Preparatory dossier for the interview with the former Director July 2018 General of DG H, Charles Elsen (1994-2004)

Council of the General Secretariat Directorate-General Communication and Information Directorate Information and Knowledge Management Knowledge Management Unit - Archives This dossier has been produced to prepare for the interview with Mr Elsen, highlighting:

- the biography of the personality

- key information on his political career, especially within the Council of the European Union

This document, structured on thematic blocks, has been prepared on the basis of the holdings preserved at the Archives of the Council of the EU, on bibliography and secondary sources.

The career of Mr. Charles Elsen has been reconstructed focussing on the key events of his function, defined on the basis of the sources available.

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1 BIOGRAPHY ______4

2 THE 1980S: SECTORAL COOPERATION, THE POMPIDOU, CELAD AND TREVI GROUPS, AND THE ______5

3 , THE CREATION OF DIRECTORATE GENERAL H, THE K4 COMMITTEE AND ______8

4 1997-1999 AMSTERDAM TREATY AND THE INTEGRATION OF THE SCHENGEN ACQUIS, FIRST FIVE YEAR JHA PROGRAMME ADOPTED AS THE TAMPERE PROGRAMME ______10

5 THE 2000s: 9 /11 THE DEVELOPMENT OF EUROJUST AND FRONTEX ______14

6 ELSEN’S COMPLEXIVE VISION OF HIS EXPERIENCE AS DIRECTOR GENERAL OF DG H ON THE COUNCIL AND ON THE FUTURE OF ______Error! Bookmark not defined.

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1 BIOGRAPHY

Mr Charles Elsen, was born on 5th March 1939 in Luxembourg.

He became civil servant at the Luxembourg Ministry of Justice in 1967, in quality of lawyer-one of the four working at the time at the ministry. In that period, the involvement of Elsen in European issues on behalf of Luxembourg was limited, mostly regarding some Benelux cases and at the International Court of The Hague.

The situation changed from the 1970s, with the emergence of two new phenomena: terrorism and drug trafficking, which had significant implications at national and European level. At national level, Elsen was tasked with following the related files, set up a crisis unit, and to contribute for the adoption of new legislation. At the European level, various committees were created to tackle the challenges in justice and security: the "Pompidou" group for the fight against drug trafficking in 1971 (which was intergovernmental and outside the scope of the Treaties), then the CELAD in 1989; and the "TREVI" group in 1975 for the fight against crime through the exchange of confidential information between European security services.

Elsen participated in the works of all of those groups, gradually getting involved in all the European initiatives which led to the cooperation in the sphere of Freedom, Security and Justice. He likewise took part in the preparation of the Schengen Agreement, another milestone of European cooperation1.

This cooperation began to be integrated in the European Union’s institutions when Elsen became the first Director-General in Directorate-General H – Justice and Home Affairs of the Council of the European Union (7th February 1994).

He kept the position until 2004 but continued some activities in the field in the first half of 2005 during Luxembourg’s EU Presidency.

1 Charles Elsen, ‘30 Years of Schengen-Challenges for the EU in times of crisis’, SOURCE conference, 17 December 2015.

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2 THE 1980S: SECTORAL COOPERATION, THE POMPIDOU, CELAD AND TREVI GROUPS, AND THE SCHENGEN AGREEMENT

The period before the Maastricht Treaty, from the early 1970s to 1993 saw the development of sectoral cooperation that produced in organizations and groups such as the Pompidou Group and the CELAD for drugs, TREVI group for the fight against terrorism, Political Cooperation (EPC) for judicial cooperation, the "ad hoc immigration group" for asylum and immigration, and the creation of the group of Free Movement Coordinators of People in 1988. All those initiatives prefigured the cooperation established by the in the third pillar.

The first instance of a on the basis of coordinated, collective European action in the field of justice and security (against drugs, specifically) was originated a suggestion from President Pompidou in 1969, which brought to what was to become known as the Pompidou Group, in 1971. Charles Elsen was a participant in the meetings that established the Group. The initial participants were the six EEC member states plus the United Kingdom, with new countries joining in as they accessed the EC, and forming a secretariat. In 1980 a partial agreement was signed with the , broadening the membership base to include states from outside of the EC. Still, notwithstanding the fact that the group worked on issues which were to be absorbed in the third pillar of the Maastricht treaty (repression and harmonisation of legislation) it was purely inter-governmental context and outside the .

