Considerations on 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 |
(2) Migrant smuggling is a criminal activity that disrespects human life and dignity of people in the pursuit of profit, undermining the fundamental rights of the people concerned as well as the migration management objectives of the Union. The European Council, in its conclusions of 9 February 2023, reaffirmed the importance of the fight against smugglers and affirmed the willingness to step up its action to prevent irregular departures and loss of life, also by intensifying cooperation with countries of origin and transit. To this effect, it is also important to strengthen the response of law enforcement to migrant smuggling and trafficking in human beings by reinforcing the capabilities of Europol, and in particular its Union centre of specialised expertise for combating migrant smuggling and trafficking in human beings.
(3) A “European Migrant Smuggling Centre” was created in 2016 by the Management Board of Europol in accordance with Article 11(1), point (s), of Regulation (EU) 2016/794 as such a Union centre of specialised expertise. It has continuously evolved since its inception and has expanded its range of activities in order to provide the best support to the Member States as a dynamic platform for operational cooperation, the exchange of information, and coordination between the Member States and partners engaged in the fight against migrant smuggling and the trafficking in human beings. The increases in irregular arrivals in the Union and in unauthorised movements within the Union, the rapid adaptability of criminal organised groups, the development of new modi operandi and sophisticated methods urgently require a significant reinforcement of the role of Europol’s Union centre of specialised expertise for combating migrant smuggling and trafficking in human beings by establishing it as a permanent structure within Europol and by strengthening the level of its engagement in supporting the Member States in the prevention and combating of migrant smuggling and trafficking in human beings. Its name should be “European Centre Against Migrant Smuggling”.
(4) The European Centre Against Migrant Smuggling should provide strategic, operational and technical support to Member States to prevent and combat migrant smuggling and trafficking in human beings. As part of its strategic tasks, it should provide a framework for the implementation of strategic and operational priorities of the Union by monitoring trends in migrant smuggling and trafficking in human beings. To that end it should provide annual reports, strategic analyses, threat assessments and situational updates on migratory routes and modi operandi, including indications that private parties may be used for migrant smuggling and trafficking in human beings. In the context of fulfilling its strategic and operational tasks, the European Centre Against Migrant Smuggling should cooperate with the European External Action Service and Common Security and Defense Policy missions and operations, where appropriate and relevant, in line with their respective mandates and competences, as well as in accordance with Europol’s mandate.
(5) In order to strengthen inter-agency cooperation on migrant smuggling and trafficking in human beings, the European Centre Against Migrant Smuggling should provide a means to enhance cooperation and coordination between Europol and other Union agencies, notably with Eurojust and the European Border and Coast Guard Agency, in line with their respective legal frameworks, including through working arrangements between the Union agencies.
(6) In order to support its strategic analysis in the prevention and combating of migrant smuggling and trafficking in human beings, the European Centre Against Migrant Smuggling should, for strategic tasks, be supported by a cooperation framework composed of Europol staff and involve representatives of the Commission, Member States’ specialised services, the European Union Agency for Criminal Justice Cooperation (Eurojust) and the European Border and Coast Guard Agency. The European Centre Against Migrant Smuggling should hold a meeting of the entities represented in the centre at least twice a year to ensure effective steer and coordination at Union level. To enable that centre to fulfil its tasks, other relevant internal structures of Europol should provide it with all necessary support. In order to maximise the effectiveness of the European Centre Against Migrant Smuggling, Europol should be able to invite, in particular, the main actors of the European Multidisciplinary Platform Against Criminal Threats (‘EMPACT’) as well as other relevant Union bodies or agencies when needed.
(7) As part of the operational and technical support to Member States, the European Centre Against Migrant Smuggling should ensure coordination of investigative and operational actions of the Member States, including through supporting Member States’ cross-border information exchange, operations and investigations, in particular in the framework of EMPACT, including by providing operational, technical, forensic and financial support. Furthermore, Europol should provide support to Member States in identifying cases of migrant smuggling and trafficking in human beings where investigations would need to be initiated, where needed in liaison with Eurojust, in cases that require setting up of operational task forces or Europol deployments for operational support, and cases that may require cooperation with third countries, including by exchanging personal data.
