Explanatory Memorandum to COM(2021)780 - Operational police cooperation - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)780 - Operational police cooperation. |
|---|---|
| source | COM(2021)780  |
| date | 08-12-2021 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal 1
Article 3 i of the Treaty of the European Union (‘TEU’) provides that the EU must offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured, together with appropriate measures for external border controls, asylum, immigration and preventing and combating of crime.
The area of freedom, security and justice without internal frontiers can be ensured, inter alia, through robust police and judicial cooperation across Member States. 2 Police officers in one Member State, therefore, should cooperate effectively and systematically across the EU. However, police cooperation between Member States still varies greatly. Without a sufficient level of cooperation between the police forces in the Member States, criminals will continue to operate across Member States unabated, taking advantage of the different national jurisdictions, and unauthorised movements of irregular migrants will continue to pose a challenge.
The recent tragic events in the Channel highlighted once more the need for a strong police cooperation, which is reflected in the decision by France, Belgium, the Netherlands and Germany on 28 November 2021 to reinforce operational police cooperation to counter migrant smuggling.
Cross-border crime and the security threats connected with it have, by definition, an international context. As set out in the EU Security Union strategy 3 , the EU faces evolving and increasingly complex security threats. These threats spread across borders, and manifest themselves in criminals and organised crime groups that engage in a wide range of criminal activities. As highlighted in the 2021-2025 EU strategy to tackle organised crime 4 , organised crime is a significant threat to Europeans, businesses, and national institutions, as well as to the economy as a whole. By operating across different jurisdictions, criminal groups avoid detection and exploit the differences in national laws. Along with the accompanying proposal on a Directive on information exchange, this proposal seeks to establish a Police Cooperation Code with the objective of streamlining, enhancing, developing, modernising and facilitating law enforcement cooperation between relevant national agencies, thus supporting Member States in their fight against serious and organised crime and terrorism.
According to the EU Serious and Organised Crime Threat Assessment 2021 (EU SOCTA), the organised crime landscape is characterised by a networked environment where cooperation between criminals is fluid, systematic and driven by profit. Almost 70% of criminal networks are active in more than three Member States. Around 65% of the criminal networks active in the EU are composed of members of multiple nationalities. Over 80% of the reported criminal networks are involved in major types of cross-border crimes, covering trade in drugs, property crime, trafficking in human beings and migrant smuggling. 5 The 2021 EU SOCTA and EMCDDA European Drug report 6 identifies areas where serious and organised crime appears to be on the rise. Key locations such as border regions, airports, motorways, or ferry connections in the EU attract criminals, including because of their geographic position. In border regions, criminals take advantage of the natural delineations of individual law enforcement jurisdictions, which create options to evade law enforcement and provide proximity to multiple markets. 7 The mobility of criminals within the EU creates challenges in preventing and fighting criminal threats 8 , and in ensuring public safety.
