Matthias Monroy

According to plans of the EU interior ministers, the Schengen states could soon exercise sovereign powers outside their national borders. This would go far beyond existing agreements.

Are French authorities allowed to bug the car of an environmental activist and use hidden cameras when she is on her way to Spain? After blowing up an ATM, can German police pursue suspects as far as the Netherlands and use firearms? How far inland can such an arrest operation go?

The European Union wants to clarify these and other questions in the field of internal security in a new initiative. To this end, the Commission proposed a Council Recommendation on operational police cooperation in December, which is now being discussed by the Member States in the Council. It goes back to the German EU Presidency in the second half of 2020. At that time, the Federal Ministry of the Interior had Conclusions on Internal Security and a European Police Partnership adopted. There, the EU interior ministers committed themselves to more cooperation, information exchange and the use of new technical surveillance methods, also across borders.

Joint patrols and hot pursuit

The proposal now presented calls for, among other things, uniform standards in multilateral police operations, joint patrols in a „non-border area“ or a „mass event“. These include sporting events, demonstrations or commercial events.

The most important pillar of the recommendation, however, is the so-called cross-border hot pursuit. This refers to operations in which the police want to arrest a person on the territory of a neighbouring country. Because these cases are often unforeseen, the competent authorities cannot be asked for their consent beforehand. In future, such measures are to be permitted until the competent authorities of the state concerned have rushed to the scene of the incident. Only these authorities would then be allowed to carry out identity checks on the persons concerned.

The Commission has presented a list of offences for which such hot pursuit should be possible. These include participation in a criminal organisation, terrorism, illegal trafficking in narcotics, weapons, ammunition or explosives, corruption, smuggling of migrants, racism, intentional arson or sabotage. The list comes from the Trade and Cooperation Agreement that the EU has concluded with the government in London for continued law enforcement cooperation. Operations in the UK, however, are not covered by the recommendation.

Use of firearms and digital surveillance

Police officers are to be allowed to use their service weapons in hot pursuit in neighbouring countries. The Commission wants to allow these sovereign powers even in cases where this seems necessary not only for self-defence but also for the „defence of others“. However, this emergency aid is controversial, because in some Schengen states the police are only allowed to use firearms in certain cases, and officers from neighbouring countries would then also have to comply with this. In Norway, police on patrol are always unarmed.

The recommendation also regulates the use of technical means. The police are to be allowed to use GPS-based tracking devices on suspects‘ vehicles even if they are foreseeably travelling in neighbouring countries. The same applies to bugs used to listen in on conversations and hidden video cameras that can send images to investigators in real time. They are also allowed to use drones to observe people across borders.

Finally, officers will be allowed to use their national police apps on the territory of another country to communicate securely with their sending states.

Further development of the Schengen acquis

Many EU member states have already agreed on rules of engagement for cross-border law enforcement operations in neighbouring countries in bilateral cooperation agreements. Some of the envisaged forms of police deployment for law enforcement purposes have also been harmonised in EU legislation and are applied by Schengen member states as part of the so-called Schengen acquis.

For example, since 2008, the Council Prüm Decision has provided for joint patrols by police from two or more member states; it also defines the possible use of firearms. The Schengen Convention also provides for the possibility of hot pursuit and cross-border observation, but without the permission to use firearms for emergency assistance.

The Commission therefore considers its recommendations on operational police cooperation as a further development of the Schengen acquis. This means that all Schengen members would be obliged to implement them. Admittedly, this is not an EU legislative act adopted as a directive or regulation by the Council and the Parliament. Nevertheless, Council recommendations are also of legal significance, they usually entail future legal acts or are also used by courts to justify judgements.

„Coordination platform“ at Europol

In addition to hot pursuit and cross-border surveillance, the Commission also envisages innovations in the now 59 Police and Customs Cooperation Centres (PCCC). They are set up jointly by two or three EU member states at or near the border to facilitate joint police operations and the exchange of information. According to the proposal, the police forces stationed there could take over operational tasks.

To carry out such cross-border operations, the police agency Europol is to set up a „coordination platform“, but its added value is unclear. The EU already has similar platforms to manage joint operations, such as the network of liaison officers or in the area of international football tournaments. Europol could, however, provide technical assistance, for example by using a server through which tracking devices can be traced across Europe.

For the establishment of such a European Tracking Solution (ETS) which networks the tracking servers of the EU member states with a central tracking gateway. Europol is also tasked with developing encrypted messengers and video telephony for police cooperation in a Core Group for Secure Communication. In addition, the Commission is funding the so-called Broadway programme, which aims to standardise secure communications in law enforcement, civil protection and rescue. The platform is to be tested in the spring.

Conflicts with national legislation

The recommendation for operational police cooperation is part of the Police Cooperation Code, in which the Commission presented two further proposals in December. A new directive on the exchange of information between law enforcement agencies is to replace the so-called Swedish Initiative of 2006. With the renewal of the Prüm Decisions as Prüm II, Schengen member states are also to be allowed to match facial images instead of only DNA data and fingerprints.

On 3 and 4 March, the EU interior and justice ministers will discuss the Council recommendation for the first time at their Council meeting in Brussels; before that, the proposal will be dealt with in the competent Council working groups. After a decision, the member states would have six months to implement it. For many governments, however, this is too fast; there are already indications that this will be increased to 18 months.

Before a decision is taken, however, various conflicts with the national legislation of some states must be resolved. This is because the recommendation refers to various law enforcement agencies, including quasi-military gendarmeries, border guards and customs authorities; however, customs do not have police powers everywhere. Some member states are also uncomfortable with the escalating possibilities for digital surveillance. Moreover, it is unclear according to which criteria a person under surveillance is to be classified as „suspicious“. Finally, the recommendation leaves open whether, in addition to hot pursuit, „transit pursuit“ is also included, i.e. persons could be pursued into another, non-contiguous country. This, too, is now being discussed in the Council negotiations.

Image: German Federal Police (image film).