(8) The transfer of personal data by Europol to third countries 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. In particular, cases of migrant smuggling identified by the European Centre Against Migrant Smuggling that require cooperation with third countries could require transfers of personal data in individual cases for the purpose of prevention, investigation, detection or prosecution of criminal offences, or execution of criminal sanctions.
(9) For the purpose of strengthening operational and technical support to preventing and combating migrant smuggling and trafficking in human beings, the European Centre Against Migrant Smuggling should, for operational tasks, involve liaison officers from the Member States, Eurojust and the European Border and Coast Guard Agency to ensure an effective, timely and systematic coordination and exchange of information on countering migrant smuggling and trafficking in human beings at Union level, ensuring a stronger inter-agency cooperation within their respective competences and with Member States. Other relevant internal structures of Europol should also provide all necessary support. Liaison officers from Eurojust and the European Border and Coast Guard Agency liaison officers should be posted as permanent representatives to Europol for this purpose. Europol should be able to involve other relevant Union bodies or agencies to draw on the expertise falling within their competencies where relevant.
(10) EMPACT brings together a wide range of competent authorities in a partnership approach and constitutes both the framework for a coordinated response against organised and serious international crime and a catalyst to operationalise the Union security policies and strategies. To increase a multidisciplinary, holistic, and consistent response to prevent and combat migrant smuggling and the trafficking in human beings, as well as related crimes and enabling factors, Europol and all key stakeholders should increase their connections within EMPACT and the operational support to the activities developed by that platform.
(11) To ensure the appropriate involvement of judicial authorities in criminal investigations for offences relating to migrant smuggling and trafficking in human beings, the need to strengthen the mandate of Eurojust in relation to migrant smuggling and in relation to the amendments in the Europol mandate should be evaluated as part of the evaluation in accordance with Article 69 (1) Regulation (EU) 2018/1727.
(12) Europol should be the Union criminal information hub and act as a service provider, in particular by providing a secure network for the exchange of data, such as the secure information exchange network application (SIENA), aimed at facilitating the exchange of information between Member States, Europol, other Union bodies, third countries and international organisations. SIENA should enable swift, secure and user-friendly communication and exchange of operational and strategic crime-related information and intelligence and have a strong focus on interoperability with other systems at Europol and other cooperating states and organisations.
(13) Active engagement of the Member States and sharing of information with Europol is key to ensuring a comprehensive and coordinated Union approach to countering migrant smuggling. With a view to strengthening Member States’ capacities, Member States should designate specialised services for countering migrant smuggling, ensuring that they are adequately resourced to prevent and combat migrant smuggling and can share information on criminal investigations with Europol efficiently and effectively. In order to harmonise the sharing of information between the Member States and Europol on migrant smuggling, Member States should ensure that their designated services for countering migrant smuggling are directly connected to SIENA to facilitate the sharing of information. This is in line with Directive (EU) 2023/977 of the European Parliament and of the Council of 10 May 2023 on the exchange of information between the law enforcement authorities of Member States and repealing Council Framework Decision 2006/960/JHA. Member States’ immigration liaison officers posted in third countries should also share information with Europol; for this purpose, they should also be connected to SIENA in order to ensure that they can carry out the sharing of information referred to in paragraph 1 in an efficient and effective manner.
(14) In order to ensure efficient sharing of information related to migrant smuggling among Member States and with Europol, especially in case of large criminal networks involving numerous suspects, Member States should employ the most appropriate supporting tools provided by Europol such as dedicated data loaders. Conversely, and so as to access and make the best use of all information and intelligence available at Union level on the corresponding cases, and in full respect of the appropriate data protection safeguards, Member States and Union agencies should systematically consult Europol information in the course of ongoing investigations related to migrant smuggling, including by using the hit/no hit tools provided by Europol such as the Querying Europol Systems (QUEST+) technical system interface.
