Legal provisions of COM(2023)754 - Enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes - Main contents
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| dossier | COM(2023)754 - Enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking ... |
|---|---|
| document | COM(2023)754  |
| date | November 28, 2023 |
Chapter I
GENERAL PROVISIONS
Article 1
Subject matter and scope
This Regulation lays down rules to enhance police cooperation and the support of the European Union Agency for Law Enforcement Cooperation (Europol) in preventing and combating migrant smuggling and trafficking in human beings, by:
(a) establishing a European Centre Against Migrant Smuggling within Europol and a governance framework to regulate and support its activities;
(b) enhancing cooperation and coordination between the Member States, Europol and other Union agencies;
(c) reinforcing the exchange of information between the Member States and with Europol;
(d) providing Europol with the necessary tools to support and strengthen actions by the competent authorities of the Member States and their mutual cooperation in preventing and combating criminal offences falling within Europol’s objectives;
(e) enhancing cooperation between Europol and third countries.
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
(1) ‘migrant smuggling’ means any of the activities referred to in Articles 3, 4 and 5 of Directive [XXX] [ laying down minimum rules to prevent and counter the facilitation of unauthorised entry, transit and stay in the Union, and replacing Council Directive 2002/90/EC and Council Framework Decision 2002/946 JHA]24;
(2) ‘trafficking in human beings’ means any of the activities referred to in Articles 2 and 3 of Directive 2011/36/EU of the European Parliament and of the Council25;
(4) ‘competent authorities’ means the competent authorities of the Member States defined in Article 2, point (a), of Regulation (EU) 2016/794;
(5) ‘immigration liaison officer’ means a liaison officer deployed in a third country by the competent authorities of a Member State, in accordance with its national law, to deal with immigration-related issues, including when those issues are only a part of the liaison officer’s duties.
Chapter II
GOVERNANCE FRAMEWORK OF THE EUROPEAN CENTRE AGAINST MIGRANT SMUGGLING
Article 3
European Centre Against Migrant Smuggling
The European Centre Against Migrant Smuggling is established within Europol as a Union centre of specialised expertise as referred to in Article 4(1), point (l), of Regulation (EU) 2016/794. It shall support Member States in the prevention and combating of migrant smuggling and trafficking in human beings and shall perform the tasks set out in Articles 5 and 6.
Article 4
Composition of the European Centre Against Migrant Smuggling
1. The European Centre Against Migrant Smuggling shall be composed of Europol staff and involve representatives of the following entities in carrying out the strategic tasks referred to in Article 5:
(a) a representative of each Member State, from a national specialised service referred to in Article 7;
(b) a representative of Eurojust;
(c) a representative of the European Border and Coast Guard Agency;
(d) at the discretion of Europol and, after consultation of the Member States, one or more representatives involved in the operational implementation of the strategic and operational priorities of the Union for combating migrant smuggling and trafficking in human beings, in particular in the European Multidisciplinary Platform Against Criminal Threats (EMPACT).
The European Centre Against Migrant Smuggling shall hold a meeting of the entities referred to in points (a) to (d) at least twice a year and the Commission shall participate in such meeting.
Europol may invite other entities to be involved in carrying out the activities referred to in Article 5, including other relevant Union bodies or agencies.
2. The European Centre Against Migrant Smuggling shall be composed of Europol staff and involve representatives of the following entities in carrying out the operational tasks referred to in Article 6:
(a) for each Member State a liaison officer referred to in Article 8 of Regulation (EU) 2016/794 specifically designated to deal with migrant smuggling;
(b) a liaison officer of Eurojust as a permanent representative at Europol;
(c) a liaison officer of the European Border and Coast Guard Agency as a permanent representative at Europol.
Europol may invite other entities to be involved in carrying out the activities referred to in Article 6, including other relevant Union bodies or agencies.
3. For the purpose of paragraph 2 of this Article, and in accordance with Article 4(1), point (g), of Regulation (EU) 2018/1727 of the European Parliament and of the Council26, Eurojust shall deploy a liaison officer, acting in accordance with that Regulation, to the European Centre Against Migrant Smuggling.
4. For the purposes of paragraph 2 of this Article as well as Article 68(1), point (b), Article 87(1), point (d) and Article 90 of Regulation (EU) 2019/1896, and in accordance with Article 68(2) and (5) of that Regulation, the European Border and Coast Guard Agency shall deploy a liaison officer, acting in accordance with that Regulation, to the European Centre Against Migrant Smuggling.
