assistance between Customs Administrations
and Protocol thereto, Naples
1967.
6. Agreement on Illicit Traffic by Sea, implementing Article 17
of the United Nations Convention against
Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
Strasbourg 1995.
7. Convention on the Fight against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances, Vienna
1988.
8. European Convention on the Suppression of Terrorism, Strasbourg
1977.
Target date: end 1998.
Responsible: Member States.
14. The following European Union conventions should each be ratified
(see political guideline No 2) by
the target dates set out below, while taking into account availability
of explanatory reports, where
applicable. When drawing up new conventions, the Council should
set a target date for their adoption
and implementation in accordance with the constitutional requirements
of the Member States.
1. Convention on simplified extradition procedure between the
Member States of the European Union -
end 1998.
2. Europol Convention - end 1997 as an absolute latest date.
3. Convention on the Protection of the European Communities' Financial Interests - mid 1998.
4. Convention on the Use of Information Technology for Customs Purposes - end 1998.
5. Convention relating to Extradition between the Member States of the European Union - end 1998.
6. Protocols to the Convention on the protection of the European
Communities' Financial Interests -
mid 1998.
Responsible: Member States/Council.
Moreover, all efforts should be made to ensure that current discussions
on draft instruments, and in
particular those relating to the draft Third Protocol to the
Convention on the Protection of the
European Communities' Financial Interests, the draft Convention
on Corruption and the so-called
Naples II draft Convention on customs cooperation are finalized
by the end of 1997.
Responsible: Council.
15. A mechanism should be established, based on the experience
with the model developed in the
FATF, to mutually evaluate the application and implementation
at national level of the European Union
and other international instruments and undertakings in criminal
matters as well as ensuing national
law, policies and practices (see political guideline No 3). Such
a mutual 'peer-evaluation` should as a
priority be carried out in respect of judicial cooperation and,
could, if the experience proves positive, be
extended to other areas of implementation.
The evaluation should be based on the following principles: parity
of the Member States, mutual trust,
pre-established scope and criteria for the evaluation in the
form of a self-evaluation and, in respect of
the mutual evaluation procedure, check-lists and an assurance
that experts from all Member States
will participate, at some stage, in the evaluation process. The
results of the evaluation shall remain
confidential unless the Member State concerned wishes to make
them public.
Target date: end 1997/mid 1998.
Responsible: Council/Member States/Commission.
16. In order to render judicial cooperation in the fight against
organized crime more efficient, the
ongoing work on a draft Convention on Mutual Assistance in Criminal
Matters should be finalized
before the end of 1997 (see political guideline No 4). As soon
as possible, the content of the
Convention should be enlarged, while taking into account the
necessity to accelerate procedures for
judicial cooperation in matters relating to organized crime and
considerably reducing delay in
transmission and responses to requests.
Instruments adopted by the Council regarding individuals who
cooperate with the judicial process and
on the protection of witnesses as well as the specific needs
of police cooperation connected with
pre-trial investigations and judicial cooperation in certain
countries should be considered.
Specific consideration to the needs to fight organized crime
should be given in the ongoing work on a
draft Convention. To this end, the competent working party should
examine how:
(a) reservations entered with regard to the 1959 European Convention
on Mutual Assistance and its
Protocol can be rendered superfluous among Member States of the
European Union, for instance by
including provisions in the draft providing for the safeguarding
of principles of non bis in idem, by
reconsidering requirements of double criminality or by making
use of the right of refusal under the
Convention only in cases where the request is likely to prejudice
the sovereignty, security, public
order, or other essential interests of the Member State;
(b) a legal basis could be created for the trans-boundary application
of certain modern investigative
methods, such as controlled delivery, deployment of undercover
agents and the interception of various
forms of telecommunications.
Target date: end 1997/mid 1998.
Responsible: Member States/Council.
17. The Council is requested rapidly to adopt a joint action aiming
at making it an offence under the
laws of each Member State for a person, present in its territory,
to participate in a criminal
organization, irrespective of the location in the Union where
the organization is concentrated or is
carrying out its criminal activity (see political guideline No
1). Such an offence could consist in the
behaviour described in Article 3(4) of the Extradition Convention,
adopted by the Council on 27
September 1996. Since legal traditions differ among Member States,
it could be considered acceptable,
for a limited period of time, that not all Member States will
be able to sign up immediately to the
agreed definition.
Target date: end 1997.
Responsible: Council.