At the same time, as set out in the December 2020 Counter-terrorism agenda 9 , the EU remains on high terrorist alert. Criminals and terrorists use information and communications technology to communicate among themselves and to prepare and conduct their criminal activities. 10
The area without controls at internal borders (‘the Schengen area’ 11 ) is the largest free travel area in the world. It allows more than 420 million people to move freely and goods and services to flow unhindered. Intra-EU border areas cover approximately 40% of the EU's territory and they were home in 2017 to 30% of the population, some 150 million people. In 2017, almost 2 million people commuted across borders, including 1.3 million cross-border workers 12 . In 2018, EU residents made 1.1 billion trips, either for professional or personal reasons – an increase of 11% since 2014. The COVID-19 pandemic has reduced intra-EU mobility because of quarantine measures, travel restrictions, limitations to public life and lockdowns 13 . However, flows of people will likely continue to be significant in the future, especially as life returns to normal. The Schengen area is a symbol of the EU’s interconnectedness and of the ties between Europeans. 14 It also contributes to the efficient functioning of the single market, and therefore to the growth of the EU’s economy. 15
In recent years, the Schengen area has been repeatedly put to the test by a series of crises and challenges. Several Member States have reintroduced internal border controls, notably because of the unauthorised movements 16 of irregular migrants, which they consider to pose a serious threat to public policy or internal security. Unauthorised movements within the Schengen area, which are not related to a major migratory crisis or structural deficiencies in the management of the external borders 17 , should be addressed by means other than internal border controls, which can be used only as a last resort measure, to address the concrete threats to internal security or public policy. These persisting internal border controls have revealed that there is room for improvement as regards the use of police checks and cooperation, procedures allowing for simplified readmission between the Member States and the application of bilateral agreements and arrangements in that context, in line with Article 6 i of Directive 2008/115/EC. 18 It is noted that, in line with recital 8 of the Commission Recommendation (EU) 2017/432 19 , an effective Union return policy requires efficient and proportionate measures for the apprehension and identification of irregular migrants. These measures, if combined, have the potential to yield the same results in controlling unauthorised movements as temporary internal border controls, and are less intrusive when it comes to the free movement of persons, goods and services.
Contents
The recommendations on operational police cooperation as set out in this Recommendation contribute to the development of the Schengen rules.
First, one of the pillars of the EU legal framework underpinning police cooperation was designed 30 years ago through the Convention Implementing the Schengen Agreement (CISA) 20 , well before the above-mentioned crises and challenges that have transformed the realities of the Schengen area. The CISA sets out a number of obligations for contracting parties on police cooperation, to counteract any security deficit caused by the abolition of checks at the internal borders. Notably, the CISA sets a number of baseline rules on the conduct of cross-border hot pursuits and cross-border surveillance operations.
Second, joint patrols and other operations are directly linked to the development of the Schengen acquis, including Article 39 i of the CISA on assistance between authorities, which enables the policies covered by Schengen. Joint patrols and joint operations are addressed by cross-border cooperation agreements between Member States. The Prüm Decisions 21 of 2008 set out a number of baseline rules on how to conduct joint patrols and other joint operations across EU internal borders, as well as cross-border assistance in case of disaster and serious accidents. While the centre of gravity of the Prüm Decisions was the automated exchange of DNA, fingerprint and vehicle registration data, and the sections on joint patrols and operations were consequently not labelled as a development of Schengen, it is likely that they would constitute a development of the Schengen acquis, had they been adopted separately, given their cross-border nature.
Third, operational police cooperation between Member States is also taking place under national law, taking account of non-binding Council documents, including good practice (‘Schengen Catalogue’ 22 ) and guidelines (‘Single Points of Contact’ (SPOC)) Guidelines, Police and Customs Cooperation Centres (PCCC) Guidelines, Manuals on law enforcement information exchange and cross-border operations). SPOCs 23 and PCCCs 24 have been created as a direct consequence of the need to exchange relevant information following the removal of internal borders. Schengen associated countries 25 have also set up PCCCs and have established national SPOCs.
Fourth, Member States have systematically complemented and extended this Schengen ‘baseline’ legal framework with bi- and multilateral cooperation agreements between themselves. The Commission has identified at least 60 of them across the EU, all different from one another. Schengen associated countries have also concluded such operational cooperation agreements with Member States.
First, the current EU legal framework provides a number of options that Member States can choose from when cooperating with other Member States (e.g. the CISA allows Member States either to set or not to set kilometre distance limitations when hot pursuits take place on their territory 26 ). This creates uncertainty and lack of clarity as to which rules police officers have to follow when intervening in another Member State. Moreover, some of the choices made in this regard lead to obstacles, which would not have existed if other choices were made as permitted by the EU legal framework.
