Memorandum by the Home Office
1. INTRODUCTION
On behalf of the Home Office and under the powers
conferred by Serious Organised Crime and Police Act 2005, which
established the organisation, the responsibility for an effective
strategic and operational engagement between the United Kingdom
and Europol rests with the Serious Organised Crime Agency (SOCA).
Through its International Multilateral Department SOCA provides
the home for the Europol National Unit in this country and is
thus the gateway for the exchange of information both to and from
UK law enforcement authorities.
2. EUROPOL BACKGROUND
Europol's development as an effective agent
in the fight against serious and organised crime has been quite
rapid in the period since the Europol Convention of 1995, which
came into force in 1998. That legal base considerably extended
Europol's original remit of 1994, where it operated as the Europol
Drugs Unit.
Three Protocols amending the Europol Convention,
which were introduced in 2000, 2002 and 2003 added to Europol's
mandate to support Member State law enforcement activity. Of particular
relevance was the extension of Europol's competence to tackle
money laundering, and the opportunity for Europol officials to
act in a support capacity in Member State Joint Investigation
Teams. These Protocols only entered into force in 2007, exemplifying
the extended timescales required to amend Europol's legal base.
At the end of 2006 the European Commission brought
forward a proposal to replace the Europol Convention with a Council
Decision on the grounds that this legal base would be easier to
amend and any amendments would be more speedily introduced. The
Europol Council Decision is expected to be adopted before the
end of 2008, and would come into affect in January 2010, allowing
the necessary time for internal procedural changes. Although the
new legal base has not extended the range of crimes for which
Europol would have competence it has introduced some flexibility,
with appropriate controls, to allow Europol to support criminal
investigations into the most serious of crimes that may not obviously
be linked to organised criminal gangs.
In reflecting on Europol's development the Government
believes it has been sensibly measured and that its mandate and
scope of operations (as reflected in the new Europol Council Decision)
is correctly pitched.
3. SUMMARY
In general terms the Government recognises the
significant contribution made by Europol to combating serious
and organised crime and the threat posed by global and domestic
terrorism. There is good evidence of the benefits to the United
Kingdom of a positive engagement with Europol with a number of
high profile criminal cases being bought to justice.
— We see very real benefits emerging
from the production of the annual Organised Crime Threat Assessment
and the EU Terrorism Situation and Trend Report and expect their
value to increase over time;
— Bilateral information exchanges through
the Liaison Bureaux network are seen as a particularly effective
way of doing business, but Europol tends to be a "loser"
in that much of the information is not made available to Europol;
— There is an underlying concern from
Member States about data security and how it is used once it is
loaded onto Europol's systems. This general unwillingness to share
data reduces Europol's ability to support Member State law enforcement
as well as it might;
— The Europol Information System has
the potential to be a significant intelligence data source but
as yet is under utilised by the majority of Member States ;
— The role of and interaction between
the Management Board and the Director would benefit from a clearer
separation of strategic development and oversight on the one hand
and the authority to manage day to day activity on the other;
— We are pleased with the outcome of
the negotiations on the new legal base for Europol, and believe
this will provide an improved framework for Europol to support
Member State law enforcement activity against serious and organised
crime and terrorism.
4. STRATEGIC
CO-ORDINATION
Internal security
We see Europol as being central to the success
of the concept of the EU architecture of internal security and
believe it has the potential to fulfil that ambition without necessarily
having to radically change what it does, in terms of extending
its operational capability. Europol's influence is growing as
Member States' confidence that it can supply a secure platform
for the exchange of operational and strategic information increases.
We expect to see this influence growing further as Europol's technical
and infrastructure systems are developed.
It is recognised that Europol has strongly embraced
the UK concept of a National Intelligence Model (NIM), which supports
the adoption of an intelligence led policing approach. The effective
collection of intelligence material which can be fed into preparing
a comprehensive Organised Crime Threat Assessment (OCTA) is essential
to the formulation of coherent and effective plans to combat the
identified threats by targeting those criminal groups involved
in such criminality. The United Kingdom's role in the development
of the OCTA is well documented and as more Member States recognise
the benefits of the NIM approach their input to the EU OCTA should
improve in terms of both quantity and quality. A good start has
been made on the development of a European Criminal Intelligence
Model (ECIM) but there are suggestions that not all Member States
are yet taking it seriously enough.
