Europol: Data exchange with non-EU states

Statewatch bulletin, vol 7 no 6 (November-December 1997)

The JHA Council in Brussels, on 4 December, agreed reports concerning the exchange of information with non-EU member states and non-EU authorities. Three reports were adopted without debate, a fourth on information from non-EU sources was not agreed. The reports, from the K4 Committee were not, as far as can be ascertained, referred to parliament in the UK nor to the European Parliament.

The reports deal with the setting up of "agreements" between Europol and non-EU member states to be agreed by the JHA Council, and "agreements" between Europol and non-EU "authorities" to be agreed by Europol's Management Board. The planned exchange of data covers both "non-personal" and "personal" information. The only accountability set out is to the JHA Council itself - not to the European Parliament nor to national parliaments. Much of the decision-making, and all the day to day practice, is devolved to the director of Europol and to Europol's Management Board (interior ministry officials from each EU state).

The first report covers Draft rules regarding the external relations of Europol with third countries and authorities not linked to the EU. This report is based on Article 42 of the Europol Convention, "Relations with third states and third bodies". Article 1 gives definitions. Article 2 says "Europol may conclude agreements with third countries and with authorities not linked to the EU". Under Article 2.2 the JHA Council will agree the states or authorities "with which the agreements will be negotiated". Under Article 2.3 the director of Europol will "open negotiations" on the agreements which have to be agreed by the JHA Council before they can be concluded.

Article 3 allows the "detachment of Europol liaison officers" to third states and third authorities not linked to the EU. It also allows for the "detachment of liaison officers from these countries". The agreement would set terms and conditions. Article 4.1 says the director of Europol must get advance approval before the exchange of officers but once an agreement is in place "the Management Board may decide it is not necessary to give prior notice". Article 5 empowers the director of Europol to set up "periodic meetings with third countries or authorities not linked to the EU". Where such meetings are written into the "agreement" no prior approval of the Management Board is needed.

Article 7 says: "An agreement reached with a third country may provide for the privileges and immunities which may be necessary for Europol as well as for personnel and liaison officers sent out by Europol". The contentious "immunities of Europol officers" with the EU could thus be extended anywhere in the world. Article 8 covers the exchange of personal and non-personal data.

The second report covers Rules relating to the transmission of data of a personal nature by Europol to third countries and third authorities. The definitions in Article 1 includes "data of a personal nature" which has the following phrase "one or more specific factors of his or her physical, physiological, psychological, economic, cultural or social identity". Article 2 authorises Europol to transmit data of a personal nature to a third state or third authority where an "agreement" has been signed and, in exceptional cases, where one has not - exceptions include "to safeguard the vital interests of the Member States concerned in relation to the objectives of Europol" (Article 2.1.2).

Article 3 authorises the JHA Council to determine which third countries and third authorities agreements should be negotiated with, but the Management Board is, in addition, on its own initiative authorised to "determine which third authorities the agreements will be negotiated with". Article 4 says the director of Europol will inform the Management Board of "all decisions on the transmission of data of a personal nature". The question of data protection within these third countries and non-EU authorities referred to as assessing "the adequacy of the level of protection" by the director of Europol.

Article 5 attempts to cover the question of to whom information is supplied within the third country. It states that it will be "limited" to "the responsible competent authorities in accordance with national legislation". In others words the circulation of data of a personal nature is governed by the data protection laws, if they exist, and the practices of the state given the information. Article 5.4 allows the transmission of personal data even where the third country is unable to designate "a central authority", "agreements" can be reached on the initiative of Europol with "one or several competent authorities in the third country in question". Article 6 deals with the "purposes" of the transmission of data and says:

"the transmission of data of a personal nature which reveals racial origin, political opinion, religious beliefs or other beliefs, as well as data of a personal nature relating to health or sexual matters, as set out in Article 6 of the Convention of the Council of Europe of 28.01.81, is limited to cases in which it is absolutely necessary, according to the provisions of Article 4."

Articles 4, 6 and 8 of the 1981 Council of Europe Convention on the protection of individuals with regard to automatic processing of personal data stipulate that there must be "appropriate safeguards" in "domestic law" which, for example, would allow a person to check the records held on them. There is no EU-wide provision on data protection covering Europol (law enforcement is excluded from the currently planned EU data protection directive). And there is no provision for being able to establish which third state or non-EU authorities hold information on an individual and to what uses this has been put.

The third report adopted covers Rules relating to the external relations of Europol with authorities linked to the EU. This authorises the Management Board of Europol to decide which "authorities linked to the EU agreements will be negotiated with" and will "approve" agreements reached by the director of Europol. The bodies covered by this report are set out in the Europol Convention in Article 10.4, paras 1-3: a) bodies governed by public law "established under the Treaties establishing those Communities"; b) "other bodies governed by public law established in the framework of the European Union"; and c) "bodies which are based on an agreement between two or more Member States of the European Union".

Sources: Draft rules regarding the external relations of Europol with third countries and with authorities not linked to the EU, K4 Committee to COREPER/Council, ref: 8034/6/97, Limité, Europol 29 REV 6, 13.11.97; Rules relating to the transmission of data of a personal nature by Europol to third countries and third authorities, K4 Committee to COREPER/Council, ref: 8032/8/97, Europol 27 REV 8, Limite, 13.11.97; Rules relating to the external relations of Europol with authorities linked to the EU, K4 Committee to COREPER/Council, ref: 8031/5/97, Europol 26 REV 5, Limité, 13.11.97.