Second, the bi- and multilateral police cooperation agreements between Member States, while allowing regional specificities when cooperating with neighbouring Member States, are very time-consuming for Member States to negotiate, sign and ratify. The proliferation of these bilateral agreements has created a complex web of several different arrangements, containing different applicable rules, which have led to fragmentation and obstacles to cooperation. For instance, in smaller or landlocked countries, law enforcement officers working across borders have to carry out operational actions following, in some cases, up to seven different sets of rules. 27 As a result, some operations such as hot pursuits of suspects over internal borders are not allowed or take place in an uncoordinated sub-optimal way, which criminals use to their advantage. Operational cooperation making use of new technologies such as drones is also insufficiently covered by the current rules.
Third, the Schengen evaluations 28 in police cooperation conducted over the past six years confirmed that some of the bi- or multilateral agreements between Member States are outdated or underused. Others go much further than the rules on cross-border cooperation, allowing the establishment of what could be considered good practice to more effectively fight cross-border crimes (e.g. joint police stations with cross-border criminal investigative powers, or joint trainings) but these are not systematically replicated across the EU.
Fourth, because of the incompatibility of secured communication equipment used between different Member States, the communication equipment of some police officers engaged for instance in hot pursuits, stops functioning when they cross the border. This makes it impossible to liaise with their own authorities, or the authorities of the Member State in which they enter. Furthermore, officers deployed in joint patrols or operations in other Member States are often not provided with mobile equipment that allows them to access remotely and securely their own national, EU and international databases.
Fifth, joint patrols and other joint operations often take place in intra-EU border areas and in other areas within the EU on an ad hoc basis. They often lack coordination and take place without prior risk analysis that would allow for their better targeted deployment. No forum for Member States to exchange such risk analysis or inform other Member States of their needs and priority areas exists. For example, in order to better target joint patrols or other joint operations taking place across the EU during large events (e.g. large sports events, international summits), at specific times (e.g. holiday seasons), or in the face of specific crimes waves (e.g. terrorism, drug trafficking, match-fixing, trafficking in counterfeit goods, credit card fraud, pickpocketing and other property crimes).
Sixth, criminal networks active in migrant smuggling and trafficking in human beings facilitate the unauthorised movements of irregular migrants and exploit the vulnerable situation of victims, treating people as commodities. Organised migrant smuggling is a key criminal activity and facilitated unauthorised movements are a major concern for the EU’s security. Trafficking in human beings constitutes another core activity of serious and organised crime, set to remain a threat for the foreseeable future. 29 Nearly half of the victims of trafficking within the EU are EU nationals, and most traffickers are EU citizens. 30 Such crimes have a high cross-border nature and their detection and investigation requires targeted police action on the ground in intra-EU border areas. Notably, coordinated joint patrols and other joint operations, based on risk analysis, where officers from Member States operating together (e.g. in a patrol car) should focus where appropriate on detecting migrant smuggling and trafficking in human beings.
Seventh, officials involved in cross-border law enforcement cooperation in the EU are not always properly trained to have the necessary knowledge and operational skills to fulfil the tasks at hand in the most effective and efficient manner. The 2021 study carried out for the Commission identified a limited availability of training for law enforcement staff involved in cross-border cooperation. Training is not conducted on a regular basis and does not always take into account the latest developments. There is also a limited awareness and knowledge of relevant databases and about the executive powers conferred by different Member States. Language barriers also hamper effective cross-border operational police cooperation.
As set out in the Commission’s Communication of June 2021 ‘A strategy towards a fully functioning and resilient Schengen area 31 ,’ this Recommendation aims to contribute to the creation of common standards to allow police officers to cooperate effectively with their colleagues in other Member States. Respecting existing EU legislation, and building on good practice in bilateral or multilateral cooperation agreements between Member States, police officers should carry out targeted joint operations, including joint patrols 32 , in particular in intra-EU border areas. As terrorists and other criminals operate across Member States, police authorities should be able to better monitor them, and when engaging in hot pursuits across national territories, be able to detain them as necessary, or conduct surveillance operations in respect of them. Furthermore, joint operations can help in addressing effectively the issue of unauthorised movements of irregular migrants.