5. For the purposes of paragraphs 1 and 2, and to facilitate the fulfilment of the strategic and operational tasks set out in Articles 5 and 6 of this Regulation, the European Centre Against Migrant Smuggling shall be provided with the necessary support by all other relevant parts of Europol’s internal structures.
Article 5
Strategic tasks of the European Centre Against Migrant Smuggling
The strategic tasks of the European Centre Against Migrant Smuggling shall be the following:
(a) providing strategic analyses and threat assessments to assist the Council and the Commission in laying down strategic and operational priorities of the Union for the prevention and combating of migrant smuggling and trafficking in human beings, in accordance with Article 4(2) of Regulation (EU) 2016/794;
(b) providing a framework to support the operational implementation of the strategic and operational priorities of the Union for the prevention and combating of migrant smuggling and trafficking in human beings, in particular in the framework of the EMPACT, in accordance with Article 4(2) of Regulation (EU) 2016/794;
(c) supporting the coordination, cooperation and exchange of information on migrant smuggling and trafficking in human beings between Union agencies, notably with the European Border and Coast Guard Agency, Eurojust and, where appropriate, other relevant Union bodies or agencies, in line with their respective legal frameworks, including through working arrangements between them, in accordance with Article 4(1), point (j), of Regulation (EU) 2016/794;
(d) monitoring migrant smuggling and trafficking in human beings taking place in the Union and in third countries, in cooperation with Member States, relevant Union bodies or agencies and, where appropriate, third countries, in accordance with Article 4(1), point (f), of Regulation (EU) 2016/794, and regularly providing information to the Member States and the Commission, including aggregated statistical data and situational updates derived from information shared by Member States;
(e) providing strategic analyses and threat assessments to support the implementation of operational task forces referred to in Article 5a of Regulation (EU) 2016/794 and Europol deployments for operational support referred to in Article 5b of Regulation (EU) 2016/794, in accordance with Article 4(1), point (f), of Regulation (EU) 2016/794;
(f) providing strategic analyses and threat assessments to support the implementation of Article 6(1) of Regulation (EU) 2016/794 on requesting the initiation of a criminal investigation into migrant smuggling and trafficking in human beings, in accordance with Article 4(1), point (f), of Regulation (EU) 2016/794;
(g) providing strategic analyses and threat assessments to Member States and the Commission as well as relevant Union agencies or bodies, where appropriate, on routes and modi operandi of migrant smuggling and trafficking in human beings, including on indications that private parties may be used for migrant smuggling and trafficking in human beings, in accordance with Article 4(1), point (f), of Regulation (EU) 2016/794;
(h) providing strategic analyses and threat assessments to Member States and the Commission as well as relevant Union agencies or bodies, where appropriate, on the prevention and combating of migrant smuggling and trafficking in human beings, in accordance with Article 4(1), point (f), of Regulation (EU) 2016/794;
(i) preparing an annual report on migrant smuggling and on trafficking in human beings, identifying the main operational priorities and possible related actions at Union level, in accordance with Article 4(1), point (f), of Regulation (EU) 2016/794.
Article 6
Operational tasks of the European Centre Against Migrant Smuggling
The operational tasks of the European Centre Against Migrant Smuggling shall be the following:
(a) coordinating, organising and implementing investigative and operational actions to support and strengthen actions by the competent authorities of the Member States in preventing and combating migrant smuggling and trafficking in human beings, including when these crimes are facilitated, promoted or committed using the internet, including social media, and including in the context of Europol deployments for operational support, in accordance with Article 4(1), points (c) and (m), of Regulation (EU) 2016/794;
(b) supporting Member States’ cross-border information exchange activities, operations and investigations, as well as joint investigation teams and operational task forces, on migrant smuggling and trafficking in human beings, including by providing analytical, operational, technical, forensic and financial support, in accordance with Article 4(1), point (h), of Regulation (EU) 2016/794;
(c) providing administrative, logistical, financial and operational support to operational activities led by Member States, in particular in the framework of EMPACT, in accordance with Article 4(2) of Regulation (EU) 2016/794;
(d) supporting the Europol Executive Director in evaluating, in accordance with Article 5b(3) of Regulation (EU) 2016/794, requests made by Member States for Europol deployments for operational support related to migrant smuggling and trafficking in human beings, including in the prioritisation of such requests based on operational needs;
(e) identifying cases of migrant smuggling and trafficking in human beings that may require the setting up of an operational task force in accordance with Article 5a of Regulation (EU) 2016/794, and informing the Europol Executive Director of such cases;
(f) identifying cases of migrant smuggling and trafficking in human beings that may require Europol deployments for operational support in accordance with Article 5b of Regulation (EU) 2016/794, and informing the Europol Executive Director of such cases;
(g) identifying cases of migrant smuggling and trafficking in human beings that may require the application of Article 6 of Regulation (EU) 2016/794 on requests by Europol for the initiation of a criminal investigation and informing the Europol Executive Director of such cases;
(h) identifying cases of migrant smuggling and trafficking in human beings that may require cooperation with third countries, including by exchanging personal data.
