Panel: Spain in Europe. 40 years of the Spanish Constitution Communication’s title: Spain’s key role on the EU Policy Cycle to tackle Serious and Organized Crime towards a safer Union. Author: Mr. Víctor García Cuenca. 2nd Lieutenant. Ministry of Interior. Guardia Civil. Constitutional framework for in Spain and the access to the EU. By way of introduction, Spanish current Constitution comes from 1978, when it entered into force. Article 104 therein states that “Law Enforcement forces, under the Government’s dependency, will have as a mission to protect the freedom of rights and liberty, and guarantee citizen security”. This milestone meant a new democratic era in this country, in which Law Enforcement would have an important role in protecting the citizenship as well as enforcing the Law. Likewise, article 126 in the then recently approved Constitution, reflected that “Criminal will depend upon Judiciary and Prosecutor office, as for their functions to know about crimes, detect and ensure the perpetrator, according to the terms of Law1”. Therefore, within national Law Enforcement bodies, an especially independent branch of police officers was made up, so as to make it possible to enforce Criminal Law. As a consequence, a differentiation was made between criminal police and administrative police, the latter depending upon the Government, with the duty of mainly ensuring compliance with Administrative Law2. However, only a few years after the Constitution was approved, the political and social landscape changed in a considerable manner. Firstly, in 1986, the instrument through which Spain became part of the currently named European Union3 came into force. Even though at that time there was a lot to do when it comes to the EU home affairs policy and probably nowadays there is still an important path to walk along, it represented a first step in a supranational regional area. Secondly, after the first steps taken in 19854 to abolish internal borders, creating the so- called “Schengen area”, in 19905 the Convention implementing the Schengen agreement came into force. Spain boarded this train in 19916, which meant not only the beginning of an area where freedom of movement for persons, goods, capitals and services (the so called “four liberties”) was guaranteed, but also, in criminal terms, it

1 In Spanish, the term “Criminal Police” is also known as “Judicial Police”. The translation was performed to make the text more suitable to International terminology. 2 This statement should be clarified more in-depth, because according to Organic Law 2/1986 in Spain, all police officers are considered generically speaking criminal police for the first steps of an investigation. However, especially sensitive cases have to be carried out by specialised units in charge of criminal matters only. 3 The Treaty concerning the accession of Spain was signed on the 12 June 1985 (published in the Official Journal of the EU on the 15 September 1985). At that time, the treaty addressed the accession to the European Economic Community and to the European Atomic Energy Community. 4 The first Schengen treaty was signed on 14 June 1985 in Schengen (Luxemburg) by 5 countries (, Germany, The Netherlands, Belgium and Luxemburg). 5 On 19 June 1990, a Convention was signed to concrete the implementation of the Schengen Agreement for all the then Parties. 6 Spain with joined this Convention on 25 June 1991. supposed a new concept for Organised Crime Groups (OCG) were able to undertake their activities without internal national borders, which definitely became a challenge for all the EU Members. As a consequence, considering that the EU faced new risks against terrorism and Serious and Organized Crime (SOC) 7, “compensation measures” were needed, including a better and more holistic coordination amongst Law Enforcement agencies herein. Therefore, the European Police Office () was created in 19958, in order to enhance the police cooperation on criminal matters, providing the Members States with a central clearinghouse to coordinate national investigations with other countries, with a view on dismantling the more and more professional criminal networks. EU Policies on SOC from Maastricht to Lisbon Treaty. Before Lisbon Treaty arrived in 2009, the cooperation between Law Enforcement agencies on SOC was framed under the so-called “third pillar”, which developed the cooperation in the fields of Justice and Home Affairs (JHA). Under that pillars structure, the Union’s strategy to tackle SOC was very limited, depending in the majority unanimity upon the unanimous willingness for cooperation from the Member States in the area of freedom, security and justice. The pillars structure came to the EU with the Maastricht Treaty in 19939. Afterwards, several milestones had an important impact in the Union’s home affairs policy, by the creation of multi annual plans in this field, so as to enhance judicial and police cooperation. Firstly, in 1999 the Tampere European Council introduced, among other measures on this subject, a new concept of fighting criminal activities in the EU, calling for turning prevention into actions against OCG, within a unionwide strategy to counter crime10. Furthermore, Europol needed to increase its capacities, strengthening the reception of operational data and coordinating investigations, especially through the so-called Joint Investigation Teams”. Secondly, in November 2004 the European Council adopted a five-year action plan named “The Hague Programme”. This document addressed that, even though the result from Tampere European Council had not been as successful as they would have expected, “comprehensive and coordinated progress has been made”. Thus, considering the terrorist attacks in 2001 in the USA and 2003 in , the EU got to the commitment to a better protection of its citizens while keeping respect of fundamental freedoms and rights. Consequently, the main aim of The Hague Programme11 as regards SOC was “to fight organised cross-border crime and repress the threat of terrorism, to realise the potential of Europol and Eurojust, to carry further the mutual recognition of

