Explanatory Memorandum to 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 ... |
|---|---|
| source | COM(2023)754  |
| date | 28-11-2023 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Migrant smuggling is a criminal activity that disrespects human life and strips people of dignity in the pursuit of profit, violating people’s fundamental rights and undermining the migration management objectives of the EU.
Fighting and preventing migrant smuggling and trafficking in human beings is one of the priorities of the European Union and crucial to addressing irregular migration in a comprehensive way. Criminal networks take advantage of people’s despair and use land, sea and air routes to facilitate irregular migration, putting people’s lives at risk and seek in every way to maximize their profits.
In her State of the Union address of 13 September 2023, President von der Leyen called for the strengthening of all tools at the Union’s disposal to effectively counter migrant smuggling, by updating the current, sometimes more than 20-year old legislative framework, strengthening the governance on smuggling and the role of EU agencies, in particular of Europol, and intensifying cooperation between Justice and Home Affairs Agencies, Member States as well as with partner countries to tackle this issue globally. She also emphasised the need to work with partners to tackle this global challenge, which is why the Commission is organising an International Conference, creating a Global Alliance with a Call to Action to fight people smuggling.
Migrant smuggling to and within the EU is reaching new heights, fuelled by increasing demand due to emerging and deepening crises, most notably economic recessions, environmental emergencies caused by climate change, as well as conflicts and demographic pressure in many third countries. Migrant smuggling drives the increase of irregular arrivals to the EU: in 2022, around 331 000 irregular entries were detected at the EU external borders, the highest level since 2016, representing a 66% increase compared to the previous year1. In 2023, until end of September approximately 281 000 irregular border crossings were detected at the external borders of the EU, representing an 18% increase compared to the same period in 2022. This coincides with an increase in the smuggling activities, evidenced by a new record with over 15 000 migrant smugglers reported to the European Border and Coast Guard Agency (Frontex) in 20222. Taking into account the increase in irregular arrivals and the various worldwide crises in a range of countries of origin and transit, consistently high and possibly increasing migratory flows to Europe and related smuggling criminal activities can be expected.
It is estimated that more than 90% of the irregular migrants who reach the EU make use of smugglers, mostly organised in criminal groups. Moreover, smuggling networks make substantial profits from their criminal activities, ranging between EUR 4.7-6 billion worldwide annually3. Providing a strong and firm response to smugglers’ activities is therefore of primary importance to reducing irregular migration. It is estimated that the activities of ruthless migrant smugglers, especially at sea, resulted in a staggering death toll of over 28 000 people4 since 2014.
Around half of the migrant smuggling networks are also involved in other crimes5, such as trafficking in human beings, drugs and firearms smuggling, while also facilitating unauthorised movements within the EU. Law enforcement and judicial authorities are faced with multiple and constantly evolving challenges: the rapidly changing and adapting modi operandi of smugglers; the increased use of threats and violence vis-à-vis the migrants as well as law enforcement authorities6; the difficulties to locate and arrest smugglers who hide in countries outside the EU; the use of a broad variety of means of transport, including unseaworthy, less detectable vessels (such as fishing boats and makeshift metal boats), road vehicles in which migrants are dangerously concealed, as well as commercial and charter flights increasingly used to bring migrants to countries close to or bordering the EU, from where migrants then seek to irregularly enter the EU7; the use of digital tools at all stages of the process, with online advertising of smuggling services, routes and prices as well as for forging documents; the use of crypto-currencies, digital money or other unofficial forms of payment (e.g. hawala)8.
Tackling migrant smuggling is essential to dismantling organised crime networks that cause human rights violations, and death, and to countering the increase in irregular migration to the EU. A comprehensive and sustainable approach to migration requires a combination of robust and efficient actions complementing mutually beneficial partnerships with countries of origin and transit, addressing the root causes of migration and in particular irregular migration, and at the same time fighting organised crime including migrant smuggling and trafficking in human beings. The New Pact on Migration and Asylum1 puts preventing and countering migrant smuggling at the centre of its comprehensive approach to migration.
