EUROPOL ON DRIFT
Unusual discretion marked the signing act of the Europol Convention, on 26 July in Brussels.
No minister appeared at what one would expect to be a ceremony in front of a sea of TV cameras. Instead, the text was signed by the EU member states' delegates at the Committee of Permanent Representatives (COREPER), in an atmosphere of almost shameful intimacy.
Indeed the belated signing of a "rump" convention simply leaving out the matter of jurisdiction by the Luxembourg Court (European Court of Justice: ECJ) was not really a matter for the Council to be proud about. Any publicity for the event would only draw public attention to the fact that the Convention had actually not been signed at the Cannes Summit in June, as solemnly promised by the Council at the end of 1994. Moreover, it threatened to highlight other serious defects of the Convention text, that all too obviously reflect the ministers' continuous incapacity to define a common and publicly defensible policy in the domain of policing.
The very circumstances of the signing of the Convention in July, as well as the preceding squabble in Cannes, merely illustrate the atmosphere of discord that has marked the creation of Europol from the very beginning.
Disagreement from the start
Indeed, according to the first common initiative aimed at setting up a European police office, and later to the Maastricht Treaty, the activity of the planned organisation was to be strictly limited to the exchange of information. There was no question of giving Europol any operational powers.
The British representatives participating in the group of senior police officers working on the first project in Strasbourg (under British presidency) made a draft in compliance with these prerogatives. It was striking that, according to this first British draft, Europol would not control its own data. Instead, the data should remain the property of the member states who communicated them. Moreover, the draft provided both for strict security measures regarding access to the data and for the access of citizens to their own data. It also established the jurisdiction of the Luxembourg Court (European Court of Justice). On this last point, however, the British government blew the whistle on its own civil servants. The Danes and the French also protested. As a consequence, after taking over the presidency, the Germans made a new proposition in June 1994. This German initiative was a clever attempt to overcome the controversy triggered by the British draft. On the one hand, it sought to embed Europol in the framework of the European Union to some extent by providing for competencies of the European Court of Auditors, of the Luxembourg Court and of the European Parliament. On the other hand, the draft proposed many full competencies for Europol pertaining to collecting, processing and communicating data of its own, while at the same time providing for a direct access of individuals to their own data.
Although this German draft was accepted as a basis for discussion, it drew a lot of objections from the other member states.
The French compromise formula
The dispute between the ministers was about the following items:
- the "architecture" of Europol's information system, the access of the member states' police services to data stored by Europol, and citizens' access to their own data;
budget control;
the competencies of the European Court of Justice (ECJ) and the European Parliament.
Based on a new compromise proposal presented by the French presidency at a meeting of the JHA ministers on 26 January in Paris, agreement was reached on each of the above topics except for the competence of the ECJ.
De facto operational powers for Europol?
The system architecture and the access of police services are important matters because they touch the protection of data against leaks as well as the possibility of own independent action of Europol. It is well known that Germany in particular wishes to entrust Europol with as many operational competencies as possible, thus permitting it to work on its own initiative.
Europol's information system will be composed of three types of data registers: the Information System (IS); the Analysis Registers (ARs) and the Index System.
The IS is a central register of data including personal data of sentenced and potential offenders. These data can be used by Europol itself and by the national authorities and their liaison officers at Europol's headquarters in The Hague.
The ARs are specific Europol instruments and will contain non-person related information as well as soft data on persons (persons registered in the IS, as well as potential future witnesses and victims, contact persons, informers, etc). They are set up for the purpose of strategic and of operational analyses. Strategic analyses will cover general criminal activities. The member states have full access. Operational analyses will focus on specific cases directly concerning a limited number of member states. They contain more sensitive information which will be communicated only to the states that are directly concerned by the analysis and that have communicated information to Europol. Other member states have to file an application, if they wish to join the investigation. Any dissemination of data is subject to prior consultation among the participants of the specific operational analysis. In the event of disputes, a conciliation procedure is provided for.
Finally, the Index System contains only key words. Access is limited to Europol and the liaison officers, but restricted to information concerning their own country.
Complex system architecture open to dispute and abuse
The whole architecture is highly complex and therefore open to all kinds of interpretations and disputes.
It is not certain that national police authorities will communicate their "sensitive" information to Europol, which they know will always try to function as an independent body - as the first real European criminal intelligence service.
There is also a manifest danger of an uncontrolled use of personal data that could result, inter alia, in innocent citizens being stopped by the police, merely because their data have been transmitted by one or another national criminal investigation authority.
Citizens' right of access to their own data undermined
Regarding citizens' access to their data, a problem lies in the great differences of national legislations. A right of direct access is provided in Germany and the Netherlands; other countries grant indirect access.
The French proposal contained the creation of a "common authority" and a "single point of application" within Europol, where any citizen could ask to check his personal data. If the data concerned originate not from Europol itself but from a national police service, Europol would forward the demand to the member state concerned, which would then handle it according to its national legislation.
