EUROPOL - FEELING ITS WAY FORWARD

1. (SBU) Summary. During their recent visits to The Hague,
DHS Secretary Ridge and AG Ashcroft announced the assignment
of an FBI agent to Europol's reconstituted task force on
counter terrorism and a Secret Service agent for
counterfeiting. This strengthened U.S. law enforcement
liaison suggests the need for further consideration of
Europol's role and the complexities of dealing with this
institution. Europol is not a law enforcement agency in the
classical sense, although it has become increasingly
operational with each new enforcement decree adopted by the
Council of Justice Ministers. Europol personnel, while
trained police officers, have limited operational authority
at the present. They do not have arrest power or search and
seizure authority, cannot initiate criminal investigations,
and cannot interview witnesses. They can, however,
participate in a support capacity in multinational task
forces and perform analytical assessments, and often do. The
United States was able to successfully negotiate two landmark
agreements with Europol permitting the full exchange of
analytical (December 2001) and personal data (December 2002)
between Europol and U.S. law enforcement agencies at the
federal, state and local levels. However, Europol does not
collect data on its own; it only receives data from Member
States, who remain in ultimate control of the information,
including with whom it is shared. As a practical matter,
Europol is not in a position to give us much data. Still,
Europol provides a unique, member-wide criminal justice
analytical capability that is increasingly looked upon at the
Ministerial level as an expression of an EU police body. At
the political level, it enjoys widespread support and is
often cited as being a critical aspect of EU integration.
Nonetheless, support for Europol is not uniform among Member
State enforcement agencies. Many remain highly skeptical
about the value Europol provides. Some Member States, led by
Germany, envision Europol evolving into a EU Federal Bureau
of Investigation, while others are reluctant to allow it to
become a fully operational police organization. End Summary.

Background


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2. (U) Europol was established by the Treaty of the European
Union in 1992 and has its headquarters in The Hague, The
Netherlands. In 1994, it began limited operations as the
Europol Drugs Unit focusing exclusively on illicit drugs
within the Member States. Following ratification of the
Europol Convention (1998), Europol began its expanded
activities in July 1999. In January 2002, Europol,s
jurisdiction was extended to include all forms of serious
crime. Europol,s main priorities are directed by the
Justice and Home Affairs Council, They are: counter
terrorism, trafficking in drugs and other contraband, illegal
immigration, trafficking in persons, and counterfeiting of
the Euro. There are almost 400 staff members at Europol
including officers, analysts and other experts.



3. (U) The strategic premise behind the creation of Europol
was that by pooling its intelligence and information
concerning crime within the EU, and facilitating channels for
exchanging operational matters, Member States would gain a
better insight into, and could achieve a more effective
response to, crime within the EU. Each EU Member State is
obliged to assign one or more senior officials to Europol in
The Hague along with computer linkage to its national law
enforcement databases. By placing these officers in close
proximity to each other, a country needing police data from a
sister member state has only to go across the hall to make
the request rather than follow a tedious and time consuming
route at the bilateral level. Such officers must have
direct computer access at Europol headquarters to the
criminal justice computer databases employed by their
respective national law enforcement agencies, although it is
still prohibited to integrate all databases into a single
EU-wide system. On the contrary, Member States &own8 their
information and can refuse to share it if doing so would, in
its judgment, be prejudicial.



4. (U) Thus, Europol is not an EU-wide law enforcement
agency, although it is progressively becoming more and more
operational. It has been at the center of new enforcement
initiatives following each new enforcement decree adopted by
the Council of Ministers. Europol personnel, while trained
police officers, have limited operational authority. They do
not have arrest power or search and seizure authority, cannot
initiate criminal investigations, and cannot interview
witnesses. They can, however, participate in a support
capacity in multinational task forces and perform analytical
assessments, and often do, especially in the field of child
pornography. In effect, Europol provides a unique,
member-wide criminal justice analytical capability that is
increasingly looked upon at the Ministerial level as an
expression of an EU police body.



5. (U) Three protocols to the 1998 Europol Convention are now
awaiting ratification by the Member States. These protocols
give an expanded role to Europol, such as providing support
for joint investigative teams. Similarly, the EU Mutual
Legal Assistance Treaty provides for greater Europol
involvement in law enforcement cooperation among the Member
States. The latter instrument was supposed to be implemented
by January 2005, but this is an unlikely target.



6. (SBU) Europol's initial mandate was in many respects
similar to that of Interpol, an international law enforcement
communication network based in Lyon, France. The EU Member
States are the major contributors to Interpol's budget as
well as the major users of Interpol's network. As Europol
takes on more and more tasks, the Member States might come to
question their financial support for Interpol. Already,
questions such as whether Europol will have access to
Interpol's developing databases on child pornography and lost
and stolen passports are emerging.

