Devising a European Internal Security Strategy
Julien Jeandesbozvisibility
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The present study examines the steps taken since the entry into force of the Lisbon Treaty in the field of internal security and assesses commitments made in the areas of fundamental rights and civil liberties. The study examines the development of the EU Internal Security Strategy, with special attention paid to fighting terrorism and organised crime. It also investigates the activities of the main EU agencies involved in internal security policies. The study finally sketches out the key challenges lying ahead for EU internal security policies, with particular consideration paid to the role that the European Parliament will be called upon to play.
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Developing an EU Internal Security Strategy, fighting terrorism and organised crime
The present study examines the steps taken since the entry into force of the Lisbon Treaty in the field of internal security and assesses commitments made in the areas of fundamental rights and civil liberties. The study examines the development of the EU Internal Security Strategy, with special attention paid to fighting terrorism and organised crime. It also investigates the activities of the main EU agencies involved in internal security policies. The study finally sketches out the key challenges lying ahead for EU internal security policies, with particular consideration paid to the role that the European Parliament will be called upon to play.
Developing an EU internal security strategy, fighting terrorism and organized crime
European Parliament/LIBE Committee, 2012
The present study examines the steps taken since the entry into force of the Lisbon Treaty in the field of internal security and assesses commitments made in the areas of fundamental rights and civil liberties. The study examines the development of the EU Internal Security Strategy, with special attention paid to fighting terrorism and organised crime. It also investigates the activities of the main EU agencies involved in internal security policies. The study finally sketches out the key challenges lying ahead for EU internal security policies, with particular consideration paid to the role that the European Parliament will be called upon to play.
New Challenges for the EU Internal Security Strategy
"In the past number of years, the EU and its member states have experienced a number of changes, as well as challenges, in the areas of politics, economics, security and law. As these areas are interconnected, changes and challenges to or in any of them have implications for the others, as well as implications for the populations and institutions of the EU or those coming into contact with its international power and influence. This edited collection will focus primarily on security and law, and most notably the EU’s internal security strategy. The EU’s Internal Security Strategy, adopted by the Spanish presidency early in 2010, followed on from the coming into force of the Lisbon Treaty in 2009, building on previous developments within the EU in the Area of Freedom Security and Justice (AFSJ) policy. The focus of the EU Internal Security Strategy is to prevent and combat “serious and organised crime, terrorism and cybercrime, in strengthening the management of our external borders and in building resilience to national and man-made disasters”. The Internal Security strategy intersects and overlaps with the European Union’s Counter-terrorism strategy, the Strategy for the External Dimension of JHA, and the EU’s Security Strategy. The role of and interaction between these strategies, their supplementing documents, and their implications for crime, victims, the law, political relations, democracy and human rights, form the backdrop against which the chapters in this collection are written. Building on original research by its contributors, this collection comprises work by authors from a wide variety of academic and professional areas and perspectives, as well as different countries, on a variety of areas and issues related to or raised by the EU’s Internal Security Strategy, from intelligence-led policing to human trafficking and port security. This book examines, from a wide variety of discipline perspective, to include law, geography, politics and practice, both this further refinement of existing internal provisions on cross border crime, and the increasing external relations of the EU in the AFSJ. The collection is divided into five parts. The first part will examine the fundamental relationship between policing and security. Part two will examine the relationship between security and location. While a great deal of attention has been focused on airports and passenger air travel since 9/11, in part two we have decided to concentrate on another specific but less examined location, EU commercial maritime ports. The third and fourth parts of this collection focus on two particular types of crime as case studies, commercial/financial crime and human trafficking. The fifth and final part of the book examines the “bigger picture”, the relationship between the EU’s internal and external security policy. Within each part, the contributors examine different, but overlapping, legal, political, practical and analytical cases, themes and issues. Dr. Maria O’Neill, Law Division, University of Abertay Dundee, UK. Maria is an EU lawyer, who specialises in the EU’s provisions on Police and Judicial Cooperation in Criminal Matters. She is the coordinator of the University Association for Contemporary European Studies collaborative research network on “Policing and European Studies”. She has a number of publications in this area, to include a recent book on The Evolving EU Counter-Terrorism Legal Framework, with Routledge. Ken Swinton, Law Division, University of Abertay Dundee, UK. Ken is a Scottish qualified solicitor, legal academic, and editor of a number of Scottish based law publications, to include the Scottish Law Gazette. He specialises in Financial Services law. Dr. Aaron Winter is Lecturer in Sociology at the University of Abertay. He holds a DPhil in Social and Political Thought from the University of Sussex. His research examines racism, the extreme-right, terrorism and political violence. He is co-editor of and a contributor to Discourses and Practices of Terrorism: Interrogating Terror (Routledge, 2010) and the author of White Separatism and the Politics of the American Extreme-Right: Civil Rights, 9/11 and a Black Man in the White House (Ashgate, forthcoming)."
Governing Internal Security in the European Union
The Maastricht treaty on the European Union (EU) erected a three-pillar edifice of European integration whose third pillar comprised various forms of cooperation in justice and home affairs. Many practices had existed much before 1992 and their inclusion into the new organization was a kind of cosmetic surgery. That face-lifting of cooperation in justice and home affairs had obvious consequences for the nature of the third pillar and the overall balance of EU policies. The third pillar was a strictly intergovernmental area where the EU members kept their sovereign right to decide upon their home affairs and judicial cooperation, as well as regulate migration flows and safeguard their national borders. EC institutions did not have much say on those matters, and any progress of cooperation depended on consensus between the members. The Maastricht treaty established legal/formal and institutional grounds for EU cooperation in managing internal security through intergovernmental consultations regarding the movement of persons in the EU, and concomitant flanking measures in the fields of police and judicial cooperation. EU politics of internal security was formally strengthened in the Amsterdam Treaty, and practically through incorporation of acquis Schengen into the legal framework of the Union. The gradual widening of the Schengen area, the abolition of controls at internal borders and the reinforcement of flanking measures, especially at external borders, allowed the EU to set up a comprehensive and relatively efficient system of internal security. Although the Amsterdam treaty, reforming the EU, intended to improve the fluctuation of numerous policy fields, its provisions concerning justice and home affairs were controversial. Firstly, a relatively simple and transparent structure of third-pillar cooperation was replaced by a multilevel asymmetrical and entangled cross-pillar construction in an "area of freedom, security and justice." Provisions relating to immigration, visas, asylum and other policies related to free movement of persons were transferred to the Community pillar. The third pillar was reduced to police and criminal justice cooperation. The Schengen acquis was inserted into the framework of the EU although its provisions were granted a special autonomy. Discussions about the reform of the EU have dominated a general political and theoretical discourse on European integration at the threshold of the 21st century. A host of supranational institutions and intergovernmental bodies along with politicians and government officials from the EU members have perseveringly deliberated upon the most suitable and desirable shape of a future EU. The 2007 Lisbon treaty ended the long and tortuous trip to a new arrangement for European integration although its fate is still undecided. Moreover, the formal abolition of the pillar structure was partially undermined by special provisions concerning, first of all, internal security matters, especially police cooperation and criminal justice. The process of constitutionalisation of the EU came amidst a great global security debate. The symbolic and political impact of the 9/11 terrorist attacks on the US, when Western civilization lost the feeling of stability and entered a new stage: a ‘war on terror,' brought about new challenges for the EU in the area of security. Transnational processes, in which the EU and its Communities have, for decades, assumed a leading and creative role, changed the traditional perception and understanding of security. One of the objectives of European integration has been to make inhabitants of the continent feel safer and more confident in the institutions of public life. The challenge of transnational threats such as terrorism, cross-border organized crime, large-scale migrations, asymmetrical conflicts or WMD proliferation had also to be met by the European states. Confronted for decades with such disquieting events and phenomena, the Europeans managed to work out, within the framework of European integration processes, certain arrangements allowing for more effective and long-term cooperation in preventing and combating the major threats to European security.
K.P. Marczuk, 2010. Towards the EU's Internal Security Strategy: A New Paradigm of Internal Security?
In: Proceedings of the International Scientific Conference of "A.I.Cuza" Police Academy of Romania. Bucharest: "Alexandru Ioan Cuza" Police Academy, 2010
This paper consists of three main parts: two of them are devoted to modern approaches to the (internal) security concept, while the third one analyses a new project of the European Union – an Internal Security Strategy for the European Union (February 2010). Taking into consideration up-to-date approaches to the security studies (so-called Copenhagen School as well as human security), the author presents her proposal for a modern definition of internal security. Subsequently, giving a brief analysis the EU's Internal Security Strategy, as a case study, and seeking links between theory and practice of internal security, the author provides a couple of conclusions.
Introduction: Developments in European Security
Journal of Contemporary European Research, 2011
An Overview of the European Union Instruments Contributing to the Internal Security of the Organization and its Member States
European Union being a complex organization has been launched in order to increase quality of the EU citizens' life. Mainly aimed at building economic and social well-being through inclusivity and integrity processes which are regulated by the EU and its Member States [1]. The EU security is a natural and necessary condition for the postulated well-being of human kind. Therefore, the EU has been investing and regulating also internal security domain for many years now. There are several policies and instruments that were designed and implemented to meet the expectation of the 'Europe which protects'. Different EU bodies administrate many of these mechanisms, although they are aimed at achieving the same goal-EU citizens safety and security. The article presents a review on the key EU policies and instruments in order to analyze them towards their EU internal security implications. Finally, it presents overall picture of the EU crisis response logic and synergy what is the aim of the article.
D I RECTORATE GEN ERAL FOR I N TERN AL POLI CI ES
POLI CY D EPARTM EN T C: CI TI ZEN S' RI GH TS AN D
CON STI TUTI ON AL AFFAI RS
CI VI L LI BERTI ES, JUSTI CE AN D H OM E AFFAI RS
D e ve lopin g a n EU I n t e r n a l Se cu r it y
St r a t e gy, figh t in g t e r r or ism
a n d or ga n ise d cr im e
STUD Y
Abst r a ct
The present st udy exam ines t he st eps t aken since t he ent ry int o force
of t he Lisbon Treat y in t he field of int ernal securit y and assesses
com m it m ent s m ade in t he areas of fundam ent al right s and civil
libert ies. The st udy exam ines t he developm ent of t he EU I nt ernal
Securit y St rat egy, wit h special at t ent ion paid t o fight ing t errorism and
organised crim e. I t also invest igat es t he act ivit ies of t he m ain EU
agencies involved in int ernal securit y policies. The st udy finally sket ches
out t he key challenges lying ahead for EU int ernal securit y policies, wit h
part icular considerat ion paid t o t he role t hat t he European Parliam ent
will be called upon t o play.
PE 4 6 2 .4 2 3
EN
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
_________________________________________________________________________________________
This docum ent was request ed by t he European Parliam ent 's Com m it t ee on Civil Libert ies,
Just ice and Hom e Affairs
AUTH ORS
Dr. Am andine Scherrer ( Cent re d’Et udes sur les Conflit s, Paris)
Dr. Julien Jeandesboz ( King’s College, London)
Dr. Em m anuel- Pierre Guit t et ( Universit y of Manchest er, UK)
Under t he coordinat ion of t he Cent re d’Et udes sur les Conflit s ( C&C) and of t he Just ice and
Hom e Affairs Sect ion of t he Cent re for European Policy St udies ( CEPS)
RESPON SI BLE AD M I N I STRATOR
Mr Alessandro DAVOLI
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
European Parliam ent
B- 1047 Brussels
E- m ail: poldep- cit [email protected]
LI N GUI STI C VERSI ON S
Original: EN
ABOUT TH E ED I TOR
To cont act t he Policy Depart m ent or t o subscribe t o it s m ont hly newslet t er please writ e t o:
poldep- cit [email protected]
Manuscript com plet ed in Novem ber 2011
© European Parliam ent , Brussels, 2011
This docum ent is available on t he I nt ernet at :
ht t p: / / www.ipolnet .ep.parl.union.eu/ ipolnet / cm s/ pid/ 1401
ht t p: / / www.europarl.europa.eu/ delegat ions/ en/ st udies.ht m l
D I SCLAI M ER
The opinions expressed in t his docum ent are t he sole responsibilit y of t he aut hor and do
not necessarily represent t he official posit ion of t he European Parliam ent .
Reproduct ion and t ranslat ion for non- com m ercial purposes are aut horised, provided t he
source is acknowledged and t he publisher is given prior not ice and sent a copy.
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CON TEN TS
LI ST OF ABBREVI ATI ON S
5
EXECUTI VE SUM M ARY
8
I N TROD UCTI ON
12
1 . PRI ORI TI ES OF EU I N TERN AL SECURI TY:BACKGROUN D AN D TH E
EUROPEAN SECURI TY STRATEGY
16
1 .1 . Ba ck gr ound
16
1.1.1.
The analysis of t he European fight against organised crim e and
t errorism : The st at e of t he debat e
17
1.1.2.
The quest ion of knowledge
21
1.1.3.
The quest ion of civil libert ies
24
1 .2 . Th e Eur ope a n I n t e r na l Se cu r it y St r a t e gy
26
1.2.1.
St rat egy- m aking in t he AFSJ: The I nt ernal Securit y St rat egy in cont ext 27
1.2.2.
The I nt ernal Securit y St rat egy and I SS in Act ion com m unicat ion
30
1.2.3.
Conclusion - The I SS and t he post - Lisbon AFSJ st rat egic environm ent :
The lack of art iculat ion bet ween securit y and freedom
33
2 . ACTORS AN D AGEN CI ES OF EU I N TERN AL SECURI TY: STATE OF PLAY
AN D CURREN T TRAN SFORM ATI ON S
36
2 .1 . Th e Com m ission : t h e t r a n sfor m a t ion of D G JLS
37
2 .2 . Th e Coun cil: Th e e st a blish m e nt of COSI a n d cha n ge s t o t he w or k ing
st r uct ur e s
38
2.2.1.
COSI : Background
39
2.2.2.
Ongoing debat es and challenges
40
2 .3 . EUROPOL
46
2.3.1.
Background on t he agency
46
2.3.2.
Ongoing debat es and challenges
46
2.3.3.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y
and t he I SS
47
2 .4 . FRON TEX
51
2.4.1.
Background on t he agency
51
2.4.2.
Ongoing debat es and challenges
53
2.4.3.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y
and t he I SS
57
2 .5 . CEPOL
60
2.5.1.
Background on t he agency
60
2.5.2.
Ongoing debat es and challenges
62
2.5.3.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y
and t he I SS
64
2 .6 . EUROJUST
66
2.6.1.
66
Background on t he agency
3
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
_________________________________________________________________________________________
2.6.2.
Ongoing debat es and challenges
67
2.6.3.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y
and t he I SS
69
2 .7 . Th e un de fin e d r ole of t h e Cou n t e r Te r r or ism Coor dina t or , OLAF a n d
Sit Ce n
72
2.7.1.
The EU Count er Terrorism Coordinat or
72
2.7.2.
The European Ant i- Fraud Office ( OLAF)
73
2.7.3.
The EU Sit uat ion Cent re ( Sit Cen)
73
2 .8 . Cu r r e n t t r e n ds in a ge n cy a nd in st it u t ion a l coope r a t ion in EU int e r na l
se cu r it y policie s
75
2.8.1.
Cooperat ion bet ween EU agencies, bodies and services in t he field of
int ernal securit y
75
2.8.2.
The drive t owards int elligence- led policies
80
2.8.3.
The role of t he freedom agencies of I SS
82
3 . CH ALLEN GES OF EU I N TERN AL SECURI TY
3 .1 . Th e policy ch a lle n ge
3.1.1.
Towards an evidence- based EU policy
87
87
88
3.1.2.
Effect ive consult at ion and involvem ent of t he European Parliam ent and
of bodies in charge of fundam ent al freedom s and right s
89
3 .2 . Th e t e ch nologica l cha lle nge
91
3.2.1.
The drive t owards t echnology- int ensive EU int ernal securit y policies
92
3.2.2.
The quest ion of dat a processing
98
3.2.3.
The issue of oversight
105
3 .3 . Th e in t e r na l/ e x t e r na l r e la t ion s ch a lle n ge
109
3.3.1.
cont ext
The ext ernal dim ension of int ernal securit y policies in t he post - Lisbon
109
3.3.2.
EU int ernal securit y act ivit ies in t hird count ries: key areas of concern
for t he fut ure
111
3.3.3.
The im plicat ions of t hird count ry securit y policies for EU fundam ent al
freedom s and right s
114
CON CLUSI ON
116
RECOM M EN D ATI ON S
118
Re fe r e n ce s
122
An n e x
132
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Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
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LI ST OF ABBREVI ATI ON S
AFSJ Area of Freedom , Securit y and Just ice
AW F
CATS
CM S
CEPOL
CFR
CI REFI
Analysis Work Files
Art icle 36 Com m it t ee
Case Managem ent Syst em
European Police College
Chart er of Fundam ent al Right s
Cent re for I nform at ion, Discussion and Exchange on t he Crossing of
Front iers
CI RAM
Com m on Risk I nt egrat ed Model
COE Council of Europe
COSI
St anding
Com m it t ee
on
Operat ional
Cooperat ion
on
I nt ernal
Securit y
COTER
CSD P
Council working group on t errorism
Com m on Securit y and Defence Policy
CTC Count er Terrorism Coordinat or
D CI
D PO
Developm ent Cooperat ion I nst rum ent
Dat a Prot ect ion Officer
EAW s
European Arrest Warrant s
ECI M
European Crim inal I nt elligence Model
ECJ European Court of Just ice
ED F
ED PS
European Developm ent Fund
European Dat a Prot ect ion Supervisor
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EI S
EN I SA
EN PI
EP
EULEX
EUROSUR
FJST
FRAN
EUROPOL I nform at ion syst em
European Net work and Securit y Agency
European Neighbourhood Policy I nst rum ent
European Parliam ent
European Union Rule of Law Mission in Kosovo
European Border Surveillance Syst em
FRONTEX Joint Support Team s
FRONTEX Risk Analysis Net w ork publicat ion
H TCC EUROPOL’s High Tech Crim e Cent re
I LOs
I m m igrat ion Liaison Officers
I SS
I nt ernal Securit y St rat egy
JI Ts
Joint I nvest igat ion Team s
JROs
JSB
M ASP
Joint Ret urn Operat ions
Joint Supervisory Body
Mult i- Annual St rat egic Plan
M LA
Mut ual Legal Assist ance
MDG
Mult idisciplinary Group on Organised Crim e
M oU
Mem orandum of Underst anding
MS
OAPs
Mem ber St at es
Operat ional Act ion Plans
OC Organised Crim e
OCTAs
Organised Crim e Threat Assessm ent Report s
PAD
Policy Advisory Docum ent
PN R
Passenger Nam e Record
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Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
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PSC Polit ical and Securit y Com m it t ee
RABI T
Rapid border int ervent ion t eam s
SCI FA
St anding Com m it t ee on I m m igrat ion, Front iers and Asylum
Sit Ce n
Sit uat ion Cent re
SOCA
SOCTAs
UK Serious and Organised Crim e Agency
Serious and Organised Crim e Threat Assessm ent Report s
TCM
Terrorism convict ions m onit or
TEU
Treat y of t he European Union
TFTP
Terrorist Finance Tr acking Program m e
TE- SATs
Terrorism Sit uat ion and Trend report s
TW G
Terrorism Working Group
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EXECUTI VE SUM M ARY
The present st udy exam ines t he st eps t aken since t he ent ry int o force of t he Lisbon Treat y
( 2009) in t he field of int ernal securit y and assesses com m it m ent s m ade in t he areas of
fundam ent al right s and civil libert ies. I t surveys t he draft ing of t he I nt ernal Securit y
St rat egy ( I SS) ( 1.2) and invest igat es t he act ivit ies of t he m ain European Union ( EU)
agencies, bodies and services involved in int ernal securit y policies ( 2) . I t finally sket ches
out t he key challenges lying ahead for EU int ernal securit y policies, wit h part icular
considerat ion for t he role t hat t he European Parliam ent will be called t o play ( 3) .
The st anding of fundam ent al right s, freedom s and j ust ice, in view of t he Lisbon Treat y
and t he developm ent of t he I SS is at t he heart of t he present analysis. Wit h t he abolit ion
of t he pillar syst em , issues of policing, count er- t errorism and j udicial cooperat ion in
crim inal m at t ers are now bound t o t he sam e com m on obj ect ives and requirem ent s as
ot her EU policies. Alongside t he changes t o t he EU’s inst it ut ional st ruct ure, t he Lisbon
Treat y brings about t wo crucial m odificat ions in t his respect : it gives t he Chart er of
Fundam ent al Right s legally binding st at us and int roduces in t he Treat y on European Union
a general com m it m ent t o such principles as freedom , t he rule of law and respect for
hum an right s ( Art icle 2 TEU) . I n t he m eant im e, t he inflect ion given t o t he Area of
Freedom , Securit y and Just ice ( AFSJ) policies since t he Laeken European Council ( 2001)
and t he Hague program m e ( 2004) have seen a significant increase in securit y- relat ed
init iat ives which have proved a challenge for legal guarant ees of fundam ent al freedom s
and right s and requirem ent s of t ransparency and dem ocrat ic account abilit y.
I n t his cont ext , t he st udy ident ifies key elem ent s t hat require careful at t ent ion as regards
fundam ent al freedom s, t ransparency and account abilit y.
Th e policy pr oce ss
The m ost im port ant challenge for ensuring t he proper funct ioning of t he EU syst em of
checks and balances, guarant eeing dem ocrat ic account abilit y and enforcing com pliance
wit h t he fundam ent al freedom s and right s obligat ions laid down in t he Treat ies, relat es t o
t he organisat ion of int ernal securit y policy. I t is t o devise a policy process t hat is inclusive
of all st akeholders.
The work m et hodology adopt ed by t he St anding Com m it t ee on I nt ernal Securit y ( COSI ) ,
which is called t o play a cent ral role in t he I SS, and t he subsequent est ablishm ent of an
EU “ policy cycle” for int ernal securit y ( originally developed t hrough t he “ Harm ony”
proj ect ) raises quest ions in t his respect ( 2.2) . The analysis of t he m anagerial m odel t hat
will be applied t o EU securit y act ivit ies ( based on t he ‘Harm ony Proj ect ’ proposals)
highlight s a lack of m onit oring arrangem ent involving t he European Parliam ent . Alt hough
t he role of t he EP is lim it ed in decision- m aking on m at t ers of operat ional cooperat ion due
t o t he provisions cont ained in Art icle 87( 3) TFEU, t he envisaged policy cycle t ouches upon
areas where t he EP m ight have a say. The EU policy process in t he field of int ernal
securit y does not specify m echanism s t hrough which, in accordance wit h Art icle 70 TFEU
on im part ial evaluat ion of EU policies, Art icle 71 TFEU on COSI and Art icle 6( 2) of t he
COSI Decision, t he European Parliam ent and nat ional Parliam ent s are kept “ inform ed” ,
and how t heir com m ent s can be t aken on board ( 2.2.2.4) .
Addit ionally, t he working m et hodology adopt ed by COSI for int ernal securit y does not
clearly lay down provisions for independent or ext ernal evaluat ions of t he inform at ion and
analyses leading t o t he developm ent of int ernal securit y policies.
The quest ion of t he m et hodology developed by t he “ Harm ony proj ect ” is even m ore
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Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
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im port ant when analyzing t he t hreat assessm ent s produced by EUROPOL t hat have
becom e cent ral for decision- m aking and are t o becom e t he basis for EU policy cycles in
int ernal securit y ( 2.3) . As such, it appears fundam ent al t o m ake sure t hat t he
m et hodology used in such report ing exercise is m ade fully t ransparent , so it can be
ext ernally assessed j ust like any ot her knowledge process.
The inclusion of ‘Fr e e dom Age ncie s’
The European securit y m odel advocat ed in t he I SS support s an all- encom passing
definit ion of int ernal securit y and a rest rict ive definit ion of t he int eract ions bet ween
securit y, freedom and j ust ice. Despit e t he com m it m ent s laid out in t he St ockholm
Program m e in t his respect , an illust rat ion of t hat m at t er is t he fact t hat bodies in charge
of freedom s and right s are not syst em at ically included in I SS act ivit ies. Does t his im ply
t hat securit y is t o be t he driving priorit y of t he AFSJ?
This is part icularly clear in COSI ’s act ivit ies. There are grounds, det ailed in t he st udy, t o
include bodies such as t he European Dat a Prot ect ion Supervisor ( EDPS) , t he Art icle 29
Working Part y or t he Fundam ent al Right s Agency ( FRA) in t he planning of operat ional
priorit ies undert aken by COSI ( 2.8.3) . This is all t he m ore possible as t he FRA is now
considered t o be part of t he JHA Agencies.
I n t his respect , it is wort h not ing t hat COSI ’s rem it includes t he evaluat ion of operat ional
cooperat ion: t he grounds on which t he exclusion from such an evaluat ion of input s of
agencies in charge of fundam ent al right s rem ain unclear.
Of furt her concern are t he consequences t hat such a sit uat ion m ight have aft er 2014
when t he ECJ’s m andat e is fully ext ended t o t he AFSJ. Over t he years, t he EU’s
operat ional act ivit ies in t he field of int ernal securit y have been m et wit h considerable and
ext ensive crit icism from t he point of view of fundam ent al freedom s and right s. The
possibilit y of legal act ion over operat ional act ivit ies coordinat ed by t he EU, and t he relat ed
need t o ensure t hat fundam ent al freedom s and right s are upheld in t hese act ivit ies
const it ut e a solid basis for involving bodies such as t he FRA, t he EDPS or t he Art icle 29
Com m it t ee in t he evaluat ions conduct ed by COSI ( 3.2) .
Role s, t a sk s a nd pr ior it ie s of EU a ge n cie s in ch a r ge of se cu r it y
EUROPOL has benefit ed t he m ost from t he orient at ions encapsulat ed in t he I SS ( 2.3) . The
agency has com m it t ed significant effort s t o t aking t he lead in m any areas t he I SS covers,
such as t hreat assessm ent s and t he exchange of inform at ion, including personal dat a. The
second agency t o benefit from t he current st at e of play in EU int ernal securit y policies is
FRONTEX ( 2.4) . The agency should indeed see it s m andat e reinforced, wit h increased
cont rol over t he init iat ing of j oint operat ions and pilot proj ect s. Much like EUROPOL, it
appears t o be gaining an increasingly cent ral role in t he collect and analysis of inform at ion
regarding t he ext ernal borders, in t he field of risk analysis and t hreat assessm ent on t he
one hand, and wit h regard t o access t o elect ronic dat a, including t he processing of
personal dat a, on t he ot her.
The t wo ot her m ain JHA agencies, CEPOL and EUROJUST ( 2.5. and 2.6) appear in a m uch
weaker posit ion. CEPOL has experienced difficult ies follow ing int errogat ions on it s capacit y
t o m anage it s financial resources according t o t he st andards and regulat ions applying t o
EU bodies, but also from t he lack of clarit y as t o it s net worked st ruct ure and t he
developm ent of t raining act ivit ies by ot her EU agencies. EUROJUST is on t he ot her hand
experiencing ot her kind of difficult ies, am ong which it s quest for a clear posit ioning in t he
9
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EU securit y landscape. The report nevert heless reviews renewed possibilit ies for t hese
agencies in an I SS cont ext .
Furt herm ore, som e EU agencies require clarificat ion as t o t heir role and t asks wit hin t he
I SS ( 2.7) . The fut ure roles of t he Count er Terrorism Coordinat or ( CTC) , t he posit ioning of
t he European Ant i- Fraud Office ( OLAF) , as well as t he involvem ent of t he EU Sit uat ion
Cent re ( Sit Cen) are not so clear in t he cont ext out lined by t he I SS.
D a t a pr ot e ct ion a n d t h e issue of ove r sigh t
Dat a prot ect ion is a cent ral issue for oversight in a cont ext of t echnology int ensive
int ernal securit y policies relying on t he processing of personal dat a ( 3.2) .
The expansion of dat a processing has led t o t he developm ent of a num ber of proposals for
t heir regulat ion wit hin t he fram ework of int ernal securit y policies. An analysis of t he
I nform at ion Managem ent St rat egy ( I MS) , whose aim is t o regulat e dat a exchanges and
processing, highlight s several short com ings: t he st rat egy t akes a st rong st ance in favour
of dat a sharing and processing wit hout clarifying which are t he agencies, bodies,
inst it ut ions or services t hat should be involved in ensuring t hat “ inform at ion m anagem ent ”
com plies wit h all t he requirem ent s relat ed t o t he right t o dat a prot ect ion. Neit her does it
gives provisions on what should be t he role of EU and nat ional dat a prot ect ion aut horit ies,
of t he European Parliam ent and of nat ional Parliam ent , in t he m anagem ent of inform at ion
exchanges. The European Com m ission Com m unicat ion for a com prehensive approach on
dat a prot ect ion in t he European Union ( adopt ed in Novem ber 2010) dem onst rat ed t he
need for a single dat a prot ect ion fram ework, for increased oversight of law enforcem ent
act ivit ies involving t he processing of personal dat a, and t o pay part icular at t ent ion t o
specific form s of dat a processing.
The st udy reviews prom ising ways of efficient ly addressing t he issue of oversight wit h
regard t o dat a processing. The inclusion for inst ance of a st at ut ory account abilit y principle
in t he revised EU dat a prot ect ion fram ework, support ed by t he Art icle 29 Com m it t ee, as
well as appropriat e and effect ive m easures relat ed t o t he legal obligat ions of t he EU and
it s Mem ber St at es wit h regard t o fundam ent al right s and freedom s, including t he right of
dat a prot ect ion, could be a good st art ing point . On t hat m at t er, opinions expressed by t he
EDPS, t he Art icle 29 Com m it t ee, or t he FRA, dem onst rat es t hat EU safeguards are already
in place and t hat t heir work should be m ore m obilised in EU int ernal securit y act ivit ies, in
order t o ascert ain t hat requirem ent s regarding im pact assessm ent , for inst ance, are being
observed in developing policies on int ernal securit y. These procedures include, for
exam ple, respect of t he im pact assessm ent guidelines designed by t he European
Com m ission and checks on how proposed m easures com ply wit h t he Chart er of
Fundam ent al Right s according t o t he st andards laid out by t he European Com m ission and
t he Council Secret ariat .
This aspect reinforces t he need for m ore inclusion of freedom agencies in EU int ernal
securit y policies. The involvem ent of EU “ Freedom s Agencies” should not be seen as a
concession offered t o “ civil libert ies” support ers, but as an efficient way t o com ply wit h
t he rule of law and avoid cont roversies, as well as t he possible consequences of court
decisions.
Effe ct ive com plia n ce of e x t e r na l a ct ivit ie s
Securit y cooperat ion wit h t hird count ries raises a num ber of challenges and can be highly
sensit ive, as dem onst rat ed by cont roversies around t he EU- US TFTP and PNR agreem ent s.
The gist of t he challenge regarding ext ernal relat ions is t he possibilit y t o ensure effect ive
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com pliance of ext ernal act ivit ies in t he field of int ernal securit y wit h t he principles
governing t he AFSJ as a whole, and part icularly wit h Treat y- based obligat ions in t he field
of fundam ent al freedom s and right s ( 3.3) .
There is clearly a need for m onit oring t he arrangem ent s and agreem ent s concluded by EU
agencies and bodies wit h t hird count ries. This would arguably reflect t he fact t hat t he
Lisbon Treat y grant s t he EU a single legal personalit y and provides a single legal basis for
t he conclusion of int ernat ional agreem ent s ( Art icle 217 TFEU) . Art icle 218 TFEU furt her
est ablishes a single procedure for t his purpose, where t he consent of Parliam ent is
required for all fields where t he ordinary legislat ive procedure applies, and in t he fields
where t he special legislat ive procedure requires consent ( Art icle 218( 6) ( a) TFEU) . I n ot her
cases, t he Parliam ent is t o be consult ed, alt hough t he Council does have t he opt ion of
fixing a t im e lim it for t he issuance of an opinion ( Art icle 218( 6) ( b) TFEU) . This im plies t hat
in m at t ers falling under Art icle 87( 3) TFEU ( operat ional cooperat ion in int ernal securit y
m at t ers) , Parliam ent m ay only be consult ed, but t his consult at ion is m andat ory.
Anot her issue for concern in recent years has been t he direct involvem ent of t he EU and
it s Mem ber St at es in int ernal securit y operat ions in t hird count ries. The best - known
exam ple of such a sit uat ion is t he HERA series of operat ions coordinat ed by FRONTEX
since 2006, which are based in t he Canary I slands.
A t hird set of quest ions regarding t he ext ernal dim ension involves t he im pact of t he
securit y policies of EU part ners on t he guarant ees regarding fundam ent al freedom s and
right s afforded by t he Union’s legal fram ework. At st ake here is in part icular t he unfolding
of t he relat ionship bet ween t he EU and t he US in securit y m at t ers. Of part icular concern,
in t his regard, are t he recent proposals of t he European Com m ission t owards t he
est ablishm ent of a European TFTP and European PNR. What are t he im plicat ions of
im plem ent ing policies which cont inue t o raise so m any quest ions am ong European cit izens
and governm ent s?
While analysing t hese challenges, t he st udy finally set out recom m endat ions t hat are
relevant for fut ure EP act ions in t he field of t he I SS. By reinforcing t he powers of t he
European Parliam ent and despit e t he derogat ions t o t he ordinary legislat ive procedure in
t he field of police cooperat ion and operat ional act ivit ies, t he Lisbon Treat y also put s
addit ional requirem ent s on t he EP t o engage act ively wit h t he m onit oring of EU init iat ives
in t he field of int ernal securit y. Monit oring and oversight involve t hree key areas t hat are
addressed in t he final recom m endat ions: t he developm ent of an evidence- based EU
policy, t he enforcem ent of effect ive consult at ion at all st ages of t he European Parliam ent ,
and t he prom ot ion of a m ore open part icipat ion in int ernal securit y policies.
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I N TROD UCTI ON
The ent ry int o force of t he Lisbon Treat y on 1 Decem ber 2009 has consecrat ed t he
st anding of t he area of freedom , securit y and j ust ice ( AFSJ) as t he European Union’s ( EU)
second obj ect ive aft er t he prom ot ion of peace and t he well- being of it s cit izens ( Art icle
3( 2) TEU) . The Lisbon Treat y has sim ult aneously int roduced a num ber of changes. I t has
m ost prom inent ly abolished t he pillar syst em originally int roduced in t he Maast richt
Treat y. The AFSJ is now an area of shared com pet ence bet ween t he EU and t he Mem ber
St at es as laid out in Art icle 4( 2) TFEU, where t he ‘ordinary legislat ive procedure’ ( Art icle
289 and 294 TFEU) applies. Art icle 10 of Prot ocol No. 36 annexed t o t he Lisbon Treat y
nonet heless suspends t he full applicat ion of t his shared com pet ence wit h regard t o t he
powers of t he Com m ission and t he European Court of Just ice ( ECJ) in t he field of police
cooperat ion and j udicial cooperat ion in crim inal m at t ers ( form er t hird- pillar m at t ers) , for a
t ransit ional period of five years aft er t he ent ry int o force of t he t reat y. Art icle 9 of t he
sam e Prot ocol addit ionally est ablishes t hat t he act s adopt ed prior t o t he ent ry int o force of
t he Lisbon Treat y will ret ain t heir legal effect s unt il m odified. 1 Finally, in specific dom ains
relat ed t o t he AFSJ, and part icularly in t he field of operat ional cooperat ion, ‘special
legislat ive procedures’ st ill rem ain in place ( Art icle 87( 3) TFEU) , whereby t he Council m ay
act unanim ously while Parliam ent is only consult ed. 2
The changes brought about by t he ent ry int o force of t he Lisbon Treat y open up a num ber
of quest ions relat ed t o t he developm ent of EU act ivit ies in t he field of int ernal securit y.
While Lisbon form alises t he dem ise of t he t hird pillar, several exclusions from t he ordinary
legislat ive procedure involving fully t he Com m ission, t he Parliam ent and t he ECJ, are
m aint ained in t his dom ain. Som e are t ransit ional, as in t he case of Prot ocol No. 36. Som e
are perm anent ( short of a t reat y revision) , as in t he case of operat ional cooperat ion
envisaged in Art icle 87( 3) TFEU. A fir st h ypot h e sis is t h a t a n e x pla na t ion t o t h e se
e x clu sion s ca n be fou nd in t h e con t r a dict ions be t w e e n st a t e sove r e ign t y a nd
Eu r ope a n in t e gr a t ion. Art icle 4( 2) TFEU, for exam ple, com m it s t he Union t o respect
“ essent ial St at e funct ions, including ensuring t he t errit orial int egrit y of t he St at e,
m aint aining law and order and safeguarding nat ional securit y. I n part icular, nat ional
securit y rem ains t he sole responsibilit y of each Mem ber St at e” . Securit y m at t ers, defined
as ‘nat ional securit y’, are considered as part of t he sovereign dom ain of com pet ence of
each Mem ber St at e, and as such cannot be conducive t o EU involvem ent , leading t o t he
adopt ion of t he aforem ent ioned exclusions. Art icle 72 TFEU, in t his regard, highlight s t hat
Tit le V TFEU “ shall not affect t he exercise of t he responsibilit ies incum bent upon Mem ber
St at es wit h regard t o t he m aint enance of law and order and t he safeguarding of int ernal
securit y” .
