Hostname: page-component-cd9895bd7-mkpzs Total loading time: 0 Render date: 2024-12-28T02:40:58.610Z Has data issue: false hasContentIssue false
  • English
  • Français

The Future of Europol's Parliamentary Oversight: A Great Leap Forward?

Published online by Cambridge University Press:  06 March 2019

Vigjilenca Abazi

Extract

Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.

Secrecy profoundly challenges democratic oversight. Law enforcement cooperation, however, requires some space for discretion and confidentiality. This classical paradox within the context of the European Union is central in the current legislative debate on Europol's revision. The reform is initiated by the Commission's proposal in March 2013 and, for the first time in its history, the European Parliament has direct power to decide over the future of the intelligence agency.

This article argues that we should not overestimate European Parliament's post-Lisbon prerogative for oversight, and particularly its access to Europol Classified Information, due to the architecture of intelligence exchange. The foundational principle of intelligence cooperation confers absolute discretion to the originators of information and Europol's “secrets” in almost all cases originate from the member states or third parties.

The article offers a new legal and empirical perspective on the tensions of secrecy and oversight in the EU, and especially in the Area of Freedom Security and Justice. It discusses the internal information structure of Europol and suggests options for more plausible oversight arrangements.

Type
Developments
Information
German Law Journal , Volume 15 , Issue 6 , 01 October 2014 , pp. 1121 - 1143
Copyright
Copyright © 2014 by German Law Journal GbR 

References

1 See Treaty on the Functioning of the European Union, Dec. 13, 2007, 2012 O.J. (C 326) 88(2) [hereinafter TFEU]; see also Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and Repealing Decisions 2009/371/JHA and 2005/681/JHA, Mar. 27, 2013, 2013 O.J. (COM 0173) [hereinafter Europol Regulation Proposal].Google Scholar

2 See TFEU, supra note 1, art. 88(2); Europol Regulation Proposal, supra note 1, art. 54.Google Scholar

3 See Agreement Between the European Union and the United States of America on the Processing and Transfer of Financial Messaging Data from the European Union to the United States for the Purpose of the Terrorist Finance Tracking Program, Jan. 13, 2010, 2010 O.J. (L 195/5); see also Letter from Rob Wainwright, Europol Director, to Juan Fernando López Aguilar (May 24, 2012), http://www.statewatch.org/news/2012/jun/eu-usa-tftp-europol-ep-letter.pdf (denying access to the European Parliament's LIBE Committee); see generally Elaine Fahey, Law and Governance as Checks and Balances in Transatlantic Security: Rights, Redress, and Remedies in EU-US Passenger Name Records and the Terrorist Finance Tracking Program, Yearbook of European Law (2013).Google Scholar

4 See Council Decision 2009/968/JHA of 30 November 2009, Adopting the Rules on the Confidentiality of Europol Information, 2009 O.J. (L 332/17); Council Decision 2009/934/JHA of 30 November 2009, Adopting the Implementing Rules Governing Europol's Relations with Partners, Including the Exchange of Personal Data and Classified Information, 2009 O.J. (L 325/6); James I. Walsh, Intelligence-Sharing in the European Union: Institutions Are Not Enough, 44 J. Common Mkt. Stud. 625 (2006).Google Scholar

5 See Council Decision 2013/488/EU of 23 September 2013 on the Security Rules for Protecting EU Classified Information, 2013 O.J. (L 274); see Alasdair Roberts, OCRON Creep: Networked Governance, Information Sharing, and the Threat to Government Accountability, 21 Gov't Info. Q. 249 (2003).Google Scholar

6 Interview with Europol Official in Charge of Classified Information, in The Hague, Netherlands (Mar. 19, 2012).Google Scholar

7 See Curtin, Deirdre, Official Secrets and the Negotiation of International Agreements: Is the EU Executive Unbound?, 50 Common Market L. Rev. 423 (2013); see also Christina Eckes, Decision-Making in the Dark?— Autonomous EU Sanctions and National Classification, in Legal Aspects of EU Sanctions 177 (Iain Cameron ed., 2013).Google Scholar

8 See Regulation 1049/2001 of the European Parliament and of the Council of 30 May 2001 Regarding Public Access to European Parliament, 2001 O.J. (L 145/43); European Parliament, Rules of Procedure Annex IX (Feb. 2013); see generally Patrick Birkinshaw, Freedom of Information: the Law, the Practice and the Ideal (2010).Google Scholar

