Police Cooperation in the European Union under the Treaty of Lisbon

Transcription

1 Schriftenreihe des Arbeitskreises Europäische Integration e.v. Hartmut Aden [ed.] Police Cooperation in the European Union under the Treaty of Lisbon Opportunities and Limitations Nomos l 83

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3 Schriftenreihe des Arbeitskreises Europäische Integration e.v. Band 83

4 Hartmut Aden [ed.] Police Cooperation in the European Union under the Treaty of Lisbon Opportunities and Limitations

5 This project has been funded with support from the European Commission. This publication reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at ISBN (Print) (epdf) British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN (Print) (epdf) Library of Congress Cataloging-in-Publication Data Aden, Hartmut [ed.] Police Cooperation in the European Union under the Treaty of Lisbon Opportunities and Limitations Hartmut Aden 266 p. Includes bibliographic references. ISBN (Print) (epdf) 1. Edition 2015 Nomos Verlagsgesellschaft, Baden-Baden, Germany Printed and bound in Germany. This work is subject to copyright. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. Under 54 of the German Copyright Law where copies are made for other than private use a fee is payable to Verwertungs gesellschaft Wort, Munich. No responsibility for loss caused to any individual or organization acting on or refraining from action as a result of the material in this publication can be accepted by Nomos or the editor.

6 Preface and acknowledgements This book goes back to a conference held under the same title on 21 and 22 February 2013 at the Berlin School of Economics and Law as part of a series of international research seminars on comparative research into policing. Many people have helped to make this project possible: first of all the paper givers who kindly accepted to contribute to the conference and to this book and the participants of the conference who took part in fruitful discussions. Four institutions have made the conference and the book possible by their financial and logistical support: the Arbeitskreis Europäische Integration who has kindly accepted to integrate this project into its series of conferences sponsored by the European Commission in the Lifelong Learning Programme, the Groupe Européen de Recherches sur les Normativités and the Berlin School of Economics and Law. I am particularly grateful to a number of people who have helped me to put this project into practice: first of all Dr. Frédéric Krumbein, the managing director of the Arbeitskreis Europäische Integration and my former student assistants Thomas Herzog and James Basham. Anne Bernert, Denise Bluhm, Simon Eriskat and Liane Vogel have been perfect assistants before and during the conference and for the preparation of this book. My colleagues Clemens Arzt, Christian Matzdorf, Lars Ostermeier and Sabrina Schönrock have kindly accepted to chair the panel sessions during the conference. Hartmut Aden Berlin School of Economics and Law 5

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8 Contents List of abbreviations 11 Hartmut Aden Police cooperation in the EU before and after the Treaty of Lisbon continuity and innovation 15 Part 1: Police cooperation in the European Union before and after the Treaty of Lisbon: historical, political and legal framework 23 Cyrille Fijnaut Revolution or evolution through the Treaty of Lisbon: police cooperation in Europe in a broader historical context 25 Daniela Kietz Policy making in policing and criminal justice under Lisbon rules: more democratic, more complex, and more conflict-prone 49 Daniela A. Heid Before and after the Treaty of Lisbon: the legal framework of police cooperation in the EU compared 65 Funda Tekin Differentiated integration: ever more relevant for police cooperation after the Treaty of Lisbon? 81 Part 2: Police cooperation, police professionalism and police training 99 Monica den Boer Police professionalism in the European Union 101 7

9 Contents Hans-Gerd Jaschke Police training and police studies in the EU Member States: towards higher standards by coordination? 119 Part 3: Police cooperation in practice: empirical insights 133 Wilhelm Knelangen Imbalances in an expanding research area: the widely neglected practical dimension of EU internal security policy 135 Ludo Block Do Council instruments matter? The effect of Council instruments on practical police cooperation in the EU 147 Bettina Rauch-Schulz European and international cooperation in practice: the case of the Berlin Police 165 Mario Gruschinske, Nathalie Hirschmann & Laura Füger Effective cross-border knowledge sharing between police forces the German-Polish Police and Customs Cooperation Centre (PCCC) 177 Olivier Cahn Contributions of Member States to EU police external operations 189 Part 4: Information sharing among police agencies under the Treaty of Lisbon 207 Hartmut Aden Police information sharing and data protection in the European Union before and after the Treaty of Lisbon 209 Peter Schaar & Karsten Behn Conflicts between data protection harmonisation and a high level of protection: shortcomings of the European Commission s proposal for a Police and Justice Directive 217 8

