FECL 32 (March 1995):
The Council of Ministers of Justice and Home Affairs (JHA) met in Brussels under the presidency of French Interior Minister Pasqua, on 9-10 March. A provisional legal basis for the Europol nucleus EDU, and the draft Convention on Europol were at the focus of the meeting. Other items discussed included the planned Customs Information System (CIS), the development of EURODAC, the European data bank of fingerprints, terrorism, extraditions, asylum policies and fraud against the EU.
Agreement was reached on the automatic inclusion (demanded by Spain) of terrorism on the list of crimes dealt with by Europol, by, at the latest, two years after the entry into force of the Convention.
Long-standing disagreement on the architecture of Europol's own electronic information systems appears to have been overcome by the ministers of the 15 EU member states. No agreement is, however in sight regarding rules on citizens' access to their personal data and on a jurisdictional role for the European Court of Justice.
Europol is to be equipped with an extensive automatised information system of its own (i.e not to be incorporated into with the planned European Information System (EIS)).
The system will be composed of three particular data registers - the Information System, the Analysis Register, and the Index System.
The Information System
The Information System (IS) is a central register of standardised data including the personal data of
- persons sentenced for or suspected of a crime (within the scope of Europol);
- potential future offenders;
Moreover the IS will contain data on offences, reproached offenses, the times and places of perpetration, and the authority responsible for the records.
Automated storage and retrieval of data is possible for Europol, the National Parties, i.e. the national authorities in charge of cooperation with Europol (one in each member state), and the Liaison Officers of the member states stationed at Europol's headquarters.
The Analysis Registers
The Analysis Registers (ARs) are special temporary registers to be set up by Europol for the analysis of particular criminal activities and environments.
Apart non-person related information they will contain extensive data (including "soft" data) on:
- persons registered in the IS;
- potential witnesses in the event of future criminal prosecution;
- potential victims of future crimes;
- contacts and accompanying persons of a suspect;
- informers and other reference persons.
According to the Draft Europol Convention of 10 October 1994, only Europol has full access to the ARs. The Liaison Officers' access is restricted to the mere retrieval of data concerning persons registered in the IS. The National Parties have no access but are instead bound to communicate all relevant information.
Europol may request information relevant to the ARs from EU institutions, Third states, international organisations (e.g. Interpol) according to rules agreed by the Council. On the basis of special agreements, data collected by Third parties can be retrieved automatically.
In the view of the Utrecht-based "Standing Committee of Experts on International Immigration, Refugee and Criminal Law", the ARs "will enable Europol to become a real criminal intelligence service on a European/international level, the first such body ever to have been created".
The Index System
The Index System exclusively contains key-words referring to information stored in the Analysis Registers. The Index System merely provides information about whether and where data relating to the entered key-word are kept.
According to the draft Convention of 10 October 94, access is limited to Europol and the national Liaison Officers. The latter's access is further restricted merely to information concerning their own country.
Disagreement mainly turned on the National Parties' right of access to the ARs. France, in particular, considered that national police and security authorities should have full access to the highly sensitive intelligence data stored in the ARs. The French demand high-lighted this country's reservations against a Europol architecture suggesting a possible operational role for the agency and a loss of sovereignty for national police.
It now seems that, in an effort to achieve at least some progress in the thorny negotiations on Europol, Interior Minister Pasqua has given in to mainly German pressure and accepted a system architecture basically following the outlines described above.
However, the dispute among member states about a jurisdictional role for the European Court of Justice was not settled at the Brussels meeting. Such a role for the Court is vigorously opposed by the United Kingdom (see FECL No.29, p.1).
According to Brussels sources, no progress was made with regard to the sensitive issue of citizens' right of access to their personal data. France and Britain are said to object to any mention - even in a restrictive form - of such a right in the Convention, while Germany points to its constitution which guarantees such a right - although with many exceptions.
Another unresolved problem is about whether and when personal files in the ARs stored for the purpose of a particular analysis operation, must be erased, once the operation has been closed.
Europol Drug Unit (EDU)
The EDU has been at work since January 1994. It was set up as the first unit and nucleus of the future Europol, by mere inter-ministerial agreement.
In what may be seen as an attempt to meet mounting criticism against this obvious lack of a real legal basis for the first unit of Europol, the Council has now decided to replace the inter-ministerial agreement on the EDU by a "Common measure" according to article K.3 of the Maastricht Treaty. At the same time, the number of forms of crimes dealt with by the EDU was extended far beyond the mere fight against drugs to trafficking in nuclear materials, smuggling of illegal immigrants, trafficking in stolen cars, as well as criminal organisations and money laundering involved in the above criminal activities.
According to the 1994 Report of Activities of the EDU, the office received almost 600 requests of information within its first year of existence.
Four criminologists employed by the EDU have begun with setting up a system of "strategic and operational analysis. Under the EDU's provisional statute, they are, however not authorised to store any personal data in a central data bank.
In February 1995, 27 national Liaison Officers were at work at the EDU office in The Hague (Germany: 6; France: 4; The Netherlands: 3; Belgium, Spain, Greece, Italy, UK: 2; Denmark, Ireland, Luxembourg, Portugal: 1). The new EU member states Austria, Sweden and Finland are expected to delegate Liaison Officers shortly.
While the EDU is, for the time being, prohibited from storing or processing data in central electronic data banks of its own, the Liaison Officers have full access to their national data banks and may exchange data with their colleagues from the other member states.
According to the Report of Activities, this has contributed to the speeding up and improvement of European police cooperation. The report names three practical cases, where this "pragmatic approach" lead to the detection of international criminals.
The personnel of the EDU consists of 30 persons, among whom five computer experts and 14 security agents. The Liaison Officers are not part of the EDU personnel, but are directly accountable to their respective member states.
On a technical level, the installation of equipment was achieved enabling:
- the transmission of coded information to some national criminal investigation authorities (Germany, Denmark, Belgium, Ireland and Holland);
- on-line access of the Liaison Officers to their national data banks (Germany only).
Connections have been established with a number of non-EU information sources, "in particular the National Criminal Justice Reference Service in Washington DC, CompuServe, and the UNCJIN-L (the United Nations information network on Criminal Justice).
The Customs Information System (CIS)
The Council accepted the principle of an "anticipated and provisional application" of the Convention - i.e the use of the CIS by the member states - by means of a "specific agreement". No agreement was reached with regard to the extent of the judicial competencies of the European Court of Justice.
The Council agreed on the regulation to produce a prototype for a uniform common visa. A number of reservations of some member states must however be removed, before a final adoption of the regulation.
An on-going study of the needs and requirements states with regard to the electronic fingerprint register EURODAC is to be extended to the three new EU-member states.
The JHA ministers further agreed on a draft Resolution on minimal guarantees of the asylum procedure (to be adopted by the next Council), signed a Convention on facilitated extraditions between member states (the first convention adopted in the framework of Title VI of the Maastricht Treaty), and heard a report of the Presidency on "Islamic terrorism".
Sources: Session 1831 of the Justice and Home Affairs Council, press-release, Brussels 10.3.95, 5423/95; Rapport sur les activités de l'Unité Drogue d'Europol du 1er janvier au 31 décembre 1994, The Hague, 24.1.95; Gemeinsame Massnahme bezüglich der Europol-Drogenstelle (Common measure with regard to the EDU), EU, the Council, Brussels, 7.3.95 (adopted 9.3.95), 5346/95, limited; 'The Draft Convention on the Establishment of Europol' Comments by the Standing Committee of Experts on Immigration, Refugee and Criminal Law, Utrecht, 10.1.95.