Respecting the role of Member States in internal security and the need for flexibility to cooperate regionally, this Recommendation sets out actions in operational police cooperation that aim to:
–Clarify and align the rules of engagement in cross-border law enforcement operations to monitor and arrest criminals and terrorists in surveillance, hot pursuit, joint patrols and other joint operations across national territories.
–Enable remote access by police officers to their own databases when operating in other Member States, and the use of secure communications that can continue to function in a cross-border context.
–Broaden the role of existing Police Customs Cooperation Centres to become joint police stations capable of not only exchanging information, but of planning, supporting and coordinating joint patrols and other joint operations based on shared risk analysis.
–Use targeted joint patrols and other joint operations in specific intra-EU border areas, based on prior analysis, to counter migrant smuggling as well as to prevent and detect illegally staying migrants and cross-border crime linked to irregular migration.
–Use targeted joint patrols and other joint operations in specific intra-EU border areas, based on prior analysis, to counter trafficking in human beings and to identify and protect victims.
–Create a coordination platform, together with the Commission and Europol 33 , to support and target joint operations and patrols across the EU to maintain and improve public order and safety, prevent criminal offences or help address specific crime waves in key locations or during specific times (e.g. tourist areas, key criminal hubs, holiday season), during mass gatherings (e.g. large sport events, international summits), or in case of disasters and serious accidents.
–Broaden joint training and exchange programmes for police cadets and lifelong training of officers involved in operational cross-border cooperation, and reflecting on the creation of a large-scale pan-European joint training programme on operational cross-border cooperation to create a true EU culture of policing.
As set out in the proposed Recommendation, Member States should change their national rules and bi- and multilateral agreements with other Member States, where appropriate, in order to implement the measures contained therein.
• Consistency with existing policy provisions in the policy area
This Recommendation is consistent with existing and upcoming policy provisions in law enforcement cooperation.
As highlighted under the ‘reasons for and objectives of the proposal’ section, existing Commission strategic documents underpin the Commission’s efforts to improve the efficiency and effectiveness of law enforcement cooperation in the EU. These include the Security Union strategy 34 , the Counter-terrorism agenda for the EU 35 , the EU 2021-2025 strategy to tackle organised crime 36 , the EU 2021-2025 strategy on combating trafficking in human beings 37 , the EU strategy for a more effective fight against child sexual abuse 38 , the EU 2021-2025 drugs strategy 39 , and the new Schengen strategy. 40
The Council takes a comparable stance, notably most recently in the Council Conclusions of November 2020 on Internal Security and European Police Partnership, which ask the Commission “to consider consolidating the EU legal framework to further strengthen cross-border law enforcement cooperation 41 . ”
This Recommendation will also contribute to a fully functioning and resilient Schengen area as set out in the Schengen strategy, which reiterates “the need for common standards to allow police officers to cooperate effectively with their colleagues in neighbouring countries.” It will help to ensure a high level of security within the territory of Member States and therefore support a Schengen area without controls at internal borders. It will also complement the proposal to amend the Schengen Borders Code.
As the two legs of law enforcement cooperation essentially relate to (i) operational cross-border cooperation (which is the focus of this proposal), and (ii) information exchange, this Recommendation will form part of a coherent package together with the proposal for a Directive on information exchange and communication between law enforcement authorities of Member States, and the proposal to revise the Automated Data Exchange Mechanism for Police Cooperation (‘Prüm II Regulation’).
• Consistency with other Union policies
This Recommendation aims to contribute positively to a fully functioning and resilient Schengen area, allowing more than 420 million people to move freely, and goods and services to flow unhindered. This will in turn contribute to the efficient functioning of the single market, and therefore to the growth of the EU’s economy. This Recommendation is therefore fully consistent with other EU policies in employment, transport, and ultimately economic growth in intra-EU border areas, but also across the whole of the EU.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for EU action in law enforcement cooperation is Title V, Chapter 5 of the Treaty on the Functioning of the European Union (‘TFEU’).
