FECL 48 (November 1996):
The Europol Convention will enter into force in less than two years. In the mean time, EDU (Europol Drugs Unit), the precursor of the future European Police Office, is rapidly expanding. The only legal basis for EDU activities consists of ministerial agreements of June and October 1993 and a Joint Action adopted by the JHA Ministers in March 1995. As opposed to the future Europol, EDU is not authorised to run any own data registers within the pre-Convention framework of bilateral co-operation. Nonetheless, the member states 38 liaison officers at the EDU headquarters in The Hague already have direct access to their national police information systems. This enables liaison officers to assist police investigations in particular cases involving more than one member state. EDU is also allowed to carry out general analyses and assessments of various forms of crimes, based on non-personal data.
Mr Storbeck notes that the liaison officers at EDU already now have access not only to criminal search data, as can be found in the Schengen Information System, but also to more comprehensive national police data bases. These national registers contain data on "perpetrators, groups of perpetrators, addresses, telephone numbers, elements of suspicion, etc." Some of this information consists in so-called "soft" data, i.e. non-verified information, requiring further assessment by EDU before being of use for the work of the police. Storbeck notes: "In the last analysis, our liaison officers have direct access to approximately 40 national police or Customs information systems, and in addition to this, to a number of administrative files or electronic registers".
The non-central storage of personal data in the registers of the national units or the offices of the liaison officers takes place according to the respective national legislation. But, says Storbeck, "the common methods and techniques for the exchange of personal data inside Europol [EDU] via the internal network had to be established and are subject to continuous change because of new technical developments".
Storbeck laments what he calls a "regulation deficit". In spite of considerable progress in various fields, this lack of regulation is hampering the work of EDU, he complains. He particularly stresses that there is an "urgent need for Europol-co-operation with third states and international organisations already in the current pre-Convention phase. A serious problem for our work is that the Europol Drugs Unit cannot cooperate on a regular basis with third states such as e.g. Norway, Switzerland, the Central and Eastern European States, the USA and Canada". On the other hand, Storbeck describes current EDU co-operation with international organisations such as ICPO-Interpol, World Customs Organisation (WCO) and the United Nations as "informal but very close".
Thus, in spite of the "regulation deficit", EDU "has already become a platform for the exchange of experience in the field of criminal investigation, but also for co-operation in concrete investigation procedures. We can offer the necessary logistic means such as conference facilities, interpreters, operation premises and means of communication".
The daily exchange of operational findings between member states via EDU is steadily increasing. In 1995, EDU provided assistance in about 1,500 international investigations, as against only 595 in 1994. At the end of September 1996, the number of cases with EDU involvement had already exceeded 1,500.
60 per cent of EDUs activities concern drug criminality. The remaining 40 per cent are shared equally between money laundering, motor vehicle trafficking and smuggling of immigrants. Crimes involving nuclear materials have had practically no significance in EDUs work with particular investigations. Mr Storbeck notes that operations involving trans-border observation and so-called controlled deliveries, organised by EDU, produced "considerable success" in the form of seizures and arrests. But his paper contains no figures to corroborate this.
National prosecution authorities are benefiting from having permanent representatives, i.e. their liaison officers, at EDU. The fact that liaison officers continue to be accountable to their respective national authorities in carrying out their tasks, has had positive effects, in the view of Mr Storbeck, by bringing about "greater confidence, in particular in connection with sensitive information". "At any time, that is round the clock, the Europol-liaison officers can quickly reply to inquiries, overcome language barriers, and at the same time contribute with their expertise."
"The capability to process sensitive operational information immediately - within hours or even minutes - is of crucial importance in assisting and co-ordinating international controlled deliveries and international surveillance measures. The liaison officers now have a well-equipped operation and co-ordination room at their disposal, which enables them to work together closely without at any moment losing contact with their national units under whose orders and control they always carry out their tasks".
According to Mr Storbeck, the "strategic role of EDU" in addressing the problem of drugs in the EU was enhanced by EDUs contribution to the EU strategy paper Cordrogue 69, adopted in December 1995 by the European Council in Madrid.
A special project team is charged with defining the role of EDU in the field of illegal trafficking of immigrants. The team is made of representatives from six member states and is being assisted by EDU staff. EDU action brought about "a number of successful investigations and measures against organised crime in the field of illegal immigration", Mr Storbeck claims.