Moreover, the Council should examine to what extent, and within
which priority areas, a possible
approximation or harmonization of Member States' laws could contribute
to the fight against organized
crime. The study should in particular make concrete proposals
as to the areas which could be
considered as priority areas and assess the practical effects
in the fight against organized crime of an
approximation or harmonization of the laws of the Member States
in those areas.
Target date: end 1999.
Responsible: Council.
18. Furthermore, the following specific starting points for future
discussions on organized crime, most
of them agreed by the Council in the 1993 report on organized
crime should be established, while
taking account of the rights of indivifuals and in particular
the alleged offender and bona fide third
parties:
a) combating those forms of crime which affect the Communities'
financial interests in close
cooperation between the Member States and the Commission;
b) liability of legal persons should be introduced where the legal
person has been involved in
organized crime;
c) fairly long time limits for prosecution of serious offences
connected with organized crime should be
provided for;
d) addressing the issue of fraud and counterfeiting relating to
all payment instruments including
electronic payment instruments (see political guideline No 15).
Target date: end 1998.
Responsibile: Council/Member States/Commission.
Chapter IV
Practical cooperation between police, judicial authorities and
customs in the fight against
organized crime
This Chapter draws inspiration from political guidelines No 6-9 set by the European Council.
Recommendations:
19. Central national contact points, where they do not already
exist, should be designated, while fully
respecting the constitutional structure of each Member State,
in order to speed up the exchange of
information and the completion of application procedures for
law enforcement cooperation, wherever a
national authority in a Member State considers that it would
be more efficient to direct itself to a
central contact point instead of making direct contact with the
authority in another Member State (see
political guideline No 7). With regard to the Europol Convention,
the central national unit referred to
therein should be the contact point on behalf of all law enforcement
authorities in the Member States.
It is advisable that existing contact points, such as the Interpol
NCB, Sirene bureaux, etc. should be
brought together in this central contact point, or least, that
close relations between such units should
be established.
These contact points should serve as an interface in bringing
the competent authorities in the Member
States and the Commission into contact with each other rapidly.
A second function of these contact
points might be to act as a national focus point for information
to law enforcement agencies on
national legislation, jurisdiction and procedures. The relevant
information concerning these central
contact points shall be kept by the General Secretariat of the
Council and shall be regularly updated.
Target date: end 1997.
Responsible: Member States/Council/Commission.
20. Political guideline No 6 underlines the importance of coordination
between competent law
enforcement authorities at national level. Therefore, while taking
into account constitutional structures
and national traditions, and taking into account the fact that
each Member State decides on its own
internal structures, it is advisable that multidisciplinary integrated
teams should be set up at national
level, if they do not already exist, specifically in the area
of organized crime (see political guideline No 6
and 9). Unlike the contact points referred to in Recommendation
No 19, the primary function of which is
to facilitate contacts and to relay information to other Member
States, these coordinating teams
should have sufficient insight into national criminal investigations
to be able to contribute to the
development of national policies in the fight against organized
crime.
These teams could discuss the results of Europol's analyses with
a view to initiating large-scale joint
multidisciplinary investigations involving two or more Member
States. Given the broad range of tasks
involved, it is necessary to ensure an efficient coordination
between the investigating authorities and
the judicial authorities. In the interests of smooth cooperation,
it is advisable that the national contact
points and the multidisciplinary integrated team cooperate very
closely with one another.
Target date: mid 1998.
Responsible: Member States/Europol/Commission.
21. While taking into account national legal systems, safeguarding
judicial independence and taking
into account the fact that each Member State decides on its own
internal structures, the Member
States should seek to pool their resources at European level
by setting up a network for judicial
cooperation. The network should be given a special mandate and
consist of practitioners having
extensive practical experience in fighting organized crime. In
this context, the study being conducted
by the Belgian authorities under the Grotius programme in the
setting up of a judicial contact network
may be examined (see political guideline No 8).
In order to develop this network, each Member State should designate
a central contact point
permitting the exchange of information between national judicial
authorities, while fully respecting
safeguards provided for by national law.
This network shall be given the appropriate logistical support
by the Third Pillar structures, to discuss
questions of practical judicial cooperation and it shall act
as a clearing house, problem-solver and
contact maker between judicial authorities at national level
(4).
An in-depth study should be carried out with a view to examining
the place and the role of judicial
authorities in their relations with Europol, in step with the
enlargement of Europol's competences (see
political guideline No 10). In that context, and if the experience
of the network proves to be positive, it
could in the future be examined whether it should in the long
term be transformed into a more
permanent structure, which could become an important interlocutor
of Europol.
Target date: mid 1998.