10 Contents Jan Philipp Albrecht EU police cooperation and information sharing: more influence for the European Parliament? 223 Michael Niemeier The exchange of information between police organisations in the EU under the Treaty of Lisbon routine and difficulties from a practical perspective 235 Gertjan Boulet & Paul De Hert Cooperation between the private sector and law enforcement agencies: an area in between legal regulations 245 Contributors 259 European treaties and laws relevant for police cooperation (selection) 265 9

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12 List of abbreviations AEPC AFSJ APP BGBl. BKA BVerfG BVerfGE CCC CELAD CEPEJ CEPOL CFSP CID CIT COM COMPOSITE COPPS COSI CPE CPDP CSDP DNA DRC EC EC 3 ECHR ECJ ECPN Association of European Police Colleges Area of Freedom, Security and Justice Authorised Professional Practice Bundesgesetzblatt Bundeskriminalamt (Federal Criminal Police Office) Bundesverfassungsgericht Bundesverfassungsgerichtsentscheidung Common Core Curriculum Comité Européen de la Lutte Anti-Drogue European Commission for the Efficiency of Justice European Police College Common Foreign and Security Policy Criminal Investigation Department Critical Incident Technique European Commission Comparative Police Studies in the European Union Coordination Office for Palestinian Police Support Internal Security Committee Capital Policing Europe Computers, Privacy and Data Protection Common Security and Defence Policy Deoxyribonucleic acid Democratic Republic of Congo European Community/Communities European Cybercrime Centre European Convention on Human Rights European Court of Justice European Capitals Police Network 11

13 List of abbreviations ECRIS ECtHR ECTS EDPS EEC EIO EIPA EIS EIXM EKSPO-DI EP EPRIS ERA ESDP EU EU ISS EU EULEX EUPM EUPOL Eurodac Europol Eurosur FBI FP7 FRA Frontex GAM GMBl. ICT IKPK INPOL European Crime Register Index System European Court of Human Rights European Credit Transfer and Accumulation System European Data Protection Supervisor European Economic Community European Investigation Order European Institute of Public Administration European Information System European Information Exchange Model Effectiveness of Knowledge Sharing in Police Organisations Diagnostic Instrument European Parliament European Police Record Index System European Research Area European Security and Defence College European Union Institute for Security Studies European Union Rule of Law Mission in Kosovo European Union Police Mission in Bosnia & Herzegovina European Union Police Mission System for the Comparison of Fingerprints European Police Office European external border surveillance system Federal Bureau of Investigation Seventh Framework Programme Agency for Fundamental Rights European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union Groupe d Asstistance Mutuelle Gemeinsames Ministerialblatt Information and Communication Technology Internationale Kriminalpolizeiliche Kommission Bundesweites Informationssystem der Polizei 12

14 List of abbreviations Interpol ISEC ISF ISS IT JHA JIT LEA LIBE LKA LO LUPE MEP MEPA MOE MS NA BBIBB NATO NBPA NPIA OJ OLAF PCCC PEO PESTL PHARE PhD PJC International Criminal Police Organization Prevention of and Fight against Crime Internal Security Fund Internal Security Strategy Information Technology Justice and Home Affairs Joint Investigation Team Law Enforcement Agency Committee of the EP: Civil Liberties, Justice and Home Affairs Landeskriminalamt Liaison Officer Learning Urban Policing in Europe Member of European Parliament Middle European Police Academy Mittel- und Osteuropa Member State Nationale Agentur beim Bundesinstitut für Berufsbildung North Atlantic Treaty Organisation Nordic Baltic Police Academy National Policing Improvement Agency (UK) Official Journal Office Européen de Lutte Anti-Fraude/European Anti-Fraud Office Police and Customs Cooperation Centre Police External Operations Political, economical, social, technological and legalanalysis Poland and Hungary: Aid for Restructuring of the Economies Doctor of Philosophy Police and Judicial Cooperation 13