A se con d h ypot he sis, h ow e ve r , is t h a t t he t e n sion be t w e e n na t ion a l sove r e ign t y
a n d Eu r ope a n in t e gr a t ion is only a sm a ll pa r t of t he e x pla n a t ion . W ha t is a t st a k e
in t h e fie ld of in t e r n a l se cu r it y is le ss t h e ‘de fe n ce ’ of t he sove r e ign t y of
in dividua l EU M e m be r St a t e s in vie w of e x pa ndin g EU com pe t e n cie s, t h a n t h e
pr e se r va t ion a n d possibly t he diffu sion of pr a ct ice s of policy- m a k ing in it ia lly
e st a blish e d in t h e con t e x t of t h e Sche nge n coope r a t ion a n d of t he t h ir d pilla r .
1
“ [ R] epealed, annulled or am ended.”
2
The provision also concerns m at t ers relat ed t o passport s, ident it y cards and residence perm it s
( Art icle 77( 3) TFEU) .
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These pract ices include t he predom inance of int ergovernm ent al m odes of decision- m aking
t hrough t he Council and it s working st ruct ures, t he favouring of discret ion and secrecy in
t he conduct of securit y act ivit ies and t he lim it ed part icipat ion of ot her inst it ut ions and
bodies. One can consider, in t his respect , t he abovem ent ioned Art icle 72 TFEU in relat ion
wit h Art icle 73 TFEU, which specifies t hat Tit le V “ shall be open t o Mem ber St at es t o
organise bet ween t hem selves and under t heir responsibilit y such form s of cooperat ion and
coordinat ion as t hey deem appropriat e bet ween t he com pet ent depart m ent s of t heir
adm inist rat ions responsible for safeguarding nat ional securit y” . The point is less t he
t ension bet ween sovereignt y and int egrat ion, t han t he preservat ion of t he capacit y for
Mem ber St at e governm ent s t o decide when and how form s of int egrat ion can proceed.
A num ber of scholarly cont ribut ions have shown t hat t he developm ent of t he AFSJ has
been heavily influenced by cont roversies and st ruggles st em m ing from t he earlier
init iat ives adopt ed in t he Schengen and t hird- pillar cont ext s. Disagreem ent s persist ,
however, as t o t he int erpret at ion of t his influence. Som e hold t hat Schengen in part icular
has been a laborat ory for t he developm ent of com m unaut arised policies in t he field of
j ust ice and hom e affairs. 3 The ent ry int o force of t he Treat y of Am st erdam , which
concom it ant ly incorporat ed t he Schengen corpus int o EU law and t ransferred issues of
asylum , im m igrat ion and border cont rol from t he t hird t o t he first pillar, is said t o
illust rat e t his process. Ot hers point t o t he fact t hat t he incorporat ion of Schengen int o EU
law has, t o som e ext ent , ‘Schengenised’ t he Com m unit y, by enabling m inist ries of t he
I nt erior and Just ice as well as officials and expert s from police and border guard services
t o int ervene in a wider num ber of act ivit ies and policies undert aken t hrough t he European
Union. 4 ‘Third- pillar’ concerns and pract it ioners have operat ed over t he past decade at t he
j unct ion bet ween t he first and second pillar as well, t hrough t he definit ion of t he Union’s
visa policies, for inst ance, or of t he so- called ‘ext ernal dim ension’ of t he AFSJ. The
quest ion is now whet her t he ent ry int o force of t he Lisbon Treat y and t he collapse of t he
pillar syst em has alt ered t his t rend. Ar e w e se e ing a st r e a m lin ing of pr e viou s t h ir dpilla r pr a ct ice s in t o t h e ge n e r a l EU fra m e w or k for de cision - a n d policy- m a k in g?
Ar e t he de ve lopm e n t s t a k ing pla ce u nde r t h e h e a ding of in t e r na l se cu r it y in fa ct
h a iling t he pe r sist e n ce , a n d possibly t h e r e in for ce m e n t , of t h e se pr a ct ice s? To
e x a m ine t h e de ve lopm e n t of a n EU I n t e r n a l Se cur it y St r a t e gy ( EU I SS) , in t h is
r e spe ct , r e qu ir e s su r ve yin g t h e st a t e of pla y of r e la t ion s be t w e e n t h e a ge n cie s,
bodie s a nd se r vice s cu r r e n t ly t a sk e d w it h issu e s of in t e r na l se cu r it y in t h e EU.
The adopt ion of t he EU I SS under t he auspices of t he Spanish Presidency in February
2010 has t o be put in perspect ive, for exam ple, wit h t he est ablishm ent of t he St anding
Com m it t ee on I nt ernal Securit y ( COSI ) , whose first m eet ing t ook place t he following
m ont h.
Of cent ral im port ance in t his assessm ent is t he st anding of fundam ent al right s, freedom s
and j ust ice. Wit h t he abolit ion of t he pillar syst em , issues of policing, count er- t errorism
and j udicial cooperat ion in crim inal m at t ers are now bound t o t he sam e com m on
obj ect ives and requirem ent s as ot her EU policies. Alongside t he changes t o t he EU’s
3
See int er alia P. Bert helet , ( 2011) , Le paysage eur opéen de la sécurit é int ér ieure, Zurich: Pet er
Lang; W. de Lobkowicz, ( 2002) , L’Europe de la sécurit é int érieure: une élaborat ion par ét apes,
Paris: La Docum ent at ion Française; J. Monar ( ed.) ( 2010) , The I nst it ut ional Dim ension of t he
European Union’s Area of Freedom , Securit y and Just ice, Brussels: Pet er Lang.
4
See int er alia T. Balzacq and S. Carrera, ( eds) ( 2005) , Securit y Versus Freedom ? A Challenge for
Europe’s Fut ure, London: Ashgat e; D. Bigo and A. Tsoukala, ( eds) ( 2008) , Terror, I nsecurit y and
Liber t y: I lliberal pr act ices of liberal r egim es aft er 9/ 11, London: Rout ledge; E. Guild and F. Geyer,
( eds) ( 2008) , Securit y Versus Just ice? Police and Judicial Cooperat ion in t he European Union,
London: Ashgat e; D. Bigo, S. Carrera, E. Guild and R.B.J. Walker ( eds) ( 2010) , Europe’s 21 st
Cent ury Challenge: Deliver ing Libert y, London: Ashgat e.
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inst it ut ional st ruct ure, t he Lisbon Treat y brought about t wo crucial m odificat ions in t his
respect : it gives t he Chart er of Fundam ent al Right s legally binding st at us and int roduces
in t he Treat y on European Union a general com m it m ent t o such principles as freedom , t he
rule of law and respect for hum an right s ( Art icle 2 TEU) . I n t he m eant im e, t he inflect ion
given t o AFSJ policies since t he 2001 Laeken European Council and t he Decem ber 2004
Hague Program m e have seen a significant increase in securit y- relat ed init iat ives which
have proved a challenge for legal guarant ees of fundam ent al freedom s and right s and
requirem ent s of t ransparency and dem ocrat ic account abilit y. This t rend has been j ust ified,
m ost not oriously, t hrough t he argum ent t hat AFSJ policies needed t o st rike a ‘balance’
bet ween securit y and freedom , whereby securit y was considered as an equivalent ly
valuable right . 5 I t has led t o a num ber of well- publicised incident s bet ween t he Council,
t he European Com m ission, t he Parliam ent and ot her bodies such as t he European Dat a
Prot ect ion Supervisor. The 2009 St ockholm Program m e has recognised t he problem by
highlight ing t hat “ t he challenge will be t o ensure respect for fundam ent al right s and
freedom and t he int egrit y of t he person while guarant eeing securit y in Europe. I t is of
param ount im port ance t hat law enforcem ent m easures, on t he one hand, and m easures
t o safeguard individual right s, on t he ot her, go hand in hand in t he sam e direct ion and are
m ut ually reinforced” . 6 Likewise, t he EU I SS claim s t o be inspired by t he “ values and
principles est ablished in t he Treat ies of t he European Union and set out in t he Chart er of
Fundam ent al Right s” 7 and highlight s t he need for “ j ust ice, freedom and securit y policies
which are m ut ually reinforcing whilst respect ing fundam ent al right s, int ernat ional
prot ect ion, t he rule of law and privacy” .
The present st udy exam ines t he st eps t aken since t he ent ry int o force of Lisbon in t he
field of int ernal securit y t o assess t o what ext ent t his com m it m ent has been followed by
act ion. I t surveys t he draft ing of t he I nt ernal Securit y St rat egy ( sect ion 1) . I t also
invest igat es t he act ivit ies of t he m ain EU agencies involved in int ernal securit y policies
( sect ion 2) . I t finally sket ches out t he key challenges lying ahead for EU int ernal securit y
policies, paying part icular considerat ion t o t he role t hat t he European Parliam ent and
nat ional Parliam ent s will be called upon t o play ( sect ion 3) .
This st udy is based on t he collect and analysis of EU docum ent at ion dedicat ed t o t he fight
against t errorism and organised crim e as well as a follow up of all current init iat ives
affect ing ( officially or not ) t he EU int ernal securit y st rat egy. I n part icular, full at t ent ion
has been given t o t he publicat ions of t he European Com m ission, t he Council ( wit h
part icular at t ent ion t o COSI ) and of t he EU count er- t errorism coordinat or on t he priorit ies
and guiding principles for t he EU I nt ernal Securit y St rat egy, as well as t he European
Parliam ent ’s posit ions and resolut ions on t hat m at t er. Collect ion of dat a has also
concerned ot her act ors: Council of Europe, European Court of Hum an Right s and
European Court of Just ice, European Dat a Prot ect ion Supervisor, and som e key civil
societ y represent at ives as well as NGOs act ive in t he field of dem ocrat ic scrut iny. I n
addit ion, sem i- st ruct ured in sit u int erviews wit h key act ors involved in t he int ernal
securit y field have enabled a qualit at ive analysis of t heir posit ions, experiences and
opinions.
I n order t o provide addit ional inform at ion and evidence, t his st udy relies on visual
support s. Figure 5 available in t he Annex present s t he inst it ut ional and effect ive relat ions
5
The European I nt ernal Securit y St rat egy, for exam ple, considers securit y as a ‘basic right ’. See
below, sect ion 1.2.2.
6
Council of t he European Union ( 2010) , The St ockholm Program m e – An open and secure Europe
serving t he cit izen, 5731/ 10, 3.3.2010.
7
Council of t he European Union ( 2010) , Draft I nt ernal Securit y St rat egy for t he European Union:
“ Towards a European Securit y Model” , 5842/ 2/ 10, 23.2.2010.
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bet ween EU agencies, bodies and services in charge of int ernal securit y in t he pre- Lisbon
cont ext . Four t im elines present ing t he evolut ion of European int ernal securit y policies
since t he 1960s can addit ionally be accessed online ( ht t p: / / j im iny.m edialab.sciencespo.fr/ deviss/ t im eline/ ) . I nt erest ed readers will find in t he Annex a m et hodological not e on
how t hese t im elines have been const ruct ed and can be read.
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1 . PRI ORI TI ES OF EU I N TERN AL SECURI TY:BACKGROUN D
AN D TH E EUROPEAN SECURI TY STRATEGY
1 .1 .
KEY FI N D I N GS
An analysis of t he logic t hat has prevailed in EU policies in response t o Organised
Crim e and t errorism over t he last t wo decades shows an increasing focus on
int elligence- led, proact ive and ant icipat ive t ools and st rat egies. Such logics have
led t o debat es and cont roversies over t he guarant ee and prot ect ion of civil libert ies
and fundam ent al right s ( e.g. on t errorist “ wat chlist s” ) .
The current t hreat assessm ent s produced by Europol raise a num ber of quest ions
from a m et hodological point of view. The issue at st ake is t he developm ent and
prom ot ion of an evidence- based policy in t he areas of organised crim e and
t errorism . I n t hese dom ains, debat es over legal definit ions and law enforcem ent
capacit ies largely predom inat e. The survey of st rat egy- m aking act ivit ies in t he
AFSJ, brings t o t he fore t he quest ion of change in t he developm ent of t he EU’s
policies in t his area over t he past t went y years.
The European securit y m odel advocat ed in t he I SS does not est ablish a hierarchy
bet ween t he challenges it ident ifies, nor does it est ablish dist inct priorit ies. At no
point does t he st rat egy define t he scope and t herefore lim it s of what const it ut es an
int ernal securit y issue.
The I SS support s an all- encom passing definit ion of int ernal securit y and a
rest rict ive definit ion of t he int eract ions bet ween securit y, freedom and j ust ice,
despit e t he com m it m ent s laid out in t he St ockholm Program m e in t his respect , an
illust rat ion of t hat m at t er is t hat bodies in charge of freedom s and right s are not
syst em at ically included in I SS act ivit ies.
The non- binding nat ure of t he Chart er of Fundam ent al Right s t hat has prevailed
unt il t he adopt ion of t he Lisbon Treat y considerably lim it ed t he possibilit ies of
est ablishing legal basis for fundam ent al right s and freedom scrut iny. The
exam inat ion of t he I SS and I SS in Act ion com m unicat ion, however, seem s t o
suggest t hat t hese legal changes have not significant ly inflect ed t he degree t o
which fundam ent al freedom s and right s are t aken int o account in st rat egy- m aking
act ivit ies, and raise quest ions as t o t he t ranscript ion int o policy of t he collapse of
t he pillar syst em .
Ba ck gr ou n d
The past decade has wit nessed t he adopt ion of a plet hora of EU legislat ive m easures and
policy init iat ives aim ed at count ering organised crim e and t errorism as evidence by t he
num erous act ions plans, direct ives and fram ework decisions.
I n t he field of organised crim e ( OC) , various inst rum ent s and t ools have been elaborat ed
and im plem ent ed, t arget ing t he various act ivit ies encapsulat ed in t he t erm inology ‘OC’
such as drug t rafficking or cybercrim e, but also t arget ing t he proceeds of crim e t hrough a
whole set of ant i- m oney laundering regulat ions. I ndeed, t he t wo EU act ion plans ( 1997
and 2000) , t he JHA Joint Act ion ( 1998) , t he Tam pere Conclusions ( 1999) , t he Hague
Program m e ( 2004) , t he Council Fram ework Decision on t he fight against organised crim e,
16
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which replaced t he 1998 Joint Act ion ( 2008) , as well as t he t hree Direct ives on m oney
laundering ( 1991, 2001 and 2005) have provided t he EU wit h a rat her im pressive arsenal.
I n t he field of t errorism , t he EU has sim ilarly adopt ed a wide range of inst rum ent s, wit h
an int ensificat ion of act ivit ies aft er t he 9/ 11 at t acks in t he New York and Washingt on, D.C.
in 2001, and t he Madrid ( 11/ 3) and London ( 7/ 7) bom bings in 2004 and 2005. The
Fram ework Decision on com bat ing t errorism ( 2002) , t he Hague Program m e ( 2004) , t he
est ablishm ent of t he posit ion of a Count er- Terrorism Coordinat or ( CTC) in 2004, t he EU
Count er- Terrorism St rat egy ( and act ion plan) launched in 2005, t he EU St rat egy for
Com bat ing Radicalisat ion and Recruit m ent ( revised in Novem ber 2008) , t he inclusion of
t errorist financing in t he ant i- m oney- laundering st rat egy in t he t hird Direct ive ( 2005) and
t he St ockholm Program m e ( 2010) are init iat ives t hat have paved t he EU fram ework of
act ions.
Em bracing bot h t he fight s against t errorism and organised crim e, t he issue of police and
j udicial cooperat ion has been at t he core of European act ivit ies in bot h fields. More or less
inform al working groups, expert s m eet ings and various com m it t ees have been set up in
support of t he EU’s quest t o fight OC, prevent t errorism and prom ot e bet t er cooperat ion
and inform at ion- sharing.
I n t he field of t errorism , t hese include t he TREVI Group creat ed in 1976, 8 t he Police
Working Group on Terrorism ( PWGT) creat ed in 1979, t he Terrorism Working Group
( TWG) launched in 1992, t he Working Part y on Terrorism ( COTER) est ablished in 1997,
t he Count er Terrorism Group ( CTG) est ablished in 2001 and t he Working Part y on t he
applicat ion of specific m easures t o com bat t errorism ( CP 931) est ablished in 2001. The
posit ion of a Count er- Terrorism Coordinat or creat ed in 2004 was est ablished wit h t he aim
of coordinat ing t he EU act ion in t he field.
Against OC, t he Working Part y on Cooperat ion in Crim inal Mat t ers est ablished in 1992 has
been followed by t he Mult idisciplinary Group on Organised Crim e ( creat ed in 1997, now
replaced by t he Working Part y on General Mat t ers, including Evaluat ions) .
Specific groups dedicat ed t o j udicial and police inform at ion exchange and cooperat ion
have also been set up: t he Art icle 36 Com m it t ee ( CATS, creat ed in 1997) , t he European
Police Chiefs Task Force ( EPCTF) est ablished in 2000, t he Law Enforcem ent Working Part y
( LEWP) est ablished in 2010, and now t he St anding Com m it t ee on I nt ernal Securit y
( COSI ) .
Art icle 71 TFEU refer t o t he set t ing up of a " st anding com m it t ee" on " operat ional
cooperat ion on int ernal securit y" , which is t o be " prom ot ed and st rengt hened wit hin t he
Union" , wit h t he possible involvem ent of Union bodies, offices and agencies. Such a
com m it t ee, known as COSI , " shall facilit at e coordinat ion of t he act ion of Mem ber St at es’
com pet ent aut horit ies” . Art icle 71 TFEU also st at e t hat : " The European Parliam ent and
nat ional Parliam ent s shall be kept inform ed of t he proceedings" of COSI . An assessm ent
of COSI ’s act ivit ies since 2010, as well as an analysis of it s relat ion wit h ot her European
bodies act ive in t he field, will be developed furt her and in det ails wit hin t his st udy.
1.1.1.
The analysis of t he European fight against organised crim e and t errorism : The
st at e of t he debat e
The adopt ion of a plet hora of EU legislat ive m easures and policy init iat ives aim ed at
count ering t errorism and organised crim e, such as decisions, fram ework decisions,
convent ions and t he increasing num ber of bodies and agencies dedicat ed t o securit y have
est ablished EU int ernal securit y as one of t he m ost dynam ic dom ains of EU policy- m aking.
The densit y and t he variet y of EU t ools, inst rum ent s and act ors nevert heless have t he
8
For m ore on TREVI , see T. Bunyan ( 1993) , “ Tr evi, Europol and t he European St at e” , in T. Bunyan
( ed.) , St at ewat ching t he new Europe: A handbook on t he European St at e, St at ewat ch, London,
1993.
17
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
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effect of obscuring our underst anding of t he issues at st ake. The genesis and evolut ion of
t he EU fight against OC and t errorism , if well docum ent ed, reveal various debat es in t he
academ ic com m unit y. Am ong t hese debat es, t he following are wort h underlining in order
t o shed a m ore crit ical light on t he st udy of t he EU I SS:
-
The problem at ic definit ions of OC and t errorism ,
-
The logic and t rends of t he fight against OC and t errorism ,
-
The focus on law enforcem ent capacit ies,
-
The quest ion of precise and effect ive knowledge on OC and t errorism and
-
The cost of t he fight against OC and t errorism in t erm s of civil libert ies.
1.1.1.1.
The problem at ic legal definit ions of OC and t errorism
I f t he use of t he t erm inology of ‘OC’ has now becom e com m onplace in EU docum ent at ion
dealing wit h JHA m at t ers, it is wort h recalling t hat debat es arise when it com es t o it s legal
definit ion.
As underlined by EU specialist s in t he field of j udicial cooperat ion, t horny issues in JHA
m at t ers involve t he legal definit ion of organised crim inal groups as well as t he fact t hat
organised crim e is t reat ed different ly by t he crim inal law syst em of each Mem ber St at e. 9
The lat est at t em pt t o provide a definit ion of organised crim e, t o be found in t he 2008
Council Fram ework Decision on t he fight against organised crim e, does not show any
progress on t hat m at t er. I nst ead, t e r m s of de fin it ion r e m a in ve r y br oa d a n d h igh ly
fle x ible , a n d do n ot pr ovide a ny le ga l ce r t a in t y. Furt herm ore, t he absence of a clear
definit ion creat es a pot ent ially very ext ensive scope of crim inalisat ion of organised crim e
across t he EU. The need for a clearer definit ion has been reit erat ed in t he LI BE report on
organised crim e in t he European Union. 10
The legal basis of what const it ut e ‘t errorist act ivit ies’ in EU legislat ion encount ers sim ilar
difficult ies. The 2002 and am ended version of 2008 Fram ework decision on Com bat ing
Terrorism aim ed at providing a com prehensive definit ion of t errorism and provided a list
of t errorist act ivit ies. 11 Num erous heat ed debat es have t aken place bot h in t he academ ic
com m unit y and wit hin t he civil societ y on such a list , which includes for inst ance t he
“ public provocat ion t o com m it a t errorist offence” . Con ce r n s in r e la t ion t o t h e e x e r cise
of de m ocr a t ic r igh t s, such as t he freedom of expression, have been raised. 12 Sim ilarly,
t he original proposal from t he European Com m ission t o em brace t rade union and prot est s
as possible scope of EU ant i- t errorism act ivit ies has led t o a wide range of crit icism s,
relat ed t o t he exercise of dem ocrat ic right s. 13 Such concerns have led t o very det ailed
9
V. Mit silegas ( 2011) , “ The Council Fram ework Decision on t he Fight against Organised Crim e:
What can be Done t o St rengt hen EU Legislat ion in t he Field?” , PE 453.195, European Parliam ent ,
Brussels; A. Scherrer, A. Mégie and V. Mit silegas ( 2009) , “ The EU role in fight ing t ransnat ional
organised crim e” , PE 410.678, European Parliam ent , Brussels; V. Mit silegas ( 2009) , EU Crim inal
Law, Oxford: Hart Publishing, 2009; V. Mit silegas ( 2001) , “ Defining Organised Crim e in t he
European Union: The Lim it s of European Crim inal Law in an Area of Freedom , Securit y and Just ice” ,
European Law Review, Vol. 26, pp. 565- 581.
10
S. Alfano ( 2011) , “ Report on organised crim e in t he European Union” , PE454.687v04- 00,
European Par liam ent , Brussels.
11
E. Dum it riu ( 2004) , “ The E.U.’s Definit ion of Terrorism : The Council Fram ework Decision on
Com bat ing Terrorism ” , Germ an Law Journal, Volum e 5, No. 5.
12
S. Allegre ( 2008) , “ Hum an Right s concerns relevant t o legislat ion on provocat ion or incit em ent t o
t errorism and relat ed offences” , European Parliam ent , Brussels, PE 393.283. See also t he
I nt ernat ional Com m ission of Jurist s ( 2008) , “ Briefing Paper: Am endm ent t o t he Fram ewor k Decision
on
Com bat ing
Terrorism
–
Provocat ion
to
Com m it
a
Terrorist
Offence”
( www.un.org/ en/ sc/ ct c/ specialm eet ings/ 2011/ docs/ icj / icj - 2008- fd2007- 650.pdf )
13
See St at ew at ch Observat ory dedicat ed t o t he EU ant i- t errorism plans: j ust ice and hom e affairs
proposals, St at ewat ch, London ( www.st at ewat ch.org/ observat ory2d.ht m ) .
18
Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
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publicat ions t hat reit erat e t hat t he rule of law, as well as t he freedom of t hought and
expression should never be sacrificed in t he st ruggle against t errorism . 14
I n addit ion t o t hese legal uncert aint ies and consequences, several scholars have
quest ioned t he t rends followed in European and int ernat ional regim es and argue t hat t he
European agenda is guided by unclear logic and underst anding.
1.1.1.2.
The logic and t rends of t he fight against OC and t errorism
From a careful analysis of t he different st eps t aken at t he European level against OC and
t errorism , several gaps and inconsist encies have been underlined. Scholars have usefully
point ed out t hat , for inst ance, t h e EU ha s la r ge ly focuse d on som e a r e a s of OC a nd
t e r r or ism , w h ile le a vin g a side ot h e r issu e s. The fight against drug t rafficking, m oney
laundering, t errorist financing and prevent ion of radicalisat ion has led t o an im pressive set
of decisions and regulat ions. However, im port ant issues such as corrupt ion, environm ent al
crim es or corporat e crim e have been given fewer priorit ies. The EU is indeed quit e shy in
t he area of corrupt ion for inst ance. The adopt ion of t he net work cont act point against
corrupt ion, as well as effort s m ade by t he European Com m ission t o underst and t he links
bet ween organised crim e and corrupt ion ( as dem onst rat ed in t he Com m ission St aff
Working Docum ent of February 2008 on “ An exam inat ion of t he links bet ween organised
crim e and corrupt ion” ) , cert ainly const it ut e a st ep furt her in t he EU st rat egy against
corrupt ion. However, while t he EU has been ext rem ely act ive in t he adopt ion of ant icorrupt ion st andards wit h regard t o t he candidat e count ries wishing t o becom e EU
m em bers, and wit h regard t o t he developm ent of int ernat ional ant i- corrupt ion st andards,
int ernal EU legislat ive act ion against corrupt ion has not been as int ense15 . An efficient
fram ing of a com prehensive ant i- corrupt ion policy by t he EU inst it ut ions has been called
on m any occasion, and not ably in t he recent ly adopt ed LI BE report on organised crim e in
t he European Union. 16
As det ailed below wit h regard t o t he EU I SS, t he lack of consist ency in t he priorit ies set up
in t he EU fight against OC and t errorism is clearly dem onst rat ed in t he EU I SS. The I SS
appears t o be all- encom passing, and if t he issues of econom ic crim e or corrupt ion are
m ent ioned, t hey are cit ed t oget her wit h sexual exploit at ion of m inors and child
pornography, m oney- laundering, t errorist recruit ing, et c. w it hou t cla r ifica t ion on t h e
pr ior it ie s give n , nor on t he level of effort t hat will be displayed for each of t he list ed
crim es.
1.1.1.3.
The focus on law enforcem ent capacit ies
The focus on law enforcem ent capacit ies is anot her field of debat e am ong crim inologist s,
and OC a nd t e r r or ism a r e se e n a s a r e a s in w h ich la w e n for ce m e n t r a t h e r t ha n
pr e ve n t ion la r ge ly dom in a t e . According t o a wide range of researchers, a st rict ly
j udicial and police perspect ive m ight not provide t he best answer t o cure crim inalit y
worldwide. Som e insist not ably t he need t o focus on alt ernat ive concept ions of securit y
which em phasise t he underlying condit ions t hat produce crim e in t he first place. 17
According t o t hem , t he prevent ion and reduct ion of crim e do not exclusively involve
int ervening on t he risk fact ors before crim e happens, but also addressing t he social and
econom ic root s t hat produce crim es, such as working and living condit ions, social
m arginalisat ion and polit ical frust rat ions. 18 Many em phasize t he possibilit ies of developing
14
See not ably research published by t he Council of Europe ( 2004) “ Apologie du Terrorism e” and
“ I ncit em ent t o t errorism ” . The report s highlight t he different approaches t o t he phenom enon of
public expression of praise, j ust ificat ion and ot her form s of support for t errorism and t errorist s
referred t o as " apologie du t errorism e" and " incit em ent t o t errorism " .
15
A. Scherrer, A. Mégie and V. Mit silegas ( 2009) , op. cit .
16
S. Alfano ( 2011) , Report on organised crim e in t he European Union, op. cit .
17
A. Edwards and P. Gill ( eds) ( 2003) , Transnat ional Organised Crim e. Perspect ives on global
securit y, London: Rout ledge.
18
Council of Europe ( 2005) , “ Securit y and social cohesion: Deconst ruct ing fear ( of ot hers) by going
beyond st ereot ypes” , St rasbourg: Council of Europe Publishing; K. Becket t and S. Herbert ( 2011) ,
19
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
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m ore effect ive crim e reduct ion st rat egies t hrough st ruct ural social adj ust m ent s t hat differ
from pract ical responses of t he police. 19 Such argum ent s acquire a peculiar echo when
analysing t he EU’s effort s in t he field of crim e prevent ion.
A t horough analysis of t he EU docum ent at ion in t he field of OC and t errorism indeed
shows t hat when t he issue of prevent ion appears, it is usually addressed from a law
enforcem ent perspect ive. For inst ance, t he prevent ion of OC is seen t hrough t he lenses of
m oney laundering and t errorist financing and as a quest for a det errence effect . Am ong
t he st rands em phasised in t he 2005 EU count er- t errorism st rat egy ( prevent – prot ect –
rescue – pursue) - t he ‘prevent ’ one singles out t he issue of radicalisat ion.
I n t hese exam ples, no provisions are given t hat address t he root s of polit ical violence or
crim inal conduct . I n t he EU policy process, it seem s t hat alt ernat ive ways of t hinking
about crim e prevent ion and crim e reduct ion strat egies t hat are not necessarily linked t o
law enforcem ent capacit ies are m arginalised.
I nspirat ions could be t aken, for inst ance, from work undert aken in ot her inst it ut ions, such
as t he Council of Europe ( COE) , which has addressed t he causes of t errorism and
launched various int erest ing init iat ives. For inst ance, t he COE has explored ways t o
reduce t he t ensions in t oday's societ y 20 by prom ot ing int er- cult ural and int er- religious
dialogue 21 and carrying out act ivit ies in t he fields of educat ion, yout h and t he m edia,
ensuring t he prot ect ion of m inorit ies, fight ing int olerance, racism and social exclusion.
The lim it ed scope of such discussions in t he EU and t he key role of t he agencies com posed
of professionals recruit ed from coercive agencies t o t he det rim ent of a broader
part icipat ion, as well as t he ext ent t o which t he policy process at t he European level is
open and t ransparent will receive full at t ent ion in sect ions 2 and 3.
1.1.1.4.
OC and t errorism : What sources for what knowledge?
According t o expert s and researchers, t he m ain m et hodological problem when st udying
organised crim e and t errorism is t he quest ion of sources and knowledge. Gr e a t st r e ss
h a s be e n pu t not a bly on t h e difficu lt ie s t o e st im a t e u nde r gr ou nd a ct ivit ie s, bu t
a lso on t he a ll- pow e r fu l r ole pla ye d by t he police in t h e fie ld. 22 Many scholars have
insist ed on t he fact t hat t he available knowledge is oft en originat ing from sources t hat are
not publicly available and st at ist ics t hat cannot be checked because of a lack of
t ransparency and classified sources. 23 This problem at ic reliance on police assert ions is
Banished. The New Social Cont rol in Urban Am erica, Oxford: Oxford Universit y Press; L. Wacquant
( 2007) , Urban Out cast s: A Com parat ive Sociology of Advanced Marginalit y, Cam bridge: Polit y Press.
19
G. Hughes and A. Edwards ( eds) ( 2002) , Crim e Cont rol and Com m unit y: The new polit ics of
public safet y, Cullom pt on: Willan Publishing; A. Crawford ( ed.) ( 2009) , Crim e Prevent ion Policies in
Com parat ive Perspect ive, Cullom pt on: Willan Publishing; M. Levi and M. Maguire ( 2004) , “ Reducing
and Prevent ing Organised Crim e: An Evidence- Based Crit ique” , Crim e, Law and Social Change, 41,
pp. 397- 469; M. Maguire ( 2004) , “ The Crim e Reduct ion Program m e: Reflect ions on t he Vision and
t he Realit y” , Crim inal Just ice, 4, 3, pp. 213- 238.
20
See Conclusions of t he Council of Europe conference on Why t errorism ? Addressing t he Condit ions
Conducive t o t he Spread of Terrorism , St rasbourg, 2007 ( www.coe.int / t / dlapil/ codext er/
conf_whyTerrorism _en.asp) .
21
See
Council
of
Europe’s
Whit e
Paper
on
I nt ercult ural
Dialogue,
2008
( www.coe.int / t / dg4/ int ercult ural/ Source/ Pub_Whit e_Paper/ Whit e% 20Paper_final_revised_EN.pdf) .
22
M. Beare and R.T. Naylor ( 1999) , Maj or I ssues Relat ing t o Organized Crim e: wit hin t he Cont ext of
Econom ic Relat ionships, Toront o: Nat hanson Cent re, Law Com m ission of Canada; J.P. Brodeur and
B. Dupont ( 2004) , “ I nt roduct ory essay: The role of knowledge and net works in policing” , in T.
William son ( ed.) , The Handbook of Knowledge- Based Policing: Current Concept ions and Fut ure
Direct ions, Chichest er: John Wiley & Sons Lt d, pp. 9- 33; G. Favarel- Garrigues ( 2001) ,
« Concurrence et confusion des discours sur le crim e organisé en Russie », Cult ures & Conflit s, 42,
pp. 9- 46.
23
M. Beare ( ed.) ( 2003) , Crit ical Reflect ions on Transnat ional Organized Crim e, Money Laundering,
and Corrupt ion, Toront o: Toront o Universit y Press; J.P. Brodeur ( 2002) , “ Crim e organisé” , in L.
20
Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
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seen as a m aj or obst acle t o an independent assessm ent of OC and t errorism in Europe
and elsewhere. 24 Furt herm ore, t he apparent t echnicit y t hat surrounds t he t ools developed
at t he EU level against t errorism and OC blurs t he issues at st ake and few would quest ion
and challenge t he very foundat ions of knowledge on OC and t errorism . Thus, t he
knowledge challenge is cent ral in t he field of OC and t errorism , and t his point will be
addressed in det ail below.
1.1.1.5.
The cost of t he fight against OC and t errorism in t erm s of civil libert ies
The ext ensive use of int elligence capacit ies, t he use of ext radit ion and m ut ual legal
assist ance, t he will t o deprive crim inal groups of t he m eans by which t hey com m it t heir
crim es and t o disrupt t he t echnological support and opport unit ies offered by const ant
progress in t elecom m unicat ion have const it ut ed t he m ain act ivit ies of t he European
m obilisat ion in t he field of OC and t errorism . Such operat ional and legislat ive choices have
led t o m et hods and pract ices t hat are som et im es in con sist e n t w it h t h e pr ot e ct ion of
civil libe r t ie s a nd in dividua l pr iva cy. I n t hat regard, it has been convincingly
dem onst rat ed t hat t he fight against OC, reinforced by t he current fight against t errorism ,
has allowed m ost governm ent s t o give legit im acy t o som e procedures t hat have
previously encount ered m any obst acles, specifically when it com es t o t he respect of
fundam ent al right s. 25 The report s of t he UN Special Rapport eur Mart in Sheinin on hum an
right s and count er- t errorism have for inst ance well docum ent ed issues such as t he
definit ion of t errorism , t he right t o fair t rial in t errorism cases, t he im pact of count ert errorism m easures on econom ic, social and cult ural right s, t he right t o privacy in t he age
of count er- t errorism , t he role of int elligence agencies and t heir oversight in count ert errorism . 26 Sim ilar official com m it t ees invest igat ed illegal pract ices and t he non- respect
of European hum an right s st andards, such as t he Council of Europe Com m it t ee on
ext raordinary rendit ion chaired by Dick Mart y ( 2005) , or t he EP Fava Com m it t ee on t he
role of t he EU m em ber st at es in t he operat ion of CI A secret prisons ( 2006) . The repeat ed
at t acks on fundam ent al right s in t he post - 11 Sept em ber cont ext have been t he subj ect of
num erous crit iques, m any of which have brought t o light t he following paradox: t he
growt h of illiberal pract ices in liberal regim es. 27 This dark side of t he fight against OC and
t errorism is addressed in m ore det ail below.
I n order t o provide a well- inform ed background t o t he st udy of t he EU I SS, and in
accordance wit h t he LI BE concerns and t he role of t he European Parliam ent in securit y
m at t ers, bot h t he knowledge challenge and t he civil libert ies challenge are det ailed below.
1.1.2.
The quest ion of knowledge
As point ed out above, one of t he m aj or obst acles t o assess OC and t errorism concerns t he
lack of inform at ion and t he difficult y t o obt ain reliable dat a and st at ist ics. EUROPOL’s
effort s t o port ray OC and t errorism in t he EU in t heir report s provide an int erest ing
exam ple of such difficult ies. The careful analysis of t hese report s does raise concerns t hat
echo t he need for reliable knowledge- based approaches t o OC and t errorism .
