Crime sans frontières: International and European legal approaches
Peter J Cullen
William C Gilmore
CRIME SANS FRONTIERES: International And European Legal Approaches
Hume Papers on Public Policy Volume 6 Nos 1 and 2 Spring and Summer 1998
This Chapter draws inspiration from political guidelines Nos. 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 at 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 Nos. 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 level5. 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 Nos. 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 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. Target date: end 1998. Responsible: Member States/Council/Europol. Chapter VI Organized crime and money This Chapter draws inspiration from political guidelines Nos. 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 needs 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 Pre-accession 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 with 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. 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. (as set out in Official Journal of the European Communities No C 251/1 (15.8.97)) APPENDIX IV TREATY ON EUROPEAN UNION (MAASTRICHT) Article K Cooperation in the fields of justice and home affairs shall be governed by the following provisions. Article K.1 For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: (1) asylum policy; (2) rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; (3) immigration policy and policy regarding nationals of third countries: (a) conditions of entry and movement by nationals of third countries on the territory of Member States; (b) conditions of residence by nationals of third countries on the territory of Member States, including family reunion and access to employment; (c) combating unauthorized immigration, residence and work by nationals of third countries on the territory of Member States; (4) combating drug addiction in so far as this is not covered by (7) to (9); (5) combating fraud on an international scale in so far as this is not covered by (7) to (9); (6) judicial cooperation in civil matters; (7) judicial cooperation in criminal matters; (8) customs cooperation; (9) police cooperation for the purposes of preventing and combating terrorism, unlawful drug-trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol). Article K.2 1. The matters referred to in Article K.l shall be dealt with in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and the Convention relating to the Status of Refugees of 28 July 1951 and having regard to the protection afforded by Member States to persons persecuted on political grounds. 2. This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. Article K.3 1. In the areas referred to in Article K.l, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations. 2. The Council may: - on the initiative of any Member State or of the Commission, in the areas referred to in Article K.l(1) to (6); - on the initiative of any Member State, in the areas referred to in Article K.l(7) to (9): (a) adopt joint positions and promote, using the appropriate form and procedures, any cooperation contributing to the pursuit of the objectives of the Union; (b) adopt joint action in so far as the objectives of the Union can be attained better by joint action than by the Member States acting individually on account of the scale or effects of the action envisaged; it may decide that measures implementing joint action are to be adopted by a qualified majority; (c) without prejudice to Article 220 of the Treaty establishing the European Community, draw up conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Unless otherwise provided by such conventions, measures implementing them shall be adopted within the Council by a majority of two thirds of the High Contracting Parties. Such conventions may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down. Article K.4 1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to: - give opinions for the attention of the Council, either at the Council's request or on its own initiative; - contribute, without prejudice to Article 151 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article K.l and, in accordance with the conditions laid down in Article l00d of the Treaty establishing the European Community, in the areas referred to in Article 100c of that Treaty. 2. The Commission shall be fully associated with the work in the areas referred to in this Title. 3. The Council shall act unanimously, except on matters of procedure and in cases where Article K.3 expressly provides for other voting rules. Where the Council is required to act by a qualified majority, the votes of its members shall be weighted as laid down in Article 148(2) of the Treaty establishing the European Community, and for their adoption, acts of the Council shall require at least 54 votes in favour, cast by at least eight members. Article K.5 Within international organizations and at international conferences in which they take part, Member States shall defend the common positions adopted under the provisions of this Title. Article K.6 The Presidency and the Commission shall regularly inform the European Parliament of discussions in the areas covered by this Title. The Presidency shall consult the European Parliament on the principal aspects of activities in the areas referred to in this Title and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament may ask questions of the Council or make recommendations to it. Each year, it shall hold a debate on the progress made in implementation of the areas referred to in this Title. Article K.7 The provisions of this Title shall not prevent the establishment or development of closer cooperation between two or more Member States in so far as such cooperation does not conflict with, or impede, that provided for in this Title. Article K.8 1. The provisions referred to in Articles 137, 138, 139 to 142, 146, 147, 150 to 153, 157 to 163 and 217 of the Treaty establishing the European Community shall apply to the provisions relating to the areas referred to in this Title. 