This proposal for a Regulation is part of a package of measures aiming to modernise and strengthen the existing legal framework and provide the Union with rules which are fit for purpose. It is accompanied by a proposal for a Directive on preventing and countering the facilitation of unauthorised entry, transit and stay. That proposal introduces a modern EU criminal law instrument that clearly defines and effectively sanctions organised criminal networks responsible for migrant smuggling, harmonises penalties that take account of the seriousness of the offence, improves the jurisdictional reach, reinforces Member States resources to tackle and prevent migrant smuggling, and improves data collection and reporting.
This package is presented on the day of the International Conference launching “a Global Alliance to counter migrant smuggling”. With this Conference, the Commission is creating a framework for strong political cooperation with international partners by calling for shared commitments and actions to jointly counter migrant smuggling globally.
These three initiatives complement existing initiatives in the area of countering migrant smuggling and implement the renewed EU action plan against smuggling (2021-2025) by updating the existing EU legal framework to sanction migrant smugglers acting on the migratory routes and setting out a new modern, legal, operational and international cooperation framework against migrant smuggling for the years to come.
This proposal for a Regulation forms part of a coherent package also comprising of the abovementioned proposal for a Directive on preventing and countering the facilitation of unauthorised entry, transit and stay. Together, these proposals seek to modernise the legal framework to fight the smuggling of migrants, to ensure that we have the necessary legal and operational tools to respond to the new modus operandi of smugglers, as set out in the Commission work programme 2024 announced on 17 October 2023.
Objective of the proposal
The overall objective of this proposal is to reinforce Europol’s role in the fight against migrant smuggling and trafficking in human beings, and, in particular, the role of the European Centre Against Migrant Smuggling.
In order to step up the prevention, detection and investigation of migrant smuggling and trafficking in human beings, this proposal pursues the following specific objectives.
Strengthening inter-agency cooperation on migrant smuggling and trafficking in human beings
In order to facilitate a more effective, timely and systematic coordination and exchange of information on countering migrant smuggling and trafficking in human beings between Union agencies, the European Centre Against Migrant Smuggling at Europol will be composed of Europol staff and seconded national experts and involve Member States’, Eurojust and the European Border and Coast Guard Agency liaison officers that should be permanently posted to Europol to ensure regular exchange of information and operational cooperation and coordination. In the meantime, the Justice and Home Affairs Agencies have the opportunity to strengthen their cooperation on the basis of their respective mandates and optimise the exchange of information to counter migrant smuggling and trafficking in human beings. Eurojust is a key actor in the enhancement of the judicial response to migrant smuggling, supporting complex cases entailing cross-border judicial coordination and Joint Investigation Teams relating to criminal investigations of migrant smuggling cases.
Strengthening steer and coordination on countering migrant smuggling and trafficking in human beings at EU level
In order to address insufficient strategic analysis, coordination and steer at EU level, the proposal sets out specific strategic tasks of the European Centre Against Migrant Smuggling with a view to providing a framework for the implementation of strategic and operational priorities of the Union by monitoring trends in migrant smuggling and trafficking in human beings, providing annual reports, strategic analyses, threat assessments and situational updates on migratory routes, as well as investigative and operational action. Regarding its strategic tasks, the European Centre Against Migrant Smuggling will meet at least twice a year with representatives of each Member State, Eurojust, the European Border and Coast Guard Agency, the European Multidisciplinary Platform Against Criminal Threats (EMPACT) and the Commission to ensure effective steer and coordination. In addition, the European Centre Against Migrant Smuggling will support Europol’s Executive Director in requesting the initiation of criminal investigations.