Muchielli and P. Robert ( eds) , Crim e et sécurit é. L’Et at des savoirs, Paris: La Découvert e, pp. 242251.
24
P. Van Duyne and T. Vander Beken ( 2009) , “ The incant at ions of t he EU or ganised crim e policy
m aking” , Crim e, Law and Social Change, 51, 2, pp. 261- 281; C. Fij naut et al. ( 1998) , Organized
Crim e in t he Net herlands, The Hague: Kluwer.
25
See Bonelli L. and al. ( 2008) , Au nom du 11 Sept em br e. Les dém ocrat ies à l’épreuve de
l’ant it errorism e, Paris: La Découvert e; Neal, A. ( 2009) , Except ionalism and t he Polit ics of Count ert errorism : Libert y, Securit y and t he War on Terror, London: Rout ledge.
26
See
websit e
of
t he
Office
of
t he
High
Com m issioner
( www.ohchr.org/ EN/ I ssues/ Terrorism / Pages/ SRTerrorism I ndex.aspx) .
for
Hum an
Right s
27
D. Bigo and A. Tsoukala ( eds) ( 2008) , Terror, I nsecurit y and Libert y. I lliber al pract ices in liberal
regim es aft er 9/ 11, London: Rout ledge.
21
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1.1.2.1.
OCTA Report
The m ain concern found aft er a t horough analysis of EUROPOL 2009 and 2011 Organised
Crim e Threat Assessm ent ( OCTA) report s relat e t o t he m et hodology used.
The m et hodology of OCTAs is not very clear and explained in very broad t erm s.
According t o t he report s, t he OCTA is based on a m ult i- source approach, including law
enforcem ent and non- law enforcem ent cont ribut ions ( OCTA, 2009) . The 2011 report
does not provide furt her det ails:
The EU Organised Crim e Threat Assessm ent is t he product of syst em at ic analysis of law
enforcem ent inform at ion on crim inal act ivit ies and groups affect ing t he EU. I t has been
produced by st rat egic analyst s in Europol’s Analysis and Knowledge Unit ( O2) , drawing
on ext ensive cont ribut ions from t he organisat ion’s analysis work files ( AWFs) , SCAN
Team and ex t ernal part ners ( Acknowledgm ent s, p. 2) .
I n response t o request s for m ore inform at ion on t he m et hodology used t o produce OCTA
report s, t he following reply was given:
Mult iple sources have been used for t he dev elopm ent of t he OCTA: Mem ber St at es and
t hird count ries, I nt ernat ional organisat ions, analyt ical work files, open sources.
This reply raised several furt her quest ions on t his m at t er: Which t hird count ries cont ribut e
t o OCTAs? How t o assess t he reliabilit y of t heir answers t o t he quest ionnaires? What kind
of open sources are used? How t o assess t heir reliabilit y? The reply was as follows:
Based on int elligence requirem ent s, t hree quest ionnaires were subm it t ed, on organised
crim e groups and clust ers ( using 11 indicat ors28 and 70 quest ions) , crim inal act ivit ies29
( using 14 indicat ors30 and 54 quest ions) , m oney laundering ( 7 indicat ors31 and 27
quest ions) .
This reply, in t urn, raised addit ional quest ions: What are t he int elligence requirem ent s?
Were t he quest ionnaires t he sam e for all t he st akeholders? I f not , on what basis t he
synt hesis of dat a has been elaborat ed?
Our dem and t o access t he quest ionnaires has been refused. However, we were t old t hey
have been approved by Mem ber St at es t hrough t heir represent at ives t o t he OCTA
Working Group and t hen validat ed by Europol’s Managem ent Board. For 2011 OCTA, a
sub- group was creat ed wit hin t he OCTA WG t o revise t he quest ionnaires following Mem ber
St at es’ needs and const raint s.
I n t h e a bse n ce of a m e t hodologica l n ot e a ccom pa nying e a ch r e por t , it is difficult
t o a sse ss t h e r obu st n e ss of t he OCTA r e por t s. Explanat ions on how t he dat a were
gat hered ( wit h an exhaust ive list of part icipant s) , m ore det ails on what sources used ( wit h
a com plet e bibliography, not ably for open sources) , and an explanat ory not e on what
choices, have been m ade t o synt hesise such dat a are essent ial in order t o back up OCTAs’
findings. These m et hodological precisions m ight help t o furt her assess som e problem at ic
assert ions cont ained in t he report s, as det ailed below.
28
Clust ers, Crim inal Act ivit ies, I nt ernat ional Dim ension, Durabilit y, St ruct ure, Use of legit im at e
Business St ruct ures, I nfluence, Violence, Count erm easures, Use of Specialist s and Co- operat ion,
Key Trends.
29
Drugs t rafficking, Fraud ( including VAT fraud, sm uggling of cigaret t es and alcohol, and fraud in
public t endering, Euro count erfeit ing) , Com m odit y count erfeit ing and int ellect ual propert y t heft ,
Trafficking in and exploit at ion of hum an beings, Facilit at ion of illegal im m igrat ion, Weapons
t rafficking, Environm ent al crim e and any ot her crim e t ypes t hat are of specific int erest t o a single
count ry.
30
Overview, Num ber and Size, Co- operat ion bet ween OCGs, Suspect Charact erist ics, Modi
Operandi, Use of Specialist Expert ise, Trafficking Rout es, Use of legit im at e Business St ruct ures, Use
of Corrupt ive I nfluence, Use of Violence, Facilit at ing Fact ors, Changing Trends, Pull Fact ors, LE
Response
31
Modi Oper andi, Geographical Dist ribut ion, Use of Specialist s, Use of legit im at e Business
St ruct ures, Exploit ed Vulnerabilit ies, Most Used Sect ors, Law Enforcem ent Policies.
22
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Anot her issue arising when st udying OCTAs is t h e va gue n e ss of t h e con ce pt s u se d.
The use of t he t erm inology of ‘crim inal hubs’ in t he 2009 report const it ut es a good
exam ple. According t o t he report :
A ‘crim inal hub’ is a concept ual ent it y t hat is gener at ed by a com binat ion of fact ors such
as proxim it y t o m aj or dest inat ion m arket s, geographic locat ion, infrast ruct ure, t ypes of
OC groups and m igrat ion processes concerning key crim inals or OC groups in general. A
crim inal hub receives flows from a num ber of sources and spreads t heir effect s in t he
EU t hereby forging crim inal m arket s and creat ing opport unit ies for t he growt h of OC
groups t hat are able t o profit from t hese dynam ics ( OCTA, 2009, p. 29) .
But how t o det erm ine “ m aj or dest inat ion m arket s” ? How are defined t he t ypes of OC
groups in t his cont ext ? What are t he “ m igrat ion processes” in t his cont ext ? What are t he
‘flows’ m ade of? The m aps t hat accom pany t he depict ion of t hese ‘crim inal hubs’ does not
provide any explanat ion on t he m et hodology used t o produce t hem . The ext ensive use of
nat ionalit y/ et hnicit y- based feat ures such as “ West African” , “ Albanian speaking” , “ and
Lit huanian groups” is anot her obj ect of concern, as no explanat ion is given on how and
why such groups have been singled out .
Furt herm ore, t he n e a r a bse n ce of st a t ist ics is h igh ly pr oble m a t ic. Drug t rafficking,
fraud and sm uggling are t he exclusive cat egories sust ained wit h dat a. I n addit ion, t he
sect ions dedicat ed in t he 2011 report on crim inal act ivit ies such as weapons t rafficking,
propert y crim es or environm ent al crim es are far less det ailed t han drugs, illegal
m igrat ion, et c. Does t hat m ean t hat such act ivit ies are not of significant im port ance in t he
EU? The lack of m et hodological explanat ion cert ainly gives t his im pression.
1.1.2.2.
Terrorism Sit uat ion and Trend ( T- SATs) report s
Such annual EU report s are elaborat ed by analyst s and expert s at EUROPOL. Drawing on
inform at ion provided and verified by EU Mem ber St at es’ com pet ent law enforcem ent
aut horit ies. The report s com pile dat a on failed, obst ruct ed or successfully execut ed
at t acks as well as arrest s pert aining t o suspect s of t errorism over t he past year. According
t o TE- SAT 2010, eight Mem ber St at es report ed a t ot al of 209 failed, foiled or successfully
perpet rat ed at t acks and t he UK report ed 40 during t he sam e period of t im e ( see Annex 2,
p. 36) . Only t hree ‘I slam ist ’ at t acks have been report ed ( t wo in Denm ark and one in
Sweden) , while France report ed 84 ‘separat ist ’ at t acks, Spain 74 and Aust ria 1 ( 160
separat ist incident s report ed on t he overall for 2010) . The next largest cat egory of at t acks
is under t he heading of ‘left - wing’ wit h 20 failed, foiled or com plet ed at t acks in Greece, 16
in Spain, 7 in I t aly, 1 in Czech Republic and 1 in Aust ria ( 45 incident s on t he overall) .
Over t he last year 2010, 14 Mem ber St at es report ed 566 arrest s and t he UK report ed 45
charges ( see Annex 3, p. 37) . I n 2010, 288 individuals have been t ried for t errorism
charges in t en Mem ber St at es and 19 individuals in t he UK ( see Annex 4, p. 38) .
As st at ed in t he int roduct ion and m et hodological part s of TE- SAT, t he m ain unit of t rend
analysis provided in t he report is t he num ber of arrest s and incident s perpet rat ed by
t errorist groups. While t he annual report cert ainly offers som e valuable inform at ion, fact s
and figures, several com m ent s should be highlight ed, first ly on t he qualit y of t he dat a
provided, and secondly, on t he t rends analysis t hem selves:
1. Th r e a t pe r ce pt ion s r e m a in la r ge ly na t ion a l in ch a r a ct e r a n d va r y
con side r a bly. Dat a provided by t he EU Mem ber St at es’ com pet ent law
enforcem ent aut horit ies depend largely on nat ional hist ory, views and classificat ion
of t errorist t hreat s. Thus, EU t errorist t hreat s port rayed in Europol’s report s are
part ly biased. The fact t hat less t han 50% of t he Mem ber St at es’ law enforcem ent
aut horit ies have cont ribut ed t o t he 2010 TE- SAT suggest s t hat not a ll M e m be r
St a t e s fe e l e qua lly con ce r n e d by t e r r or ism .
2. While t he report is based on t he com pilat ion of failed, foiled and com plet ed at t acks
per Mem ber St at e and per affiliat ion, t h e dist in ct ion be t w e e n t he n um be r of
fa ile d, foile d a n d com ple t e d a t t a ck r e m a in s u n cle a r .
23
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
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3. A com plet ed or successfully execut ed at t ack m ay have different im plicat ions
depending on t he fat alit ies, casualt ies and social cohesion; t he report does not
provide such inform at ion.
4. The unfort unat e recent at t ack in Oslo cert ainly dem onst rat es t hat t he m a gn it ude
of a br u t a l a t t a ck doe s not n e ce ssa r ily de pe n d on t he de gr e e of
or ga n isa t ion of a t errorist group and can be carried out by a single individual. As
such, t he classical focus on st ereot ype t errorist groups whet her t hey are ‘I slam ist ’,
‘separat ist ’ or ‘left - wing’, is problem at ic.
5. As st at ed clearly in TE- SAT 2010, dat a collect ed do not count various ot her crim inal
offences com m it t ed in support of t errorist act ivit ies. However, t his inform at ion
could give int erest ing det ails in order t o provide a full pict ure of crim inal act ivit ies
alleged t o sust ain t errorist act s.
6. To count t he num ber of individuals prosecut ed on t he charge of t errorist is not
sufficient inform at ion per se; differences bet ween j udicial syst em s in t he Mem ber
St at es are blurred and t he r e por t doe s n ot r e fle ct dom e st ic spe cificit ie s
regarding t errorism laws, nor does it offer a m ore precise view on t he degree of
involvem ent of t he convict ed individuals.
7. I n com parison t o t he inform at ion provided in previous TE- SAT 2008 and 2009,
t here is an apparent decrease in t he num ber of EU t errorist incident s in 2010. Over
t he previous years, it appears also t hat fe w M e m be r St a t e s a r e con ce r n e d by
t e r r or ist a ct s a nd t h e y a r e pr im a r ily con ce r n e d w it h t r a dit iona l
loca l/ n a t iona l t e r r or ism , whet her it is qualified as ‘separat ist ’ or ‘left - wing’.
Thus, t he first key j udgem ent of t he report st at ing t hat “ [ T] he t hreat of at t acks by
I slam ist t errorist s in t he EU rem ains high and diverse” is not convincing.
Threat assessm ent report s such as OCTAs and T- SATs have becom e cent ral in policy
decision- m aking ( see below on Harm ony Proj ect ) . As such, it appears fundam ent al t o
m a k e su r e t h a t t he m e t hodology u se d in su ch e x e r cise s is m a de fu lly
t r a n spa r e n t , so it ca n be e x t e r na lly a sse sse d j u st lik e a n y ot he r k n ow le dge
pr oce ss. The knowledge challenge is all t he m ore im port ant given t hat policy decisions
and budget s are decided upon t hese EUROPOL report s. According t o t he Com m unicat ion
from t he Com m ission t o t he EP and t he Council on “ The EU Count er- Terrorism Policy:
m ain achievem ent s and fut ure challenges” ( 2010) , 32 over t he period 2007- 2013, a t ot al
am ount of €745 m illion has been m ade available t o support policies t o count er t errorism
and organised crim e.
1.1.3.
The quest ion of civil libert ies
The civil libert ies challenge is of significant im port ance for t he LI BE Com m it t ee and will be
det ailed t hroughout t he present analysis. Taking st ock of t he num erous specific and
significant st udies undert aken in t his field in t he last decade, t he following rem arks can be
brought forward:
1. As m ent ioned above, t he va gue ne ss of t h e t e r m in ologie s of OC and t errorism ,
as well as t heir loose legal definit ion leads t o legal uncert aint ies, problem at ic
j udicial aspect s and over- crim inalisat ion.
2. Furt herm ore, t he a nt icipa t ive logic gives priorit y t o dat a collect ion, dat a
exchanges and dat a analysis, which are highly sensit ive act ivit ies in t erm s of civil
libert ies.
Terrorism and OC are indeed am biguous t erm inologies wit h legal consequences. As
carefully analysed by EU legal expert s, t he 2008 Fram ework Decision on OC at t em pt ed t o
reconcile t wo seem ingly different obj ect ives: t o int roduce a specific offence of
part icipat ion
in
a
crim inal
organisat ion,
which
is
dist inct
from
ot her
associat ion/ m em bership offences in dom est ic crim inal j ust ice syst em s; and at t he sam e
32
Brussels, COM( 2010) 386 final.
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Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
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t im e not t o be t oo rigid and narrow in it s definit ion of organised crim e, by t aking int o
account t he view t hat crim inal organisat ions do not always operat e under a hierarchical
st ruct ure, but m ay also operat e in net works. 33 The result of t his effort is a seem ingly
cont radict ory definit ion of a crim inal organisat ion which has t he pot ent ial t o lead t o over
crim inalisat ion, as t he elem ent s of a crim inal organisat ion are defined very broadly and
wit h flexible, am biguous crit eria. I n t his case, great discret ion, wit h lim it ed guidance, is
left t o t he nat ional legislat or and j udge t o im plem ent and int erpret t hese provisions.
Furt herm ore, cont roversies around t he t errorist ‘wat ch list s’ 34 provide a good exam ple of
t he problem at ic evolut ion of t he EU count er- t errorism st rat egy. Th is e volu t ion is n ot
on ly qu e st iona ble fr om a le ga l pe r spe ct ive , e ve n t ua lly disr upt s t h e EU
fu n ct ion ing a s w e ll a n d cr e a t e s t e n sion s be t w e e n t h e Eu r ope a n Cou r t of Ju st ice ,
t h e Eu r ope a n Coun cil a n d M S la w e n for ce m e n t se r vice s. The t wo following cases
illust rat e t hese t ensions:
1. I n 2008, t he European Court of Just ice annulled an EU Council regulat ion and
rej ect ed European governm ent s’ im plem ent at ion of t he UN t errorist wat ch list , on
t he ground t hat it breaches fundam ent al right s. 35
2. The j urisprudence of t he European Court of Hum an Right s relat ed t o t errorism 36
illust rat es st riking differences bet ween t he EU and it s MS. I n 2010, t he European
Court of Hum an Right s officially ruled police ‘st op and search’ powers, under UK
Terrorism laws, illegal for t he second t im e, rej ect ing a governm ent appeal. The
Court referred t o st op and search powers as not in “ accordance wit h t he law” , and
a violat ion of Art icle 8 of The European Convent ion on Hum an Right s – t he right t o
respect for privat e and fam ily life.
I n t he count er- t errorism field, num erous ot her exam ples of depart ures from t he rules of
law have been well docum ent ed. 37 Changes in t he EU legislat ion and t he hardening of
legislat ion in EU MS have produced m any st udies and crit ical assessm ent s of t he EU
st rat egy in t he field. Many researchers consider t hat claim ed t hreat s need t o be discussed
in t erm s of t he proport ionalit y of t he response and legal norm s about t he presum pt ion of
innocence. The im port ance of safeguarding fundam ent al values has been const ant ly
underlined and addressed by various NGOs, academ ics, int ernat ional bodies such as t he
Council of Europe 38 , but also on num erous occasions by t he European Parliam ent . Sophia
I nt ’Veld usefully recalls in her report for t he LI BE Com m it t ee t hat “ count er- t errorism
policies should m eet t he st andards set wit h regard t o necessit y, effect iveness,
proport ionalit y, civil libert ies, t he rule of law and dem ocrat ic scrut iny and account abilit y
t hat t he Union has com m it t ed it self t o uphold and develop, and t hat assessing whet her
33
34
See A. Scherrer, A. Mégie and V. Mit silegas ( 2009) , op. cit .
See St at ewat ch Report ( www.st at ewat ch.org/ t errorlist s/ t errorlist s.ht m l) .
35
I t indeed annulled t he European Council Regulat ion which followed a UN Sanct ions Com m it t ee
decision by freezing t he asset s of Yassin Abdullah Kadi, from Saudi Arabia, and t he Al Barakaat
I nt ernat ional Foundat ion of Sweden, part of t he ‘Hawala’ banking syst em . See Guild, E. ( 2010) , “ EU
Count er- t err orism Act ion: A fault line bet ween law and polit ics?” , CEPS, Brussels.
36
See t he websit e of t he UN Office on Drugs and Crim e ( www. / t ldb/ en/ case- law- of- t he- europeancourt - of- hum an- right s- relat ed- t o- t errorism .ht m l) .
37
See t he research undert aken wit hin t he CHALLENGE Proj ect ( Changing Landscape of European
Libert y and Securit y) , funded by t he Sixt h Fram ework Research Program m e of DG Research
( European Com m ission) ( www.libert ysecurit y.org/ ) . See also E.P. Guit t et ( 2008) , “ Miscarriages of
Just ice and Except ional Procedures in t he War against Terrorism ” , Brussels: CEPS; E. Guild ( 2010)
EU Count er- Terrorism Act ion: A fault line bet ween law and polit ics?, op. cit .; A. Neal, Except ionalism
and t he Polit ics of Count er- t errorism : Libert y, Securit y and t he War on Terror, op. cit .
38
See t he relat ed publicat ions of t he Council of Europe ( 2007) The fight against t errorism - Council
of Europe st andards ( 4t h edit ion) ; ( 2005) Hum an right s and t he fight against t errorism –The Council
of Europe Guidelines.
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Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
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t hese st andards are m et m ust be an int egral part of an evaluat ion of all EU count ert errorism effort s” . 39
Such legal uncert aint ies are enhanced by difficult ie s ca use d by t he e x t e nsive use of
da t a a nd t h e pr om ot ion of a n in t e llige n ce - le d logic. The ‘dat a challenge’
encom passes t he collect ion of evidence and it s adm issibilit y, t he use of financial
inform at ion for t he purpose of ident ifying and t hen neut ralising t he proceeds of crim e, t he
use of int elligence dat a t o ant icipat e t errorist at t acks and t he principle of exchange and
availabilit y. The quest ions of dat a availabilit y and int eroperabilit y of dat abases have
becom e cent ral in t he EU st rat egy against OC and t errorism . As underlined elsewhere,
t hese t wo aspect s of j udicial and police cooperat ion are highly problem at ic, at different
levels: 40 in addit ion t o difficult ies on t he operat ional aspect ( t he supplem ent ary work t hat
will be needed, t he heaviness of t he m anagem ent of dat a com ing int o t he syst em and t he
t im e spent t o deal wit h t he ot her agencies’ dem ands) , and t o t he quest ion of t he role and
m andat e of EU agencies in t he dat abases, t he debat e focuses part icularly on reasons
linked t o t he very legit im acy of t he principle of availabilit y and on it s effect s on civil
libert ies. Those debat es insist specifically on t he qualit at ive difference bet ween dat a
shared by int elligence services and repressive aut horit ies ( police, cust om s, j udicial
bodies) , for which eligibilit y in front of a court is not t he sam e, and for which credibilit y
and veracit y depend on t he condit ions in which t he inform at ion was obt ained. I n order t o
funct ion, t he principle of availabilit y supposes t hat t here is an agreem ent on t he
cat egories of aut horit ies t hat will have access t o t hese dat a. As acknowledged by t he LI BE
Com m it t ee on several occasions, t he need for safeguards for t he prot ect ion of personal
dat a becom es of crit ical im port ance.
1 .2 .
Th e Eu r ope a n I n t e r n a l Se cu r it y St r a t e gy
The ent ry int o force of t he Lisbon Treat y and t he adopt ion of t he St ockholm Program m e
has spurred t he adopt ion of a num ber of st rat egy docum ent s on t he furt her developm ent
of t he AFSJ. The I nt ernal Securit y St rat egy is t herefore one of several docum ent s laying
down orient at ions for t he AFSJ. A first quest ion, in t his regard, concerns t he obj ect ives of
a st rat egy. W h a t should a st r a t e gy do? I s a st rat egy lim it ed t o t he enum erat ion of key
priorit ies and goals? Should it be a m anagem ent - orient ed docum ent , providing em pirical
evidence of a need for act ion and est ablishing m ilest ones and benchm arks for fut ure
assessm ent s and evaluat ions? I s t he adopt ion of a st rat egy a sym bolic m ove, which
serves m ainly t o prom ot e t he visibilit y of it s draft ers and ascert ain t heir legit im acy t o act
in a given dom ain? H ow st r a t e gic, in ot her words, is t h e EU’s I n t e r na l Se cu r it y
St r a t e gy? Of int erest , here, is t he exam inat ion of how t he EU I SS relat es t o ot her
st rat egy docum ent s dealing wit h int ernal securit y as well as wit h t he AFSJ at large. How
do t he elem ent s feat ured in t he int ernal securit y st rat egy relat e t o t he broader ‘Lisbon
clust er’ of st rat egy docum ent s? I n part icular, how is t he art iculat ion bet ween securit y and
freedom organised across t his clust er? As recalled in t he int roduct ion t o t his st udy, t he
St ockholm Program m e est ablishes t hat ensuring sim ult aneously t he respect for
fundam ent al right s and freedom s and guarant eeing securit y is t he key challenge for t he
AFSJ, which m ust be addressed “ in a com prehensive m anner” , wit h “ [ f] urt her effort s
needed in order t o im prove coherence bet ween policy areas” ( p. 7) . We exam ine in t urn:
The general post - Lisbon st rat egic environm ent for t he AFSJ ( 1.2.1.) ;
The specific priorit ies list ed in t he I nt ernal Securit y St rat egy and t he I SS in Act ion
com m unicat ion from t he Com m ission ( 1.2.2.) ; and
The relat ionship bet ween t he I SS and I SS in Act ion priorit ies and t he ot her
st rat egic docum ent s const it ut ing t he AFSJ’s post - Lisbon environm ent ( 1.2.3.) .
39
S. I nt ’Veld ( 2011) , “ Report on t he EU Count er- Terrorism Policy: Main achievem ent s and fut ure
challenges” , Brussels: European Parliam ent , PE 460.953v02- 00.
40
D. Bigo et al. ( 2008) , The Field of t he EU I nt ernal Securit y Agencies, Paris: l’Harm at t an.
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1.2.1.
St rat egy- m aking in t he AFSJ: The I nt ernal Securit y St rat egy in cont ext
1.2.1.1.
Overview of EU st rat egy- m aking act ivit ies in t he AFSJ
The devising of st rat egy docum ent s laying down priorit ies for t he AFSJ has proceeded at a
sust ained pace since t he ent ry int o force of t he Am st erdam Treat y, st art ing wit h t he
Vienna Act ion Plan adopt ed by t he European Council in Decem ber 1998 and t he Tam pere
‘m ilest ones’ adopt ed in Decem ber 1999. Alongside t he t hree m ult i- annual program m es of
Tam pere ( 1999) , t he Hague ( 2004) and now St ockholm ( 2009) , st rat egy docum ent s for
t he AFSJ have included:
1. M a na ge r ia l st r a t e gy docum e n t s: General st rat egy docum ent s in t he AFSJ have
been accom panied by a num ber of im plem ent ing docum ent s preoccupied wit h t he
m anagem ent of act ions undert aken t hrough t he EU. Managerial st rat egy
docum ent s relat ed t o t he Hague Program m e include, for exam ple, t he
Com m ission’s “ Ten priorit ies for t he next five years Com m unicat ion” and t he j oint
Com m ission- Council “ Act ion Plan im plem ent ing t he Hague Program m e” published
in 2005, as well as t he 2006 Com m ission Com m unicat ion “ I m plem ent ing t he
Hague Program m e: t he way forward” adopt ed t oget her wit h t he Com m ission’s
report on t he program m e’s first year. 41
2.
I ssu e - spe cific a n d t opica l st r a t e gy docu m e n t s: These are docum ent s t hat
focus eit her on a specific issue area or are adopt ed in relat ion t o a specific event .
The t wo cat egories, however, very oft en overlap. The adopt ion of a st rat egy
docum ent regarding a given issue area has oft en been used as a sym bolic m easure
t o dem onst rat e t hat specific incident s have been t aken int o account by t he EU.
3.
St r a t e gie s r e la t in g t o e x t e r na l r e la t ion s a n d com m on for e ign a n d se cu r it y
policy: Som e of t hese docum ent s, such as t he Com m ission’s “ St rat egy for t o t he
ext ernal dim ension of t he area of freedom , securit y and j ust ice” and t he Council’s
“ St rat egy for t he ext ernal dim ension of JHA” bot h adopt ed in 2005, follow from
act ivit ies in JHA m at t ers or espouse a JHA viewpoint . Ot hers hail from alt oget her
different policy areas. The best exam ple here is t he 2003: ” European Securit y
St rat egy” ( ESS) and 2008 Report on t he im plem ent at ion of t he European Securit y
St rat egy, which have been draft ed by t he High Represent at ive for t he CFSP and his
t eam , and include securit y considerat ions relat ed t o t he AFSJ and it s ext ernal
dim ension despit e being inst rum ent s of t he form er second pillar. 42
1.2.1.2.
EU st rat egy- m aking act ivit ies and t he quest ion of change
This brief overview calls for t hree com m ent s. First ly, t h e dist in ct ion be t w e e n t h e
diffe r e n t ca t e gor ie s of st r a t e gy docu m e nt s is u n cle a r . The Tam pere, The Hague and
St ockholm m ult i- annual program m es are a good exam ple, since t hey are sim ult aneously
priorit y- set t ing docum ent s and m anagerial t ools for program m ing AFSJ- relat ed act ivit ies.
This observat ion leads t o a second com m ent , nam ely t hat t he adopt ion of st rat egy
docum ent s regarding t he AFSJ has been driven by t h r e e in t e r r e la t e d pa t t e r n s:
1. A pla n n ing- dr ive n pa t t e r n , which follows from agreed upon processes of review
and st rat egic planning. Exam ples of t his pat t ern m ainly concern t he m ult i- annual
41
See respect ively European Com m ission ( 2005) , “ The Hague Program m e: 10 priorit ies for t he next
five years” , COM( 2005) 184 final, 10.5.2005; Council of t he European Union ( 2005) , “ Council and
Com m ission Act ion Plan im plem ent ing t he Hague Program m e on st rengt hening freedom , securit y
and j ust ice in t he European Union” , 9778/ 2/ 05, 10.6.2005; European Com m ission ( 2006) ,
“ I m plem ent ing t he Hague Program m e: The way forward” , COM( 2006) 331 final, 28.6.2006.
42
See European Com m ission ( 2005) , “ A st rat egy on t he ext ernal dim ension of t he area of freedom ,
securit y and j ust ice” , COM( 2005) 491 final, 12.10.2005; Council of t he European Union ( 2005) , “ A
St rat egy for t he Ext ernal Dim ension of JHA: Global Freedom , Securit y and Just ice” , 14366/ 05,
11.11.2005; Council of t he European Union ( 2003) , “ European Securit y St rat egy” , 8.12.2003;
Council of t he European Union ( 2008) , “ Report on t he I m plem ent at ion of t he European Securit y
St rat egy – Pr oviding Securit y in a Changing World” , 17104/ 08, 10.12.2008.
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planning of act ivit ies in t he AFSJ and t he succession of five- year work program m es
st art ing wit h t he Tam pere m ilest ones, followed by t he Hague Program m e and now
cont inued wit h t he St ockholm Program m e. The process, of course, is not as
st ream lined as it m ay seem . Alongside m anagerial concerns wit h t he organisat ion
of EU act ivit ies regarding t he AFSJ, com pet it ion bet ween act ors and concerns wit h
sym bolic gest ures following developm ent s considered as m aj or event s have been a
consist ent driving force behind t he adopt ion of st rat egy docum ent s.
2. A com pe t it ion - dr ive n pa t t e r n : The adopt ion of st rat egic docum ent s has also
been driven by t he t ensions bet ween t he different agencies, bodies and services
involved in AFSJ policies. I n t he case of t he AFSJ’s ‘ext ernal dim ension’, for one,
t he Com m ission and Council’s st rat egic docum ent s of 2005 were adopt ed alm ost
sim ult aneously, wit h som e key differences: while t he Com m ission’s cont ribut ion
aim ed, at least in principle, t o develop sim ult aneously t he freedom , securit y and
j ust ice dim ensions in t he EU’s relat ions wit h t hird count ries, t he Council’s approach
has been cent red m ore squarely on count er- t errorism , organised crim e, t rafficking
and m igrat ion. 43 St rat egy docum ent s, in t his case, are adopt ed not only t o
est ablish priorit ies, but also t o prom ot e conflict ing agendas. Com pet it ion,
furt herm ore, is not only an int er- inst it ut ional pat t ern but also involves int rainst it ut ional cont roversies.
3. An e ve n t - dr ive n pa t t e r n : The adopt ion of st rat egy docum ent s has in som e cases
been j ust ified as a react ion t o specific developm ent s fram ed as ‘key event s’, even
t hough t hey have t aken place quit e som e t im e aft er such developm ent s. This is t he
case, for exam ple, of t he EU count er- t errorism st rat egy adopt ed in Decem ber 2005
t o “ t ake int o t he next phase t he agenda of work set out at t he March 2004
European Council in t he wake of t he Madrid bom bings” ( Council docum ent
14469/ 4/ 05, p. 6) . This does not ent ail, however, t hat such docum ent s foresee
significant policy inflect ions. Am ong t he key priorit ies singled out under t he
‘Prot ect ’ heading of t he EU count er- t errorism st rat egy, for inst ance, are t he
int roduct ion of biom et rics in EU passport s ( already decided a year before wit h t he
adopt ion of Council Regulat ion ( EC) 2252/ 2004 of 13 Decem ber 2004) or t he
est ablishm ent of t he Visa I nform at ion Syst em ( VI S) and Schengen I nform at ion I I
( SI S I I ) . The possibilit y of using t he VI S for count er- t errorism purposes had been
at t he t im e under considerat ion since t he earliest discussions on t he issue in
Novem ber- Decem ber 2001. 44 The SI S- I I , on t he ot her hand, could hardly be
considered as a novel m easure at t he t im e, since it s developm ent had been
considered since Decem ber 1996 wit hin t he Schengen Execut ive Com m it t ee. 45
The survey of st rat egy- m aking act ivit ies in t he AFSJ, in view of t hese pat t erns, br ings t o
t h e for e t he qu e st ion of possibilit ie s for cha n ge in t he t r a j e ct or y e spou se d by t he
43
For a general assessm ent on t hese issues in t he st udies subm it t ed t o t he AFET and LI BE
com m it t ees of t he European Parliam ent , see S. Alegre, D. Bigo and J. Jeandesboz ( 2009) , “ Ext ernal
Dim ension of t he Area of Freedom , Securit y and Just ice” , PE 410.688, European Parliam ent ,
Brussels. For region- specific analyses, see int er alia T. Balzacq ( 2008) , “ I m plicat ions of European
Neighbourhood Policy in t he Cont ex t of Border Cont rols” , PE 393.284, European Parliam ent ,
Brussels; K. Hailbronner ( 2006) , “ The Ext ernal Dim ension of t he Area of Freedom , Securit y and
Just ice in Relat ion t o t he Unit ed St at es of Am erica” , PE 348.589, European Parliam ent , Brussels; S.
Lavenex and N. Wichm ann ( 2006) , “ The Ext ernal Dim ension of t he Area of Freedom , Securit y and
Just ice in Relat ion t o t he Count ries covered by t he European Neighbourhood Policy ( ENP) ” , PE
348.596? European Parliam ent , Brussels; p; Luif and H. Riegler ( 2006) , “ The Ext ernal Dim ension of
t he Area of Freedom , Securit y and Just ice in Relat ion t o t he West ern Balkan Count ries” , PE 348.588,
European Parliam ent , Brussels; M. Menkiszak, M. Jaroszewicz and M. Falkowski ( 2006) , “ The
Ext ernal Dim ension of t he Area of Freedom , Securit y and Just ice in Relat ion t o Russia” , PE 348.594,
European Par liam ent , Brussels.
44
See E. Brouwer ( 2008) , Digit al Borders and Real Right s: Effect ive Rem edies for Third- Count ry
Nat ionals in t he Schengen I nform at ion Syst em , Leiden: Mart inus Nij hoff, pp. 127- 132.
45
I bid., pp. 71- 116.
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de ve lopm e n t of t h e EU’s policie s in t h is a r e a ove r t he pa st 2 0 ye a r s. This is all t he
m ore im port ant as t hese act ivit ies have sust ained t he reinforcem ent of t he securit y logic
in AFSJ policies. This has not been done, however, by syst em at ically opposing securit y,
freedom and j ust ice, but also by including securit y priorit ies under t he headings of
freedom and j ust ice. The case t hat has at t ract ed t he m ost com m ent over t he past few
years, in t his regard, has been t he Hague Program m e. 46 The program m e’s first and
longest sect ion on ‘St rengt hening Freedom ’ incorporat es a num ber of m easures on t he
cont est ed issue of ‘offshore processing’ of asylum claim s, on readm ission policy, on border
cont rol wit h reference t o t he est ablishm ent of Front ex, on biom et rics and t he
est ablishm ent of SI S I I and VI S, and so fort h. These m easures, placed under t he
“ Freedom ” heading of t he program m e, all t arget t hird- count ry nat ionals. As som e scholars
have suggest ed here, freedom in t he Hague Program m e is envisaged as “ t he creat ion of a
‘safe area wit hout int ruders’. Freedom is a t ool for m axim ising securit y” . 47 This logic is
hardly specific t o t he Hague Program m e: it can be found in t he 1988 Palm a docum ent ,
inform ed t he developm ent of t he Schengen cooperat ion, and has since been t ransposed
and arguably ‘recycled’ in m ost st rat egy docum ent s on t he AFSJ.
1.2.1.3.
The ‘Lisbon clust er’ of AFSJ st rat egies
The run- up t o and t he aft erm at h of t he ent ry int o force of t he Lisbon Treat y, wit h t he
addit ional influence of t he adopt ion of t he St ockholm Program m e, have also been a period
of st rat egic act ivism . The ‘Lisbon clust er’ of AFSJ st rat egies includes:
1. Th e St ock h olm Pr ogr a m m e a nd t h e r e la t e d Com m ission Act ion Pla n on
Delivering an area of freedom , securit y and j ust ice: t hese cont ain t he m aj or
updat es regarding t he im plicat ions of t he ent ry int o force of Lisbon for t he AFSJ.
2. Fu nda m e nt a l r igh t s st r a t e gy docu m e n t s: t hese com prise t he Com m ission’s
2010 St rat egy for t he effect ive im plem ent at ion of t he Chart er of Fundam ent al
Right s by t he European Union, as well as it s 2010 Com prehensive approach on
personal dat a prot ect ion in t he European Union.