(15) To prevent, detect and investigate cross-border serious organised crime and terrorism, coordination and concerted action is necessary. In addition to the possibility of the Member State to set up a joint investigation team in accordance with Council Framework Decision of 13 June 2002, Member States should be able to set up an operational task force to reinforce law enforcement cooperation with the support of Europol. This coordination mechanism among Member States’ police authorities and other law enforcement services should, with the support of Europol, enable them to conduct joint, coordinated and prioritised criminal intelligence activities and investigations notably on criminal networks and groups as well as individual criminal actors, including persons whose criminal activities fall within the forms of crime for which Europol is competent and who constitute a high risk for security. In order to ensure the well-functioning and the effectiveness of that mechanism, Member States setting up, participating in, or supporting an operational task force should be able to ensure a minimum set of requirements concerning their active and timely involvement, such as providing all relevant information to Europol, and Europol should be able to make available its advanced analytical, operational, technical, forensic and financial support to those Member States. Third countries should be able to participate in or support an operational task force.
(16) Where the criminal intelligence activities carried out in an operational task force result in the opening of criminal investigations in one or more Member States that may benefit from setting up a joint investigation team, or where the criminal investigations supported by an operational task force may benefit from setting up a joint investigation team, Europol should propose the setting up of a joint investigation team to the Member States concerned and take measures to assist them in accordance with Article 5 of Regulation (EU) 2016/794. In such cases, Europol should closely liaise with Eurojust, where appropriate.
(17) Europol should be able to deploy staff including seconded national experts in accordance with Regulation (EU) 2016/794 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. These deployments should notably take place in the context of complex, large-scale and high-profile investigations, including in the context of joint investigation teams, in liaison with Eurojust where appropriate, or operational task forces. These deployments should also support further security checks against Europol or national databases in order to facilitate rapid information exchange to strengthen controls at the Union’s external borders (secondary security checks), or migration management support teams in accordance with Regulation (EU) 2019/1896 of the European Parliament and of the Council21. Europol should also make use of these deployments to support Member States in relation to major international events. 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, an 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.
(18) In order to ensure that Europol can provide effective support by way of deployment, 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 staff and seconded national experts rapidly, even in exceptional cases of urgency. The deployed Europol staff and seconded national experts 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, and in accordance with Regulation (EU) 2016/794 and that Member State’s national law.
(19) Furthermore, in the context of Europol deployments for operational support, 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. The experts’ reserve pool should include specialists in criminal analysis, forensics, investigation, languages and coordination. The Member States should ensure that their experts are available to take part, as seconded national experts, in Europol deployments for operational support, at the request of Europol. That obligation should not apply to third countries where Europol deploys staff and seconded national experts for operational support.
(20) The reinforcement of Europol’s legal framework provides an opportunity to clarify that Europol’s objectives should also expressly cover violations of Union restrictive measures. Union restrictive measures are an essential tool for safeguarding the Union’s values, security, independence and integrity, consolidating and supporting democracy, the rule of law, human rights and the principles of international law and maintaining international peace, preventing conflicts and strengthening international security in line with the aims and principles of the United Nations Charter. Violations of Union restrictive measures therefore constitute a form of crime which affects a common interest covered by Union policy, and in relation to which Europol should have competence to act in order to support and strengthen action by the Member States.
(21) [In accordance with Article 3 of the Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Ireland has notified its wish to take part in the adoption and application of this Regulation.] OR
(22) [In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.]
(23) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(24) [The European Data Protection Supervisor was consulted, in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council22, and has delivered an opinion on […]23.
(25) Since the objectives of this Regulation to reinforce the prevention, detection and investigation of migrant smuggling and trafficking in human beings cannot be sufficiently achieved by the Member States acting alone given the cross-border nature of these crimes, but can rather, by reason of the effects of cooperation and information sharing, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
(26) This Regulation fully respects the fundamental rights and safeguards, and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’), in particular the right to respect for private and family life and the right to the protection of personal data as provided for by Articles 7 and 8 of the Charter, as well as by Article 16 of the Treaty on the Functioning of the European Union.
(27) Regulation (EU) 2016/794 should therefore be amended accordingly.