Under Article 87 of the TFEU, “the Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.”
More specifically, Article 87 i of the TFEU relates to measures concerning operational cooperation between law enforcement authorities. Such measures are provided for in this Recommendation. It also contains measures covered by Article 89 of the TFEU relating to conditions and limitations under which Member States' law enforcement authorities may operate on the territory of another Member State. To the extent that the Recommendation also contains measures potentially covered by Article 87 i of the TFEU (e.g. on information exchange and training), those measures are in this case ancillary to the measures based on Article 87 i and 89 of the TFEU.
This Recommendation is therefore based on Articles 87 i and 89 of the TFEU, read in conjunction with Article 292 of the TFEU, which states “The Council shall adopt recommendations […] on a proposal from the Commission in all cases where the Treaties provide that it shall adopt acts on a proposal from the Commission. It shall act unanimously in those areas in which unanimity is required for the adoption of a Union act.”
• Choice of the instrument
Stepping-up operational police cooperation in the EU requires strong political engagement by all relevant actors, notably in the Member States.
Cross-border operational police cooperation typically involves the physical intervention of uniformed and armed police forces from one Member State in the territory of other Member States. The intervention is to conduct preventive and repressive missions that may lead to the provisional arrest and detention of individuals until the arrival of the authorities of the other Member State.
These types of operations touch upon the core of Member States’ sovereignty, and can lead to constitutional issues, rendering any new EU legislation in this area a very sensitive issue. This is the reason why unanimity tends to be required in the Council when voting on EU legislation in operational cooperation.
The Commission considers that a proposal for EU legislation with binding force to harmonise this type of operational police cooperation is premature at this stage. Nonetheless, it can be noted that, although not legally binding, under the TFEU, as interpreted by the Court of Justice of the EU, Recommendations are legal acts and, as such, cannot be regarded as having no legal effect and are to be taken into account at national level where appropriate.
Building on previous relevant Council Conclusions 42 and good practice that some Member States have already implemented, the Commission decided to propose a Council Recommendation, which puts forward a number of recommended actions that aim to improve the way in which Member States cooperate operationally. The Commission plans to monitor the implementation of this Recommendation and assess the need for an EU legislation with binding force on cross-border operational police cooperation in the future.
• Subsidiarity
EU action is needed to properly address the problems identified in the first section of this explanatory memorandum. Without action at EU level, Member States alone will continue to face uncertainties and obstacles stemming from different rules on the rights of officials when operating in other Member States. Also, to solve long-standing technical interconnectivity issues that contribute to reducing the appeal of joint operations, an approach at EU level is needed. Given the transnational nature of serious and organised crime, it is essential to ensure swift cooperation between police and judicial authorities in relation to the operational measures at issue in a cross-border context.
The EU is better equipped than individual Member States to ensure the coherence of actions taken at the national level, address the divergence of practices, prevent duplications and uncertainties and eventually ensure an efficient counter-action to cross-border crime. EU action in response to the identified problems is expected to bring added value for the EU and therefore to its citizens.
• Proportionality
This proposal recommends that Member States take a number of measures to address obstacles and strengthen existing relevant cross-border cooperation mechanisms and tools. It does not contain recommendations that go against what existing EU legislation provides for. Instead, Member States should take the recommended measures in compliance with that EU legislation. In addition, Member States are not expected to alter, and indeed to continue to apply, conditions and safeguards contained in national law relating to the operational activities covered, insofar as they are compliant with EU legislation and not specifically addressed in this Recommendation.
