FECL 54 (May 1998):

THE AMSTERDAM TREATY: TOWARDS A COMMON AREA OF FREEDOM, SECURITY AND JUSTICE?

by Prof. Em. Dr. Lode Van Outrive, University of Leuven (Belgium)

 

Let me begin with an observation: as compared to the Maastricht Treaty, the Treaty of Amsterdam has only succeeded in making the issue of police and judicial cooperation more complicated and at the same time more problematic from a democratic point of view.

 

What changes does the Amsterdam Treaty bring?

However, the problem of the lacking of legitimacy and accountability has still not been overcome. Instead, there is growing institutional confusion and overlapping.

 

The general objective

"...the Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice...That objective shall be achieved by preventing and combatting crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud."

If we look further into how this general objective is to be achieved, we read about "closer cooperation between police forces...closer cooperation between judicial and other competent authorities..., approximation ...of rules on criminal matters..." (art.29) and further "...Facilitating extradition ...ensuring compatibility in rules...preventing conflicts in jurisdiction...adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties..." (art. 31).

Words and words! But what does all this mean? A common penal law? A more repressive administration of justice? Is there not an overtone indicating a shift of power from the judiciary to the police? What do the currently fashionable terms such as "organised crime" and other "container terms" like "security", that have come into fashion, actually mean?

The "ideology of security" is indeed "à la mode". But just as has happened with the term "prevention", the term "security" is immediately objectified and is considered to be self-evident. In addition, it is a term without ending: its meaning can be extended without limits, applied to new situations and used for producing a continuous feeling of threat, fear and moral panic. All that will lead to diverging rules and to misinterpretation, because there are no clear rules with regard to the implementation of the general objective.1)

 

The old and the new legal instruments

The Amsterdam Treaty establishes four legal instruments:

Common Positions (art.34, 2, a) with unspecified legal status;

Framework Decisions;

Decisions;

Conventions (art.32, 2, b, c, d).

The "Framework Decisions", the new instrument, aim at the mutual approximation of the national laws and regulations of the Member States. They are to 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 of implementation. They are not to entail any direct effect. They very much resemble Directives.

"Decisions" serve any other purpose consistent with the objectives of the Title VI, not requiring any approximation of the laws and regulations of the Member States. They are binding but, once again, without any direct effect.

Finally, Conventions are well-known in international legislation.

The Council has to decide unanimously. Unanimity is, however, not required for executive and procedural measures...

The big question is how it will be decided whether a decision is of "fundamental", "executive" or "procedural" nature?. Who will decide what kind of instrument will be used? All this is important, for example, in order to know whether the Court of Luxemburg (ECJ), the European or the national parliaments will be competent or not. Again, a lot of discretionary powers are bestowed upon the ministers, the members of national executive bodies...

The European Parliament must be consulted on binding measures, it has to be kept informed.... but its approval is not necessary.

What about other instruments provided by the Maastricht Treaty: Conclusions, Resolutions, Recommendations? Will they still be used and with what kind of legal status? The Amsterdam Treaty fails to give an answer to this question.

 

Institutional confusion

"Visas, asylum, immigration and other policies related to external border control, compensatory or flanking measures and free movement of persons, as well as judicial cooperation in civil matters are integrated in the Treaty establishing the European Community (TEC, the so -called "first pillar"). Thus, these matters are no longer associated with "criminal matters", which remain a part of the Treaty on European Union (TEU, the "third pillar"). But Community instruments, methods of decision-making and legislation will begin to apply only within five years of the ratification of the Treaty. At that moment the Council will decide unanimously which kind of decision -making procedure is to be applied - possibly, "co-decision with the parliament". Furthermore, there is an opting-out Protocol for the UK, Ireland and Denmark...

"Common action in the field of police cooperation shall include 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...." (art.30, 1, b). How will this third pillar provision relate to an existing (first pillar) directive of 10 July 1991, which aims at preventing the use of the financial system for money laundering, by providing for cooperation between the financial services of the Member States? Furthermore, the protection of the financial interests of the Community is already provided for in two regulations (2988/95 and 2185/96) . There are also four international agreements (one Convention of 1995 and three protocols of 1996, 1997, 1997). Thus, the European Commission is legally entrusted with collecting and exchanging information and is becoming a real centre of penal information about EC fraud. The Member States have some obligations to provide information to the Commission. But why the overlapping with the competences of Europol? Art. 2 of the Europol Convention already mentions this form of crime as belonging to the remit of Europol!

