Concerns

Europol may have helped forge a new era in cross-border police co-operation but it is not without its critics. The majority of concerns focus on the operation of Europol’s data information systems and the information it contains. There is also some concern as to the implications of the structure and operation of Europol in conducting investigations mainly stemming from their immunity to prosecution as outlined in Europol Convention. The concerns expressed about Europol can be summarised as:

 

·         Concerns as to the security of data held in the Europol Computer System and other issues relating to data protection

·         Concerns over the type of data held by Europol and how this data is used and analysed by TECS.

·         Concerns as to the input of data by third countries and third parties

·         Concerns as to the immunity from prosecution of Europol officials and seconded liaison officers (ELOs).

·         Concerns over the level of political and judicial accountability of Europol

·         Concerns relating to the staffing and level of competence of Europol.

·         Matters relating to the possible development of Europol into a European FBI.

 

Europol and Data Protection

Concerns over the security and use of data and personal information held on the Europol Computer System emerged very early on in the development of the European Police Office[1]. In theory data held on European databases is subject to the 1981 Council of Europe Convention on the Protection for Individuals with regard to the Automatic processing of Personal Data[2]. However, the Europol Convention only stipulated that Europol has to “take into account” the 1981 Council of Europe Convention and is not bound by it. This has raised some serious questions as to the data that Europol can store and the way in which it can be used. Having previously resolved problems over the fifteen types of national data protection law to adhere to, civil liberty groups expressed concern that this convention was not being followed.  

The European Parliament, for example, in 1996 called upon national governments of the member states in ratifying the Europol Convention to ensure that fundamental rights and freedoms were not put at risk from the activities of Europol. It called for data indicating the religion, race or political beliefs of suspects not to be included on their data records for fear that it would set a dangerous precedent and compromise individual’s human rights.

Another concern held by civil liberty groups and the European Parliament was the inclusion of data from third countries and third parties. In its early stages of development the EDU formed associations with not only member states national criminal authorities but also those of applicant states to the European Union such as Cyprus and Poland and further a field with links to American and Russian databases[3]. As cited by Keane, the Meijers Committee in the United Kingdom argued that “since Europol could store data received from non-member states or through circuitous channels, there [are] serious risks of inaccuracy and the right to information may well be illusory”[4].  

In addition to having links with Interpol, Europol also operates associations with EIS, SIS and CIS as well as other European databases. This, however, conflicts directly with Article 6 of the Europol Convention that says that:

“the computerised system of collected information operated by Europol must under no circumstances be linked to other automated processing systems except for the automated processing systems of the national units”[5].

According to Keane it is yet to be resolved whether having access to data held by other European agencies and being linked to them are the same. Clearly, however, as long as this is unresolved there is the possibility that errors can be made and individual’s civil liberties placed at risk because of a mistake or miscalculation.

Finally, there has been concern expressed as to the possibility that data collected on individuals may be analysed in such a way that it compromises their freedoms. A case in question relates to the sheer amount of data that can be analysed. TECS is capable of analysing 5,000 records at a time each containing nearly 1000 records on individuals. With a maximum storage of 1,000,000 records, there is a concern that this data may be used to profile or map the movements of suspects[6]. 

Europol has acquired the image of a clandestine organisation intent on robbing citizens of their civil liberties. While this may not be true, it is symptomatic of concerns amongst some members of the European demos relating to the activities of centralised law enforcement agencies. Statements such as “In France 60% of all police vehicles now have mobile data terminals linked to both Europol and Schengen databases[7],” are becoming increasingly common on the internet. It seems likely that without a clear system of political and judicial accountability related to Europol, the regular statements concerning its future role and expansion of its competences will be subject to much suspicion and distrust.

Political and Judicial Accountability

Matters relating to the political and judicial accountability of Europol remain massively unresolved despite the efforts of the European Court of Justice and the Civil Liberties Committee. At present Europol is required to only submit an Annual Report to the European Parliament to satisfy the conditions of probity outlined in the Europol Convention[8]. Although this may smack of the democratic deficit that plagues the operation and structure of European Union institutions this is not the case. Europol is not a supra-national European institution in the same way as the European Parliament or European Commission are. It is instead classed as an inter-governmental organisation. Indeed, as is discussed in the ‘role within the integration section’, Europol’s structures prohibits from being regulated by ‘Europe’. It is rather, the responsibility of national governments to supervise its activities. This judgment stems from the report by the Civil Liberties Committee titled “Europol: Reinforcing Parliamentary Controls and Extending Powers”, which admits that Europol is not an EU but an international organisation and “under the present system” it must remain in the hands of national parliaments of the member states[9]. 