Given the sensitivity of measures on operational cross-border police cooperation, and the willingness expressed by Member States to engage in a further dialogue on what measures should be put in place to strengthen operational police cooperation, a proposal for a Council Recommendation is the most appropriate and proportionate choice. The reason being is that it does not go beyond what is necessary, at this stage, to achieve the objectives of improving operational police cooperation across the EU.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
No fitness check of existing legislation in operational cooperation was conducted for this proposal. This is because the EU baseline legislation is very limited, and systematically complemented by bi- and multilateral cooperation agreements between Member States.
• Stakeholder consultations
The period of time during which the stakeholders' consultation took place was between July 2019 and July 2021. The consultation involved targeting stakeholders from a wide range of subject matter experts, national authorities, civil society organisations, and from members of the public on their expectations and concerns relating to strengthening law enforcement cooperation in the EU.
The Commission used different means of engagement such as targeted questionnaires, conducted experts’ interviews and organised several thematic workshops with Member States and Schengen associated countries' representatives. The subject matters of this Recommendation were also discussed in the Council’s Working Parties (e.g. Law Enforcement Working Party – Police and Customs subgroups, Standing Committee on Operational Cooperation on Internal Security).
The Commission also launched a public consultation, hosted on the Commission’s website in all EU official languages for eight weeks, from 19 April 2021 to 14 June 2021.
Numerous consultation activities were also conducted by the contractor during the preparation of an external ‘Study to support the preparation of an impact assessment on EU policy initiatives facilitating cross-border law enforcement cooperation.’
The aim of the consultation was to receive relevant input from stakeholders to enable an evidence-based approach to preparing the proposed measures to improve law enforcement cooperation between Member States.
The results of all these consultation activities have been duly taken into account in preparing this Recommendation. 43 The consultation activities used the main elements of the methodology used in an impact assessment, starting with the problem definition and exploring the most suitable options.
• Impact assessment
The proposed recommendations will, if adopted in their current form and effectively acted upon, improve cross-border operational police cooperation and will have a significant positive impact on preventing and detecting crimes in the Member States.
However, given the unanimity principle covering the relevant operational police cooperation measures, and sovereignty concerns expressed by some Member States in the consultation phase, as noted above, the Commission considers that a proposal for EU legislation with binding force to govern such cooperation is premature at this stage.
Instead, this Recommendation calls upon Member States to strengthen existing aspects of cross-border operational police cooperation, building on good practice which have already been implemented and tested by Member States, including in a bilateral and a multilateral contexts.
This proposal for a Council Recommendation on cross-border operational police cooperation is therefore not supported by an impact assessment.
4. FUNDAMENTAL RIGHTS
By improving Member States competent authorities' ability to cooperate across intra-EU borders, within the limits set by relevant EU and national legislation, this Recommendation will contribute to better protecting citizen’s lives and their security. Any interference with fundamental rights resulting from the Recommendation is justified and does not go beyond what is necessary and proportionate.
On personal data protection, the impact is considered to be neutral. This Recommendation is likely to result in a quantitative increase in the exchange of personal data between Member States, in line with the expected increase in cross-border operational police cooperation. This additional exchange of personal data will however be subject to the same robust rules and procedures already in place to process such data, in line with EU law, in particular the Law Enforcement Directive 44 .
As regards other fundamental rights, such as minimum procedural rights of suspects and accused persons under the EU Directives on procedural rights 45 (the right to information when apprehending a suspect, the right to interpretation and the right of access to a lawyer), the impact is neutral. This Recommendation, which would lead to an increase of the existing cross-border police operations, does not undermine or change the applicable rules on procedural rights. Likewise, rules and standards as defined in other areas of EU law remain applicable, in line with the obligation by Member States to respect fundamental rights as enshrined in the Charter of Fundamental Rights of the EU.
5. BUDGETARY IMPLICATIONS
The budgetary implications of this Recommendation depend notably on the Council’s response to this proposal for a Recommendation and the extent to which Member States subsequently give effect to these recommendations.