Given the recognition of the Western Balkans
as a priority for the EU in terms of it being both a source and
transit area of serious organised crime, the Government views
with satisfaction recent work in the Republic of Croatia, supported
by EU funding under a twinning project, to establish a National
Intelligence Model and intelligence led policing. Croatia has
subsequently produced its first OCTA, which has been shared with
Europol. The Commission views this work as a model which it would
like to see rolled out across the region. We believe this will
add further emphasis to the ECIM and the intelligence led policing
approach.
Relationship with EU Agencies and other bodies
Europol's relationship with EU/EC bodies is
strictly enforced through the development of agreements on information
exchange between the organisations. Of particular interest is
the need for Europol's partners to have data protection systems
compliant with Europol's own high standards. This can and does
limit data exchange and introduces sometimes significant delays
before agreements can be concluded.
A good example is Frontex, which has worked
informally with Europol since 2006. The delay in establishing
a formal agreement has been caused by the need for Frontex to
change its systems to meet the necessary data protection/data
sharing compliance standards. That said it has been reported there
is good operational engagement with Frontex providing valuable
information concerning serious and organised criminality. For
example Europol and Frontex have produced an assessment of the
high-risk routes for illegal immigration through the Western Balkans.
The situation with a key partner organisation—Eurojust—is
rather different. A formal agreement has existed since 2004 and
while the relationship is working well there is, we believe, an
opportunity for developing it. It is noted that a secure communication
link between the two organisations was established last year which
will allow the secure transmission of information. The Government
supports the recent undertaking to review the formal agreement
between Europol and Eurojust, but recognises certain practical
difficulties about extending access to Europol's data systems,
and especially some of the particularly sensitive material, such
as contained in some of the Analytical Work Files. It cannot be
ignored that Europol relies on Member States for the supply of
its base data, and given some concerns about how securely Europol
will store and use that data, which already limits the amount
of information exchange, an extension could result in the "tap
being turned down", rather than opened up, which is what
we feel must happen.
We are pleased to see a more direct link now
between the threat assessment reports emanating from Europol and
influential organisations such as the Police Chiefs Task Force
(PCTF). It is becoming clear that the PCTF-inspired COSPOL projects,
such as those dealing with drug smuggling, child abuse and human
trafficking, are becoming specifically aligned to Europol activity
and its analytical work files. This provides a good example of
bringing together the intelligence gathering and analytical capability
of Europol on the one hand and the operational policing drive
from police chiefs on the other.
Threat assessment
It is clear, after just two years, that the
annual OCTA is emerging as a vital Europol product and we are
confident that it will continue to improve in direct proportion
to the increased engagement in the process by Member States, and
others such as Eurojust. There are indications that this engagement
is developing a momentum and this is likely to be due in part
to the improving intelligence gathering and analytical capabilities
within Member States, and as a result of the growing realisation
of the benefits of the OCTA.
Europol has recently produced its second EU
Terrorism Situation and Trend Report (TE-SAT) which provides an
overview of terrorism-related incidents occurring within the EU
as well as outside the EU but where the activity could impact
on the EU, and a review of related trends. This is a welcome Europol
product which will, we believe, develop in similar vein to the
OCTA as contributors to the report recognise the value and provide
more input.
5. BILATERAL
INFORMATION EXCHANGE
Europol has a liaison bureau network operating
on its premises at The Hague with a bureau for each of the 27
EU Member States, as well as offices representing those countries
and international organisations with which Europol has co-operation
agreements. For instance Australia, Colombia, Interpol and the
United States all have liaison officers located within Europol.
We see the liaison bureau as an essential component
of supporting Member States' law enforcement activity providing
as it does a direct link between Europol and the Europol National
Unit in the home country.
Bilateral information exchange is supported
by the Europol "Info-Ex" system, shortly to be upgraded
and the United Kingdom is one of the main users of the facility,
which supports bilateral and multilateral data exchange. In the
last five years the amount of information exchanges on Info-Ex
has increased by around 170%, with the number of messages in 2007
being around 260,000. These messages are linked to criminal investigations
and over the same period the number of cases has increased by
about 42% (7618 case in 2007).
