30 September 2002
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1. Statewatch welcomes the opportunity to comment on the recent Danish Presidency proposal for a Protocol to the Europol Convention (EU Council doc. 10307/02, 2.7.02; see also the "correction of errors" in that document, 11096/02, 18.7.02). The observations also take into account the earlier joint proposal for a Protocol by Belgium and Spain (OJ 2002 C 42/8) and the ongoing Europol Working Party deliberations on replacing the Europol Convention, or certain provisions, with a Council Decision (see in particular EU Council doc. 11283, 17.7.02.
Revision of Europol's remit to focus on serious crime rather than as at present specified crimes such as terrorism and unlawful trafficking
2. It should be remembered that the Council Decision of 6 December 2001 (OJ 2001 C 362/1) extended Europol's competences to all the forms of crime listed in Annex 2 of the Convention. This was the fourth such extension by the Council from the five original forms of crime in Europol's mandate under Article 2 to 25 specific offences.
3. At present Europol is only competent to deal with these offences if there are "factual indications that an organized criminal structure is involved and two or more member states are affected". The proposed amendment to Article 2 would significantly extend Europol's remit by removing the requirement that offences be demonstrably related to "organized crime" and seen to affect two or more member states. It will now instead be up to the member states' authorities to decide what constitutes "serious international crime" and whether a "common approach" is required.
4. The extension of Europol's mandate to an extensive list of crimes and the extension of its remit from "organized" to "serious" crime must also be considered in the context of the Belgian/Spanish proposal for a Protocol to the Convention (OJ 2002 C 42/8) and the "political agreement" at the 24/25 April 2002 JHA Council on the provisions therein to allow Europol's participation in joint investigation teams operating the member states and to request authorities in the member states to carry-out investigations (see EU Council doc. 6791/4/02, 30.4.02).
5. Taken together, these measures fundamentally alter the original constitution of Europol - from a "reactive", analytical agency to a "proactive", operational unit. This has not been accompanied by matching efforts to increase the regulation and scrutiny of Europol's activities.
Other extensions to Europol's remit
6. The document "correcting" the Danish Presidency's proposed Protocol (see EU Council doc. 11096/02, 18.7.02) would add another paragraph to Europol's "principal tasks": "advice and research" on "training" member states competent authorities, the "organisation and equipment of those authorities", "crime prevention methods" and "technical and forensic police methods and investigative procedures".
7. This amendment appears more of an "acknowledgement" than a new proposal in that Europol is already conducting a number of these activities and others not mentioned in the original Convention. The production of an EU manual for member states law enforcement agencies on controlled delivery operations (and the assistance of such operations), the development of an EU witness protection programme, the production of a manual on "best practise in criminal and forensic investigations", and proposing international standards in telecommunications surveillance are such examples. Europol is also already associated with other EU measures on police training (proposed European Police College, OJ 2000 L 336/1) and crime prevention network (OJ 2001 L 150/1). Given that certain practises have clearly been undertaken by Europol before any formal mandate has been given by the Council it might be suggested that a provision be introduced that stipulates that Europol may not begin activities outside the scope of the Convention without the prior consultation and express approval of governments and parliaments.
Confirmation of Europol's role as the European contact point for action against counterfeiting of the euro
8. This proposal follows the EU Council Decision of 6 December 2001 (OJ 2001 L 329/1) on protection of the euro against counterfeiting which obliges the member states to transmit details of offences and related personal data to Europol. Director Jurgen Storbeck has also made public calls for Europol to be granted "executive powers" into over the investigation of such offences.
Removal of the reference to Europol national Units as the sole liaison bodies between Europol and national authorities
9. This is another proposal that appears geared toward the extension of Europol's "operational" activities and participation in joint investigation teams by allowing the agency to liaise directly with all law enforcement agencies in the member states and should be considered in the light of points 1-5 above.
Enabling competent authorities (in addition to the national units) to query the Europol Information System
10. This proposal extends access to the Europol Information System which holds data on crimes and alleged crimes and people convicted and suspected of offences. Although ostensibly limited to a "hit" notification system requiring the new users to make further enquiries through the ENUs, it would still potentially extend access to the Europol system across the EU. Our concern is that once extended in this way, the Council may decide in the future to weaken the conditions on access to the data which would in turn have serious implications for the protection of such data.
