by Hugo Brady

Governments increasingly use Europol, the EU’s police office, and Eurojust - its prosecution unit - to investigate criminals operating across borders and bring them to justice. At Europol, national police and crime analysts gather intelligence on crimes ranging from drug trafficking to counterfeiting and terrorism. Eurojust mostly helps prosecute cases across national borders within the EU. All 27 member-states send police and prosecutors to the offices of Europol and Eurojust, each located separately in The Hague.

In 2008, new EU legislation is planned to give Europol wider investigative powers, cut bureaucracy, and give the body more freedom to gather intelligence and information like DNA data. It will also report yearly to the European Parliament and brief national parliaments, making it somewhat more accountable. But the new-look Europol will not be able to arrest people or start investigations independently of the member-states.

Plans are afoot to make Eurojust work better, too. Governments are pondering how best to guarantee the national prosecutors seconded to it have proper powers from their home authorities to be able to work effectively at international level. All Eurojust prosecutors should be invested with a basic level of powers, including powers to issue formal requests for evidence and authorise surveillance, phone taps and undercover operations. This is not currently the case and hampers Eurojust’s considerable potential: the unit’s caseload inceases by an average of 40 per cent yearly.

Such reforms are useful. But they fail to address a basic problem of cross-border crime fighting. Prosecutors and police across the EU have differing roles and powers and this is often an obstacle to effective co-operation between counterparts. In some countries police investigate but also have quasi-judicial powers; in others, prosecutors do police work as well as bring cases to trial. Take surveillance. Police at Europol can be unable to track a drug delivery properly from the Balkans to the Nordics because in some countries only the prosecutor can organise a cross-border surveillance operation. As a result, police can begin to doubt that cross-border co-operation is worth the hassle and uncertainty.

A radical way to address such problems would be to merge Europol and Eurojust into a single European law enforcement co-ordination body. A single body could ensure more coherent co-operation across the EU, whatever the division of labour between national police and prosecutors. It would also mean simpler procedures for dealing with intelligence, less duplication of efforts against the same criminals and better follow-through from investigation to prosecution in cross-border cases. Most member-states would be dead against such a move, however. Britain and Ireland do not want prosecutors to oversee the work of their police, even if only at European level. Others – like Spain and France – fear a merger that could mean the reverse: police investigating cases without the say-so of prosecutors.

But these difficult political issues could be circumvented and better co-ordination ensured by a more modest move. Europol and Eurojust should be re-located to the same building and some of their resources and facilities amalgamated. Each member-state would have a single national office made up of both police and prosecutors without any change to national hierarchies. Eurojust and Europol could simplfy data protection requirements by drawing up a single data protection regime for sharing information across borders to replace the current separate procedures. And intelligence-sharing could be made more secure and cost-effective with a common IT system.

How well Europol and Eurojust co-operate matters. In November 2007, a joint Europol-Eurojust operation (Operation Koala) destroyed a child pornography network that had disguised itself as a respectable international child modeling agency. Based on high quality information, Europol helped national police to identify customers buying illegal and abusive videos of children filmed in Belgium and the Netherlands. Eurojust helped co-ordinate judges and police from 28 countries that had with some connection with the network. As a result, multiple arrests were made – carried out simultaneously in several countries – and thousands of computers, videos and photographs seized as evidence.

However cases like Koala, where the two bodies achieve a high-level of co-operation, are the exception rather than the rule. According to one prosecutor, police and prosecutors working together on cross-border investigations “is the kind of thing that should be our bread and butter but unfortunately we’re not there yet.” Co-location might seem too basic a solution to boost co-operation. But police attest that Europol’s main value is the simple reality of having colleagues from 27 European countries working together on the same corridor in The Hague, an unparalleled resource in day-to-day police co-operation. The addition of prosecutors to this mix would produce a powerful synergy in law enforcement co-operation.

Hugo Brady is a research fellow at the Centre for European Reform.