Data Protection within Europol


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7. (U) Background: The handling and sharing of data,
including personal data, is one of the more difficult issues
affecting our ability to establish a comprehensive law
enforcement relationship with the EU and its Member States.
The difficulties are compounded by the different and shifting
competencies in the field among EU institutions and the
Member States. Further compounding the problem is that Member
States have wide latitude in interpreting operative EU data
privacy instruments, as well as being able to derogate from
these mandates at the national level on the basis of public
security. Thus, in many respects, while operating in the
context of umbrella EU instruments, we are confronted with
not just a single privacy system, but many different systems.



8. (U) Nevertheless, there is basic similarity in Member
State organizational structures to deal with data protection.
As data privacy issues are covered by the EU &acquis8, all
current and future members of the EU must adhere to these EU
data protection instruments or face suit instituted by the
Commission. The challenge for the U.S. is to craft a
relationship that lets us join forces with EU members in
combating crime and terrorism through expansive exchanges and
sharing all forms of data, including personal data.

U.S. Agreements with Europol -- Data Protection


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9. (U) The Europol Convention is the controlling legal
instrument governing Europol. It is a complex document.
Over half of its operative articles are detailed provisions
as to how, and under what circumstances, Europol can obtain,
retain, and disseminate information, especially personal
data. Notwithstanding the complexity of these provisions,
the United States was able to successfully negotiate two
landmark agreements with Europol permitting the full exchange
of analytical (December 2001) and personal data (December
2002) between Europol and U.S. law enforcement agencies at
the federal, state and local levels. The agreements oblige
us to engage in a joint consultation on the implementation of
the agreements in 2005.



10. (U) Europol does not collect data on its own and only
receives it from Member States who remain in ultimate control
of the data, including with whom it is shared. As a practical
matter Europol is therefore not in a position to give us much
data. In essence, the flow of information is mainly
one-sided with US law enforcement providing information to
Europol but receiving little in return. This is due to the
reluctance of Member States to share critical data with
Europol or to release this data to us through Europol
channels. The 2002 Europol Agreement on personal data was
significant in terms of ensuring that police cooperation
between the U.S. and EU police authorities is not disrupted
due to differences in the respective systems of privacy
protection. Moreover, the relationship has been structured
so as to provide maximum flexibility for each U.S. law
enforcement agency to structure its relationship with Europol
in accordance with its own needs.



11. (U) In the Europol-U.S. Agreement (December 2002) and in
the U.S.-EU Agreement on Mutual Legal Assistance (June 2003),
the Europeans agreed that personal data obtained by the U.S.
under those agreements did not have to be deleted once it was
used. Instead, the information could be used to prevent,
investigate or prosecute any specific criminal offense.
Thus, the information is protected by limitations on its use
rather than by retention limits. These agreements, together
with the data protection provisions contained in the Council
of Europe Cyber-crime Convention signed by the U.S. and all
EU Member States, demonstrate that data sharing arrangements
can be devised which are consistent with the needs of
operative EU privacy instruments and those of the U.S.

U.S.-Europol Cooperation - Liaison Officers


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12. (SBU) In August 2002, Europol stationed two liaison
officers to Washington to facilitate Europol coordination
with U.S. law enforcement agencies. The EU Member States
shortly thereafter agreed to have Europol represent their
interests in Washington through these officers where they
deem it appropriate and to serve as a communication conduit
between them and U.S. enforcement authorities. The EU would
like to have these officers represent, if necessary, the law
enforcement interests of Member States who have not stationed
national law enforcement representatives in Washington.
Concerns have been expressed by several of our U.S.
enforcement agencies that in this capacity the EU liaison
officers could undercut the work and role of our attaches
stationed in Europe. This issue we believe has recently been
resolved, at least for the moment. We have agreed with
Europol that it might be useful to exchange letters dealing
with the operation of the liaison officers in Washington,
especially with respect to their handling of requests for
assistance to the U.S. from Member States.



13. (U) Many federal agencies, consistent with the
agreements, have established direct channels of communication
with Europol. In the absence of such arrangements, the U.S.
law enforcement point of contact for Europol is the National
Central Bureau, whose primary mission otherwise is to
facilitate law enforcement cooperation with Interpol. The
Department of Justice attorney stationed at the Mission to
the EU in Brussels currently oversees liaison with Europol.
U.S. law enforcement continues to rely on its bilateral law
enforcement relationships with EU Member States for
exchanging information and is generally not inclined to
handle bilateral issues through Europol channels.