7 SOC is normally used as acronym for “Serious and Organised Crime”. 8 Europol was created by the Council Act of 26 July 1995 drawing up the Convention based on Article K.3 of the Treaty on European Union, on the establishment of a European Police Office (Europol Convention) 9 The Amsterdam Treaty was signed in Maastricht on 7 February 1192, entering into force in 1993. 10 Conclusion 41 of the Presidency Conclusions. 11 “The Hague Programme: strengthening freedom, security and justice in the European Union” (2005/C 53/01). judicial decisions”. Besides, it was necessary to make use of the already created legal framework to better, quicker and easier setting up of Joint Investigation Teams in criminal matters12. Thirdly, in 2009, after the proper discussions in the JHA Council, the “Stockholm Programme13” was approved by the European Council, with the title “an open and secure Europe serving and protecting the citizen”. This text acknowledged Tampere and The Hague programmes, and the significant progress achieved by means of their policies, yet it was the time to further step up cooperation in a more coherent manner. This way, the EU agencies linked their SOC capacities by enhancing Europol and Eurojust among other measures, stating that they had “reached operational maturity”. Besides, the grounds for information exchange regarding criminal information or intelligence14 and automatic information exchange as for fingerprints, DNA and vehicle’s plate numbers15 had already been created. Thus, the next step would be to really make use of these legal instruments in a real cooperative environment. The Stockholm programme took advantage of the new legal framework provided by the recently in-force Lisbon Treaty, so as to request the Council and the Commission to “define a comprehensive EU internal security strategy” on the basis of several principles. Amongst them, it is worth highlighting the following ones16: - clarity on the division of tasks between the EU and the Member States, reflecting a shared vision of today's challenges, - reflection of a proactive and intelligence-led approach, - the need for a horizontal and cross-cutting approach […], - stringent cooperation between EU agencies, including further improving their information exchange, - the use of regional initiatives and regional cooperation, - the aim of making citizens aware of the importance of the Union’s work to protect them. As a result, the “Internal security strategy for the European Union: Towards a European security model” was approved by the European Council on 25 and 26 March 2010, under the Spanish Presidency of the EU Council of the first semester of 2010. Besides, it was demanded “an integrated approach where security professionals share a common culture, pool information as effectively as possible17”. Therefore, the European

12 Council Framework Decision 2002/465/JHA, of 13 June 2002, on joint investigation teams. 13 “The Stockholm Programme – An open and secure Europe serving and protecting the citizens” (2010/C 115/01). 14 Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union. 15 Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, so called “Prüm Decision. 16 Section 4.1. Stockholm Programme. 17 Section 4.2. Stockholm Programme. Council called upon the Council and the Commission to tackle criminal phenomena at EU level: - By adopting an organised crime strategy, within the framework of the Internal Security Strategy, - By means of setting its priorities in crime policy, identifying the types of crime against which it would deploy the tools it had developed, while continuing to use the Organised Crime Threat Assessment (OCTA) Report and its regional versions. Thus, the EU Commission and the EU Council on Justice and Home Affaires developed parallel programmes paying duly heed to the European Council’s new agenda. The EU Policy Cycle to tackle Serious and Organised Crime. Henceforth, the Commission’s EU Internal Security Strategy18 was stablished on the grounds of “five steps towards a more secure Europe”. Those steps included one directly related to the fighting against SOC, namely “disrupt international criminal networks”, which was split into three axes: identifying and dismantling criminal networks, protecting the economy against criminal infiltration and confiscating criminal assets. Complementarily and almost simultaneously, the EU Council addressed a joint way of tackling this form of crime19 counting on the efforts from all MS, the EU Commission and including other relevant stakeholders out of the EU. Therefore, the “EU Policy Cycle” was created stressing that, within the conclusions which stablished it, it was reflected that “the entry into force of the Lisbon Treaty provides the basis and a unique opportunity for developing a security agenda shared by the EU and its Member States with clear roles and responsibilities”. Thus, the Stockholm Programme had a strong influence in the creation of this new working platform. In this respect, the odds wanted that right after the entry-into-force of the Lisbon Treaty in 2009, removing the three pillars structure, Spain took over the EU Presidency in the EU Council20 throughout the first semester of 2010, as the first country putting into function the recently constituted “trios”21. Consequently, Spain faced the challenge of shaping up the recently created structures towards a new EU. Amongst these new structures, and with an important relevance to enhance the cooperation in the field of the former third pillar, a new committee called COSI was created to foster a different system for operational cooperation. Consequently, in