11. It is also proposed to remove the word "only" from the first sentence in Article 9, which currently reads: "Only national units, liaison officers, and the Director, Deputy Directors or duly empowered Europol officials shall have the right to input data directly into the information system and retrieve it therefrom." As a textual change this amendment seems manifestly unnecessary and as such may hint at a future Decision to allow data to be inputted by a wider range of personnel/agencies.
Reports on data retrieval from the Europol database
12. Under Article 16 of the Convention Europol "shall draw up reports for at least one in ten retrievals of personal data" and for "each retrieval made within the information system" so that the Joint Supervisory Body on Data Protection is able to "check whether they are permissible under law". In the Danish Presidency proposal this stipulation will be replaced by a far weaker obligation for Europol to "ensure that mechanisms are put in place to enable effective control of the legality of retrievals". This would clearly undermine the ability of the JSB to inspect the use of data by Europol and the member states and can only increase the possibility that any unlawful processing of data will shielded from scrutiny.
Enabling Europol to process data as background information and not just in connection with a specific work file
13. This proposal would allow Europol to process "other data" as "background information" within its information system. This would massively extend the scope of the information system, which at present holds information (including a fairly comprehensive range of personal data) relating to crimes and alleged crimes and people convicted and suspected of offences.
14. Neither "other data" nor "background information" are defined so there is potentially no restriction on what could then be included in the information system. Given that the "work files" can contain more than 50 specific types of personal data it is questionable why Europol now needs to be able to process more types of data in the information system. It appears that the motivation is to allow wider access to the data which may be held in the work files via the information system to which extended access is proposed in the amendment discussed above (see points 8 and 9).
Observations on proposed amendment of the provisions regarding analysis files
15. It is also pointed out that widened access to the analysis files is proposed in an amendment to Article 10(2) which would allow all agents in the "analysis group" (including liaison officers and national "experts") to retrieve data from analysis files. At present only Europol analysts may do so.
16. It is also proposed to amend Article 12(1) to remove the requirement that the Management Board must give its prior approval to the creation of analysis files by Europol. Instead, it is suggested that the Board may, by two-thirds majority order the amendment of the opening order or the closure of files after they have been opened. There is no explanation for this proposed amendment. "Control" over Europol's activities by the member states is supposedly assured by virtue of their national representatives on the Board so it is questionable why the proposal seeks to weaken the already limited procedural guarantees in this framework.
Communication of data to third states
17. The rules on the transmission of personal data by Europol to third parties would also be amended under the Danish presidency proposal to take into account the recent amendment by Council Decision of the Act setting out the procedural rules (OJ 2002 C 58/12; see also OJ 2002 C 76/1). This made it easier for Europol to pass on data supplied by the member states to third states and agencies. The proposed amendment to the Convention introduces a "deviation" from these rules in "exceptional cases" (Article 12(3)). This would cover situations like the "exceptional transmission of personal data" (without a formal cooperation agreement) to the USA which is still taking place (see EU Council doc. 10773/2/02, 17.7.02). The Danish proposal also introduces the principal of "presumed consent" among the member states to allow data they supply to be transmitted by Europol to third parties with whom a cooperation agreement is in force. Eleven such treaties have now been approved by the Council and a further 21 are under negotiation or planned. The proposed amendment alters the application of the principle that no data may be passed to a third party without the prior consent of the member state that supplied the data and has implications for the further protection of that data.
Time limit for storage of personal data
18. It is also proposed to increase the time limit on the storage of personal data by Europol from three to five years (Article 21(3)). There is no explanation or apparent justification for this extension.
Provision for Joint Supervisory Board and Europol annual reports to be sent to the European Parliament as well as the Council
19. This proposal, together with that on forwarding Europol's annual "work programmes" is welcome as it would increase the role of the EP in regard to scrutiny of Europol's activities. It must be pointed out, however, that as regards "democratic accountability" this amendment - to provide documentation (that is in any case likely to be partly or wholly in the public domain by virtue of the EC Regulation on public access) for information purposes only - amounts to little more than a "token" increase (see also point 20 below).