15 List of abbreviations PNR QMV SIENA SIRENE SIS SOCTA SS SWIFT Taiex TEC TEU TFEU TFTP TREVI UK UN US(A) VET VIS Passenger Name Record Qualified Majority Voting Secure Information Exchange Network Application Supplementary Information Request at the National Entry Schengen Information System Serious and Organized Crime Threat Assessment Schutzstaffel Society for Worldwide Interbank Financial Telecommunication Technical Assistance and Information Exchange instrument Treaty on European Community Treaty on European Union Treaty on the Functioning of the European Union Terrorist Financing Tracking Program Terrorisme, Radicalisme et Violence Internationale United Kingdom United Nations United States (of America) Vocational education and Training Visa Information System 14

16 Police cooperation in the EU before and after the Treaty of Lisbon continuity and innovation Hartmut Aden When the Treaty of Lisbon entered into force in December 2009, questions related to policing seemed to be among the fields of innovation. The abolition of the pillar architecture that had been introduced in the early 1990s with the Treaty of Maastricht opened the path for major changes for policies resumed under the labels Justice and Home Affairs (JHA) or Area of Freedom, Security and Justice (AFSJ) that had been part of the EU s intergovernmental third pillar. However, in spite of the intergovernmental structure, police cooperation and other elements of the former third pillar had already gone through important developments in the period from the early 1990s to For example, Europol and numerous other instruments for enhanced police cooperation had been established or further developed in that period (cf. Bigo 1996; Aden 1998; Occhipinti 2003; Fijnaut in this volume). The first experience with the modified institutional framework, as it has been defined by the Treaty of Lisbon, has delivered insights into the practical impact of the Lisbon innovations. The European Commission has been active with developing new initiatives, and the European Parliament has experienced the practical meaning of its new powers in the decision-making process, but also the limitations to its influence upon police cooperation and the other JHA issues that are still largely characterised by intergovernmental coordination and direct inter-agency cooperation. Against this backdrop, the contributions to this book assess the impact of the Treaty of Lisbon upon police cooperation in a before and after and in a continuity and change perspective. This central research question combines cross-border comparison with an EU perspective. The book confronts scholarly and practical perspectives as well as approaches from different scholarly disciplines (law, political and administrative science, history, sociology). 15

17 Hartmut Aden 1. The historical, political and legal framework of police cooperation before and after the Treaty of Lisbon In a legal perspective, the chapter on police cooperation that has been placed in Articles 87 to 89 of the Treaty on the Functioning of the European Union (TFEU) by the Lisbon Treaty, has brought a number of changes without making a radical shift compared to the situation established by the Treaties of Maastricht and Amsterdam (cf. Heid and Fijnaut in this volume). Therefore, even if some major innovations can be observed, continuity is prevailing with respect to the legal framework of police cooperation in the EU. The major innovations are closely related to the general institutional changes for JHA/AFSJ: the end of the pillar architecture and the strengthened role of the European Commission, the European Parliament and the Court of Justice in this field. Therefore the legal changes are closely related to the political and institutional changes that the Treaty of Lisbon has brought. After the first years of practical experience, the contributions to this book draw a more differentiated picture of the impact that the Treaty of Lisbon has had upon police cooperation. The European Parliament that now has more formal influence on decision-making is still confronted with the specific patterns of a policy field, in which the Member States governments and security agencies were accustomed to decision-making with limited transparency and with almost no accountability to a wider public (cf. Albrecht and Kietz in this volume). The specific opt-outs for a number of Member States, e.g., the United Kingdom, still limit the impact of EU decision-making for JHA. These opt-outs not only endanger the spirit of full integration established by the Treaty of Lisbon, but also lead to a partial self-exclusion of some Member States from operational police cooperation (cf. Tekin in this volume). Under the former third pillar, the effectiveness of decision-making was known to be limited. As the European Commission had no possibilities to force the Member States to implement third pillar legislation with infringement proceedings, the instruments established for police cooperation and other JHA/AFSJ issues often had a poor outcome. As for other EU policies, political compromises are another factor limiting the effectiveness of JHA/AFSJ instruments. Therefore the policy output did not always meet the practitioners needs, which then contributed to poor implementation in practice (cf. Block in this volume). There is not yet enough empirical evidence in order to answer the question whether JHA/AFSJ instruments passed under the Lisbon framework are more effective than the old third pillar instruments. However, laws passed in the new EU framework under the ordinary legislative procedure are more likely to have a practical impact after being 16