14. (SBU) Europol is anxious to expand its exchanges of
information with the U.S. concerning terrorism. Europol has
complained within EU circles about our alleged failure to
cooperate with them in sharing terrorist-related information.
The FBI has been reluctant to provide Europol with sensitive
data in this field, especially where member states themselves
don,t readily share such data with Europol, preferring to
share through bilateral channels, if at all. Moreover, much
of the data sought has been acquired by the FBI via
intelligence channels and cannot be shared absent the
concurrence of the intelligence community. Shortly after
9/11, the FBI assigned a liaison agent to work with the EU,s
Counter terrorism Task Force in Europol, but the officer was
withdrawn when it became clear that Member States did not
want to use Europol as the means of sharing terrorism
information among themselves or with us. Following the
Madrid bombings, Europol was directed by the Ministers to
&reconstitute8 its largely moribund terrorist task force.
Attorney General Ashcroft recently announced that we will
station an FBI agent at Europol to work cooperatively with
the new task force. Europol is still designing the unit
which is not expected to be operational until 2005.



15. (U) In the June US-EU Summit Declaration of Combating
Terrorism, the U.S. and EU agreed to explore a heightened
cooperative historical analysis of frozen bank accounts.
Europol was tasked by the Ministers to take the lead in this
effort on behalf of the EU but initially communicated their
&inability8 to do it, at least until the adoption of
pending protocols to their convention which will allow them
to engage in joint analytical projects. This matter is still
under discussion with the Dutch Presidency and Europol.



16. (U) Europol,s greatest operational role relates to
counterfeiting of the Euro, much of which occurs outside of
the territory of the EU. Here Europol, operating off of the
authority of the two U.S. agreements already negotiated on
sharing of information, has been working very well with the
U.S. Secret Service which has authority for the U.S. over
such offenses. In his recent visit to The Hague, DHS
Secretary Ridge announced he was posting a Secret Service

SIPDIS
agent to Europol to facilitate further cooperation.

The Europeans and Europol


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17. (U) Participation in Europol is part of the EU "acquis"
to which all member states must adhere. However, membership
in Europol does not automatically follow from EU membership,
but rather requires adoption of the Europol Convention. On
September 1, seven of the ten new EU accession states became
members of Europol: Hungary, the Czech Republic, Slovakia,
Slovenia, Lithuania, Latvia and Cyprus. Poland, Estonia and
Malta are expected to join by the end of the year.



18. (SBU) Support for Europol is not uniform among EU law
enforcement agencies. Many are highly skeptical about the
value Europol provides. However, at the Ministerial level
Europol has widespread support and is often cited as being a
critical aspect of EU integration. Some Member States, led
by Germany, envision Europol evolving into a EU Federal
Bureau of Investigation, while others are reluctant to allow
it to become fully operational. The agency's annual report
says that 4,700 cases were processed by Europol in 2003,
compared to 3,400 cases the year before. "The report shows a
growing awareness for our services, and that our colleagues
in the Member States appreciate the added value given from
our analysts in the fight against organized crime and
terrorism," according to the acting Director of Europol
Mariano Simancas. The European Parliament is considering
changes to Europol's status. The chairman of the Citizens'
Freedoms and Rights Committee, responsible for drafting the
European Parliament's Opinion on the "Tampere II" Program on
Justice and Home Affairs, wants Europol to be made an EU body
rather than an inter-governmental organization and to make it
subject to the control of the European Court of Justice.

Search for a new Director


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19. (SBU) Jurgen Storbeck's five-year contract as Europol
Director expired June 30. The organization is being run in
the interim by Spanish Deputy Director Mariano Simancas.
The appointment requires a consensus decision. Within the
next two weeks the Europol Governing Board is expected to
develop a short list from the nominations submitted by member
governments. This list will then go to the JHA Council for
its consideration. The deputy director of Europol thinks it
is unlikely a director will be appointed for another
four-to-five months. The major players in the appointment
are France and Germany. Failure to decide on the Europol
Directorship before the expiration of Storbeck's term was
seen as most unfortunate, given the enhanced role of Europol
envisioned in the EU's counter terrorism efforts.

Comment


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20. (U) The U.S. believes that Europol has the potential for
evolving into a major organizational law enforcement
institution both within the EU as well as in international
law enforcement fora. As such, we have attempted to forge
the legal basis for exchanging all forms of law enforcement
data, while recognizing that at the moment Europol may not
have much with which to reciprocate. End comment.

Schnabel