However the vast majority of information exchange
between liaison bureaux occurs outside the formal systems and
thus while providing very significant benefit to the participating
countries the main loser is Europol, which is denied the opportunity
to access the information. It is reported that up to 80% of bilateral
engagement occurs this way.
The reasons are not particularly clear but it
can be assumed that there is likely to be a combination of factors
including that there is no requirement to log such bilateral exchanges
on the Info-Ex system. Also, and although it is not a particular
matter of concern for the UK, there is the issue that tends to
pervade all information exchange between countries and Europol,
the issue of "confidence and trust" in handling and
protecting the data.
The fact that Europol is deprived of a huge
amount of intelligence data is a matter of concern and is something
we feel should be addressed. But this is a sensitive issue and
while the United Kingdom is prepared to take a lead on improving
the amount of bilateral exchange material shared with Europol
it must be borne in mind that the other partner to the bilateral
exchange must be similarly disposed, or else we could find ourselves
in the position of being frozen out of bilateral engagement.
6. CO-OPERATION
WITH THIRD
PARTIES
Notwithstanding the information exchange between
Europol and the national competent authorities in the Member States,
we recognise the significant benefit to be derived from Europol
establishing co-operation arrangements for exchanging information
with other organisations and countries outside the EU.
Europol has established two types of co-operation
agreement. Operational agreements allow the exchange of personal
data between the parties to the agreement, while strategic agreements
are limited to the exchange of technical and strategic information.
The procedures for negotiating these instruments
can take years and technology issues aside one of the key difficulties
to be overcome is the need for organisations to be able to meet
the stringent data protection standards required by the European
Union. Although not a particular concern to the UK, as long as
the data protection standards can be complied with, one cannot
ignore the concerns already prevalent in Member States with regard
to mutual confidence and trust. Already information is not supplied
to Europol because the potential providers in the Member States
do not know what will happen to the information at Europol, or
how secure it will be. If this concern exists about exchanging
personal information with and between Member States it can only
be exacerbated by the possibility of the information exchange
going wider.
Although there are indications that trust is
being built and confidence is improving, as evidenced by the growing
contribution to the preparation of threat assessments we sense
there is still a long way to go and a delicate balance to be achieved.
Europol has established organisational agreements
with Eurojust and Interpol, and along with the new agreement with
Australia, organisational agreements are in place with Canada,
Croatia, Iceland, Norway, Switzerland and the United States.
Strategic agreements exist with Albania, Bosnia
and Herzegovina, Colombia, Moldova, the Russian Federation and
Turkey. In addition strategic agreements are in place with the
European Anti-Fraud Office, European Central Bank, European Commission,
European monitoring Centre for Drugs and Drug Addiction, European
Police College, United Nations Office on Drugs and Crime, and
the Word Customs Organisation.
7. COMBATING
ORGANISED CRIME
Based on the OCTA 2007 Europol's priorities
are:
— Fraud—financial and property
crime;
— Money laundering and Euro counterfeiting;
— Illegal immigration, trafficking
in human beings and child abuse.
SOCA is best placed to comment on the detailed
involvement of UK law enforcement authorities with Europol, but
one specific advantage we feel we have over other countries is
the brigading together of the various offices dealing with EU
law enforcement activity exchange. So the Europol National Unit
is co-located in SOCA with the National Interpol Bureau and the
UK Central Authority for the European Arrest Warrant, as well
as the "embryo" Schengen bureau.
This arrangement provides the opportunity for
co-ordinated and comprehensive access at all times to Europol
for UK law enforcement, supported by highly skilled officers.
There is good evidence to support the view that
the United Kingdom's close co-operation with Europol at the operational
level brings its rewards. In 2007, for instance a combined operation
with Spain led to the seizure of significant quantities of drugs
and cash in the UK. Europol provided specialist support to Cambridgeshire
Constabulary which led to the apprehension of an individual who
was convicted of sending explosive devices through the post. And
with a joint operation involving Estonia, Europol was influential
in bringing to justice a violent international gang responsible
for a large number of high class jeweller shop robberies in the
UK.