18 Police cooperation in the EU before and after the Treaty of Lisbon approved by the Parliament and with the perspective that the Commission might sanction shortcomings at the implementation stage. 2. Convergence of police professionalism? According to Article 87 (2b) TFEU as it is in force since the Treaty of Lisbon, the Parliament and the Council may establish measures concerning support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection. The fact that the Treaty promises support underlines the importance attributed to horizontal initiatives for police training and police professionalism. Standards and practices of police training in the EU countries are still as diverse as the police forces themselves. However, a trend towards better qualification of future police officers can be observed in a number of Member States. Cooperation among police academies from different EU countries has been supported by European initiatives, including the establishment of the European Police College CEPOL (cf. Jaschke in this volume). The comparative knowledge on the content and quality of police training in the EU Member States is still limited. Nevertheless, it seems to be quite obvious that cooperation among the national police training institutions and European initiatives facilitating the dissemination of professional knowledge and best practices have contributed to establish more professional approaches to policing not only in those fields that are directly involved in cross-border cooperation. A closer look at the different aspects of professionalism including knowledge, competencies and ethics shows that European cooperation influences professionalism in all these dimensions, but to a different degree and in different ways (cf. Den Boer in this volume). 3. The state of empirical research on police cooperation in the EU When police cooperation and other JHA/AFSJ issues were established as a European policy in the 1990s, only a few researchers and critical NGOs closely followed the developments of transnational policing in Europe. Legal and institutional political science perspectives were dominant in this field. This has changed since the late 1990s. With the further development of European instruments, police cooperation has become a regular field of European integration research. Policy-making and legal instruments in this field are now subjects of vivid scholarly debates. Comparative research, 17

19 Hartmut Aden including the perspective beyond Europe, has become more frequent in this policy area (for example Hufnagel 2013). By contrast, empirical and comparative knowledge on police cooperation practice and the impact of cooperation on policing in the Member States is still rather limited (cf. Knelangen in this volume for an overview). In all fields of European integration, a major part of the scholarly research is related to policy-making and law-making. By contrast, research into the daily practice is still rare. For police cooperation this effect is even stronger, due to limitations in the openness of security agencies for empirical research that still exist, i.e. when it comes to trans-border cooperation in sensitive criminal investigation cases. There have been some new studies, however, offering interesting insights into the practice of police cooperation, e.g. on the role of liaison officers demonstrate that empirical research is possible and fruitful in this field (e.g. Den Boer/Block (eds.) 2013; Block 2011, and Block in this volume). Even if there is still not much empirical knowledge on the practice of police cooperation, reports from practitioners indicate that the cooperation practice as it has been established since the 1990s has not been fundamentally changed by the Treaty of Lisbon. The formal legal framework is only one of several factors influencing the numerous settings in which cross-border police cooperation takes place today (cf. Rauch-Schulz and Niemeier in this volume). Coordination and cooperation among the police forces in the EU is now an everyday reality, reaching from single investigation cases and legal aid via Joint Investigation Teams to exchange programmes and common training initiatives. None of this was introduced by the Treaty of Lisbon; it is the result of two decades of initiatives for enhanced and easier cooperation. Central police units cooperate in their daily business. This is now as much everyday routine as direct cooperation in the Police and Customs Cooperation Centres that have been established in many border regions between the EU Member States since the 1990s (cf. Gruschinske et al., in this volume). Remaining difficulties in everyday cooperation are attributed to a number of practical problems, caused for example by differences between the police systems of the EU Member States and by rules and procedures for cooperation that are sometimes perceived as complex and difficult to apply. EU programmes facilitate cooperation at least by opening funding opportunities. 18