Improving information sharing on migrant smuggling and trafficking in human beings
The proposed regulation strengthens Member States’ obligations to share information, including biometrics, on migrant smuggling and trafficking in human beings with Europol, including through requiring the establishment of direct connections for their competent authorities and immigration liaison officers to Europol’s Secure Information Exchange Network Application (SIENA). The Commission also proposes to task the European Centre Against Migrant Smuggling to identify cases of migrant smuggling or trafficking in human beings that may require cooperation with third countries, including by exchanging personal data; this aims to support the Executive Director in deciding on the transfer of personal data to third countries on a case-by-case basis in accordance with Article 25(5) of the Europol Regulation.
Reinforcing Member States’ resources to prevent and combat migrant smuggling and trafficking in human beings
In order to help Member States to effectively counter migrant smuggling and exchange relevant information with Europol, it is proposed that they designate specialised services for combating migrant smuggling and trafficking in human beings, provide for the adequate resourcing of these services, connect these services to SIENA, and task the European Centre Against Migrant Smuggling to act as a network of specialised services.
Reinforcing Europol’s support to the prevention and combatting of migrant smuggling and trafficking in human beings through operational task forces and Europol deployments for operational support
It is proposed to codify and further develop the concept of operational task forces and set out a new tool in the form of Europol deployments for operational support, as advanced tools for coordination and analytical, operational, technical, and forensic support, upon request of the Member States or proposal by the Europol Executive Director. The proposal includes the creation of a pool of experts working in their Member States that can be placed at the immediate disposal of Europol for deployments, and it sets obligations for the Member States to ensure the effective implementation of these tools. Third countries may also participate in operational task forces, and Europol deployments for operational support may take place in third countries.
To fulfill these objectives, the Commission also proposes to increase the financial and human resources of Europol to response to the operational needs and to address the identified gaps.
• Consistency with existing provisions in the policy area
The present proposal is consistent with existing and upcoming policy provisions in the domain of law enforcement cooperation, including Europol. Law enforcement cooperation is an area of shared competence between the EU and the Member States. In recent years, progress was made to improve the exchange of information cooperation between Member States and to reduce as much as possible the space in which terrorists and serious criminals operate. Following the migration crisis of 2015, the general architecture of Justice and Home Affairs (JHA) information systems and databases was overhauled with a focus on interoperability. The legislative framework on counterterrorism and information exchange was strengthened in 2017, in the aftermath of the terrorist attacks in Europe. In response to pressing operational needs to face the changing security landscape and calls by the co-legislators for stronger support from Europol, the regulation on Europol was reinforced in 2022. The new Europol mandate entered into force in June 2022, allowing Europol to step up its expertise and operational capabilities, to better support Member States in combating serious and organised crime and terrorism. The mandate also strengthens Europol’s data protection framework and the oversight of the European Data Protection Supervisor.
The proposal is also in line with the existing EU legislative framework on countering migrants smuggling, also known as Facilitators Package, composed of Directive 2002/90/EC establishing a common definition of the offence of facilitation of unauthorised entry, transit and residence2, and Framework Decision 2002/946/JHA on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence3. It is also coherent with the renewed EU action plan against smuggling (2021-2025) that calls for strengthening of operational cooperation between EU Member States’ law enforcement agencies, relevant EU agencies, Europol in particular, and partner countries, in the dismantling of migrant smuggling criminal networks as well as with the Toolbox addressing the use of commercial means of transport to facilitate irregular migration to the EU. The Anti-Smuggling Operational Partnerships with key countries of origin and transit form an integral part of the comprehensive migration partnerships that the EU is developing with partner countries. Enhancing the fight against migrant smuggling is a joint interest, as origin, transit and destination countries share the common goal to fight against criminal networks and protect people from possible abuses and exploitation. Migrant smuggling remains a serious challenge that needs to be continuously, concertedly and collectively tackled further.
Preventing and fighting migrant smuggling is a key objective of the EU Security Union Strategy, the EU Strategy to tackle Organised Crime and the New Pact on Migration and Asylum.
