1
The Protection of Victims of Human
Trafficking within the European Union
The contributions of Europol, Eurojust and the European
Public Prosecutor’s Office to the victim protection
MA Thesis in European Policy
Graduate School for Humanities
University of Amsterdam
Anne Bonewit
10003874
First supervisor: Ms dr. C.R.M Versteegh
Second supervisor: Prof. L. Marácz
26-08-2015
2
Content
Introduction ... 3
1 The development of the EU’s competences to fight human trafficking ... 5
1.2 The Maastricht Treaty: the beginning ... 5
1.3 The Amsterdam Treaty: any change? ... 6
1.4 Tampere: the starting point for improved EU anti-trafficking action ... 6
1.5 Other important legislative actions against human trafficking ... 8
1.6 The Treaty of Lisbon, a turning point in EU anti-trafficking competences: possibilities to combat trafficking ... 9
1.7 Article 86 TFEU: A Public Prosecutor for the EU? ... 10
1.8 Chapter Conclusion ... 13
2 Law-enforcement and prevention of human trafficking in the EU ... 14
2.1 Chapter introduction ... 14
2.3 Eurojust and Europol: competences for the EU anti-human trafficking policy ... 15
2.4 Europol: competences and involvement in practice in THC crimes. ... 17
2.5 The European Public Prosecutors Office’s competences ... 21
2.6 The European Public Prosecutors’ Office and THB cases ... 24
2.7 Issues and challenges for the creation of the EPPO: a clash of competences? ... 24
2.8 Chapter Conclusion ... 26
3 The Rights of the Victims ... 28
3.1 Chapter Introduction ... 28
3.2 The legal framework for victim protection: EU law ... 28
3.2.2 Secondary EU law and victim rights protection ... 29
3.3 Sources of International law against human trafficking... 31
3.4 The case law of the ECtHR about human trafficking ... 33
3.5 Protection of the rights of the victims in practice ... 35
3.5.1 Eurojust and Europol and the protection of the rights of the victims ... 36
3.5.2 The European Prosecutor’s Office: a new actor in the protection of victim rights? ... 36
3.5.3 The EU Fundamental Rights Agency: improvements though research ... 37
3.5.4 Member States: the dominant actors in human rights protection ... 37
3.6 Chapter Conclusion ... 38
Conclusion ... 40
3
Introduction
Human trafficking has become a problem in the European Union (EU) since the opening of the borders with the Schengen Treaty as from 1985. Traffickers transfer EU Citizens or Third-Country Nationals (TCNs) to other EU Member States. In this Member State, trafficking victims are forced to work in, for example, the prostitution, the catering industry, agriculture or are forced to commit criminal offences like theft. In these jobs, the victims are exploited which causes serious violations of their human rights.
The EU has been competent to make legislation for police and judicial cooperation (on criminal matters) since the Maastricht Treaty. Due to this police and judicial cooperation, the EU is, amongst others, capable to act against cross-border crimes which take place in the EU. The EU regards human trafficking as a serious problem and has recognised human trafficking as a cross-border crime. Therefore, the EU has made legislation in order to act against human trafficking and to provide protection to trafficking victims. In 2009 the Lisbon Treaty was adopted. This Treaty
extended the possibilities for the EU to make legislation for the police and judicial cooperation on criminal matters. Since the EU has made a policy and legislation against human trafficking, there is also a need to execute this policy and legislation. At the moment, the EU anti-trafficking policy is mostly executed by the Member States with assistance of the EU agencies Eurojust and Europol. However, the Lisbon Treaty created the possibility to move the execution of the EU policy for police and judicial cooperation in criminal matters from a national to a European level. Article 86 Treaty of the Functioning of the European Union (TFEU) makes it possible to establish a European Public Prosecutor’s Office (EPPO or Office). This Office would be competent to investigate and prosecute fraud cases which have harmed the financial interest of the EU.1 Paragraph 4 of article 86 TFEU allows the European Council to extend the competences of the EPPO to cross-border crimes, like human trafficking. In those circumstances, the European Public Prosecutor’s Office can execute the EU anti-trafficking policy by investigating and prosecuting human trafficking cases.
This creates an interesting situation. When the European Public Prosecutor’s Office would be established and would be competent to investigate cross-border crimes, it could take over some of the competences of the national authorities which are now responsible for the execution of the EU anti-trafficking policy. Besides the national authorities, there are also the EU agencies Eurojust and Europol which are partly competent in the execution of the EU’s anti-trafficking policy. These agencies assist the Member States with the investigation and prosecution of cross-border crimes. The establishment of the EPPO can therefore create a conflict of competences between the EPPO, Eurojust, Europol and the Member States. In this thesis I examine this possible conflict of
competences for the prevention, law enforcement and victim protection elements of the EU anti-trafficking policy between one the one side: the European Public Prosecutor’s Office and on the other side: the Member States, Eurojust and Europol.
The research method in this thesis is based on a historical and legal review of (specific) EU legislation. In order to make this legal and historical examination, several legal and policy documents related to the EU’s human trafficking policy are used. In this regard especially legislative proposals from the European Commission for the European Public Prosecutor’s Office, Eurojust and Europol were
1 European Commission, Proposal 17-7-2013 of for a Council Regulation on the establishment of the European
4 relevant. The examination is further supported by a literature review. In this thesis the following question has been examined: What is the position of Eurojust, Europol and an EU Public Prosecutor (Office) in relation to the prosecution of suspects and the protection of victims of human trafficking in the EU?
The thesis has the following structure. The first chapter starts with an examination of the history of the EU competences concerning human trafficking and gives the legal framework of the EU anti-trafficking policy. This chapter also deals with the (possible) creation of a European Public Prosecutor Office (EPPO). The second chapter discusses the law enforcement and prevention elements of the EU anti-trafficking policy. This chapter examines the competences of the different EU agencies and the future role of the European Public Prosecutor and its effect on the law enforcement and prevention of trafficking crimes. The third chapter describes the victim protection element of the EU
anti-trafficking policy. The competences of the Member States and EU agencies like Eurojust, Europol, the EU Fundamental Rights Agency, and the proposed European Public Prosecutor’s Office with respect to this version of EU victim protection policy are examined. The review of the roles of the agencies in the different aspects of the EU anti-trafficking policy leads to the conclusion.
5
1 The development of the EU’s competences to fight human trafficking
1.1 Chapter Introduction
In this chapter the history of the competences of the EU in order to act against human trafficking is examined. Human trafficking is considered as a cross border crime due to the involvement of criminal networks which operate across borders and the fact that victims are trafficked from one state to another. Therefore, this crime falls under the EU’s competence of judicial cooperation on criminal matters. This makes it possible for the EU to make legislation and a policy against these crimes. The history of the competences of the EU in this field is important to examine because it can explain and show possibilities for the current EU anti-trafficking legislation and policy. In this chapter the
following structure is applied. Firstly, the competences of the EU since the Maastricht Treaty are described. Secondly, the competences and changes in the Treaty of Amsterdam are discussed. Thirdly, the Tampere European Council summit and the EU legislation which was created after the Tampere summit are explained. Fourthly, an overview is provided about other relevant EU legislative instruments or decisions made after the Tampere summit. Fifthly, the changes and legislation made since the Lisbon Treaty are examined. Sixthly, the possibility given by the Lisbon Treaty to establish a European Public Prosecutor is discussed.