In fact, the right of access of individuals to their own data is not guaranteed at all: Europol as well as any member state involved in an investigation can refuse all information, "if such refusal is necessary" according to the truly catch-all grounds named in Article 19 of the Convention. Europol is not even required to give an explanation. Denial of information can be appealed against, it is true, but the applicant is most unlikely to obtain a reversal of the initial decision. For the citizens, the access to their own data becomes all but impossible.
"Ad hoc" audit committee
The Germans proposed that the European Court of Auditors should be competent to control the Europol budget. Both France and the UK rejected this proposition. They want to keep Europol intergovernmental and are firmly opposed to any "communitarisation".
Finally, the French compromise formula was accepted: the creation of an "ad hoc" body, made up of three members of . . . the European Court of Auditors. This raises the question of whether the Court could be able to refuse this arrangement.
Parliamentary control: wishful thinking
From the very beginning, the European parliament asked for a chance to control Europol. This demand was always a matter of disagreement between the member states.
The European parliament was at no stage involved at all in the preparation of the Europol project. Nor were the national parliaments.
Finally, the French presidency proposed to only apply the Maastricht treaty's article K.6 and to add just one new element: that the European Parliament would be communicated an annual report on the activities of Europol and that it should be consulted about changes of the Convention.
Meanwhile, we have learned how the parliament's rights to be informed and to make suggestions are perverted by the Council of Ministers, and that national parliaments are only allowed to nod through agreements negotiated and signed without their participation.
The reasons for this can be found as well in the nature of the ratification process, as in the fact, that in most EU countries, parliaments no longer control governments, but governments control their parliaments.
Indeed, the "democratic deficit" is not a disease particular to the European Union. It is spread all over Europe.
The competence of the ECJ
The competence of the Luxembourg Court is still one of the most controversial questions.
Should the Court be competent, and, if so, what kind of competencies should it be vested with?
The British government objects to any competence and has vetoed the matter in Cannes. The French are very reluctant and would accept ECJ competence only in litigation between member states. The Benelux countries advocate full competence of the Court as far as means of appeal regarding the interpretation of the Convention, the civil responsibility of Europol and its staff, and the litigation between member states are concerned. There have been some rumours about 13 member states (not including the UK and Greece) being prepared to issue an annex declaration to the Convention, wherein they would bind themselves to accept the jurisdiction of the ECJ in disputes between the member states. We shall see!
In any way, not a single member state is prepared to accept the access of individuals to the ECJ.
Another important fact is that no systematic judicial control is provided by the Convention. The consequence is that we have a Euro-police, but no Euro-magistrates.
The question whether and to what extent the national activities and the input and output of the Europol information system can be subjected to effective control by the national courts of the member states, remains to be answered. We may guess that judicial control will vary a lot from one country to another.
An all too "elastic" Convention
There are other uncertainties regarding Europol's future activities.
- In the domain of data protection, the Convention leaves a large margin of interpretation to Europol's management. Many exceptions from the general rules stated in the Convention are allowed.
- The list of forms of crimes that can gradually come under the remit of Europol tends to grow longer with every meeting of the JHA Council. This year, Europol's remit was extended to trafficking of stolen cars, of human beings . . . and of plutonium. Other forms of crimes that are currently both more profitable and more
harmful to society, such as illegal arms trade, have been left out. Nothing is being said either on how Europol is expected to come through all these jobs.
It remains unclear whether or not national intelligence services can be considered as "competent authorities in the Member States" according to the Convention. This lack of precision wide opens the door for a dangerous amalgamation of police and secret service activities.
The Europol staff is subjected to an unusually strict obligation of discretion and confidentiality. Thus, for instance, staff members "may not give evidence in or outside court or make any statements on any facts or information which come to their knowledge in the performance of their duties or the exercise of their activities" without authorization of the Director (Article 32.3).
Finally, the legal status of the EDU, the already operational nucleus of Europol, is questionable from the viewpoint of democracy and of international public law. It is amazing, indeed, that such an important matter can be decided by mere agreement between ministers, i.e the executive powers of the member states.
No European police without a European state!
So, there are more reasons for concern about Europol than just the question of the competence of the Court of Luxembourg.
The president of the European Parliament was right, when he declared after the Cannes Summit: "The procedure applied for Europol is a new example for the inefficiency of the third pillar [The Maastricht treaty's Title VI on justice and home affairs cooperation]: it shows that simple intergovernmental cooperation is not suited to the solution of the real problems facing Europe".
Indeed, without a real common political and judicial framework, a European police is not acceptable. We cannot have a police without a state.
Meanwhile the setting up of EDU/Europol is going on, uncontrolled as usual.
One would like to know how the police people involved in the new body feel about this situation of institutionalised legal deficiency?
Lode Van Outrive
Contact with the author: Prof. Dr. L. Van Outrive, Faculty of Law, Catholic University of Leuven, H.Hooverplein 10, B-3000 Leuven; Tel/Fax (home): +32/16 488458; E-mail: Lode.VanOutrive@law.kuleuven.ac.be