Select Committee on European Union Minutes of Evidence


Memorandum by Professor Didier Bigo with the help of Richard M. Spooner for the Centre d'Etudes sur les Conflits—C&C, April 2008

INSTITUTIONAL SETTING AND LEGAL BASES

  Europol's creation was mandated by the Maastricht Treaty in 1992, with the aim of preventing and combating terrorism, unlawful drug trafficking, and other serious forms of international crime through the creation of "a Union-wide system for exchanging information".[12] It was formally established as an intergovernmental body through a Convention signed in 1995, which entered into force in 1998.

  The Justice and Home Affairs Council is responsible for the guidance and control of Europol, the appointment of the Director and the Deputy-Directors, and approval of the budget. A Management Board comprising one representative from each Member State supervises its activities, and there is a Joint Supervisory Body with two data protection experts from each MS.[13]

  The difficulty of adapting the European Convention to changing circumstances led to agreement on 18th April 2008 to change its legal basis to that of a Council Decision, and transform it into a Community Agency. It is planned that Europol will be funded from the Community budget (from 1st January 2010), and that in consequence the European Parliament will have an increased role in its control.

ISSUES RAISED BY THE CALL FOR EVIDENCE OF THE HOUSE OF LORDS SELECT COMMITTEE ON THE EUROPEAN UNION

Strategic Coordination

(i)  The Development of an EU "Architecture of Internal Security", intelligence-led policing, and the European Criminal Intelligence Model

  The European Council, Commission, and Parliament have all consistently called for greater coordination in the field of JHA. The 2006 Presidency note on the "Architecture of Internal Security"[14] is typical in this respect; it calls for a comprehensive threat assessment and definition of priorities at the EU level, and the means for ensuring that these priorities are implemented, and their results evaluated.

  Major progress has been achieved in the Europeanisation of security cooperation, and will be reinforced by the ratification of the Lisbon Treaty. However, MS remain suspicious of too integrative an approach,[15] and inter-institutional cooperation does not always function as envisaged (see below). Furthermore, procedural rights and the rights of the defence appear to remain "stuck" at the national level.

  Europol has embraced intelligence-led policing. Data is collected and compiled, in the belief that once it has been appropriately treated and analysed—through the production of reports such as the Organised Crime Threat Assessment (OCTA)—it will allow for an efficient assessment of future threats, and the groups of population from which they are likely to emanate.

  Central to this process is The Europol Computer System (TECS), which has three principal components:[16]

    (i)  an information system (MS directly input data, third-party data input via Europol);

    (ii)  an analysis system (by analysts, designated Europol officials, ELOs, MS experts);

    (iii)  an index system (to determine whether data is relevant).

  It is important to emphasise that, like any institution, Europol is not an entirely homogeneous entity, and that its different departments do not share an identical approach. In particular, the Europol Liaison Officers (ELOs) are closer to the "traditional" criminal justice approach than the Analysis Unit of its Serious Crime Department, which favours the intelligence rationale.

  As emphasised in the Challenge report on EU internal security agencies the pro-active and preventive dimension depending on a risk based logic and an intelligence logic of anticipation may lead to a destabilisation of good exchange in criminal justice logic based on specific individuals, and may create difficulties by mixing too much police and intelligence on one side, fact, information and risk anticipation on the other side[17].

(ii)  Europol's relationship with other EU/EC Agencies such as Sitcen, Eurojust and Frontex, and the extent to which there is cooperation between these Agencies, especially in the preparation of the Organised Crime Threat Assessment (OCTA), the Terrorism Situation Report (TSR), and Analysis Work Files (AWF)

The necessary distinction between formal and informal relations

  Useful though an understanding of the formal relationship between institutions is, it does not necessarily provide an accurate guide into actual practices, alliances, and relations. Informal relationships based on "trust" may compensate for the absence of an official relationship, and the existence of "distrust" may render an official relationship meaningless.

  This is particularly true in respect of Europol, whose legal basis is currently a Convention, which must be modified in order for a formal relationship to be established with other EU agencies. The lengthy ratification process required for this procedure has led to Europol tending towards the establishment of informal relationships, which also allow for greater flexibility and autonomy.

  The Council Decision of 18th April 2008, once put into practice, will allow Europol "insofar as it is relevant for the performance of its tasks [|] to establish and maintain cooperative relations"[18] with other EU/EC institutions and bodies subject to the approval of the Management Board, which must have previously obtained the opinion of the Joint Advisory Body. How effective this change will be remains to be seen.

Relationship with Sitcen

  Europol has been pushed after 11 September 2001 and even more after Madrid and London bombings to develop preventive "tools" in order to prevent terrorism, but the uncertainty of who has to be checked and the development of check at random or along profiles which are not always accurate, has generated a need for information sharing and competition about who is in charge of the definition of the threat. The division between second and third pillar has created uncertainty about the respective roles of the different structures, and the cross pillar meetings have not been so successful. Military intelligence in Sitcen has been re-focused on terrorist threat (including home grown?) and the relations with Europol are not clear enough, despite the claims of the main responsible of the two institutions. How far military and police intelligence can be usefully mixed together or used by the other agency with a different purpose? It is certainly important to understand better the merging of internal and external security information, especially when they mixed personal and non personal data in order to build risk based categories[19].

