Summer school 2017 giannakoula _european agenda on security

European Agenda on Security
“Financial crime, corruption and money laundering: European and
international perspectives”
Summer School
Thessaloniki 5-13/7/2017

“Financial crime, corruption and money laundering:
European and international perspectives”
•European Agenda on Security
 A programme for EU criminal law
•Document of the Commission - adopted in 2015
 COM 2015(185) final
•EP: resolution of 9 July 2015 on the European Agenda
on Security (2015/2697(RSP)), P8_TA-PROV(2015)0269
•Council of EU: on 15-16.7.2015 (9934/15) “Draft
Council conclusions on the development of a renewed
European Union Internal Security Strategy” (9798/15)
12/7/2017Dr.jur.AthinaGiannakoula
2

• Structure:
I. The general mission of the Agenda
II. Key principles
III. Pillars of the EU action
IV. Areas of crime the EU needs to address as a
priority.
3

• Security:
 Article 6 Charter of Fundamental Rights: “Everyone
has the right to liberty and security of person.”
 “Area of freedom, security and justice” - 67(3) TFEU
The Union shall endeavour to ensure a high level of security through
measures to prevent and combat crime, racism and xenophobia, and
through measures for coordination and cooperation between police and
judicial authorities and other competent authorities, as well as through
the mutual recognition of judgments in criminal matters and, if necessary,
through the approximation of criminal laws.
- 83 organised crime, money laundering, corruption/fraud
4

“The European Union aims to ensure that people live in an
area of freedom, security and justice, without internal
frontiers. Europeans need to feel confident that, wherever
they move within Europe, their freedom and their security
are well protected, in full compliance with the Union's
values, including the rule of law and fundamental rights”.
“Security and respect for fundamental rights are not
conflicting aims, but consistent and complementary policy
objectives”;
 the notion of security appears to include protection not
only against crime, but against “state” authority as well.
5

•This aspect of security is not often addressed in the EU.
 Opinion of the Committee of the Regions on 'Crime and
Safety in Cities‘: “The question of public trust and confidence
in the authorities responsible for safety and security also has
to be addressed. When an individual has a bad experience
with the authorities, there are serious repercussions in terms
of trust and confidence”.
 EP resolution on the Agenda: “in order for citizens to have
more confidence in security policies, the EU institutions and
agencies and the Member States should ensure transparency,
accountability and democratic control in the process of policy
development and implementation”.
6

II. Key principles
“The Agenda sets out a shared approach for the EU
and its Member States that is comprehensive, results-
oriented and realistic. To maximise the benefits of
existing EU measures and, where necessary, deliver
new and complementary actions, all actors involved
have to work together based on five key principles”
7

II. Key principles
1) we need to ensure full compliance with fundamental rights.
Security and respect for fundamental rights are not conflicting
aims, but consistent and complementary policy objectives.
The Union's approach is based on the common democratic
values of our open societies, including the rule of law, and
must respect and promote fundamental rights (Charter).
All security measures must comply with the principles of
necessity, proportionality and legality, with appropriate
safeguards to ensure accountability and judicial redress.
The impact of any new initiative on free movement and the
protection of personal data must be fully in line with the
proportionality principle, and fundamental rights. This is a
shared responsibility for all EU and Member State actors. …
8

II. Key principles
2) we need more transparency, accountability and democratic
control, to give citizens confidence.
The European Parliament has taken up its full role as co-
legislator, ensuring democratic oversight.
The role of national parliaments in the area of freedom,
security and justice is reflected in the Commission's wider
commitment to a renewed political dialogue with national
parliaments. …
These “principles” are very important for criminal law
 CRIMINAL LAW = THE HARSHEST MECHANISM THE STATES APPLY
TO ACHIEVE SOCIAL CONTROL
 DEMOCRATIC LEGITIMACY & FUNDAMENTAL RIGHTS PROTECTION
9

II. Key principles
3) we need to ensure better application and implementation of
existing EU legal instruments.
… fully exploit existing tools for information sharing and foster
cross-border operational cooperation between authorities.
4) we need a joined-up inter-agency & cross-sectorial approach
- ensuring security is to be pursued by measures taken within
the area of freedom, security and justice, and by “special actions”
performed “in a wide range of EU policies” (finance, customs,
education, maritime security policy, energy, etc.).
5) we need to bring together all internal and external
dimensions of security = international cooperation
 Broad scope of security, “superior” objective = it
penetrates other EU policies and gain from them
10

IV. Areas of crime to be addressed as a priority
 2015-2020: this framework should be deployed to
address three main priorities for European security,
while it is adaptable to other major threats that
might evolve in future.
i. Terrorism and radicalisation;
ii. Serious and organised cross-border crime;
iii. Cybercrime.
11

 Cybercrime: an ever-growing threat to citizens'
fundamental rights and to the economy, as well, as to
the development of a successful Digital Single
Market. As commerce and banking shift online,
cybercrime can represent a huge potential gain to
criminals and a huge potential loss to citizens.
Cybercriminals can act from outside the Union to
harm critical infrastructures and simultaneously target
a large number of victims across Member States, with
minimum effort and risk…
12