There is considerable confusion, indeed: the JHA Council coordinates action within the third pillar (art. 34), the Commission coordinates action on EC fraud (art.280 EC Treaty) and Europol coordinates action concerning all matters under its broad remit.

The same confusion exists because of overlapping competences with respect to action against corrupt civil servants as well as customs action and mutual assistance in criminal matters.

Finally, there is the integration of the Schengen acquis; the Schengen states may continue to develop the acquis..but within the structure of the EU. (art.1,5, 6 of the Protocol on the integration of Schengen). The Council takes over the competences of the Schengen Executive Committee (art.2), but now the Council has to decide which parts of the Schengen acquis are to be integrated into the first and which into the third pillar... Art. 3 of the Schengen Protocol means a "stand still" for Denmark, but new Member States will have to accept the whole acquis (art.8). The Council is heading for an enormous job.

There are a lot of problems, indeed. For instance, are all the decisions of the Schengen Executive Committee in line with Community law? In some matters, Ireland and the UK do not participate, while Norway and Iceland (non-EU states) do participate (art.4, 5, 6).

So, in the future, the various Member States do not participate in the same way in the community law, nor in cooperation on criminal matters.... Flexibility....Different speeds...Europe "à la carte"... A contradiction between the trend towards unification of penal law (art.29) and allowing countries to go their own way...

It is a dangerous myth that international cooperation, established in an undemocratic way by the executive branches of government only, saves a lot of problems and conflicts and serves efficient government. Indeed, the power struggle between ministers is much bigger than they would ever admit in public. The Justice and Home Affairs Ministers of all Member States like to stress their total agreement over the need to combat crime and to improve "internal security ". However, every member state gives its own interpretation and concentrates on different social groups and problematic situations. Consensus is hampered by differences in legislation, methods, procedures and legal cultures; discussions on the ownership of data, etc. Methods of undercover investigation bring even more problems: procedures and legislation concerning the use of undercover agents strongly differ from one member State to another 2).

Often, when discussions lead to a compromise, this compromise is based on the smallest common denominator as regards the respect for civil liberties and focuses on repressive solutions - a certain indication that the power-holders feel weak and are incapable of addressing the root causes of criminality.

 

The larger competence of the European Commission

First of all, on the basis of the Amsterdam Treaty the European Commission can take initiatives in the area of the third pillar and penal law, but does not have the monopoly it has in the first pillar. The Member States' governments maintain their right of initiative. The Commission did not await the new Treaty and in 1997 it already submitted a draft conclusion regarding programmes for the exchange, training and cooperation of magistrates in charge of the fight against organised crime (the so -called Falcone programme).... without any legal or treaty base....

Thus, the Commission becomes a kind of a "general supervisor" of the third pillar. In some cases it can make an appeal to the Court of Justice (art.35, 6). We will get back to this later.

 

Larger possibilities of police cooperation

The Europol Convention has not yet been ratified by all Member States. Nonetheless, the Amsterdam Treaty provides for further extending the powers and the remit of Europol. This is also an attempt to legitimise a posteriori a whole string of new competences the JHA Ministers so generously conferred on EDU, the precursor of Europol in recent years.

Spain is even demanding that Europol should have the competence to deal with terrorism, as early as 1999. Jürgen Storbeck, the "coordinator" of EDU and future director of Europol, says EDU is prepared to make a "feasibility study".

Now, art. 30, 1, a) of the new Treaty says common action in the field of police cooperation is to include "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;...."

 

A patchwork of initiatives

International police cooperation is not a new thing, but since the seventies it has intensified at such a pace that one could talk of a qualitative leap. A number of researchers have attempted to make systematic overviews of the almost innumerable initiatives in this field.3) These listings are often incomplete, understandably, since new initiatives appear constantly and the "patchwork" spreads.

What do we know about the working of the "International Working Group on Undercover Policing" or of the "Working Group on Terrorism", or of the "Directory on the fight against terrorism and organized crime" (note the association!)?

Hitherto, transnational police investigations, as well as action taken by joint units, made up of police from different countries, were not possible. However, it is a strong wish of some of the Member States that such transnational police operations be authorised.