As some Member States are more advanced than others in their level of cooperation, the cost of implementing the proposed recommendations will vary between Member States. The cost will reflect a gradual and incremental increase in the existing operational cooperation between Member States, as the effect of implementing the recommended measures takes place over time.
Given the nature of the measures that are to be put in place, the costs at national level could, to a considerable extent and subject to the applicable conditions, be covered by Member States’ programmes under the Internal Security Fund. 46 The Internal Security Fund includes specific objectives to “improve and facilitate the exchange of information”, to “improve and intensify cross-border cooperation” and to “support the strengthening of Member States’ capabilities in relation to preventing and combating crime, terrorism and radicalisation, as well as managing security-related incidents, risks and crises. 47 ” Apart from the costs potentially covered by Member States’ programmes under the Internal Security Fund, there will be no other costs borne at EU level.
6. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The Commission calls on the Council to adopt the proposed Recommendation by June 2022 at the latest.
In the view of the Commission there should be a standing discussion point on cross-border operational police cooperation in the relevant working party of the Council, so as to allow for that working party to serve as a permanent forum for Member States’ discussions on the issues addressed in, and in particular the follow-up given to, this Recommendation.
The Commission should report one year after the adoption of this Recommendation on the progress made by Member States in implementing it. The report should assess if there is a need for EU legislation with binding force on the forms of cross-border operational police cooperation covered.
• Detailed explanation of the specific provisions of the proposal
Section 1 defines the key terms in the Recommendation.
Section 2 makes recommendations aimed at addressing obstacles to the intervention of police officers in other Member States, in the context of cross-border hot pursuits, cross-border surveillances, and joint patrols and other joint operations. The recommendations aim to increase the current list of crimes 48 for which cross-border hot pursuits and surveillances can be used, and to remove the geographical and temporal limitations that some Member States have established, which create barriers for such operations. They aim at aligning the rules on the conferral of executive power between Member States in order to increase the clarity and certainty of what police officers can do when engaging in cross-border hot pursuits, surveillances and joint operations.
The recommendations on cross-border hot pursuits relate not only to the crossing of land borders, but also of water (sea, river, lake) and air borders. They also relate to the use by the police officers involved of their service weapon not only in legitimate self-defence, but also in the defence of others. On these points, the recommendations go beyond what is provided for in Article 41(5)(b) and (e) of the CISA. However, Article 41(10) of the CISA allows for the adoption of additional provisions when implementing Article 41. This includes in this case the conditions under which the hot pursuit may be conducted.
Section 3 makes recommendations aimed at promoting cross-border police cooperation as a tool to counter migrant smuggling and support the prevention and detection of irregular migration. Member States should use targeted joint operations in specific intra-EU border areas, based on analysis 49 , to counter migrant smuggling and prevent and detect illegally staying migrants and cross-border crime linked to irregular migration. Member States should also ensure coordination at national level between the competent authorities involved in the joint operations and those competent to further handle third country nationals apprehended for an illegal stay. They should do so, in particular, using the mechanisms referred to in Article 6 i of Directive 2008/115/EC. 50
Section 4 makes recommendations aimed at enhancing cross-border police cooperation to counter trafficking in human beings and identifying and protecting victims. Member States should use joint operations to counter trafficking in human beings and to identify, provide safety and support to victims. Potential victims of trafficking in human beings can be detected and identified in the context of joint operations. They should be immediately referred to assistance, support and protection services, including in cooperation with civil society organisations where appropriate. Early identification of victims is also crucial in enabling police authorities to better investigate and punish traffickers. In this context, training law enforcement authorities in detecting cases of trafficking in human beings is vital.