1.2 The Maastricht Treaty: the beginning
In the Treaty of Maastricht the pillar structure of the EU was created. In the first pillar the
competences that belonged to the former European Community were laid down. The second pillar regulated the common foreign and security policy. With the third pillar the Member States created the possibility for police and judicial cooperation on a European level. This third pillar was very inter-governmental due to the sensitive character of this topic for the Member States.2 The legislative procedure of the third pillar was therefore, adjusted to the sensitive character of this pillar. The European Commission did not have the right to initiate change and the European Parliament only had to be consulted in the legislative process. The Court of Justice of the European Union (hereafter Court or CJEU) did not have jurisdiction over the third pillar. The Council of the European Union (at that time this Council was still called the Council of Ministers) was therefore, the only institution competent to take decisions and create legislation for the third pillar.
The establishment of the third pillar offered opportunities for Member States to act on an EU level against cross-border crimes in the EU like human trafficking. Another development in the Maastricht Treaty was the provision which allowed the EU to create a European Police Office.3 This provision provided the legal base which led to the establishment of Europol in 1995.4 Europol has become an important agency which assists the Member States in the investigation of cross-border crimes. Even with a legal basis to act against cross-border crimes in article K.3 of the Maastricht Treaty, the Council did not create any legislation for the prevention of human trafficking until 1997. The first Council Joint Action which promoted actions to combat the trafficking and sexual
exploitation of children was adopted in 1997 and was based on article K.3. This was the first EU legislative instrument against trafficking. However, this Joint Action was only aimed at child victims. This Council Joint Action urged the Member States to take action in their national legislative system
2
Desmond Dinan, Ever Closer Union: An Introduction to European Integration, Palgrave Macmillan 2010, pp. 533-534.
3 Valsamis Mitsilegas, EU Criminal Law, Hart Publishing: Oxford 2009, p.162. 4
6 to prevent the trafficking and exploitation of children.5 The Joint Action therefore shows the
intergovernmental nature of the third pillar since it only ‘’urges’’ and not forces Member States to take action and the EU cannot take action by itself. However, as is described below, the Amsterdam Treaty changed the competences and legislative instruments of the EU in the third pillar
1.3 The Amsterdam Treaty: any change?
The Amsterdam Treaty reformed the pillar structure; migration moved from the third pillar to the first pillar. This change made migration a community competence. There are aspects of human trafficking which fall under the migration competence including the trafficking of a victim from one state to another, border controls and EU residence rights for victims. After the Amsterdam Treaty, the EU could make legislation via the community method for these aspects of human trafficking. The Treaty also made several other changes which were of importance in the fight against human trafficking. A first important change was the inclusion of a flexibility clause in the Treaty. This clause made it possible for Member States to cooperate closer in the field of, amongst others, judicial cooperation on criminal matters by using EU institutions, procedures and mechanisms.6 A group of Member States could therefore, make more rigid legislation or start cooperation groups with other Member States while using EU legal instruments. Furthermore, external border controls were moved with the migration policy towards the first pillar. This was also important for actions against
trafficking because border control is an important aspect in the prevention of these crimes. This change was necessary because the Schengen Treaty, which created the open borders, was incorporated in the Amsterdam Treaty. Therefore, border control on a European level became essential in order to make it more effective.
The legislative procedure of the third pillar was also changed with the Treaty of Amsterdam. As from this Treaty, the Commission and the Council shared the right to initiate legislative
instruments in the third pillar and the European Parliament had to be consulted during the legislative procedure. The reformed third pillar had new legislative instruments. The first instrument was the common position; this position was used to define the approach of the EU to a particular matter. A second instrument was the framework decision which was used to approximate laws and regulations on third-pillar issues. These decisions are binding to the result to be achieved but there is space for the Member States to decide how to implement these framework decisions. Decisions are used to achieve objectives other than by harmonizing member state laws and regulations. Conventions are instruments which are adopted by at least half of the Member States.7 In addition, the Amsterdam Treaty incorporated the goal to set up an Area of Freedom, Security and Justice (AFSJ), within a period of five years after the Treaty’s entry into force.8 The AFSJ is important for the prevention of human trafficking because it includes the police and judicial cooperation for criminal matters. In summary, the Amsterdam Treaty made major changes which improved the possibilities for the EU to act against human trafficking.
1.4 Tampere: the starting point for improved EU anti-trafficking action
An important moment for the development of the EU’s competences against human trafficking was the Tampere European Council Summit in 1999. At this summit, plans were made to implement the
5
Council Joint Action 97/154/JHA of 24 February 1997 concerning action to combat trafficking in human beings and sexual exploitation of children, OJ L 203.
6
Desmond Dinan, Ever Closer Union: An Introduction to European Integration p.536.
7 Ibidem, p. 537. 8
7 goal given in the Amsterdam Treaty to set up an Area of Freedom, Security and Justice (AFSJ). The Tampere Summit also created the possibility to establish a judicial cooperation unit, which would result in the creation of Eurojust. Eurojust supports Member States in investigations and
prosecutions of cross-border crimes. The competences of Eurojust are further discussed in the next chapter. The Tampere summit was an important event for the anti-human trafficking legislation and policy because as from Tampere, security programs were made and aims were set to create new anti-trafficking legislation. This decision at Tampere, that the EU should take actions against human trafficking, was reconfirmed by the European Council at the Santa Maria da Feira summit in 2000.9 Furthermore, the European Parliament adopted a resolution in May 2000 in which it requested the European Commission to make a proposal in order to stop human trafficking in the EU. Also the adoption of the anti-trafficking protocol as part of the Palermo Convention by the United Nations (UN) and its Member States in 2000 invigorated the EU to start to create a more substantive anti-trafficking legislation.10 These reasons from both international law as from inside the EU led to the creation of Framework Decision 2002/629/JHA.