In 1989, the French President François Mitterrand proposed an action plan to combat the escalating drugs problem in Europe. The basic idea was the creation of a drug monitoring centre dealing not only the social and health aspects, but also legal aspects, like trafficking and sanctioning. Therefore, an ad hoc political group, the CELAD (European Committee to Combat Drugs) was established with the participation of the national drug authorities of the Member States. CELAD drew up the first European Plan to Combat Drugs, made to structure coherent action against drugs at both national and Community level, which was adopted by the Council of Ministers of the European Union in Rome in December 1990.

The other coordinated European effort in this field was the TREVI group (created in 1975), and founded by Charles Elsen. TREVI was an intergovernmental network of national Ministers and officials from ministries of justice and the interior in the European Community set up by the in Rome 1–2 December 1975, and was named after either the place where the first TREVI meeting at the level of senior officials

5 was held (in Rome in 1976 where the Trevi Fountain is located), or is the acronym of Terrorisme, Radicalisme, Extrémisme et Violence Internationale

"The European Council adopted a proposal by the Prime Minister of the United Kingdom that Community Ministers for the Interior (or Ministers with similar responsibilities) should meet to discuss matters coming within their competence in particular with regard to law and order." - Office of the President of the European, Council Summary of the Conclusions of the Meeting of the European Council Held in Rome on 1 and 2 December 1975)

The creation of TREVI was prompted by several terrorist acts, most notably the hostage taking and subsequent massacre during the 1972 Olympic Games in Munich, and the inability of at that time to effectively assist the European countries in combatting terrorism. While TREVI was initially intended to coordinate effective counterterrorism responses among European governments, it slowly extended its remit to many other issues in cross border policing between the members of the European Community. The TREVI group ceased to exist when it was integrated into the so-called Justice and Home Affairs (JHA) pillar of the European Union (EU) upon the entry into force of the Treaty of Maastricht in 1992.

"M. ELSEN a tout d'abord Illustré les différences existant entre les activités du groupe TREVI et celles du CELAD. Il a Indiqué que le groupe TREVI s'occupe essentiellement des problèmes de répression, notamment dans l'optique de la mise en œuvre de mesures compensatoires par rapport á l'élimination des frontières internes en 1993. Dans ce contexte, a expliqué M. ELSEN, le groupe TREVI se penche sur les questions liées au trafic de la drogue notamment en s'appuyant sur une structure d'officiers de liaison, en considérant les suites de la ratification de la Convention de Vienne par les États Membres, en travaillant sur la mise en place d'un système d'information informatisé, en procédant á une analyse coordonnée du phénomène de la grande criminalité organisée, en négociant des accords entre États Membres, tel que celui sur le droit de poursuite. En revanche, a indiqué M. ELSEN, le CELAD constitue un groupe de

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coordination qui couvre tous les aspects de la lutte contre la drogue. Son plan d'action, approuvé par le Conseil européen de Rome, comporte en effet tout un éventail d'objectifs allant de la coordination au niveau des États Membres à la réduction de la demande, à la répression du trafic illicite, à la coordination internationale, à la création d'un Observatoire européen sur le phénomène de la drogue. M. ELSEN a par ailleurs insisté sur l'importance de la ratification de la Convention de Vienne par tous les États Membres de la Communauté ainsi que sur la coordination avec la nouvelle structure créée auprès de l'ONU" - Parlement européen commission d'enquête sur la diffusion dans les pays de la Communauté de la criminalité organisée liée au trafic de la drogue, Compte rendu sommaire1. Échange de vues avec M. ELSEN, président en exercice du CELAD (Comité Européen de Lutte Anti-Drogue)

The first real cooperation in security and justice was a consequence of the Schengen Agreement, which was signed on 14th June 1985 by Belgium, the , Luxembourg, Germany and France. The Schengen Agreement foresaw a gradual abolition of common border controls in return of a "a coordinated system of countervailing measures" regarding a common visa, reinforced judicial cooperation, common rules of entry into the territory, the creation of the Schengen Information System etc. This resulted in turn into the Schengen Implementing Convention of 19 June 1990, which opened up the EU's internal borders and established the . The aim was to “police” the Schengen area by abolishing checks at their common borders. The Convention covered the abolition of checks at internal borders and the movement of people (Title II) and covered visa, asylum and aliens, while Title III covered Police and Security (ie: mutual assistance, extradition, drugs and firearms). Title IV covered the role of the Schengen Information System (SIS) database which became operational in 1995.