9 See Trauner, Florian, The European Parliament and Agency Control in the Area of Freedom, Security and Justice, 35 West Eur. Pol. 784 (2012); see also Stephen Rozée, Christian Kaunert & Sarah Léonard, Is Europol a Comprehensive Policing Actor?, 14 Perspectives on Eur. Pol. & Soc'y 372 (2013); Herwig C.H. Hofmann, Constitutional Aspects of the Pluralisation of the EU Executive Through “Agencification,” 37 Eur. L. Rev. 419 (2012) (explaining Europol's position and significance in the broader context of EU executive power); Valsamis Mitsilegas, The Third Wave of Third Pillar Law. Which Direction for EU Criminal Justice?, 34 Eur. L. Rev. 523, 553 (2009) (noting that Europol's “transparency and accountability leaves much to be desired”).Google Scholar

10 In terms of methodology, the interviewees were part of semi-structured qualitative interviews with questions based on the applicable legal framework and their personal practice. For the broader European Union Classified Information system (EUCI), almost thirty high-level EU officials have been interviewed, of which five officials have direct connection with Europol, and others form part of the Council, the Commission, and the European External Action Service. The selection of the interviews is based on their professional link with the EUCI. The overall interviews are part of a broader research on the EUCI. Due to protection of privacy, the identity of the officials is not revealed publicly in the article and remains on file with the author.Google Scholar

11 Europol's origin can be traced back to the so-called TREVI group of the 1970s, when the member states' interior ministries and security services aimed to co-ordinate national counter-terrorism efforts that had cross-border implications. See John D. Occhipinti, The Politics of EU Police Cooperation: Towards a European FBI? 32 (2003); Rachel Woodward, Establishing Europol, 1 Eur. J. on Crim. Pol'y & Research 7 (1994).Google Scholar

In the Treaties, Europol was first mentioned in Article K1 (9) of the EU Treaty as a “Union-wide system for exchanging police information.” It was established in 1993 by a Ministerial Agreement in order to fight drug trafficking. This Agreement was later replaced by a Joint Action to establish the Europol Drug Unit with a mandate wider than only drug trafficking, as it also covered trafficking in radioactive and nuclear substances, clandestine immigration networks, and vehicle trafficking. The Joint Action was replaced by the 1995 Europol Convention, which entered into force in 1998. Since the Amsterdam Treaty, there were attempts to build a legal and institutional framework in order for Europol to be fully operational for fighting cross-border crime. See Council Decision 2009/371/JHA of 6 April 2009, Establishing the European Police Office (Europol), May 15, 2009, 2009 O.J. (L 121/37); see also Mathieu Deflem, Europol and the Policing of International Terrorism: Counter-Terrorism in a Global Perspective, 23 Just. Q. 336 (2006).Google Scholar

12 See Lords, House of, After Madrid: The EU's Response to Terrorism (2005), http://www.publications.parliament.uk/pa/ld200405/ldselect/ldeucom/53/53.pdf Google Scholar

13 See Busuioc, Madalina & Groenleer, Martijn, Beyond Design—The Evolution of Europol and Eurojust (Amsterdam Centre for European Law and Governance, Research Paper No. 2011-03, 2011); see also Alexandra De Moor & Gert Vermeulen, The Europol Council Decision: Transforming Europol into an Agency of the EU, 47 Common Mkt. L. Rev. 1089, 1099 (2010).Google Scholar

14 See Lords, House of, Europol: Coordinating the Fight Against Serious and Organized Crime (2008), http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/183/183.pdf.Google Scholar

15 See id., para. 50.Google Scholar

16 Interviews with Several Europol Officials, in The Hague, Netherlands (Mar. 29, 2012, Apr. 10, 2012 & Aug. 30, 2012). See also Björn Müller-Wille, The Effect of International Terrorism on EU Intelligence Co-operation, 46 J. Common Mkt. Stud. 49, 57 (2008).Google Scholar

17 See Sissela Bok, Secrets: On the Ethics of Concealment and Revelation (1982); Monica de Boer, Claudia Hillebrand & Andreas Nolkehillebrand, Legitimacy Under Pressure: The European Web of Counter-Terrorism Networks, 46 J. Common Mkt. Stud. 101 (2008) (explaining intelligence cooperation).Google Scholar

18 See supra note 6.Google Scholar

19 See Alasdair Roberts, OCRON Creep: Networked Governance, Information Sharing, and the Threat to Government Accountability, 21 Gov't Info. Q. 249 (2003); Europol Management Board, Decision Laying Down the Rules Concerning Access to Europol Documents (2009), https://www.europol.europa.eu/sites/default/files/public_access_to_europol_documents.pdf Google Scholar

