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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