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3 MAASTRICHT TREATY, THE CREATION OF DIRECTORATE GENERAL H, THE K4 COMMITTEE AND EUROPOL

The getting together of all those initiatives at European institutional level was the negotiation and then entry into force of the Maastricht Treaty (respectively in 1992 and 1993). The Maastricht Treaty introduced the three pillar system, including a pillar on judicial and police cooperation - the third pillar, known as "Justice and Home Affairs" (JHA). The Justice and Home Affairs pillar was organised on an intergovernmental basis with somewhat limited agency of the EU supranational institutions, nonetheless the system increased coherency in the action of all the European institutions compared to the past: the Commission, with a right of initiative shared with the Member States, the European Parliament, which had to be consulted according to Article K6 of the then Treaty of European Union (Maastricht version), the Council and its Secretariat, and the European Court of Justice, which was given a certain limited jurisdiction in respect of Conventions.

In the specific, The Justice and Home Affairs Council was created with a number of Working Parties reporting to the K4 Committee (A committee, named after article K4 of the Maastricht Treaty, comprised of senior national officials and constituting three steering boards on Immigration and Asylum; Security, Law enforcement, Police and Customs; Judicial Cooperation. The Committee coordinated the activities of the former intergovernmental groups such as TREVI) before measures were sent to the Council for adoption. A new Directorate-General dealing with JHA was created within the General Secretariat of the Council of the European Union. Charles Elsen was appointed at the head and began his duties on March 1, 1994.

His first task was to set up a Directorate proper and to face the first challenges in its functioning: the unanimity rule, the right of initiative of the States which prevented a real follow-up of the files because of the changing priorities at the discretion of the presidencies of the Council, as well as the committees of experts and the problems of language complicated the task. Moreover there were broader problems inherent to the third pillar conception such as the inappropriateness of the legal instruments and the lack of clarity in the definition of the ‘matters of common interest’ (including judicial cooperation in criminal matters and police cooperation). Nevertheless several achievements were reached, as for instance the convention that gave police co-operation a legal basis and which led to the creation of Europol. Europol was enshrined in Article K.1, section 9 of the Maastricht Treaty was signed:

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“Member States shall regard the following areas as matters of common interest: [...] police cooperation for the purposes of preventing and combatting terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol)”.

Europol was first de facto organised provisionally in 1993 as the Europol Drugs Unit (EDU) in Strasbourg. The Europol Convention was signed on 26 July 1995 in Brussels and came into force on 1 October 1998 after being ratified by all the Member States and the Office commenced its full activities on 1 July 1999.

The Amsterdam Treaty of 1997 represented a much more decisive step in the development of judicial and police cooperation inside the European Union’s institutions.

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4 1997-1999 AMSTERDAM TREATY AND THE INTEGRATION OF THE SCHENGEN ACQUIS, FIRST FIVE YEAR JHA PROGRAMME ADOPTED AS THE TAMPERE PROGRAMME

In the of 1986 Member States expressed commitment to undertake the dismantling of border controls among themselves within the EC Treaty. Nonetheless, the reluctance of the EC Member States to be bound by ‘hard’ EC law in the abolition of intra-Member State border controls led to the creation of the Schengen regime through intergovernmental agreements outside the Communities, in a weaker legal framework known as the ‘Schengen cooperation’.

Mr Elsen closely followed the Schengen Agreement during his professional career; it was in fact Luxembourg that chose the place for the signature of the agreement. He successively took care of its implementation and its integration into the Amsterdam Treaty.

Nonetheless he was critical of the agreements, which he saw as "the most primitive form of a treaty" which was successful only because the 5 Member States knew each other well and had legal and administrative systems very close. He rather interpreted the Schengen regime as a laboratory:

“The Schengen founders would have not worked in vain, but they would have showed a possible and feasible way, set up a laboratory for Europe and, thus, given a remarkable push forward to the construction of Europe” . - Charles Elsen, quoted in W. van der Rijt, “Le fonctionnement des institutions Schengen: ‘Pragmatisme, toujours’”, in Monica den Boer (ed.), Schengen’s Final Days? The Incorporation of Schengen into the New TEU, External Borders and Information Systems, European Institute of Public Administration, Maastricht, 1998, p. 65.

