Examination of Witnesses (Questions 220
- 226)
TUESDAY 24 JUNE 2008
Mr Jose Luis Lopes da Mota, Ms Miche"le Coninsx,
Mr Aled Williams, Mr Jacques Vos, Ms Frederica Curtol and Ms Muriel
van der Klooster
Q220 Lord Young of Norwood Green:
Will the greater freedom of Europol liaison officers to exchange
information under Article 9(3)(d) of the Council Decision establishing
Europol benefit Eurojust in any way? We did meet with the liaison
officers, an interesting scenario for co-operation, all those
cultures working together.
Mr Lopes da Mota: This question is related
to Article 9(3)(d) of the Europol Decision, which is about assisting
in the exchange of information from national units with the liaison
officers of the other Member States and their responsibility under
the national law, so co-operation with third states basically.
These are important and very sensitive issues. Cross-border crime
is not only related to the borders of the European Union and so
we need more and more co-operation with third states. Of course,
the basis for that is a co-operation agreement. We are also at
Eurojust negotiating co-operation agreements with other states
and we are defining our priorities in line with the priorities
of the Council in Brussels. That means that even now we are already
working with third states and last year we co-operated with Switzerland
in 37 cases. We have a co-operation agreement with Norway. We
have cases with the Balkan countries and those cases relate to
trafficking in human beings and trafficking in drugs. All these
have originated in these third countries and we know where the
problems are. That means we need to work with them. We are speaking
about co-operation. We need to identify prosecutors, police officers,
partners to work with. I think that this possibility for a national
unit to work with liaison officers of third countries is also
very important in finding a basis for better co-operation with
third countries and then the same at the Eurojust level. If the
result of this work provides us with a basis for this continuation
at prosecutorial and judicial level I think this could be a very
important development in fighting cross-border crime involving
third countries.
Q221 Lord Marlesford:
If the Treaty of Lisbon does enter into force will Eurojust, and
indeed Europol, be bound by the provisions of Regulation (EC)
45/2001 protecting individuals with regard to data processing
by Community institutions and bodies?
Mr Lopes da Mota: That is a very interesting
point and raises some legal questions. At the current stage this
Regulation 45 does not apply to the so-called Third Pillar matters,
that is, police and judicial co-operation in criminal matters.
It applies to the Community bodies and the basis for it is the
Treaty on the European Communities, not the Treaty on the European
Union, so it does not apply to Third Pillar matters. This is the
current situation. With the new developments I think that the
consequence cannot be the automatic application to Third Pillar
matters. We have a strong legal regime on data protection at Eurojust
and Europol, and the basic principles and rules are exactly the
same. There are two main points that have to be considered when
we speak about co-operation in criminal matters and the processing
of data in this area. These points are related to the right to
information and the right to access to the information. In the
First Pillar matters there are no specific restrictions on these
rights but in criminal matters there are specific restrictions.
That means that if a prosecutor or police officer is investigating
a criminal the investigator or prosecutor has not to let the criminal
know that he is being investigated. Of course, this makes no sense.
That means that the right to the information has to be limited
because there is a basis for this, and this is the European Convention
on Human Rights, Article 8, paragraph 2. There is a need to protect
the democratic society when investigating criminal activities
and then there will be a moment during the normal development
of the procedure when all the information of course is provided
and the person has access to, but not at the moment when the person
is being investigated. So, if we need to set up a telephone tapping
we cannot say to the suspect, "Please, tomorrow I will set
up a phone tapping, if you agree". We are speaking about
basic things like this. But this matter of course is already protected
by other types of legislation, mainly the procedural criminal
law in this area. This is what happens currently with the Europol
Decision and the Eurojust Decision. We have these rules in this
area that already provide for this type of restriction because
we have to find the right balance between security and protection
of individual rights. If we apply Regulation 45/2001 that means
that no limitations will be found there, but I think that the
so-called abolition of pillars does not lead to the conclusion
that Regulation 45/2001 applies to Third Pillar matters. Then,
instead of Third Pillar matters, we have the so-called shared
competences between the Member States and the European Union,
so we have another chapter with its own rules and these basic
rules have to be kept and maintained in the future.
Q222 Chairman:
Thank you very much. Can I ask one very final question, which
is the Chairman's prerogative, I think? Returning to security,
you have many people working in your organisation in exactly the
same way that Europol do where the security of information is
very important, and presumably people who come and work here at
the higher levels are subjected to positive vetting in their own
countries and maybe here as well; I am not sure. I have been told
that there are wide variations between the standards of positive
vetting in various countries. Is there a move that you are making,
or Europol that you are aware of is making, but particularly you
are making, to try to move towards a standardisation of positive
vetting procedures and effectiveness in all the countries in the
Union?
Mr Lopes da Mota: Thank you very much
for this question because it is a very important point. What happens
today in the Third Pillar area is that each state has its own
law, its own regulation in regard to security. For instance, we
are negotiating with Europol a table of equivalences to protect
information, and we are in agreement that we should offer the
same level of security that Europol is offering, and the same
to Europol in relation to information to Eurojust, and then we
have these four levels of classification—restricted, confidential,
secret and top secret. The point is, what is confidential information?
What is restricted information? We have these concepts for Europol.
Now we are developing these concepts at Eurojust, but at national
level in the Member States what does it mean? We do not have a
common language, common standards and common rules and legislation
on this issue. I think there is a need in this area for legislative
initiatives in order to find common standards within the Member
States. We know that in some Member States we use this type of
classification for the so called judicial information, but in
other Member States we only have the rules of procedure in criminal
law, but there is no distinction between these different levels
and no criteria to identify, "Okay, this is confidential".
