FECL 24 (May 1994):
To a large extent, the draft convention is literally identical with the provisions of the Schengen Implementing Agreement's Title 6 establishing the SIS.
As for the SIS, the need for the EIS is justified in the preamble by the alleged need for compensatory measures in the fields of public order and security as a precondition of free movement of persons within the territory of the EU. It is explicitly stated that the EIS shall be based on the Schengen Information System.
However, unlike the Schengen Implementing Agreement, the draft does not make plain whether the term "foreigner" applies only to non-EC nationals (as in the Schengen Agreement) or if it includes EC nationals. The final definition of the term could have important effects regarding the rights of EU- citizens travelling to or staying in another EU member state.
Like the Schengen regulations on SIS, the draft names the protection of State security as one of the objectives of the EIS.
Article 8 of the draft convention also adopts, word for word, the very questionable SIS provisions on the admissibility of "covert surveillance" of any person (including EU nationals) not only for the purpose of crime repression but also for the "prevention of threats to public security". So, on receiving a request from the authorities responsible for State security, the EIS may also be used for the covert surveillance of people, "if and when concrete indications allow the supposition that the information . . . is necessary for the prevention of a serious threat emanating from the subject or other threats to the internal or external security of the State" [All quotations from the draft Convention are non-authorised translations from French by the editor].
Article 10 regulates the access to the data stored in the EIS. Its wording does not unequivocally exclude intelligence services from access. The provision's point 4 seems to indicate that this decision is up to each Member State. Article 25 provides for the use of data stored in the EIS by, among others, "the services and authorities carrying out a task or fulfilling a function within the scope of the objectives [of the EIS]". The principle of a right of access for persons to their own data is stated in the draft, with important exceptions, however. Thus, information is automatically refused to any person under covert surveillance (Article 20).
Protection of personal data must meet the requirements of the Council of Europe's Convention on data protection. The Danish, Irish and British delegations have, however, expressed reservations on the applicability of these protection standards to non-automated data - that is, data held in manual rather than computerised systems.
As in the Schengen Implementing Treaty, an Executive Committee composed of a representative of each member state is put in charge of controlling the "general functioning" of the convention and of "seeing to the correct implementation of the
arrangements [of the Convention]". The Committee establishes its own procedural rules.
In the context of the Schengen agreement, such extraordinary law-making and law-interpreting powers of an "Executive Committee" - appointed exclusively by the governments - has drawn strong criticism from many quarters (see CL No.21, p.2). This does not appear to have deeply impressed the working group of senior officials (mostly the same who drew up the Schengen agreement!) drafting the EIS Convention.
Although the Convention will constitute an intergovernmental agreement according to international law -and not Community law - the present draft provides for a (limited) role for Community institutions in accordance with Title VI of the Maastricht Treaty on European Union (TEU): The European Commission may participate in the discussions of the Executive Committee and the working groups under its purview. The secretarial staff of the Committee is provided by the General Secretariat of the Council. No mention is, however, made in the draft of the Court of Justice of the European Union, although a jurisdictional role of the Court has been provided for in Title 6, Art. K.3(c) of the TEU and is being demanded by the Italian and Dutch delegations.
A "common declaration" in the draft states that the Convention can not enter into force as long as the EIS is not legally and technically operational in all Member States. This provision is likely to have been added to the draft in the light of persistent problems in making the SIS, the prototype of the future EIS, operational (see FECL No.23, p.1).
For the time being, an early signature on the draft convention seems unlikely for various reasons:
The idea of establishing a European police office originated with the Germans. In June 1991, Chancellor Helmut Kohl presented a respective proposal at the Luxemburg European Council. Later, the objective of creating Europol was formally incorporated in the provisions of Title VI of the TEU on cooperation in the fields of Justice and Home Affairs. One of the areas named in Article K.1 as "matters of common interest is "police co-operation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs co-operation, in connection with the organisation of a Unionwide system for exchanging information within a European police office (Europol)". After Maastricht, work on setting up Europol was carried out along two lines:
Negotiations on the Convention are taking place under the auspices of the K.4 Committee by the "Europol Working Group" (formerly known as the TREVI "Ad hoc Group Europol") attached to the Steering Group on Security and Law Enforcement, Police and Customs Co-operation. With the entry into force of the Maastricht Treaty on European Union, this "Steering Group III" has replaced the TREVI co-operation of senior officials in the above fields.
According to the provisional text of the draft Convention available to the CL (from 8 November 1993), the objective of Europol is to improve, within the framework of police co-operation, the effectiveness of competent authorities "for the purposes of preventing and combatting unlawful drug trafficking and other serious forms of international crime". It does not follow from the text whether co-operation within Europol will be strictly limited to law enforcement agencies, or whether it could also eventually include intelligence services, and if so, to what extent.