• Consistency with other Union policies
As regards Europol’s support to Member States, this legislative initiative takes account of Union’s policies in the area of judicial cooperation in criminal matters, notably the role of Eurojust9 in supporting and strengthening coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime, and judicial cooperation through Joint Investigation Teams10. The legislative initiative also takes into account of the Union’s external policies, notably the work of EU delegations and security experts in third countries and common security and defense policy missions and operations.
This legislative initiative takes full account of the relevant EU data protection legislation (see section 3 below on fundamental rights).
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal bases of the legislative initiative are Articles 85, 87 and 88 of the Treaty on the Functioning of the European Union (TFEU). Article 85 i TFEU provides that 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 and information supplied by the Member States' authorities and by Europol. Article 87 i provides that the Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences. Article 88 i TFEU provides that the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include: (a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies; and (b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.
• Subsidiarity (for non-exclusive competence)
According to the principle of subsidiarity laid down in Article 5(3) TEU, action at EU level should be taken only when the aims envisaged cannot be achieved sufficiently by Member States alone and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the EU.
Member States are responsible for the maintenance of law and order and the safeguarding of internal security11 and the Union shall respect Member States’ essential state functions, including maintaining law and order and safeguarding national security12. As serious crime and terrorism are often of a transnational nature, action at national level alone cannot counter them effectively. In particular criminal networks involved in migrant smuggling are characterised by their global, collaborative and agile nature13. This is the reason why Member States choose to work closely together within the framework of the EU. They seek to coordinate their law enforcement action and cooperate in addressing shared security challenges. They decide to pool resources at EU level and share expertise. As the EU agency for law enforcement cooperation, Europol is a strong expression of this endeavour by the Member States to keep their citizens safe by working together.
Europol provides a robust framework and a sophisticated crime-fighting toolbox for Member States to coordinate their law enforcement action. In particular, Europol serves as the EU criminal information hub minimising criminal intelligence gaps and focusing on data from live, complex investigations. Europol provides agile and real-time operational support ranging from operational analysis to operational coordination and brings together relevant partners for joint action. Member States use their liaison officers at Europol and the information exchange channel the agency provides to exchange information and cooperate in their criminal investigations. Member States pool resources by tasking Europol to process their information in its databases and provide joint analysis. This has put Europol at the heart of the European security architecture.
Evolving security threats, in particular migrant smuggling, call for effective EU level support to the work of national law enforcement authorities. While there are differences in the way Member States counter specific types of crime, their law enforcement authorities can choose where to seek EU-level support from Europol and what joint initiatives to participate in. Besides, law enforcement authorities across all Member States face the same evolving security threats. Consequently, there is a need for EU action to step up the support to Member States in fighting serious crime and terrorism to keep pace with these threats.
Consequently, Member States alone would not be able to effectively tackle all the challenges addressed by this proposal.
• Proportionality
According to the principle of proportionality laid down in Article 5 i TEU, there is a need to match the nature and intensity of a given measure to the identified problem. All problems addressed in this legislative initiative call, in one way or another, for EU-level support for Member States to tackle these problems effectively:
Inter-agency cooperation and coordination on countering migrant smuggling and trafficking in human beings at EU level needs to be strengthened and intensified: By strengthening cooperation and coordination between Europol, the European Border and Coast Guard Agency and Eurojust, and by establishing the European Centre Against Migrant Smuggling, and by setting its tasks and composition, the EU agencies will be better placed to ensure that migrant smuggling and trafficking in human beings can be tackled more effectively and efficiently at EU level than at national level.
Strategic steer and coordination on these crimes at EU level needs to be stepped up to allow for targeted strategic analysis, steer, and coordination of investigative and operational action at EU level and among Member States. Establishing the European Centre Against Migrant Smuggling, and setting its tasks and composition, will also contribute to fighting against migrant smuggling and trafficking of human beings more effectively and efficiently at EU level than at national level.
