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EU: JHA Council authorises Europol to start negotiating the exchange of data

28 March 2012

Statewatch bulletin vol 10 no 2 (March-May 2000)

The meeting of the Justice and Home Affairs (JHA) Council in Brussels on 27 March adopted, without debate, a "Council Decision" authorising Europol to enter into negotiations with non-EU states and bodies on the two-way exchange of data (see Statewatch vol 8 no 5). The report was on the JHA Council agenda in December 1999 but could not be adopted due to a scrutiny reservation by the Netherlands (that is, it had not been cleared by the Dutch parliament) - which was later withdrawn. The UK parliament, however, was not consulted over the adoption of the decision nor was the European Parliament.

The UK parliament had been consulted on an earlier draft of the report prepared by the Europol Management Board (see Statewatch, vol 9 no 5) but this report differed in one major respect, namely the list of countries to be approached. The first list is mainly comprised of EU applicant countries and also included:

Canada

Iceland

Norway

Russian Federation

Switzerland

Turkey

USA

The adopted decision added the following countries (see footnote):

Bolivia

Colombia

Morocco

Peru

The addition of these countries to the list of the "first wave" of states to exchange data with Europol is to say the least controversial.

The "Decision" says that negotiations can only begin after the Management Board of Europol (national EU Interior Ministry officials) have "consulted" the Joint Supervisory Body (JSB) for Europol (comprised of national EU Data Protection officials). The Director of Europol will forward these reports to the JHA Council for its unanimous agreement to proceed with opening negotiations for each non-EU state or agency. The UK House of Commons European Scrutiny Committee has expressed some concern over this arrangement:

There must.., however, be a question about the extent to which the Europol Management Board will take account of the JSB's views as expressed to it during consultation.

This is not the only concern. The sole criteria set by the Council Decision only covers:

the law and administrative practice of the relevant third States and non-EU related-bodies in the field of data protection... (emphasis added).

Important though data protection considerations are, there is no mention here (or in the draft "model agreement") for the law and practices of these states (and potentially numerous agencies within them) on human rights and civil liberties - for example, what are rights of "suspects", what are the standards of evidence and what safeguards are there against recording (and transmitting) evidence gained by oppressive means?

The Decision says that the JHA Council has to be satisfied that "there are no obstacles to the start of negotiations.. in the field of data protection.." It is not at all clear what might constitute an "obstacle".

A "Council Declaration" attached to the "Decision" says that priority should be given to Iceland, Norway, Switzerland and Interpol and to the "accession candidates". These new and established democracies are not without potential "obstacles". The recent Commission reports on the accession process express concern at the progress towards meeting "EU standards".

Once the JHA Council has agreed that negotiations should start, the only check laid down is for a six monthly report (starting in January 2001) to the Management Board of Europol.

The draft Model agreement to effect the exchange of data leaves many loop-holes for the receipt and use of data of a highly questionable nature. For example, Europol itself is to judge whether the data (which may be hard-fact, "soft-intelligence" or suspicions) has been gathered in "obvious violation of human rights" (see Statewatch, vol 8 no 5 for a detailed critique of this draft agreement). Data supplied to Europol which is then deleted or corrected by the supplying non-EU state/agency can still be retained and used by Europol if it has "further need" of it.

Footnote: At a meeting of US Senior Officials and the EU Article 36 Committee (which coordinates work on policing, customs and drugs) the US delegation said: "Latin America should be the next area of cooperation" [between the EU and US]. They then named Bolivia, Colombia and Peru as key targets of US anti-drugs trafficking initiatives (see Minutes of the meeting with US Senior Officials in Brussels on 16 February 2000, ref: 6245/00).

Sources: Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, COREPER to Council, ref: 13108/99 EUROPOL 46, 23.11.99; Draft Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, COREPER to Council, ref: 11854/2/99 REV 2, 27.10.99; Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, ref: 13107/99, EUROPOL 45, 19.11.99; Council Decision authorising the Director of Europol to enter into negotiations on agreements with third States and non-EU related bodies, General Secretariat to COREPER/Council, ref: 6456/00, EUROPOL 3, 25.2.00; Draft Model-agreement cooperation with Third States, ref: file no: 3710-01r1, Europol Management Board, 13.8.99; Agreements between Europol and third states and non-EU related bodies, House of Commons, European Scrutiny Committee, 29th Report, 9.11.99.

Statewatch coverage of plans for Europol to exchange data with non-EU states and agencies:

Europol prepares for "global" exchange of data (Statewatch bulletin, vol 8 no 5, September-October 1998)

Europol to accept outside data (Statewatch bulletin, vol 8 no 2, March-April 1998)

Europol: Data exchange with non-EU states (Statewatch bulletin,  vol 7 no 6,  November-December 1997)