An annex lists the forms of crime to be dealt with by Europol. Other forms of crime may be added to the Convention by the European Council at the proposal of the Management Board of Europol.
It is not made explicit in the draft whether a form of crime must be liable to prosecution in all Member States in order to be included in activities of Europol. One proposal suggests that this should also be possible when a form of crime "can be subject to police investigation".
Article 3.1 of the draft Convention lists the tasks of Europol. Among other things, Europol shall request, analyse, develop and disseminate "information and intelligence" relating to areas of criminality defined in the Convention; facilitate national investigations by providing connections with information or investigations on the territory of other Member States; develop expertise in the investigative procedures and offer advice and support in investigations; provide "strategic intelligence" to assist and promote the efficient use of national operation resources and prepare general situation reports and crime analyses on the basis of information from the national units.
Article 3.2 says, that the Council may, within the limits of Article K.1.9 of the Maastricht Treaty, entrust Europol with additional tasks. It seems that no agreement has yet been reached on whether the Council must act unanimously or by a two thirds majority.
Europol shall further carry out tasks in the fields of police training, organisation and equipment, prevention of crime, and technical and forensic police methods and investigative procedures.
Each member state will set up a national unit as its only point of contact with Europol. These national units shall of their own initiative supply Europol with "information and intelligence which may be of importance to carry out its tasks, respond to Europol's requests, and exploit and disseminate information and intelligence for the benefit of national agencies.
A series of provisions refer to the "automated processing system implemented by the Central Unit of Europol". As, strangely enough, no express mention of the EIS is made, it is not clear whether the draft Convention establishes another European police computer particular to Europol and outside the EIS. However that may be, the draft contains a series of provisions regarding data transfer and protection that are identical with the respective regulations in the draft Convention on EIS.
The communication of "soft" (i.e. unverified) data is authorised by the draft. A Member State "may supply information with the sole aim of receiving from the other [Member States] any information they hold that relates to the original communication".
Article 14 of the draft states that Europol "may communicate [data] to third countries and other international bodies and receive data from the said countries and bodies". The rules for such contacts will be established by the Management Board and must be unanimously agreed. The wording of this provisions seems to indicate that Europol may enter into close co-operation with international organisations in the field (e.g. Interpol) and police authorities of non-member states merely by the decision of its Management Board.
The Management Board of Europol shall be composed of one representative from each member state and shall draw up its own rules of procedure. Its three-year work programme will be submitted to the Co-ordinating Committee established by Article K.4 of the TEU with a view to its adoption by the Council.
By contrast with the draft Convention on the EIS, Article 20 of the draft Convention on Europol provides for a role for the Court of Justice, whenever a Member State considers that another Member State has failed to fulfil an obligation in accordance with the Convention. Under the same conditions, the Europol Management Board may bring a matter before the Court of Justice.
The Court has sole jurisdiction to hear and determine disputes regarding the legality of decisions of the Management Board and can give preliminary rulings on the interpretation of the Convention as well as on the Management Board's decisions.
However, nothing is said in the draft about a right (in accordance with Community law) for individuals to address the Court.
At meeting in Brussels on 23 March, the Council of Ministers of Justice and Home Affairs called on all Member States to "show willingness to compromise" in a view to conclude work on the Convention in October. This indicates that there still is major disagreement among member states on both the role of Europol and the extent of its integration into Community structures.
Sources: Provisional text of the draft Convention on the establishment of EUROPOL, Presidency of the Council, Brussels, 8.11.93, 9757/93, restricted; Council of Ministers (JIA), Agenda of the Brussels meeting on 23.3.94, point 4; Projet de texte de la Convention créant un système d'Information européen (EIS), the Council, Brussels, 10.11.93, 9925/93, restricted; Note de la délégation belge au Comité K.4 au sujet du Projet de Convention créant un système d'information européen, undated; Position de la délégation grecque sur les réserves signalées dans le document 9925/93 CK4 7; Projet de Convention créant un système d'information européen (SIE), Communication of the Presidency of the Council to the K.4 Committee, Brussels, 12.1.94, 4077/94, restricted; Note de la délégation espagnole au sujet du Projet de Convention relative au Système d'information européen, Le Conseil, Bruxelles, 19.4.93, CIRC 3632/93; Communication à la presse sur la 1738e session du Conseil Justice et Affaires Intérieures Bruxelles, 23.3.94; Avis du Service juridique du Conseil au sujet du Projet de Convention portant création d'un Office européen de police (EUROPOL), Bruxelles, 19.3.93, 5527/93, confidentiel.
"(Legal) form is the twin sister of liberty, the sworn enemy of arbitrary rule".