At the strategic level the Heads of Europol
National Units (HENU) are directly involved in helping to formulate
Europol's strategy, taking into account the operational and strategic
aspects and monitoring systems to ensure delivery of agreed objectives.
Of interest is the proposal for HENU's to develop models for the
"ideal" Liaison Bureau and Europol National Unit. In
addition National Units are closely involved in developing proposals
for improving mechanisms for sharing good practice among Member
States as well as enhancing Europol's information exchange systems.
The close working relationships established
between the SOCA Europol National Unit and the UK Liaison Bureau
which together represents all aspects of UK law enforcement provides
in our view the best possible opportunity for feeding ideas into
Europol that will develop the organisation and enhance the benefits
it can provide the UK.
Last year Europol supported Member State law
enforcement into organised crime with 14 operational projects—or
Analysis Work Files (AWF). They focussed on priority crime areas
identified for 2007, so covered drug trafficking (3), crimes against
persons (3), financial and property crime (2), organised crime
groups (4) and forgery of money (2). Each of the projects supported
live investigations taking place in specific Member States, or
issues linked to COSPOL projects being driven under the auspices
of the Police Chiefs Task Force.
The United Kingdom was involved in almost all
of these projects and we have found them to be an extremely effective
way of running cross border investigations. That said we see a
clear benefit of Europol moving further towards "generic"
AWFs as opposed to opening files on specific operations. The administrative
procedures required to establish an AWF are considerable and time
consuming, and we believe it would be more efficient to have an
AWF which was a "folder" for a specific subject area
into which discrete projects could be inserted. Member States
would still only have access to information for those projects
for which they were members and contributing data.
8. COMBATING
TERRORISM
The fight against terrorism is a top priority
for Europol, which provides operational and strategic analysis
to Member States in support of their investigations. We are pleased
to see that Europol has taken over production of the annual Terrorism
Situation and Trend report (TE-SAT) previously undertaken by the
EU Presidency. TE-SAT is a useful tool in analysing trends in
Islamist terrorism in the EU. However Europol recognises that
improvements need to be made to the data in order for comparisons
to be usefully made between Member States.
Europol's anti-terrorism activity is contained
within two Europol Analytical Work Files, one of which deals with
Islamic terrorism. This is the only AWF to which all Member States
have agreed to contribute information. That said although there
is no evidence of Europol's systems being insecure, we recognise
a reluctance on the part of many Member States to share what is
very sensitive information, especially in the early stages of
an investigation and the information gathering process, where
any leak could compromise the investigation, and so there must
be a presumption that the amount and quality of data submitted
to the AWF is likely to be of less value that it otherwise might.
The UK is a substantial contributor to this AWF and only contributes
information after an investigation has taken place.
SOCA is best placed to comment on this issue
in detail but in general terms we are satisfied that Europol provides
a good service and takes on the responsibility for such projects
as Check the Web. Check the Web provides an EU central database
of open source websites that operational police officers can use
in their investigations. The UK is one of the most significant
contributors to Check the Web.
The UK supports the creation of a European Bomb
database that will be based at Europol as a means to have 24/7
access to relevant information on incidents involving explosive
devices.
Europol produces assessment models from open
sources on criminal investigations known as their Knowledge Banks.
Recent studies on returning jihadists and on Pakistan have proved
very useful.
9. EUROPOL INFORMATION
SYSTEM
The Europol Information System (EIS) provides
a general information exchange service, as opposed to the specificity
of the Analytical Work Files. It is available to all Member States
through their Liaison Officers and the Europol National Units.
It is used to store personal information about people who, under
the national law of that country, are suspected of having committed
a crime or having taken part in a crime for which Europol has
competence, or where there are serious grounds to believe they
will commit such crimes.
At the end of 2007 the EIS held 62,260 data
objects an increase of 80% over the year. A majority of the data
held on the EIS is related to Euro counterfeiting. The significant
increase was largely due to the introduction of so-called automatic
data loaders. At the moment only five countries are using the
automated loading system—Germany and the Netherlands; and
last year Denmark; Spain and Belgium started using auto-loaders.