1.4.1 The first proper legislation: Framework Decision 2002/629/JHA
The first extensive EU legal instrument against human trafficking was made in 2002; the Framework Decision on Combating Trafficking in Human Beings 2002/629/JHA.11 This Framework Decision was adopted by the Council under Title VI and under article 29, 31 and 34 Treaty on European Union.12 The Decision was based upon a proposal by the European Commission and the opinion of the European Parliament was taken into account. The major goal of the Framework Decision was to provide minimum harmonization for the national legislation of the Member States against human trafficking as a crime. Before the entry into force of the Framework Decision, there were many differences between the national (criminal) laws of the Member States with regard to the
criminalization and punishment of human trafficking. With the Framework Decision, the European Commission and the Council wanted to create a European approach against human trafficking. Under this decision, the Member States remained responsible for prosecuting human trafficking offences. This Framework Decision was a turning point in the history of the EU competences against human trafficking. From that point onwards, even though it was the Member States which had to execute the policy, EU legislation offered the minimum legislative standard which made the differences between the national legal systems smaller.
There was also a difference between this Framework decision and the previous discussed Council Joint Action 97/154/JHA. The Framework Decision had a stronger binding force than the Council Joint Action because Member States were required to inform the Commission and the General Secretariat of the Council about the transposition of the Directive in national law.13 The Commission could even control whether the Member States comply with the Framework decision.14 The Framework decision did not have a complete intergovernmental character because of the
9
Conclusions of the Tampere European Council on 15-16 October 1999, point 23 and 48.
10
Framework Decision on Combating Trafficking in Human Beings 2002/629/JHA, OJ L 301, p.1.
11 Sarah H. Krieg, ‘’Trafficking in Human Beings: the EU Approach between Border Control, Law Enforcement
and Human Rights’’, European Law Journal, no.6 (2009), p.777.
12
Sarah H. Krieg, ‘’Trafficking in Human Beings: the EU Approach between Border Control, Law Enforcement and Human Rights’’, p.777 and Treaty of European Union (Amsterdam).
13
Framework Decision on Combating Trafficking in Human Beings 2002/629/JHA, OJ L 301, article 10 and Council Joint Action 97/154/JHA of 24 February 1997 concerning action to combat trafficking in human beings and sexual exploitation of children, OJ L 203, article 14.
14
8 involvement of the Commission and the opinion of the European Parliament. The Framework
Decision was because of these reasons a major improvement in the EU legislation and competences against trafficking.
Another important Council Directive against human trafficking was made in 2004. This Council Directive was made to give victims of trafficking, who are Third-Country Nationals, residence rights in return for cooperation with the judicial authorities.15 This directive was not only aimed at victims of human trafficking but also at persons who were subject to an action which facilitated illegal migration. This Directive is further discussed in chapter three. Thus since 2004, not only the prevention of human trafficking but also the rights of the victims are taken into account in the EU legislation. This was an important step in the EU anti-trafficking legislation because the legislation got a second dimension: the protection of the rights of the victims.
1.5 Other important legislative actions against human trafficking
Since the Tampere summit, EU action programmes, which give guidelines for further actions in the AFSJ, have been adopted by the European Council. After the Tampere programme, The Hague programme was created which ran from 2005 until 2009. The Hague included, amongst others, the priorities of preventing illegal migration and human trafficking and to make a strategy against organised cross-border crime. In the most recent Stockholm program, which runs from 2010 until 2015, it was agreed that judicial cooperation on criminal matters must be further extended. The EU must also make an internal security strategy in order to fight against cross-border crimes. Human trafficking and sexual abuse of children and adults were named in the Stockholm program as cross-border crimes which must be prevented and which require more judicial cooperation in the EU and cooperation with third states.16 When examining human trafficking, the EU legislation concerning criminal networks is also relevant. Human trafficking is often organised via criminal networks, which makes it necessary to also tackle criminal networks in order to stop human trafficking.17 There are several EU legal instruments against criminal organisations. For example, Joint Action 98/733/JHA which makes it a criminal offence to participate in a criminal organisation in the Member States of the EU and Framework Decision 2008/841/JHA on the fight against organised crime.18 This
Framework Decision harmonizes the different definitions of the Member States about organised crime and the Framework Decision gives penalties to these crimes.19 The EU agencies Europol and Eurojust also have a mandate to assist the Member States in finding mobile organised criminal groups.20 These legal instruments against criminal organisations can assist in preventing human trafficking.
15
Council Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been subject of an action to facilitate illegal migration, who cooperate with the competent authorities, OJ L 261.
16 http://europa.eu/legislation_summaries/human_rights/fundamental_rights_within_european_union/jl0034_ en.htm, accessed on 17-2-2015. 17http://europa.eu/legislation_summaries/human_rights/fundamental_rights_within_european_union/l16002 _en.htm , accessed on 17-2-2015. 18
Council Joint Action 98/733/JHA of 21 December 1998 on making it a criminal offence to participate in a criminal organisation in the Member States of the European Union, OJ L 351.
19
Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, OJ L 300.
20https://www.europol.europa.eu/content/page/mandate-119, accessed 11-6-2015 and
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1.6 The Treaty of Lisbon, a turning point in EU anti-trafficking competences: possibilities to combat trafficking
The Lisbon Treaty made significant changes to the EU competences to prevent human trafficking, prosecute the suspects and to protect victims of human trafficking. A first important change was the abolishment of the pillar structure. Because of this abolishment, decision-making on criminal matters in the EU became a community competence. Therefore, the European Commission, the European Parliament and the Court of Justice were assigned a role in the legislative process and the control over the compliance with the legislation by the Member States on criminal matters.21 The influence of the European Parliament and the Court on the policy of judicial cooperation on criminal matters has therefore increased. According to article 83 (1) Treaty on the Functioning of the European Union (TFEU), the Parliament and the Council can create minimum rules concerning the definition and sanctions for serious crimes with a cross-border dimension including human trafficking.22 The Council is competent to determine which crimes have a cross-border dimension. Decisions in the Council in this field can be taken via qualified majority voting (QMV) since the Lisbon Treaty. This is an
enormous improvement because it makes the decision-making process for crimes with a cross-border dimension more flexible. A second important change for the EU anti-trafficking and victim protection policy was that the Charter of Fundamental Rights of the European Union (hereafter Charter) has become of a binding force since the Lisbon Treaty. The Charter is important because article 5 paragraph 3 prohibits human trafficking.23 The Charter can also offer protection to victims of human trafficking because these victims can rely on the rights given in the Charter when EU law is applicable.24 For example, when a Member State does not comply with its obligations given in Directive 2011/36/EU, the victim can claim these rights before a court in this Member State. Furthermore, the Charter is applicable for both EU Citizens and Third-Country Nationals. In conclusion, the Lisbon Treaty made a significant change to the EU’s competences for victim protection and to control human trafficking due to the combination of the binding force of the Charter and the abolishment of the pillar structure.