Information sharing on migrant smuggling and trafficking in human beings among the Member States and with Europol, but also with third countries needs to become stronger and more systematic to ensure that migrant smuggling can be tackled more effectively and efficiently at EU level, notably, by explicitly referring to the two crimes when it comes to Member States’ general obligation on information sharing, by tasking Europol to process biometric data effectively and efficiently in support of Member States, in accordance with the existing safeguards on the processing of biometrics, and by establishing the Secure Information Exchange Network Application (SIENA).
As regards national structures to combat migrant smuggling, as already underlined in the renewed EU action plan against smuggling (2021-2025), not all Member States have the necessary structures at national level to combat migrant smuggling, and to cooperate effectively with Europol. This gap can be tackled more effectively and efficiently at EU level than at national level, by providing that Member States should designate specialised services for combating migrant smuggling, connect these specialised services to SIENA and by tasking the European Centre Against Migrant Smuggling to act as a network of specialised services.
Europol’s on the ground support to Member States to counter migrant smuggling needs to be enhanced. This need can be addressed more effectively and efficiently at EU level than at national level, by establishing the operational task forces and Europol deployment for operational support.
As the EU agency for law enforcement cooperation, Europol is well positioned to provide this EU-level support. Indeed, Europol has proven very effective in supporting national law enforcement authorities in countering serious crime and terrorism and specifically migrant smuggling. There are clear synergies and economies of scale for Member States resulting, for example, from the use of the reserve pool and the specialised support provided by Europol, or from the expertise that a specialised centre such as the European Centre Against Migrant Smuggling can offer to Member States. Member States expect, and operationally need, the same level of support from Europol when it comes to evolving security threats, such as migrant smuggling.
Law enforcement cooperation at EU-level through Europol neither replaces different national policies on internal security nor substitutes the work of national law enforcement authorities. Differences in the legal systems and traditions of the Member States, as acknowledged by the Treaties14, remain unaffected by this EU level support.
• Choice of the instrument
Pursuant to Article 88 i of the Treaty on the Functioning of the European Union and given that Europol’s mandate is set out in Regulation (EU) 2016/794, the strengthening of Europol’s mandate – which is part of this proposal – has to take the form of a regulation.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
Migrant smuggling poses challenges to law enforcement, notably because of the agility and complexity of the involved criminal networks and their adaptiveness to changes in irregular migration’s dynamics and to the law enforcement response. These challenges have been well identified by Europol and Member States and discussed at Justice and Home Affairs Council and European Council meetings. The role of Europol in countering migrant smuggling has been discussed both in the Council and in Europol, including by its Management Board. Furthermore, the European Court of Auditors special report in 2021 on Europol’s support to fight migrant smuggling identified the need to reinforce Europol’s role in fighting migrant smuggling, notably to enable Europol to use all relevant external sources of information, including biometric data, and to enhance data exchange with its partners15.
Furthermore, the Commission services gathered necessary input and views on the relevance, effectiveness, efficiency, coherence and EU added value of this legislative initiative through a questionnaire disseminated to Member States to identify operational needs and gaps when it comes to Europol’s support on migration smuggling, as well as other needs and opportunities when it comes to strengthening Europol’s mandate. In addition, following the discussions in the Law Enforcement Working Party, the Commission services consulted Member States at expert level, through a dedicated virtual workshop on 14 November 2023. Member States were generally supportive of strengthening Europol’s legal mandate in preventing and combatting migrant smuggling and trafficking in human beings.
The stakeholder consultation process identified that there are five areas where action is needed at EU level, namely: a) the inter-agency cooperation on migrant smuggling, b) the strategic steer and coordination on countering migrant smuggling, c) information sharing, d) national structures specialised in combating migrant smuggling, and e) Europol’s operational support on the ground.
The results of the consultation were incorporated throughout the preparation of the legislative initiative.
• Impact assessment
This legislative proposal is not supported by an Impact Assessment considering that the Commission had little or no choice available, notably due to the urgent operational needs to improve Europol’s support to Member States on countering migrant smuggling. This proposal nevertheless builds on the evidence gathered by the European Court of Auditors special report in 2021 on Europol’s support to fight migrant smuggling and the feedback received during the stakeholder consultations.