20 Protection for classified documents in the EU has existed since 1958 in the form of Regulation No. 3, the scope of which was limited to defense information for measures exercised under the supervision of the Commission. A form of the originator rule is found in Article 6(1) where the “original security grading” of the information in question is retained. See Hans Ragnemalm, The Community Courts and Openness within the European Union, in The Cambridge Yearbook of European Legal Studies 19, 22 (1999).Google Scholar

21 See Council Decision 2001/264 of 19 March 2001 Adopting the Council's Security Regulations, 2001 O.J. (L 101/1).Google Scholar

22 See Council Decision 2000/527 of 14 August 2000 Amending Decision 93/731 on Public Access to Council Documents, 2000 O.J. (L 212/9); Council Decision 2000/23 on the Improvement of Information on the Council's Legislative Activities and the Public Register of Council Documents, Dec. 6, 1999, 2000 O.J. (L 212/9) (emphasis added).Google Scholar

23 See Sweden v. Comm'n, CJEU Case C-64/05, 2007 E.C.R. I-11389, para. 47 (explaining the difference between Art. 9 and Art. 4 Regulation 1049/01). The CJEU has had a few occasions to adjudicate upon issues of access to information regarding security and international relations and the role of the originator control. The court appears to be restrained in its review of the information not granting access to documents classified under the exception of security under Article 4(1a). See Päivi Leino-Sandberg, Case C-64/05 P, Kingdom of Sweden v. Commission, 45 Common Mkt. L. Rev. (2008); Dariusz Adamski, Approximating a Workable Compromise on Access to Official Documents: The 2011 Developments in the European Courts, 49 Common Mkt. L. Rev. 521 (2012).Google Scholar

24 See Jose Maria Sison v. Council, CJEU Case C-266/05, 2007 E.C.R. I-1233, para. 95.Google Scholar

25 See Brady, Hugo, Europol and the European Criminal Intelligence Model: A Non-State Response to Organized Crime, 2 Policing 103 (2008).Google Scholar

26 See supra note 6. Also, interviews with Several Europol Officials, in The Hague, Netherlands (Mar. 29, 2012, Apr. 10, 2012 & Aug. 30, 2012) as well as the Council Officials, in Brussels, Belgium (9 Nov. 2012, 20 Nov. 2012).Google Scholar

27 See Madalina Busuioc & Martijn Groenleer, supra note 13; Interview with Europol Official, in the Hague, Netherlands (30 Aug. 2012).Google Scholar

28 See for example arts. 3, art. 10, and art. 11 of the Council Decision 2009/968/JHA of 30 November 2009, Adopting the Rules on the Confidentiality of Europol Information, 2009 O.J. (L 332/17).Google Scholar

29 See Busuioc, & Groenleer, , supra note 13, at 16.Google Scholar

30 See Interview with Europol Official in Charge of Classified Information, in The Hague, Netherlands (Mar. 19, 2012); Interview with Council Official, in Brussels, Belgium (Nov. 20, 2012).Google Scholar

31 See Dorn, Nicholas, The End of Organised Crime in the European Union, 51 Crime L. Soc. Change 283, 283 (2009).Google Scholar

32 Interviews with Several Europol Officials, in The Hague, Netherlands (Mar. 29, 2012, Apr. 10, 2012 & Aug. 30, 2012).Google Scholar

33 See Wills, Aidan & Vermeulen, Mathias, Parliamentary Oversight of Security and Intelligence Agencies in the European Union, European Parliament Directorate General for Internal Policies 80 (2011).Google Scholar

34 Oversight generally refers to an actor scrutinizing an organization's activities with the aim of evaluating its compliance with particular criteria and on this basis, issuing recommendations or orders to the organization concerned. See id. at 41. Some authors define control in a similar manner. For example, Hood defines control as “the periodic checking and examination of the activities of public officials by external actors possessed of formal or constitutional authority to investigate, to grant quietus or to censure, and in some cases even to punish.” See Christopher Hood, The Hidden Public Sector: The “Quangocratization” of the World, in Guidance, Control and Evaluation in the Public Sector 766–67 (G. Majone & V. Ostrom eds., 1986). The aim and scope here is not to draw clear distinctions and discuss these terms, but it must be noted that they are not significantly different and mostly differ in terms of the level and importance of consequences as well as the rigidity of the evaluation process. One of the key differences is if they are focused retrospectively or through the decision-making process as well. See Carol Harlow, Accountability in the European Union 10 (2002).Google Scholar

35 See Fijnaut, Cyrille, Police Cooperation and the Area of Freedom, Security, and Justice, in Europe's Area of Freedom, Security and Justice 241, 255 (Neil Walker ed., 2004); European Parliament, The EU Internal Security Strategy 17 (2011).Google Scholar

