Europol prepares for "global" exchange of data (feature)
01 September 1998
The next step in the EU's plans for Europol to exchange data with non-EU states is a proposed "Draft Model agreement on cooperation with Third States" (see Statewatch, vol 7 no 6 & vol 8 no 2). This could lead to Europol acquiring a "global role" in the exchange of police intelligence and information. Europol become operational, replacing the Europol Drugs Unit set up in June 1993, on 1 October 1998.
This "Draft Model agreement" on the exchange of data between Europol and non-EU states has been drawn up by Europol itself and sent to the Europol working group - one of the many working groups under the K4 Committee. It is an indication of how far removed EU government Ministers have become from policy formation that police officers seconded from their national police forces are drafting important initiatives. Most of the "secondary" measures governing Europol's operations have been drawn up in the Europol working group comprised of interior ministry officials, national police representatives and a Europol representative.
Another example of the "delegated" authority to Europol's "self-regulating" powers is the fact that this "Model agreement" is to be supplemented by a whole series of "Memorandum of Understandings" agreed between Europol and the "Central Service" (the equivalent of an EU National Criminal Intelligence Service) of each non-EU state within whom data is to be exchanged and with other organisations within the non-EU member states. The "Memorandum of Understandings" will cover: i) "contacts between representatives of their respective organisations" (Article 4.2); ii) "other organisations" (Article 4.2); iii) a "separate memorandum of understanding" will be made between Europol and the "Central Service" to cover "technical arrangements" and "secure communications"; iv) "assessment of specified types of data and specified sources".
The only reference to any higher authority in reaching these "Memorandum of Understandings" is that the Europol Management Board, comprised of interior ministry officials, "shall be informed of such general agreements" (Article 9.6). In time these "Memorandum of Understandings" could number hundreds depending on the extent of "Understandings" with "other organisations" in non-EU member states. In time too Europol may be exchanging data with dozens of countries and hundreds of "organisations" across the globe.
The scope of data to be exchanged appears at first sight to be limited and is set out in Article 3.1, "Areas of criminality to which the Agreement applies", which lists: "a) unlawful drug trafficking"; b) "trafficking in nuclear and radioactive substances"; c) "illegal immigrant smuggling"; d) "trade in human beings"; e) "motor vehicle crime". It will also extend to money-laundering and the contentious "Related criminal offences" category in the Europol Convention.
However, in Article 3.3 the list of criminal offences to be covered is the full list in the Europol Convention - 18 sets of offences plus money-laundering and related offences. This list has already grown since the Europol Convention was signed in July 1995 and the Council of Justice and Home Affairs Ministers is empowered, under the Convention, to add to this list without any reference to the European or national parliaments.
Exchanging "information"
The "Memorandum of Understanding" will cover "structured and unstructured forms" of information (hard fact) and intelligence (from surveillance or supposition). The information supplied to, and held by, Europol will be subject to the limits of the "national legislation" of the non-EU state providing it. It cannot, of course, be assumed that the "national legislation" of such a state will include proper limits on the gathering of data let alone civil liberties. The only limit on the data to be held by Europol is that it should not have been gathered in "obvious violation of human rights". Article 7.8 says that:
"Europ