3.
I n t e r na l Se cu r it y St r a t e gy docu m e n t s: t hese com prise t he I SS and t he 2010
Com m ission’s I SS in Act ion com m unicat ion, as well as t he m ore specific
I nform at ion Managem ent St rat egy for EU int ernal securit y.
The quest ion, of course, is whet her t hese docum ent s reflect a change from t he t rends
ident ified in previous st rat egy docum ent s. The em phasis placed on fundam ent al right s and
freedom s in t he lat est st rat egy docum ent s, as well as a num ber of organisat ional
developm ent s prior t o t he adopt ion of t he St ockholm Program m e ( chiefly t he break- up of
DG JLS int o DG Hom e and DG Just ice) , suggest t hat we m ight be seeing an inflect ion
whereby securit y and freedom are being pursued sim ult aneously, rat her t han having t he
securit y logic ‘colonise’ t he priorit ies relat ed t o freedom . Assessm ent s of t he St ockholm
Program m e, however, suggest t hat t he focus adopt ed in t he Hague Program m e rem ains,
albeit in a m ore at t enuat ed form . The em phasis on a “ Europe of right s” and a “ cit izens’
Europe” , which are t he m ain headlines of t he program m e, focus on t he freedom s and
right s of persons holding t he nat ionalit y of an EU Mem ber St at e, whereas legal
inst rum ent s, including t he Chart er of Fundam ent al Right s ( CFR) and t he European
Convent ion of Hum an Right s ( ECHR) , as well as t he case law of bot h t he Luxem bourg and
St rasbourg court s acknowledge t hese freedom s and right s as held by all individuals,
46
See e.g. S. Peers ( 2004) , “ Annot at ions on ‘The Hague Program m e’ final version” , London:
St at ewat ch; T. Balzacq and S. Carrera ( 2005) , “ The Hague Progr am m e: The Long Road t o Freedom ,
Securit y and Just ice” , in T. Balzacq and S. Carrera ( eds) , Securit y Versus Freedom ? A Challenge for
Europe’s Fut ure, London: Ashgat e, pp. 1- 32.
47
D. Bigo ( 2005) , “ Libert y, whose libert y? The Hague Progr am m e and t he Concept ion of Freedom ” ,
in T. Balzacq and S. Carrera ( eds) , Securit y Ver sus Freedom ? A Challenge for Europe’s Fut ure,
London: Ashgat e, p. 36.
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regardless of t heir nat ionalit y. 48 I t is cert ainly wit h t hese issues in m ind, and wit h t he
quest ion of change at t he forefront , t hat t he EU I nt ernal Securit y St rat egy should be
assessed.
1.2.2. The I nt ernal Securit y St rat egy and I SS in Act ion com m unicat ion
I n view of t he elem ent s provided on t he pract ice of st rat egy- m aking in t he AFSJ, t he m ain
quest ions raised by t he EU I nt ernal Securit y St rat egy and t he Com m ission’s corresponding
I SS in Act ion com m unicat ion are t he following. First ly, does t he EU I SS reflect what public
policy analysis scholars t erm a ‘pat h dependency’ on securit y issues? I n ot her words,
doe s it sim ply con st it u t e a follow - up a n d r e cycling of pa st or ie n t a t ion s, or doe s it
a lt e r t h e ‘pa t h ’ of EU a ct ivit ie s in t h e fie ld of in t e r n a l se cu r it y? I s it a st r a t e gy
docum e n t a s su ch , or a sym bolic ge st u r e , w h ich se e k s pr im a r ily t o pu blicise t he
st e ps t o be t a k e n by t h e Coun cil, a nd pa r t icu la r ly it s St a ndin g Com m it t e e on
I n t e r na l Se cu r it y, in t h e fu t u r e ?
1.2.2.1.
The draft ing of t he EU I nt ernal Securit y St rat egy
The principle of an I nt ernal Securit y St rat egy, first ly, has been evoked for som e t im e in
EU AFSJ docum ent s. The issue was first considered following t he int roduct ion by t he
European Convent ion in t he Const it ut ional Treat y of t he set t ing- up of a Com m it t ee on
I nt ernal Securit y ( Art icle I I I - 261) . References t o an I nt ernal Securit y St rat egy surfaced
aft er t he French and Dut ch referenda rej ect ing t he Const it ut ional Treat y, in Council
discussions on t he “ Archit ect ure of I nt ernal Securit y” ( Council docum ent 7039/ 2/ 06) as
well as in t he process of reviewing t he 2004 Hague Program m e. I n it s 2006
com m unicat ion on I m plem ent ing t he Hague Program m e, t he Com m ission calls for t he
adopt ion of such a docum ent in light of t he developing EU and Mem ber St at e init iat ives in
t he field of count er- t errorism and crit ical infrast ruct ure prot ect ion ( p. 9) . I n t he sam e
period, t he not ion appears in discussions wit hin t he Council’s working groups in t he field
of j ust ice and hom e affairs follow ing t he publicat ion of t he first OCTA report and in t he
perspect ive of enhanced operat ional cooperat ion in t his area. I t was pursued in part icular
by t he Finnish presidency, not ably in it s report on t he review of t he Hague Program m e
( Council docum ent 15844/ 06) .
The discussion on an I nt ernal Securit y St rat egy was relaunched in t he Council in 2008.
The French Presidency raised t he quest ion am ong delegat ions in t he cont ext of
discussions on t he st ruct uring of operat ional cooperat ion in int ernal securit y m at t ers
( Council docum ent 12390/ 08) . The St ockholm Program m e form alised t he debat e by
calling upon t he Council and Com m ission t o devise an int ernal securit y st rat egy based on
t he following ( pp. 60- 61) :
Clarifying t he organisat ion of t asks: bet ween t he EU and t he Mem ber St at es, but
also bet ween Mem ber St at es ( principle of solidarit y) , bet ween EU agencies
( em phasis
on
cooperat ion)
and
bet ween
t he
EU
and
regional
init iat ives/ cooperat ion;
Defining a general approach, which is t o be horizont al and cross- cut t ing different
issue areas, prevent ive and reflect ing a proact ive and int elligence- led logic;
Respect ing fundam ent al right s, int ernat ional prot ect ion and t he rule of law; and
Prom ot ing t he im port ance of t he EU’s prot ect ion role t owards cit izens.
The Spanish Presidency earm arked t he I SS as a key priorit y bot h in t he JHA Council
( Council docum ent 5462/ 10) and in t he m eet ing wit h t he LI BE Com m it t ee in January 2010
( Council docum ent 6048/ 10) . A full draft was circulat ed t o t he delegat ions at t he
beginning of February 2010 ( Council docum ent 5842/ 10) and t he final t ext was adopt ed
48
See S. Carrera and E. Guild ( 2009) , “ Towards t he Next Phase of t he EU’s Area of Fr eedom ,
Securit y and Just ice: The European Com m ission’s Proposals for t he St ockholm Program m e” , Policy
Brief No. 196, CEPS, Brussels.
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by t he JHA Council on 25 February ( Council docum ent 6870/ 10) .
1.2.2.2.
Priorit ies and principles in t he EU I nt ernal Securit y St rat egy
The final I SS docum ent is art iculat ed as follows: it defines t he key developm ent s t hat are
considered t o const it ut e t he m ain t hreat s t o t he Union, out lines t he m ain com ponent s of a
European securit y m odel and est ablishes st rat egic guidelines for act ion. Keeping in m ind
t hat t he I SS is a general docum ent of an arguably sym bolic, m ore t han pract ical,
dim ension, t hese t hree point s call for a num ber of com m ent s.
The definit ion of key securit y challenges, first ly, is alm ost all- encom passing. Th e I SS
doe s n ot pr ovide a h ie r a r ch y be t w e e n t h e cha lle nge s it ide n t ifie s, n or doe s it
e st a blish dist in ct pr ior it ie s. To a large ext ent , it reit erat es t he priorit ies feat ured in
earlier st rat egy docum ent s. Terrorism and “ serious and organised crim e” , “ in any form ”
for t he form er and “ in it s various form s” for t he lat t er, are t he first it em s on t he list .
Terrorism seem s t o include act ions of significant im pact ( “ devast at ing consequences” ) ,
but also recruit m ent which is assim ilat ed wit h radicalisat ion and propaganda. Serious and
organised crim e includes various form s of t rafficking ( drugs, arm s, and hum ans) ,
sm uggling of persons and econom ic crim e, sexual exploit at ion of m inors and child
pornography, m oney- laundering and docum ent fraud, as well as corrupt ion. The lack of
hierarchy bet ween challenges and priorit ies appears m ost st rongly when t he I SS present s
“ violence it self” as a t hreat , and correlat es int ernal securit y and civil prot ect ion by
including nat ural and m an- m ade disast ers in t he list of challenges. At n o poin t doe s t he
st r a t e gy de fine t h e scope a nd t h e r e for e lim it s of w ha t con st it u t e s a n in t e r na l
se cu r it y issu e .
The com ponent s of t he European securit y m odel out lined by t he I SS reflect t he sam e
logic. The basic principles of t he m odel are all- encom passing and include:
•
Mut ually reinforcing j ust ice, freedom and securit y policies, respect ing fundam ent al
right s, int ernat ional prot ect ion, t he rule of law and privacy;
•
Prot ect ion of all cit izens, especially t he m ost vulnerable and wit h part icular
at t ent ion t o vict im s of crim e;
•
Transparency and account abilit y;
•
Dialogue;
•
I nt egrat ion, social inclusion and t he fight against discrim inat ion; and
•
Solidarit y and m ut ual t rust bet ween Mem ber St at es.
A num ber of quest ions can be raised as t o t he int eract ion bet ween t hese principles. The
first principle of m ut ually reinforcing AFSJ policies respect ing fundam ent al right s,
int ernat ional prot ect ion, t he rule of law and privacy reit erat es t he priorit ies of t he
St ockholm Program m e. The European securit y m odel advocat ed by t he I SS, however,
t wist s t his com m it m ent in a significant way. Two exam ples are part icularly st riking. The
st rat egy assert s, first ly, t hat “ securit y is in it self a basic right ” ( p. 9) , but does not clarify
t he im plicat ions of t his assert ion. What is m eant by securit y in t his cont ext ? This
specificat ion can be underst ood in t wo ways:
1. Se cu r it y is confu se d w it h sa fe t y: Safet y, in t he const it ut ional t radit ion of a
num ber of Mem ber St at es, is t aken t o im ply t he freedom of t he individual from
harm , including from possible abuses of power from public aut horit ies ( for exam ple
in t he cont ext of nat ional securit y policies) . This is, generally speaking, t he Habeas
Corpus t radit ion, whereby freedom encom passes securit y.
2. Se cu r it y is e qua t e d w it h sur viva l: There can be no freedom if one is at risk of
being killed. I n t his perspect ive, fundam ent al right s and freedom s can only be
considered aft er securit y is ensured. Securit y becom es t he principle, and freedom
t he except ion. Securit y, here, is first and forem ost t he right t o survival of an
individual or a collect ive, which im plies t hat a double hierarchy can be est ablished:
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bet ween t he m ost valued form of survival ( e.g. an individual can perish in t he
nam e of collect ive survival) , and bet ween right s, wit h securit y at t he t op of t he list .
Securit y, in ot her words, encom passes freedom .
These t wo int erpret at ions sim plify a broader and m ore int ricat e et hical, legal and polit ical
discussion but t hey do show t he need for m ore precision as t o what is m eant by defining
securit y as a ‘basic right ’ and by considering t his prescript ion as t he building block of a
European int ernal securit y m odel. They raise an im port ant quest ion concerning a
seem ingly t aken- for- grant ed point in AFSJ- relat ed docum ent s: Should securit y be
considered as a right , or sim ply as a policy goal? By arguing for t he form er, t he EU
I nt ernal Securit y St rat egy follows in t he st eps of previous AFSJ st rat egy docum ent s such
as t he Hague Program m e. The I SS, secondly, defines t ransparency and account abilit y as
im port ant principles t o enable securit y policies “ t o be easily underst ood by cit izens, and
t ake account of t heir concerns and opinions” . Transparency and account abilit y here
appear t o involve t he im port ance of reaching out ‘pedagogically’ t o EU cit izens. The t wo
not ions, however, have broader im plicat ions, including t he oversight and scrut iny of
securit y policies by parliam ent ary and j udicial aut horit ies, t he obligat ion t o dem onst rat e
t he im pact and effect iveness of m easures t aken in t he nam e of securit y, and t he right of
all cit izens t o access inform at ion about securit y policies am ong ot hers.
The st rat egic guidelines laid out by t he I SS, finally, raise sim ilar issues. They feat ure a
m ix of general considerat ions and issue- specific discussions ( j udicial cooperat ion in
crim inal m at t ers, int egrat ed border m anagem ent , innovat ion and t raining, ext ernal
dim ension of int ernal securit y) . Th e ce n t r a l a r t icu la t ion of t h e gu ide lin e s is be t w e e n
t h e e m ph a sis on a pr oa ct ive , int e llige n ce - le d a ppr oa ch , a nd t he de ve lopm e n t of
a com pr e he n sive m ode l for in for m a t ion e x cha n ge a n d ope r a t iona l coope r a t ion.
The I SS form alises in t his respect t he m ain orient at ion of EU JHA policies since t he
adopt ion and ent ry int o force of t he Am st erdam Treat y. We will com e back t o t his point
below ( 2.2.3.) but it raises t he quest ion of whet her t he fram ing of int ernal securit y has
act ually evolved despit e Lisbon’s ‘collapsing’ of t he pillar st ruct ure.
Just as wit h t he ot her it em s feat ured in t he I SS, several quest ions can be raised wit h
regard t o t he st rat egic guidelines. A key point concerns t he issue of prevent ion. A
proact ive and int elligence- based approach ent ails “ a st ronger focus on t he prevent ion of
crim inal act s and t errorist at t acks before t hey t ake place [ …] as well as procuring t he
evidence required for prosecut ion” ( p. 11) . While com plem ent ary at first inspect ion, t he
quest ion of priorit ies is unavoidable here. Prevent ion can be based on inform at ion, while
prosecut ion requires evidence collect ed according t o specific procedures. Prosecut ion
involves t he art iculat ion wit h j ust ice, while prevent ion isolat es int ernal securit y from
issues pert aining t o t he ot her policies of t he AFSJ. A furt her int errogat ion in t his regard
concerns t he guidelines regarding t he “ effect ive dem ocrat ic and j udicial supervision of
securit y act ivit ies” . The inclusion of t hese considerat ions is undeniably an
acknowledgem ent of t he changes brought about by t he Lisbon Treat y. I n t he m eant im e,
no specific guideline t o speak of is included in t he I SS regarding t he “ effect ive
consult at ion at all st ages” of t he European Parliam ent . Furt herm ore, while agencies such
as EUROPOL and FRONTEX are m ent ioned at several point s t hroughout t he I SS, t he
sect ion does not m ake any reference t o t he European Dat a Prot ect ion Supervisor ( EDPS)
( despit e m ent ioning dat a prot ect ion and privacy issues in t he sect ion dedicat ed t o t he
inform at ion exchange m odel) or t he European Agency for Fundam ent al Right s ( FRA) .
1.2.2.3.
The “ I SS in Act ion” Com m unicat ion from t he European Com m ission
The Novem ber 2010 Com m unicat ion of t he Com m ission on t he “ I SS in Act ion” present s
sim ilar short com ings. I t defines five st rat egic obj ect ives which overlap wit hout m at ching
ent irely t he key challenges and priorit y issues singled out by t he I SS: count ering serious
and organised crim e, count er- t errorism , count ering cybercrim e, border m anagem ent , and
resilience t o crises and disast ers ( whet her nat ural or m an- m ade) . A general int errogat ion,
however, resides in t he evidence t hat can j ust ify t he necessit y and proport ionalit y of t he
m easures envisaged. The EU is “ facing serious securit y t hreat s t hat are growing in scale
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and sophist icat ion” , argues t he com m unicat ion in it s opening st at em ent , but t he
rem ainder of t he docum ent offers very lit t le in t erm s of a hierarchy of priorit ies and
j ust ificat ions for t he course of act ion proposed. I n t he case of “ serious and organised
crim e” , for exam ple, t he com m unicat ion resort s t o t he sam e enum erat ion as t he I SS, but
one is t em pt ed t o ask whet her drugs, arm s and hum an t rafficking can be m et wit h t he
sam e m easures as burglaries or car t heft s. Accordingly, t he com m unicat ion does not offer
any definit ion of t he scope and lim it s of int ernal securit y. One out com e of t his approach
se e m s t o be t h e ‘r e cyclin g’ of e a r lie r policy in it ia t ive s u n de r diffe r e n t h e a din gs, a
t rend t hat was discussed earlier in relat ion t o t he EU’s count er- t errorism st rat egy. The
first concret e act ion envisaged regarding serious and organised crim e, for inst ance, is a
proposal for t he est ablishm ent of an EU Passenger Nam e Record ( PNR) syst em . This is
expect ed t o enable t he ident ificat ion and dism ant ling of crim inal net works and, argues t he
Com m ission, t o “ prevent and prosecut e t errorist offences and serious crim es” ( p. 5) . The
discussion on t he EU PNR, however, is hardly new. Furt herm ore, it was init ially fram ed as
a count er- t errorism m easure, not as a m easure against organised crim e. Th e
com bina t ion be t w e e n t h e la ck of e vide n ce , suppor t ing t he ne ce ssit y of e nvisa ge d
m e a su r e s, a n d t h e t e n de n cy t o ‘r e cycle ’ pa st in it ia t ive s u nde r a n e w h e a ding
r a ise s, pa r a dox ica lly, t h e qu e st ion of t h e a de qua cy of t h e st r a t e gic pr ior it ie s for
EU in t e r na l se cu r it y, a n d u n de r lin e s t he pr oble m s st e m m ing fr om t he m u lt iple
de fin it ion s of in t e r na l se cu r it y, it s scope a n d lim it s a s a policy a r e a .
Anot her int errogat ion, in t his respect , involves t he art iculat ion bet w een int ernal securit y
and t he ot her policy areas of t he AFSJ. The com m unicat ion fram es EU int ernal securit y
policies as being based on com m on values and refers bot h t o t he EU Chart er of
Fundam ent al Right s and t o t he Com m ission’s st rat egy for it s im plem ent at ion. I t depart s
in t his respect from t he I nt ernal Securit y St rat egy it self, which is lim it ed t o generic
references t o fundam ent al right s and freedom s. However, despit e t he Com m ission’s
com m it m ent , in it s Act ion Plan on im plem ent ing t he St ockholm Program m e, t o a ‘zero
t olerance policy’ regarding violat ions of t he Chart er of Fundam ent al Right s, t he I SS in
Act ion does not seem t o regard t he t ransposit ion of t his policy in t he field of int ernal
securit y as a st rat egic obj ect ive. This observat ion raises an issue of consist ency in t he
priorit ies pursued by t he Com m ission, and on t he act ual com m unicat ion bet ween t he
Com m ission’s direct orat es general.
A driving quest ion in t he present analysis of t he EU’s I nt ernal Securit y St rat egy has been
whet her it const it ut ed an inflect ion from past t rends in t he AFSJ. The elem ent s provided
above suggest t hat bot h t he EU I SS and t he Com m ission’s I SS in Act ion com m unicat ion
reflect a t endency t o reit erat e past orient at ions and t o refram e past init iat ives. I n t his
regard, t he I nt ernal Securit y St rat egy appears m ore as a sym bolic m ove, t o be
underst ood in t he cont ext of t he ent ry int o force of t he Lisbon Treat y where som e act ors
have felt t he need t o reinst at e t heir prerogat ives and influence over int ernal securit y
m at t ers. The apparent ly piecem eal and pat chy set of priorit ies and guidelines form ulat ed
in t he EU I SS has m ore t o do wit h a lack of agreem ent over t he upcom ing orient at ions of
t he AFSJ, bot h bet ween t he inst it ut ions and wit hin. Cont roversies over securit y priorit ies
lead t o t he adopt ion of not a m inim um com m on denom inat or but a m axim al
het erogeneous com m on one, which in t his case is com posed of t he perspect ives t hat have
been adopt ed in t he past . While legally writ t en out of t he t reat ies, t hen, t he out look
em braced since Maast richt and em bodied in t he set t ing- up of t he t hird pillar appears t o
rem ain predom inant in t he pract ices of st rat egy- and policy- m aking linked t o t he issue of
int ernal securit y in t he EU. Th is sh ou ld not be t a k e n a s a for m of r e lu ct a n ce e ffe ct
ch a nge , bu t r a t h e r a s a n in ca pa cit y t o a lt e r cou r se s of a ct ion pr e viou sly a gr e e d
u pon , ba se d on t h e difficult y t o fin d a n a gr e e m e n t on n e w or ie nt a t ion s.
1.2.3.
Conclusion - The I SS and t he post - Lisbon AFSJ st rat egic environm ent : The lack of
art iculat ion bet ween securit y and freedom
The observat ions present ed so far suggest t hat a key issue wit h regard t o t he st rat egic
obj ect ives and guidelines on EU int ernal securit y in t he post - Lisbon cont ext is t he
art iculat ion bet ween securit y, freedom and j ust ice. This is hardly a novel issue, but it does
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raise a num ber of quest ions.
Unt il t he ent ry int o force of t he Lisbon Treat y, t he pillar st ruct ure of t he EU was held
responsible for t he not iceable discrepancies bet ween t he different com ponent s of t he
AFSJ. The exist ence of t he t hird pillar was used as a j ust ificat ion for t he isolat ion of
int ernal securit y policies from parliam ent ary and j udicial checks and balances. Argum ent s
following from t his logic included t he non- binding nat ure of t he Chart er of Fundam ent al
Right s, which was supposed t o deprive fundam ent al right s and freedom scrut iny of a legal
basis. This has not , however, prevent ed t he ECJ from adopt ing rulings on Third Pillar
m at t ers, est ablishing it s com pet ence and analysing t he legal effect s of Third Pillar act s. I n
im port ant cases such as Pupino, Segi or Advoocat en voor de Wereld, t he ECJ est ablished
t hat general principles of Com m unit y law, and part icularly Art icle 6( 2) TEU which m akes
explicit reference t o t he prot ect ion of hum an right s, applied t o Third Pillar act s. 49 I n t he
case of count er- t errorist policies, for exam ple, t he Court of First I nst ance in Luxem bourg
ruled in a landm ark decision of 12 Decem ber 2006 t hat t he inscript ion by t he Council of
an organisat ion on t he EU’s ‘t error list ’ violat ed t he right t o a fair hearing and t o effect ive
j udicial prot ect ion, am ong ot hers. 50
Th e e x a m in a t ion of t h e I SS a nd I SS in Act ion com m u n ica t ion , h ow e ve r , se e m s t o
su gge st t ha t t he se le ga l ch a lle nge s ha ve not sign ifica n t ly infle ct e d t he de gr e e t o
w h ich fu nda m e n t a l fr e e dom s a n d r igh t s a r e t a k e n in t o a ccou n t in in t e r n a l
se cu r it y a ct ivit ie s, a n d t ha t t h e colla pse of t he t h ir d pilla r h a s not be e n
t r a n scr ibe d in t o policy. Such a developm ent cannot be expect ed t o happen overnight ,
clearly, and t his is why t he Lisbon Treat y est ablishes a t ransit ion period for adapt at ion
unt il 2014. The problem here is t hat t he abovem ent ioned st rat egies are forward- looking
docum ent s which purport t o define fut ure, m edium - t o long- t erm priorit ies. No concret e
st eps are envisaged t o enforce t he disappearance of t he pillars and t he requirem ent s
st em m ing from t he fact t hat t he EU consist s of an area of freedom and j ust ice as well as
of securit y. I t se e m s, r a t h e r , t ha t t he Eu r ope a n se cu r it y m ode l a dvoca t e d in t he
I SS a nd t h e I SS in Act ion com m u nica t ion suppor t s a n a ll- e n com pa ssing
de fin it ion of in t e r na l se cu r it y a n d a r e st r ict ive de fin it ion of t h e a r t icu la t ion
be t w e e n se cu r it y, fr e e dom a n d j u st ice , w h e r e se cu r it y st a n ds a s t h e m a in
pr ior it y. This echoes largely sim ilar findings underlined in recent report s on t he EU I SS. 51
The persist ence in all but nam e of t he t hird pillar can be illust rat ed in various ways. The
t rend has been sust ained, for exam ple, by t he rush t o adopt key init iat ives before t he
ent ry int o force of t he Lisbon Treat y. A case in point , here, is t he EUROPOL decision. The
lack of art iculat ion bet ween st rat egic docum ent s adopt ed aft er Lisbon is anot her inst ance.
The EDPS m ade t his point in a recent opinion on t he I SS in Act ion com m unicat ion, issuing
a call for “ a com prehensive and int egrat ed approach at EU level [ …] I n m ore general
t erm s, t his approach of ‘linking t he st rat egies’ if t aken on board in t he fut ure act ions
would show t hat t here is a vision at EU level when it com es t o EU st rat egies and, t hat
t hese st rat egies, and t he recent ly adopt ed Com m unicat ions which elaborat e on t hem , are
closely int erlinked” ( p. 5) . The next chapt er will show how t he t rend is also sust ained in
pract ice, t hrough t he act ivit ies of t he different act ors involved in EU int ernal securit y.
To wrap up t he exam inat ion of EU st rat egy- m aking act ivit ies in int ernal securit y following
t he ent ry int o force of t he Lisbon Treat y, it is im port ant t o point out t hat t he
49
See for an overview S. Peers ( 2007) , “ Salvat ion out of t he Church: Judicial Prot ect ion in t he Third
Pillar aft er t he Pupino and Segi j udgem ent s” , Com m on Market Law Review, Vol. 44, pp. 883- 929.
50
CFI , T- 228/ 02, Organisat ion des Modj hahedin du people d’I ran v. Council of t he European Union,
12.12.2006. On fundam ent al right s im plicat ions of t he EU’s count er- t errorism st rat egy, see F. Geyer
( 2007) , “ Fruit of t he Poisonous Tree: Mem ber St at es’ I ndirect Use of Ext raordinary Rendit ion and
t he EU Count er- Terrorism St rat egy” , Working Docum ent No. 263, CEPS, Brussels.
51
M. Busuioc and D. Curt in ( 2011) , “ The EU I nt ernal Securit y St rat egy, t he EU Policy Cycle and t he
Role of ( AFSJ) Agencies. Prom ise, Perils and Pre- requisit es” , PE 453.185, European Parliam ent ,
Brussels ; E. Guild and S. Carrera ( 2011) , “ Towards an I nt ernal ( I n) securit y St rat egy for t he EU?” ,
CEPS, Brussels.
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considerat ions proposed above involve m ore t han t echnical issues of consist ence and
coherence am ong policy init iat ives. They t ouch upon t he overall funct ioning of t he EU
inst it ut ional syst em , first ly. The perpet uat ion of t hird pillar pract ices prevent s t he
est ablishm ent of t he full scope of checks and balances available in ot her policy dom ains.
The absence of specific provisions regarding t he involvem ent of t he European Parliam ent
in int ernal securit y policy- m aking is t he m ost st riking feat ure of t his t rend. I t also raises
quest ions as t o t he possibilit ies available t o review and possibly lim it or refram e EU
act ivit ies in t his area, if t he only available crit erion of assessm ent is of a wide and allencom passing not ion of int ernal securit y.
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2 . ACTORS AN D AGEN CI ES OF EU I N TERN AL SECURI TY:
STATE OF PLAY AN D CURREN T TRAN SFORM ATI ON S
KEY FI N D I N GS
The ext ent t o which t he I SS prom ot es a policy process ensuring t he proper
funct ioning of t he EU syst em of checks and balances and guarant eeing dem ocrat ic
account abilit y is not self- evident . The analysis of t he work m et hodology adopt ed by
COSI highlight s a lack of m onit oring arrangem ent involving t he European
Parliam ent . Addit ionally, COSI ’s m et hodology does not clearly lay down provisions
for independent or ext ernal evaluat ions of t he inform at ion and analyses leading t o
t he developm ent of int ernal securit y policies.
Moreover, and despit e t he com m it m ent s laid out in t he St ockholm Program m e in
t his respect , bodies in charge of freedom s and right s ( such as t he FRA, t he EDPS,
t he Art icle 29 Working Part y) are not syst em at ically included in int ernal securit y
act ivit ies, in part icular in COSI ’s act ivit ies.
The review of t he current players in t he field of securit y indeed highlight s t hat
EUROPOL and FRONTEX have benefit ed t he m ost from t he orient at ions
encapsulat ed in t he I SS. These t wo agencies appear t o be gaining an increasingly
cent ral role in t he collect ion, analysis and processing of inform at ion, and in t he
field of risk analysis and t hreat assessm ent .
The t wo ot her m ain JHA agencies, CEPOL and EUROJUST appear in a m uch weaker
posit ion. Furt herm ore, som e EU agencies ( such as t he CTC, OLAF, and Sit Cen) are
not so clear in t he cont ext out lined by t he I SS.
There are grounds t o prom ot e furt her t he inclusion of bodies such as t he FRA, t he
EDPS, t he Art icle 29 Working Part y or t he European Om budsm an. Along
‘t radit ional’ bodies in t he European int ernal securit y landscape, EU freedom s
agencies now also have a voice in t he issues associat ed wit h t he I SS.
This chapt er invest igat es t he current st at e of play and t ransform at ion of t he EU int ernal
securit y landscape and t he relat ions bet ween it s act ors, nam ely t he EU agencies, bodies
and services in charge of int ernal securit y. W h a t h a s be e n t he im pa ct of t h e e n t r y
in t o for ce of t h e Lisbon Tr e a t y a n d t he a dopt ion of t he EU I n t e r na l Se cu r it y
St r a t e gy? To provide an order of com parison, Figure 5 in t he Annex out lines t he EU
int ernal securit y landscape before t he ent ry int o force of t he Lisbon Treat y.
The quest ion of whet her t he relat ions bet ween, and t he act ivit ies of ot her agencies,
bodies and services in t he field of EU int ernal securit y have been influenced by t he ent ry
int o force of Lisbon and t he adopt ion of t he EU I SS is cent ral. I f t he exam inat ion of recent
st rat egy- m aking act ivit ies relat ed t o t he AFSJ suggest s t hat t he collapse of t he pillar
syst em has not been fully reflect ed, is it possible t o reach sim ilar conclusions when
looking at t he st at e of play in t he current EU int ernal securit y landscape? I n t his respect ,
it is im port ant t o em bed t he analysis of t he working st ruct ures, agencies, bodies and
services dealing wit h EU int ernal securit y wit hin an exam inat ion of t he overall int erinst it ut ional cont ext in which t hey operat e. The current em phasis on coordinat ion and
cooperat ion as t he key driving concept s of EU int ernal securit y policies lim it s t he degree t o
which cent ralisat ion at EU level can occur. By looking at t he relat ions bet ween agencies,
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bodies and services, however, it would seem possible t o ident ify t he various poles around
which t hese net works of relat ions are organised, and t o ident ify t he m ost predom inant .
The following pages survey t he t ransform at ions t hat occurred in t he European
Com m ission and t he Council ( wit h a focus on t he St anding Com m it t ee on I nt ernal Securit y
– COSI ) . I t t hen reviews t he m ain EU agencies involved in t he EU’s int ernal securit y
policies, st art ing wit h t he t wo agencies t hat appear t o have benefit ed t he m ost from t he
I SS, EUROPOL and FRONTEX. CEPOL and EUROJUST are t hen exam ined, as well as t he
ot her bodies in t he field t hat have been less addressed in t he I SS, such as t he Count ert errorism Coordinat or, OLAF and Sit Cen. The sect ion finally gives an account and an
assessm ent of t he working bet ween t hese agencies, bodies and services.
2 .1 .
Th e Com m ission : t h e t r a nsfor m a t ion of D G JLS
The t ransform at ions experienced by t he European Com m ission services in charge of t he
AFSJ, which saw t he split t ing of t he form er Direct orat e- General for Just ice, Freedom and
Securit y ( DG JLS) int o DG Hom e and DG Just ice wit h effect from 1 July 2010, raises in
t his regard t he quest ion of change am ong t he ot her agencies, bodies and services
involved in t he AFSJ. Th e r e sha pin g of t h e D ir e ct or a t e Ge n e r a l for Ju st ice , Fr e e dom
a n d Se cu r it y is a dir e ct ou t com e of t h e Lisbon Tr e a t y a nd ca n be se e n a s a
posit ive sign in t h e e volu t ion of t h e Eu r ope a n in t e r n a l se cu r it y la n dsca pe . I t is
t rue t hat t he division does not result in great changes of personnel and t herefore could be
seen as j ust an int ernal reshuffle. As m at t er of fact , t he previous DG JLS st aff has been
split alm ost equally bet ween t he t wo new ent it ies. They st ill share cent ral services
including hum an resources, I T, budget and audit ing cont rols ( principle of a shared
resources Direct orat e) .
However, t he split t ing of DG JLS, t oget her wit h t he creat ion of t wo separat e com m issioner
port folios, purport edly reflect s an effort on t he European Com m ission’s side t o t ake int o
account t he new legal and inst it ut ional environm ent deriving from t he ent ry int o force of
t he Lisbon Treat y and t he accrued visibilit y of issues of fundam ent al freedom s and right s
following t he t ransform at ion of t he Chart er of Fundam ent al Right s int o a legally binding
t ext . The division of DG JLS also reflect s t he division of work in t he cent ral adm inist rat ions
of m ost EU Mem ber St at es, where responsibilit y for int ernal affairs and j ust ice is
com m only split bet ween different m inist ries as a consequence of t he well- est ablished
principle of separat ion of powers. From now on, DG Just ice is in charge of civil and
crim inal j ust ice, dat a prot ect ion, fundam ent al right s and cit izenship and, since January
2011, equalit y, while DG Hom e is responsible for ot her m aj or policy areas, such as
t errorism , organised crim e, cybercrim e, im m igrat ion, asylum policy and border securit y.
This division int o t wo separat e port folios is t he result of long and st rong discussions inside
and out side DG JLS on how t he work undert aken m ight have been t oo m uch focused on
securit y and im m igrat ion at t he expense of j ust ice. One m aj or elem ent in t hese debat es
has been t hat t he st ruct ure of t he direct orat e was m aybe not conducive t o handling
j ust ice issues appropriat ely and in t he way t hat t hey are dealt wit h by m ost m em ber
st at es governm ent s. I t was felt t here was a need for a split of t he DG and of t he t asks
falling wit hin it s rem it in order t o avoid any pot ent ial conflict s of int erest bet ween j ust ice
and securit y issues. The key argum ent developed has been t hat separat ion of powers
should be a European st andard in order t o im prove t he checks and balance of any policy
and t o prevent any pot ent ial serious j eopardising of fundam ent al right s. On t he ot her side
of t he debat e, any split of t he direct orat e was seen as a problem at ic m ove because t here
was a need t o keep securit y, j ust ice and m igrat ion under t he sam e roof in order t o
increase t he efficiency in t he responses t o t hese challenges.
This t ension has long- st anding root s. I t reflect s t he int er- inst it ut ional disagreem ent s t hat
followed from t he int roduct ion of t he split bet ween t he First and Third Pillar in t he Treat y
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of Maast richt and t he t ensions and com prom ises t hat inform ed t he est ablishm ent of Tit le
I V EC in t he Treat y of Am st erdam . I t also reflect s t he difficult hist ory of DG JHA, lat er DG
JLS, which was est ablished aft er t he appoint m ent of t he college of Com m issioners
presided by Rom ano Prodi, by bringing t oget her officials from t he JHA ‘t ask force’
originally creat ed in 1993 wit hin t he Com m ission Secret ariat and officials who had
previously been working on freedom of m ovem ent issues wit hin t he services dedicat ed t o
t he int ernal m arket . The idea of a division of t he DG has grown st eadily since t hen, while
t he area of freedom , securit y and j ust ice becam e increasingly cent ral in t he work of t he
European Com m ission and while t he direct orat e grew from one of t he sm allest t o one of
t he m ost im port ant . The not ion of m aint aining t he services in charge of j ust ice, freedom
and securit y wit hin t he sam e DG was reinforced following t he adopt ion of t he Hague
Program m e. As t he newly appoint ed Com m issioner for Just ice, Freedom and Securit y
Franco Frat t ini com m ent ed short ly aft er, “ The principles of Freedom and Securit y are
inext ricably linked. The sym m et ry am ong t hese concept s is in fact t he very basis of t he
creat ion of an Area of Just ice, Freedom and Securit y” . 52
The perspect ive of t he adopt ion of t he St ockholm Program m e and of t he ent ry int o force
of Lisbon, t oget her wit h t he apparent em phasis t hat t hese t wo developm ent s placed on
t he need t o st rengt hen t he right s and freedom s of European cit izens, 53 cont ribut ed t o
reshaping t his view. I n her opening rem arks during her hearing in front of t he European
Parliam ent ’s LI BE Com m it t ee, Viviane Reding argued for inst ance: “ I believe t hat during
t he past decade Europe’s policies have t oo oft en focused only on securit y and neglect ed
Just ice” 54 .