Section 5 makes recommendations aimed at transforming existing Police and Customs Cooperation Centres (PCCCs) in intra-EU border areas into Joint Police and Customs Stations (JPCS). In addition to their current tasks of regional cross-border information exchange, Joint Police and Customs Stations should develop the capacity to establish, support, coordinate and conduct permanent forms of operational cooperation in cross-border areas, such as joint patrols and other joint operations. They should produce joint analysis of cross-border crimes that are specific to their border area, and share them through the national Single Point of Contact (SPOC) with all Member States and competent EU agencies, such as Europol. Such targeted joint operations would be governed by the rules on the exercise of police powers in the intra-EU border areas, notably those set out in Article 23 of the Schengen Borders Code. This is to ensure that they do not have an effect equivalent to border controls. Member States should also develop the capacity to jointly support investigations into cross-border crimes occurring in their region, in conformity with applicable legislation and based on relevant legal authorisations as required and issued under such legislation.
Section 6 makes recommendations aimed at better planning, coordinating and supporting joint operations across the EU. Member States and the Commission should create a coordination platform where Member States can exchange information on their needs and priorities. The aim is to better target joint operations especially during large events (e.g. large sports events, international summits), at specific times (e.g. holiday seasons), and to help address specific crimes waves (e.g. terrorism, drug trafficking, match-fixing, trafficking in counterfeit goods, credit card fraud, pickpocketing and other property crimes), perpetrated notably by serious and organised crime groups, making use where appropriate of existing EU financing and the outcomes of EU security research and innovation projects. Member States should instruct their national SPOC to coordinate such joint operations, including joint patrols, from and to other Member States. They should also develop joint threat assessments and risk analyses, and annual needs assessments by exchanging information on upcoming large-scale events, threats to public order, safety, internal security and mobility patterns of citizens, notably during tourist seasons. This approach should help prepare and set up more targeted joint patrols and other joint operations, including coordinated police checks in intra-EU border areas. Over time, it should enable the targeting of key crime locations in the EU as described in the EU SOCTA 2021.
Section 7 makes recommendations aimed at ensuring effective availability of information and communication during cross-border operations. Member States should equip their police officers with tools that allow them to access remotely and securely their own databases in line with national law, as well as EU international and international databases via the European Search Portal. The aim is to allow them to carry out their police functions during cross-border operations, for example by carrying out identity checks. Member States should also equip their police officers engaged in cross-border operations with secure communication means (e.g. instant messenger tool) that operate across borders allowing to interconnect and communicate directly in real time with the officers of the hosting Member State. Member States should make use of the technical solutions to be provided by Europol’s innovation lab, to ensure the interconnectivity of secure communication means across borders.
Section 8 makes recommendations aimed at moving towards a common EU culture of policing by significantly increasing joint trainings on operational police cooperation. Member States should set up joint training and exchange programmes for their police cadets to build long-term knowledge and confidence between police forces in the EU. The joint training should follow the successful example of the Franco-Spanish joint Gendarmerie Nationale/Guardia Civil training programme. They should develop joint ongoing development courses and exchange programmes for frontline police officers and crime investigators to improve their skills and knowledge on cross-border operational cooperation. In particular, on relevant legislation, rules of engagement, tools, mechanisms, professional standards and ethics, procedures and best practice. These could range, with CEPOL’s 51 support, from online training modules to officer exchanges and should simulate real situations. Language courses for officers from intra-EU border areas should be significantly stepped-up. Member States should also align the programme of their national police academies to include accredited European cross-border operational police cooperation courses. They should reflect on the possibility to create large-scale and long-term joint training and exchange programmes for police cadets and Member States’ officers in operational police cooperation.
Section 9 contains final recommendations. Member States are invited to make use of the forum offered by the relevant working party of the Council, referred to above, to discuss issues related to cross-border operational police cooperation as covered by this Recommendation, and in particular issues relating to the implementation of this Recommendation.
In addition, Member States are invited to initiate within six months of the adoption of this Recommendation, a process to change their national rules and bi- and multilateral agreements with other Member States in order to implement the measures of this Recommendation. One year after the adoption of the Recommendation, the Commission should publish a report assessing the Member States’ implementation of this Recommendation.