A German offensive is taking place aimed at making Europol a force with operational powers. The new Treaty actually contains a few items providing for a development in this direction, as recommended in the Action Plan for the fight against organised crime, presented in April 1997 by a "High Level Group" of high-ranking police officials.4)

What should arouse our attention is the very broad definition of "organised crime". Indeed, ill-defined as it is, the term could be used for clamping down on about anything ranging from ordinary petty crime to social and political movements of dissent. Further on, the term "operational" clearly encompasses action and investigations, carried out by joint forces, on each other’s territory.

The question can be raised whether the extended role of Europol as outlined in the Amsterdam treaty does not require a new ratification (i.e approval by the national parliaments) of the Convention. It seems that there exists a secret report of the Council’s Legal Service 5), which finds that a new ratification process would not be necessary.... Be that as it may, the planned extension of the powers of Europol is mentioned openly in the Amsterdam Treaty.

In any case, just like other elastic terms such as "public order and security", "criminal organisation" or "covert organisation", the term "operational" can be interpreted in very differently ways.6)

Art.32 says: "The Council shall lay down the conditions and limitations under which the competent authorities referred to in art. 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State." Could coordination be possible without effective intervention of Europol? All this is very dangerous and experts have strongly objected to a possible increase in power for Europol, as long as no satisfactory external control is guaranteed and in view of the fact that immunity of Europol officials impedes their possible appearance before national courts.7

In some national parliaments (e.g. in the Netherlands) the members discuss these new executive competences, asking what this could mean... But they forget to discuss the problem of the lacking of political and judicial control...

Another issue to be mentioned is the growing confusion between police services and administrative services which used to have well-defined and separate tasks and powers in constitutional democracies. The mingling of police and customs services is striking. There is a close contact between immigration services, intelligence services and police services. More and more often, representatives of the military too are present at meetings concerning various items in the field of "public order and security": the old dividing line between external and internal security seems to fade away. The same goes for the methods and technical means used: common criminal investigation more and more resemble intelligence work, with " undercover" techniques, pursuit and observation on each other's territory, control by military satellites...

The practice of "pro-active" policing was long limited to intelligence services. Now it is becoming commonplace in regular police work. A mutual rapprochement is taking place: the intelligence services are no longer focussing on the gathering of political information only. In recent years, almost everywhere, they have enlarged their working area and have been given tasks in the "war on crime". No wonder that intelligence circles are among the most fervent advocates of the criminalization of political offences.8

The open-ended wording in art. 29 of the new Amsterdam Treaty - " closer cooperation between police forces, custom authorities and other competent authorities...." - opens the door to wider participation of intelligence services. This is likely to further undermine transparency and accountability.

 

The European judicial area and judicial control

Many observers have noticed that national judicial authorities were not involved in the negotiations on initiatives pertaining to international police cooperation, even though they are (or, at least, are supposed to be) the most important institutions exercising control on police operations. Instead, everything was decided by higher civil servants and members of the executive powers, the ministers of the Member States...

Control by judicial authorities is not mentioned in the Schengen and Europol Conventions, which means that this form of control is considered to be a matter belonging to the Member States. The wording of Articles 39, 40 and 46 of the Schengen Convention suggests that police services can act fairly independently, communicate with their colleagues of the different countries, and even engage in joint pro-active policing. In a number of Member States, this has, however, given rise to heated disputes between police people and judicial magistrates.9

Now, in a declaration added to art. 30 of the Amsterdam Treaty, the Member States tell us that police cooperation, thus also Europol, will be controlled by the judicial authorities on the national level. Quite obviously, this control will differ a considerably, both in theory and in practice, from one country to another.

The more police cooperation becomes expansive and important, the more fundamental rights of citizens will be endangered. Let us imagine what happens when the Council of Ministers makes use of art. 32 that says: "The Council shall lay down the conditions and limitations under which the competent authorities referred to in art. 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State."

The disquieting developments described above finally lead to a situation where a group of magistrates from various countries of the Union and Switzerland sounded the alarm. Their "Geneva appeal" urged for the swift creation of a " European judicial space" as a necessary complement to police cooperation. Among other things, they are demanding an adequate role for judicial magistrates in the setting up and functioning of international police cooperation. They refer not only to the exchange of information but also to an institutionalised participation.10 It is somewhat regrettable that it took the magistrates so long time to reach the point of taking a stands. As a matter of fact, the lacuna had already been noticed in the seventies.