18 Communication from the Commission to the European Parliament and the Council “The EU Internal Security Strategy in Action: Five steps towards a more secure Europe”. 22 November 2010. COM(2010) 673 final. 19 Council conclusions on the creation and implementation of a EU policy cycle for organised and serious international crime. 3043rd Justice and Home Affairs Council meeting Brussels, 8 and 9 November 2010. 20 The Spanish Presidency on the EU Council took place in the first semester 2010. 21 Spain was followed by Belgium in the second half of 2010 and Hungary in the first half of 2011, constituting the first trio. accordance with the article 71 of the TFEU22, the COSI23 was set up during the Spanish Presidency, as a Committee under the JHA Council. This organ is in charge of steering, approving and monitoring the so-called “Policy Cycle to tackle Serious and Organised Crime”. A new way to understand fighting SOC was built, led by the EU Members and executed by Law Enforcement officers thereof. As a precedent of the current Policy Cycle, the so called “Harmony Project” was initiated by Belgium in the second half of 2010, right after the Spanish Presidency24 and upon a United Kingdom’s proposal. Notwithstanding that, the influence of Spain in its creation was capital, not only because the necessary role of the COSI, but also because Spain contributed to a coordinated way to conduct the Presidency conformed by the three countries, in shape of the beforementioned trios. The Harmony Project aimed at “creating a generic European Criminal Intelligence Model that describes a multi- annual policy cycle and defines the roles, processes and products needed for the implementation thereof”. Its way of being a reality was through the EU Policy Cycle, as mentioned before. Eventually, at the beginning of 2011 a new concept for combatting SOC in the EU was established25. Within this new system, the role of COSI as a coordinating body was capital, so as to achieve a closer cooperation among all the different involved authorities, inter alia police, customs, border guards, immigration officers and the judiciary. As envisaged in the creational document, “the policy cycle for serious international and organised crime consists of four steps: i. Policy development on the basis of a European Union Serious and Organised Crime Threat Assessment (EU SOCTA) that must provide for a complete and thorough picture of criminal threats impacting the European Union. ii. Policy setting and decision-making through the identification by the Council of a limited number of priorities, both regional and pan-European. For each of the priorities a Multi-Annual Strategic Plan (MASP) needs to be developed in order to achieve a multidisciplinary, integrated and integral (covering preventive as well repressive measures) approach to effectively address the prioritised threats. iii. Implementation and monitoring of annual Operational Action Plans (OAP) that need to be aligned to the strategic goals which have been determined in the MASP, building upon the COSPOL framework as the multilateral cooperation platform to address the prioritised threats. iv. At the end of the policy cycle a thorough evaluation needs to be conducted and will serve as an input for the next policy cycle”.