What are t he effect s of t he division? I t m ight be t oo soon t o reflect on t he achievem ent s
and short com ings of t he freshly split DGs. First of all and on t he recom m endat ion of
Com m ission President Jose Manuel Barroso, t he division of DG JLS has been accom panied
by several rot at ions of senior st aff ( under t he principle of m obilit y for senior m anagers)
and cont ribut ed t o an im port ant m odificat ion of t he port folios wit hin t he College of
com m issioners. The t wo new DGs, however, were kept on t he sam e prem ises. I n a
num ber of cases, such as t he t reat m ent of Rom a people, dat a prot ect ion or t he use of t he
European Arrest Warrant , t he creat ion of t wo separat e port folios and t wo dist inct
direct orat e generals has enabled a m ore pluralist ic debat e on m at t ers relat ed t o int ernal
securit y. The pract ical and logist ical evolut ion of t he split of t he DG, as well as pract ices of
cooperat ion bet ween t he t wo com m issioners cert ainly deserve full scrut iny in t he com ing
m ont hs and years. Such shift s in t he Com m ission’s ways of working are nonet heless
already sym bolically significant . While it is im port ant t o highlight t he cont inuit ies before
and aft er t he split t ing of t he DG JLS on AFSJ policies, t h is r e a lloca t ion in t e r m s of
sym bolic pow e r r e la t ion s give s som e e ffe ct ive gr oun ds t o t h e cla im s t ha t
fu nda m e n t a l r igh t s a r e a ce n t r a l pr e occu pa t ion of t he Lisbon Tr e a t y.
2 .2 .
Th e Cou n cil: Th e e st a blish m e n t of COSI a nd ch a n ge s t o t h e
w or k ing st r u ct u r e s
The m ain t ransform at ion experienced wit hin t he Council in t he field of int ernal securit y,
following t he ent ry int o force of t he Lisbon Treat y, has been t he est ablishm ent of t he
St anding Com m it t ee on Operat ional Cooperat ion on I nt ernal Securit y ( COSI ) . The
52
Franco Frat t ini, I nt ervent ion at a conference on The Hague Pr ogram m e: A Part nership for t he
European Renewal in t he Field of Freedom , Securit y and Just ice, organised by t he Cent re for
European Policy St udies, Brussels, 14 July 2005.
53
See t he Com m ission’s com m unicat ion of June 2009, “ Com m unicat ion on an area of freedom ,
securit y and j ust ice serving t he cit izens” , COM ( 2009) 262 final, Brussels, 10 June 2009.
54
Viviane Reding, “ Opening rem arks at t he European Parliam ent Hearing in t he Com m it t ee on Civil
Libert ies, Just ice and Hom e Affairs ( LI BE) ” , European Parliam ent Hearing, 11 January 2010.
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following sect ions provide elem ent s of background t o underst and t he creat ion of COSI ,
survey t he changes int roduced in t he Council working st ruct ures as a result , and exam ine
som e of t he t ransform at ions associat ed wit h t he proceedings of t his new Com m it t ee, wit h
part icular at t ent ion t o t he so- called EU ‘policy cycle’ in int ernal securit y ( Harm ony
proj ect ) .
2.2.1.
COSI : Background
2.2.1.1.
Art icle I I I - 261 of t he Const it ut ional Treat y
The concept of COSI was form ally int roduced in 2004 in t he Treat y est ablishing a
Const it ut ion for Europe. Art icle I I I - 261 est ablishes t hat “ a st anding com m it t ee shall be set
up wit hin t he Council in order t o ensure t hat operat ional cooperat ion on int ernal securit y
is prom ot ed and st rengt hened wit hin t he Union” wit h t he possible involvem ent of Union
bodies, offices and agencies, and keeping t he European Parliam ent and nat ional
Parliam ent s inform ed of t he proceedings. I t “ shall facilit at e coordinat ion of t he act ion of
Mem ber St at es’ com pet ent aut horit ies” , wit hout prej udice t o t he disposit ions cont ained in
Art icle I I I - 344 on t he rem it of COREPER.
2.2.1.2.
The Lisbon Treat y and Council Decision 2010/ 131/ EU
The Lisbon Treat y int roduced a num ber of changes in t he provisions concerning j ust ice
and hom e affairs and t he organisat ion of policy- and decision- m aking in t his dom ain.
Art icle 71 TFEU ( ex Art icle 36 TEU) est ablishes t he St anding Com m it t ee on I nt ernal
Securit y on t he m odel of Art icle I I I - 261 of t he Const it ut ional Treat y. The replacem ent of
Art icle 36 TEU by Art icle 71 TFEU deprives t he form er Com it é de l’Art icle Trent e- Six
( Art icle 36 Com m it t ee, CATS) of a Treat y legal basis. I t is flanked by Art icle 72, which
specifies t hat t he disposit ions cont ained in Tit le V TFEU “ shall not affect t he exercise of t he
responsibilit ies incum bent upon Mem ber St at es wit h regard t o t he m aint enance of law and
order and t he safeguarding of int ernal securit y” and Art icle 73 TFEU which est ablishes t hat
Mem ber St at es rem ain solely com pet ent for m at t ers of nat ional securit y.
On 25 February 2010, t he Council adopt ed Decision 2010/ 131/ EU on set t ing up t he
St anding Com m it t ee on operat ional cooperat ion in int ernal securit y. The rem it of COSI is:
o
To “ facilit at e and ensure effect ive operat ional cooperat ion and coordinat ion
under Tit le V of Part Three of t he Treat y, including in areas covered by police
and cust om s cooperat ion and by aut horit ies responsible for t he cont rol and
prot ect ion of ext ernal borders” ( Art icle 3( 1) ) . COSI ’s rem it also com prises
j udicial cooperat ion in crim inal m at t ers when relevant for operat ional
cooperat ion;
o
To “ evaluat e t he general direct ion and efficiency of operat ional cooperat ion”
( Art icle 3( 2) ) ; and
o
To assist t he Council wit h regard t o t he provisions of Art icle 222 TFEU ( t he
‘solidarit y clause’) .
Two areas are excluded from COSI ’s rem it : t he Com m it t ee is not com pet ent for
conduct ing operat ions ( Art icle 4( 1) ) and it is not t o part icipat e in t he preparat ion of
legislat ive act s ( Art icle 4( 2) ) . Council Decision 2010/ 131/ EU furt her confers upon COSI
t he responsibilit y t o “ help ensure consist ency” in t he act ivit ies of EUROJUST, EUROPOL,
FRONTEX and “ ot her relevant bodies” which m ay be invit ed t o at t end t he Com m it t ee’s
m eet ings “ as observers” ( Art icle 5) . Finally, Art icle 6( 2) est ablishes t hat t he Council “ shall
keep inform ed t he European Parliam ent and t he nat ional Parliam ent s of t he proceedings
of t he St anding Com m it t ee” .
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2.2.2.
Ongoing debat es and challenges
2.2.2.1.
Changes t o t he Council working st ruct ures in t he area of int ernal securit y aft er
Lisbon
The est ablishm ent of COSI and t he replacem ent of Art icle 36 TEU by Art icle 71 TFEU have
led t o a num ber of changes in t he Council’s working st ruct ures in t he area of int ernal
securit y. The replacem ent of Art icle 36 deprives t he Council of t he cent repiece in it s
decision- m aking procedure since t he ent ry int o force of t he Am st erdam Treat y, t he Art icle
36 Com m it t ee. The m ost not able changes in t he Council working st ruct ures are as follows
( see also Ta ble 1 a nd 2 in t he An n e x ) :
COSI t a k e s ove r t h e ope r a t iona l side of t h e m a t t e r s pr e viou sly discu sse d
in CATS a n d t h e St a n ding Com m it t e e on I m m igr a t ion , Fr on t ie r s a n d
Asylu m ( SCI FA) :
Regarding CATS: COREPER decided in Novem ber 2009 t hat t he Com m it t ee
would cont inue it s m eet ings unt il 1 January 2012, at which point it s ut ilit y
would be evaluat ed. I n t he m eant im e CATS is t o concent rat e on st rat egiclevel m at t ers where COSI is not able t o cont ribut e and on legislat ive work
( Docum ent 16070/ 09) .
Regarding SCI FA: SCI FA was init ially est ablished in March 1999 ( Docum ent
6166/ 99) for a five- year t ransit ional period. I t was ext ended by COREPER in
March 2004 for a furt her t wo years ( Docum ent 7440/ 04) and in March 2006
unt il a general review of t he Council’s JHA st ruct ures is undert aken
( Docum ent 7606/ 06) . I n Novem ber 2009, COREPER decided t hat SCI FA
would cont inue it s m eet ings unt il 1 January 2012.
A num ber of changes have also been undert aken at working part y level:
D iscon t in ua t ion of CI REFI , reflect ing t he progressive t akeover of t his
working part y’s t asks by FRONTEX. SCI FA will rem ain in charge of several
aspect s of CI REFI ’s rem it , including t he m anagem ent of t he net work of
I m m igrat ion Liaison Officers ( I LOs) .
Cr e a t ion of a sin gle st r u ct u r e in ch a r ge of Sch e n ge n m a t t e r s: The
Working Part y for Schengen m at t ers replaces t he working part ies previously
in charge of SI S ( SI RENE and SI S- TECH working part ies) , of Schengen
evaluat ion and t he Schengen acquis.
Cr e a t ion of a single st r u ct u r e for police coope r a t ion m a t t e r s: The
working part ies on police cooperat ion and on EUROPOL are m erged wit hin
t he new Law Enforcem ent Working Part y.
D iscon t in ua t ion of t h e M u lt idisciplina r y Gr ou p on Or ga n ise d Cr im e
( M D G) : The MDG has been relabelled Working Part y on General Mat t ers
and t akes over t he t asks of t he Working Part y on Collect ive Evaluat ion.
For m a lisa t ion of a d h oc st r u ct u r e s: This concerns t he JAI - RELEX group,
t he Ad hoc working part y on fundam ent al right s and cit izens’ right s, and t he
Ad hoc group on inform at ion exchange.
Thus t hree- fold handling of policy- m aking in t he field of int ernal securit y appears t o be
aim ed at sim plificat ion, efficiency and account abilit y. However, while som e m easures
appear t o bring about a clarificat ion and st ream lining of t he Council’s working st ruct ures
in t he field of int ernal securit y, a n um be r of issue s h a ve be e n le ft pe ndin g,
part icularly wit h regard t o CATS and SCI FA. CATS, first ly, has lost t he legal basis t hat
gave it bot h it s nam e and rem it . The division of work bet ween SCI FA and COSI , however,
is unclear insofar as SCI FA rem ains in charge of som e operat ional aspect s, such as
m at t ers concerning t he net works of im m igrat ion liaison officers t hat it t ook over from t he
now- defunct CI REFI . The crit eria t hat will inform COREPER’s evaluat ion regarding t he
fut ure of t hese t wo com m it t ees rem ains at t his st age undefined. W ou ld a pha sin g ou t of
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CATS a n d SCI FA e nt a il t he de fa ct o e x pa nsion of COSI ’s m a n da t e be yond it s
cu r r e n t ope r a t iona l r e m it a n d in t o m or e st r a t e gic m a t t e r s, in clu ding le gisla t ive
w or k ? I s t h e dist inct ion be t w e e n ope r a t ion a l m a t t e r s, on t h e on e h a nd, a nd
le gisla t ive m a t t e r s, on t h e ot h e r , so cle a n cut a s t o pr ovide a ppr opr ia t e
gu ide lin e s for t he w or k of COSI ? The quest ion is all t he m ore st ringent as t here
seem s t o be lit t le agreem ent am ong Mem ber St at e governm ent s on t he issue, wit h som e,
for exam ple t he Unit ed Kingdom , clearly expressing t heir int erest in prom ot ing ‘lean’
working st ruct ures in t he Council ( which would ent ail t he discont inuat ion of CATS and
SCI FA and t he expansion of COSI ’s m andat e) , while ot hers rem ain at t ached t o t he
cont inuat ion of t hese t wo groups. Furt herm ore, as det ailed below, t he role, m andat e and
working m et hods of COSI needs clarificat ion.
2.2.2.2.
A com m it t ee in search of a const it uency and priorit ies
COSI has been act ive for a year and a half, but it s const it uency rem ains unclear. The
init ial rat ionale was t hat COSI should be a m eet ing place for senior law enforcem ent
officials from t he Mem ber St at es. To t hat effect , COREPER foresaw t he int roduct ion of a
st at em ent on t he com posit ion of t he Com m it t ee in t he m inut es of t he Council m eet ing
adopt ing t he COSI Decision, est ablishing t hat it s m em bership would be ‘capit als- based’,
wit h Brussels- based support provided t hrough t he COSI support group ( Docum ent
5949/ 10) . Mem ber St at e represent at ives have not em braced t his orient at ion in a uniform
fashion. I n it s init ial m eet ings, COSI did bring t oget her a num ber of senior lawenforcem ent and Minist ry of I nt erior represent at ives from som e Mem ber St at es, including
direct or- level officials of securit y agencies ( e.g. t he UK’s Serious Organised Crim e Agency
- SOCA) and m inist erial cabinet st aff and advisors. Ot her delegat ions rem ained cont ent
wit h sending Brussels- based personnel. The sit uat ion has creat ed t ensions am ong Mem ber
St at e delegat ions, which has seen som e ( e.g. France) lim it ing t he seniorit y of t heir
represent at ives in t he Com m it t ee. This observat ion should support a nuanced evaluat ion
of COSI ’s claim ed undert akings and achievem ent s.
Fu r t he r m or e , a br ie f a na lysis of t h e w or k flow of COSI sin ce it s in ce pt ion
h igh ligh t s t h e fa ct t h a t t h e n e w Com m it t e e ’s pr ior it ie s r e m a in br oa d a nd
u n cle a r ly or ga n ise d a t t h is st a ge .
The first m eet ing of COSI t ook place in March 2010. A prelim inary assessm ent of priorit ies
was draft ed j oint ly by t he Spanish, Belgian and Hungarian Trio of Presidencies and t abled
in May 2010. The so- called M.A.D.R.I .D. report ( Main Assessm ent and Descript ion Report
for I nt ernal Debat e) is however a broad docum ent , ident ifying every issue from organised
crim e t o failed st at es t o civil prot ect ion as a possible concern for COSI .
The Com m it t ee’s first work program m e was st ruct ured by t he Belgian Presidency, draft ed
t oget her wit h t he upcom ing Hungarian Presidency, and adopt ed at COSI ’s fourt h m eet ing
in Sept em ber 2010 ( Council docum ent 13871/ 10 for out com e of proceedings, 13084/ 10
for t he work program m e) . The init ial 12- m ont h work program m e ( sum m arised and
cont rast ed wit h t he current 18- m ont h work program m e in Ta ble 3 in t h e An ne x ) can be
dist ribut ed bet ween t he following cat egories:
o
Organisat ional quest ions: These include t he EU policy cycle ( Harm ony
Proj ect , see below) , t he I nt ernal Securit y St rat egy, t he coordinat ion
m echanism for j oint operat ions, t he financing of operat ional cooperat ion
( I nt ernal Securit y Fund) , t he coordinat ion of work bet ween EU JHA
agencies, and t he int eract ions bet ween int ernal and ext ernal securit y.
o
Topical m at t ers: These include organised crim e, drugs and arm s t rafficking,
m easures against t he PKK organisat ion, t he cont rol of ext ernal borders and
m igrat ion cont rol as well as t he discussion of t he solidarit y clause
incorporat ed in t he Lisbon Treat y.
Based on t he new 18- m ont h work program m e of COSI , organisat ional issues are likely t o
rem ain a core set of issues for t he Com m it t ee, part icularly t he follow- up t o t he ‘EU policy
cycle’ in t he int ernal securit y proj ect , operat ion co- ordinat ion and co- ordinat ion bet ween
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EU agencies. The t opical m at t ers considered so far are m ost ly t he cont inuat ion of
previously adopt ed init iat ives. Wit h regard t o ext ernal border cont rol and m igrat ion
cont rol, for inst ance, t he m ain focus of COSI ’s work has been t he “ 29 m easures for
reinforcing t he prot ect ion of t he ext ernal borders and com bat ing illegal im m igrat ion” ,
which were adopt ed in t he JHA Council’s February 2010 Conclusions ( Council docum ent
113065/ 10) as a follow- up t o m easures such as t he European Pact on I m m igrat ion and
Asylum and t he Global Approach t o Migrat ion.
I t is by all m eans t oo early t o propose an assessm ent of COSI ’s priorit ies. One elem ent
t hat st ands out , however, is t hat t he Com m it t ee’s est ablishm ent is in t he pr oce ss of
r e de fin in g t h e or ga n isa t ion of t he cir cu la t ion a nd a sse ssm e n t of in for m a t ion
a bou t EU ope r a t iona l a ct ivit ie s in t h e fie ld of in t e r na l se cu r it y. A pat t ern seem s t o
be em erging, for inst ance, whereby t he EU JHA agencies are report ing syst em at ically t o
COSI regarding t heir operat ional act ivit ies. A recent exam ple of t his is t he j oint report
circulat ed by EUROJUST and EUROPOL t o t he Com m it t ee, where t he t wo agencies seek t o
dem onst rat e t he success of t heir cooperat ion and t he ‘added value’ t hat it can bring t o
operat ional act ivit ies in t he field of EU int ernal securit y ( Council docum ent 9387/ 1/ 11) .
The process is t wo- sided. On t he one hand, COSI ’s work on t he EU ‘policy cycle’ in int ernal
securit y has placed it in charge of a num ber of program m at ic act ivit ies such as devising
Operat ional Act ion Plans ( OAPs, see next point ) . On t he ot her, EU JHA agencies seek t o
prom ot e t heir own im age and way of working as an im port ant cont ribut ion t o int ernal
securit y policies. Hence in t he aforem ent ioned report , t he agencies invit e COSI “ t o
recom m end t hat t his kind of cooperat ion is included in t he Operat ional Act ion Plan for
each of t he EU priorit ies in t he fight against organised crim e” ( 9387/ 1/ 11, p. 2) . More
broadly, cooperat ion bet ween EU JHA agencies has been a focus of COSI act ivit ies since
it s incept ion, following t he request m ade t o t he form er by t he Swedish Presidency at t he
end of 2009 t o st rengt hen t heir j oint act ivit ies. COSI is t herefore current ly t he m ain
recipient of t he report s concerning t his cooperat ion and of t he recent ly draft ed ‘scorecard’
which evaluat es t he process ( see Council docum ent 5675/ 11 for t he lat est report , Council
docum ent 5676/ 1/ 11 for t he scorecard) .
2.2.2.3.
A com m it t ee in search of a work m et hodology: The Harm ony Proj ect and t he EU
policy cycle in int ernal securit y
One of t he early issues discussed wit hin COSI has been t he out com e of t he Harm ony
Proj ect , which sought t o develop furt her t he European Crim inal I nt elligence Model ( ECI M)
init ially considered in t he Hague Program m e. The est ablishm ent of such a m odel in
relat ion t o organised crim e has been st rongly support ed by som e Mem ber St at es,
part icularly t he Unit ed Kingdom , which has fully em braced ‘int elligence- led’ policing
t hrough SOCA, t he Net herlands and Belgium , which init iat ed and support ed Proj ect
Harm ony. The t hree abovem ent ioned count ries and EUROPOL form ed t he int ernat ional
st eering group of t he proj ect . Som e 95% of t he proj ect ’s funding has com e from t he
European Com m ission’s “ Prevent ion of and fight against organised crim e program m e” .
The final report of t he Harm ony Proj ect was t ransm it t ed t o COSI on 25 Oct ober 2010
( Council docum ent 14851/ 10) . The core of t he prescript ions issued by t he report rest on a
generic perspect ive on process m anagem ent ( see Figu r e 1 in t he Ann e x ) : an init iat ive is
developed on t he basis of t he analysis of available inform at ion, result ing in a decision
est ablishing a form al set t ing, which t hen leads t o im plem ent at ion and m onit oring. The
out com e of t he im plem ent at ion and m onit oring phase is finally evaluat ed, and t he
evaluat ion feeds direct ly int o t he developm ent and set t ing of a new init iat ive.
The applicat ion of t he Harm ony Proj ect m anagerial m odel t o EU int ernal securit y act ivit ies
envisages a four- year policy cycle, based on t he following opt ions:
o
EUROPOL should becom e t he forem ost body in charge of t hreat assessm ent
( policy developm ent st age) . The Harm ony report echoes fam iliar crit iques of
t he OCTA report , and suggest s several m odificat ions t o t he m et hodology ( or
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lack t hereof) used. COSI should serve as t he advisory board for
m et hodological m at t ers. A new OCTA report should be draft ed every four
years ( as opposed t o t he current t wo- year int erval, and t he previous annual
cycle before 2009) and an int erim t hreat assessm ent report should be
draft ed every t wo years t o updat e it . I t is recom m ended t hat TE- SAT be
m aint ained as a separat e ‘product ’, albeit changed int o a t hreat assessm ent
docum ent rat her t han a sit uat ional overview.
o
COSI should prepare t he polit ical decision- m aking and t he conclusions for
t he JHA Council t o adopt concerning t he priorit ies of t he cycle. This is
achieved t hrough t he elaborat ion of a Policy Advisory Docum ent ( PAD) . The
JHA Council would ult im at ely be in charge of t he final decision on t he
orient at ions of EU int ernal securit y act ivit ies. COSI should again be t asked
wit h st eering t he draft ing of m ult i- annual st rat egic plans ( MASPs)
corresponding t o each priorit y defined by t he Council, and wit h endorsing
t hem . COSI would am ong ot hers have t he com pet ence t o com m ission t he
relevant act ors for t his purpose, including t he European Com m ission and
t he EU JHA agencies.
o
I m plem ent at ion should be based on annual operat ional act ion plans ( OAPs)
draft ed under t he supervision of COSI , which appoint s t he lead EU agency
in cases where int eract ions bet ween EU and nat ional act ors are necessary.
OAPs are t hen incorporat ed int o t he work program m es of t he concerned
nat ional and European agencies, bodies and services.
o
Evaluat ion should t ake t he form of a t wo- fold process: a yearly evaluat ion of
t he OAPs, m ost ly based on quant it at ive indicat ors, and an overall evaluat ion
of t he four- year st rat egic guidelines wit h a st ronger qualit at ive com ponent .
COSI is t he recipient of evaluat ions in bot h cases, but t he overall evaluat ion
is t he only one t hat is forwarded t o t he JHA Council. This evaluat ion is t o be
conduct ed by t he Working Group on General Mat t ers ( t he form er Mult idisciplinary Group, MDG) . The result of t he evaluat ion is t hen t aken int o
account by EUROPOL in draft ing a new t hreat assessm ent .
I n Sept em ber 2010, t he decision was t aken by COSI t hat t he new approach would be
applied first ly t o serious organised crim e, on t he basis of a SOCTAs ( Serious and
Organised Crim e) report draft ed by EUROPOL, alt hough som e delegat ions ( I t aly)
considered t hat an EU policy cycle should be st art ed wit h regard t o t errorism ( Council
docum ent 12657/ 1/ 10, p. 6) . The m et hodology for t he SOCTAs would be developed by a
group of expert s host ed by EUROPOL ( who would also convene t he expert s in charge of
draft ing t he OAPs) , wit h COSI act ing as t he Advisory Board, while t he expert m eet ings for
draft ing t he MASPs would be convened by DG Hom e ( Council docum ent 13871/ 10) . These
elem ent s were draft ed int o t he Council conclusions, subm it t ed t o COREPER in Oct ober
2010 and subsequent ly adopt ed by t he JHA Council ( Council docum ent 14998/ 10) . At t he
t im e of writ ing, t he SOCTAs ‘cust om er requirem ent s’ are being discussed ( Council
docum ent 12983/ 11, not publicly available) and a first t em plat e for t he OAPs has been
produced ( Council docum ent 12587/ 1/ 11, not publicly available) . The Com m ission and
Council have nonet heless produced a Policy Advisory Docum ent t o be discussed by t he
JHA Council, on t he basis of EUROPOL’s 2011 OCTA report ( Council docum ent 9225/ 4/ 11) .
A possible expansion of t he m andat e of COSI , in t his cont ext , should be scrut inised
carefully, first ly due t o t he em phasis ( albeit not always sust ained in act s) on it s ‘capit alsbased’ const it uency. Such a developm ent could result in t he reinforcem ent of
int ergovernm ent al, ‘t hird- pillar like’ pract ices of decision- m aking in t he field of int ernal
securit y t o t he det rim ent of t he logic prom ot ed t hrough Lisbon of a collapse of t he pillar
st ruct ure and a convergence of decision- m aking procedures across EU policy dom ains. A
fu r t he r r e a son t o m on it or fu t u r e cha nge s t o t h e Coun cil w or k ing st r u ct u r e s in
r e la t ion t o COSI is t h e e x clusion of ope r a t ion a l coope r a t ion m a t t e r s fr om t h e
or din a r y le gisla t ive pr oce du r e e st a blishe d in Ar t icle 8 7 ( 3 ) TFEU. This provision
w e a k e n s t h e syst e m of ch e ck s a nd ba la nce s bet ween t he EU inst it ut ions, insofar as
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Parliam ent is only ‘consult ed’ as opposed t o ordinary circum st ances where it is on an
equal foot ing wit h t he Council.
2.2.2.4.
The EU ‘policy cycle’ in int ernal securit y m at t ers and t he role of t he EP
As point ed out above, t he organisat ion of t he policy cycle in int ernal securit y has been an
im port ant area of focus for COSI since it s incept ion. A recent st udy com m issioned by t he
LI BE Com m it t ee on t he int ernal securit y policy process and Proj ect Harm ony point s out , in
t his respect , a num ber of ‘perils’ in t he im plem ent at ion of such prescript ions. 55 This
includes t he lack of any m onit oring arrangem ent involving t he European Parliam ent .
Alt hough t he role of t he EP is lim it ed in decision- m aking on m at t ers of operat ional
cooperat ion due t o t he provisions cont ained in Art icle 87( 3) TFEU, t he envisaged policy
cycle t ouches upon areas where t he EP has a role as co- legislat or, and in any case where
it rem ains t he budget ary aut horit y.
Of concern, here, is t he fact t hat Proj ect Harm ony leaves very lit t le room for any form of
independent or ext ernal evaluat ion of t he inform at ion and analyses leading t o t he
developm ent of int ernal securit y policies. I t does not specify m echanism s t hrough which,
in accordance wit h Art icle 70 TFEU on im part ial evaluat ion of EU policies, Art icle 71 TFEU
on COSI and Art icle 6( 2) of t he COSI Decision, t he European Parliam ent and nat ional
Parliam ent s are kept ‘inform ed’, and how t heir com m ent s can be t aken on board. I n
Proj ect Harm ony’s ‘ideal sit uat ion’ indeed:
Policy developm ent is ensured t hrough evaluat ion, dat a collect ion and
analysis. A m arked em phasis is placed on t he reinforcem ent of EUROPOL’s
‘in- house’ expert ise.
Decision- m aking is prepared by COSI on t he basis of EUROPOL’s t hreat
assessm ent , and undert aken by t he JHA Council which “ rem ains t he
responsible polit ical body which decides upon t he priorit ies t o be t ackled,
based on t he policy advisory docum ent ” ( Proj ect Harm ony final report ,
14851/ 10, p. 58) .
I m plem ent at ion is ensured by relevant law enforcem ent aut horit ies at EU
and Mem ber St at e level. I t is again up t o t he JHA Council t o ‘t ask’ relevant
bodies for all non- law- enforcem ent m at t ers. Monit oring during t he
im plem ent at ion phase is ensured int ernally by each concerned agency or
body.
Evaluat ion com prises bot h yearly and m ult i- annual report ing. Yearly
evaluat ions can be conduct ed int ernally ( e.g. t he EUROPOL direct or report s
t o t he Office’s m anagem ent board) , whereas m ult i- annual evaluat ions
should be conduct ed independent ly. The Harm ony Proj ect report proposes
four opt ions for such independent evaluat ion: t he use of a sm all group of
Mem ber St at es, of a Support Unit wit h professional expert ise, of COSI or of
t he Com m ission. For bot h t ypes of evaluat ion, COSI is considered as t he
recept ion point : for yearly evaluat ions, it should be t he end point , while it
should act a clearing house for circulat ion t o t he JHA Council in t he case of
m ult i- annual evaluat ions.
One has t o keep in m ind, of course, t hat t he Harm ony Proj ect is current ly a set of
prescript ions and not an effect ive pract ice. I t s out com e should nonet heless be closely
m onit ored. W h ile t h e Pr oj e ct h a s be e n de sign e d w it h t h e pu r pose of r e a ffir m ing
t h e ne e d for sim plifica t ion a n d e fficie n cy of policy- m a k in g in t h e fie ld of in t e r na l
se cu r it y, so fa r it se e m s t ha t pa r lia m e n t a r y m on it or in g or scr u t in y ha s n ot be e n
con side r e d a s a k e y a spe ct of t h e policy cycle . The ‘policy cycle’ envisaged in t he
Harm ony Proj ect is a closed- circuit environm ent where input s from out side t he field of
law- enforcem ent are m arkedly lim it ed, wit h COSI as t he m ain clearing house for policy
developm ent , decision- m aking, policy im plem ent at ion and evaluat ion, and t he JHA Council
55
M. Busuioc and D. Curt in ( 2011) , op. cit .
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as t he ult im at e polit ical aut horit y. As such, one could quest ion h ow fa r t h e H a r m on y
Pr oj e ct w ou ld cont r ibu t e t o a m or e a ccou n t a ble a nd t r a n spa r e n t policy pr oce ss
in t h e fie ld of in t e r na l se cu r it y. While t he role of sound analysis in policy developm ent
and assessm ent is im port ant , t he provision of expert ise should be approached as a
cont radict ory process, which is t he only guarant ee of a properly evidence- based policym aking. I n addit ion, t he Harm ony ‘policy cycle’ does not place m uch em phasis on t he
reinforced syst em of checks and balances, int roduced by t he Lisbon Treat y, and t ends t o
overlook t he fact t hat t he AFSJ is sim ult aneously an area of freedom , securit y and j ust ice,
not one in which freedom , securit y and j ust ice are com part m ent alised policy fields.
A furt her preoccupat ion here is t he recom m endat ion issued by t he Harm ony Proj ect final
report t hat t he product ion of st rat egic docum ent s “ for crim inal phenom ena t hat have not
been ident ified by t he JHA Council as a priorit y” should be st opped and t hat “ [ m ] ult iannual program m es ( such as The Hague Program m e, t he St ockholm Program m e and
fut ure Program m es) should not ant icipat e priorit ies” ( Council docum ent 14851/ 10, p. 60) .
For all t heir short com ings, such st rat egy docum ent s serve a fundam ent al purpose, which
is t o e n su r e as m uch of a plu r a list ic de ba t e as possible about t he overall orient at ions
of t he AFSJ, including on securit y priorit ies. The e st a blishm e n t of pr ior it ie s in t his area
sh ou ld be a w e ll- infor m e d, e vide n ce - ba se d polit ica l pr oce ss rat her t han an expert
and law- enforcem ent - driven cycle only.
I n it s recent ly adopt ed report on organised crim e in t he European Union, 56 t he LI BE
Com m it t ee has endorsed “ t he Council conclusions of 8- 9 Novem ber 2010 on t he EU policy
cycle for organised crim e” , but called on “ t he Council t o revise t he decision and m ake
provision for Parliam ent ’s involvem ent in det erm ining priorit ies, discussing t he st rat egic
obj ect ives and assessing t he out com e of t he policy cycle” . I ndeed, t he JHA Council is not
t he sole body in charge of decision- m aking in t he field of int ernal securit y, and t he
European Parliam ent has a crucial role t o play in t he fut ure.
2.2.2.5.
Bodies in charge of fundam ent al freedom s and right s do not seem t o be fully
included in t he scope of COSI ’s act ivit ies
Am ong t he core EU JHA agencies and bodies, first ly, CEPOL and EUROJUST seem t o be
considered as com ing second t o EUROPOL and FRONTEX, which have so far benefit t ed t he
m ost from t he com m it t ee’s at t ent ion. Despit e t he com m it m ent s laid out in t he St ockholm
Program m e in t his respect , bodies in charge of fundam ent al freedom s and right s do not
seem t o be included in t he scope of COSI ’s act ivit ies. The EDPS, for one, has st ill t o
receive an invit at ion t o t he Com m it t ee’s m eet ings. One can of course quest ion why t he
sit uat ion should be ot herwise, given COSI ’s m andat e for operat ional m at t ers. However,
t wo point s can be m ade in t his respect :
56
o
First ly, bodies such as t he EDPS or t he FRA have a role t o play in
operat ional m at t ers. The case of t he 2009 Prior Not ificat ion Check
t ransm it t ed by FRONTEX t o t he EDPS on t he processing of personal dat a in
so- called ‘ret urn’ operat ions ( see 2.4. below) illust rat es t he dynam ics of
such an involvem ent . There are t hus grounds t o include agencies and
bodies in charge of fundam ent al freedom s and right s in t he planning of
operat ional priorit ies undert aken by COSI .
o
Secondly, COSI ’s rem it includes t he evaluat ion of operat ional cooperat ion
( Art icle 3( 2) of t he COSI Decision) . That t he St anding Com m it t ee gives
priorit y t o a law- enforcem ent evaluat ion of operat ional act ivit ies is
underst andable given it s m andat e. Less underst andable, however, is why
considerat ions of fundam ent al freedom s and right s should be excluded from
such an evaluat ion. There is a m ism at ch here bet ween t he st rat egic
obj ect ives feat ured for inst ance in t he St ockholm Program m e and t heir
S. Alfano ( 2011) , op. cit .
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im plem ent at ion. Of furt her concern are t he consequences t hat such a
sit uat ion m ight have aft er 2014 when t he ECJ’s m andat e is fully ext ended
t o t he AFSJ. Over t he years, t he EU’s operat ional act ivit ies in t he field of
int ernal securit y have been m et wit h considerable and ext ensive crit icism
from t he point of view of fundam ent al freedom s and right s. FRONTEX, for
exam ple, has been challenged several t im es over it s role in t he breaching of
fundam ent al principles subscribed t o by Mem ber St at es, such as non
refoulem ent . The possibilit y of legal act ion over operat ional act ivit ies
coordinat ed by t he EU, and t he relat ed need t o ensure t hat fundam ent al
freedom s and right s are upheld in t hese act ivit ies const it ut e a solid basis for
involving bodies such as t he FRA or t he EDPS in t he evaluat ions conduct ed
by COSI .
2 .3 .
EUROPOL
2.3.1. Background on t he agency
The Maast richt Treat y ( 1992) : EUROPOL was est ablished, wit h a Convent ion
est ablished in 1995. This int ergovernm ent al European body is t hen defined as a
cent ral police office support ing Mem ber St at es in t he collect ion, analysis and
dissem inat ion of inform at ion and int elligence. EUROPOL is com posed of t wo m ain
services wit h dist inct obj ect ives: a service in charge of analysing and producing
dat abases for European bodies and nat ional Law enforcem ent represent at ives; a
liaison officers' service in charge of facilit at ing t he bilat eral and/ or m ult ilat eral
cooperat ion bet ween Mem ber St at es.
Since 1995, EUROPOL has known im port ant evolut ions wit h t he adopt ion in 2000,
2002 and 2003 of prot ocols am ending t he 1995 Convent ion. I n January 2006, t he
Aust rian presidency opened a debat e on t he evolut ion of t he EUROPOL inst it ut ional
fram ework. The adopt ion of t he Council Decision of 6 April 2009 int roduced
changes in t he legal basis of EUROPOL and has led t o an ext ension of EUROPOL’s
m andat e and t asks, and im provem ent s in dat a processing and prot ect ion as well as
in EUROPOL’s operat ional and adm inist rat ive capabilit ies in general. EUROPOL is
now financed from t he Com m unit y budget , and is subj ect t o t he Com m ission
Financial and St aff Regulat ions.
