Schengen under attack – Combatting serious and organised crime in the EU

The recent tragedy unfolding in southeast England, involving the discovery of 39 bodies in a lorry trailer suspected of links to trafficking and smuggling of persons, has sparked questions of the EU’s ability to effectively manage its external borders and tackle cross-border serious crime. While EU citizens enjoy the freedom of movement within the Schengen area, a Europe without internal borders serves as a profitable playground for organised criminal networks. Effective cross-border and multi-agency cooperation, particularly through information exchange, is essential to prevent and combat a growing trafficking business and other forms of serious and organised crime in the EU.

[bctt tweet=”Effective cross-border information exchange is essential to prevent and respond to the threats posed by serious and organised crime in the EU level”]
Free movement of persons is undoubtedly one of the major achievements of European integration. Since the entry into force of the Schengen agreement in 1995, the citizens of the EU Member States, agreeing to abolish their internal border checks and creating a common external border, have the right to freely travel within the Schengen area. At the same time, the absence of internal border controls provides organised criminal networks with an attractive playground to run lucrative illegal businesses and exploit trafficked victims with tragic consequences.
Trafficking in human beings is one of the most heinous forms of organised crime. It is rightly (or at worst) characterised as the modern-day slave market, where the exploitation of vulnerable persons, typically by force or coercion, generate massive illegal profits for traffickers. The International Labour Organization (ILO) estimates that human trafficking generates globally 150 billion dollars in illegal profits per year, making it one of the largest crime industries in the world together with drugs and arms trafficking. At the same time, the number of victims exploited for forced labour and sexual services amounts to nearly 25 million worldwide. Trafficking is often fostered by the supply of ‘available’ persons in the source countries. On the other front, the trafficking business is driven by the endless demand, particularly for sexual services and forced labour, under-regulated economic sectors and weaknesses of prevailing laws in destination countries.

Lack of harmonised criminal justice responses to trafficking in human beings in the EU

No EU Member State remains immune to trafficking. For several years, Europol has identified human trafficking among the top five priority crime threats in the EU. According to the most recent EU data on human trafficking, a total number of 20,532 trafficked victims were reported in the period of 2015-2016, of which Member States reportedly prosecuted 5,979 cases, resulting only in 2,927 convictions. One major factor explaining the low conviction rates pertains to the hidden nature of the trafficking business. Moreover, victims are often reluctant to report their traffickers due to fears of violence or deportation to their country of origin. Consequently, official statistics only represent the reported cases as documented by law enforcement bodies, suggesting that the vast majority of trafficked victims are likely to remain undetected. 
In September 2019, marking the 13th EU Anti-Trafficking Day, Commissioner for Migration, Home Affairs and Citizenship Dimitris Avramopoulos urged Member States to “end the impunity of traffickers by stepping up prevention efforts and bringing perpetrators to justice”. Indeed, one of the challenges for joint EU-wide criminal justice responses to human trafficking and other forms of organised crime lies in the fact that combatting trafficking in human beings is subject to national criminal laws and policies varying from one Member States to another. The Treaty of Lisbon made the first attempts towards marginalised approximation of legislations by triggering minimum EU rules on certain offences and sanctions in the areas of serious crimes with a cross-border dimension, including human trafficking. Since then, the EU Anti-trafficking Directive (2011) is accompanied by various soft law instruments, including the EU Strategy towards the Eradication of Trafficking in Human Beings 2012-2016, aiming to step up EU actions in this complex area. Yet, critics may well point out that such approximation of national legislations occurs only to the extent that Member States deem necessary to facilitate cooperation on criminal matters between national judicial authorities.

Cross-border information exchange key to tackling criminal networks at EU level

Various stages of the trafficking business chain rely on local legal infrastructure and high-risk economic sectors that are vulnerable to the misuse – for instance restaurants, bars, nail salons, streets of a city or farms. According to Europol, as much as 70% of the identified trafficked victims and suspects in the EU are EU nationals. Yet, traditional law enforcement authorities alone face many obstacles to detect often seemingly innocent business fronts that have been turned to human trafficking purposes. At local level, the phenomenon may as well go largely unnoticed. As a way forward, proactive and preventive measures could help detect core business chains and organisational structure of traffickers, for instance by focusing on recognising external, often weak indicators of the existence of trafficking, such as victims or local businesses and properties that house or employ victims. At the same time, successful crime prevention requires a strong intelligence basis and effective information exchange between different authorities to support operations on the ground. 
In recent years, the EU has increasingly resorted to adopting new legislative instruments to facilitate information exchange in the field of police and judicial cooperation. In addition, law enforcement bodies, including Europol, have been provided with wider access to EU-wide databases, such as Eurodac, with a view to tackling cross-border threats. For one thing, cross-border information exchange is essential in combatting and preventing serious crimes and dismantling organised criminal networks. Given the hidden nature of human trafficking, it appears to be ever more crucial to ensure the exchange of relevant information between competent authorities involved in detecting and preventing serious crimes across borders. On the other hand, the need for more data requires a specific attention to the respect of privacy and data protection principles in relation to data transfers within the EU and particularly with third countries. As a result, in response to increased concerns over the protection of personal data, EU information exchange instruments and agencies active in the field of policy and judicial cooperation are subject to stricter data protection rules.   
Ultimately, in times of present security challenges and technological development, striking a fair balance between public security and privacy concerns must be factored in the measures to combat serious and organised crime at EU level. At stake could be the future of free movement of persons within the Schengen area as we know it today. 
[bctt tweet=”In times of present security challenges and technological development, striking a fair balance between public security and privacy concerns must be factored in the measures to combat serious and organised crime at EU level.”]
TEXT Heini Hyrkkö

The author holds an LLM degree in European and international law from Ghent University and is specialised in EU justice and home affairs. She is currently working in the field of EU judicial cooperation in Brussels.