1.6.1 Adopting a new anti-trafficking instrument: Directive 2011/36/EU
The changes in the Lisbon Treaty led to the need to create a new EU anti-trafficking Directive: Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA.25 This new directive was necessary in order to make the anti-trafficking legislation compatible with the new legislative procedures and to reflect the stronger role of the European Parliament and Commission on this policy. The legal basis for this Directive was article 82 (2) and article 83 (1) TFEU. This Directive was based on a proposal of the Commission and was adopted by the Council and the European Parliament. The ordinary legislative procedure was therefore followed. This was also the largest difference with the
Framework Decision because this Decision was adopted under the special legislative procedure. The
21
Serena Bressan,‘’ Criminal Law against Human Trafficking within the EU’’: a Comparison of an Approximated Legislation’’, European Journal of Crime, Criminal Law and Criminal Justice, no. 2 (2012), pp. 139-140.
22
Treaty on the Functioning of the European Union, article 83.
23
Serena Bressan,‘’ Criminal Law against Human Trafficking within the EU’’: a Comparison of an Approximated Legislation’’, p. 139.
24
Charter of Fundamental Rights of the European Union, article 51.
25
Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011, on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA, OJ L 101.
10 EU anti-human trafficking policy has therefore moved from the intergovernmental decision-making procedure to the ordinary decision-making procedure. This new Directive also completely replaced the former Framework decision on human trafficking. The Directive has two important aims. The first aim is to enhance cooperation between Member States and to reduce the differences in the
legislation of the Member States by giving minimum standard in EU law. The second aim is the protection of the human rights of the victims.26 The position and rights of the victims are becoming more and more important in the anti-trafficking legislation. The main differences with the
Framework decision are that this Directive includes a broader scope towards forms of exploitation, has a different definition of human trafficking and the directive gives higher sanctions than the Framework Decision.27 The Directive is discussed in more detail in chapter 3.
1.7 Article 86 TFEU: A Public Prosecutor for the EU?
The Lisbon Treaty added an important new and controversial article to the chapter on judicial cooperation on criminal matters in the Treaty on the Functioning of the EU: Article 86 TFEU. Based on Article 86 paragraph 1 TFEU, the Council can establish via the special legislative procedure a European Public Prosecutor’s Office (Hereafter EPPO or Office) for the prosecution of crimes which have harmed the financial interest of the EU.28 This agency has not been established yet. Article 86 paragraph 4 gives the European Council the possibility to extend the competences of the EPPO to other serious crimes with a cross-border dimension.29 This could mean that once an EPPO is
established, the European Council would have the possibility to extend the competences of the EPPO to cross border crimes like human trafficking. In those circumstances, the EU could investigate human trafficking cases and can prosecute the suspects of human trafficking itself and would therefore be able to participate in the execution of the EU anti-human trafficking policy without being completely dependent on the Member States.
However, such developments are not very popular in the Member States since it can limit the national competences and the influence of Member States on the judicial cooperation on criminal matters. The European Public Prosecutor’s Office would fall under the judicial cooperation on criminal matters which is still a sensitive topic for the Member States because it concerns the national criminal law systems. Member States are concerned that EU law might have an impact on their national criminal law systems. The EPPO can only be established by a unanimous decision of the Council of the European Union. Due to the sensitivity of the issue, it will be difficult to reach the required unanimity. However, article 86 (1) gives two solutions for the scenario that this unanimity cannot be reached. Firstly, a group of nine Member States may request to refer the proposal, to establish the EPPO, to the European Council. In those circumstances, the European Council can make changes to the proposal in order to make it more acceptable for the Council of the European Union. Secondly, a group of at least nine Member States could try to create the EPPO via the enhanced cooperation method offered by article 20 TEU.30 The United Kingdom and Ireland already have an
26
Serena Bressan, ‘’ Criminal Law against Human Trafficking within the EU’’: a Comparison of an Approximated Legislation’’, p. 140.
27
Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime, OJ L 300, p1 and articles 1 ,3. Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011, on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA, OJ L 101, p.1 and articles 2,4, 21.
28
Treaty on the Functioning of the European Union, article 86 paragraph 1.
29 Treaty on the Functioning of the European Union, article 86 paragraph 4. 30
11 opt-out for the participation in the Area of Freedom, Security and Justice and consequently also for cooperation on criminal matters. Therefore, when the European Public Prosecutor’s Office is created, it will not have jurisdiction in the UK and Ireland. Denmark has also created exceptions for its
participation in the EPPO.31 These exceptions and the critique from other Member States make it more likely that the EPPO would be established via the enhanced cooperation method because there are already Member States that do not agree with the foundation of the European Public
Prosecutor’s Office and therefore it will be difficult to reach unanimity. 1.7.1 The Commission’s Proposal
In July 2013 the Commission proposed a Council regulation to establish a European Public
Prosecutor’s Office to combat fraud.32 The Commission made this proposal in order to fill the gap in the current legislation. This gap exists, according the Commission, because only the Member States are competent to prosecute fraud cases which have had an effect on the EU. However, this
competence is restricted to the territory of each Member State. EU institutions like Eurojust, Europol and OLAF (European Anti-Fraud Office) do not have this competence to investigate and prosecute fraud cases and cannot gain this competence according to the Commission. Therefore, a new institution must be created in order to fill the gap between jurisdictions.33 The Commission names a number of advantages of the EPPO: the Office would provide a uniform prosecution policy,
coordinate and harmonize the different Member States’ policies and will ensure continuity in difficult cross-border crimes cases.34
In the proposal, the European Commission intended to make the EPPO an independent EU institution with a decentralised structure. A European Public Prosecutor (EPO) would lead the Office and would be supported by national public prosecutors and national enforcement authorities. The EPO is appointed by the Council of the European Union with the consent of the European Parliament for a period of eight years.35 In its work, the European Public Prosecutor would also be supported by four Public Prosecutor Deputies (PPD). The Deputies shall assist the EPP in all their tasks and are responsible for the implementation of the budget of the Office and can act as a replacement of the EPP. Those Deputies are appointed according to the same procedure as the appointment of the EPO. Besides the four Public Prosecutor Deputies, the EPPO will also have European Delegated
Prosecutors. Each Member State will have at least one European Delegated Prosecutor who will be part of the European Public Prosecutor’s Office. These Delegated Prosecutors shall carry out the investigation and prosecutions of the EPPO (in individual Member States) and are supervised by the European Public Prosecutor. Under certain circumstances, the European Public Prosecutor can also carry out the investigation by themselves.36 The Delegated Prosecutors are appointed by the EPO based on a list of three candidates made by the Member States, for a period of five years.37 The European Public Prosecutor’s Office has legal personality and all prosecutors of the EPPO are fully
31 Treaty on the Functioning of the EU, Protocol 21 on the position of the United Kingdom and Ireland in
respect of the area of freedom, security and justice.
32
European Commission, Proposal 17-7-2013 of for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM/2013/0534 final.
33
http://ec.europa.eu/justice/criminal/judicial-cooperation/public-prosecutor/index_en.htm, accessed on
1-3-2015.
34 Ibidem. 35
European Commission, Proposal 17-7-2013 of for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM/2013/0534 final, article 8.
36 Ibidem, article 6. 37
12 independent from national authorities. The EPPO is discussed in more detail in chapter two.