Schengen cooperation developed outside the EU structures until the Amsterdam Treaty (signed in 1997 and entered in force 1999). The Amsterdam Treaty integrated Schengen into the framework of the European Union, as the so called ‘Schengen acquis’ became acquis of the EU.

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With the Amsterdam Treaty of May 1999, a more decisive step was taken in the development of police and judicial cooperation. It brought judicial cooperation in civil matters and immigration and asylum policy within the sphere of the EC Treaty, from the Third to the First Pillar, which meant stronger First Pillar instruments, and judicial and democratic review extended by increasing the roles of the European Court of Justice and the European Parliament, though unanimity rule was retained. More effective legal instruments were created inside the Third Pillar, including the ‘Decision’ and the ‘Framework Decision’; these instruments were binding on the Member States and proved to be more efficient than the Maastricht-type ‘Joint Actions’ and ‘Conventions’. Conventions remained a possible tool, but they could enter into force subject to ratification by a majority of member states, replacing the unanimity rule at that stage. Most importantly, however, the idea of an area of freedom, security and justice was introduced in the Treaty, which stated that the EU must "maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime."

Title VI was renamed ‘provisions on police and judicial cooperation in criminal matters’ (instead of cooperation in the fields of justice and home affairs). Hence, police and judicial cooperation “ceased to be matters merely of ‘common interest’ and became main objectives of the European Union”. The so-called ‘Schengen Protocol’ annexed to the Amsterdam Treaty, the Schengen acquis – established mainly under the two Schengen Agreements and a whole range of decisions taken by the Schengen ministers – was integrated into the European Union. Therefore Schengen cooperation, which had so far been intergovernmental cooperation among several (but not all) EU Member States, ceased to be an independent activity.

Instead, its achievements – which in many fields went beyond those of the European Union, for instance ‘hot pursuit’ and the Schengen Information System (SIS) in police cooperation matters – were integrated into the European Union acquis. The Treaty, in the opinion of Charles Elsen, constituted a crucial qualitative leap forward.

In the course of Elsen’s mandate as a Director General of DG H, the Secretariat strengthened considerably its powers in the area of Justice and Home Affairs (JHA), the third pillar of the Union. The DG was composed of a small team of senior officials, probably the most specialized available in Europe, provided with high administrative resources, relatively independent and enjoying the confidence of the Secretary General.

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Thanks to its administrative strength, the trust capital accumulated by the Secretariat before the Presidency and the flexibility of the administrative organization of the Secretariat, the GSC has seized some issues through the Presidency, taking advantage of the almost total absence of Commission in proposing JHA initiatives (the Commission being diffident of "intergovernmental" sectors fearing to legitimize a decision-making process and more generally an "intergovernmental" model of Europe, did not use its right of initiative until the partial communitarisation entered into force at the end of 1999). It was the Secretariat that took this vacant place by dispersing the formal right of initiative among the fifteen Member States.

Likewise the Secretariat held initiative over most immigration and asylum measures during the “transitional period” of five years after which the European Parliament was to be given the powers of co-decision. The effectiveness of the Secretariat’s action was evident in the case of Tampere European Council in October 1999.

In the wake of the adoption of the Treaty of Amsterdam, the Justice and Home Affairs Council adopted, in Vienna at the end of 1998 an ‘Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice’. This Action Plan, often referred to as the Vienna Action Plan, set out priorities and measures to be taken in order to achieve the area of freedom, security and justice within the EU. Shortly after, on 15 and 16 October 1999, the European Council held In Tampere a special meeting on the creation of an area of freedom, security and justice. Recognising the importance this treaty would have on Justice and Home Affairs cooperation, the incoming Finnish Presidency decided to devote the entire European Council to be held in Tampere to this item. It was only the second time in the history of the European Union that a summit was devoted to one single item. Both the Commission and the Council Secretariat were closely involved in the preparations, and Charles Elsen, as Director-General of the Council Secretariat had a central role in the preparation of the Summit.