"EDU analysts have carried out both strategic and operative tasks" and national authorities are making increasing use of their services. In 1995, the EDU analysts provided five annual reports, carried out 18 major strategic analyses and provided assistance with minor analyses in more than hundred particular investigations.
Under the Convention, each member state will set up a central national unit dedicated to representing the interests of the respective member states "competent authorities" in the field of the fight against crime. Mr Storbeck comments: "Despite long discussions, it remains partly open which national authorities will be allowed to communicate with Europol. Particularly the role of the security authorities (secret services), which have considerable competencies in some states, notably in combating terrorism, is unsettled".
In the opinion of Mr Storbeck, Europol in the post-Convention phase should be considered an "almost federal central police agency comparable with the Bundeskriminalamt (of course without the latters own powers of investigation)". [The Bundeskriminalamt (BKA) is the German Federal Office of Criminal Investigation.]
On the other hand, it will be "a platform for and an expression of intergovernmental co-operation through strong liaison offices of the member states".
Mr Storbeck concedes that the question of whether Europol will be allowed to conduct its own investigations and will be granted own operational powers as a sort of a "European FBI" before the end of the century, is far from being settled, both politically and legally. The item could be discussed again at the Intergovernmental Conference on the Maastricht follow-up (IGC). In the view of Mr Storbeck, the tasks and competencies of the investigators of the Yugoslavia Court in The Hague could serve as a model for future powers for Europol to conduct own investigations.
[Germany has long called for a "European FBI", and in July this year, the governments of six EU member states (Ireland, Germany, Belgium, Spain, Luxembourg and Italy) announced their intention to promote the idea of a European police force with own operational powers, along the lines of the American FBI, at the IGC].
However, Mr Storbeck questions whether the member states differing criminal, criminal procedure and police legislation actually provide a sufficient legal basis for Europol to carry out its own investigative activities. He further raises the question whether international or national judicial authorities, able to "complement and control" an "operational" Europol already exist or would have to be created, and whether Europol investigators would be accepted by the public in the EU member states. One thing is certain, says Mr Storbeck. There is an urgent need for international investigations and effective operational support of investigations. "This is particularly true with regard to member states lacking strong central authorities with a wide network of liaison officers and experienced specialists".
Mr Storbeck suggests that "international task forces" could be set up within the framework of Europol. National police officers would take the necessary investigative action in their own member state, based on their respective competencies and executive powers, but the investigation would be led centrally.
Europol can offer premises, communication facilities, "a certain international status" and staff assistance, Mr Storbeck says. Therefore it would be "appropriate to place such task forces with Europol".
Mr Storbeck appears to regard Europol as a driving force for European harmonisation in the field of Justice and Home Affairs. The setting up of Europol, he argues, has already had knock-on effects in member states, insofar as there has been a tendency towards the creation of a common criminal law or at least the introduction into national law of identical criminal offences aimed against new forms of crime. In these particular harmonised sectors, competencies could be transferred to Europol.
On the continuing negotiations on the controversial Implementing Rules for Europols Analysis Files (see article in this issue: "EUROPOL: NO PLANS TO ABANDON STORAGE OF SENSITIVE PERSONAL DATA"), the Co-ordinator of Europol stresses that Germanys position is "uncomfortable", both professionally and politically speaking. "Having accepted an extremely rigid categorisation of personal data, based on German conceptions, but contrary to the needs of modern methods of analysis, the other states are no longer prepared to meet German requests for a considerable reduction of categories - i.e. as little details as possible on certain groups of persons. In the negotiations, Germany is isolated by now. Due to a too-narrow definition between the Federal Interior Ministry, the Federal Justice Ministry and the Länder of the German negotiation stance, there is currently little freedom to manoeuvre". And according to Storbeck, similar problems are likely to arise with respect to the rules on secrecy protection.
In spite of many remaining problems and lacks of regulation, Mr Storbeck is satisfied with progress made in recent years. Co-operation in the field of internal security, he stresses, is developing "fast, according to national standards, and very fast according to international standards".
Sources: Stand und Perspektiven von Europol, text of a speech by Jürgen Storbeck at the 14th Conference of German Länder-Ministers responsible of European Affairs, Potsdam, 11.10.96 (all quotations from the paper are our translations from German); Dagens Politik, 16.7.96 (Six countries want common EU police).