Chapter III
COOPERATION BETWEEN MEMBER STATES AND EUROPOL ON PREVENTING AND COMBATING MIGRANT SMUGGLING AND TRAFFICKING IN HUMAN BEINGS
Article 7
National specialised services to prevent and combat migrant smuggling and trafficking in human beings
1. Each Member State shall designate, one year after the entry into force of this Regulation at the latest, one or more specialised services within its competent authorities, in accordance with national law, to prevent and combat migrant smuggling and trafficking in human beings, including through criminal investigations. Each Member State shall immediately after such designation inform the Commission thereof.
2. Each Member State shall ensure that its specialised services designated in accordance with paragraph 1 of this Article collect all relevant information concerning and resulting from criminal investigations into migrant smuggling and trafficking in human beings and share such information as soon as possible with Europol and other Member States in accordance with Article 8.
3. Each Member State shall connect, one year after the entry into force of this Regulation at the latest, its specialised services designated in accordance with paragraph 1 of this Article directly to Europol’s Secure Information Exchange Network Application (SIENA) referred to in Article 2, point (w), of Regulation (EU) 2016/794. Each Member State shall immediately after such connection inform the Commission thereof.
4. Each Member State shall provide its specialised services designated in accordance with paragraph 1 with adequate resources to ensure that those specialised services are equipped to prevent and combat effectively migrant smuggling and trafficking in human beings, and to collect and share information in accordance with paragraph 2 in an effective and efficient manner.
5. Each Member State shall make available an appropriate number of staff members of the specialised services designated in accordance with paragraph 1 of this Article for the reserve pool referred to in Article 5b(6) of Regulation (EU) 2016/794, so that those staff members can participate in Europol deployments for operational support as seconded national experts.
Article 8
Provision of information concerning criminal offences on migrant smuggling and trafficking in human beings to Europol and the Member States
1. Each Member State shall, in accordance with Regulation (EU) 2016/794, provide Europol with information held by its competent authorities and relating to criminal offences on migrant smuggling and trafficking in human beings.
2. Each Member State shall provide the information referred to in paragraph 1 of this Article to Europol in a timely manner.
3. Each Member State shall provide other Member States and, at the same time, Europol with information held by its competent authorities and relating to criminal offences on migrant smuggling and trafficking in human beings where there are objective reasons to believe that such information could be relevant to those other Member States for the purpose of preventing, detecting or investigating such criminal offences in those Member States.
4. Each Member State shall use SIENA to provide the information referred to in paragraph 3 of this Article to other Member States and Europol, in accordance with Article 8(4) and Article 18(2), point (d), of Regulation (EU) 2016/794.
5. Each Member State shall connect its immigration liaison officers to SIENA. Where it is not possible to connect an immigration liaison officer to SIENA due to imperative technical reasons related to the situation in the third country of deployment, that immigration liaison officer shall submit the information referred to in paragraph 1 to a national competent authority through other secure channels. That competent authority shall provide the information to Europol, directly or through the Europol national unit, using SIENA.
