FECL 49 (December 1996/January 1997):
The unique customs and police operation is summarised in a confidential Draft Joint Action, drawn up by the Customs Cooperation Working Party, a K.4 subgroup. According to our sources, the Draft was put on the preliminary agenda of the Justice and Home Affairs (JHA) Council meeting of 28 November 1996 as an A-point (item to be adopted without discussion by the ministers), but removed shortly before the meeting, apparently because of a last-minute disagreement on the financing of the operation. But after some editing by the COREPER, the Joint Action was finally adopted in December - without ever having been discussed by the responsible JHA ministers - at a meeting of the EU ministers responsible for ... fisheries.
According to the Draft, the "general objective" of the "strategic operation" is to combat drug smuggling with a view to "ensuring an effective control along the external borders of the European Union". More specifically, the operation shall contribute to uncovering smuggling networks "by making possible the identification of suspect loads being carried by road, while they still are on the territory of certain Central and Eastern European countries, that is, before they enter the European Union".
Moreover, the operation aims to "improve cooperation between law enforcement authorities in the EU (including customs and police) and with the law enforcement authorities in the relevant countries of Central and Eastern Europe".
The operation will last two weeks. It will be financed with a maximum of 100,000 ECU from the European Communities 1997 budget, "within the framework and under the conditions laid down in the programme for the exchange and training of and cooperation between law enforcement authorities (OISIN)". The contribution is granted to the Customs Cooperation Council (CCC). The EUs contribution shall be used to finance "operational expenses" (inter alia the travel and living expenses of participating customs and police officers), including those of participating Central and Eastern European countries, and "the communication costs arising during the operation".
The CCC is not an EU institution, but an international body with 131 member states. It was established in 1953 to promote cooperation between governments and, among other things, to exchange operational intelligence on the trafficking of illegal goods.
That the "strategic operation" implies clearly operational action of EU customs and police officers on foreign soil, can be deduced from the summary description of its "specific purpose" in the Joint Action, including the following:
- surveillance of road traffic along the different variants of the Balkan drug route;
- collection of "information and intelligence" on drug consignments;
- deepened cooperation between "law enforcement authorities" on a regional and international level.
- establishment of a suitable communication system for the exchange of information between the law enforcement authorities concerned;
- more frequent search operations aiming at uncovering drug smuggling organisations - for example by the increased use of "controlled deliveries" (deliveries under police observation) of drugs.
The EU Council and the Commission will be fully incorporated into the project. The Joint Action obliges the CCC to submit a full report on the operation to the General Secretariat of the Council and to the Commission.
The Commission will make available its computerised information system, SCENT, for the communication of information during the operation. SCENT (System Customs Enforcement Network) is a system for the exchange of encrypted information between the member states and the Commission about the import and export of goods. SCENT was set up in 1987. Its central computer is placed at the Commission in Brussels. The SCENT system is better known under the name of what is actually its extension, the CIS (Customs Information System). The CIS was established in 1992. It enables customs officers at external EU borders to exchange information on cases of fraud and trafficking in prohibited goods. The Draft CIS Convention provides for a dedicated database on persons and items to be incorporated in the system.
According to the draft, the Joint Action was prepared by the Irish Presidency "with help from Germany". Incidentally, the German authorities operate a "Balkan Route Information System" in Cologne. The system involves the exchange of intelligence about drugs trafficking through the Balkans.
Sources: Joint Action concerning the participation of the Member States of the EU in a strategic operation planned by the Customs Cooperation Council (CCC) to combat drug smuggling on the Balkan route, Customs Cooperation Working Party, Brussels, 5.9.96, 9099/2/96, Rev 2, Limite, ENFOCUSTOM 20, and corrigendum 3, 17.12.96 (quotations: our translations from Danish); The information on CCC, SCENT and the German Balkan Route Information System is drawn from: Police Co-operation in Europe: An Investigation, J. Benyon and others, CSPO, University of Leicester, 1993, ISBN 1 874493 30 8.
The planned "strategic operation" is a novelty. For the first time in the history of the EU, customs and police officers of EU member states will participate in a joint operational action outside the territory of the Union. Considering the obvious legal and political implications of the operation, it is all the more remarkable that the Joint Action seems to have been neither discussed nor decided by the politically accountable Justice and Home Affairs ministers. Instead it was adopted without discussion by the Fisheries ministers (Perhaps because the Council regards these ministers as experts in the field of extra-territorial operations?).
Given the sparse information concerning the practical execution and the scale of the "strategic operation", many questions remain unanswered. Should the operation be seen rather as joint manoeuvres aimed at setting up and testing practical cooperation structures between the law enforcement authorities of the EU member states and those of certain Central and Eastern European countries - a sort of equivalent in the domain of policing to the joint military manoeuvres in the framework of "Partnership for Peace"? Or is the operation actually focused on genuine operational action, including, for example, the seizure of drugs, checks of road traffic, and arrests of drug smugglers? Will EU police and customs officers play an active role in such operations or will they assist their Central and Eastern European colleagues as a sort of military advisers in a European "War on Drugs"?
The wording of the Joint Action seems to suggest that the operation will contain all the elements named above.
In any case, the legal and political basis for any participation of EU police and customs officers in an extra-territorial operation of this scale is the secret which the K.4 Committee and the fisheries ministers are keeping to themselves.
There are reasons to believe that the planned operation is just another example of a process by now well-established among ministers and civil servants responsible for Justice and Home Affairs. It consists of achieving European harmonisation in the field of law enforcement by creating structures of practical cooperation through faits accomplis, rather than by choosing the way of legal harmonisation, which requires public debate, parliamentary approval and judicial control and is therefore considered all too cumbersome by the executive branches of government of the EU member states.
Given the declared "general objective" of the operation - ensuring an effective control of the Unions external borders, one also wonders whether future joint "strategic operations" will still be limited to drug smugglers. In fact, the Balkan route is much used also by other people, such as, for example, asylum seekers on their way to Europe. Shall they too be stopped, "while they are still on the territory of certain Central and Eastern European countries, that is, before they enter the European Union"?
Finally, in view of the strong German role in the planned "strategic operation", could there be interests other than simply internal security and law enforcement behind the EUs apparent attempt to control movements of persons and goods through the Balkans? Will joint intelligence gathering on drug smugglers not produce plenty of other "useful" intelligence? The European Parliament, as well as the national parliaments, would be well advised to demand some explanations - perhaps from their Fisheries Ministers.