36 See European Commission, The Commission Paves the Way for Increased Transparency and Parliamentary Scrutiny of Europol (Dec. 17, 2010), http://europa.eu/rapid/press-release_IP-10-1738_en.htm.Google Scholar

37 See Wills, & Vermeulen, , supra note 33, at 126.Google Scholar

38 See TFEU, supra note 1, art. 10(2).Google Scholar

39 See European Commission, supra note 36; European Commission for Democracy Through Law (Venice Commission), Report on the Democratic Oversight of the Security Services (2007) [hereinafter Venice Commission].Google Scholar

40 See Europol Regulation Proposal, supra note 1, art. 5.Google Scholar

41 See The Europol Convention, Jul. 26 1995, art. 34.Google Scholar

42 See European Parliament, Draft Resolution on the Draft Council Decision Adopting the Implementing Rules Governing Europol's Relations with Partners, Including the Exchange of Personal Data and Classified Information (2009).Google Scholar

43 See Council Decision 2009/371/JHA of 6 April 2009, Establishing Europol, art. 48; see also TFEU, supra note 1, arts. 310–24 (explaining European Parliament's budgetary authority).Google Scholar

44 See Interviews with Several Europol Officials, in The Hague, Netherlands (Mar. 19, 2012, Apr. 10, 2012 & Aug. 30, 2012); Interview with Commission Official in Charge of Classified Information, in Brussels, Belgium (Mar. 22, 2013).Google Scholar

45 Banks, Martin, Commission Calls for More Accountability of EU Police Agency, The Parliament (May 8, 2013), http://www.theparliament.com/latest-news/article/newsarticle/commission-calls-for-more-accountability-of-eu-police-agency/.Google Scholar

46 See European Parliament, Procedure File 2013/0091(COD), http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=COM(2013)0173.Google Scholar

47 For an overview of scrutiny, terminology and background, see Lucinda Maer & Mark Sandford, The Development of Scrutiny in the UK: A Review of Procedures and Practice (2004).Google Scholar

48 See European Parliament Draft Report on the Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and Repealing Decisions 2009/371/JHA and 2005/681/JHA, COM (2013) 0173 (Feb. 7, 2014) [hereinafter European Parliament Draft Report].Google Scholar

49 European Union Committee, The UK Opt-In to the Europol Regulation, 2013-2 H.L. 16 (U.K.).Google Scholar

50 Compare Europol Regulation Proposal, supra note 1, art. 56, with European Parliament Draft Report, supra note 48.Google Scholar

51 Regarding the last point, curiously, the amendments of the European Parliament exclude the possibility of Europol to draw reports on the quantity and quality of information shared by the member states on the basis that such reports would mean an imposition on the national authorities. Such reports could indeed be seen from that perspective, but the intention rather is to create a higher awareness and more cooperative culture between the national authorities and Europol, which in the past has continually been identified as an issue.Google Scholar

52 Europol Regulation Proposal, supra note 1, arts. 53, 54.Google Scholar

53 Council Decision 2013/488/EU on the Security Rules for Protecting EU Classified Information, Sept. 23, 2013, 2013 O.J. (L 274).Google Scholar

54 See Wills, & Vermeulen, , supra note 33, at 180.Google Scholar

55 See Europol Regulation Proposal, supra note 1, art. 53(1).Google Scholar

56 Europol Regulation Proposal, supra note 1, art. 53(3a).Google Scholar

57 To clarify, despite possible participation in joint investigation teams, Europol will not apply coercive measures; see TFEU, supra note 1, art. 88(3).Google Scholar

58 See Svenska Journalist forbundet v. Council, CJEU Case T -174/95, 1998 ECR II-2289.Google Scholar

59 Either in direct form as an original document that is used by Europol, or the so-called derivative documents that are produced by Europol, but on the basis of member-state or third-party information. See supra Part B.II.Google Scholar

60 Treaty on European Union, 1992 O.J. (C191) 1, art. 4(3) [hereinafter TEU]. But see TFEU, supra note 1, art. 346(1a).Google Scholar

61 TEU, supra note 60, art. 4(2).Google Scholar

62 Common Position 2001/931/CFSC, Dec. 28, 2001, 2001 O.J. (L 344), 93.Google Scholar

63 France v. People's Mojahedin Organization of Iran, CJEU Case C-27/09 P, 2011 ECR 00000, para. 42. For more indepth discussion, see sources cited supra note 8.Google Scholar

64 See Rettman, Andrew, Intelligence Chief: EU Capital is “Spy Capital,” EUobserver (Sept. 17, 2012), http://euobserver.com/secret-ue/117553.Google Scholar