 2001 framework decision combating fraud and
counterfeiting of non-cash means of payments no
longer reflects today’s realities and new challenges such
as virtual currencies and mobile payment. The
Commission will assess the level of implementation of
the current legislation, consult relevant stakeholders
and assess the need for further measures.
Gathering electronic evidence in real time from other
jurisdictions on issues like owners of IP addresses or
other e-evidence, and ensuring its admissibility in
court, are key issues.
13

 Organised crime is finding new avenues to operate,
and new ways to escape detection. There are huge
human, social and economic costs – from crimes such
as trafficking in human beings, … financial, economic
and environmental crime. … Organised crime also
feeds terrorism and cybercrime through channels like
the supply of weapons, financing through drug
smuggling, and the infiltration of financial markets…
14

The primary goal of organised crime is profit. Law
enforcement must therefore have the capacity to turn
the spotlight on the finance of organised crime, often
inherently linked to corruption, fraud, counterfeiting
and smuggling. International criminal networks use
legal business structures to conceal the source of their
profits, so action is needed to address the infiltration of
the licit economy by organised crime.
Anti-Money Laundering legislation; mutual
recognition of freezing and confiscation orders, etc.
15

 Terrorism
 Directive (EU) 2015/849 on the prevention of
the use of the financial system for the purposes
of money laundering or terrorist financing
 Financial sanctions & restrictions to persons
connected to terrorist activity (e.g. Regulation
(EU) No 267/2012)
 Financing terrorism – Directive (EU) 2017/541
16

Directive (EU) 2017/541 – Art. 11: Terrorist financing
1. MSs shall take the necessary measures to ensure
that providing or collecting funds, by any means,
directly or indirectly, with the intention that they be
used, or in the knowledge that they are to be used, in
full or in part, to commit, or to contribute to the
commission of, any of the offences referred to in
Articles 3 to 10 is punishable as a criminal offence
when committed intentionally.
17

Article 3 – Terrorist offences
1. … intentional acts, as defined as offences under national law, which, given
their nature or context, may seriously damage a country or an international
organisation … where committed with one of the aims listed in paragraph 2:
(a) attacks upon a person’s life which may cause death;
(b) attacks upon the physical integrity of a person;
(c) kidnapping or hostage-taking; …
2. The aims referred to in paragraph 1 are:
(a) seriously intimidating a population;
(b) unduly compelling a government or an international organisation to
perform or abstain from performing any act;
(c) seriously destabilising or destroying the fundamental political,
constitutional, economic or social structures of a country or an international
organisation.
18

Article 4 – Offences relating to a terrorist group
Member States shall take the necessary measures to ensure that the following
acts, when committed intentionally, are punishable as a criminal offence:
(a) directing a terrorist group;
(b) participating in the activities of a terrorist group, including by supplying
information or material resources, or by funding its activities in any way, with
knowledge of the fact that such participation will contribute to the criminal
activities of the terrorist group.
Article 5 – Public provocation to commit a terrorist offence
Member States shall take the necessary measures to ensure that the distribution,
or otherwise making available by any means, whether online or offline, of a
message to the public, with the intent to incite the commission of one of the
offences listed in points (a) to (i) of Article 3(1), where such conduct, directly or
indirectly, such as by the glorification of terrorist acts, advocates the commission of
terrorist offences, thereby causing a danger that one or more such offences may
be committed, is punishable as a criminal offence when committed intentionally.
19

Article 6 – Recruitment for terrorism
Member States shall take the necessary measures to ensure that
soliciting another person to commit or contribute to the commission of
one of the offences listed in points (a) to (i) of Article 3(1), or in Article
4 is punishable as a criminal offence when committed intentionally.
Article 7 – Providing training for terrorism
Member States shall take the necessary measures to ensure that
providing instruction on the making or use of explosives, firearms or
other weapons or noxious or hazardous substances, or on other specific
methods or techniques, for the purpose of committing, or contributing
to the commission of, one of the offences listed in points (a) to (i) of
Article 3(1), knowing that the skills provided are intended to be used
for this purpose, is punishable as a criminal offence when committed
intentionally.
20

Article 8 – Receiving training for terrorism
Member States shall take the necessary measures to ensure that receiving
instruction on the making or use of explosives, firearms or other weapons or
noxious or hazardous substances, or on other specific methods or techniques,
for the purpose of committing, or contributing to the commission of, one of
the offences listed in points (a) to (i) of Article 3(1) is punishable as a criminal
offence when committed intentionally.
Article 9 – Travelling for the purpose of terrorism
1. Each Member State shall take the necessary measures to ensure that
travelling to a country other than that Member State for the purpose of
committing, or contributing to the commission of, a terrorist offence *…+, for
the purpose of the participation in the activities of a terrorist group with
knowledge of the fact that such participation will contribute to the criminal
activities of such a group *…+, or for the purpose of the providing or receiving
of training for terrorism *…+ is punishable as a criminal offence when
committed intentionally.
21