The European Commission has taken into account the sensitivity of the European Public Prosecutor’s Office for the Member States and has therefore given the Member States an important role in the proposal.38 This can, for example, be seen by the large role of Delegated Prosecutor’s in the investigation and prosecutions by the Office. The Member States can also exercise influence on who becomes the delegated prosecutor and can determine via the Council who are the European Public Prosecutor and the Deputies. Since the European Public Prosecutor’s Office does not have its own police force, the EPPO will therefore need the assistance of the (police forces of the) Member States in order to gather evidence.39 Furthermore, the prosecution shall take place before a national court and thus on national level.40 This is discussed in more detail in chapter two. Consequently, even when the proposal for the EPPO would be adopted, there is still a lot of space for national law. The Commissions’ proposal for the EPPO was part of a package of proposals which also included a proposal to make improvements to the Eurojust Regulation. With this regulation, the Commission wanted to improve the democratic accountability framework and the governance of Eurojust.41 These proposals were deliberately combined by the Commission in order to harmonize the fragmented national criminal law of the Member States and to improve the judicial cooperation on criminal matters in the EU.42 It is therefore important to keep the Eurojust proposal in mind when examining the EPPO proposal. The Eurojust proposal is further discussed in chapter two.
1.7.3 The reaction of the EU Member States and institutions on the Commission’s proposal The Commission’s proposed regulation for the foundation of a European Public Prosecutor’s Office was negatively received in the Member States. The proposal even triggered enough controversy in the national parliaments to start a yellow card procedure. Article 7 of Protocol 2 TFEU, gives the parliaments of the Member States the possibility to object to a Commission’s proposal when a proposal is, according to these national parliaments, not in line with the subsidiarity principle.43 Fourteen national parliaments relied on this procedure and objected to the EPPO proposal. However, these fourteen parliaments did not pass the required threshold given in article 7 of Protocol 2 TFEU because they did not represent enough votes. The Commission was therefore not obligated to review its original proposal. However, the Commission did review its proposal, but came to the conclusion that the proposal was in compliance with the subsidiarity principle of article 5 (3) TEU.44 According to the Commission, the proposal was in line with the principle of subsidiarity because the objective of the proposal can best be achieved at EU level especially for fraud since it concerns the EU budget.
38
Michele Caianiello, ‘’ The Proposal for a Regulation on the Establishment of a European Public Prosecutor’s Office: Everything Changes, or Nothing Changes’’, European Journal of Crime, Criminal Law and Criminal Justice, no. 2 (2013), p.120.
39
Ibidem, p.120.
40
European Commission, Proposal 17-7-2013 of for a Council Regulation on the establishment of the European Public Prosecutor’s Office, COM/2013/0534 final, article 27.
41
Michèle Coninsx, ‘’ The European Commission’s Legislative Proposal: An Overview of Its Main
Characteristics’’, in: The European public prosecutor’s office: an extended arm or a two-headed dragon? L.H. Erkelens, A.W.H Meij, M. Pawlik eds. The Hague: Asser Press 2015, p. 23.
42
Ibidem, p.23.
43
Treaty on the Functioning of the EU, Protocol 2, article 7.
44http://www.ipex.eu/IPEXL-WEB/dossier/document/COM20130534.do, accessed on 1-3-2015 and
Communication from the Commission to the European Parliament, The Council and the National Parliaments on the review of the proposal for a Council Regulation on the establishment of the European Public
Prosecutor’s Office with regard to the principle of subsidiarity, in accordance with Protocol No. 2, 27 November 2013, COM (2013) 851 final, pp.4-5.
13 The proposal is also in compliance with the proportionality principle due to the decentralised
structure of the EPPO.45
The Commission also asked the opinion of the European Parliament about the proposal. The European Parliament supports the proposal of the Commission. It, however, stresses the importance of the protection of the human rights such as the right to a fair trial by the EPPO and proposed a number of amendments.46 The (Justice and Home Affairs) Council started to discuss the proposal as from February 2015.47 The Council has not taken an official decision yet about the adoption of the proposal. Some points of discussion are the obligation for Member States to inform the EPPO about conducts which fall within the competence of the EPPO, the transfer of proceedings from national authorities to the EPPO and investigative measures and cross-border investigations.48 Consequently the legislative process about the EU Public Prosecutor’s Office is still ongoing and the Commission’s proposal can therefore still be changed.
1.8 Chapter Conclusion
In order to act against cross-border crimes as human trafficking the EU needed a competence to make legislation in the field of police and judicial cooperation on criminal matters. This competence was given to the EU in the Maastricht Treaty. The Amsterdam and Lisbon Treaties further declined the intergovernmental character of the police and judicial cooperation on criminal matters. The legal instruments against human trafficking developed from advices to binding instruments. The goal of the anti-trafficking legislative instruments, made after the entry into force of the Lisbon Treaty, was also broadened: not only does Directive 2011/36/EU provide minimum harmonization, it also ensures victim protection. However, the most thought-provoking development in the Lisbon Treaty was the inclusion of article 84 (para 1 and 4) which makes it possible to establish a European Public Prosecutor’s Office and to extend the competences of this Office to cross-border crimes. This would have important consequences; when article 86 (4) TFEU would be used, the competences of the EU for police and judicial cooperation will be growing, while the competences of the Member States in this field will decline. Consequently, the creation of the EPPO could have an effect on the
competences of the Member States with regard to the investigation and prosecution of cross-border crimes like human trafficking. The EPPO can take over cases from the competent national authorities. It is also possible that a conflict of competences between the EPPO and the national authorities may come into existence. Based on these developments, the police and judicial cooperation on criminal affairs has slowly moved from an intergovernmental, by Member States driven, policy towards a policy for which legislation is created and executed on a European level.
45
Ibidem, pp. 4-5.
46
European Parliament Resolution of 12 March 2014 on the proposal of the Council Regulation on the establishment of the EU Public Prosecutor, P7_TA (2014)0234.
47
http://register.consilium.europa.eu/content/out?lang=EN&typ=SET&i=ADV&RESULTSET=1&DOC_ID=&DOS_I NTERINST=&DOC_TITLE=&CONTENTS=&DOC_SUBJECT=EPPO&DOC_DATE=&DOC_LANCD=EN&ROWSPP=25&N
RROWS=500&ORDERBY=DOC_DATE+DESC , accessed on 10-08-2015. Not all documents related to the Council
discussions are accessible to the public. The opinion of the Council about the proposal will therefore remain uncertain until the proposal has been adopted by the Council.