The United Kingdom needs to double key any data
its loads onto the EIS because our data systems are not compatible
and so we cannot use the auto loading system. That said the volume
of data we do load is still very low and while this is in common
with the majority of Member States, it is not a situation we would
wish to see prevail, and we are reviewing our procedures to ensure
an increase in the amount of data we send to Europol.
We are aware that concerns raised by some Member
States over data quality and the resulting question marks it places
over the value of the EIS are being used as one reason for reluctance
to load data onto the EIS. Data entry is clearly an issue and
the fact that bilateral engagement is so successful is also quite
likely to be a disincentive to treat as a priority the loading
of data onto the EIS.
The Management Board recognises the problem
and has determined to take steps to increase the amount of data
loaded onto the EIS.
10. EUROPOL ORGANS
AND SYSTEMS
Management Board & Director
From the discussion during the negotiation of
the new Europol Council Decision it was clear that a number of
Member States were frustrated by the overarching sense of bureaucracy
and general speed of reaction by Europol to new ideas. It was
clear also that other Member States share our concern over the
working relations between Europol and the Management Board.
Our view is that the Europol's general approach
is quite conservative and we see a tendency to only do something
where the governing rules are explicit and quite unambiguous.
This quite legalistic approach is pretty much the opposite we
would prefer to see adopted, that anything could be done as long
as it is clearly not prohibited. This leaves Europol looking cumbersome
and slow to react, and leads to a tendency to refer too much back
to the Management Board for advice and guidance.
We would hope that changes brought about by
the new Europol Council Decision will help address a number of
these issues. We would prefer to see a rebalancing of responsibilities
with the Management Board getting less bogged down in detail and
providing more strategic direction for Europol, while allowing
the Director to take more responsibility for delivering the objectives
set by the Management Board. It is hoped that changes to the appointment
and term of the Management Board Chair will provide more consistency
and continuity to the relationship between Europol and its Management
Board.
Joint Supervisory Body
The Joint Supervisory Body (JSB) is composed
of two representatives of each of the national data protection
Supervisory Bodies. It is charged with ensuring that the data
protection and data storage standards established for Europol
are fully complied with, and that the rights of the individual
are not violated and it monitors the permissibility of the transmission
of data originating from Europol. Any individual has the right
to request the Joint Supervisory Body to ensure that the manner
in which his personal data have been collected, stored, processed
and utilized by Europol is lawful and accurate.
The manner in which the JSB conducts its work
is not something on which we can comment in any detail, but in
our view it provides a vital function and there is no suggestion
that it is anything but an effective body. The introduction of
the role of Europol Data Protection Officer through the new Europol
Council Decision will provide an important oversight function
of the day to activity of Europol's data handling and a bridge
to the JSB when the need arises to escalate any problem.
Staffing
The total headcount for Europol is currently
621 posts, but taking into account vacancies which are being filled
or left vacant the headcount at the end of 2007 was 592.
The majority of staff is Europol officials (363)
with the next highest category being Liaison Officers (114), the
remainder being security guards, local staff, contractors and
seconded national experts. The United Kingdom provides 36 of the
total of Europol officials which compares favourably in numerical
terms to all countries other than the Netherlands (70).
Europol's Serious Crime Department employs approximately
twice the number of staff than the other two departments, Corporate
Governance and Information Management and Technology. Eleven United
Kingdom police officers and other law enforcement officers work
for this department in specialist posts reserved for subject experts
from Member State law enforcement authorities—so-called
"bold posts". These posts are filled as fixed term appointments
to allow a steady rotation of staff bringing new expertise into
Europol and then returning new ideas to their forces at the end
of their employment.
We are strong supporters of this approach and
would like to get more of our policing experts into Europol, and
especially into the senior posts. There is interest amongst UK
law enforcement in applying for Europol vacancies but opportunities
are limited because of two particular factors. There is a clear
sense amongst some Chief Police Officers that international engagement
does not add much value to domestic policing and that the loss
to the force of a talented officer for a number of years is not
worth the "sacrifice". But the more pertinent issue
relates to contractual issues since anyone working at Europol
has to become an employee, and this compromises the officer's
pension rights with the home force. This is an issue we are currently
seeking to resolve.
Finance
Europol is currently funded by direct financing
from Member States on the basis of national GDP. This arrangement
will change in 2010 when the new Europol Council Decision takes
effect, when Europol will be funded from the Community Budget.