2. Administrative expenditure which the provisions relating to the areas referred to in this Title entail for the institutions shall be charged to the budget of the European Communities. The Council may also: - either decide unanimously that operational expenditure to which the implementation of those provisions gives rise is to be charged to the budget of the European Communities; in that event, the budgetary procedure laid down in the Treaty establishing the European Community shall be applicable; - or determine that such expenditure shall be charged to the Member States, where appropriate in accordance with a scale to be decided. Article K.9 The Council, acting unanimously on the initiative of the Commission or a Member State, may decide to apply Article l00c of the Treaty establishing the European Community to action in areas referred to in Article K.l(l) to (6), and at the same time determine the relevant voting conditions relating to it. It shall recommend the Member States to adopt that decision in accordance with their respective constitutional requirements. APPENDIX V TREATY OF AMSTERDAM Title VI [of the Maastricht Treaty on European Union] shall be replaced by the following: "Title VI Provisions on police and judicial cooperation in criminal matters Article K.1 Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia. That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through: - closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles K.2 and K.4; - closer cooperation between judicial and other competent authorities of the Member States in accordance with the provisions of Articles K.3(a) to (d) and K.4; - approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article K.3(e). Article K.2 1. Common action in the field of police cooperation shall include: (a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences; (b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data; (c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research; (d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime. 2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam: (a) enable Europol to facilitate and support the preparation, and to encourage the 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; (b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime; (c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol; (d) establish a research, documentation and statistical network on cross-border crime. Article K.3 Common action on judicial cooperation in criminal matters shall include: (a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States in relation to proceedings and the enforcement of decisions; (b) facilitating extradition between Member States; (c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation; (d) preventing conflicts of jurisdiction between Member States; (e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking. Article K.4 The Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles K.2 and K.3 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. Article K.5 This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. Article K.6 1. In the areas referred to in this Title, Member States shall inform and consult one another within the Council with a view to coordinating their action. To that end, they shall establish collaboration between the relevant departments of their administrations. 2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this Title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may: (a) adopt common positions defining the approach of the Union to a particular matter; (b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect; (c) adopt decisions for any other purpose consistent with the objectives of this Title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union; (d) establish conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Member States shall begin the procedures applicable within a time limit to be set by the Council. Unless they provide otherwise, conventions shall, once adopted by at least half of the Member States, enter into force for those Member States. Measures implementing conventions shall be adopted within the Council by a majority of two-thirds of the Contracting Parties. 3. Where the Council is required to act by a qualified majority, the votes of its members shall be weighted as laid down in Article 148(2) of the Treaty establishing the European Community, and for their adoption acts of the Council shall require at least 62 votes in favour, cast by at least 10 members. 4. For procedural questions, the Council shall act by a majority of its members. Article K.7 1. The Court of Justice of the European Communities shall have jurisdiction, subject to the conditions laid down in this Article, to give preliminary rulings on the validity and interpretation of framework decisions and decisions, on the interpretation of conventions established under this Title and on the validity and interpretation of the measures implementing them. 2. By a declaration made at the time of signature of the Treaty of Amsterdam or at any time thereafter, any Member State shall be able to accept the jurisdiction of the Court of Justice to give preliminary rulings as specified in paragraph 1. 3. A Member State making a declaration pursuant to paragraph 2 shall specify that either: (a) any court or tribunal of that State against whose decisions there is no judicial remedy under national law may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment, or (b) any court or tribunal of that State may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning the validity or interpretation of an act referred to in paragraph 1 if that court or tribunal considers that a decision on the question is necessary to enable it to give judgment. 4. Any Member State, whether or not it has made a declaration pursuant to paragraph 2, shall be entitled to submit statements of case or written observations to the Court in cases which arise under paragraph 1. 5. The Court of Justice shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. 6. The Court of Justice shall have jurisdiction to review the legality of framework decisions and decisions in actions brought by a Member State or the Commission on grounds of lack of competence, infringement of an essential procedural requirement, infringement of this Treaty or of any rule of law relating to its application, or misuse of powers. The proceedings provided for in this paragraph shall be instituted within two months of the publication of the measure. 