20 Police cooperation in the EU before and after the Treaty of Lisbon 4. Information sharing and data protection as core issues for police cooperation Information sharing has always been a major factor motivating transnational police cooperation in Europe and beyond (cf. Deflem 2002; Fijnaut and Aden in this volume). This motivation has become even more important with the development of modern information technology (IT). Here again, the Treaty of Lisbon has changed the institutional framework rather than the substantive rules for cooperation. Even the trend to attribute the status of EU agencies to the relevant institutions has not been established, but only stabilised by the Treaty of Lisbon. The fact that now several JHA agencies exist in parallel, Europol, Eurojust, Frontex and the EU Agency for Large Scale IT Systems, is an indicator for the practical importance of a common infrastructure for police and judicial information sharing in the EU. In practice, trans-border information sharing has rather been triggered by the terrorist attacks at New York, Washington D.C., Madrid and London in 2001, 2004 and 2005 than by legal rules (cf. Kaunert and Léonard (eds.) 2013; Aden 2014). While police practitioners still tend to find information sharing sometimes ineffective or inefficient, the growing quantities of information that police agencies share at a transnational level have made data protection an issue of growing importance (cf. Boehm 2012; Bigo et al. 2011). Data protection in general is now a right provided at the level of primary EU law even twice with Article 16 TFEU and Article 8 of the EU Charter of Fundamental Rights. However, this legal framework remains very general and does not establish detailed data protection rules for police and judicial cooperation. Whether the EU tends to higher or rather lower standards of data protection therefore depends upon the initiatives taken by the European Commission. From this perspective, the proposal for a data protection directive for this field published by the Commission in early 2012 (cf. European Commission 2012) leaves a margin for improvement (cf. Behn/Schaar in this volume). For the establishment of a new legal framework for police information sharing in the EU, including data protection, the discussion of the draft directive is an interesting example of the influence that the European Parliament has gained under the Lisbon rules but also for the limitations of this influence (cf. Droutsas 2013; Albrecht in this volume). For trans-border security issues, traditional boundaries are diminishing: between external and internal security (cf. Cross 2011; Aden 2013), between the police and the military and between public and private actors. This leads to new political and regulatory challenges for information sharing 19

21 Hartmut Aden (cf. Boulet/De Hert in this volume). The diminishing differences between internal and external security have also created new tasks for police cooperation the numerous external police missions (cf. Cahn in this volume). 5. Conclusion: police cooperation in the Lisbon framework: opportunities, limitations and new synergies Summarising the findings of the contributions to this book, the Treaty of Lisbon has not led to a fundamental paradigm shift for police cooperation in Europe. The Treaty has rather legally underlined and strengthened trends. In a long-term perspective, the Treaty of Lisbon will therefore probably be another step towards institutionalisation of police cooperation in the EU as an everyday practice. New or changed threats perceived at a certain point of time, i.e. after the terrorist attacks at New York, Washington D.C., Madrid and London, led to an intensified pace of cooperation. Even if continuity of police cooperation in the EU seems to be more important than the changes established by the Treaty of Lisbon, the institutional dimension remains most interesting. Will police and justice cooperation be bound to a more democratic decision-making process and enhanced accountability? The answer to this question is closely related to the outcome of the ongoing struggle between the European Commission, the European Parliament, the Court of Justice and the Member States governments on the question how the distribution of power should be further developed under the Lisbon rules. Will police cooperation become more closely linked to parliamentary decision-making and more accountable to parliamentary institutions, courts and a wider public? Will this raise the weight of fundamental rights in relation to security interest? Or will the Member States maintain quasi-intergovernmental structures for the practice of police cooperation? How far will civil liberties and effective transnational policing remain contradictions, and how far will the integration of police cooperation in an institutional framework that is characterised by enhanced democratic accountability lead to new synergies between effective and accountable policing on the one hand and a high level of protection for civil liberties and fundamental rights on the other? These questions will remain interesting issues for further transdisciplinary empirical and comparative research. 20