In the last five years Europol's budget has
increased from €57.8m—€67.9m, an increase of 17.5%.
A concern for the UK has been the budget surplus which has grown
over recent years because the allocated budget was invariably
under spent, quite often by a considerable amount. UK intervention
at the Management Board has been effective and reduced the problem
and the budget for 2008 is €63.9m. The UK's contribution
under the current arrangements will be around €9.65m, although
this could be reduced if the budget is under spent during the
year.
Some concern has been expressed that Europol's
budget could be allowed to run out of control following the move
to Community Funding, given that the Management Board which directly
represents the "funding providers" at the moment will
lose some influence. And that since Europol's budget is small
in overall terms when considered at the level of the general budget
negotiation there will be a tendency to increase it beyond what
is needed. We believe this is a situation that can be managed.
The Management Board will still be responsible for drafting the
personnel plan, the work plan and the budget required to deliver
Europol's objectives, in conjunction with Europol. The OCTA will
still be the driving force to inform Europol's direction, and
we can expect both the European Parliament and the Council to
exert its influence to arrive at a practical outcome. Put together
this can all be fed into the EU budget negotiation process, so
that any proposed increase can be properly justified.
11. EUROPOL COUNCIL
DECISION
After 15 months of detailed negotiation in the
Europol Working Group a new legal base for Europol has been agreed
that will replace the Europol Convention at the beginning of 2010.
The two primary objectives which led the European
Commission to introduce its proposal at the end of 2006 have been
achieved. In replacing the Convention with a Council Decision
any future amendments to Europol's legal base could be accommodated
much quicker than the current situation having to spend years
ratifying amending Protocols. Europol's current funding mechanism
will be changed so that from 2010 it will be financed from the
Community Budget, as opposed to direct Member State funding. This
will bring Europol into line with other EU Bodies.
From an operational perspective the new legal
base introduces a number of beneficial amendments but in general
terms Europol's role and functions remain unchanged. The overarching
function is that Europol exists to support Member State law enforcement
activity in the fight against serious and organised crime and
terrorism.
A summary of the more important outcomes of
the negotiation of the new Council Decision follows:
— There has been an extension of Europol's
mandate so that it may, subject to resource constraints, support
Member State investigations into serious crimes that are not necessarily
thought to be carried out by organised gangs. However this extension
is limited by the requirement that any such investigation must
affect at least two Member States and thus be cross border in
nature;
— There has been no change in the list
of crimes for which Europol has competence;
— The rules for the exchange of data,
and particularly personal data have been clarified and codified,
which will benefit both Europol and data subjects. It is now set
out in specific detail how Europol will conduct its relations
with its various partners, the need to establish agreements and
the arrangements for exchanging data with each type of partner.
— The role of a Data Protection Officer
has been formalised to ensure that the provisions of the new legislation
in terms of the processing of personal data and protection of
the rights of the data subject are complied with;
— More emphasis is put on the need
for the Management Board to adopt a more strategic role and the
appointment procedures for the Chair have been changed so instead
of rotating every six months with the Presidency the Chair will
hold the seat for the 18 months.
— In terms of oversight there is now
a welcome provision that enables the European Parliament to call
the Director and Management Board Chair to account for their actions;
— The introduction of Community Financing
brings with it the application of the EC Staff Regulation and
the EC Protocol on Privileges and Immunities. This has required
some additional internal regulation to preserve the principle
of staff rotation and the selection of subject matter experts
just from Member State law enforcement authorities (as opposed
to open competition in its widest sense). In addition the Commission
has had to introduce a Regulation to maintain the current immunity
arrangements for Europol officials supporting Member States as
a member of a Joint Investigation Team.
In conclusion there is nothing about the new
legal instrument which causes any particular concern. Indeed we
welcome it. We do not believe that the introduction of community
funding, and with it the EC Staff Regulation brings any particular
operational benefit to Europol, but equally it does not impact
on Europol's ability to function. Apart from the specific changes
identified above there have been myriad small textual changes
throughout the document. These have added clarity that will enable
Europol to operate with more certainty which in turn should reduce
reliance on the Management Board for direction.
28 April 2008
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