In Tampere a number of concrete objectives were attained. The principle of mutual recognition was adopted as the cornerstone principle of police and judicial cooperation in criminal matters, through the adoption of legislation intended to approximate laws and regulations of the Member States (the harmonization of laws, such as the definition of main elements of crimes, and of minimum sanctions was limited in the first instance to sectors of particular relevance such as financial crimes, drugs trafficking, trafficking in human beings, sexual exploitation of children, high-tech crime and environmental crime);

12 through the adoption of measures based on the principle of mutual recognition of judicial and extrajudicial decisions; and through the facilitation of executive measures promoting operational cooperation between relevant national judicial and police authorities, either directly or through agencies such as Europol and Eurojust.

Other remarkable results were the replacement of the formal extradition procedure by a simple transfer of persons (which successively expanded as European Arrest Warrant), and the creation of Eurojust (an unit composed of prosecutors and magistrates whose mission is "to contribute to a good coordination between the national authorities responsible for prosecution and to assist in the investigation of organized crime cases").

The presidency conclusions provided further political guidelines and concrete objectives for action that had to be achieved within the following five years, and it was Charles Elsen who took the initiative to prepare and “sell” the first five year JHA programme adopted as the Tampere Programme (1999-2004).

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5 THE 2000s: 9 /11 THE DEVELOPMENT OF EUROJUST AND FRONTEX

The Tampere programme, designed for five years, expired at the end of 2004. Not all objectives of the Tampere plan have been achieved, as unexpected events had an influence on the programme.

This is most prominently shown by the actions that have been taken in the wake of the terrorist attacks in New York, when the Belgian Presidency of the Council set aside completely its own work programme and concentrated instead on a very large programme of anti-terrorist measures. This on helped to push forward measures such as a Framework Decision on combating terrorism and the European Arrest Warrant (EAW) Framework Decision, which went well beyond Tampere’s ambitions, as it dealt with terrorist activities. The latter replaced the old extradition procedure and was based on the concept of recognition and mutual trust between the courts of the Member States, allowing extradition proceedings to no longer go through the executive but to be dealt with directly between courts. The European warrant also allowed the extradition of nationals for several offenses for which a single incrimination is possible and recognized as valid for the entire European Union. According to Charles Elsen, that was one of the most important achievements of Tampere.

The terrorist attacks also demonstrated strongly the need for international cooperation, speeding the development of Eurojust. On 14 December 2000, on the initiative of Portugal, France, Sweden and Belgium, a precursor organization called Pro-Eurojust. The Council established that it should be composed of national prosecutors, magistrates, or police officers of equivalent competence, detached from each Member State according to their own legal systems. Its purpose was to be a sounding board of prosecutors from all Member States, where Eurojust’s principles would be tried and tested.

Pro-Eurojust formally started work on 1 March 2001 under the Swedish Presidency of the European Union. The enshrined Eurojust in the EU treaties and by Council Decision 2002/187/JHA, Eurojust was established as a judicial coordination unit. In the first half of 2002, during the Spanish Presidency of the EU, important milestones were reached: the Eurojust Decision was published on 28 February, the budget was released in May, and the Rules of Procedure were agreed upon in June. On 29 April 2003, Eurojust moved to its seat in The Hague. Shortly after its establishment, Eurojust faced the

14 challenge of EU enlargement: in May 2004, ten new National Members joined the College, and in January2007, two more were added, bringing the total number to 27.

Several other agencies or organizations were put in place in this period – Europol, Eurojust, Cepol, Chiefs of Police Task Force. Others were improved, like the European Judicial Network. In 2000 the European Police College was created along with numerous conventions and agreements. and 2002 Eurojust, Eurodac, the European Judicial Network in Civil and Commercial Matters (EJNCC) and European Crime Prevention Network (EUCPN) were established. In 2004 the EU appointed an anti-terrorism coordinator in response to the 2004 Madrid train bombings and the European Arrest Warrant (agreed in 2002) entered into force.

The Tampere program was replaced by at the European Council of 4 and 5 November 2004, by a new multi-annual programme, the Hague Programme, which set further objectives to be achieved between 2005 and 2010. The action plan was based on the new Constitutional Treaty, which ended up not being ratified. Despite this, some core points have progressed anyway, such as the concepts of evaluation or availability of information.

In the field of police cooperation, the latter allowed easier access to information from one country by another Member State. In the field of police and judicial cooperation in criminal matters has focused primarily on organized crime, terrorism and drug trafficking, police cooperation through Europol and the elimination of obstacles to the mutual recognition and enforcement of judicial decisions.

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