Arrangements for the appearance of the Director of Europol before the European Parliament
20. This is another welcome proposal that would again increase Europol's accountability to the EP. However, it is regrettable that it is proposed to exclude national and European Parliaments from the elaboration of the procedural rules governing such appearances.
Reference to the possibility of a joint committee being set up by the European Parliament in cooperation with national parliaments
21. In the context of the comments above this proposal is also welcome though we can see no reason that it be so vague. If representatives of Europol and the Council are to appear before joint parliamentary committees in the interest of genuinely increasing democratic accountability then the Convention should stipulate that this be the case rather than merely offering a "possibility".
An obligation to consult the European Parliament on certain specified matters
22. It must be pointed out that this amendment in fact does little more than update the agreement to take into account the right of the EP to be consulted on Title IV matters as laid down in the Amsterdam Treaty and as such does not give any "new" role for the EP. Any legislation regarding the specific issues referred to in the proposed amendment would almost certainly entail the EU to adopt Decisions, possibly Framework Decisions, or Protocols to the Europol Convention which in any case require consultation of the EP. It is also pointed out that "consultation" falls far short of giving the EP a proper role in decision-making (e.g. co-decision) as must be expected in genuinely democratic societies.
Provisions on right of access to Europol documents
23. Though welcome in respect to the fundamental issue of democratic accountability it is again pointed out that this amendment merely takes into account the right of public access to EU documents laid down by the Amsterdam Treaty. It is also pointed out that Europol failed to meet the Recommendation of the European Ombudsman's own initiative report when it agreed on 6 July 2000 to abide by the EU's code of access to documents.
Future amendment of the Europol Convention
24. It is most regrettable that the Danish Presidency proposal does not make clear the relationship between its proposal and the current status of discussions in the Europol Working Party on replacing the Europol Convention, or certain provisions, with a Council Decision. Having decided to embark on a general overhaul of the 1995 Europol Convention the Council is also seeking a "more flexible" way to make amendments in the future. At present, any amendment of the Convention can only be made by way of a Protocol to the Convention, which must then be ratified by national parliaments. The Council is seeking to circumvent this "cumbersome" procedure, and in doing so will likely reduce the already minimal democratic checks governing Europol's activities and development.
25. In March, the Spanish presidency tabled three options for future amendments of the Convention (see Council doc. 6579/1/02, 25.2.02):
(i) allowing the Convention to be amended by simple EU Council Decision;
(ii) allow some articles in the Convention to be amended by Council Decision, leaving others requiring ratification of a protocol;
(iii) replacing the Europol Convention itself with a Council Decision.
At a meeting on April 11-12, the Europol Working party agreed that option (i) would not be pursued any further (see Council doc. 7789/02, 10.4.02). It should be quite clear that option (ii) would provide the most democratic control (by at least retaining a role for national parliaments), while option (iii) would provide the least. Detailed proposals in respect of both remaining options have now been produced, but in respect of option (ii), delegations can only agree on a few articles which could be amended by Council Decision. The Spanish Presidency argued that this would be a pointless exercise as it would fail to simplify the procedure to the desired extent, proposing option (iii) - the abrogation of the Convention and its replacement with a Council Decision (see Council doc.11283/02, 17.7.02 - as the only "viable" option.
26. In the elaboration of its report the Committee is urged to take into account these deliberations, if necessary by requesting information from the government to ascertain their status.
27. Finally attention is drawn to the fact that the Council has stated its intention to dissolve the Europol Working Party once the current work on amending and extending the Convention is completed (see Council doc. 6582/1/02, 1.3.02). Our concern is that if this happens, key issues relating to Europol's development will be shielded from public scrutiny. This can be illustrated by considering important issues such as proposed Europol access to the Schengen Information System, the exchange of data with third countries, Europol participation in joint investigative teams and changes to Europol's budget. Will these matters simply be decided between the Management Board and the Council in the future and will key documentation still be available on the public register of Council documents if the documents are no longer produced by and for the Working Party?
Statewatch, 30 September 2002 (Comments prepared by Ben Hayes)
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