48 Council of the European Union, Proposal for a Regulation on the establishment of the European Public
14
2 Law-enforcement and prevention of human trafficking in the EU
2.1 Chapter introduction
The current EU anti-trafficking policy left some questions to be answered about the competences of the EPPO in relation towards the competent national authorities and the involved EU institutions. The EU anti-trafficking policy includes law enforcement, protection of (the rights) of the victims and prevention of trafficking crimes.49 In 2012, an EU Strategy against human trafficking was created which added to this policy the aims of, first of all, increased coordination and cooperation and secondly an increased knowledge and an active response against trafficking cases.50 Especially, with regard to law enforcement and prevention elements of the EU anti-trafficking policy the Member States, Eurojust and Europol are competent to execute this policy. The Commission’s proposal for the establishment of the EPPO creates the question how the investigation and prosecution competences of the EPPO will influence the law-enforcement and prevention competences of the Member States, Eurojust and Europol. The chapter has the following structure. Following a discussion based upon the legal framework which makes the EU anti-trafficking policy possible, there is an analysis of the current actions and involvement of Eurojust and Europol in the EU anti-trafficking policy. Furthermore, this chapter considers the future competences for the EPPO for investigation and prosecuting. The possible effects for the competences of Europol, Eurojust and the Member States, by the creation of the EPPO are examined. Finally, it is demonstrated how the competences of the EPPO could be applied for the prevention and law enforcement of human trafficking crimes.
2.2 The legal framework
The basics of the legal framework for EU policy against the trafficking of human beings can be found in the Treaty on the Functioning of the European Union (TFEU) under chapter 3 (Judicial cooperation on criminal matters). Judicial cooperation on criminal matters is part of the Area of Freedom, Security and Justice. The legal framework in chapter three of the TFEU provides the legal basis for police and judicial cooperation against cross-border crimes. In this chapter, there are several relevant articles. To start with Article 82 TFEU regulates the mutual recognition of judgements and judicial decisions in the EU Member States. This article also gives the possibility for enhanced cooperation on the basis of a draft directive about judicial cooperation in criminal matters.51 Furthermore, article 83 (1) gives the EU the opportunity to create, via the ordinary legislative procedure, directives about minimum rules concerning the definition and sanction of criminal offences, in particularly cross-border crimes. Human trafficking and sexual exploitation of women and children are also named in this article as cross-border crimes. Just like article 82, article 83 gives Member States the choice to setup an enhanced cooperation option.52
In addition, article 85 gives the legal base for the competences of Eurojust. Eurojust is an important agency in the execution of the EU policy against organised crime. According to this article: ‘ ’Eurojust’s mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted
49 Europol, ‘’Report Trafficking in human beings in the European Union’’, 2011, p.3 50
European Commission,’’ EU Actions Explained’’,
https://ec.europa.eu/anti-trafficking/citizens-corner-eu-actions-explained/eu-actions-explained_en, accessed 2-5-2015.
51 Treaty on the Functioning of the European Union, article 82 (3). 52
15 and information supplied by the Member States’ authorities and by Europol’’.53 Article 85 gives the Council and the Parliament the competence to determine Eurojust structure, operation, field of action and tasks via regulations.54 The EU’s other important agency in the fight against cross-border crime is Europol. This agency is regulated via article 88 TFEU. Article 88 states that the mission of Europol shall be:‘’ to support and strengthen action by the Member States’ police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy’’.55 Paragraph two of article 88 gives the Council and the Parliament the competence to regulate Europol’s structure, operation, field of action and tasks via regulations.56 As discussed in the previous chapter, article 86 TFEU makes it possible to establish a European Public Prosecutor’s Office. The articles 82, 83, 85, 86 and 88 TFEU give the EU the legal framework in order to create secondary legislation for the prevention and law enforcement of human trafficking crimes. As discussed in the previous chapter, article 82 (2) and 83 (1) TFEU made it possible to create a new EU anti-trafficking directive: Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. This directive has harmonised the prohibition of THB crimes and tried to adjust the different Member States’ policies towards THB.
2.3 Eurojust and Europol: competences for the EU anti-human trafficking policy
Based on articles 83, 85 and 88 TFEU, the EU is capable to act against human trafficking as a form of cross-border organised crime. At the moment, this policy is, amongst others, executed by the EU agencies Eurojust and Europol (article 85 and 88 TFEU). Eurojust is involved in the prevention of human trafficking based on its competences for investigations and prosecutions, its coordination function and by strengthening the judicial cooperation between Member States. Europol contributes to the anti-trafficking policy by collecting information and by the coordination of investigative or operative actions.57 With these mandates, the agencies carry out the aims of prevention and law enforcement of the EU anti-trafficking policy. Officially, the Member States are responsible and competent for the investigation and prosecution of suspects of trafficking in human beings (THB) crimes. However, due to the judicial and police cooperation in the Treaties, Eurojust and Europol have become (partly) competent to be involved in the investigation and prosecution of these crimes. Therefore, because of the cross-border nature of THB crimes and the judicial cooperation, Europol and Eurojust have become involved in national investigations as well, especially when the crime took place in two or more Member States, as can be concluded from articles 83, 85 and 88 TFEU.
2.3.1 Eurojust: competences for investigation and coordination
Eurojust has a number of competences which allow Eurojust to participate in the law enforcement of THB cases at a national level. These competences are based on the legal base in article 85 TFEU and were regulated in more detail in Council Decision 2009/426/JHA.58 Based on article 7 of Council
53
Treaty on the Functioning of the European Union, article 85 paragraph 1.
54 Ibidem, article 85. 55
Treaty on the Functioning of the European Union, article 88 paragraph 1.
56
Ibidem, article 88, paragraph 2.
57 Ibidem, article 85 paragraph 1 under a, b, c and article 88 paragraph 2 under a, b. 58
The European Commission has made a proposal to adopt a new regulation to reform Eurojust( COM (2013) 535 Final). Since this proposal has not been adopted yet, the former Council Decision is used in this thesis in order to explain the competences of Eurojust. However, the new proposal has to be kept in mind especially when examining the relation between Eurojust and a future European Public Prosecutor’s Office.
16 Decision 2009/426/JHA, Eurojust can trigger prosecutions at a national level: Eurojust may ask the competent authority at national level to start a certain THB case.59 This competence gives Eurojust the option to play an active role in the prevention of THB crimes because it can find cases and then order Member States to investigate those cases. In addition, Eurojust has an important guidance competence, which is evident from its non-binding advices about conflicts of jurisdiction or conflicts of competences regarding investigations and prosecutions. This guidance via advices is important in order to improve the judicial cooperation between Member States which makes a combined
investigation or prosecution of a THB case more efficient. Eurojust can even serve as an arbitrator by organising coordination meetings when there is conflict between the judicial authorities of different Member States. Eurojust also gathers information via its own judicial information exchange channel. With this channel, public prosecutors of the Member States and Eurojust exchange information which is relevant for the investigation and the prosecution of specific cases. This judicial channel is strictly separated for the police information channel that is used by Europol, this is discussed in more detail in paragraph 2.4.2. Furthermore, Eurojust can also assist national authorities at their request.60
Eurojust is also competent to make agreements with third states and other international organisations.61 These agreements make it possible to investigate cases outside the EU with the assistance of a third state.