• Fundamental rights
Processing of personal data for law enforcement purposes in general, and for the support provided by Europol in particular requires ensuring full compliance with fundamental rights as enshrined in the Charter of Fundamental Rights, and notably the rights to the protection of personal data16 and to respect for private life17. This proposal takes full account of these legal requirements.
4. BUDGETARY IMPLICATIONS
This legislative initiative would have an impact on the budget and staff needs of Europol. It is estimated18 that an additional budget of around EUR 50 million and around 50 additional posts would be needed for the overall period of the current Multiannual Financial Framework 2021-2027. This will ensure that Europol has the necessary resources to carry out fully and efficiently the new tasks described in articles 5 and 6 of this Regulation as well as its revised mandate. Europol’s new tasks in this legislative proposal would therefore require additional financial and human reinforcements compared to the resources earmarked in the Multiannual Financial Framework 2021-2027, which foresaw an increase of 160 Temporary Agents with an associated cost of EUR 114 million and a total additional EU contribution of EUR 178 million to the budget of Europol. This legislative initiative also opens the possibility for Member States to contribute directly to Europol’s budget, where necessary and required by existing or new tasks.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The monitoring and evaluation of Europol’s reinforced mandate would largely be performed by the applicable mechanisms under the existing Europol Regulation. Article 68 provides for an evaluation which assesses, in particular, the impact, effectiveness and efficiency of Europol and of its working practices and may address the possible need to modify the structure, operation, field of action and tasks of Europol, and the financial implications of any such modification. Further to this evaluation, the Commission will gather data through its representation in Europol’s Management Board meetings and its supervision, along with the Member States, of Europol’s work (Article 11).
• Detailed explanation of the specific provisions of the proposal
- Establishing in law the European Centre Against Migrant Smuggling within Europol and a governance framework to regulate and support its activities: the legislative initiative establishes the European Centre Against Migrant Smuggling as a Union centre of specialised expertise for combating migrant smuggling and trafficking in human beings. The European Centre Against Migrant Smuggling should be the focal point to support Member States in the prevention and combating of migrant smuggling and trafficking in human beings and, in this context, should perform specific strategic and operational tasks. [Article 3]
- Providing for the composition of the European Centre Against Migrant Smuggling: the legislative initiative provides for the composition of the European Centre Against Migrant Smuggling and the specific entities that should be involved in carrying out its tasks, both for the purpose of strategic analysis, and for the purpose of operational and technical support to the prevention and combating of migrant smuggling and trafficking in human beings. The European Centre Against Migrant Smuggling should be supported by all other relevant Europol’s internal structures. [Article 4]
- Defining the strategic and operational tasks of the European Centre Against Migrant Smuggling: the legislative initiative provides for the detailed tasks of the Centre for the purposes of strategic analysis as well as operational and technical support for the prevention and combating of migrant smuggling and trafficking in human beings. At strategic level, these tasks include providing strategic analyses and threat assessments, providing support to the operational implementation of the strategic and operational priorities, supporting the coordination, cooperation and exchange of information, monitoring migrant smuggling and trafficking in human beings, and preparing an annual report. In this context, the European Centre Against Migrant Smuggling will also hold a meeting of the entities represented in the centre at least twice a year to ensure effective steer and coordination at Union level. At operational level, the tasks of the European Centre Against Migrant Smuggling include coordinating, organising and implementing investigative and operational actions to support and strengthen actions by the competent authorities of the Member States, supporting Member States’ cross-border information exchange activities, operations and investigations, as well as joint investigation teams and operational task forces, and identifying cases of migrant smuggling and trafficking in human beings that may require advanced operational support. [Article 5, 6]
- Providing for the designation of specialised services within the competent authorities of the Member States to prevent and combat migrant smuggling and trafficking in human beings: the legislative initiative provides that each Member State should designate one or more specialised services to prevent and combat migrant smuggling and trafficking in human beings, including through criminal investigations, and ensure that these services collect and share all relevant information as soon as possible through SIENA with Europol and other Member States. [Article 8]