These words, by the eminent German jurist Rudolph von Ihering, come to mind whenever I read the seldom available and mostly confidential documents emanating from one of the numerous bodies dealing with European co-operation in the fields of police, justice and internal security. Indeed, the only really long term constituency of interests perceivable in this field of European policy-making is the strong concern of the executive powers, i.e the ministers, senior officials, police and security experts involved, to work in secrecy, unmolested by any rules other than those agreed by themselves.
Lack of form, i.e the lack of unequivocal and binding legal and institutional frameworks drawn up in accordance with constitutional principles prevents transparency and paves the way for the arbitrary and high-handed rule of executive powers and politically non-accountable administrative bodies.
Lack of form has marked the EU member states' co-operation on police, justice and internal security since the very beginning, when the TREVI co-operation began in the mid 70s. Instead of seeking genuine harmonisation based on common European legislation drawn up by public debate and parliamentary proceedings, the governments of the Member States opted for the "easy" solution. It consisted in avoiding as much as possible both democratic debate and the necessity to seek political approval by taking a "pragmatic", administrative approach. Fundamental long term policy issues were deliberately not addressed, whenever it was considered that their discussion might give rise to opposition likely to slow down the process of unification. This risk was clearly reduced by taking one little step at a time within the framework of inter-governmental agreement rather than of Community legislation. As opposed to Community legislation, inter-governmental co- operation is largely confidential and takes place away from parliamentary or judicial scrutiny.
Whenever possible, common practice in any particular field was introduced by means of more or less informal technical-administrative guidelines and arrangements among the ministers and senior officials involved. Only if it became inevitable was a convention, i.e. a treaty according to international law, drawn up. Indeed, even conventions have become unpopular with governments, because, although they may be negotiated, drawn up and signed without any parliamentary participation, conventions cannot be implemented without prior approval of the national parliaments. The Maastricht Treaty on European Union has changed little in this regard. European co-operation in the fields of Justice and Home Affairs is still a matter of inter-governmental agreement, although its Title VI theoretically provides for a Community role in certain domains.
The Byzantine legal and institutional tangle caused by an ever growing number of intergovernmental agreements (ranging from legally non-binding inter-ministerial "Recommendations" and "Conclusions" to Conventions) and a plethora of bodies ("Ad hoc working Groups", "Committees of Co-ordinators" and "Executive Committees", TREVI meetings, etc.) is no less of a mess, just be- cause Justice and Home Affairs co-operation has been declared a "matter of common interest" and has been given new names such as K.4 Committee, Steering Groups I-III, etc.
Maastricht has achieved no more than giving a formal appearance of legitimacy a posteriori to an inter-governmental practice based on secrecy, technocratic elitism, and contempt for elementary rules of democracy.
The draft Conventions both on Europol and the EIS are typical products of this mentality. As a rule, they lack the formal precision one might expect from legal texts. This is due both to incompatible national legal systems and fundamental political disagreement among EU member States creating a need for vagueness. As a consequence, the executive bodies established by the Conventions for their implementation (the Management Board for Europol and the Executive Committee for the EIS) are actually given strong legislative power. They will, by their practice and internal regulations, interpret and thereby shape the conventions according to their own objectives.
It is well known that the British government is opposed to Europol having its own operational powers, whereas the German government is advocating a European FBI, a common European police force with a right to carry out its own operations in all Member States.
While - for the time being - limiting Europol to a body of ex-change of information and experience, the draft Convention already provides for the gradual extension of its tasks by decision of the Council.
The list of "forms of crimes" to be dealt with by Europol includes the association de malfaiteurs (criminal organisation), despite the fact that in some Member States there is no legislation on this form of crime. Moreover, the list can be extended at any time by decision of the Management Board.
Not the Convention but the Management Board defines the form and extent of Europol's co-operation with international and third country agencies of policing.
Which forms of crimes will Europol deal with? Will Europol, sooner or later, have operational powers? Are Europol and EIS mere law enforcement instruments or will they also serve intelligence purposes, thus blurring the line between police and secret service responsibilities? In how far are they part of Community structures? Will there be some form of parliamentary and judicial scrutiny? What will their relationship be to future agreements in the fields of Justice and Home Affairs co-operation such as judicial and customs co-operation, immigration policy, and state security?
The elastic provisions of the draft Conventions are silent on these and many other however crucial questions. Instead, they give discretionary power to executive bodies to shape the law later - once the parliaments of the member states, by ratifying the Conventions, have renounced their right of say.
Will parliaments approve what amounts to their own emasculation?
They might not even be asked to do so. Indeed, it is believed that the governments of some member states, among them France, are questioning whether it is politic to formulate conventions, because of the minimal democratic scrutiny and publicity their ratification implies. They would prefer to establish Europol and other structures of police and internal security co-operation by mere inter-ministerial technical-administrative agreements not subject to any parliamentary approval.
Von Ihering was right: Form is the twin sister of liberty, the sworn enemy of arbitrary rule.