7. The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of acts adopted under Article K.6(2) whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members. The Court shall also have jurisdiction to rule on any dispute between Member States and the Commission regarding the interpretation or the application of conventions established under Article K.6(2)(d). Article K.8 1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to: - give opinions for the attention of the Council, either at the Council's request or on its own initiative; - contribute, without prejudice to Article 151 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article K.1. 2. The Commission shall be fully associated with the work in the areas referred to in this Title. Article K.9 Within international organisations and at international conferences in which they take part, Member States shall defend the common positions adopted under the provisions of this Title. Articles J.8 and J.9 shall apply as appropriate to matters falling under this Title. Article K.10 Agreements referred to in Article J.14 may cover matters falling under this Title. Article K.11 1. The Council shall consult the European Parliament before adopting any measure referred to in Article K.6(2)(b), (c) and (d). The European Parliament shall deliver its opinion within a time-limit which the Council may lay down, which shall not be less than three months. In the absence of an opinion within that time-limit, the Council may act. 2. The Presidency and the Commission shall regularly inform the European Parliament of discussions in the areas covered by this Title. 3. The European Parliament may ask questions of the Council or make recommendations to it. Each year, it shall hold a debate on the progress made in the areas referred to in this Title. Article K.12 1. Member States which intend to establish closer cooperation between themselves may be authorised, subject to Articles K.15 and K.16, to make use of the institutions, procedures and mechanisms laid down by the Treaties provided that the cooperation proposed: (a) respects the powers of the European Community, and the objectives laid down by this Title; (b) has the aim of enabling the Union to develop more rapidly into an area of freedom, security and justice. 2. The authorisation referred to in paragraph 1 shall be granted by the Council, acting by a qualified majority at the request of the Member States concerned and after inviting the Commission to present its opinion; the request shall also be forwarded to the European Parliament. If a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the granting of an authorisation by qualified majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity. The votes of the members of the Council shall be weighted in accordance with Article 148(2) of the Treaty establishing the European Community. For their adoption, decisions shall require at least 62 votes in favour, cast by at least 10 members. 3. Any Member State which wishes to become a party to cooperation set up in accordance with this Article shall notify its intention to the Council and to the Commission, which shall give an opinion to the Council within three months of receipt of that notification, possibly accompanied by a recommendation for such specific arrangements as it may deem necessary for that Member State to become a party to the cooperation in question. Within four months of the date of that notification, the Council shall decide on the request and on such specific arrangements as it may deem necessary. The decision shall be deemed to be taken unless the Council, acting by a qualified majority, decides to hold it in abeyance; in this case, the Council shall state the reasons for its decision and set a deadline for reexamining it. For the purposes of this paragraph, the Council shall act under the conditions set out in Article K.16. 4. The provisions of Articles K.1 to K.13 shall apply to the closer cooperation provided for by this Article, save as otherwise provided for in this Article and in Articles K.15 and K.16. The provisions of the Treaty establishing the European Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply to paragraphs 1, 2 and 3. 5. This Article is without prejudice to the provisions of the Protocol integrating the Schengen acquis into the framework of the European Union. Article K.13 1. Articles 137, 138, 138e, 139 to 142, 146, 147, 148(3), 150 to 153, 157 to 163, 191a and 217 of the Treaty establishing the European Community shall apply to the provisions relating to the areas referred to in this Title. 2. Administrative expenditure which the provisions relating to the areas referred to in this Title entail for the institutions shall be charged to the budget of the European Communities. 3. Operational expenditure to which the implementation of those provisions gives rise shall also be charged to the budget of the European Communities, except where the Council acting unanimously decides otherwise. In cases where expenditure is not charged to the budget of the European Communities it shall be charged to the Member States in accordance with the gross national product scale, unless the Council acting unanimously decides otherwise. 4. The budgetary procedure laid down in the Treaty establishing the European Community shall apply to the expenditure charged to the budget of the European Communities. Article K.14 The Council, acting unanimously on the initiative of the Commission or a Member State, and after consulting the European Parliament, may decide that action in areas referred to in Article K.1 shall fall under Title IIIa of the Treaty establishing the European Community, and at the same time determine the relevant voting conditions relating to it. It shall recommend the Member States to adopt that decision in accordance with their respective constitutional requirements." 1 Including inter alia: - consumer credit, - mortgage credit, - factoring, with or without recourse, - finance of commercial transactions (including forfaiting). 2 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. 3 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. 4 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. 5 See the document approved by the Dublin European Council, CK4 53, REV 4.
Link to Appendix 5 or to return to the Crime sans frontières mainpage.