22 Police cooperation in the EU before and after the Treaty of Lisbon References Aden, Hartmut, 1998: Polizeipolitik in Europa. Eine interdisziplinäre Studie über die Polizeiarbeit in Europa am Beispiel Deutschlands, Frankreichs und der Niederlande, Wiesbaden: Westdeutscher Verlag. Aden, Hartmut, 2013: Sichere versus unsichere Ökonomie? Probleme und Kosten weltweiter und europäischer Terrorlisten, in: Klimke, Daniela/Legnaro, Aldo (eds.), Politische Ökonomie und Sicherheit, Weinheim: Beltz Juventa, p Aden, Hartmut, 2014: Koordination und Koordinationsprobleme im ambivalenten Nebeneinander: Der polizeiliche Informationsaustausch im EU-Mehrebenensystem, in: der moderne staat (vol. 7, no. 1), p Bigo, Didier, 1996: Polices en réseaux: l expérience européenne, Paris: Presses de Sciences Po. Bigo, Didier/ Carrera, Sergio/ González Fuster, Gloria/ Guild, Elspeth/ De Hert, Paul/ Jeandesboz, Julien/ Papakonstantinou, Vagelis, 2011: Towards a New EU Legal Framework for Data Protection and Privacy, Brussels: European Parliament. Block, Ludo, 2011: From Politics to Policing. The Rationality Gap in EU Council Policy- Making, Den Haag: Eleven International Publishing. Boehm, Franziska, 2012: Information Sharing and Data Protection in the Area of Freedom, Security and Justice. Towards Harmonised Data Protection Principles for Information Exchange at EU-Level, Heidelberg/Dordrecht etc.: Springer. Cross, Mai'a K. Davis, 2011: Security Integration in Europe: How Knowledge-Based Networks Are Transforming the European Union, Ann Arbor: The University of Michigan Press. Deflem, Mathieu, 2002: Policing World Society: Historical Foundations of International Police Cooperation, Oxford/New York: Oxford University Press. Den Boer, Monica/Block, Ludo (eds.), 2013: Liaison Officers: Essential Actors in Transnational Policing, Den Haag: Eleven International Publishing. Droutsas, Dimitrios, 2013: Report on the proposal for a directive of the European Parliament and the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data, Brussels: European Parliament, Committee on Civil Liberties, Justice and Home Affairs. European Commission, 2012: Proposal for a Directive of the European Parliament and the Council on the protection of individuals with regard to the processing of personal data by competent authorities for the purposes of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and the free movement of such data, Brussels: COM(2012) 10 final. European Council, 1999: Tampere European Council 15 and 16 October Presidency Conclusions, Tampere (online: tam_en.htm#c (accessed )). European Council, 2005: The Hague Programme: Strengthening Freedom, Security and Justice in the European Union, Official Journal EU C 53 of

23 Hartmut Aden European Council, 2010: The Stockholm Programme an open and secure Europe serving and protecting citizens, OJ EU C 115 of Hufnagel, Saskia, 2013: Policing Cooperation Across Borders. Comparative Perspectives on Law Enforcement within the EU and Australia, London: Ashgate. Kaunert, Christian/Léonard, Sarah (eds.), 2013: European Security, Terrorism and Intelligence. Tackling New Security Challenges in Europe, Basingstoke (UK) and New York: Palgrave Macmillan. Occhipinti, John D., 2003: The Politics of EU Police Cooperation. Toward a European FBI?, Boulder, Colorado: Lynn Rienner. 22