As a result of these competences, Eurojust has the chance to improve the judicial
cooperation between Member States in order to solve cross-border crimes. A good example of the involvement of Eurojust in the investigation of a THB case was, a case in which Roma women were trafficked from the Czech Republic to the UK.62 There were obstacles between the Czech Republic and the UK which hindered the gathering of evidence and created concerns about who had jurisdiction in the case. Together with Eurojust the countries reviewed their jurisdictional rules, especially those on admissibility and evidence. The review led to the conclusion that one country should take the case. A joint-investigation team was also established in order to find evidence in both countries. Due to this successful cooperation, it was possible to discover and prosecute part of the criminal network and the leaders involved in the case.63 Another example of a case which
demonstrates the coordination function of Eurojust, is a case from 2012, in which France had found a THB case involving the sexual exploitation of Bulgarian nationals in several EU Member States.64 France asked Eurojust for support to discover possible investigations of this case in Belgium. With the assistance of Eurojust, a Joint investigation Team (JIT) was set up between Bulgaria, France, Belgium, Europol and Eurojust. This JIT opened an investigation into the trafficking as a crime and the money
59 Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending
Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, OJ L138/27 article 7.
60
Jörg Monar,’’ Eurojust’s present and future role at the frontline of European Union criminal justice cooperation’’, ERA Forum, no. 2 (2013), pp. 190-191.
61
Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime, OJ L 138/27, article 26a.
62
Unfortunately, the specific details and the name of this case are not known. This case has been used as an example in the Eurojust Annual Report of 2011. More information about this case can therefore be found in this report: Eurojust, Annual Report 2011, Eurojust: the Hague 2012, p. 21
63
Ibidem, p. 21
64
Just like the previous discussed case, neither detailed information nor a name of this case is known. The case has been used as an example case in the Eurojust annual report for 2012. For more information about this case see: Eurojust, the Annual Report 2012, Eurojust: the Hague 2013, p. 29.
17 flows resulting from the trafficking. Based on this investigation, suspects could be arrested and prosecuted in France.65 In summary, Eurojust has, at the moment, an important role in the
coordination of cross-border cases based on its competences and therefore has a large influence on the judicial cooperation in the EU for THB cases.
2.3.2 Report on Eurojust’s action against human trafficking: problems in practice
Eurojust has been actively involved in the prevention of human trafficking since 2011. In that year, it signed, together with Europol, a joint statement in which they declared the aim to address human trafficking crimes in a coordinated, coherent and comprehensive manner.66 In 2012, Eurojust published a report in which it examined the main barriers for Member States to prosecute human trafficking crimes. With this report, Eurojust has also published an action plan. This piece of work, analysing the problems with regard to prosecution is important because the European Public Prosecutor’s Office would run into the same problems as the national public prosecutors for THB. In 2012, the most important challenges were difficulties to gather evidence, problems with finding THB cases, lack of knowledge and experience with THB cases on national level, a lack of research to the use of criminal money flows in THB cases and difficulties with the judicial cooperation between Member States.67
In order to solve these problems Eurojust listed the most important actions to be taken between 2012 and 2016.68 These priorities included: to enhance information exchange, improve
judicial cooperation with THB cases, increase the number of joint investigations and prosecutions and to improve coordination techniques. Furthermore, not only the cooperation between EU Member States, but also the cooperation between EU Member States, Eurojust and third states requires improvement. Victims are often trafficked from a third state to the EU, it is therefore useful to cooperate more closely with these third states in order to find, amongst others, the persons involved in the recruitment process of human trafficking. With this report, Eurojust showed that it has a lot of knowledge and experience which could be of assistance for Member States (and for the EPPO) in THB crimes. Based on this knowledge and competences, Eurojust embodies several of the aims of EU anti-trafficking policy: Eurojust assist with law enforcement in cases where several Member States are involved. It is also involved in the prevention of trafficking due to gathering of knowledge, sharing of experiences and making reports about which practices require improvement. By improving the knowledge about these crimes within the Member States, there is a higher chance that such crimes could be prevented at an earlier phase. Improved coordination and knowledge are also goals of the European Commission. As seen in this section, Eurojust contributes to both. Therefore, Eurojust has an important practical role to act against human trafficking crimes.
2.4 Europol: competences and involvement in practice in THC crimes.
Europol is the other important EU agency which is involved in the execution of the prevention and law enforcement elements of the EU anti-trafficking policy. The law enforcement action in which Europol is involved also has an influence on the prevention of human trafficking since it helps to increase the knowledge of the national authorities active in the national anti-trafficking policy. This is further discussed in paragraph 2.4.4. Europol is different than Eurojust since Europol is mostly
65 Eurojust, the Annual Report 2012, Eurojust: the Hague 2013, p. 29. 66
Eurojust, ‘’Strategic Project on Eurojust’s action against trafficking in human beings: final report and action plan’’, 2011, p.i.
67 Ibidem, pp ii. 68
18 focused on police cooperation while Eurojust is involved in the judicial cooperation. Europol is therefore more involved in finding criminal offences and the pre-investigation phase and Eurojust has a role in the (investigation for the) prosecution of cross-border crimes. Furthermore, Europol is only responsible for police cooperation and therefore the tasks exercised by national police forces while Eurojust supports the judicial cooperation between Member States. The main task of Europol with regard to THB crimes is to assist the Member States with law enforcement in the field of human trafficking and organised crime by gathering and sharing information and by the coordination of investigative and operational actions. This task is based on the competence given in article 88 TFEU. 2.4.1 Competences
The legal basis for Europol is article 88 TFEU which gives Europol the competences for information gathering and the coordination of investigations and operational actions. Europol has been regulated in more detail in Council Decision 2009/371/JHA.69 Europol consist of the following organs: the Management Board, the Director, the Financial Controller, the Financial Committee and the Europol National Units (ENU).70 Each Member State has at least one representative at their ENU. The
cooperation between Europol and the Member States takes place via these national units.
Based on Council Decision 2009/371/JHA, Europol has a number of tasks and competences. Europol has to collect, store, analyse and exchange information via its database. Europol has the obligation to notify the competent national authorities of the Member States, via the national units present at Europol, about relevant information and possible connections between criminal offences. Furthermore, Europol has to aid investigations executed in the Member States especially by giving the relevant information. In addition, Europol may ask the national authorities of the Member States to start or to participate in certain investigations and Europol may therefore suggest to create a Joint Investigation Team. Intelligence and analytical support has to be offered by Europol to the Member States in relation to major international events. Moreover, Europol must make threat assessments, strategic analysis and general situation reports about the crimes which fall within Europol’s
mandate.71 These tasks can be summarised as the following tasks: gathering information, keeping a database, coordination and participating in Joint Investigation Teams. These functions are discussed in more detail below.