Responsible: Council.
22. Within the Council, a multidisciplinary Working Party on Organized
Crime, should be established
within the Third Pillar structures, consisting of competent high
level authorities, for the purpose of
developing policy orientations to coordinate the fight against
organized crime. At the same time, the
Working Group on International Organized Crime, set up under
Steering Group III, should be
abolished and the Working Group on Drugs and Organized crime
should either limit its remit to drugs
issues relevant to tasks performed in accordance with Article
K of the Treaty or be abolished. Coreper
is requested to examine the matter with a view to taking a decision.
The fact that the multidisciplinary working party has been established
should not hinder items relating
for instance purely to police cooperation against organized crime
being dealt with by other Council
working groups. It is a matter for the K4 Committee to decide
on the appropriate coordination
between working groups under its responsibility.
The new Working Party on Organized Crime, to be attended by competent
authorities such as
representatives of comparable coordination teams wherever such
teams have been designated, or at
least with the input of such teams, together with officials involved
in policy-making and
representatives of Europol, could be assigned the task of pinpointing,
on the basis of assessment of
practical cooperation, difficulties resolvable only by means
of political decision-making, and design the
strategies and policies of the Union in the fight against organized
crime and prepare matters which
require decisions at a high level. Examples that come to mind
are decisions on new instruments (for
instance relating to practical police cooperation), priorities
in tackling organized crime and other forms
of agreements needed for the efficient fight against organized
crime.
Target date: end 1997.
Responsible: Council/Coreper.
Chapter V
Development of a fully-fledged Europol and extension of Europol's
mandate and tasks
This Chapter draws inspiration from political guidelines No 5 and 10 by the European Council.
Recommendations:
23. The Member States and the Council should take all necessary
preparatory and budgetary
measures with a view to enable Europol to take up its activities
at the latest by mid 1998.
Responsible: Member States/Council.
24. The possibilities for Europol to cooperate and liaise with
third countries and international
organizations should be elaborated. To that end, the Council
should draw up one or more suitable
legal instruments which ensure that contacts may be entertained
with the Commission and third
countries which are the most important partners for the Member
States in the fight against organized
crime, with relevant international organizations such as Interpol
and the World Customs Organization
(WCO).
Target date: end 1999.
Responsible: Member States/Council/Europol.
25. Without prejudice to the outcome of the IGC, Europol's mandate
and tasks will, as soon as
possible, be further developed, taking into account the decision
of the Heads of State and Government
at the Dublin Summit, to include the following:
(a) Europol should be enabled to facilitate and support the preparation,
coordination and carrying out
of specific investigative actions by the competent authorities
of the Member States, including
operational actions of joint teams comprising representatives
of Europol in a support capacity. The
legislation of each Member State will determine which authority
is competent, be they police, customs
or judicial authorities;
(b) Europol should be allowed to ask Member States to conduct
investigations in specific cases.
Europol could in this respect take the initiative of drawing
the attention of the competent authorities of
one or more Member States to the importance of having certain
matters investigated, although such
an initiative would not oblige the Member State(s) concerned
to take action as requested;
(c) Europol should develop specific expertise which may be put
at the disposal of Member States to
assist them in investigating cases of organized cross-border
crime (see political guideline No 10);
(d) Full use should be made of possibilities of Europol in fields
of operational techniques and support,
analysis and data analyses files (for instance registers on stolen
cars or other property). The
development of operational techniques could take the form of
studies of practices at national and
Union level and their effectiveness, and the development of common
strategies, policies and tactics.
The development of operational support could, inter alia, take
the form of the organization of
meetings, the development of common action plans and their implementation,
strategic analyses,
facilitating information and intelligence exchange, analytical
support for multilateral national
investigations, technical and tactical support, legal support,
offering technical facilities, development of
common manuals, facilitating training, evaluation of results
and giving advice to the competent
authorities of the Member States;
(e) Access by Europol may be sought to the Schengen Information System or its European successor.
The Council will need to assess, without prejudice to the rapid
ratification and implementation of the
Europol Convention, whether the development of the role of Europol
requires amendment to the
Convention, and, if so, immediate steps should be taken. In the
meantime, the EDU should be able of
fully fulfil its mandate.
An in-depth study should be carried out with a view to examining
the place and the role of judicial
authorities in their relations with Europol, in step with the
enlargement of Europol's competences.
Target date: end 1998.
Responsible: Member States/Council/Europol.
Chapter VI
Organized crime and money
This Chapter draws inspiration from political guidelines No 5, 10-12 set by the European Council.
