B. EXPLOITING EUROPEAN ADDED VALUE FOR THE FIGHT AGAINST TERRORISM AND THE STRENGTHENING OF INTERNAL SECURITY
European citizens are clearly expecting a European Union that will protect them better from the threat of terrorism. This is now one of their primary expectations. It is now essential to move towards a "Security European Union".
1. Strengthening the action of the European Union in the fight against terrorism
There is still a long way to go: in the field of internal security, the member States ensure in the current state approximately 90% of this shared competence and have the primary responsibility thereof 2 ( * ) .
Efforts now need to be focussed on the following priorities:
- it is deemed necessary to create a legal framework adapted to encryption for the effective countering of the use of the internet for terrorist purposes and to prevent Internet operators from circumventing the applications of the States within the framework of criminal investigations;
- we must improve the input and use of the European databases and ensure their interoperability . It is also appropriate to provide facilitated access of the law enforcement services to all of the files.
Specifically regarding the Schengen Information System (SIS II), biometric data can be included (photographs and genetic fingerprinting) in order to facilitate and safeguard the identification of the wanted individuals;
- it is also urgent to develop interoperability between the various existing (SIS II, VIS, Eurodac) and future (SES, ETIAS) European databases and with a single entry point allowing all of the files to be examined simultaneously. These achievements assume that the member states adopt the common methods and rules in the preparation of their files;
- lastly as regards the European PNR (the passenger data file), finally adopted in 2016 following years of negotiations, it is clear that above all to date, only one country, the United Kingdom has a finalised national PNR and that three other European countries - including France - are in the process of equipping themselves with one. The rapid implementation of this essential tool therefore requires considerable efforts.
2. Ensuring effective police cooperation: the role of Europol
France plays a central role and exercises significant influence in respect of police cooperation in the European Union, whether it is a question of the provision of information to the Schengen information system or to the European Agencies underlying this cooperation, such as the Europol and Eurojust.
Staffed with a workforce of around 1,000 people, the European agency currently has 368 analysts and experts in criminal analysis, as well as around 200 specialised liaison officers in the matter.
Europol, the "mega-search engines", specialised in criminal analysis, continuously adapts to its missions.
In 2013, it put in place a European centre to combat cyber crime, in 2015, it established a European Centre for combating terrorism (a large proportion of the 90 jobs created in 2017 should be dedicated to this centre), and in 2016, it established a European Centre for the fight against migrant smuggling within the framework of a 2016-2020 multi-annual strategy.
Europol in no way intends to become a European FBI. In other words,-- it is not authorised to arrest suspects or to take any action without the approval of the national authorities of the member states. The agency is first and foremost a support service.
The priority today is the interoperability of the files: the Europol file and the national police files of the member states.
In December 2015, a road map containing around fifty measures is expected to strengthen it. However the problem is not always simple and there remains a number of technical challenges to overcome, as the police files of each member state are "constructed" differently. The QUEST project (Querting Europol Systems) proposes giving users easy access to the Europol data and national databases.
The European Police Cooperation Officer at the Central Directorate of the Judicial Police acknowledged, before your monitoring group, the importance of improving the access of the national law enforcement authorities to the number of existing files in Europe.
3. Promoting judicial cooperation: strengthening Eurojust and creating a European Public Prosecutor
The success of judicial cooperation in the European Union bears witness to the possible success routes of a reshaping of Europe.
It is in the area of international cooperation in the field of mutual assistance, integrated into national legislation that has contributed and continues to contribute undeniable added value in respect of the overall effective fight against terrorism and serious crime.
a) Eurojust
The most successful form of European Judicial Cooperation - the symbol of an "effective Europe" -, is clearly the Eurojust unit created by the Council decision of 28 February 2002 in order to reinforce the common fight against serious crime. This instrument is a European Union body with legal personality, which acts as a council or through a national member.
The unit is responsible for promoting and improving the coordination and cooperation between the competent authorities of the member states in all of the investigations and prosecutions within its jurisdiction.
The Eurojust law enforcement cooperation unit is made up of 28 national offices that exchange operational information and requests for assistance in real time.
In 2015, the national offices organised, within Eurojust, 274 coordination meetings.
Two joint investigation teams were put in place in the terrorist cases of 2015-2016, as Europol and Eurojust were members of the joint investigation team for the 13 November 2015 terrorist attacks.