I think that work has to be done in this area.
Q223 Chairman:
President, I am sorry. I am not talking about information. I am
talking about people, to ensure that people have been properly
examined as to security vetting, as to whether they are suitable
for handling this material.
Mr Lopes da Mota: This is connected already,
and we have that in our security rules. Jacques Vos is the Chair
of our Security Committee that we have set up at Eurojust.
Mr Vos: My Lord Chairman, discussion
was raised very recently at a meeting both the President and I
attended of the Justice and Home Affairs agencies in Brussels,
where this issue came up as well. There is a lack of consistency
among all the players around the table when it comes to security
vetting. Also, the assistance that agencies like ours get while
requesting security vetting for personnel varies greatly from
country to country. In some countries we get a negative response
in that people associated with the judiciary in those countries
are typically not cleared due to their own rules or procedures,
and so there is a lack of consistency across the board. We made
an intervention last week requesting that also from the EU side
efforts are undertaken to centralise some of these processes of
positive vetting EU-wide so that there is a consistent level of
vetting and that the vetting exercises we conduct here on our
own, let us say, with the host country or vis-a"-vis the
UK Government at any point in time are exactly the same as when
Europol request those same kinds of clearance procedures for its
personnel, and we see deviations there. There is no consistency
whatsoever and this needs to be redressed in the future Europe-wide
because there is a big disparity now between the vetting procedures
applied in a NATO context, for example, where the military systems
are well equipped to handle this, and agencies like ours which
have not even come to comprehend what the human resource implications
are of vetting, so we do a defensive form of vetting in screening
applicants and scrutinising their applications. We are now in
the process of identifying those sensitive posts, those people
working with those files, and seeking security clearance, but
it makes no sense if I process a national member of a certain
country, let us say, to be cleared and I get a clearance result
back, "Sorry, but in our country this person can only be
cleared up to the level of restricted", or the equivalent
of restricted, our lowest classification. Really the issue is
that people should be cleared at any level. They should be cleared
at the highest level because you never know what the national
authority will apply to classify their information, so you will
end up going for top secret clearances and you know from the UK
system that these are very lengthy and very expensive procedures
to go through. This is something we are currently negotiating
even with the host state to come up with a memorandum of understanding
to facilitate it at least for the Dutch nationals in this country.
They were willing two years ago to provide this free of charge
and now they are coming up with price tags and they have actually
done some costing and what it costs to get a top secret clearance,
and so this is not a foregone conclusion. We need to address this
and we need to address it at a European level in my opinion.
Chairman: That is exactly what I was getting
at.
Q224 Lord Harrison:
Following the Chairman's very interesting question, perhaps not
for answer now but maybe you would write to us: do you experience
equal difficulties of the kind you have described in terms of
recruitment? That is, because the people who work here come from
different countries, are differently rewarded, Eurojust itself
will be differently viewed by different countries, some of you
have to interrupt your careers and go back to a country which
may be positive or negative about a period in Eurojust? If you
have any views on that we would be grateful to hear them but perhaps
we have not got time to hear the answer now.
Mr Lopes da Mota: Very shortly, in regard
to the composition of the national desks in regard to national
members' deputies and assistants, of course this is a responsibility
for the Member States to appoint and decide, and in that area
it is also for the Member States to define their status. Okay,
we have national members appointed from the 27 Member States,
most of the representations have deputies and assistants and this
is also developing. In principle operational information is limited
to the national desks. That means national members and assistants
appointed by national authorities. Then we have the staff side.
In relation to the staff Jacques, as he is the Administrative
Director, has more experience on this point.
Mr Vos: There is great disparity. The
Netherlands is a nice country and has a high standard of living
but also a high cost of living, and so we do see a disproportionate
push, I would say, from certain countries more than others to
apply for the lower end administrative positions. If you want
to talk about geographical balance in some areas, you get some
countries that are really right now in the forefront of the recruitment
procedures where we see certain countries applying for positions
and taking up 50% of the applicants, whereas the rest of the Member
States are hardly represented at all. There is an interesting
dynamic going on right now as far as recruitment is concerned
and we also find in the European setting, especially with the
administrative positions, that we are competing with other agencies.
This is something that is being raised in the joint heads of agencies
meetings that we have. We discussed this recently and we are trying
to come up with common application and selection criteria as much
as possible, but clearly countries like the south of Spain have
an added benefit for a lot of people—the sun shines, and
in this country we have a lot less of it, as you are well aware.
There are other factors as well that will skew the recruitment
procedures in general. At the higher levels, however, we see a
good, well balanced proportionality of all countries participating
more or less equally in competing for senior posts. It is at the
lower echelons that we have more difficulty.
Q225 Chairman:
President, we have overrun by 20 minutes. This is entirely due
to your generosity with your time and the kindness which you have
all extended towards us in what has been a fascinating session.
I want you to know how much we appreciate what you have told us.
You said at the beginning that you would answer all our questions
and I think you have. Thank you. We are most appreciative to all
of you.
Mr Lopes da Mota: Thank you very much.
There are two points, if you allow me to take your time, that
I think are also important which are related to our co-operation
with Europol. This is our contribution to the OCTA report because
we have worked with Europol in this area, and also, on terrorism,
the TE-SAT report. We can submit a written contribution to you
on these two specific points. They are good examples of excellent
co-operation we are developing with Europol specifically in these
areas.
Q226 Chairman:
Thank you very much.
Mr Lopes da Mota: And thank you very
much for your kind words and for coming.
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