FECL 33 (April 1995):
As reported earlier (FECL No.32, p.6), the Justice and Home Affairs Council agreed on the architecture of Europol's electronic data registers at its meeting on 9 March in Brussels. Meanwhile, more details about the system architecture have been revealed by the Brussels-based Agence Europe.
We have already described the three particular data registers in Europol's information system in some detail and will only mention here the additional information reported by Agence Europe. Most of this pertains to the so-called Analysis Registers (ARs). These are "working" registers set up temporarily for the purpose of strategic and operational analyses. They will contain "particularly sensitive" information. Two main forms of analysis will be carried out:
a) "Strategic analyses" will cover general criminal phenomena and will not include personal data. They will be based on information provided by the 15 member states as well as third countries and organisations. Through the intermediary of their Liaison Officers (LOs), the member states will have full access to the results of these analyses, whose purpose is to form the strategy of the EU member states in fighting organised crime and thereby improving the coherence and efficiency of national authorities in the field.
b) "Operational analyses" will focus on specific cases of criminal activity within the purview of Europol. They will include a more limited number of member states - those directly concerned by the investigation. The main objective with these analyses is to finalise decisions and operations to be carried out by the authorities concerned in the member states participating in the investigation.
These "operational" ARs will contain the most sensitive information. While the rights of each member state within Europol must be respected, security and confidentiality must be assured with respect to these data, the proposal says. Therefore, the most sensitive data stored in these registers shall not be accessible to the national parties and all OLs. Instead, they shall be communicated directly, by conventonial means or electronically, to Europol's Analysis Groups by the LO (or LOs) directly concerned. The same procedure shall apply to information of similar character provided or requested by third states or organisations.
The Index System shall merely mention the existence of such data with key-words, i.e. in a non-explicit form that does not allow for any crosschecks if the LO consulting the Index does not have at his disposal the full relevant information on the specific case.
Like the information processed by an Analysis Group, the data stored in the Index System will not be directly available to the national parties. Europol's Analysis Groups will work alone with these data, in "close association" with the LOs and/or experts of those member states that have communicated the data and those "invited" by the Analysis Group to participate in a particular investigation on the grounds that their country is directly concerned by the analysis project. However, if a LO who is not yet participating in a specific analysis finds that he needs to be initiated into the investigation, he and his national party may demand to join the investigation. Such a request must however be presented as a formal, written application filed by the applicant member states.
The French compromise proposal emphasises that the member state which communicates information to Europol shall alone decide whether and to which extent the data concerned are sensitive. Any dissemination or use of analytical data is subject to prior consultation among the participants of the analysis. A member state acceding to an analysis already under way will be forbidden to spread or use the information without prior permission of the member states primarily involved.
The compromise proposal further provides for a conciliation procedure in the event of disputes with respect to the incorporation of a new participant into an analysis. The procedure is made up of three stages:
1. The participants in an analysis will attempt to find a "solution acceptable to all" with the applicant state. Pending a decision which must be taken within eight days, the applicant state will not participate in the analytical work.
2. The refusal by the participating states to incorporate the applicant state entails a meeting of the officials in charge of all member states concerned within three days with an aim of achieving a "consensual outcome" of the dispute. Europol's director participates at this meeting. At this stage of the procedure the applicant state may still not participate in the analysis.
3. If no solution is found at the meeting, the member states' representatives in the Administrative Council (management board) of Europol will meet in urgent session within eight days and take a "consensual decision".
Source: "Europe"- No. 6453, 1.4.95 (Agence Europe).
It remains to be seen whether the compromise formula proposed by the French and agreed by the JHA Council (the council of EU Justice and Home affairs ministers) will work in practice. Both the proposed system architecture and the conciliation procedure are so complex and at the same time so open to interpretation, that they pave the way for disputes and rivalries.
The compromise formula conveys the JHA ministers', and in particular French interior minister Charles Pasqua's desperate need to demonstrate unity, rather than willingness to achieve effective cooperation based on clear rules. Obviously, the ministers are feeling pressed to achieve some progress on Europol. So they agree on regulations which are reminiscent of declarations of intent rather than of applicable rules (Remember Maastricht!).
The very wording of the compromise suggests that a major obstacle to European police cooperation on a basis of equality and mutual confidence of all 15 member states remains. Many national police and intelligence circles appear profoundly reluctant to share their "sensitive" information with a supra-national body and with the authorities of certain member states. In spite of the regulations in the compromise proposal pertaining to the access to sensitive data, nothing will prevent national parties from simply not communicating important information to Europol. As for the conciliation procedure, it remains a mystery how the management board of Europol shall be able to take a "consensual decision", should one or several member states fundamentally object to another member state's right to participate in an analysis project.
On the one hand, it seems inconceivable from a political point of view that any member state would accept its own exclusion. If, on the other hand, the incorporation of a member state in an on-going analysis project is accepted merely in order to prevent a political row, the national parties opposed to the applicant's participation may be expected to think twice before communicating any sensitive information to Europol.
Signing the Europol Convention in June at the Council in Cannes is one thing. Making Europol an effective agency is another, unlikely to be achieved by mere ministerial demonstrations of political determination.