European case studies relating to the administrative approach Prof. Dr. Tom Vander Beken An Alternative Approach to Combat Organised Crime - Dutch EU Presidence Seminar The Hague, 5 July 2004

Overview 1. Approaches to combat organised crime 2. « The » administrative approach? 3. EU-approach 4. UN-Transnational OC-Convention 5. Case studies in Europe 6. Opportunities and challenges 7. Conclusions

1. Approaches to combat organised crime Focus on the individual (group): punishment, recovery of the proceeds of crime, … (repression) Focus on the environment (social and situational): changing the environment to prevent or reduce criminal activity. (prevention)

2. “The” administrative approach? Administrations (local or central) can use their administrative powers to: react on illegal activities of organised crime (e.g. by imposing administrative sanctions); prevent “illegal” organised crime activity using administrative instruments to reduce opportunities for organised crime (urban renewal, registration obligations, licencing, …) prevent organised crime to participate in legal activities (e.g. screening of permit applications, exclusion from public tenders,…)

3. EU-approach – third pillar (a) Repression AND Prevention of organised crime “Prevention is no less important than repression in any integrated approach to organised crime, to the extent that it aims at reducing the circumstances in which organised crime can operate. The Union should have the instruments to confront organised crime at each step of the continuum from prevention and repression and prosecution.” (EU-Action Plan to Combat Organised Crime, 1997) “There is a growing understanding amongst policy makers, professionals and academics that the traditional enforcement approach to tackling organised crime will not, alone, bring about the hoped-for reduction in such activity” (Report of the Commission and Europol, 2001)

3. EU-approach – third pillar (b) Opportunity reduction measures (e.g. Crime proofing) Call for exploration of ways to prevent marginalization. Explicit calls for (administrative) prevention of organised crime to participate in legal activities

3. EU-approach – third pillar (c) “[…] MS, the Council and the Commission should […] take necessary steps to allow the exclusion of criminal organisations or their members from, participation in tendering procedures, receiving subsidies or governemental licences.” (EU-Action Plan 1997, Millenniumstrategy, 2000) Procurement and organised crime: an EU-wide study (IALS, 2000)

3. EU-approach – first pillar (d) “Any candidate or tenderer who has been the subject of a conviction by final judgement of which the contracting authority is aware for one of more reasons listed below shall be excluded from participation in a public contract: Participation in a criminal organisation […]; Corruption […] Fraud […] Money laundering […]” (Art. 45 Directive 2004/18 EC of the European Parliament and of the Council, 2004)

4. UN-Transnational OC-Convention “Article 31 […] 2. States Parties shall endeavour, in accordance with fundamental principles of their domestic law, to reduce existing or future opportunities for organized crime groups to participate in lawful markets with proceeds of crime through appropriate legislative, administrative or other measures. The measures should focus on: […] c) The prevention of misuse by organized criminal groups of tender procedures conducted by public authorities and of subsidies and licences granted by public authorities for commercial activity; […]”

5. Case studies in Europe - background IRCP Comparative study on the administrative approach, 2002 (Belgium, The Netherlands, Italy, New York) Council of Europe Best Practice Survey “Preventive legal measures against organised crime”, 2003 (The Netherlands, Sweden, Estonia) Background documents provided by the Dutch Presidency on most MS, 2004

5. Case studies in Europe – Findings (a) All Member States have “an” administrative approach allowing for: the repression of organised crime activities by administrative law (economic law, tax law,…); the prevention of illegal activities of organised crime (e.g. use of administrative powers to discourage organised crime activity – education, urban, development, co-ordinated and integrated approach between administrative authorities) the prevention of legal activities of organised crime (exclusion from tenders, licences, permits, …)

5. Case studies in Europe – Findings (b) The use of “an” administrative approach to combat organised crime differs between Member States: - according to the perception of the organised crime situation (e.g. Italy vs. Sweden): Kind of information used and collected by the administration to act (convictions, suspicions, …) - according to the model chosen: “independent” administrative approach “subsidiary” administrative approach

5. Case studies in Europe – Findings (c) “independent” administrative approach The (central or local) administration is the main actor in organised crime prevention: decision of the administration based on (criminal) intelligence. Need for special (data protection) rules to allow for information transmission between judicial and administrive authorities. (Netherlands: BIBOB-legislation) “subsidiary” administrative approach The (central or local) administration uses decisions of judicial authorities for organised crime prevention (Italy: blacklisting by judges to be applied by administrations.)

6. Opportunities and challenges (a) Administrative approaches offer many opportunities to sanction or prevent organised crime activities in several ways. Existing best practices regarding repression and prevention of illegal activities (integrated and co-ordinated approach, urban renewal…) are applicable across the EU.

6. Opportunities and challenges (b) Regarding prevention of “legal” activities of organised crime, choices have to be made: - Economy and/or crime prevention? Human rights/privacy and/or information collection? (who does the screening, on what topics, who can use this information and for what purposes?) What information do we exchange on EU-level and how? (EU criminal records database, disqualification register) Independent or subsidiary approach?

7. Conclusions A criminal law approach to organised crime is not enough Several administrative approaches are possible, exist, and are promoted by the EU The choice is now about the way forward, the intensity of the approach and (especially on the prevention of legal activities of oc) on the extent of information exchange between MS (e.g. EU-criminal database)