- Providing Europol with the necessary advanced tools to support Member States in preventing and combating migrant smuggling and other crimes falling within the scope of Europol’s objectives: the legislative initiative establishes operational task forces as coordination mechanisms set up by Member States with the support of Europol to conduct joint, coordinated and prioritised criminal intelligence activities and investigations notably on criminal networks and groups and individual criminal actors. The legislative initiative sets out minimum requirements concerning the active and timely involvement of the Member States, such as providing all relevant information to Europol, and that Europol should make available its advanced analytical, operational, technical, forensic and financial support to these Member States. Third countries may also participate in operational task forces. [Article 9]
- Providing that Europol should be able to deploy officers 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: the host Member State should be able to ensure a minimum set of requirements such as providing all relevant information to Europol. Europol should be able to deploy rapidly, especially in exceptional cases of urgency. Staff and experts deployed by Europol should be able to carry out investigative non-coercive measures that relate to data processing in liaison and in agreement with the competent authorities of the Member State concerned, in accordance with the Europol Regulation and that Member State’s national law. Moreover, Europol should set up a reserve pool of Member States’ highly qualified law enforcement experts with specialised profiles that can be placed at the immediate disposal of Europol for operational deployment to provide specialised support. Europol should also be able to deploy staff and seconded national experts in third countries with which it cooperates on the basis of an adequacy decision, and international agreement concluded between the Union and that third country pursuant to Article 218 TFEU, or a cooperation agreement between Europol and that third country concluded before 1 May 2017. [Article 9]
- Clarifying the nature of operational support that Europol staff may provide to Member States’ law enforcement authorities on the ground in operations and investigations: the legislative initiative clarifies that Europol staff may provide operational support to the competent authorities of the Member States during the execution of investigative measures, 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. Europol staff should be able to execute non-coercive investigative measures in liaison and in agreement with the competent authorities of the Member State concerned, and in accordance with the Europol Regulation and that Member State’s national law, when so requested by a Member State in accordance with its national law and authorised by the Europol Executive Director. [Article 9]
- Enhancing cooperation between Europol and third countries: the legislative initiative sets out rules to better involve Member States’ migration liaison officers deployed in third countries in enhancing the sharing of information by third countries to counter migrant smuggling and supply this information to Europol, directly or through the Europol national unit, using SIENA. [Article 8]
- Identifying cases of migrant smuggling requiring cooperation with third countries that may require transfers of personal data in individual cases for the purpose of the prevention, investigation, detection or prosecution of criminal offences, or the execution of criminal sanctions: the legislative initiative tasks the European Centre Against Migrant Smuggling to identify such cases. The transfers of personal data by Europol to third countries in these cases may, in the absence of an adequacy decision or of adequate or appropriate data protection safeguards, be carried out in accordance with Article 25(5) of Regulation (EU) 2016/794. [Article 6]
- Strengthening Europol’s role in the fight against criminal offences related to the violation of Union restrictive measures: the legislative initiative includes these offences within the forms of crime listed in Annex I of Regulation (EU) 2016/794. Unrelated to migrant smuggling and trafficking in human beings, the proposed Regulation extends the list of crimes which fall within Europol’s competence by including in Annex I to the Europol Regulation the “violation of Union restrictive measures”. This responds to requests by Member States to allow Europol to support them in the fight against violations of Union restrictive measures, which currently is possible only where such a violation also constitutes another form of crime contained in Annex I to the Europol Regulation, for example money laundering. However, not all violations of Union restrictive measures would fall within the crimes currently set out in Annex I to the Europol Regulation. The inclusion of the violation of Union restrictive measures in Annex I to the Europol Regulation would complement the proposed Directive on the definition of criminal offences and penalties for the violation of Union restrictive measures.19 [Article 9]