By SOPHIE DONOGHUE
BRUSSELS – Independent assessment of the EU’s 2008 legislation on organised crime considers it largely ineffective because its definition of the term is so broad that it is detrimental to legal certainty and the fight against organised criminal activity.
During a 17 September meeting of the European Parliament’s special committee on organised crime, corruption and money laundering (CRIM), Valsamis Mitsilegas, a researcher at Queen Mary, University of London) outlined the problems with the EU’s legislation but also its useful aspects, suggesting ways to strengthen EU legislation in the sector.
The EU’s “2008 Council Framework Decision on the Fight against Organised Crime” set out definitions of offences for involvement in a criminal organisation. It aims to harmonise the member states’ definitions of organized crimes and to lay down corresponding penalties for these offences. In his evaluation Mitsilegas examines to what extent the framework actually helps national courts combat the problem. His main points of criticism are that the Decision’s definition of organized crime is too broad to be workable, does not take into account the experience of individual member states and, finally, that the mandates of different EU agencies vis-à-vis organized crime are unclear. The framework urgently requires improvement, both in terms of its legal certainty and scope, he argues.
In his view the 2008 legislation attempts to reconcile two different objectives. One is to introduce a “specific offence” of participation in a criminal organisation, which is distinct from other, vaguer “association/membership” offences in domestic criminal justice systems. The other objective is to avoid a too rigid or narrow definition of organised crime in order to catch as many incidents as possible.
This results in a contradictory definition, which could to lead to “over criminalization”, since elements of a criminal organisation are defined too broadly according to criteria that are too flexible and ambiguous.
To improve the framework and make it effective, Mitsilegas recommends greater harmonisation of legal terms and procedures among the member states. This, he argues, is necessary to facilitate the smooth working of other aspect of European criminal law and should exploit the principle of mutual recognition among the EU27 in criminal matters.
The scope of powers and mandates for Eurojust and Europol also need clarifying, he said. Eurojust is the EU’s network of national judicial and prosecution authorities, while Europol connects national law enforcement authorities. For Mitsilegas, the definitions of organised crime across the 27 should be aligned with those of Europol and Eurojust for operational/threat assessment work. In addition, he counsels that any new proposal to tighten organized crime definitions should be preceded by a thorough assessment of how the existing Decision has been interpreted by the member states and their courts.
Meanwhile, the EP committee also heard results of a new study on the misuse of EU funds by organised crime by the Price Waterhouse Coopers consultancy. The study focuses on extent to which organised crime is defrauding the EU. According to Price Waterhouse Coopers the EU’s lack of an agreed universal definition of organised crime hinders the analysis of fraud itself.
The study posits that different working definitions of organised crime are used by different EU agencies. For example, Eurojust leans on the 2008 Framework Decision’s definition while Europol uses a “slightly altered’ definition. Moreover, the EU’s watchdog authority, the European Anti-Fraud Office (OLAF), and its European Court of Auditors (ECA) have no specific working definition for the term.
Among other things, the study concludes that it is virtually impossible to determine the extent of misuse of EU funds by organised crime because there is insufficient information exchanges between EU agencies and authorities due to confidentiality restrictions. It recommends that the 27 EU nations:
- focus on implementing a more uniform definition of organised crime’
- install uniform and permanent fraud-prevention procedures across EU institutions,
- better review the beneficiaries of EU funds by striving for stricter transparency and accountability.
But if, as the study claims, confidentiality rules are a main blockage to the exchange of fraud and organized crime data among OLAF, Europol, the Court of Auditors and others, then Europe is in serious trouble. It means huge amounts of public money will continue to be siphoned off into criminal pockets, whether “organized” pockets or not.
For confidentiality to prevent direct data exchanges between Europol and OLAF to identify possible matches of subjects and identifiers (telephone numbers, bank account numbers) across their respective criminal investigations is an absurd situation. Good news for criminal organisers.