A number of decisions of the Council announce the installation of "liaison magistrates". Indeed, on 26 April 1996, the Ministers of Justice decided on a "Joint Action" which describes and defines the task of " liaison magistrates" and which encourages a closer cooperation between the magistrates of the Member States.11

A group of experts on organised crime, established by the Council in 1996 proposed to create a "network of judicial cooperation" or a "European Network of national central judicial contact points" with magistrates from the different Member States. There is a manifestly a growing problem of "forum shopping". This is dramatically illustrated, for instance, by the process of forum selection or pre-structuring consultation and transnational investigation in the case of "controlled deliveries". There are no rules or guidelines preventing conflicts of jurisdiction or centralising prosecution in one or more Member States. Dangerous solutions are being suggested: to look in the first place at the opportunity for catching and sanctioning the suspect, without thinking too much about the situation of the victims; to bestow too few competences on the judges, maintaining much police autonomy (e.g. regarding prejudicial consultation and pro-active investigation).12

Magistrates do not appear to be in favour of a real network of liaison magistrates, which they regard as too costly and not always necessary. Instead, they prefer "ad hoc" cooperation. But too loose structures of cooperation cannot bring about the necessary formal judicial control. The new Treaty of Amsterdam shows there is some (small) awareness of the problem now.

In the past, the ministers almost completely refused any authority of the Court of Luxembourg (ECJ) in the Justice and Home Affairs area. This goes especially for Schengen cooperation. As for EDU/Europol, a partial solution was provided in July 1995, as much as Member States may declare, by special declaration that the ECJ can give preliminary rulings regarding the interpretation of the Convention. The new Amsterdam Treaty nearly took over this solution for all third pillar matters, including when free movement of persons, immigration or asylum are concerned. Regarding conventions and "framework decisions" on the subject of police and judicial cooperation, the ECJ will only have jurisdiction over the correctness of interpretations and decisions made, and whenever there is a threat of trespassing competences or procedures. It has to be called upon by a Member State. The Commission can only do so in the case of a Convention. Cancellation of framework decisions and decisions can be requested by a Member State or by the Commission. The competence to rule over disputes between Member States, and now even between Member States and the Commission, is provided for in the Third Pillar regulations.13

If a Member State agrees to ECJ jurisdiction in the field, by a declaration to this effect, preliminary rulings and statements by the Court concerning the respect of the European Convention on Human Rights become possible. On the other hand, art. 35, 5 provides no competence for the Court of Luxemburg "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". This amounts to a serious shortcoming in the legal protection against actions of Europol and of joint police teams.

Meanwhile, the Council is preparing a new Convention on Mutual Assistance in Criminal Matters between the Member States and, in annex, a Joint Action on "good practices" in mutual judicial assistance.14. The European Parliament discussed these texts in March. Apart from a discussion on their legal bases, the EP is of the opinion that the texts do not go far enough...

 

'European Judicial Area' a slogan

"The European judicial area" is a slogan: it is a new structure that does not really bind the national states. Nonetheless, it is an attempt to draw up a new penal policy "from above". This kind of uniformity can but result in an undermining of legal protection for the people. We may expect discussions and interpretations of the exact competences of the Court!

In the meantime, and rightly so, experts are still demanding that full competence of judicial control be conferred on the Court, especially with respect to Joint Positions and Joint Actions, since the latter can affect the rights of the individual citizens.15

What about these rights, then? The Amsterdam Treaty brings no improvement whatsoever. Art. 6, 1 and 2 of the Treaty on European Union says: " The Union is founded on the principles of liberty, democracy, respect of the human rights and fundamental freedoms, and the rule of law, which are common to the Member States...The Union shall respect fundamental rights..." Note that the EU still refuses to sign the European Convention on Human Rights.... thus avoiding to deliver the slightest proof that it is a new specific political body....

In all the agreements, whatever form they take, much more attention is paid to the competences and the protection of the institutions and their officials, rather than to the legal position and protection of the individuals concerned.

It is obvious that an imbalance of power has been established. Extensive rules on the handling of personal data are being set up, it is true, giving the impression that individual rights are being adequately protected. Yet, one wonders whether all this is not an exercise in "window dressing". As a matter of fact, most regulations in the Schengen and EDU/Europol convention aim at the protection of the " input" and the " output" of data. This is first of all of interest to the public authorities and not in the interest of the individuals whose data are being exchanged and processed. In addition to this, only computerised data are protected, while nothing is said about the spontaneous exchange of information between police forces (e.g. by telephone) which takes place on a daily basis. Nowhere is there any mention that the Member States should provide, in practice, a fair treatment, legal aid, translation, means for suspects or others to defend themselves, ... This is particularly true with regard to persons who are being checked and controlled at external borders, sometimes held there or detained, sent back, etc...