65 Born, Hans & Johnson, Loch K., Balancing Operational Efficiency and Democratic Legitimacy, in Who's Watching the Spies? Establishing Intelligence Service Accountability 225–39 (Hans Born & Ian Leigh eds., 2005); see also Hans Born & Ian Leigh, Making Intelligence Accountable: Legal Standards and Best Practice for Oversight of Intelligence Agencies (2005).Google Scholar

66 Interviews with Europol Officials at Europol Headquarters (Mar. 19, 2012).Google Scholar

67 Id. Similar views were expressed in interviews with several Europol officials done at Europol Headquarters on March 19, 2012, April 10, 2012, and August 30, 2012, as well as interviews with Council officials in Brussels on October 22, 2012.Google Scholar

68 Horn, Eva, Logics of Political Secrecy, 28 Theory, Culture & Soc'y 103, 109 (2011).Google Scholar

69 See also International Intelligence Cooperation and Accountability (Hans Born, Ian Leigh & Aidan Wills eds., 2011); see also Anne Peters, Transparency, Secrecy, and Security, in Rule of Law, Freedom and Security in Europe 183 (Julia Iliopoulos-Strangas, Oliver Diggelmann & Hartmut Bauer eds., 2010).Google Scholar

70 See Goede, Marieke de & Wesseling, Mara, Clashing Cultures of Secrecy: Tracking Terrorism Financing and the Paradox of Publicity, Cultural Pol. (Special Issue) (forthcoming 2014).Google Scholar

71 Europol Regulation Proposal, supra note 1, art. 69.Google Scholar

72 For systematic information, see Stephen Schulhofer, Oversight of National Security Secrecy in the United States, in Secrecy, National Security and the Vindication of Constitutional Law 22 (David Cole et al. eds., 2013); Heidi Kitrosser, Congressional Oversight of National Security Activities: Improving Information Funnels, 29 Cardozo L. Rev. 1049 (2008). For the notion of timely access, see Dennis Thompson, Democratic Secrecy, 114 Pol. Sci. Q. 181 (1999).Google Scholar

73 When the discretionary element is not eliminated, there could be fear of possible abuse or manipulation. See Rahul Sagar, Who Holds the Balance?: A Missing Detail in the Debate over Balancing Security and Liberty 41(2) Polity 166, 179 (2009).Google Scholar

74 Clark, Kathleen, Congressional Access to Intelligence Information: The Appearance of a Check on Executive Power (Wash. U. in St. Louis Legal Stud. Res. Paper No. 12-07-02, 2012).Google Scholar

75 McCubbins, Mathew D. & Schwartz, Thomas, Congressional Oversight Overlooked: Police Patrols Versus Fire Alarms, 28(1) Am. J. Pol. Science 165 (1984).Google Scholar

76 See Wills, & Vermeulen, , supra note 33Error! Bookmark not defined. Google Scholar

77 It is not ignored that the different—possibly divergent—interests involved in knowing the information between actors that might have opposed interests play a significant role in what information is or is not shared. But practitioners do admit that the security arrangements for the actor with whom they would share information matters to a very large extent.Google Scholar

78 See Galloway, David, Classifying Secrets in the EU (paper presented at Transparency and Access to the Records and Archives of the EU Institutions Seminar, the European University Institute, Jan. 25, 2013); see also Guri Rosén, Can You Keep a Secret? How the European Parliament Got Access to Sensitive Documents in the Area of Security and Defense (RECON Online Working Paper No. 2011/22).Google Scholar

79 Such agreements in regard to Europol can be seen in the case with the western Balkans, whereby Europol made sure in advance that the countries would correspond to security arrangements. Similar action took place with countries that aimed to join NATO and be part of its classified information network. For the latter, see Alasdair Roberts, Blacked Out: Government Secrecy in the Information Age (2006).Google Scholar

80 See Decision of the Bureau of the European Parliament of 15 April 2013, 2014 O.J. (C 96) 1.Google Scholar

81 See McCubbins, & Schwartz, , supra note 75; see also Gareth Griffith, Parliament and Accountability: The Role of Parliamentary Oversight Committees (New Parliamentary Library Research Service, Briefing Paper No. 12/05, 2005).Google Scholar

82 See Commission, Venice, supra note 39, at 6.Google Scholar

83 Europol Review, European Police Office (2013).Google Scholar

84 For issues of secrecy more generally, see Note, Keeping Secrets: Congress, the Courts, and National Security Information, 103 Harv. L. Rev. 906 (1990).Google Scholar