Prescriptions for the future:

·         Transfer of the responsibility for “cross-border operations” from the intergovernmental sphere to the community sphere.

·         Greater transparency in the operation and accountability of Europol.

·         Greater access to the data held by Europol and ‘connected’ databases.

·         Greater public awareness of the duties and operations of Europol[10].

 

One area of Europol that has caused significant concern is the immunity from prosecution of any Europol official or seconded officer giving Europol a virtual carte blanche to perform investigations as they see fit without the risk of comeback. This is of significant importance when one considers the role of Europol in fighting trafficking in hazardous materials, drugs, firearms and people smuggling where people’s lives can be put at risk by any blunder by Europol and the authorities it is operating in conjunction with. This area of Europol is in need of revision to install a greater degree of accountability into its structure and operation, but it is likely that such changes will be resisted.

While transfer of certain intergovernmental functions of supervision from national governments to the central institutions may increase the overall accountability of Europol, only a full re-appraisal of its duties will satisfy some critics. Short of incorporating Europol directly into the remit of the European Union in preference to maintaining its ‘in and out’ Third Pillar status, creating a full system of political and judicial accountability will be very difficult. Under Article K1 of Title VI of the Maastricht Treaty police co-operation is restricted to ‘exchanging information with a European Police Office (Europol)[11]’, as such any further police co-operation will necessitate further amendments to not only the Convention but also the Treaty on European Union, which suggests that this system will continue for the foreseeable future.

Is Europol up to the job?

Tupman argues in his book ‘Policing in Europe, Uniform in Diversity’ that in the early stages of the formation of Europol there were concerns that it may not actually be up to the job of coordinating Europe’s cross-border fight against crime due to its low level of resources and staffing[12]. Indeed, he argues that prior to the Amsterdam Treaty Europol was chronically understaffed. The provision of fifty extra officers at the Treaty of Amsterdam no doubt helped correct some of this deficit, but there remains a concern that not enough expertise is based in Europol’s Hague Headquarters to cope with the workload. Europol’s website professes, however, to havingeffective, fast and multi-lingual service 24 hours a day”, which is likely to be further enhanced with staffing levels rising to 350 dedicated officers by 2003[13]. It must be remembered that Europol is at time of writing only two years old, and despite the Europol Drugs Unit being operational for eight years, there are still ‘teething’ problems to be resolved before Europol can cut itself a clear and commanding niche in the European fight against crime.

Europol - a future European FBI?

Much of the concern with the future development of Europol relates to the possible transformation of Europol into a European-style FBI. For a greater discussion on this topic follow this link to an online article or click on the above link for a page on the future of Europol in this site.

Are Concerns about Europol justified?

Europol is fast becoming an integral part of European police efforts against cross-border crime in Europe. The concerns that are addressed in this section represent a small portion of the worries and reservations held by individuals and organisations regarding the operation and structure of Europol. For the most part the concerns that have been raised are valid and in need of being addressed rapidly. Part of the problem in forging an accountable and efficient European police office that operates to support not compromise civil liberties is the tension between Europol as a coordinating body, as pushed for by the British, and as a pro-active investigative organisation, as the Germans prefer. It seems inevitable that integration within Europe will require an intensification and expansion of the duties and roles of Europol, but if the concerns as illustrated above are not addressed it seems likely that they will continue to plague European police cooperation, devaluing its work.  

     



[1]  Orlandini FB 'Europol and the Europol Drugs Unit: A Cooperative Structure in the Making' in Monar J & Morgan R 'The Third Pillar of the European Union' (Brussels, European Interuniversity Press, 1994)p213

[2] Subhan A (ed.) 'Impact of the Treaty of Amsterdam on Justice and Home Affairs Issues' (Brussels, European Parliament, 2000)  p44

[3] Ibid. p100 

[4] Ibid. p92 

[5] Ibid. p96

[6] Ibid. p100

[8] Subhan A (ed.) 'Impact of the Treaty of Amsterdam on Justice and Home Affairs Issues' (Brussels, European Parliament, 2000)p102

[9] Ibid. p93 

[10] Ibid. p93 

[11] Article K1 Section 9, Title VI, Treaty on European Union.

[12] Tupman B, 'Policing in Europe, Uniform in Diversity' (Exeter, Intellect, 1999) p84