For the time being, we lack witness reports on the subject, so there is hardly anybody is in the position to have a thorough knowledge of what is happening to these persons. The Schengen and EDU/Europol conventions have created a wide range of possibilities for police services to exchange information, even on potential, future criminals, among others, by allowing the exchange of "soft" data (non-verified intelligence). However, the definition of the different levels of reliability is very unclear and differs from country to country, even sometimes from police officer to police officer, with a great deal of uncertainty for the citizens as a result. Restrictions have been made with respect to the storage of data, it is true. However, regularly, exceptions from restrictive rules are regularly provided for, whenever the authorities concerned themselves invoke some "urgent need".

All this opens the door to discretionary behaviour on the part of the authorities. It is worth mentioning that it is especially the police officer working at the grass roots who is confronted with this type of problems.16 Individuals can ask to have for the correctness of their own data to be checked... But naturally this depends on knowing requires the knowledge that the police actually have collected information on your person in the first place! And, once again, police services can decide for themselves whether a person is to be granted access to the data or not. The procedures are very complicated, especially for requesting access to data from EDU/Europol. Consequently, it remains a mystery how, for example, a person stopped at an external border can know and assert his or her rights? Can such a person in practice obtain help in practice? Can he or she check whether the data gathered is correct and can he or she get in contact with an authority with controlling powers? What happens when a person is detained? Does the police officer know how to act? It is obvious that no attention is given to these kinds of problems... problems that are supposed to be solved on a national level. Nothing obliges Member States to fulfill their duties in a really effective way.

In addition, the bodies charged with controlling the correct application of data protection and privacy rules are not in a position to fulfil their task in a proper way: they lack personnel, resources and the legal capacity to sanction offences.

Partially because of the absence of political and judicial control " pro-active" policing has significantly increased. The authorities try to define and control entire risk groups and sectors of the population which they regard as inclined to committing offences. Not only potential criminals are subject to this, but, for example, immigrants as well.

Hence, police work is shifting away from the mere prosecution of crimes. A virtual or potential reality takes the place of actual reality. In fact, it is no longer the territories that are being controlled, but categories of people instead.17

 

Problematic political legitimacy and accountability

Art.1 of the amended Treaty on European Union reads: "This Treaty marks a new stage in the process of creating an ever closer union among the people of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizens."

Is it not rather striking then that decisions on new initiatives, like new Treaties, and the drawing up of "programmes of action" are taken solely by members of the national executives, i.e. Ministers?

The flood of decisions and the speed at which they are being produced are just startling. Consequently, it is not surprising that the quality of the rules is rather questionable.

In addition, besides monopolising initiatives and information, the ministers dispose of ever more important means and personnel. Almost every initiative is immediately accompanied by the setting up of a new bureaucratic structure, including a "clearing house" which gathers information and runs a database.

Among the various initiatives for cooperation, like Schengen and EDU/Europol, there are different levels at which decisions are being prepared and taken. Proceedings begin at the level of working groups, gradually make their way to central working groups made up of senior officials, such as the Schengen Central Group, the K.4 Committee and COREPER, and finally end up in the Council of Ministers.

In any case, there are strong indications of a considerable " overlapping" of initiatives. This leads to a real rank growth of often overlapping rules - treaties, decisions, incorporation of non -binding texts in binding ones, the writing of rules for just a group of states, preliminary application of rules for only a limited number of states,..." .18

There are supposed to be no less than 61 fora concerned with the fight against drugs. There are various initiatives and bodies dealing with the control of illegal immigration and the control of external borders. There is a strong competition between INTERPOL and EDU/Europol,19 and in turn, these two agencies are competing with the Schengen structures of police cooperation.

Neither at the "clearing houses", nor at the police forces themselves, it is it always clear which channels or networks of information should be used. In general, the Schengen framework is popular, because it legitimises most of the ongoing practices. On the other hand, for many police officers, EDU/Europol is something they only heard about, but hardly work with themselves.

Even with regard to very important matters, ministers seem to aim at a reduction of international agreements into purely technical and administrative affairs. As a historical example we can mention the EDU, the precursor of Europol, which was established on the basis of a purely administrative ministerial agreement.

Other examples are the very important matters dealt with by the Executive Committee (Schengen Ministers).

To sum it up, ministers and their higher civil servants more and more tend to take decisions in a kind of " inner circle".