The obligation to inform Eurojust on this matter is provided for by article 13 of the above-mentioned decision relating to Eurojust and in France by article 695-8-2 of the Code of Criminal Procedure. It is nevertheless subject to relatively restrictive conditions, which are the result of a political compromise reached in 2008, in a context in which both Germany and the United Kingdom opposed the transmission of information to Eurojust on the grounds of a risk of duplication with Europol.
The vast majority of the 54,000 pieces of data currently present in the Eurojust file are taken from legal assistance files opened by the national offices which record them routinely in the central unit.
Eurojust currently neither has the means nor the legal basis that would allow it to manage a genuine "European Registry office" in which all of the court proceedings initiated in the member states would be recorded, particularly in respect of terrorism and organised crime.
However, the creation of a European Registry Office within Eurojust may be operationally useful on a European level by enabling overlaps between the court proceedings initiated in the Member States, which a priori are independent of each other.
The creation of this European Registry Office would require a significant change of the regulatory basis of the judicial cooperation unit. Certain member states that are quite reluctant about Eurojust may once more express their scepticism.
b) The European Prosecutor's Office
Several national parliaments (including the Senate) have managed to shape the debate around a European Prosecutor's Office structured on a collegiate basis based on national delegates in each member State. This was a great development.
During the trilogue, certain member states (United Kingdom, Ireland, Denmark, Sweden and now the Netherlands) have expressed their resolute opposition to the very principle of the opposition. Other member states (Italy) expressed their regret for the Commission's original version while countries such as France, Germany, Spain or Belgium approved the principle of this institution while requesting more information (for Germany, for example, in respect of defending the rights of accused persons).
If the discussion still continues today, it is because the debate has become very technical particularly in respect of the incorporation of VAT fraud in the field of jurisdiction of the European Public Prosecutor's Office.
A "reinforced cooperation" is now being considered (a minimum of nine countries) between the countries in favour of the project for combating intercommunity financial crime. This reinforced cooperation may be decided at the Heads of State Summit and government of March 2017 (with the start-up of the European Public Prosecutor's Office at the end of 2018 or at the beginning of 2019).
The Senate is calling for, in the long run, the extension of jurisdiction of the future European Public Prosecutor's Office on cross-border organised crime, including terrorism.
It is clear that such an extension would make sense in an EU reform programme on the fundamental priorities.
The terrorist threat has destabilised the internal security of all of the member states, which are obliged to resort to special measures such as states of emergency or disruptions to the freedom of movement on EU territory, this being the main achievement of the European venture.
The creation of a genuine "Security European Union" would redistribute the priorities contributing in particular to this Reform of Europe, which is now actively desired.
In spite of its recent reform, FRONTEX remains, for example, a resource agency since it is appropriate to convert the agency into a real EU border police.
The relaunch of the Franco-German partnership determines however in this area, as in others, the establishment of this "European Union of Security".
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Recommendations on the security of Europe 1. Strengthening the action of the European Union in the fight against terrorism: - establishing a legal framework adapted to encryption enabling the use of the internet for terrorist purposes to be combatted more effectively; - improving the input and use of European databases that may be useful in the fight against terrorism; - enhancing the interoperability between the various existing (SIS II, VIS, Eurodac) and future (SES, ETIAS) European databases; - encouraging all of the member states to acquire a national PNR to ensure the full effectiveness of the European PNR. 2. Ensuring effective police cooperation: the role of Europol: - better ensure the population of the Schengen information system and the European bodies underlying European police cooperation and in particular Europol; - improving the interoperability of the Europol file and the national police files of the member states in order to facilitate access of the national law enforcement authorities to the various existing files in Europe. 3. Promoting judicial cooperation: strengthening Eurojust and creating a European Public Prosecutor: - strengthening the obligation to inform Eurojust which is subject to exceedingly restrictive conditions; - creating a European Registry Office within Eurojust allowing for an overlap between the court proceedings initiated in the various member states; - speeding up the starting up of a European Registry Office on a collegiate basis based on national delegates in each member State, with international cooperation where necessary; - broadening the jurisdiction of a European Registry Office to cross-border organised crime and the fight against terrorism. |
* 2 Source: hearing of Mr Gilles de Kerchove, coordinator of the European Union plan of action to combat terrorism, heard by the Senate's committee on European Affairs in February 2016,