Relationship with Eurojust

  Although some actors hoped, upon its creation, that Eurojust would control Europol, this has not occurred. In fact, attempts to facilitate the exchange of information and build trust between the two bodies have not been entirely successful. Eurojust members have sometimes the impression that the justice dimension they represent is an appendices of the police dimension represented by Europol and that it is a specific problem linked also to the structure of the DG JLS which, to the contrary of many member states where justice and police are separated, favours policing over freedom and justice

  April's Council Decision places particular emphasis on cooperation with Eurojust, through stating that Europol will inform Eurojust prior to making a request to initiate criminal investigations,[20] and cooperate with Eurojust in ensuring an adequate level of data protection.[21] It is arguable that as Europol gains new operational capabilities a legality check from Eurojust will become indispensable.[22]

Relationship with Frontex

  At present there is no formal relationship between Europol and Frontex, which has been gaining in importance as a focal point in the field of border controls for the EU.[23] Despite this, sources have confirmed that there is an exchange of non-personal data and risk analyses between the two agencies, and Frontex also contributed to Europol's "Organised Crime Threat Assessment" (OCTA). As frontex is gaining such a role with the Eurosur project, it is not clear how the network of border guards, customs and agents at the borders concerning migration, asylum | co-ordinated by and with Frontex will accept to share or not information with the network of the different police (and intelligence services ?) which are connected by and through Europol. Long rivalries exist at the national levels and they risk to be reproduced at the EU level. The so-called division between first pillar and third pillar makes no sense if one is looking in details about the tasks of Frontex.

Relationship with Olaf

  The sharing of responsibility for the suppression of Euro counterfeiting led to fierce struggles between Europol and Olaf, which were settled by a Council Decision in July 2005 designating Europol as the Central Office. This official agreement on the issue only masks the continuing tension between the two bodies, and information exchange remains sporadic, leading to the possible duplication of effort.[24]

EUROPOL'S INFORMATION EXCHANGE WITH THIRD PARTIES

(i)  The extent to which information is exchanged by Europol with third countries with which it has cooperation agreements

  The field of European security is increasingly interlinked with transatlantic security dynamics. Europol's eagerness to engage in transatlantic data exchange resulted in its signing an agreement to exchange data and information with the US less than three months after 11 September 2001, and without the sanction of its Joint Supervisory Board. At the time Eurojust had no transatlantic dimension whatsoever.

  Europol has since signed an agreement that has the approval of its Joint Supervisory Board, but concerns remain about data-protection standards in the US[25]—see the controversy over the Passenger Name Record Agreement—and the accuracy of the data provided by the FBI. The Council Decision of April 2008 allows agreements with Third Parties to be signed only with the approval of the Council.

  If Europol as well as the anti terrorist coordinator are seen in the US as their European counterpart, it may be useful, but if they are seen by the different national services as a US eye at the EU level, by too much compliance, and even eagerness to collaborate with police and intelligence services of the US, it may create difficulties at the level of trust and legitimacy of the EU level.



12   Maastricht Treaty, Article K.1 (9), 7 February 1992 Back

13   http://www.europol.europa.eu/index.asp?page=facts Back

14   Architecture of Internal Security, Note from Presidency to the Article 36 Committee, 20 April 2006, accessed through:
http://register.consilium.europa.eu/pdf/en/06/st07/st07039-re02.en06.pdf Back

15   Mitsilegas, V., "What are the main obstacles to police cooperation in the EU?", Briefing Note for the LIBE Committee, January 2006, p.2 in Controlling security Back

16   http://www.europol.europa.eu/index.asp?page=facts Back

17   The field of the EU internal security agencies Back

18   Council Decision on Europol, Article 22 (1), 18 April 2008 Back

19   The field of the EU internal security agencies, Bigo, Bonelli, Chi, Olsson : mapping the field of the EU internal security agencies Back

20   Council Decision on Europol, Article 7 (1a), 18 April 2008 Back

21   Council Decision on Europol, Preamble, 18 April 2008 Back

22   Bruggeman, W., "What are the options for improving democratic control of Europol and for providing it with adequate operational capabilities?" August 2005, p.3 in Controlling security Back

23   Bruggeman, "What are the options for improving democratic control of Europol and for providing it with adequate operational capabilities?", p.3 in Controlling security Back

24   Bruggeman, "What are the options for improving democratic control of Europol and for providing it with adequate operational capabilities?", p.3 Back

25   Mitsilegas, "What are the main obstacles to police cooperation in the EU?", p.6 Back


 
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