2.4.1.1 Information and coordination competences
Information exchange is one of the most important competences of Europol. Closely associated with this competence is the keeping of the Europol database in which all relevant information is stored. In this database, Europol saves only the data necessary for Europol in relation to its tasks and
competences, for example information about persons who are suspect of participating in a crime for which Europol is competent. Data about suspects may include information like the nationality, name and place of residence.72 National Units, liaison officers from the Member States, the Director,
69
The European Commission had made a new proposal (Com (2013) 173 final) in order to improve Council Decision 2009/371/JHA. This proposal is still in the legislative procedure. In May 2015, the proposal had been amended by the European Parliament but had not been discussed in the Council yet. In this thesis, the still applicable Council Decision will be used to describe the competences of Europol. However, the possible new developments made by the new Commission proposal have to be kept in mind.
70 Valsamis Mitsilegas, EU Criminal Law, Hart Publishing: Oxford 2009, pp. 165-166. 71
Council Decision 2009/371/JHA of 6 April 2009 on the establishment of the European Police Office (Europol), OJ L121, article 5.
72 Council Decision 2009/371/JHA of 6 April 2009 on the establishment of the European Police Office (Europol),
19 Deputy Directors and empowered Europol staff are allowed to put information in the Database or to use certain information from the Database.73 Member States provide information for the database via the national units. Based on the information exchange, cooperation projects between Member States are started when it transpires that the case is relevant for the involved Member States. Coordination is also a very important competence of Europol. This is especially relevant in cases where several Member States are involved. Europol is not competent to investigate cases on its own, however, due to the coordination function Europol may become involved in the investigations of certain cases. When a case concerns more than two Member States, a Joint Investigation Team (JIT) is often established in order to investigate the case together. Judicial and police experts from at least two Member States, Europol and Eurojust are part of this JIT.74 A JIT is responsible for particular criminal investigations on specific topics for specified periods of time. Europol has both a
participation and coordination role in a JIT but cannot use coercive measures exercised by the JIT.75 Besides the JIT’s, Europol also performs its coordination function by making agreements with third states and international organisations. Via these agreements, third states may also become involved in a JIT and this gives possibilities for information exchange and investigations of THB cases in this third state.76 Furthermore, Europol also provides coordination and assistance to the Member States by sending experts from Europol to the national police of a Member State which is in need of assistance. This Europol agent helps the national police by sharing experiences. This may influence the efficiency of the national police towards a specific crime including human trafficking. Based on these competences, Europol has a number of possibilities to become involved in the EU anti-trafficking policy.
2.4.2 Europol in Practice
There are some differences between the competences of Europol given in Council Regulation 2009/371/JHA and the competences exercised in practice. Member States have a strong influence on the work of Europol; the Management board consists of one representative per Member States who has voting rights, while the European Commission is not part of this management board and has no right to vote.77 Furthermore, Europol’s coordination and cooperation role is really depending on the extent the Member States want to participate with a certain policy.78 Thus in practice, Europol has a less dominant role that it has been given in the Treaty and in the Council Regulation.
The information exchange is also more limited in practice. The exchange of information takes place via two channels: the judicial and the police channel. Europol is only allowed to exchange information via the police channel. This is information that cannot be used for the prosecution of a suspect; it can only be used in the preparation of the investigation. When the relevant authorities want to use information from the police channel in order to, for example arrest a suspect, permission has to be given by a national public prosecutor. In those circumstances the information moves from the police channel to the judicial channel and then it is possible that the information falls under the competences of Eurojust. A national unit at Europol can gather and exchange information in the
73 Ibidem, article 13. 74
Stephan Rozée, Christian Kaunert and Sarah Léonard, ‘’ Is Europol a Comprehensive Policy Actor?’’,
Perspectives on European Politics and Society, no.3 2013, p.373.
75 Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), OJ L
121/37, article 6.
76
Ibidem, article 23.
77 Valsamis Mitsilegas, EU Criminal Law, Hart Publishing: Oxford 2009, pp. 165-166. 78
20 police channel in five ways: globally via Interpol, on EU level via Europol, for Schengen members via SIRENE, foreign liaisons working at an embassy in one of the EU Member States and liaisons from the own Member State working at the national embassy in other EU Member States.79 National Units determine which information they want to share and which not. In conclusion, there are several limitations to the competences of Europol in practice.
2,4,3 Europol and the fight against human trafficking in practice
After reviewing the competences of Europol given by the Treaty, the Council Regulation and in practise, it is necessary to examine to what extend these competences are used in the fight against trafficking. Human trafficking is a crime for which Europol has a mandate.80 Another important mandate of Europol is the mandate to prevent organised crime since human trafficking is often organised via (international) criminal groups.81 Therefore, action also has to be taken against these criminal groups in order to solve the entire problem of human trafficking.
Europol’s policy against human trafficking is based on the priorities made on an EU level. The EU Justice and Home Affairs Council determines annually which problems in the AFSJ are priorities for the upcoming year. National experts assist the Council to determine which disharmonies must become a priority. These priorities or EMPACTs have to be further executed and implemented by Europol and the Member States.82 For years, human trafficking has been regarded as a priority and has therefore its own EMPACT. At Europol, the national units that contribute to the human
trafficking EMPACT and a European coordinator discuss the human trafficking priorities given by the Council and how to transform these goals in actual policy. A few examples of human trafficking priorities of the last few years are: the protection of Nigerian victims who have been sexually exploited and Chinese victims of labour exploitations. There is no official obligation to execute the priorities, however the priorities are regarded of importance and therefore the national units try to execute these priorities. Each Member State chooses how to implement the priorities in the own national policy. Due to its coordination position with regard to the EMPACT’s, Europol has an influence on the execution of the EU’s anti-trafficking policy.
2.4.4 Europol and the prevention of THB cases
Officially, prevention is not a task of Europol; however some of the actions taken against human trafficking could also be regarded as a form of prevention. To start with, Europol and the national units together organise action days, these action days are part of the operational action plan and are organised by the EMPACT human trafficking. The action days take place once a year. The action days consist of five days in which non-stop controls are executed on, for example, traffic, trains, airports but also in prostitution areas and the internet. The action days can be regarded as an example of how the EU priorities are carried out. The participating Member State determine themselves how they want to execute the action days, the only condition is that the action days take place at the same time in all the participating Member States. The action days are regarded as a very successful approach, for example during the action days of 2014, in total 1027 suspects were arrested in the
79
Europol, ‘’Europol Review General Report on Europol Activities’’, 2011, pp. 10-14.
80 Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), OJ L
121/37, Annex.
81
Ibidem, Annex.
82 Europol,‘’ EU Policy Cycle- Empact’’, https://www.europol.europa.eu/content/eu-policy-cycle-empact,