Chapter IV
ENHANCING EUROPOL’S SUPPORT TO COMBATING MIGRANT SMUGGLING AND TRAFFICKING IN HUMAN BEINGS
Article 9
Amendments to Regulation (EU) 2016/794
Regulation (EU) 2016/794 is amended as follows:
(1) in Article 2, the following points (w), (x) and (y) are added:
‘(w) ‘SIENA’ means the secure information exchange network application, managed by Europol, aimed at facilitating the exchange of information;
(x) ‘operational task force’ means a coordination mechanism set up by Member States among their competent authorities with the support of Europol to conduct joint, coordinated and prioritised criminal intelligence activities and investigations into a crime falling within the scope of Europol’s objectives that requires coordinated and concerted action;
(y) ‘Europol deployment for operational support’ means the deployment of Europol staff or seconded national experts in the territory of a Member State, upon request of that Member State, to provide analytical, operational, technical and forensic support in liaison and in agreement with the competent authorities of that Member State.’;
(2) Article 4 is amended as follows:
(a) paragraph 1 is amended as follows:
(i) point (c) is replaced by the following:
‘(c) coordinate, organise and implement investigative and operational actions to support and strengthen actions by the competent authorities of the Member States, that are carried out:
(i) jointly with the competent authorities of the Member States;
(ii) in the context of joint investigation teams in accordance with Article 5 and, where appropriate, in liaison with Eurojust;
(iii) in the context of operational task forces in accordance with Article 5a;
(iv) in the context of Europol deployments for operational support in accordance with Article 5b;’;
(ii) point (h) is replaced by the following:
‘(h) support Member States' cross-border information exchange activities, operations and investigations, as well as joint investigation teams and operational task forces, including by providing analytical, operational, technical, forensic and financial support;’;
(iii) point (l) is replaced by the following:
‘(l) develop Union centres of specialised expertise for combating certain types of crime falling within the scope of Europol's objectives, including the European Cybercrime Centre and, in accordance with Regulation (EU) …/… of the European Parliament and of the Council* [Regulation on Combating Migrant Smuggling], the European Centre Against Migrant Smuggling;
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* Regulation (EU) …/… of the European Parliament and of the Council of … on enhancing police cooperation in relation to the prevention, detection and investigation of migrant smuggling and trafficking in human beings, and on enhancing Europol’s support to preventing and combating such crimes and amending Regulation (EU) 2016/794 (OJ L …, ELI: …)’;
(iv) point (s) is replaced by the following:
‘(s) facilitate joint, coordinated and prioritised criminal intelligence activities and investigations, including with regard to persons referred to in point (r), and including through operational task forces and Europol deployments for operational support;’;
(v) the following point (za) is added:
‘(za) support Member States with the effective and efficient processing of biometric data.’;
(b) paragraph 5 is replaced by the following:
‘5. Europol shall not apply coercive measures in carrying out its tasks.
Europol staff may provide operational support to the competent authorities of the Member States during the execution of investigative measures by those authorities, at their request and in accordance with their national law, including in the context of the implementation of operational task forces and Europol deployment for operational support, in particular by facilitating cross-border information exchange, by providing analytical, operational, technical and forensic support, and by being present during the execution of those measures.
Europol staff shall have the power to execute non-coercive investigative measures themselves provided that Europol has been requested to do so by a Member State in accordance with its national law and the Executive Director has authorised Europol staff to execute the requested non-coercive investigative measures.
Europol staff shall carry out such non-coercive investigative measures in liaison and in agreement with the competent authorities of the Member State concerned, and in accordance with this Regulation and the national law of that Member State.’;
(3) the following Articles 5a and 5b are inserted:
‘Article 5a
Operational task forces
1. Member States may set up an operational task force for the duration of certain dedicated criminal intelligence activities or investigations. Europol shall facilitate the setting up and support the implementation of an operational task force.
2. The Member States setting up an operational task force shall agree with Europol on the planning, coordination and implementation of the criminal intelligence activities and investigations of the operational task force.
3. The Member States setting up an operational task force shall ensure coherence and synergies with the framework of the European Multidisciplinary Platform Against Criminal Threats (EMPACT).
4. The Member States setting up an operational task force may decide to invite other Member States, third countries and other partners referred to in Article 23 to participate in or support the operational task force. The participation of third countries and other partners in the operational task force shall take place in accordance with this Regulation.
5. To support the implementation of an operational task force, Europol shall make available the analytical, operational, technical, forensic and financial support provided for by this Regulation, in accordance with paragraph 2.