24 Part 1: Police cooperation in the European Union before and after the Treaty of Lisbon: historical, political and legal framework

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26 Revolution or evolution through the Treaty of Lisbon: police cooperation in Europe in a broader historical context Cyrille Fijnaut This paper provides an overall picture of the historical significance of the Treaty of Lisbon for police cooperation between the Member States of the European Union (EU). We begin by briefly reviewing the history of this form of interstate cooperation from the French Revolution to the First World War. On the one hand, we focus on the different forms that international police cooperation took in the course of the nineteenth century; on the other, we discuss the pressure from various quarters to institutionalise such cooperation at European level. By way of example, we look at the establishment of the Internationale Kriminalpolizeiliche Kommission in 1923, and its demise as part of Berlin s Reichssicherheitshauptamt during the Second World War. To balance out this sad history, we also consider the cautious revival of Interpol after the War. Our account continues with a discussion of the specific background of the Treaty of Lisbon, which we divide into three parts. The first part covers the original but secret cooperation organised by the Member States of the European Economic Community (EEC) in 1975 to combat the many different forms of political violence that they faced some more than others; some directly and others indirectly. The second part looks at initiatives taken under the 1990 and 1995 Schengen treaties and the 1992 Treaty on European Union (also known as the Maastricht Treaty) to enhance not only police cooperation between the Member States in border regions but also cooperation between their law enforcement authorities at national and international level. The third part consists of a brief discussion of the impact on police cooperation of successive amendments to the Treaty on European Union (Treaty of Amsterdam in 1997 and Treaty of Nice 2001) and of the proposed Constitution for Europe (2004) between 1992 and We look in particular at the policerelated aspects of the Tampere (1999) and Hague (2005) Programmes. Finally, this paper discusses the provisions of the 2010 Treaty of Lisbon. Specifically, it looks at the provisions of the Treaty on the Functioning of the European Union (the amended Treaty Establishing the European Economic 25

27 Cyrille Fijnaut Community) in relation to police cooperation in the Union. The obvious question that we address is whether and, if so, in what respect and to what extent this Treaty can be regarded as a radical departure in the history of police cooperation in Europe. To fully answer this question, we also examine the accompanying policy plans the Stockholm Programme (2010) and the Internal Security Strategy (2010) in order to consider the extent to which the Union s Member States are taking advantage of the opportunities offered by the Treaty for closer or broader police cooperation. 1. The early history of police cooperation in Europe 1.1 Gradual improvement and reinforcement of cross-border police cooperation before the First World War Cross-border police cooperation is certainly nothing new in Europe. Back in the eighteenth century, law enforcement officials in separate jurisdictions (working at times with the judicial authorities) would often join forces in the fight against widespread banditry, working together to round up suspected gang members and bring those convicted of crimes to justice. When French rule came to an end in 1815, however, this form of interstate cooperation was reformed in three important ways. First, we must remember that law enforcement cooperation in the nineteenth century continued to be based on practices established in the eighteenth century. In other words, law enforcement officials worked on a personal basis with their counterparts across the border, whether or not they had been authorised to do so by the judicial or government authorities. Improvements in transport (trains, boats) seem to have widened the geographical scale of this personal form of cooperation, however, making it more multinational in nature. A famous example is Wilhelm Stieber, who became Polizeirat in Berlin in the tumultuous year of 1848 and by 1851 was head of the Kriminalpolizei there. Stieber had close relationships with chiefs of police throughout Europe, but he also visited the capitals of other countries when necessary to gather intelligence (Stieber 1981; Auerbach 1884; Fijnaut 2007). Second, in some cases personal cross-border cooperation between the law enforcement services of two or more countries became increasingly structural in nature. One good example is the Zentraluntersuchungskommission, founded in Mainz in 1819 by the members of the German Confederation at Prussia s urging, and its successor, the Polizeiverein, which began to operate in 1850 as a unified police information centre for the German and German- 26