Art icle 88 of t he TFEU provides for a new legal regim e
EUROPOL shall be governed by ( a) regulat ion( s) , t o be
ordinary legislat ive procedure, i.e. by co- decision. The
indeed t he fact t hat t he Lisbon Tr e a t y give s t h e EP
a ct ivit ie s. 5 7
for EUROPOL. I t st ipulat es t hat
adopt ed in accordance wit h t he
current challenge for t he EP is
m or e con t r ol ove r EUROPOL
2.3.2. Ongoing debat es and challenges
The LI BE Com m it t ee is well aware of t he m aj or challenges concerning t he dem ocrat ic
account abilit y of EUROPOL. I n it s 2007 Report on t he proposal for a Council decision
est ablishing t he European Police Office Following t he ext ension of EUROPOL’s operat ional
powers, t he proposed im provem ent s and am endm ent s already dem onst rat ed t he EP
concerns in t he areas of dat a prot ect ion ( t he collect ion, st orage, processing, analysis and
exchange of inform at ion and int elligence) and dem ocrat ic cont rol. A syst em at ic use of t he
European Dat a- Prot ect ion Supervisor and t he Joint Supervisory Body was t hen called. As
st at ed in t he report , “ EUROPOL's increasing role in t he fight against organised crim e and
t errorism should be carried on in a way t hat will guarant ee t ransparency and dem ocrat ic
57
Bigo D., and al., The field
Conflit s/ L’Harm at t an, 2007.
of
t he EU int ernal
securit y
agencies,
Paris:
Cult ures et
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cont rol. Only in t his way will t he result s of EUROPOL's act ivit ies be recognised by civil
societ y” .
The 2009 Decision ( EUROPOL’s founding act - Council Decision of 6 April 2009) opens t he
way for regular and form al exchanges bet ween t he EP and EUROPOL, giving t he EP t he
right t o request at any t im e t hat t he Presidency of t he Council, t he Chairperson of t he
Managem ent Board and t he Direct or appear before t he EP t o discuss m at t ers relat ing t o
EUROPOL. Furt herm ore, t he 2009 Decision includes provision concerning t he obligat ion for
t he Joint Supervisory Body t o forward it s act ivit y report s, which are drawn up at regular
int ervals, not only t o t he Council but also t o t he EP.
However, t he scope of t h e D e cision is ve r y va gu e a nd br oa d. Even if t he role of t he
EP is recognised ( cont rol of EUROPOL t hrough t he involvem ent of t he EP in t he adopt ion of
t he budget ; enhanced cont rol over EUROPOL by t he EP in order t o ensure t hat EUROPOL
rem ains fully account able and t ransparent ; possibilit ies for t he Presidency of t he Council,
t he Chairperson of t he Managem ent Board and t he EUROPOL Direct or t o appear before
t he European Parliam ent at it s request - Art 48) , t he m echanism s t hrough which such
provisions would be im plem ent ed rem ain undefined.
The 2011 Declarat ion of Brussels by t he Conference of t he Speakers of t he Parliam ent s of
t he European Union called for concret e m easures t o im prove dem ocrat ic oversight of t he
int elligence and securit y services in EU m em ber st at es and provided specific proposals for
im proving t he ‘dem ocrat ic’ account abilit y of Europol as t he first case st udy. 58 One such
m easure is t he launch of a net work of European expert ise relat ing t o t he m onit oring of
int elligence services ( ENNI R – European Net work of Nat ional I nt elligence Reviewers)
whose prim ary obj ect ive would be t o im prove t he dem ocrat ic cont rol of t he funct ioning of
t he securit y and int elligence services.
Furt herm ore, som e concerns raised from t he EP during t he preparat ory work of t he 2009
Decision have been sim ply ruled out by t he Council in t he 2009 Decision, specifically in
t h e a r e a s of de m ocr a t ic a ccoun t a bilit y a n d gove r na n ce . 5 9
2.3.3.
The proposit ion on int er- parliam ent ary com m it t ee has been ruled out . Even if t he
t ransm ission of t he annual draft planning docum ent s t o t he EP was accept ed for
inform at ion purposes, t he idea of an obligat ion t o appear before int erparliam ent ary com m it t ee was not t aken up by t he Council, and was t herefore not
reflect ed in t he t ext of t he Decision.
The I nvolvem ent of t he EP in t he procedures for appoint ing t he Direct or has not
been considered.
The idea of direct ly involving t he EP in dat a prot ect ion processes was not followed
up.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y and t he
I SS
I n t he cont ext of EUROPOL new m andat e ( from OC t o all serious crim es) and legal basis,
EUROPOL new leadership ( wit h a new Direct or, Rob Wainwright , form er Chief of t he
I nt ernat ional Depart m ent of t he UK Serious and Organised Crim e Agency - SOCA) is
seeking act ively for a renewed legit im acy. One of t he const ant argum ent s put forward by
EUROPOL represent at ives is t he following: EUROPOL has unique capabilit ies but unrealised
58
Conference of t he Speakers of t he Parliam ent s of t he Eur opean Union ( 2011) , Pr esidency
Conclusions, Brussels, 4- 5 April 2011, p. 7.
59
See The Com m unicat ion from t he Com m ission t o t he European Parliam ent and t he Council on t he
procedur es for t he scrut iny of EUROPOL’s act ivit ies by t he European Parliam ent , t oget her wit h
nat ional Parliam ent s ( Brussels, 17.12.2010, COM( 2010) 776 final)
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pot ent ial. I n t he 2010- 2014 EUROPOL new st rat egy, EUROPOL has set up priorit ies in t he
following areas:
-
The im provem ent of it s support capacit ies for law enforcem ent operat ions;
The delivery of Threat Assessm ent ;
Enlargem ent of EUROPOL fields of expert ise
Each of t hese priorit ies m ust be considered and underlie specific concerns t hat require
furt her at t ent ion from t he LI BE Com m it t ee.
2.3.3.1.
The im provem ent of it s support capacit ies for law enforcem ent operat ions
As EUROPOL does not have execut ive powers t o conduct invest igat ions, t he recognit ion of
it s capabilit ies in t erm of support for Mem ber St at es ( MS) operat ions is crit ical. EUROPOL
has developed in t he field a wide range of com m unicat ion t ools, such as ‘road show’ and
t he issuing of prom ot ional ‘cat alogue’ in order t o increase awareness on it s t ools and
inst rum ent s. The Road shows consist of sem inars organised in EU MS and gat hering
m em bers of Nat ional represent at ives of Police, Cust om s, Finance, and m em bers of
EUROPOL Liaison Bureau and of t he EUROPOL Nat ional Unit . They aim at prom ot ing
EUROPOL capacit ies and enhancing cooperat ion and inform at ion exchange bet ween Law
Enforcem ent Agencies at regional, nat ional and European levels. Such road shows are
organised t hroughout t he year. The ‘Cat alogue of Product s and Services’ provides an
overview of product s and services delivered by EUROPOL t o nat ional law enforcem ent
agencies. The brochure gives a general overview on t he st rat egic product s and services
( Analysis Capabilit ies such as OCTAs and T- SATs) and on t he operat ional product s
( Analysis Work Files, Joint I nvest igat ion Team s - JI T, inform at ion syst em s – SI ENA, EI S - ,
Liaison Bureaux Net work, EUROPOL Plat form s for Expert s, et c.) . As an addit ion, t he
success st ories of operat ions in which EUROPOL was involved are duly report ed in t he
annual review ( under int riguing operat ions codenam es, such as ‘Gasoline’, ‘ Androm eda’,
‘Black leaves’, ‘Garnet ’, ‘Typhon’, ‘Gom orrah’, ‘Rescue’, et c.) . Such com m unicat ion and
advert isem ent effort s are accom panied by various dem ands in t erm s of operat ional
capacit ies from EUROPOL st aff.
Am ong t hem are t he st rengt hening of t he inform at ion m anagem ent capabilit ies, by
ensuring full int eroperabilit y of EUROPOL’s syst em s and im proving int eroperabilit y
bet ween t he dat a processing syst em s of EUROPOL, MS, I nt erpol and EU- relat ed bodies.
This claim has been a const ant obj ect of debat es, and has been one of t he m ain concerns
of t he LI BE Com m it t ee. EUROPOL represent at ives are indeed very keen on repeat ing t hat
t he safeguards are st rong and t hat t he dat a prot ect ion syst em is at it s best , not ably
t hrough t he use of t he 4by4 syst em 60 t o evaluat e t he reliabilit y of t he inform at ion given,
t he full respect of t he Joint Supervisory Body guidelines and of t he 13 dat a prot ect ion
principles, t he independence of t he Dat a Prot ect ion Officers ( DPO) guarant eed, no
unlawful dat a ret ent ion, et c.
However, in at least four areas, furt her and fut ure developm ent s will require and deserve
full scrut iny from t he EP:
-
Even if t he EUROPOL dat a prot ect ion fram ework seem s t o offer a pragm at ic and
effect ive solut ion t o an increased possibilit y of dat a access against m ore det ailed
dat a prot ect ion provisions, t h e m oda lit ie s t h r ough w hich a cce ss t o da t a ba se
60
I nform at ion are divided in 4 cat egories: 1) inform at ion w hose accuracy is not in doubt ; 2)
inform at ion known personally t o t he source but not known personally t o t he official passing it on; 3)
inform at ion not known personally t o t he source but corrobor at ed by ot her inform at ion already
recorded; 4) inform at ion which is not known personally t o t he source and cannot be corroborat ed.
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a r e gr a nt e d, e x cha n ge d a nd st or e d sh ou ld be fir m ly m on it or e d a n d
gua r a nt e e d.
As present ed in t he ‘EU inform at ion m anagem ent inst rum ent s’ docum ent prepared by t he
Com m ission present ing a sum m ary of inst rum ent s regulat ing t he collect ion, st orage or
cross- border exchange of personal dat a for t he purpose of law enforcem ent or m igrat ion
m anagem ent , t he EUROPOL I nform at ion Syst em ( EI S) cont ains personal dat a, including
biom et ric ident ifiers, convict ions, and organised crim e links, of persons suspect ed of crim e
falling under EUROPOL’s m andat e. Analysis Work Files ( AWF) cont ain any personal dat a of
relevance. EI S can be accessed by EUROPOL Nat ional Unit s, liaison officers, EUROPOL
st aff and t he direct or. AWF access is grant ed t o liaison officers. Personal dat a m ay be
exchanged wit h t hird count ries t hat have agreem ent s wit h EUROPOL. Specific Dat a
prot ect ion rules have been est ablished by t he EUROPOL Decision and Council Fram ework
Decision 2008/ 977/ JHA, CoE Convent ion 108, CoE Addit ional Prot ocol 181, CoE Police
Recom m endat ion R ( 87) 15 and Regulat ion ( EC) 45/ 2001. As an addit ion, a review
m echanism ( a Joint Supervisory Body) m onit ors EUROPOL’s processing of personal dat a
and t he t ransm ission of such dat a t o ot her part ies. I t subm it s periodical report s t o t he EP
and t he Council. EUROPOL also subm it s an annual report on it s act ivit ies t o t he Council for
endorsem ent and t o t he EP for inform at ion.
Th e a de qu a cy of t h e r e vie w m e cha n ism ( JSB a n d EUROPOL a nn ua l r e por t s)
sh ou ld be con st a n t ly a sse sse d a n d u pda t e d. Fu r t h e r m or e , t h e spir it of t h e Lisbon
Tr e a t y a nd t h e ‘de pilla r isa t ion’ pr oce ss sh ou ld h a ve le d t o t h e su ppr e ssion of
Su pe r visor y Bodie s pe r a ge n cie s, a s w e ll a s a com m on su pe r vision syst e m u n de r
t h e ED PS. Su pe r visor y bodie s w it h in EUROJUST, EUROPOL sh ou ld be a t t h e ve r y
le a st in t e r con n e ct e d.
-
I n t he area of dat a exchanged, t he inform at ion exchange bet ween EUROPOL and
t hird part ies requires full at t ent ion.
The heat ed debat es and cont roversies on t he ‘SWI FT agreem ent ’ in t he cont ext of t he
Terrorist Finance Tracking Program m e ( TFTP) show how sensit ive t he issue of dat a
exchange is. EUROPOL has been at t he cent re of several cont roversies and has been
point ed by m any NGOs and civil right s charit ies. Furt herm ore, t h e EUROPOL’s
su pe r visor y body publish e d a r e por t on t h e im ple m e n t a t ion of t he EU- US TFTP
a gr e e m e n t in M a r ch 2 0 1 1 , u nde r lin in g se r iou s conce r ns a bout com plia nce of
EUROPOL w it h EU da t a pr ot e ct ion st a nda r ds. I n part icular, aut horisat ion of dat a
t ransfer seem s t o be given on t he basis of oral, unrecorded inform at ion. The role of t he EP
has been crucial on t hat m at t er. The Parliam ent refused t o give it s consent t o t he EU’s
int erim agreem ent on banking dat a t ransfers t o t he USA via t he SWI FT net work, am id
concerns for privacy, proport ionalit y and reciprocit y.
I n a docum ent addressed t o t he EP ( EUROPOL Act ivit ies in Relat ion t o t he TFTP
Agreem ent I nform at ion Not e) aft er t he publicat ion of t he JSB Report , EUROPOL explains
in lengt h on what grounds EUROPOL believes it has discharged it s responsibilit ies wit h
great care and t o a high professional st andard. The docum ent rem inds t hat t he EU review
t eam , Com m issioner Malm st röm , and t he EUROPOL Managem ent Board have all arrived at
t he sam e conclusion. The docum ent however concedes t hat furt her im provem ent s t o
EUROPOL’s act ivit ies are necessary in line wit h t he recom m endat ions of t he EU review
report and JSB I nspect ion Report and t hat t hese recom m endat ions are t he subj ect of high
priorit y at t ent ion by EUROPOL. A follow up on such declarat ions of int ent ion is needed. I f
Europol were t o be chosen as t he EU cent ral Terrorist Finance Tracking Syst em ( TFTS)
aut horit y, it would also deal wit h request s by dat a subj ect s for access, rect ificat ion and
blocking. 61 Thus, e n sur in g t h a t su ch pow e r s u nde r discu ssion ove r da t a is
61
European Com m ission ( 2011) , Com m unicat ion: A European t errorist finance t racking syst em :
available opt ions, Brussels, COM( 2011) 429 final
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e x e r cise d in a ll in a ccor da nce w it h it s e x ist ing le ga l fr a m e w or k a n d da t a
pr ot e ct ion pr ovision s a ppe a r s t o be cr it ica l.
-
I n t he area of dat a regulat ion, t he provision of EUROPOL Convent ion on t he
process of personal dat a deserves part icular at t ent ion.
The argum ent put forward by represent at ives of EUROPOL is invariably t he need t o have
special cat egories of dat a concerning not ably polit ical opinions, religious or philosophical
beliefs, on t he ground t hat t hey are relevant for count er t errorism act ivit ies. The LI BE
Com m it t ee m ust ensure t hat t he provision t hat special cat egories of dat a concerning racial
or et hnic origin, polit ical opinions, religious or philosophical beliefs, part y or t rade union
m em bership, sexual orient at ion or healt h sha ll n ot be pr oce sse d a nd sa ve d ( on ly)
w h e n a bsolu t e ly n e ce ssa r y a nd pr opor t iona t e for t h e pur pose of a spe cific ca se
a n d su bj e ct t o spe cific sa fe gu a r ds. The process of dat a and t he subsequent
‘t echnological’ challenged are det ailed furt her in t he sect ion 3.3.
2.3.3.2.
The delivery of Threat Assessm ent
The willingness of EUROPOL t o grow as a cent ral ‘inform at ion powerhouse’ in t he EU also
include building an inform at ion plat form capable of assessing t rends and risks, i.e.
indent ifying t he various t hreat s ( present and fut ure) affect ing t he EU. OCTAs and T- SATs
have hence becom e a proudly labelled ‘EUROPOL product ’.
As m ent ioned in t he ‘background’ sect ion, one of t he m aj or weaknesses of t he EU st rat egy
in t he field of OC and t errorism in t he last decade has been t he knowledge challenge. The
new m ission given t o EUROPOL analyst s - scanning t he environm ent for new
developm ent s in int ernal securit y t hreat s and sharing t he result s t hrough effect ive ‘early
warning syst em ’ arrangem ent s – m ust t herefore be accom panied by closer scrut iny.
En su r ing t h a t t he EU’ policy in t h e coun t e r - t e r r or ism a n d Or ga n ise d Cr im e a r e a is
a de qua t e ly e vide n ce - ba se d a n d su ppor t e d by t h e be st a va ila ble t h r e a t
a sse ssm e nt s t h u s r e m a in s a con st a n t ch a lle n ge . I n t hat dom ain, if t hreat
assessm ent s all com e from t he sam e group of specialised t eam s of professionals of
securit y discussing only am ong t hem , t he pat h dependency in t erm s of solut ion and
consequent ially t he lack of im aginat ion and alt ernat ive will be det rim ent al t o t he
knowledge.
2.3.3.3.
An enlargem ent of EUROPOL fields of expert ise in t he I SS cont ext
As cybercrim e has becom e a m aj or issue in EU agenda and in an I SS cont ext ( wit h t he
foreseen est ablishm ent of a cyber crim e cent re) , t h e possibilit ie s for EUROPOL t o h ost
a cybe r cr im e ce n t r e a r e sign ifica n t a nd a r e h ighly a dvoca t e d by EUROPOL
r e pr e se n t a t ive s. The recent cyber at t ack on t he Com m ission and Ext ernal Act ion Service
on t he eve of a sum m it in Brussels at t he end of March generat ed new debat es on t he
prot ect ion of infrast ruct ures. I n it s m em orandum subm it t ed t o t he House of Lords SubCom m it t ee dedicat ed t o t he EU I SS, EUROPOL argues t hat it already has t he capacit ies t o
host such a cent re, t hough it s EUROPOL’s High Tech Crim e Cent re ( HTCC) which
coordinat es operat ional act ivit ies serves as a com m unicat ion plat form and produces
st rat egic analysis. Hence, t he est ablishm ent wit hin exist ing st ruct ures of a cybercrim e
cent re, t hrough which Mem ber St at es and EU inst it ut ions will be able t o build operat ional
and analyt ical capacit y for invest igat ions and cooperat ion wit h int ernat ional part ners,
would avoid dispersion of invest igat ive and analyt ical capacit ies in t he fight against
cybercrim e.
I n t h is cla im e d posit ion ing, t h e pla ce a n d r ole of t h e Eu r ope a n N e t w or k a n d
Se cu r it y Age n cy ( EN I SA) n e e ds t o be a ddr e sse d. ENI SA’s fut ure role in t he I SS is
not very clear and requires furt her work, including t hrough a budget ary perspect ive. I n it s
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m em orandum subm it t ed t o t he House of Lords Sub- Com m it t ee dedicat ed t o t he EU I SS,
ENI SA defines it s cont ribut ion t o t he I SS by an applicat ion of proven risk m anagem ent
t echniques ( ident ificat ion of inform at ion securit y risks, global risk m anagem ent and risk
assessm ent , em erging t hreat s and dissem inat ion of good pract ices for risk Managem ent
and I T Cont ingency) . I n part icular, t he ENI SA Work Program m e 2011 includes effort s t o
enhance European cooperat ion t o generat e awareness about Net works and inform at ion
Securit y, dissem inat e securit y relevant inform at ion and t o assist Mem ber St at es in
coordinat ing t hese act ivit ies int ernat ionally. ENI SA, est ablished in 2004 and based in
Heraklion in Greece had a m andat e t hat was due t o expire in March 2012. The EP and t he
Council recent ly decide t o ext end ENI SA’s m andat e t o 13t h Sept em ber 2013, which will
allow t im e for debat e on how t o shape t he Agency t o m eet fut ure needs and challenges in
net work and inform at ion securit y. As highlight ed in a EP report dedicat ed t o t he role and
fut ure of ENI SA, 62 a possible ext ension of ENI SA’s m andat e is foreseen in t he area of
cybercrim e. I n his speech given at t he European parliam ent in May 2011, ENI SA’s Direct or
st at ed t he following: “ ENI SA acknowledges t he im port ance of t he fight against cybercrim e
as well as t he need for a st rong collaborat ion bet ween Com put er Em ergency Response
Team s ( CERTs) and law enforcem ent because we need t he CERTs in t he fight against
cyber- crim e. The im port ant role of ENI SA is t o provide an int erface bet ween Law
Enforcem ent and t he cyber securit y com m unit y” . 63 Thus, de ba t e s on t h e be t t e r pla ce
t o h ost t he cybe r cr im e ce n t r e sh ou ld cla r ify t h e t a sk s give n t o EUROPOL a n d
EN I SA, in or de r t o a void du plica t ion a n d bu dge t e x pe n se s.
Anot her field in which EUROPOL is invest ing is t raining, knowledge exchanges and law
enforcem ent expert ise. Art icle 5( 4) of t he EUROPOL Council Decision did invit e EUROPOL
t o assist Mem ber St at es t hrough support , advice and research in t he areas of t raining,
t echnical support , crim e prevent ion, t echnical and forensic m et hods and analysis, and
invest igat ive procedures. EUROPOL is since clearly invest ing effort s in pioneering new
t echniques t o prevent and com bat int ernat ional serious crim e and t errorism ,
st rengt hening t he posit ion of EUROPOL as a plat form for specialist areas, and providing
expert ise and qualit y t raining in key law enforcem ent t echniques. I n a con t e x t in w h ich
CEPOL is h igh ly cr it icize d a n d h a ve lost le git im a cy on t h e fu n ding gr ou nd, su ch
de ve lopm e nt s in EUROPOL ne e d t o be follow e d up a n d a sse sse d. I ndeed, CEPOL
has been given a reduced role in current int ernal securit y perspect ives.
2 .4 .
2.4.1.
2.4.1.1.
FRON TEX
Background on t he agency
From a European Border Guard t o t he est ablishm ent of FRONTEX ( Council
Regulat ion ( EC) No 2007/ 2004)
The st ory of t he est ablishm ent of FRONTEX is already well docum ent ed. 64 A key point t o
underst and t he current st at e of play on t he agency, however, is t he t ension t hat has lied
since t heir incept ion in discussions on t he creat ion of an EU body in charge of t he ext ernal
borders. Before FRONTEX was est ablished, t wo posit ions inform ed t hese discussions.
Som e Mem ber St at es and t he European Com m ission envisaged t he possibilit y t o est ablish
a body t hat would resem ble a European unit of border guards wit h a degree of operat ional
responsibilit ies. A feasibilit y st udy on t he set t ing up of a European border police was for
inst ance undert aken under t he auspices of t he I t alian Minist ry of I nt erior wit h t he support
62
J. Scot t Marcus et al. ( 2011) , “ The role of ENI SA in cont ribut ing t o a coherent and enhanced
st ruct ure of net work and inform at ion securit y in t he EU and int ernat ionally” , Brussels: European
Parliam ent , PE464.432.
63
U. Helm brecht ( 2011) , “ ENI SA t oday and in t he fut ure” , Com m it t ee on I ndust ry, Research and
Energy, Mini- Hearing on ENI SA, Brussels: European Parliam ent .
64
See for inst ance t he 2008 House of Lords report on t he issue. See also t he work of t he
CHALLENGE int egrat ed pr ogram m e researchers.
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of Germ any, France or Spain, and t abled in May 2002. Ot her Mem ber St at es, am ong
which Sweden or t he Unit ed Kingdom , opposed t he est ablishm ent of such a body, which
was seen as unnecessary from an organisat ional point of view and polit ically undesirable
as it would be suscept ible of challenging t he exclusive com pet ence of Mem ber St at e
aut horit ies regarding t he cont rol of t heir ext ernal borders. A m iddle ground solut ion was
found for som e t im e, com bining t he est ablishm ent of an Ext ernal Borders Pract it ioners
Com m on Unit wit hin t he fram ework of t he St anding Com m it t ee on I m m igrat ion, Front iers
and Asylum ( renam ed SCI FA+ for t he occasion) and t he est ablishm ent of several ad hoc
border cent res in Mem ber St at es volunt eering t o host t hem in t he course of 2002. The
syst em was however ult im at ely found lacking in a 2003 report from t he Greek presidency,
which led t o t he negot iat ion and adopt ion of Council Regulat ion ( EC) No 2007/ 2004.
The FRONTEX Regulat ion est ablishes an organisat ion t hat reflect s earlier cont roversies on
ext ernal border cont rol in t he EU. The agency is fram ed as a t echnical body charged wit h
operat ional coordinat ion and lacking any direct operat ional com pet ence wit h regard border
cont rol, which rem ains squarely wit hin t he rem it of Mem ber St at e aut horit ies. Alt hou gh it
w a s e st a blish e d a s a fir st pilla r body, in t h is r e ga r d, it a ppe a r s m u ch m or e a s a
t h ir d pilla r a ge n cy. I t coordinat es j oint operat ions, but t here is a significant degree of
uncert aint y as t o it s responsibilit y for t he problem s t hat m ight occur during such
operat ions and t he legal effect s of it s coordinat ing role. The agency is also an int elligence
body, t asked wit h collect ing inform at ion on developm ent s at t he ext ernal borders and
com piling risks assessm ent s. I t is, finally, a support body in t he cont ext of t he
organisat ion by Mem ber St at es of so- called Joint Ret urn Operat ions ( JROs) . This was one
of t he m ost cont ent ious aspect s of t he agency’s init ial rem it , which led t he European
Parliam ent in part icular t o voice concerns in it s opinion on t he proposed regulat ion t hat
FRONTEX would be t urned int o an ‘expulsion agency’.
2.4.1.2.
Rapid border int ervent ion t eam s: Regulat ion ( EC) No 863/ 2007
The first m odificat ion t o t he legal fram ework regulat ing t he act ivit ies of FRONTEX has
been t he adopt ion of Regulat ion ( EC) No 863/ 2007, which est ablishes Rapid border
int ervent ion t eam s ( RABI T) . RABI Ts are essent ially a pool of border guard officials ( t he
so- called ‘Rapid pool’) com m it t ed by part icipat ing Mem ber St at es for t he purpose of
providing rapid and lim it ed operat ional assist ance “ t o a request ing Mem ber St at e facing a
sit uat ion of urgent and except ional pressure, especially t he arrival at point s of t he
ext ernal borders of large num ber of t hird count ry nat ionals” ( Art icle 1 of RABI T
Regulat ion) . RABI T t eam s are not m eant t o be deployed aut onom ously or under t he
aut horit y of FRONTEX, but receive inst ruct ions from t he border guard aut horit ies of t he
request ing Mem ber St at e. The agency appoint s one of it s official as coordinat or of t he
deploym ent ( Art icle 5 of RABI T Regulat ion) . RABI T officers wear t heir own uniform s and
are aut horised t o carry weapons according t o t he host Mem ber St at e’s legislat ion, and can
use force under specific condit ions. RABI T officers can perform all t he t asks relat ed t o
border cont rol as defined in t he Schengen Borders Code ( Regulat ion ( EC) No 526/ 2006) ,
including border checks and border surveillance, t he st am ping of t ravel docum ent s, t he
int erviewing of undocum ent ed persons and t he consult at ion of dat abases.
Officers m ade available for RABI T deploym ent by Mem ber St at es current ly num ber
bet ween 500 and 600. The first deploym ent of RABI T t eam s last ed from 2 Novem ber 2010
unt il 3 March 2011, following a request from Greece, at t he land border bet ween t his
count ry and Turkey. According t o est im at es in t he recent ly released annual report of
FRONTEX for 2010, a t ot al of 500 officers from 26 Mem ber St at es were drawn for
deploym ent from t he Rapid Pool, wit h num bers effect ively present on t he ground
com prised bet ween 175 and 200 at any given t im e ( FRONTEX General Report 2010, p.
10) . RABI T 2010 was replaced in March 2011 by Joint Operat ion POSEI DON 2011, which
includes a land and sea com ponent .
2.4.1.3.
Modificat ion of t he Schengen Borders Code: Council Decision 2010/ 252/ EU
Following a num ber of highly publicised occurrences where dist ress calls involving boat s
carrying m igrant s have been left unanswered due t o disagreem ent s bet ween Mem ber
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St at es over search and rescue responsibilit ies, 65 t he Council adopt ed in April 2010
Decision 2010/ 252/ EU supplem ent ing t he Schengen Borders Code. I t specifies t he rules
applicable in t he cont ext of sea borders operat ions coordinat ed by FRONTEX. I n part icular,
it enshrines t he general principle t hat “ [ m ] easures t aken for t he purpose of t he
surveillance operat ion shall be conduct ed in accordance wit h fundam ent al right s and in a
way t hat does not put at risk t he safet y of t he persons int ercept ed or rescued as well as of
t he part icipat ing unit s” . I t furt her indicat es t hat operat ions of disem barkat ion or handing
in of a person t o a count ry’s aut horit ies m ust not cont ravene t he principle of non
refoulem ent . The rules and non- binding guidelines annexed t o t he Decision are t o be
incorporat ed in t he operat ional plan drawn up for each sea border operat ion coordinat ed
by t he agency. The Decision has been recognised as a welcom e clarificat ion of rules which
ot herwise form part of Mem ber St at es’ int ernat ional obligat ions under t he law of t he sea
and t he 1951 Geneva Convent ion by Am nest y I nt ernat ional and ECRE am ong ot hers. 66
2.4.1.4.
Current proposals for t he revision of Council Regulat ion ( EC) No 2007/ 2004
Most of t he ongoing debat es and challenges concerning FRONTEX t hat will be surveyed
below concern t h e r e vision of t h e a ge n cy’s fou n din g r e gu la t ion , on w h ich t he
Coun cil a nd t h e Pa r lia m e n t ha ve r e ce n t ly r e a ch e d a polit ica l a gr e e m e n t ( Council
docum ent 11916/ 11) . The European Com m ission t abled a proposal for t he revision of t he
FRONTEX Regulat ion on 24 Sept em ber 2010 ( COM( 2010) 61) . Am ong t he m odificat ions
foreseen by t he proposal, t he elem ent s of int erest for t he purpose of t his st udy include:
•
t he enhancem ent of t he agency’s role in j oint operat ions and pilot proj ect s;
•
t he clarificat ion of t he legal fram ework governing FRONTEX wit h part icular
at t ent ion t o fundam ent al freedom s and right s issues;
•
t he possibilit y for t he agency t o have access t o personal dat a, which was
ruled out by t he Com m ission in it s init ial proposal but reint roduced in t he
European Parliam ent ’s report on t he proposal.
2.4.2. Ongoing debat es and challenges
2.4.2.1.
FRONTEX and t he responsibilit y for j oint operat ions and proj ect s
Th e que st ion of FRON TEX’ r e sponsibilit y w it h r e ga r d t h e va r ious ope r a t ion a l
a ct ivit ie s t h a t it coor dina t e s h a s be e n a t t h e h e a r t of t h e con t r ove r sie s
su r r ou n din g t h e a ge n cy sin ce it w a s cr e a t e d. This relat es in part icular t o t he unclear
legal fram ework t hat has governed t he agency so far ( see 2007 I LPA subm ission t o t he
House of Lords) . As shown above, t he decision t hat t he agency should be a coordinat ion
body, sim ilar in it s rem it t o EUROJUST and EUROPOL in t heir respect ive fields, rat her t han
a service effect ively in charge of border cont rols, has generat ed a significant degree of
uncert aint y as t o which aut horit y should be held liable for possible violat ions of t he rule of
law in j oint operat ions. When called upon t o j ust ify som e of t he problem s raised by it s
act ivit ies, t he agency has syst em at ically em phasised t hat responsibilit y lay wit h Mem ber
St at e aut horit ies. This has been t he case, for inst ance, when request ed by civil libert ies
organisat ions t o disclose t he legal inst rum ent s aut horising som e of it s j oint operat ions
based in t he Canary I slands ( t he HERA operat ions, see below 4.4.1) .
The revision of t he FRONTEX regulat ion is likely t o clarify t he legal fram ework governing
t he agency. Som e provisions, on t he one hand, would give FRONTEX m ore cont rol over
65
I ncluding t he case of a boat carrying som e 20 people, m ost ly from Erit rea, which had t o wait for
m ore t han 24 hours before being event ually rescued by a Libyan ship. While t he ship laid in Malt a’s
search and r escue ar ea and wit hin t he 40 naut ical m iles zone of I t aly, t he aut horit ies of bot h
Mem ber St at es failed t o agree on responsibilit y for t he rescue ( see HCR briefing of 8 June 2011 on
t he incident , available from : www.unhcr.org/ 4c0e33b66.ht m l) .
66
See j oint Am nest y I nt ernat ional & ECRE Briefing of Sept em ber 2010, p. 10- 11, available from :
www.ecre.org/ com ponent / downloads/ downloads/ 58.ht m l) .
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operat ional act ivit ies. The new Art icle 3 of t he regulat ion would for exam ple place t he
agency in a posit ion t o “ evaluat e, approve and coordinat e proposals for j oint operat ions
and pilot proj ect s m ade by Mem ber St at es” , which im plies t hat it could refuse such
proposals. I t furt her specifies t hat t he agency “ m ay init iat e j oint operat ions and pilot
proj ect s in cooperat ion wit h Mem ber St at es” and “ m ay also t erm inat e j oint operat ions and
pilot proj ect s if t he condit ions t o conduct t hese init iat ives are no longer fulfilled” . Very
t ellingly, t he Com m ission’s im pact assessm ent st resses t hat such provisions m ight result
in increasing t he possibilit y t hat t he agency and it s st aff would be “ exposed t o sit uat ions
of possible violat ions of fundam ent al right s” ( SEC( 2010) 149, p. 29) . The com m ent
acknowledges t he fact t hat t he agency’s act ivit ies can have legal effect , and support t he
possibilit y of redress in front of t he ECJ. A sim ilar, if less explicit change, has been m ade
t o Art icle 9 of Regulat ion 2007/ 2004 on j oint ret urn operat ions. The new Art icle 9 specifies
t hat FRONTEX m ay coordinat e t he organisat ion of JROs upon request of t he Mem ber
St at es, and t hat t his m ay involve a decision t o finance or co- finance such operat ions.
Financial support is “ condit ional upon t he full respect of t he Chart er of Fundam ent al
Right s” . The provision not only est ablishes clearly t hat FRONTEX has an obligat ion t o
com ply wit h t he Treat y obligat ions regard fundam ent al freedom s and right s, but can also
be considered t o est ablish a responsibilit y of t he agency should it decide t o provide
financial support t o a JRO t hat would not com ply wit h t he CFR.
A second aspect of t he proposal t hat clarifies t he Agency’s responsibilit ies is t he
r e fe r e n ce t o t he Sche n ge n Bor de r s Code . The proposed Art icle 1( 2) t hus est ablishes
t hat “ t he Agency shall facilit at e and render m ore effect ive t he applicat ion of exist ing and
fut ure European Union m easures relat ing t o t he m anagem ent of ext ernal borders, in
part icular t he Schengen Borders Code, and in accordance wit h relevant Union law,
I nt ernat ional law, obligat ions relat ed t o access t o int ernat ional prot ect ion, and
fundam ent al right s” . The com binat ion of provisions giving FRONTEX m ore cont rol over
j oint operat ions and pilot proj ect s as well as JROs wit h t he clarificat ion of t he legal
fram ework under which t his enhanced cont rol falls cont ribut e overall t o ascert aining t hat
t he agency indeed has a num ber of responsibilit ies t hat m ay induce legal effect s if
breached.
2.4.2.2.
FRONTEX and fundam ent al freedom s and right s
The com pliance of FRONTEX act ivit ies wit h fundam ent al freedom s and right s has been a
source of concern since it s incept ion. One init ial concern lied wit h t h e a bse n ce of a cle a r
le ga l fr a m e w or k gove r n ing t h e a ge n cy’s a ct ivit ie s. The FRONTEX Regulat ion was
adopt ed before a legal definit ion of t he EU’s ext ernal borders could be agreed upon and
rules about who is allowed t o cross t he border and how be adopt ed. This, as m ent ioned
above, would be sort ed wit h t he m odificat ion of t he FRONTEX Regulat ion and t he explicit
reference t o t he Schengen Borders Code.
A key preoccupat ion involves t he j oint operat ions coordinat ed by t he agency and
part icularly sea border operat ions such as t he HERA and NAUTI LUS series. FRONTEX has
acknowledged t hat it s officials were conduct ing int erviews wit h t he persons int ercept ed in
such operat ions for int elligence purposes, arguing t hat it is not t heir responsibilit y t o hear
out asylum claim s, a t ask t hat falls wit hin t he rem it of Mem ber St at e aut horit ies. As one
scholar suggest s, t his is a highly legalist ic int erpret at ion of t he separat ion of com pet encies
bet ween t he agency and t he Mem ber St at es, and one t hat is unlikely t o reflect t he
pract ical circum st ances t hat FRONTEX officials face in operat ional cont ext ( Guild, 2010:
17) .