Recommendations:
26. In the field of money-laundering and confiscation of the proceeds
from crime, the following
measures should be envisaged:
(a) to improve the international exchange of police data, it is
necessary to set up a system for
exchanging information concerning suspected money-laundering
at the European level, in conformity
with the relevant rules relating to data protection. To this
end, the Europol Convention should be
supplemented with a provision permitting Europol to be instrumental
therein (see political guideline No
10);
(b) criminalization of laundering of the proceeds of crime should
be made as general as possible, and a
legal basis should be created for as broad as possible a range
of powers of investigation into it. The
opportunity of extending laundering to negligent behaviour should
be examined. A study should be
undertaken with a view to strengthening the tracing and seizure
of illegal assets and of the
enforcement of court decisions on the confiscation of assets
of organized crime (see political guideline
No 11);
(c) confiscation rules should be introduced which enable confiscation
regardless of the presence of the
offender, such as when the offender has died or absconded (see
political guideline No 11);
(d) there should be a study of the possibility to share, at the
level of Member States, assets,
confiscated following international cooperation (see political
guideline No 11);
(e) the reporting obligation in Article 6 of the Money-Laundering
Directive should be extended to all
offences connected with serious crime and to persons and professions
other than the financial
institutions mentioned in the Directive. Member States should
examine the opportunity of making the
failure to report suspicious transactions liable to dissuasive
sanctions (see political guideline No 11). At
the same time, fiscal authorities should be subjected in the
national law to a similar reporting
obligation for transactions connected with organized crime, at
least for transactions relating to VAT
and excise. Cooperation between contact points under the Directive
need to be improved;
(f) addressing the issue of money-laundering on the Internet and
via electronic money products and
requiring, in electronic payment and message systems, that the
messages sent give details of the
originator and the beneficiary (see political guideline No 11);
(g) preventing an excessive use of cash payments and cash exchanges
by natural and legal persons
from serving to cover up the conversion of the proceeds from
crime into other property (see political
guideline No 11);
Moreover, the Council and the Commission should consider in the
light of existing national and
international instruments the need to put in place common provisions
to combat organized crime in the
fields of economic and commercial counterfeiting as well as counterfeiting
and falsification of banknotes
and coins in view of the introduction of the single currency.
Target date: end 1998.
Responsible: Council/Europol/Commission.
27. Adequate legislation, and public awareness, particularly in
the financial sector, to combat
money-laundering and other forms of financial crime is necessary
for potential members of the Union.
This subject should be given high priority in the structured
dialogue and programmes such as Phare.
The need for the countries concerned to join international commitments
in this field, and in particular
the Council of Europe Convention on Laundering, Search, Seizure
and Confiscation of Proceeds from
Crime, should also be addressed in the Preaccession Pact on cooperation
against crime (see political
guideline No 5).
Target date: end 1999.
Responsible: Council/Commission.
28. A study should be undertaken on the basis of practical experiences
as to what extent legislation of
the Member States relating to criminal proceedings and procedures
for international cooperation in the
tracing, seizure and confiscation of assets from crime, and financial
investigations for that purpose,
should be further developed.
Target date: end of 1999.
Responsible: Member States/Commission.
29. Legislation to combat organized crime in connection with fiscal
fraud should be developed in
conformity with the relevant rules relating to data protection
(see political guideline No 12). To this end
the following should be examined so that:
- in cases linked with organized crime, there should be no legal
bar to allowing or obliging the fiscal
authorities to exchange, at the national level, information with
the competent authorities of the
Member State concerned, and in particular not with the judiciary,
while fully respecting fundamental
rights,
- fiscal fraud linked organized crime should be treated as any
other form of organized crime,
notwithstanding that fiscal laws may contain special rules on
recovering the proceeds of fiscal fraud,
- disbursements for criminal purposes such as corruption, should
not be tax deductible,
- the prevention and suppression of organized fiscal fraud such
as VAT and excise fraud, including its
transnational aspects, should be improved at both the national
and the European level.
Target date: end of 1998.
Responsible: Member States/Council/Commission.
30. Member States should examine how to take action and provide
adequate defenses against the
use by organized crime of financial centres and off-shore facilities,
in particular where these are
located in places subject to their jurisdiction. With respect
to those located elsewhere, the Council
should develop a common policy, consistent with the policy conducted
by Member States internally,
with a view to prevent the use thereof by criminal organizations
operating within the Union (see
political guideline No 12).
Target date: 1998.
Responsible: Member States/Council/Commission.