6. Each Member State setting up, or participating in, or supporting an operational task force shall, in accordance with the planning, coordination and implementation referred to in paragraph 2:
(a) provide all relevant information without delay to Europol and to the other Member States setting up, participating in, or supporting the operational task force, using SIENA and, where appropriate, make information directly accessible in accordance with Article 20(2a);
(b) make use of the analytical, operational, technical, forensic and financial support provided by Europol;
(c) initiate certain dedicated criminal intelligence activities and investigations in accordance with national law where required to address the crime to which the operational task force relates;
(d) initiate parallel financial investigations in accordance with national and Union law to identify and seize criminal assets;
(e) engage its liaison officers deployed in third countries where criminal activities are investigated in the context of the operational task force to enhance cooperation and information sharing, and provide Europol with the information obtained, in accordance with Union and national law.
7. The Executive Director may propose setting up an operational task force to the competent authorities of the Member States concerned via their national units where the Executive Director considers it would add value to combating a crime falling within the scope of Europol’s objectives.
8. The Management Board shall adopt implementing rules for the setting up and implementation of operational task forces.
Article 5b
Europol deployment for operational support
1. A Member State may request, in accordance with its national law, Europol deployment for operational support on its territory to make use of the analytical, operational, technical, forensic and financial support provided by Europol to prevent and combat crimes falling within Europol’s objectives.
2. Europol deployment for operational support shall take place in the context of complex and large-scale investigations requiring Europol’s support, including in the context of joint investigation teams or operational task forces, or to support checks against relevant databases to strengthen controls at the Union’s external borders, or migration management support teams in accordance with Regulation (EU) 2019/1896 of the European Parliament and of the Council or to provide support to Member States in major international events.
3. The Executive Director shall evaluate the request made by a Member State in accordance with paragraph 1 and may approve the Europol deployment for operational support for a limited period of time that can be renewed, considering the operational needs and its available resources. The decision of the Executive Director shall be based on a risk assessment.
4. Once the Executive Director has approved the request made by a Member State in accordance with paragraph 1, that Member State and Europol shall jointly agree on the modalities of the Europol deployment for operational support. Europol staff and seconded national experts deployed in the Member State shall operate in accordance with this Regulation, notably Article 4(5), and in accordance with the national law of the Member State in whose territory the deployment takes place.
5. In exceptional cases of urgency requiring immediate Europol deployment for operational support in the territory of a Member State, that Member State and the Executive Director shall ensure that the steps set out in paragraphs 1, 3 and 4 take place within a period of 72 hours.
6. Europol shall set up a reserve pool of Member States’ experts for the purpose of Europol deployments for operational support. The reserve pool shall constitute a reserve of experts working in their Member States that can be placed at the immediate disposal of Europol for that purpose. The Member States shall ensure that their experts are available to take part, as seconded national experts, in Europol deployments for operational support at the request of Europol.
7. The Member State in whose territory the Europol deployment for operational support takes place shall, in accordance with the agreed modalities referred to in paragraph 4:
(a) provide all relevant information without delay to Europol, where possible by making information in national databases directly accessible to the Europol staff and seconded national experts deployed in its territory in accordance with its national law;
(b) make use of the analytical, operational, technical and forensic support provided by the Europol staff deployed in its territory;
(c) enable the Europol staff and seconded national experts deployed in its territory to be present during the execution of investigative measures.
8. The Executive Director may propose the Europol deployment for operational support in the territory of a Member State to the competent authorities of that Member State via its national unit where the Executive Director considers it would add value to preventing or combating a crime falling within the scope of Europol’s objectives.
9. The Management Board shall adopt implementing rules for the preparation and implementation of Europol deployments for operational support, including on the number and profiles of experts to be included in the reserve pool and any subsequent changes thereto.
10. This Article shall apply mutatis mutandis where Europol deployment for operational support takes place in a third country as referred to in Article 25(1), point (a), (b) or (c).
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* Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1, ELI: http://data.europa.eu/eli/reg/2019/1896/oj).’;
(5) in Article 18(2), point (d) is replaced by the following:
‘(d) facilitating, including through SIENA, the exchange of information between Member States, Europol, other Union bodies, third countries, international organisations and private parties;’;
(6) Annex I is amended as follows:
(a) the sixth indent (“immigrant smuggling”) is replaced by the following:
‘- migrant smuggling’;
(b) the following indent is added:
‘- violation of Union restrictive measures’.
Chapter V
FINAL PROVISIONS
Article 10
Entry into force and applicability
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.