FECL 32 (March 1995):

MUDDLING WITH EUROPOL: WHO WANTS WHAT?

The EDU's Report of Activities and the significant extension by the Justice and Home Affairs (JHA) Council of the Unit's competencies (see article in this cl), makes one thing clear: The ministers are determined to quietly and gradually consolidate and expand the EDU, pending the entry into force of a Europol Convention that is now likely to take many years. The Germans enthusiastically call such proceedings a "pragmatic approach". Translated, this means creating faits accomplis on a basis of "ad hoc" agreements outside parliamentary and judicial scrutiny and legalising them "post hoc", if so required by some parliamentary busy-bodies.

The JHA ministers' most recent exploit, to rename their provisional and purely technical-administrative agreement on the establishment of the EDU a "Common Measure", does not make things better. As a matter of fact, "Common Measures" adopted under Title VI of the Maastricht Treaty do not provide for any parliamentary or judicial involvement worth mention. Legal experts and, as it seems, even the governments of the EU-member states, hesitate or even openly disagree about whether a "Common Measure" is actually legally binding or not. It seems as if nobody was particularly eager to examine the matter in depth, as both possible answers would deeply question the very legitimacy of the EDU. Declaring the "Common Measure" legally binding would imply that in the EU, executive powers are authorised to make law without parliamentary involvement. Declaring it legally non-binding would reduce the EDU regulations to a sheet of recycling paper, by depriving the Unit of any formal basis.

Thus we may expect the Council to muddle along as usual, while fundamental freedoms and liberties of European citizens are undermined step by step.

The EDU is already establishing contacts with automatised data registers of policing in the USA. Extensive cooperation with "third parties", including automatised access to their databanks, is provided for in the draft Europol Convention.

The draft also provides for the storing of non-verified personal data of any citizen considered by police to be a "potential victim of a future crime". In other words, if you are an asylum-seeker you may well be considered as a potential future victim of a smuggler gang, and if you are a proud car-owner, you might find your name stored in the "Analysis Registers", under the same rubric. However, this will probably not cause you any sleepless nights. Indeed, you are unlikely to ever learn about the police interest in your person. Access to your personal data, you must know, will be denied, if this could hinder the work of the police.

It seems that most governments are getting used to the prospect of having to live without a Europol Convention for a long time to come. Some observers in Brussels even wonder if all member states actually want a Convention and, in the last analysis, Europol.

The currently prevailing concept for Europol is largely "made in Germany". The German idea centred on making Europol a sort of "European Federal Office of Criminal Intelligence", with own powers. The role of Europol and its relations with the different member states would be comparable to the German BKA's position vis-ŗ-vis the Lšnder. This concept implies two things. First, a common willingness of the EU member states to move towards a "federalist" Union; second, mutual confidence of all member states' police and, in particular, intelligence services.

None of this exists, for the time being. A number of member states, mainly the UK, France, Denmark, Spain and, recently, Sweden, are more or less openly opposing any development of the EU towards more federal structures.

They are likely to press for a continuing development of police and internal security cooperation within the traditional framework of intergovernmental cooperation under Title VI (on Justice and Home Affairs) of the Maastricht Treaty. Thus, any Europol architecture suggesting a "federal" framework makes them uncomfortable.

The national police and intelligence services seem to have considerable reservations with regard to sharing sensitive information and know-how with a fairly anonymous central police office and, thereby, with police and security forces of member states they consider as "unreliable". There are reasons to believe that this view is very common among grassroots police and intelligence officers. They will hesitate to share any information with an anonymous central office, and hence its data banks. Instead, they will tend to privilege "private" contacts with colleagues in the member states whom they know personally and whom they trust.

The French have, for a long time, opposed an architecture of Europol's data registers, which exclude the national authorities of each member state from full access to all information stored in the Europol computers, while the British have expressed strong reservations against making sensitive information accessible to all national parties on the grounds that this would result in an unacceptable risk of leaks of sensitive information.

The French and British arguments are less contradictory than might appear at the first glance. As a matter of fact, in the last analysis, they both amount to questioning much of Europol's raison d'Ítre. Indeed, the French must have been well aware that compliance with their demand would have amounted to making Europol's data banks useless. Given Europol's strong (and very questionable) focus on intelligence activities, no member state, France included, would hand out any information of importance to a Europol unable to prevent leaks. Instead, police cooperation and intelligence exchange would probably continue to develop relationships with "reliable partners", on a more informal level and according to the rules of "give and take".

We may guess that this is exactly what both France and Britain want.

Some observers in Brussels also believe that the willingness currently shown by Britain and other "anti-federalist" member states to achieve some form of agreement on Europol might actually aim at proving the effectiveness of inter-governmental cooperation under the Third Pillar of the Maastricht Treaty, with a main purpose of countering in advance calls for an integration of the Third Pillar into Community law.

French lack of enthusiasm for Europol could also indicate that, in secret, France is still cherishing the idea of developing European police cooperation within the framework of Interpol (whose headquarters are in the French City of Lyon), rather than Europol.

French Interior Minister Pasqua's spectacular effort to overcome the deadlock in negotiations on the Europol Convention by proposing a "compromise" on the System architecture might soon prove to be a purely tactical move. Elections are on the agenda in France, and Mr. Pasqua, who has successfully cultivated his image of a "tough-on-crime" minister, is eager to suggest at home that, far from obstructing the setting-up of Europol, he is doing his best to speed up European police cooperation against "illegal migrants", and other "criminals and terrorists". However, one should not forget that the French elections will be held in May. It remains to be seen, whether France will be just as committed to reaching agreement on Europol one month after the elections, at the European Council in Cannes in June - the next occasion for the governments of the EU member states to sign the Convention.

 

N.B.