 

The absence of political control is not remedied by the new Treaty

In the first place, control over the ministers ought to be a privilege of the national parliaments. This should follow from the fact that the ministers concerned continuously refer to their national sovereignty, especially when policing and justice are involved. One could expect the national parliaments to fulfil this duty. However, research has shown that the opposite is true and that, in fact, national parliaments hardly have an overview of the actions taken by their ministers.20

But even if the national parliaments did wish to exercise their powers, they would face an "asymmetrical situation". The various parliaments are faced with centralised institutions that take decisions on Schengen, EDU/ Europol etc. It is an illusion to believe that seven, ten, fifteen, and soon, twenty-six parliaments, could exercise any coordinated and effective control. It becomes very easy for the Council to "orchestrate" the debates of the different parliaments or to exploit the fact that not all the parliaments show the same interest in a particular issue...

It would be a better solution if inter-parliamentary control commissions were to be set up by the parliaments concerned. Even the European Parliament could participate, taking into account that the European Commission participates in the meetings of the Executive Committees of EDU/Europol, Schengen, etc. Finally, an inter-parliamentary control commission is the only way for the national parliaments to stay informed on a regular basis on the proceedings of the initiatives involved.

It is understandable that a lot of people are irritated by the obvious lack of power of the European Parliament. And even with the revision of the Treaty, nothing but an advisory role has been attributed to the Parliament by the governments. According to the new Treaty, advice should now be sought before decisions are being taken.... One can ask the question what other function advice could have anyway!

In conclusion we can note that "practice illustrates that the governments are more concerned with their own position of negotiation than with the task of informing the parliament".21

 

Conclusion

1. The Amsterdam Treaty contains some important changes for the Union penal law. In future, EU decision-making could have more consequences for the daily administration of justice in the Member States. In these areas, transitional situations and temporary solutions have become a permanent characteristic of cooperation. This is fatal for democratic control and the certainty of law. The incorporation of the Schengen acquis only adds to the reigning confusion.... Opting in.. Opting out.... Temporary clauses... Flexible conditions...

2. If the option for a democratic way of functioning is taken as a reference, the current possibilities for European police and judicial cooperation are rather limited. Not even the development of a "European judicial area" would meet such standards, since the European Union is not an institutionalised political body yet. The EU is neither a federal, nor a confederal state. It is an economical and, soon, monetary union with free movement of capital, goods and services... but not even of persons, because two Member States refuse to give up their internal border controls. The Treaty of Maastricht only mentions a "common interest" concerning foreign policy and security, justice and home affairs...nothing more. So does the Treaty of Amsterdam.

In general, one can state that, more than ever, there is actually is a lot of uncertainty about the future shaping of the Union. In fact, there is a type of political no man’s land situation which is exploited by members of the executive powers in order to take hazardous initiatives in the field of international police and judicial cooperation, aimed essentially at creating a fully operational European police apparatus. No effort whatsoever is made to give the operation greater legitimacy, or to subject it to democratic accountability. In this way, an autocratic state could develop, with less and less control exercised by parliament and by the judiciary on the functioning of the police - a type of police state.

At the same time, it is probable that the discussion on the internationalisation of police and even judicial cooperation will take place outside emerging official EU frameworks. We can already observe the proliferation of all kinds of opportunistic, misconceived and otherwise defective initiatives and cooperation frameworks, whose common feature is that they never draw unanimous support, and thus lead to the formation of competing "archipelagos" of cooperation. While this development runs counter to achieving any unity of decision-making, it contributes to the rise of a sort of international corporatist ideology of the security and intelligence circles involved, relying on a muddle of alleged internal and external security needs. Such a milieu constitutes a growing ground for new norms concerning secrecy, confidentiality and loyalty. At the same time, the proliferation of the "archipelagos" implies a disputable transfer of powers from the sovereign national state to supranational bodies. What about their legitimacy and accountability? There is no supranational control in place!

Who then will control those tasked with controlling, us, the European citizens? Who will oppose this democratic deficit? Who will fight for the restoration of the democratic principles which are slowly but surely falling into oblivion, one after the other...?

 

1. N. C. WALKER, Policing the European Union: the politics of transition, in O. MARENIN (ed.), Policing Change, Changing Policing - International Perspectives, Garland Publishing, Ind., New York and London, 1997, p.260.