Anot her debat e involves t h e a ge n cy’s r ole in j oin t r e t u r n ope r a t ion s. Under t he
current legal fram ework, t his role is underspecified ( e.g. Carrera, 2007: 17) . FRONTEX is
expect ed t o provide ‘assist ance’ t o Mem ber St ates in t he organisat ion of JROs ( Art icle 9( 1)
of Council Regulat ion ( EC) 2007/ 2004) , but t he exact scope of t hese assist ance t asks is
unclear. This has been a const ant preoccupat ion, especially in t he last t hree years where
t he agency’s part icipat ion t o JROs has increased exponent ially: according t o som e
est im at es based on t he figures provided by FRONTEX, t he num ber of co- financed j oint
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ret urn operat ions has doubled from 2008 t o 2009, wit h funding increasing by 500% , wit h
expect at ions t hat it would have doubled in 2010. 67 As m ent ioned previously, t he m odified
FRONTEX regulat ion would bring m ore clarit y in t his dom ain, by reinforcing t he cont rol of
t he agency over JROs, and by clearly relat ing t his act ivit y t o t he Chart er of Fundam ent al
Right s and t he com m on st andards and procedures laid down in Direct ive 2008/ 115/ EC on
t he Union’s ret urn policy ( referred t o in Recit al 21 of t he m odified Regulat ion’s Pream ble) ,
including t he respect of t he non- refoulem ent principle ( Art icle 5) and t he procedural
safeguards included in Chapt er I I I . The new Art icle 9( 2) of t he FRONTEX Regulat ion would
furt her com m it t he agency t o develop a code of conduct for ret urn operat ions, com prising
st andard procedures “ in full respect of fundam ent al right s, in part icular t he principles of
hum an dignit y, prohibit ion of t ort ure and of inhum an or degrading t reat m ent or
punishm ent , right t o libert y and securit y, t he right t o t he prot ect ion of personal dat a and
non discrim inat ion” . The new Art icle 9( 3) addit ionally lays down t he ground for an
independent m onit oring syst em of com pliance wit h t he Code of Conduct , wit h reference t o
t he provisions in Art icle 8( 6) of Direct ive 2008/ 115/ EC.
Concerns wit h t he com pliance of FRONTEX act ivit ies wit h Treat y and int ernat ional
obligat ions in t he field of fundam ent al right s and obligat ions are furt her reflect ed in t he
European Parliam ent ’s draft report on t he Com m ission’s proposed am ending act of Council
Regulat ion 2007/ 2004 ( PE 475.754) . The draft report feat ures a num ber of cont rast ed
am endm ent s. Som e are likely t o reinforce t he legal fram ework governing t he agency and
t he m onit oring of it s act ivit ies from t he perspect ive of fundam ent al freedom s and right s,
while ot hers are likely t o reinforce cont roversies about t he agency ( m ost st ringent ly wit h
regard access t o personal dat a, as discussed in t he next point ) . Am endm ent s concerning
t he legal fram ework include for exam ple t he int roduct ion of a specific reference t o t he CFR
and t he 1951 Geneva Convent ion t he new Art icle 1( 2) of t he Regulat ion.
The rapport eur furt her suggest s in t he report ’s explanat ory st at em ent t hat t he different
am endm ent s m andat ing t he agency t o pay specific at t ent ion t o Mem ber St at es “ facing
specific or disproport ionat e pressures” ( in t he wording of t he proposed am ended Recit al 1)
would provide m ore support t o t hose Mem ber St at es facing a st rain on t heir asylum
syst em . The argum ent has been quit e syst em at ically m ade by Mem ber St at es finding
t hem selves in charge of large port ions of t he EU’s sout hern m arit im e ext ernal border,
including Spain, I t aly, Malt a and Greece. This reasoning, however, raises t he quest ion of
whet her t he act ivit ies of FRONTEX should be considered a rem edy t o sit uat ions such as
t he one facing Greece at t he m om ent . Can t he reinforcem ent of border cont rols, of
int ercept ion and diversion operat ions, and t he int ensificat ion of ret urns, be considered an
adequat e opt ion for t he EU’s asylum policy, com pliant wit h t he Treat y and int ernat ional
obligat ions of t he Union and it s Mem ber St at es? Bot h t he UNHCR and t he Council of
Europe have point ed out , in recent m ont hs, t he dysfunct ions of t he Greek asylum syst em
for exam ple, highlight ing t he way in which t he Dublin syst em opened up t he possibilit y for
ot her Mem ber St at es t o issue disproport ionat e request s t o Greece for t heir asylum
applicat ions. 68 I t seem s difficult t o consider t hat m eet ing t he necessary revision of a
dysfunct ional EU asylum syst em wit h reinforced securit y m easures in t he guise of
st rengt hened border cont rols can be a viable policy opt ion.
2.4.2.3.
FRONTEX and access t o personal dat a
The quest ion of access t o personal dat a by FRONTEX has been anot her of t he running
debat es since t he est ablishm ent of t he agency. Art icle 11 of t he current FRONTEX
Regulat ion m ent ions t hat t he agency should facilit at e t he exchange of inform at ion
relevant t o it s t asks wit h t he Com m ission and t he Mem ber St at es, but m akes no m ent ion
of access t o or processing of personal dat a. This sit uat ion follows from t he em phasis t hat
67
See j oint Am nest y I nt ernat ional & ECRE Briefing of Sept em ber 2010, p. 28, available from :
www.ecre.org/ com ponent / downloads/ downloads/ 58.ht m l) .
68
S. Carrera and E. Guild ( 2010) , “ ‘Joint Operat ion RABI T 2010’ – FRONTEX Assist ance t o Greece’s
Border wit h Turkey: Revealing t he Deficiencies of Europe’s Dublin Asylum Syst em ” , Brussels: CEPS,
11.2010, pp. 12- 15.
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Mem ber St at es have placed on t heir exclusive com pet ence for t he effect ive conduct of
border cont rols. Sin ce FRON TEX is on ly a coor dina t in g body, it doe s n ot n e e d t o
h a ve a cce ss t o in for m a t ion syst e m s h olding pe r sona l da t a in r e la t ion t o t h e
con t r ol of t h e Un ion ’s e x t e r n a l bor de r s ( e.g. t he Schengen I nform at ion Syst em ) . The
agency’s senior st aff has repeat edly challenged t his view, arguing t hat t he analysis work
of FRONTEX in part icular required m ore t han access t o st at ist ical dat a which t he agency
has enj oyed since it s incept ion, insist ing t hat it should be grant ed som e form of access t o,
and com pet ence t o process, personal dat a. I n it s init ial proposal for a revision of Council
Regulat ion 2007/ 2004 however, t he Com m ission has explicit ly ruled out t he possibilit y of
grant ing FRONTEX access t o and process of personal dat a, preferring “ t o ret urn t o t he
quest ion of personal dat a in t he cont ext of t he overall st rat egy for inform at ion exchange”
( COM( 2010) 61, p. 4) .
The EP’s draft report on t he Com m ission’s proposal has gone against t hat opt ion.
Provisions regulat ing t he access of personal dat a by t he agency have been insert ed in
Art icle 11 of Council Regulat ion 2007/ 2004. The purpose of dat a processing is “ t o
cont ribut e t o t he securit y of t he ext ernal borders of t he Mem ber St at es of t he European
Union” . The processing of personal dat a by FRONTEX is lim it ed t o:
o
“ personal dat a obt ained during j oint operat ions or pilot proj ect s or rapid
border int ervent ion m issions” ;
o
“ persons who are suspect ed on reasonable grounds of involvem ent in
cross- border crim inal act ivit ies, in illegal m igrat ion act ivit ies or in hum an
t rafficking act ivit ies as defined in Art icle 1( 1) ( a) and ( b) of Council
Direct ive 2002/ 90/ EC” ;
o
“ persons who are vict im s of such act ivit ies and whose dat a m ay lead t o
t he perpet rat ors of such act ivit ies” and
o
“ persons who are subj ect t o ret urn operat ions in which t he Agency is
involved” .
The ret ent ion period is not t o exceed t hree m ont hs. Onward t ransm ission t o EUROPOL is
aut horised, as well as t o “ ot her European Union agencies or bodies” , provided t hat
FRONTEX has ent ered int o a working agreem ent on t he exchange of personal dat a wit h
t hem , and subj ect t o t he prior approval of t he EDPS. Onward t ransm ission by t he agency
t o Mem ber St at es, t hird count ries or ot her t hird part ies is prohibit ed.
There are several aspect s t o be considered in t his debat e. On t he one hand, t h e EP’s
pr opose d a m e n dm e n t cr e a t e s ye t a not he r ch a lle nge for e n su r in g t he a ge n cy’s
com plia n ce w it h it s fu n da m e n t a l fr e e dom s a n d r igh t s obliga t ion s, t h is t im e in
t h e fie ld of da t a pr ot e ct ion. On t he ot her, t h e a m e ndm e n t on ly e ndor se s t he
a ge n cy’s e x ist ing pr a ct ice s. I n April 2009 indeed, FRONTEX com m unicat ed a
not ificat ion for prior checking t o t he EDPS concerning t he “ Collect ion of nam es and cert ain
ot her relevant dat a of ret urnees for j oint ret urn operat ions” . The purpose of t he collect ion
was t o com pile inform at ion on t he num ber and ident it y of ret urned persons, assess t heir
healt h st at us, age and degree of ‘risk’. The EDPS found t he processing t o be lawful under
t he agency’s exist ing legal fram ework and t hrough t he applicat ion of Regulat ion ( EC)
45/ 2001 on t he prot ect ion of individuals wit h regard t o t he processing of personal dat a by
t he Com m unit y inst it ut ions and bodies ( FRONTEX being a first - pillar agency) . I t seem s in
t his respect t hat t he draft report from t he European Parliam ent has followed t he
‘pragm at ic’ line t hat t he EDPS t ends t o adopt wit h regard dat a processing in relat ion t o
law- enforcem ent act ivit ies and which is reflect ed in t he lat t er’s May 2010 Opinion on t he
Com m ission’s proposal for t he revision of Council Regulat ion 2007/ 2004: nam ely, t hat t he
clear spelling out of rules on t he processing of personal dat a is preferable t o t he absence
of such rules in circum st ances where it is clear t hat dat a processing is likely t o occur. I n
t he m eant im e, t his m odificat ion of t he agency’s m andat e opens up yet anot her issue
regarding fundam ent al freedom s and right s, nam ely t he oversight of t he processing of
personal dat a by FRONTEX and of t he t ransfer of such dat a t o ot her European bodies
falling under different dat a prot ect ion regim es. I t fu r t he r r a ise s t h e qu e st ion of t h e
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r isk s a ssocia t e d w it h t h e t r a nsfor m a t ion of FRON TEX in t o a n a ll- pur pose se cu r it y
a ge n cy, r a t h e r t h a n on e focu se d on it s spe cific m a n da t e of coor dina t in g
ope r a t iona l coope r a t ion a t t he e x t er na l bor de r s of t he M e m be r St a t e s. The
em phasis placed by FRONTEX on it s analyt ical product s, as well as t he developm ent s
associat ed wit h EUROSUR, which would place t he agency in charge of const it ut ing a ‘prefront ier int elligence pict ure’ ( see below 2.5.3.1. and 2.5.3.2.) , as well as t he logic of t he
cooperat ion wit h EUROPOL which appears t o lead t o t he ent anglem ent of t he m andat es of
t he t wo bodies ( see below 2.6.1.) , reinforce t his int errogat ion.
2.4.3.
2.4.3.1.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y and t he
I SS
Analyses and inform at ion on EU ext ernal borders
The product ion and circulat ion of analyses and inform at ion on EU ext ernal borders is t he
first area of concern t o be considered in relat ion t o FRONTEX. The agency has been very
proact ive in posit ioning it self as a cent ral inform at ion hub for st at ist ical inform at ion about
t he ext ernal borders and forecast s about possible fut ure scenarios. Recent changes in t he
Council’s working groups st ruct ure are likely t o reinforce t his t rend. At st ake here is t he
dem ise of t he Cent re for I nform at ion, Discussion and Exchange on t he Crossing of
Front iers ( CI REFI ) , which had been set up in 1992 t o collect and encourage t he exchange
of inform at ion about various issues relat ed t o border crossing ( legal im m igrat ion, irregular
im m igrat ion and residence, facilit at or net works, false and falsified docum ent s, st at ist ics
from nat ional aut horit ies) , com pile and produce analyses. CI REFI ’s inform at ion collect ion
and analysis funct ions have been t ransferred t o FRONTEX in April 2010. The agency is
m aking use of t hat inform at ion, am ong ot hers, in it s annual report ing as well as in it s
regular FRONTEX Risk Analysis Net work publicat ion ( FRAN Quart erly) . The FRAN Quart erly
is only one of t he agency’s publicat ions out of t he few t hat are publicly available. 69 While
t his does const it ut e t o som e degree a depart ure from FRONTEX’ policy of st rict nondisclosure of it s inform at ion ‘product s’, a close reading of t his t ype of docum ent s
illust rat es t he risks present ed by t he cent ralisat ion of inform at ion about ext ernal borders
in a single body. This is a part icularly im port ant issue t o follow in view of t he new Art icle 4
of t he FRONTEX Regulat ion, which gives a legal basis t o t he Com m on Risk I nt egrat ed
Model ( CI RAM) developed early on by t he agency. Art icle 4 foresees t hat t he agency “ shall
prepare bot h general and t ailored risk analyses, t o be subm it t ed t o t he Council and t he
Com m ission” , for t he purpose of which “ Mem ber St at es shall provide t he Agency wit h all
necessary inform at ion regarding t he sit uat ion and possible t hreat s at t he ext ernal
borders” . The provision pot ent ially places FRONTEX in a m onopolist ic posit ion wit h regard
t he developm ent of sit uat ion assessm ent s at t he ext ernal borders.
FRAN Quart erly publicat ions are put t oget her by t he agency’s Risk Analysis Unit , on t he
basis of dat a provided by Mem ber St at es border cont rol aut horit ies. They offer a largely
quant it at ive analysis of t he sit uat ion at t he ext ernal borders, based on six indicat ors:
•
I llegal border- crossing bet ween border checkpoint s ( 1a)
•
Clandest ine ent ries at border checkpoint s ( 1b)
•
Facilit at ors
•
I llegal st ay
•
Refusals of ent ry
•
Applicat ions for asylum
•
False t ravel- docum ent users
69
FRAN Quart erly report s have been m ade available on t he agency’s websit e since t he eight h issue
( first quart er of 2009.
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There are several issues wit h t his t ype of analyses. Som e are openly acknowledged by t he
agency. These cat egories of dat a are not harm onised for t he 30 count ries part icipat ing in
t he FRAN, nor are t he procedures for collect ing and com piling t his dat a. What research on
t he issue has shown as well is t hat even wit hin a given Mem ber St at e, t he com pilat ion and
analysis of dat a concerning m igrat ion is a highly cont roversial exercise. 70 Of furt her
concern here is t he represent at ion of t he sit uat ion at t he ext ernal borders t hat
publicat ions such as t he FRAN Quart erly are providing t o policy- m akers, expert s and
scholars, as well as t he general public. The abovem ent ioned indicat ors do not offe r t he
possibilit y for a w e ll- infor m e d de ba t e , insofar as t hey only t ell a part ial st ory of
crossings at t he EU ext ernal borders. I n part icular, t hey do not relat e irregular border
crossings t o t he overall num ber of persons ent ering t he EU for professional and personal
purposes, as well as for t ourism , which would be an im port ant m eans for shaping t he
debat e about t he effort s t o be delivered in t he field of border cont rol.
I t appears im port ant , in t his respect , t o su ppor t plu r a lism in t h e pr odu ct ion of
in for m a t ion a bout t h e e x t e r n a l bor de r s, a s w e ll a s a gr e a t e r de gr e e of
t r a n spa r e n cy a s t o h ow t h e da t a a ggr e ga t e d in t h e va r iou s in dica t or s u se d by
pu blica t ion s su ch a s t h e FRAN Qua r t e r ly is pr oce sse d. Just as wit h EUROPOL’s
various t hreat assessm ent report s, it appears fundam ent al t o m ake sure t hat t he
m et hodology used in such report ing exercises is m ade fully t ransparent , so it can be
ext ernally assessed j ust like any ot her knowledge process. There are different ways t o
ensure such pluralism , but exam ples, such as t he THESI M or CLANDESTI NO research
program m es m ent ioned at t he bot t om of t his page, or t he CARI M consort ium init ially
funded under MEDA’s regional program m e 71 would const it ut e one possibilit y.
2.4.3.2.
FRONTEX and border surveillance: The quest ion of EUROSUR
A second area of im port ance regarding FRONTEX lies at t he int ersect ion bet ween t he
discussion on t he agency’s access t o personal dat a and it s growing role as t he cent ral hub
for inform at ion about t he EU’s ext ernal borders. I t concerns t he set t ing- up of t he
European Border Surveillance Syst em ( EUROSUR) , which was officially launched by DG
JLS in one of t he com m unicat ions com prised in it s February 2008 ‘border package’. The
developm ent of EUROSUR has been funded t hrough t he Ext ernal Borders Fund and t he
Schengen Facilit y, and support ed by a num ber of proj ect s funded under t he FP7’s Securit y
Them e as well as on t heir own funds by FRONTEX and t he European Com m ission’s Joint
Research Cent re
EUROSUR is previewed as a ‘syst em - of- syst em s’ which would int erconnect in t he first
place t he m arit im e surveillance syst em s ( civilian, law- enforcem ent and m ilit ary) of EU
Mem ber St at es wit h responsibilit y over a segm ent of t he EU’s ext ernal sea borders. As
previous research has shown ( PE 408.285) , FRONTEX would be act ing as t he cent ral ‘hub’
of EUROSUR, effect ively expanding on it s current risk analysis t asks t o becom e an
int elligence agency in charge of elaborat ing and updat ing t he ‘com m on pre- front ier
int elligence pict ure’, which const it ut es t he core of t he EUROSUR obj ect ives. A num ber of
obj ect ions have been raised regarding t he EUROSUR proj ect , am ong which t he lack of a
legal basis for developing t he syst em , and a lack of clarit y as t o which kind of dat a would
be processed. The ext ent t o which EUROSUR would involve t he processing of personal
dat a, in part icular, rem ains undet erm ined. DG JLS/ Hom e has report ed regularly, if
sparsely, on t he advancem ent of t he syst em ’s developm ent ( SEC( 2010) 171 and
SEC( 2011) 145) , and t abled in 2010 a roadm ap indicat ing t hat a legislat ive proposal
would be issued in t he course of 2011. The Com m ission’s proposal for t he am endm ent of
t he FRONTEX Regulat ion has foreseen a m odified Art icle 2( 1) ( i) including “ t he necessary
assist ance t o t he developm ent and operat ion of a European border surveillance syst em
and, as appropriat e, t o t he developm ent of a com m on inform at ion sharing environm ent ,
including int eroperabilit y of syst em s” in t he t asks of t he agency. The St ockholm
70
See for inst ance t he out com e of t he THESI M ( www.uclouvain.be/ en- 7823.ht m l) or CLANDESTI NO
( ht t p: / / clandest ino.eliam ep.gr/ ) proj ect s, bot h support ed by t he EU FP6.
71
www.carim .org/ .
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Program m e, t he I SS and t he Com m ission’s I SS in Act ion com m unicat ion, finally, have also
endorsed EUROSUR as a key init iat ive.
Th e sh ift t ow a r ds a m or e int e llige n ce - dr ive n logic r e lying on in t e nsive da t a
pr oce ssing in t h e w or k of FRON TEX de se r ve s close scr u t iny. At t he general level,
t his developm ent echoes t he reinforcem ent of t he t rend t owards int elligence- led policing
am ong EU agencies, bodies and services in t he field of int ernal securit y. Regarding
FRONTEX in part icular, it im plies t hat t he int erplay bet ween t he possibilit y now given t o
t he agency t o process personal dat a and t he insert ion of it s risk analysis capacit ies in a
broader com put erised syst em will deserve m ore scrut iny, as it m ight lead t he way t o a
broader rem it in t erm s of dat a processing.
2.4.3.3.
Oversight of t he agency
The quest ion of oversight is t he t hird area of concern involving FRONTEX. Recent debat es
and developm ent s have m ade it even m ore st ringent t o ensure t hat t he agency’s act ivit ies
receive proper and cont inuous at t ent ion. Since it has becom e operat ional six years ago,
t he agency has experienced a considerable increase in it s volum e of act ivit y, funding, and
now rem it . The European Parliam ent has played a role in t his growt h, since it has
repeat edly increased t he budget available t o t he agency, considering, in t he words of one
MEP, t hat it had “ no int erest in seeing FRONTEX walk. We want it t o run at great speed,
and t his explains why we have done t his” . 72 The out com e of t he revision of Council
Regulat ion 2007/ 2004 is likely t o add t o t his expansion, in several ways.
First ly, as explained above, t he revised regulat ion would give m ore decision- m aking
powers t o FRONTEX on t he st aging of j oint operat ions and proj ect s. According t o t he new
Art icle 3b, t he agency would also be able t o deploy m ore officials via t he FRONTEX Joint
Support Team s ( FJST) m echanism . FJST would consist of a pool of nat ional border- guard
officers seconded by t heir Mem ber St at e for a period of six m ont h every t welve m ont hs,
which will be deployed at t he request of t he agency for any j oint operat ion or pilot proj ect .
The set t ing- up of FSJT can pot ent ially m ake m ore com plex t he ascert aining of
responsibilit ies in case of a violat ion of t he rule of law in t he cont ext of a FRONTEX j oint
operat ion. FSJT officers are t o be considered, according t o t he new Art icle 10( 2) as ‘guest
officers’, who “ shall com ply wit h Union law, in accordance wit h fundam ent al right s, and
t he nat ional law of t he host Mem ber St at e” . The FSJT m echanism t hus est ablishes a
sit uat ion where t hree part ies can be held liable for possible violat ions: t he Mem ber St at e
sending t he guest officer, t he ‘host Mem ber St at e’ and FRONTEX.
Secondly, t he expansion of t he agency’s rem it involves addit ional possibilit ies t o engage
wit h t hird count ries. Two provisions deserve m ore scrut iny here, insert ed in t he
Regulat ion’s new Art icle 14, which opens t he possibilit y for t he agency t o send liaison
officers t o t hird count ries, and t o benefit from Union funding t o est ablish t echnical
assist ance proj ect s in t hird count ries. FRONTEX liaison officers are expect ed t o j oin
already est ablished local or regional net works of im m igrat ion liaison officers ( I LOs)
est ablished by Mem ber St at es in t hird count ries on t he basis of Council Regulat ion No
377/ 2004. According t o Art icle 2 of t his Regulat ion, I LOs are expect ed t o est ablish direct
cont act s wit h t he aut horit ies of t he count ry t hey are deployed t o, collect operat ional and
st rat egic inform at ion regarding irregular and regular m igrat ion, and assist and facilit at e
t he ident ificat ion and ret urning of persons t o t heir count ry of origin. I n ot her words, I LOs
conduct ext rat errit orial, int elligence- based policing act ivit ies, which are ext rem ely
com plex t o cont rol. The revised FRONTEX Regulat ion specifies t hat t he agency’s liaison
officers “ shall only be deployed t o t hird count ries in which border m anagem ent pract ices
respect m inim um hum an right s st andards” while “ [ p] riorit y for deploym ent should be
given t o t hose t hird count ries, which on t he basis of risk analysis const it ut e a count ry of
origin or t ransit regarding illegal m igrat ion” . Several point s can be raised regarding t hese
provisions:
72
House of Lords, “ European Union Com m it t ee, 9 t h Report of Session 2007- 2008: Minut es of
Evidence” , House of Lords, London, 5 March 2008, pp. 24- 25.
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What are ‘m inim um hum an right s st andards’? FRONTEX is bound by law t o
respect t he Chart er of Fundam ent al Right s in all it s act ivit ies, including
beyond t he t errit ory of t he Mem ber St at es of t he EU. These cannot be
derogat ed t o.
The phrasing of t he provision is unclear. I t seem s t o im ply t hat border
m anagem ent pract ices can be isolat ed from t he rest of a count ry’s legal
fram ework as respect ing hum an right s. The respect for hum an right s in
border m anagem ent pract ices follows from t he general rule of law
applicable across all dom ains of societ y in a given count ry: it is t herefore
unlikely t hat one can single out border m anagem ent pract ices respect ful of
hum an right s st andards in count ries t hat ot herwise violat e t hem .
Given t he t wo first observat ions, one is t em pt ed t o ask which priorit y should
be respect ed in t he deploym ent of I LOs: hum an right s st andards or risk
assessm ent s?
Of furt her concern in t his regard is t he fact t hat t he pr ovision s con ce r n in g t h e
in it ia t in g of t e ch n ica l a ssist a n ce pr oj e ct s by t he a ge n cy do not inclu de a n y
m e n t ion of h u m a n r igh t s cr it e r ia .
These few observat ions highlight t he necessit y of a st rict er fram ework of oversight for t he
agency. While t he revised Regulat ion would confer upon FRONTEX t he possibilit y t o
evaluat e t he border m anagem ent pract ices of Mem ber St at es and t erm inat e j oint
operat ions should t hey fail t o m eet accept able st andards, including wit h respect
fundam ent al freedom s and hum an right s, it says very lit t le on who should evaluat e t he
agency it self. Adm inist rat ive oversight st ill lies wit h t he Com m ission’s DG Hom e, but
assessm ent s and evaluat ions of t he kind published in t he February 2008 ‘border package’
should com e m ore frequent ly, arguably on a yearly basis. There should be, in addit ion, a
degree of polit ical over sight . The Council point s out in t he sum m ary of t he key point s in
t he draft com prom ise t ext agreed upon wit h t he European Parliam ent t hat a Consult at ive
Forum on Fundam ent al Right s and a Fundam ent al Right s officer shall be est ablished. This,
t oget her wit h t he ot her elem ent s insert ing fundam ent al freedom s and right s provisions in
t he agency’s act ivit ies, could cont ribut e t o m ake FRONTEX m ore t ransparent and m ore
account able. There should be, however, room for m ore m onit oring on a m ore regular
basis, and wit h m ore involvem ent from t he European and nat ional Parliam ent s.
2 .5 .
2.5.1.
2.5.1.1.
CEPOL
Background on t he agency
The Maast richt Treat y and t he Declarat ion on Police Cooperat ion
Discussions concerning t he est ablishm ent of a European police st ruct ure for t raining were
first developed am ong direct ors of nat ional senior police courses and academ ic expert s in
t he second half of t he 1980s. Following a m eet ing of t he form er in Copenhagen in 1989,
t wo proposals were t abled: t he first one in 1990 by a group of expert s gat hered by t he
Dut ch Minist ry of I nt erior, t he second by t he direct or of t he Germ an
Polizeiführungsakadem ie in Münst er, Rainer Schult e, in 1992. From t he onset t he debat e
focused on whet her such a st ruct ure would t ake t he form of a full- blown European Police
Academ y, or whet her it would j ust be a secret ariat coordinat ing a net work of nat ional
police t raining inst it ut es. These ongoing discussions were relayed in part by t he Germ an
delegat ion at t he Luxem bourg European Council ( 28- 29 June 1991) and result ed in t he
appending of a Declarat ion on police cooperat ion t o t he Maast richt Treat y ( Declarat ion No
32) which included considerat ions on t raining com m it t ing Mem ber St at es “ t o consider on
t he basis of a report , during 1994 at t he lat est , whet her t he scope of such cooperat ion
should be ext ended” . Quest ions of t raining were furt her incorporat ed in t he 1995 Europol
Convent ion ( Art icle 2 and 3) . I n t he m eant im e, t he prom ot ion of t ransnat ional cooperat ion
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in t he field of police t raining were sust ained by init iat ives out side t he Com m unit y
fram ework: t he founding of t he Mit t eleuropäische Polizeiakadem ie ( MPA) in Vienna in
1993 ( involving Aust ria, Germ any, Hungary, Poland, t he Czech Republic and Swit zerland) ,
t he creat ion of t he European Law Enforcem ent College in Brussels in 1995 as a j oint
vent ure of t he Belgian, Brit ish and Dut ch governm ent s, and t he launching of t he
Associat ion of European Police Colleges ( AEPC) . AEPC was init ially founded by m eans of an
agreem ent bet ween t he Dut ch, Germ an and Brit ish police academ ies wit h t he aim of
creat ing a European Police Academ y in accordance wit h t he phased approach out lined in
t he 1992 Schult e report . While not form ally associat ed wit h t he EU, AEPC nonet heless
est ablished links wit h t he Council Police Cooperat ion Working Group ( PCWG) and it s
official launch event on 25 January 1996 was placed under t he auspices of Swedish
com m issioner Anit a Gradin, holder of t he JHA port folio in t he Sant er College. By
Decem ber 1996, t he m em bership of AEPC had ext ended t o include all nat ional police
academ ies of EU Mem ber St at es.
2.5.1.2.
The Tam pere Program m e and Council Decision 2000/ 820/ JHA
The creat ion of t he European Police College was form ally considered in t he Tam pere
‘m ilest ones’ adopt ed by t he European Council on 15- 16 Oct ober 1999 ( Conclusion No 47) .
Council Decision 2000/ 820/ JHA est ablishing CEPOL was adopt ed on 22 Decem ber 2000. 73
The Decision est ablishes t hat t he CEPOL const it ut es “ a net work of exist ing nat ional
t raining inst it ut es” and fram es t he creat ion of t he College in relat ion t o t he t hen- ongoing
enlargem ent process: “ I t is desirable t o develop quickly a relat ionship bet ween CEPOL and
nat ional t raining inst it ut es in applicant count ries wit h which t he European Union is
conduct ing accession negot iat ions.” CEPOL is est ablished in part icular t o provide a t raining
fram ework for senior and m iddle- ranking police officers, as well as police officers wit h
specific responsibilit ies regarding cross- border crim e and part icularly organised crim e
( Art icle 7) . CEPOL is furt her expect ed t o “ support and develop a European cooperat ion t o
t he m ain problem s facing Mem ber St at es in t he fight against crim e, crim e prevent ion, and
t he m aint enance of law and order and public securit y, in part icular t he cross- border
dim ension of t hese problem s” ( Art icle 6( 1) ) . Various opt ions were discussed under t he
auspices of t he Finnish, Port uguese and French Presidencies, involving t he scope t hat
should be given t o t he init iat ive: for som e Mem ber St at es such as I t aly, t he new body
should include a dist inct ive European dim ension, while ot hers such as France favoured t he
m ut ual st rengt hening of Mem ber St at e capacit ies. Decision 2000/ 820/ JHA reflect s t hese
disagreem ent s: it est ablishes t he College as a net work of nat ional t raining inst it ut es, but
foresees t hat t he CEPOL’s governing council should appoint a perm anent secret ariat
headed by an adm inist rat ive direct or.
2.5.1.3.
Council Decision 2005/ 681/ JHA and t he est ablishm ent of CEPOL as an EU
agency
The adopt ion of Council Decision 2000/ 820/ JHA generat ed a num ber of issues. Despit e
t he adopt ion of t he College’s annual work program m e for 2002 and of t he CEPOL financial
regulat ion and budget for 2002, t he College w as nonet heless prevent ed from st art ing it s
work because no decision had been t aken on t he seat of it s perm anent secret ariat , and
m ore im port ant ly because it lacked a legal personalit y. Following a discussion in CATS, a
provisional seat was provided by Denm ark. 74 I t is only from January 2004, following t he
approval by t he body’s Governing Board of it s t hree- year report t hat discussions wit hin
CATS t ook a sharper focus. 75 The incom ing I rish Presidency int roduced in Decem ber 2003
73
Council Decision of 22 Decem ber 2000 est ablishing a European Police College ( CEPOL)
( 2000/ 820/ JHA) , OJ L336/ 1, 30.12.2000.
74
Council of t he European Union ( 2002) , “ Provisional m anagem ent solut ion for t he European Police
College ( CEPOL) ” , 6603/ 02, 26.2.2002.
75
Council of t he European Union ( 2003) , “ Three- y ear report on t he operat ion and fut ure of t he
European Police College” , 15722/ 03, 9.12.2003; Council of t he European Union ( 2004) , “ Three- year
report on t he operat ion and t he fut ure of t he European Police College” , 5136/ 04, 8.1.2004.
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a proposal for t he adopt ion of an am endm ent t o Council Decision 2005/ 681/ JHA t o
provide CEPOL wit h a legal personalit y, while t he Unit ed Kingdom delegat ion put forward
in January 2003 a proposal t o est ablish t hat t he College’s perm anent seat be locat ed in
Bram shill, on t he prem ises of t he UK Police St aff College. 76 The JHA Council nonet heless
concluded t hat “ t he organisat ion and st ruct ure of CEPOL should be kept under review”
aft er t he adopt ion of t hese proposals. 77 I n Oct ober 2004, t he European Com m ission
int roduced a proposal for a Council Decision est ablishing t he CEPOL as a body of t he
European Union, in part icular t o provide t he College wit h a clear st aff regulat ion and t he
possibilit y of being financed t hrough t he Com m unit y budget . 78 Council Decision
2005/ 681/ JHA, adopt ed on 20 Sept em ber 2005, est ablishes t he CEPOL as a body wit h
legal personalit y, a perm anent seat and st aff, revenues drawing from a subsidy of t he
Com m unit y and considered as an agency for t he purpose of st aff rules. 79
2.5.2.
2.5.2.1.
Ongoing debat es and challenges
An adm inist rat ive viabilit y under quest ion
Since it s est ablishm ent as a body of t he European Union, im plem ent ed in 2006, CEPOL
has been placed under observat ion due t o it s handling of it s budget . St art ing in 2006, t he
report s of t he European Court of Audit ors ( ECA) on t he annual account s of t he College
have highlight ed a num ber of problem s. For t he year 2007, t he Court not ed t he high level
of carry- overs and cancellat ions of appropriat ions, t he lack of a proper com m it m ent
account ing syst em , int ernal cont rols and cases where appropriat ions were used t o finance
privat e expendit ures. 80 For t he year 2008, t he Court observed t hat som e m anagem ent
problem s persist ed, t oget her wit h difficult ies t ied t o procurem ent procedures and t o t he
m igrat ion t o a new account ing syst em , as well as t he absence of any ex- post cont rol on
t he privat e use of appropriat ions it report ed t he year before. 81
The ECA’s report on t he annual account s of t he College for 2008 led t he European
Parliam ent t o post pone it s decision on grant ing discharge t o t he Direct or of t he CEPOL in
respect of t he im plem ent at ion of t he College budget for t hat year. 82 I n t he at t ached
resolut ion, t he European Parliam ent quest ioned t he st eps t aken by t he new Direct or of t he
College ( Ferenc Banfi, appoint ed in February 2010) , point ing out in part icular t hat t he
“ sm all size of t he College calls int o quest ion it s capacit y t o handle effect ively t he
com plexit ies of t he EU’s financial and st aff regulat ion” . 83 The refusal was confirm ed by a
second Decision, adopt ed in Oct ober 2010, based on t he alleged ‘vagueness’ of t he
m easures proposed by t he Direct or of CEPOL regarding t he financial m anagem ent of t he
76
These proposals were adopt ed in July 2004. See Council Decision 2004/ 566/ JHA of 26 July 2004
am ending Decision 2000/ 820/ JHA est ablishing a European Police College ( CEPOL) , OJ L251/ 19,
27.7.2004 ; Council Decision 2004/ 567/ JHA of 26 July 2004 am ending Decision 2000/ 820/ JHA
est ablishing a European Police College ( CEPOL) , OJ L251/ 20, 27.7.2004
77
Council of t he European Union ( 2004) , “ Three year report on t he operat ion and fut ure of t he
European Police College” , 5880/ 04, 2.2.2004.
78
European Com m ission ( 2004) , Proposal for a Council Decision est ablishing t he European Police
College ( CEPOL) as a body of t he European Union, COM( 2004) 623 final, 1.10.2004.
79
Council Decision 2005/ 681/ JHA of 20 Sept em ber 2005 est ablishing t he European Police College
( CEPOL) and repealing Decision 2000/ 820/ JHA, OJ L256/ 63, 1.10.2005.
80
European Court of Audit ors ( 2008) , “ Report on t he annual account s of t he European Police
College for t he financial year 2007 t oget her wit h t he College’s replies” , OJ C311/ 136, 5.12.2008.
81
European Court of Audit ors ( 2009) , “ Report on t he annual account s of t he European Police
College for t he financial year 2008 t oget her wit h t he College’s replies” , OJ C304/ 124, 15.12.2009.
82
Decision of t he European Parliam ent of 5 May 2010 on discharge in respect of t he im plem ent at ion
of t he budget of t he European Police College for t he financial year 2008 ( 2010/ 556/ EU) , OJ L
252/ 232, 25.9.2010.
83
European Parliam ent ( 2010) , Resolut ion of t he European Parliam ent of 5 May 2010 wit h
observat ions form ing an int egral part of it s Decision on dischar ge in respect of t he im plem ent at ion
of t he budget of t he European Police College for t he financial year 2008, OJ L252/ 233, 25.9.2010.