22 “A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States' competent authorities” […]. 23 Council Decision of 25 February 2010 on setting up the Standing Committee on operational cooperation on internal security (2010/131/EU). 24 EU Council Document 11814/10. Expert group – EU Policy cycle. 25 The first Operational Action Plan (OAP) for the first Policy Cycle was created by the Council document 17796/1/11, on 6 December 2011. The platform reflected in the abovementioned point iii. was named afterwards as the European Multidisciplinary Platform Against Criminal Threats (EMPACT), which succeeded COSPOL. It was divided into criminal priorities, each of them leaded by a Driver, with the support of other partners named Co-Drivers, Action Leaders and Co- Action Leaders would be in charge of the execution of the different Operational Action, within each priority, representing their respective countries. In other words, the EU Council created a procedure through which Member States would build up the EU Policy against SOC, putting in hands of Law Enforcement officers its effectiveness. According to the terms of reference for the Policy Cycle26, it is possible to shortly describe the above mentioned relevant actors as: - Driver: A representative from MS, who chairs the Operational Action Plan (OAP), by having a strong leadership and communication skills and sufficient competences to manage the priority. The Driver reports directly to the COSI. - Co-Driver: They can temporary replace the Driver in case of absence, leading at the same tame at least one operational action. - Action Leader: Leads a specific operational action counting on the support of other Co-Action Leaders, EU Agencies or Institutions as well as third countries, demonstrating strong leadership. The Action Leader reports to the Driver. Consequently, in 2011 a fist two-year Policy Cycle27 was in function, tackling eight criminal priorities. Out of them, two were focused on regions holding a special relevance to the EU on this field, namely West Africa and the Western Balkans. Besides, the six remaining criminal priorities consisted of types of crimes relevant at EU scale, which were illegal immigration, synthetic drugs, container smuggling, trafficking in human beings, mobile OCG and cybercrime. The Spanish participation in this first short cycle was rather modest, investing efforts in illegal immigration (in which it leaded one activity), synthetic drugs, container smuggling, mobile OCGs and cybercrime. This first experience was somehow deemed as a test, towards a longer multi-annual plan. Since then, throughout the period 2014-2017, the first four-year Policy Cycle came in force, in which Spain participated, for first time, in all the criminal threats, acquiring a highly relevant role. From then on, all the priorities were criminal typologies relevant at Union scale, leading Spain two out of thirteen: fighting against firearms by the Guardia Civil and against cocaine by the . Furthermore, Spain was Co-Driver on the EMPACT priorities regarding the fighting against illegal immigration, heroin and cyber-attacks. As for leading activities in form of operational actions, Spain took the lead over a relevant number of them, with a different yearly involvement, since they change on a yearly basis. Nowadays, a second four-year Policy Cycle is being developed between 2018 and 2021. Spain, through the Guardia Civil, had a prominent role prior to starting it, when thriving to attain that environmental crimes be considered as an EU priority, as it happened eventually. Likewise, Spain is leading again two in thirteen criminal threats through its

26 EU Council Document 10544/17. EU Policy Cycle Terms of Reference. 27 Council document 17796/1/11 REV 1. national Law Enforcement agencies: the Guardia Civil against firearms and the National Police against drugs (cannabis, cocaine and heroin), also assuming the role of Co-Driver on the EU threats facilitation of illegal immigration, environmental crimes, child sexual abuse/exploitation and organised property crimes. The increase of Spanish involvement in such an important EU project against SOC is, as we can see, remarkable. To conclude, the Spanish role in the fighting against SOC is not only increasing but also it is ahead of most EU Member States. Thus, it is safe to say that Spain is, once again, at the forefront of the EU Policies, seeking for a higher involvement in a two-speed EU. Conclusions towards a safer Union: The role of Spain. From the early days of its accession in the EU, Spain’s involvement in internal security and home affaires policies is out of any doubt. On the one hand, the so-called Prüm28 decision was the successor of a Multilateral Convention29 whereby several EU Member States agreed on stepping up cross-border cooperation. Spain, firmly believing in automatic information exchange as a means of combating SOC, was a foundational partner to this previous Treaty. This is a clear example of strengthened cooperation which becomes part of the EU legal framework afterwards. On the other hand, as it has been referred to, it has participated with a crucial relevance in the creation of the platform which nowadays is making a reality of a EU coordinated Home Affairs policy, the COSI. Furthermore, this involvement and leadership has been increasing Policy Cycle after Policy Cycle. Nowadays, after the creation of the legal basis for a European Public Prosecutor Office (EPPO)30, once again Spain is one of the countries pushing for a strengthened cooperation in this field out of twenty which are currently taking part on the creational EU Regulation. Considering what the current state of play is, it is safe to say that Spain is one of the countries steering in an important manner the EU policy against SOC. Thus, in a Union where a few members are betting for less cooperation by leaving Europol framework, or about to leave the EU itself, Spain, in close cooperation with other countries and the EU Institutions and agencies, is pushing ahead to step up a comprehensive cooperation in this field. To conclude, even though throughout the 7-year history of the Policy Cycle and EMPACT’s existence, operational cooperation has importantly increased. However, it is still needed to further advance towards an EU contributing to a higher security worldwide. The Member States need to step forward involving national resources into the Policy Cycle, exchanging more and more information through Europol, cooperating

28 See footnote 15. 29 The first Prüm Convention on the “stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration” was originally signed by Belgium, Germany, Spain, France, Luxembourg, The Netherlands and Austria, in Prüm (Germany) on the 27 May 2005. 30 Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’). at judicial and prosecutorial level within Eurojust and, last but no least, protecting external borders under Frontex’s framework. Whatever is decided the path to walk along, Spain will remain trying to bolster a safer Union.