…
(a) travelling to that Member State for the purpose of committing, or contributing
to the commission of, a terrorist offence *…+, for the purpose of the participation in
the activities of a terrorist group with knowledge of the fact that such participation
will contribute to the criminal activities of such a group *…+, or for the purpose of
the providing or receiving of training for terrorism *…+; or
(b) preparatory acts undertaken by a person entering that Member State with the
intention to commit, or contribute to the commission of, a terrorist offence as
referred to in Article 3.
Article 10 – Organising or otherwise facilitating travelling for
the purpose of terrorism
Member States shall take the necessary measures to ensure that any act of
organisation or facilitation that assists any person in travelling for the purpose of
terrorism, as referred to in Article 9(1) and point (a) of Article 9(2), knowing that
the assistance thus rendered is for that purpose, is punishable as a criminal offence
when committed intentionally.
22

III. Pillars of EU action
A.Better information exchange
B.Increased operational
cooperation
C.Supporting action
23

A. Better information exchange
 Schengen Information System /SIS – Alerts – more categories
may be added [https://ec.europa.eu/home-affairs/what-we-
do/policies/borders-and-visas/schengen-information-system_en]
 Interpol Database on Stolen and Lost Travel Documents /SLTD
– to be used in combination with SIS
[http://www.interpol.int/INTERPOL-expertise/Border-management/SLTD-
Database]
 Common Risk Indicators / CRIs (Commission and Frontex)
 Smart Borders Regulation – Entry/Exit System /EES
[https://ec.europa.eu/home-affairs/what-we-do/policies/borders-and-
visas/smart-borders_en]
24

 Anti-Fraud Information System /AFIS – not only for fraud, but
also for cross-border crime (e.g. drugs)
 Customs Advance Cargo Information System – dangerous
cargo entering / leaving the EU
 The Prüm framework – if realised, automated exchange of
fingerprints and DNA data
 Secure Information Exchange Network Application /SIENA –
Europol [https://www.europol.europa.eu/content/page/siena-1849]
 EU Passenger Name Record system /PNR – Directive (EU)
2016/681
25

 European Criminal Records Information System /ECRIS –
exchange of information regarding criminal records (not
satisfactory yet) [http://ec.europa.eu/justice/criminal/european-e-
justice/ecris/index_en.htm]
 European Police Record Index System /EPRIS – future
exchange of information regarding police records
 Maritime Common Information Sharing Environment /CISE
 Police and Customs Cooperation Centres / PCCCs (Schengen)
 Communications data – Directive annulled by ECJ
(proportionality breach – cases C-293/12 & C-594/12)
26

 General Data Protection Regulation - (EU) 2016/679
 Directive (EU) 2016/680 on the protection of natural
persons with regard to the processing of personal data by
competent authorities for the purposes of the prevention,
investigation, detection or prosecution of criminal
offences or the execution of criminal penalties
 Directive (EU) 2016/681 on the use of passenger name
record (PNR) data for the prevention, detection,
investigation and prosecution of terrorist offences and
serious crime
27

B. Increased operational cooperation
 Establishment of EPPO
 Better use of existing structures - Europol / Eurojust
MSs:
 EU Policy Cycle for serious and organised crime
[http://www.consilium.europa.eu/en/documents-
publications/publications/2015/eu-policy-cycle-tackle-organized-crime/]
 European Judicial Network / EJN [https://e-
justice.europa.eu/home.do?action=home&plang=en&init=true]
 Joint Investigation Teams / JITs
[https://www.europol.europa.eu/activities-services/joint-investigation-
teams]
28

B. Increased operational cooperation
 Joint Customs Operations / JCOs [http://ec.europa.eu/anti-
fraud/policy/joint-customs-operations-jco_en]
 Financial Intelligence Units / FIUs & Asset Recovery Offices /
AROs [https://ec.europa.eu/home-affairs/what-we-do/policies/organized-
crime-and-human-trafficking/confiscation-and-asset-recovery_en]
The only reference to protecting fundamental rights
in A & B is the one to data protection; enhancing
operational cooperation should have been linked to
respective provisions itself.
29

C. Supporting action
a. Training
(“the effectiveness of cooperation tools
relies on law enforcement officers in
Member States knowing how to use them”)
a. Funding
b. Research & Innovation
30

 Final observations
Two positive elements:
- Improving existing structures;
- Improving the ability of the competent
authorities to use existing instruments.
31

 Final observations – points of concern
1. The Agenda refers to the subjects of the right
to security by using various terms (“people”,
“Europeans”, “citizens”); the right is expressly
awarded to everyone based on Article 6 of the
Charter / distinguishing between people as to
the right to security would be a form of
discrimination;
32

2. Impressive catalogue of data collecting
agencies and processes; Preventive data
collection.
The European Parliament was especially
disapproving in its resolution, as it expressed
“its condemnation of measures entailing the
vast and systematic blanket collection of the
personal data of innocent people”.
33

3. Protection of human rights = data protection =
insufficient.
 Security under the Agenda appears to remain
a one-dimension notion, putting wait on
PREVENTING and combating crime.
However, the democratic character of the EU, as
drawn in the Treaties, needs to be constantly
confirmed by EU policies and actions.
34

Summer school 2017 giannakoula _european agenda on security

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