(1) It is recalled that the European Council also welcomed the
report made by the Irish Presidency on
stepping up the fight against organized crime (see 11564/4/96
CK4 53, REV 4) and asked the Council
to reinforce its Secretariat, in order to implement rapidly the
measures proposed in the report.
(2) Where this Action Plan mentions law enforcement agencies,
it includes, where appropriate, its
financial regulators as well as customs agencies even if in a
particular Member State they are not
considered to be a law enforcement agency.
(3) Each recommendation given an indication of the body or bodies
to be considered responsible for
implementation. In each case it is clearly understood that the
body or bodies concerned will exercise
that responsibility within its competences as laid down in the
Treaty on European Union.
(4) See the document approved by the Dublin European Council,
CK4 53, REV 4.
ANNEX
Letter from the High Level Group to the IGC
The High Level Group, created by the European Council (Dublin,
13 and 14 December 1996), and
tasked to examine the fight against organized crime in all its
aspects, has also been requested to
refer any issues involving Treaty change to the Intergovernmental
Conference.
The High Level Group has, at its meeting on 9 April 1997, adopted
an Action Plan containing political
guidelines to be endorsed by the European Council (Amsterdam,
16 and 17 June 1997), as well as a
detailed action plan which, as necessary, translates the political
guidelines into a work programme to
be implemented by the Union and its Member States. The Action
Plan is in an Annex to this letter.
In adopting the report, sometimes after lengthy discussions on
certain points, the High Level Group
agreed that the consensus reached was without prejudice to any
positions delegations might take in
the Intergovernmental Conference. This is true in particular
with a view to certain proposals already
on the table in the Intergovernmental Conference.
First of all, it was felt that a distinction should be made between
recommendations of the Group to the
European Council that could require Treaty change, and recommendations
which might be
implemented on the basis of the present Treaty, but might be
translated into provisions of the new
Treaty, in order for the Treaty to better reflect the priority
that the Union is to give to the fight against
organized crime.
Secondly, whilst the Group on a number of occasions touched upon
the question of improving the
effectiveness of European cooperation in the field of Justice
and Home Affairs, it felt that it should not
focus on questions of a primarily institutional character, such
as decision-making and instruments of
the Union. While these questions are of considerable importance
also for the Union's ability to fight
against organized crime, the Group abstained from taking a position
since these questions are under
consideration in the IGC anyway.
In the political guidelines presented by the Group, it is recommended
that Europol be granted
operative powers as defined in political guideline No 10. The
Group invites the Intergovernmental
Conference to consider whether this requires a change of Article
K.1.9. of the Treaty and to act
accordingly.
Some other recommendations, whilst not necessarily leading to
Treaty change, might still be even
better implemented if the future Treaty were to provide for a
legal and institutional basis. This is the
case for political guideline No 3, which calls for a mutual evaluation
mechanism of the application and
implementation of instruments concerning international cooperation
in criminal matters. Moreover,
political guideline No 5 stresses the need for closer cooperation
in the fight against organized crime
with relevant third countries. Such cooperation might equally
merit a reflection in the Treaty.
The deliberations of the Group as reflected in Chapters II and
III might provide even further material
for consideration by the IGC. This is particularly the case with
regard to the need to bring practical
judicial cooperation to a comparable level with police cooperation.
The Group has spent some time discussing the contribution that
legislative approximation or
harmonization might offer to the fight against organized crime.
It limited itself to a political guideline
related to criminal organizations (namely political guideline
No 1), with a view to ensuring the most
effective possible framework for practical cooperation. The Intergovernmental
Conference will note
that in the opinion of the Group, the question whether approximation
or harmonization of Member
States' laws could contribute to the fight against organized
crime, is a matter to be examined (namely
political guideline No 1).
Close coordination, both at the national and the Union level,
between the various agencies (police,
justice, customs) that take part in the fight against organized
crime is considered by the Group to be
of paramount importance. Although such coordination is primarily
to be achieved through
organizational measures, it might merit to be reflected in the
Treaty as a matter of principle.
The same applies to the notion of prevention as a necessary corollary
to repression. As the report
states at various places (namely political guideline No 13),
prevention (notably in the area of
corruption, fraud and money-laundering) requires not only increased
efforts by Member States and
closer cooperation between them at European Union level but also
full exercise of the Union's
possibilities in the first pillar.
Finally, given the overall need for the Union to organize itself
better in the fight against organized
crime in all its forms, the phenomenon should be mentioned as
such among the objectives of the
Union's cooperation in the third pillar.
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