2. N. PASSOS and R.B. GROSKIN, International Undercover Investigations, in C. FIJNAUT and G. MARX, Undercover - Police surveillance in comparative perspective, Kluwer Law International, The Hague - London - Boston, 1995, p.291-312.

3. G. RENAULT, J. VANDERBORGHT, L. VAN OUTRIVE, La collaboration policière internationale en Europe, Actualité bibliographique, in Déviance et Société, June 1996, Vol.30-No.2, p.173-177; M. ANDERSON a. o., Policing the European Union - Theory, Law and Practice, clarendon Studies in Criminology, clarendon Press, Oxford, 1995; K. HAILBRONNER (Hrsg.), Zusammenarbeit der Polizei- und Justizverwaltungen in Europa - Die Situation nach Maastricht-Schengen und SIS, Kriminalistik - Wissenschaft und Praxis, Kriminalistik Verlag, Heidelberg, 1996; Standing Committee of Experts in International Immigration, Refugee and Criminal Law: Democracy, Migrants and Police in the European Union: the 1996 IGC and beyond, Forum, Utrecht, 1997.

4. "What kind of " operative powers" for Europol?", in ‘Fortress Europe?’ No. 50, March-April 1997, p.1-2; Europol: " operative powers" and " organised crime" plan, in Statewatch, vol. 7, March-April 1997, p.1-3.

5. ‘Fortress Europe?’ No. 50, op. cit.

6. H. ADEN, Europol und ‘Operative Ermittlungsmethoden’- Zur Europäisierung eines untauglichen Konzeptes, Bürgerrechte & Polizei/CILIP, 58, 3/97, p.65-69.

7. Standing Committee...May 1997, op.cit.

8. D. BIGO, Police en Reseau - L’expérience européenne, Presses des Sciences Po, Paris, 1996, p. 101-105, 303-336.

9. G. BOURDOUX en D. LYBAERT, De politiediensten: een vergeten partner (Police services: a forgotten partner)? in Panopticon, 1996, 3, May-June 1996, p.227-247.

10. A. PERDUCCA, The " Geneva Appeal", and G. DONA et R. SICURELLA, Vers un espace judiciaire européen, in AGON, No 14, March 1997, p.2-6.

11. Publikatieblad van de Europese Gemeenschap, No. 105, 27 April 1996, p.1.

12. VERMEULEN G., A European Judicial Network linked to Europol? In search of a Model for structuring Trans-National Criminal Investigations in the EU., Maastricht Journal of European and Comparative Law, 1997, No. 4, p.346-372; BRUGGEMAN W., Undercover Policing in the EU: Proposals for a New System, in den BOER M. (ed.), Undercover Policing and Accountability from an International Perspective, European Institute of Public Administration, Maastricht, 1997, 194-195.

13. EUROPEAN UNION, Consolidated Treaties, Consolidated version of the Treaty on European Union, art. 35, Luxemburg, Office for Official Publications of the European Communities, p.25-26.

14. See ‘Fortress Europe?’ No. 54 (this issue): "Naples II and Mutual Assistance in Criminal Matters: the making of a legal labyrinth"

15. Standing Committee of Experts in International Immigration, Refugee and Criminal Law, Draft revision of the EU Treaties. Response on the Dublin II Outline and the Addendum of the Dutch Presidency. Provisions related to criminal law, May 1997, p.3.

16. P. DE HERT en J. VANDERBORGHT, Informatieve samenwerking over de grenzen heen - Een juridisch-empirische analyse - Onderzoek naar de informatiestromen tussen Belgische en buitenlandse politiediensten en de bescherming van de persoonlijke levenssfeer (Cooperation concerning information exchange between Belgian and foreign police services and the protection of privacy). Uitgeverij Politeia vzw, Brussel, 1996, p.187-218.

17. D. BIGO, op.cit., 1996, p. 358.

18. A.H.KLIP, Uniestrafrecht is op hol geslagen (Criminal law of the Union is bolting), in Nederlands Juristenblad, 11 april 1997.

19. INTERPOL strategy paper, 30. September 1996, Doc. nr. 2623-09/1; EUROPOL 59, Memorandum for proposals on items for discussion concerning European initiatives. Initial suggestions for work schedule and progression, 11086/96.

20. A. MAURER, Title VI and the lack of democracy - Strategies for the European Parliament and the national Parliaments, in The European Union and the Agenda for 1996, International Conference, University of Amsterdam, 1995, p.10.

21. A.H.KLIP, op.cit. p.644.