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College. 84 The sam e developm ent occurred wit h regard t o t he account s of t he College for
2009, wit h t he European Parliam ent init ially post poning discharge on t he basis of t he
ECA’s report , 85 before finally grant ing it in it s Decision of 25 Oct ober 2011. 86
D e spit e t he t e n sion s a r ising fr om t h e qu e st ion ing of CEPOL’s a dm in ist r a t ive
via bilit y, t h e se de ve lopm e n t s de m on st r a t e w h a t a n e ffe ct ive con t r ol of t h e
Eu r ope a n Pa r lia m e n t ove r t h e a ct ivit ie s of EU a ge n cie s, bodie s a nd se r vice s in
t h e fie ld of in t e r na l se cu r it y cou ld look lik e .
2.5.2.2.
Net work or academ y? The inherit ance of past decisions and t he possible m erger
wit h Europol
I n t he various resolut ions accom panying it s decisions on discharge in respect of t he
im plem ent at ion of t he CEPOL budget for 2008 and 2009, t he European Parliam ent has
m ent ioned repeat edly t he fact t hat , given it s current size and adm inist rat ive difficult ies in
coping wit h t he requirem ent s of EU financial and st aff regulat ion, t he possibilit y of a
relocat ion of t he College and a m erging of it s responsibilit ies wit h t hose of Europol. 87 The
difficult ies encount ered by t he CEPOL, beyond specific individual responsibilit ies, are
however largely an effect of t he t ension bet ween t he ‘net work m odel’ and t he ‘academ y
m odel’ t hat have inform ed discussions on European police cooperat ion in t he field of
t raining since t he lat e 1980s.
The est ablishm ent of CEPOL as a body of t he European Union, in t his regard, did not bring
any change t o t he sit uat ion. Besides giving t he College legal personalit y, Council Decision
2005/ 681/ JHA reproduces t he orient at ions and language of Council Decision
2000/ 820/ JHA. As report ed in a let t er from Caroline Flint , MP ( at t he t im e Parliam ent ary
Under Secret ary of St at e at t he Hom e Office) t o t he House of Lords European Union
Com m it t ee, t he proposal from t he Com m ission was init ially m et wit h fierce opposit ion
from som e Mem ber St at e delegat ions, t o t he ext ent t hat discussions did not even t ake
place at t he m eet ing of t he Police Co- operat ion Working Part y ( PCWP) t hat was supposed
t o exam ine it in Decem ber 2004. 88 The CEPOL Governing Board approved it , on t he
condit ion t hat “ t he role and posit ion of t he CEPOL net work would not be affect ed and t hat
t he aut horit y of t he Governing Board would not be dim inished” . 89 The not e accom panying
t he t ransm ission of t he final version of t he Council Decision est ablishing CEPOL t o
COREPER not es in t his respect t hat “ t he Council w ishes t o re- affirm t hat CEPOL m aint ains
it s net work charact er [ …] not wit hst anding cert ain provisions of t he current proposal for a
Council Decision” . 90
84
Decision of t he European Parliam ent of 7 Oct ober 2010 on discharge in respect of t he
im plem ent at ion of t he budget of t he European Police College for t he financial year 2008
( 2010/ 756/ EU) , OJ L320/ 11, 7.12.2010.
85
Decision of t he European Parliam ent of 10 May 2011 on discharge in respect of t he
im plem ent at ion of t he budget of t he European Police College for t he financial year 2009
( 2011/ 619/ EU) , OJ L250/ 268, 27.9.2011.
86
European Parliam ent Decision of 25 Oct ober 2011 on discharge in respect of t he im plem ent at ion
of t he budget of t he European Police College for t he financial year 2009 ( C7- 0241/ 2010 –
2010/ 2181( DEC) , pending publicat ion in t he Official Journal, 25.10.2011.
87
European Parliam ent ( 2011) , European Parliam ent resolut ion of 25 Oct ober 2011 wit h
observat ions form ing an int egral part of it s Decision on dischar ge in respect of t he im plem ent at ion
of t he budget of t he European Police College for t he financial year2009 ( C7- 0241/ 2010 –
2010/ 2181( DEC) ) , A7- 0330/ 2011, 25.10.2011.
88
House of Lords ( 2004) , Select Com m it t ee on European Union Fourt h Report : Let t er from Caroline
Flint
MP
to
t he
Chairm an,
London,
15
Decem ber
2004
( www.publicat ions.parliam ent .uk/ pa/ ld200506/ ldselect / ldeucom / 16/ 16216.ht m ) .
89
I bid.
90
Council of t he European Union ( 2004) , Adopt ion of a proposal for a Council Decision est ablishing
t he European Police College ( CEPOL) , 10534/ 05, 24.6.2005, p. 1.
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The m erging of t he College’s t raining act ivit ies, in t his respect , had already been
discussed at t he t im e when CEPOL’s est ablishm ent as a body of t he European Union was
considered. However, bot h Europol and represent at ives of nat ional police colleges were
opposed t o t his scenario. 91 The five year ext ernal evaluat ion on t he College, approved by
t he CEPOL Governing Board on 16 March 2011, suggest t hat t his proposal is st ill current ly
m et wit h st rong opposit ion am ong t he m em bers of t hat body ( 80% dissent ing opinions) .
I t furt her point s out t hat such a developm ent would negat e t he effort s current ly underway
by EU JHA agencies t o st rengt hen cooperat ion am ong t hem selves. 92 Rat her t han ‘colocat ion’ bet ween t he CEPOL secret ariat and Europol, t he evaluat ion suggest s t o exam ine
t he possibilit y of m erging agency adm inist rat ive funct ions such as audit or hum an
resources m anagem ent . I n any case, t he European Parliam ent has request ed t he ECA t o
conduct a st udy in t he course of 2012 on t he feasibilit y and effect s of such a m erger.
2.5.3.
2.5.3.1.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y and t he
I SS
The CEPOL five- year report
The CEPOL five- year report , adopt ed by t he College’s Governing Board on 16 March 2011,
is t he follow- up t o t he previous 2006 CEPOL t wo- year report and t he 2003 t hree- year
report . 93 I t depict s an agency t hat is am ong t he sm allest of EU bodies in t erm s of budget
and st aff 94 - t he oft en quot ed figure here, including by t he European Parliam ent
resolut ions on t he College, is t hat t he CEPOL Secret ariat has around 20 st aff, and 27
Mem ber St at e represent at ives on it s governing board. The report echoes ot her
evaluat ions and t he European Parliam ent ’s com m ent s, in point ing out t he problem s raised
by t he size of CEPOL Governing Board m eet ings where som e Mem ber St at es can
som et im es send several represent at ives, including wit h regard t o t he pace of decisionm aking in such condit ions and t he cost s incurred by t he organisat ion of large m eet ings. 95
CEPOL is also one of t he few EU bodies, t oget her wit h EUROJUST, where t he European
Com m ission holds a non- vot ing observer posit ion on t he Governing Board – despit e
having t he power t o define t he am ount of t he subsidy grant ed t o t he College from t he
Com m unit y budget .
The CEPOL five- year report raises a num ber of quest ions as regards t he fut ure of t he
College in t he cont ext of t he Lisbon Treat y and t he I SS. These quest ions becom e
part icularly relevant when considering t he em phasis placed on cooperat ion bet ween JHA
agencies in t he act ivit ies of t he COSI as well as in t he CEPOL’s own st rat egy docum ent .
They can be sum m arised as follows:
1. Sh ou ld CEPOL be m a de in t o a fu ll a ge ncy of t h e Eu r ope a n Un ion ? At t he
m om ent , CEPOL is considered an agency in it s observat ion of EU financial and st aff
regulat ion, but it s funct ioning is st ill heavily influenced by t he t ensions bet ween t he
‘net work’ and ‘academ y’ m odels in European cooperat ion in t he field of police
t raining. The ot her opt ion here would be t he discont inuat ion of CEPOL’s
aut onom ous act ivit ies and it s re- locat ion, bot h physical and adm inist rat ive, wit hin
Europol. Making CEPOL a full agency of t he EU, on t he ot her hand, would m ean
revising Council Decision 2005/ 681/ JHA. Such a revision would include
reconsidering t he division of labour bet ween t he Governing Board and t he
91
Ram boll- Euréval- Mat rix ( 2009) , “ Evaluat ion of t he EU decent ralised agencies in 2009 – Final
Report Volum e I I I : Agency level findings” , Brussels, Decem ber 2009, p. 25.
92
Council of t he European Union ( 2011) , CEPOL five- year report , 7764/ 11, 17.3.2011, p. 41.
93
See Council of t he European Union ( 2006) , “ Two Year Report on t he Operat ion and Fut ur e of t he
European Police College” , 5727/ 06, 7.2.2006 ; Council of t he European Union ( 2003) , “ Three year
report on t he operat ion and fut ure of t he European Police College” , 15722/ 03, 9.12.2003.
94
Com pare wit h t he report from t he European Parliam ent ’s Budget ary Support Unit t o t he
Com m it t ee on Budget s: Jones, Fabia ( 2007) , “ Agencies: origins of t asks, local condit ions and
st affing, PE 381.092, European Parliam ent , Brussels, 17.10.2007.
95
See Council docum ent 7764/ 11, op. cit ., pp. 30- 36.
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Secret ariat . The five- year report recom m ends for inst ance t o reduce t he size of t he
Governing Board and t o clearly dist inguish bet ween operat ional t asks, ent rust ed t o
t he Direct or, and st rat egic t asks, which would rem ain wit hin t he rem it of t he
Governing Board. 96 By t he sam e t oken, t he possibilit y of grant ing vot ing right s t o
t he Com m ission represent at ive on t he Governing Board would reflect t he influence
t hat t his inst it ut ion exercises over t he budget ary orient at ions of CEPOL. Besides
t he m erger wit h Europol, such t ransform at ions would also enable t he European
Parliam ent t o ensure t hat it s budget ary checks on t he College and relat ed
observat ions have been t aken int o account .
2. W h a t shou ld t h e pr ior it ie s of CEPOL be ? The five- year report argues for a
clarificat ion of t he College’s m andat e and a great er focalisat ion on European and
cross- border issues, in line wit h t he priorit ies laid out in t he EU I nt ernal Securit y
St rat egy and European Com m ission I SS in Act ion com m unicat ion on serious and
organised crim e, t errorism and cyber- crim e. I n line wit h t he observat ions laid out
so far in t he st udy, however, one could argue t hat t here is also a need t o furt her
develop t he work of CEPOL in t he areas of account abilit y, t ransparency and
fundam ent al right s in EU int ernal securit y policies, as well as in t he prom ot ion of a
European area t hat effect ively com bines freedom , securit y and j ust ice.
2.5.3.2.
The st at us of t raining in EU int ernal securit y priorit ies and t he CEPOL st rat egy
The discussion on CEPOL’s st anding in t he current landscape of EU int ernal securit y
agencies, bodies and services is indeed relat ed t o a broader issue, i.e. t hat of t he st at us of
t raining as a priorit y in EU int ernal securit y policies. I n t he EU I nt ernal Securit y St rat egy,
t raining is associat ed wit h innovat ion and t he use of t echnology for int ernal securit y
purposes. The st at ed aim is t o est ablish “ law- enforcem ent , j udicial and border
m anagem ent aut horit ies t hat have advanced t echnology and are at t he forefront of t heir
specialisat ion” , t o prom ot e “ a shared cult ure am ong European law- enforcem ent bodies”
and t o facilit at e t ransnat ional cooperat ion. 97 The m odel advocat ed by t he EU I SS,
however, is of dist ribut ed t raining responsibilit ies am ong “ European agencies and bodies,
especially CEPOL” . 98
These specificat ions raise t hree quest ions:
1. Sh ou ld Eu r ope a n coope r a t ion in t h e fie ld of t r a in in g be a im e d a t
spe cia lisa t ion ? CEPOL act ivit ies are already focused on senior- t o m iddlem anagem ent police officers. The I SS furt her seem s t o suggest t hat t raining should
be delivered in priorit y t o specialised police unit s, in order t o reinforce t heir already
highly focused areas of com pet ence. Shou ld a n e ffor t be m a de , in t h is r e ga r d,
t o r e a ch ou t t o loca l a n d m u n icipa l police for ce s, w hich m ight be t he one s
con fr on t e d on t h e m ost r e gula r ba sis w it h t h e cr im ina l a ct ivit ie s t h a t
m ost ly con ce r n EU cit ize n s? I n a sim ilar way, t he prom ot ion of a ‘shared
cult ure’ goes hand in hand wit h com m on underst andings of crim inal offences. I n it s
recent ly adopt ed report on organised crim e in t he European Union, t he European
Parliam ent calls for exam ple on t he Com m ission “ t o subm it , by t he end of 2013, a
proposal for a direct ive which cont ains a m ore concret e definit ion of organised
crim e and bet t er ident ifies t he key feat ures of t he phenom enon” . 99 Legal definit ions
and operat ional definit ions of organised crim e used in t he work of EU agencies,
bodies and services have also been found t o be cont radict ory in som e cases. 100
96
I bid., pp. 104- 106.
97
Council docum ent 5842/ 2/ 10, p. 16.
98
I bid.
99
European Parliam ent ( 2011) , Report on organised crim e in t he European Union ( 2010/ 2309( I NI ) ) ,
A7- 0333/ 2011, 6.10.2011, p. 10.
100
V. Mit silegas ( 2011) , The Council Fram ework Decision on t he Fight against Organised Crim e:
What can be done t o st r engt hen EU legislat ion in t he field?, PE 453.195, European Parliam ent ,
Brussels, 7.2011.
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Here t he CEPOL could provide som e input s, on t he basis of t he work t hat it is
support ing on police research and science, bringing t oget her academ ics and
pract it ioners, but also t hrough it s post - course evaluat ion work, which was
ident ified as a well- funct ioning area of CEPOL act ivit ies in t he five- year report on
t he College. 101
2. Sh ou ld t r a in in g r e spon sibilit ie s be dist r ibu t e d a m ong EU a ge ncie s, bodie s
a n d se r vice s? Previous point s have highlight ed t he t ension bet ween t he not ion of
a European Police College, relat ed in it s form t o a ‘police academ y’ m odel, and it s
act ual funct ioning as a net work. Sh ou ld t he r e infor ce m e n t of CEPOL, r a t h e r
t h a n it s ph ysica l a n d a dm in ist r a t ive r e - loca t ion w it h in Eu r opol be
con side r e d, on e issu e for discu ssion is cle a r ly w h e t h e r it is in t e r e st in g t o
h a ve diffe r e n t t r a inin g ne t w or k s, e.g. such as t he Front ex Part nership
Academ ies net work. Since CEPOL is already operat ing as a net work, t here is hardly
any possibilit y t hat such a discussion m ight lead t o t he const it ut ion of a
cent ralised, EU- wide facilit y for t he t raining of all int ernal securit y professionals, or
t hat t he specific t raining requirem ent s of each profession ( e.g. cust om s, border
guards, organised crim e unit s or gendarm erie- like forces) would event ually be
denied. I t would also reflect ongoing cooperat ion, for exam ple bet ween CEPOL and
FRONTEX, or t he work being conduct ed by CEPOL and EUROJUST on t he
developm ent of a com m on curriculum on EUROJUST. 102
3. Sh ou ld a ‘sh a r e d cu lt u r e ’ a m on g EU int e r n a l se cu r it y a ge n cie s, bodie s a n d
se r vice s pr om ot e t h e AFSJ a s a w hole ? The new legal fram ework int roduced by
t he Lisbon Treat y im plies t hat European int ernal securit y professionals will
regularly have t o assess how t heir act ivit ies relat e t o t he Chart er of Fundam ent al
Right s and t he case- law of t he ECJ. Hum an Right s are specifically m ent ioned as a
t raining priorit y in t he CEPOL st rat egy for t he next five years adopt ed a year
ago. 103 I t does not , however, explicit ly envisage coordinat ion m echanism s bet ween
t he College and bodies such as t he European Dat a Prot ect ion Supervisor and t he
Fundam ent al Right s Agency, which could cert ainly cont ribut e t o t he devising of
com m on curricula alongside t he work already done on j udicial m at t ers wit h
EUROJUST.
2 .6 .
2.6.1.
EUROJUST
Background on t he agency
1999: The decision t o est ablish a perm anent j udicial co- operat ion unit t o im prove
t he fight against organised crim e and t ransborder crim es is t aken during t he
Tam pere Council.
2002: EUROJUST is form ally est ablished ( Council Decision 2002/ 187/ JHA set t ing up
EUROJUST)
EUROJUST const it ut es t he first European j udiciary unit in charge of coordinat ing and
prom ot ing cooperat ion bet ween Mem ber St at es in relat ion t o crim inal j ust ice. I t s m ission
is t o enhance t he developm ent of cooperat ion on crim inal j ust ice cases t hroughout
Europe. I t s int ergovernm ent al dim ension has for consequence t hat each prosecut or sit t ing
in t he College of EUROJUST is a ‘nat ional m em ber’ represent ing his own Cent ral
aut horit ies. EUROJUST is com posed of nat ional prosecut ors, m agist rat es, or police officers
of equivalent com pet ence, det ached from each Mem ber St at e according t o it s legal
syst em .
101
Council docum ent 7764/ 11, op. cit., p. 108.
102
For an overview, see t he exam ples provided in Council of t he European Union ( 2011) , “ Report on
t he cooperat ion bet ween JHA Agencies in 2010” , 5675/ 11, 25.1.2011.
103
Council of t he European Union ( 2010) , “ CEPOL St rat egy” , 15068/ 10, 18.10.2010.
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2005: EUROJUST developed an aut onom ous syst em of dat a m anagem ent
Following t he adopt ion of rules of procedure concerning t he t reat m ent and t he prot ect ion
of personal dat a by t he Council on 24 February 2005, EUROJUST est ablished an
aut onom ous syst em of dat a m anagem ent ( Case Managem ent Syst em – CMS) . The aim of
CMS is t he safe exchange of j udicial inform at ion bet ween EUROJUST m em bers and
nat ional j udicial aut horit ies. I n 2006, EUROJUST st art ed developing a syst em of dat a
t reat m ent t hrough t he E- POC ( European Pool against Organised Crim e) proj ect fram ework
I I I , in order t o im prove inform at ion exchange bet ween various nat ional support E- POCs.
EPOC I I I + was launched in April 2008 wit h t he aim of increasing t he user- friendliness of
t he CMS.
2007: t he European Com m ission proposed legislat ion for increasing t he powers of
EUROJUST.
The proposals include t he harm onisat ion of t he powers held by t he nat ional
represent at ives, which current ly vary, wit h a m inim um set of powers and a m inim um
t hree year long renewable t erm t o increase cont inuit y. Mem bers would also have
aut om at ic access t o nat ional dat abases, t errorist cases, and crim inal, DNA and prison
records. I n part icular, t he connect ion of EUROJUST t o t he Schengen syst em went live in
Decem ber 2007. This connect ion allows EUROJUST nat ional m em bers t o access t he SI S
syst em .
The Council Decision 2009/ 426/ JHA on t he st rengt hening of EUROJUST ent ered
int o force in 2009.
The significant changes t hat it int roduces in t he legal fram ework of EUROJUST required
subst ant ial im plem ent at ion effort s from bot h t he Mem ber St at es and EUROJUST t hat are
st ill underway 104 . The Decision gives a cent ral place t o st rengt hening EUROJUST casework
capacit ies. The Decision m akes new powers available t o EUROJUST; inform at ion flows and
co- ordinat ion wit h nat ional aut horit ies are facilit at ed; t he 24/ 7 nat ure of EUROJUST’s work
is put on a form al basis; and EUROJUST host t he Secret ariat of t he Net work for Joint
I nvest igat ion Team s and ot her net work secret ariat s.
2.6.2.
2.6.2.1.
Ongoing debat es and challenges
An agency in search of a posit ioning
The EUROJUST’s search for an ident it y cannot be underst ood wit hout t aking int o account
EUROJUST count erpart in t he European securit y landscape: EUROPOL. Th e m a in
pr oble m of EUROJUST is it s posit ion ing in be t w e e n pr ose cu t ion ( H om e Affa ir s)
a n d Ju st ice ( in clu din g H um a n Righ t s) . While som e act ors wished t he creat ion of
EUROJUST t o see it one day cont rol EUROPOL and at t he very least prove European
j udicial cooperat ion m ore efficient t han police cooperat ion, t hese am bit ions have ever
since been fully abandoned. I t seem s t hat t he relat ions bet ween police and j ust ice at t he
European level have rat her evolved in favour of t he police com ponent . I ndeed,
EUROJUST’s College is nearly exclusively com posed of nat ional prosecut ors ( a part from
t he police officers appoint ed by som e count ries in accordance wit h t heir nat ional syst em s
and from t he not able except ion of t he Aust rian m em ber) – in ot her words of m agist rat es
from t he respect ive Mem ber St at es accusat ory aut horit ies. This developm ent is crucial
because t he lat t er are increasingly following or at least subm it t ed t o an int elligence- led
rat ionale. I ndeed, alt hough prosecut ors focus on deeds of ‘real’ individuals ( as opposed t o
profiles) , t heir m ain role is t o assist t he police in t ransform ing t he dat a collect ed int o
legally com pelling evidence t hat can be used in a court of law. I n t his respect , given t he
prevent ive logic prevailing in j udicial and invest igat ory police act ivit ies since 9/ 11,
prosecut ors are de fact o involved in t he int elligence approach t o t hreat s as opposed t o an
104
See House of Lord ( 2004) , “ Judicial Cooperat ion in t he EU: t he role of Euroj ust ” , Special Report ,
London.
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approach focusing on t he right s of t he defence. At t he European level, we are hence
wit nessing a dual j udicial subfield: one m ainly linked t o prosecut ors and very close t o t he
accusat ory aut horit ies of t he Mem ber St at es and a second m ore m arginalised one focusing
less on t he accusat ion t han on procedural right s and especially t he right s of t he defence.
Since t he division of DG JLS in t he European Com m ission, EUROJUST is dealt wit h by DG
Just ice, which does not cont ribut e t o clarify t his aspect .
2.6.2.2.
An agency in search of recognit ion
Furt herm ore, in com parison t o ot her agencies, EUROJUST has been less visible and
publicized in t he European landscape since it s est ablishm ent . Even t hough EUROJUST has
pulled great effort s in t he last years t o im prove it s im age in t he European public, t hrough
m arket ing exercises ( such as conferences at t he Ecole Nat ionale de la Magist rat ure –
ENM, College de Bruges, et c) , EUROJUST st ill suffers from a lack of recognit ion. As
rem inded by som e of t he EUROJUST st aff, EUROPOL rings a bell in public opinion because
of t he “ POL” suffix t hat is underst andable. I t ’s not t he case for EUROJUST, and no one
really knows what EUROJUST is precisely doing.
Som e Joint I nvest igat ions Team s ( JI Ts) , wit h m easurable effect s bot h in t erm s of
operat ional efficiency and effect ive cooperat ion wit h EUROPOL const it ut e few except ions
where EUROJUST is advert ised publicly. ‘Operat ion Koala’, a case involving sexual abuse
of children is for inst ance oft en present ed as one of t he success st ories of EUROJUST. The
operat ion began in 2006 and involved offenders from Aust ralia, Belgium , and I t aly.
Success was achieved in t his operat ion by t he provision of valuable dat a by Mem ber
St at es and I nt erpol and crim e analysis for m ore t han a year carried out by specialist s in
online child sex abuse cases at EUROPOL and t he j udicial co- ordinat ion carried out by
EUROJUST. EUROJUST and EUROPOL, working in close co- operat ion, invit ed
represent at ives from 28 count ries t o several operat ional m eet ings in The Hague. At
EUROJUST, t he Belgian and I t alian Nat ional Mem bers t ook t he init iat ive t o co- ordinat e, on
a j udicial level, all t he count ries involved. Subsequent invest igat ions were init iat ed by t he
nat ional aut horit ies, which led t o a significant num ber of arrest s and t he seizure of a
considerable am ount of child abuse m at erial.
The under- use of EUROJUST capacit ies has been indeed an ongoing challenge since it s
est ablishm ent in 2002. Even if EUROJUST m ult iply init iat ives t o publicize it s t ools and
‘added value’, lack of inform at ion prevails and explains part ly som e MS’ reserves t o refer
t o EUROJUST in crim inal invest igat ions. Mut ual t rust and t he im port ance of inform al or
personal relat ions are st ill privileged t o im prove t he cooperat ion logic. Not iceable
evolut ions are underway, wit h a significant increase of co- ordinat ion m eet ings. Such
m eet ings have becom e t he m ost com m on vehicle for t he exchange of inform at ion on
linked invest igat ions and for planning j oint act ions. These m eet ings allow com pet ent
nat ional aut horit ies and EUROJUST Nat ional Mem bers, including represent at ives from
relevant EU part ners such as EUROPOL and OLAF, where appropriat e, t o agree a com m on
st rat egy bet ween Mem ber St at es, t o plan and co- ordinat e sim ult aneous invest igat ions and
act ions ( such as arrest s, searches, and seizure of propert y) , t o ant icipat e and resolve
legal difficult ies, and t o facilit at e t he execut ion of subsequent Mut ual Legal Assist ance
( MLA) request s. The 2009 figures available in EUROJUST annual report show t hat m ost
m eet ings were request ed by France, t he UK and I t aly, wit h 29, 19 and 14 co- ordinat ion
m eet ings, respect ively.
The 2009 EUROJUST report gives opt im ist ic views on t hese m at t ers and underlines a
subst ant ial increase in t he num ber of cases t hat Mem ber St at es referred t o EUROJUST.
There was a 15 per cent rise in caseload com pared t o t he preceding year, wit h alm ost
1,400 new cases regist ered on EUROJUST’s Case Managem ent Syst em . The set t ing up of
Joint I nvest igat ion t eam s ( JI Ts) is also seen as a real im provem ent t o overcom e MS
reserve. Nevert heless, t he lack of inform at ion about t he possibilit ies offered by t he
Fram ework Decision of 13 June 2002 on Joint I nvest igat ion Team s, as well as t he
pract it ioners’ lack of fam iliarit y wit h t he concept of JI Ts, have been const ant ly t arget ed as
problem s. I n an effort t o rem edy t he sit uat ion, t he JI T Manual, creat ed j oint ly by
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EUROJUST and EUROPOL, is now available as Council Docum ent 13598/ 09 of 23
Sept em ber 2009 in all 23 official languages.
However, t he EUROJUST report does not m ent ion t he difficult ies encount ered in JI Ts. I f a
JI T does indeed facilit at e cooperat ion, successful cooperat ion rem ains dependent on
num erous ot her fact ors, such as clear legal fram ework, m ut ual underst anding and
agreem ent bet ween various MS and professional cult ures, and, m ore im port ant ly, on a
willingness t o engage in int ensified cooperat ion on t he st rat egic, t he operat ional, as well
as t he polit ical level. 105 Moreover, if t he est ablishm ent of t he European Arrest Warrant s
( EAWs) is present ed in EUROJUST Report s as a EUROJUST ‘added value’, t he legal
obst acles are indeed difficult t o overcom e. I n 2009 t he legal inst rum ent s m ost oft en used
in j udicial co- operat ion were t he 1959 and 2000 Mut ual Legal Assist ance Convent ions, and
t he Fram ework Decision of 13 June 2002 on t he EAW and t he surrender procedures
bet ween Mem ber St at es. A t ot al of 256 cases were regist ered at EUROJUST in 2009
concerning t he execut ion of EAWs. This figure am ount s t o alm ost 19 per cent of all cases
regist ered in t he year. However, num erous problem s have been flagged by Mem ber
St at es, European and nat ional parliam ent arians, groups from civil societ y and individual
cit izens’ in relat ion t o t he operat ion of t he EAW 106 :
no ent it lem ent t o legal represent at ion in t he issuing st at e during t he surrender
proceedings in t he execut ing st at e;
det ent ion condit ions in som e Mem ber St at es com bined wit h som et im es lengt hy
pre- t rial det ent ion for surrendered persons;
non- uniform applicat ion of a proport ionalit y check by issuing st at es, result ing in
request s for surrender for relat ively m inor offences t hat , in t he absence of a
proport ionalit y check in t he execut ing st at e, m ust be execut ed.
However, as a result of t he ent ry int o force of t he Lisbon Treat y and t he legally binding
nat ure of t he Chart er of Fundam ent al Right s, t he provisions in t he Lisbon Treat y
governing legislat ive inst rum ent s in t he area of police and j udicial cooperat ion have
changed t he cont ext in which t he EAW operat es. The Com m ission is current ly working on
a roadm ap for st rengt hening t he procedural right s of suspect ed or accused persons in
crim inal proceedings. The roadm ap indent ifies t he following six priorit y m easures: t he
right t o int erpret at ion and t ranslat ion; t he right t o inform at ion about right s ( Let t er of
Right s) ; pre- t rial legal advice and at - t rial legal aid; a det ained person's right t o
com m unicat e wit h fam ily m em bers, em ployers and consular aut horit ies; prot ect ion for
vulnerable suspect s; a green paper on pre- t rial det ent ion.
2.6.3.
Key areas of concern for t he fut ure in t he cont ext of t he Lisbon Treat y and t he
I SS
The key areas of concern are t he following:
1. EUROJUST and a quest for a renewed posit ion in t he securit y landscape;
2. The issue of Dat a regulat ion & prot ect ion;
3. EUROJUST’ account abilit y ;
4. Art icles 85 ( powers of init iat ing invest igat ions) & 86 ( EPPO) of t he Lisbon Treat y
105
C. Rij ken ( 2006) , “ Lessons learnt from
www.ut recht lawreview.org/ Volum e 2, I ssue 2.
t he
first
effort s
to
est ablish
a
JI T” ,
106
See COM( 2011) 175 final, Brussels, 11.4.2011. REPORT FROM THE COMMI SSI ON TO THE
EUROPEAN PARLI AMENT AND THE COUNCI L On t he im plem ent at ion since 2007 of t he Council
Fram ework Decision of 13 June 2002 on t he European arrest warrant and t he surrender pr ocedures
bet ween Mem ber St at es.
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2.6.3.1.
EUROJUST and a quest for a renewed posit ion in t he securit y landscape
Wit hin t he EU securit y landscape, EUROJUST is oft en perceived as an ‘out sider’. For
inst ance, m any EUROJUST represent at ives lam ent t he fact t hat t he EUROJUST
cont ribut ion in OCTAs and TE- SATs is underest im at ed, and t hat EUROJUST is not invit ed
t o present t he TE- SATs along wit h EUROPOL at t he European Parliam ent . At t he nat ional
level, t he fact t hat none of t he EUROJUST st aff has been invit ed t o subm it evidences or
part icipat ing t o t he hearings undert aken by t he House of Lords EU Sub- Com m it t ee ( Hom e
Affairs) invest igat ing t he EU I SS is quit e enlight ening. This exam ple is even m ore explicit
when t he fact t hat UK is one of t he m ost frequent ‘client ’ of EUROJUST capacit ies is t aken
int o account .
At t he European level, EUROJUST has been alm ost ‘forgot t en’ in t he elaborat ion of t he
I SS. A m em ber of EUROJUST confessed t hat t he part icipat ion of EUROJUST in t he j oint
report ( EUROPOL, EUROJUST, FRONTEX) has been negot iat ed in ext rem is. Most of t he
EUROJUST described a feeling of “ unease” when it com es t o I SS and underlined t he police
prevalence, t he persist ent lack of underst anding bet ween m agist rat es and police
represent at ives. At t he COSI m eet ings, only France, Belgium and Net herlands send
represent at ives of t he j udicial aut horit ies. A cert ain current degree of frust rat ion is
perceivable.
Am ong t hem , t he quest for legit im acy of EUROJUST in count ert errorism issues is
perceivable. Even if t errorism cases represent no m ore t han 21 cases in 2009 and have
known a const ant decrease since 2004, EUROJUST claim s for it s added value in t he field.
Aft er t he Madrid Bom bings, EUROJUST t ook t he init iat ive t o set up t echnical m eet ings and
t o build up a net work, in order t o have a clear view of t he legislat ive im plem ent at ions.
According t o EUROJUST m em bers of st aff, EUROJUST has act ed since as a facilit at or for
j udicial cooperat ion in t errorism cases. Where EUROPOL claim s for it s added value in
t erm s of prevent ion and ant icipat ion, EUROJUST claim s for t he acknowledgm ent of it s
value at t he ‘end of t he cycle’, i.e. on convict ions. Furt herm ore, EUROJUST is invest ing
since 2008 in a ‘t errorism convict ions m onit or’ ( TCM) which gat hers inform at ion on
t errorism convict ions and acquit t als based on open sources and provides analyt ical and
st at ist ical inform at ion.
EUROJUST also prom ot e it s role in OCTAs and T- SATs Report s. EUROJUST has indeed
cont ribut ed t o t he last OCTA Report . Frust rat ions generat ed by t his underm ined
cont ribut ion have been num erous. The result is t hat EUROJUST is t hinking of producing it s
own report on Organised Crim e. On Te- Sat Report , according t o t he t eam responsible for
providing inform at ion t o EUROPOL analyst s, you can easily ident ify part of t he report
m ade by EUROJUST, wit h no m ent ions of EUROJUST cont ribut ions.
According t o som e EUROJUST officials, subst ant ial cont ribut ions should be channelled
t hrough EUROJUST part icipat ion in COSI m eet ings. The idea of EUROJUST act ing as a
m ediat or bet ween t he Consult at ive Forum of t he General Prosecut ors and Direct ors of
Public Prosecut ions and COSI is underway. This forum , est ablished in 2010 and consist ing
of t he Prosecut ors- General and t he Direct ors of Public Prosecut ions from am ong t he 27
Mem ber St at es of t he European Union, m eet at t he invit at ion and under t he direct ion of
t he count ry holding t he Presidency of t he EU Council and t akes place at t he headquart ers
of EUROJUST in The Hague. The aim of such m eet ings is t he building of a net work of
cont act s bet ween senior officials of t he Mem ber St at es of t he European Union responsible
for t he j udicial syst em .
More generally, EUROJUST is cle a r ly se e k in g a n ide nt it y in t h e I SS, w h ile t r ying t o
in cr e a se it s in volve m e n t in t he EU se cu r it y la n dsca pe .
2.6.3.2.
The issue of dat a regulat ion & prot ect ion
I n handling personal and ot her dat a EUROJUST is subj ect t o t he dat a prot ect ion provisions
of t he EUROJUST Decision. A Dat a Prot ect ion Officer has been appoint ed in 2003.
Alt hough working under t he aut horit y of t he EUROJUST College, t he Dat a Prot ect ion
Officer has an independent role in ensuring t he lawfulness and com pliance of EUROJUST
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processing of personal dat a wit h t he requirem ent s of t he Decision. Ext ernal supervision is
provided by an independent Joint Supervisory Body.
As right fully underlined by t he LI BE Com m it t ee in his report ( LI BE Report 2008 A60293/ 2008) , it is of cr it ica l im por t a n ce t o e n su r e a n a de qu a t e le ve l of pe r sona l
da t a pr ot e ct ion in a ct ivit ie s of EUROJUST. Taking st ock of t he st rong dat a prot ect ion
syst em est ablished at EUROJUST, t he rapport eur subm it t ed addit ional safeguards t o dat a
prot ect ion at EUROJUST. I n part icular, t he Rapport eur highlight ed t he following
am endm ent s:
1. Persons who have been t he subj ect of a crim inal invest igat ion based on a
EUROJUST request but have not been prosecut ed should be inform ed about t hat
invest igat ion no lat er t han one year aft er t he decision not t o prosecut e has been
t aken;
2. Only personal dat a on persons who are wit nesses or vict im s in a crim inal
invest igat ion or a prosecut ion can be processed. No ot her dat a can be processed
3. I n case of dat a sharing wit h t hird part ies, it is im port ant t o clarify how
dat a prot ect ion level could be assessed and not t o leave t o t hird
organisat ions t o decide upon t hat on a case- by- case basis. I ndeed,
clear what happens aft erwards t o t he inform at ion t ransm it t ed
( int ernat ional organisat ions and bodies and t hird count ries) .
adequacy of
part ies and
it is not yet
t o part ners
I n t he 2008 Council Decision on t he st rengt hening of EUROJUST, EUROJUST should be
aut horised t o process cert ain personal dat a on persons who, under t he nat ional legislat ion
of t he Mem ber St at es concerned, are suspect ed of having com m it t ed or having t aken part
in a crim inal offence in respect of which EUROJUST is com pet ent , or who have been
convict ed of such an offence. Furt herm ore, EUROJUST is given t he opport unit y t o ext end
t he deadlines for st orage of personal dat a.
Th e e lu sive for m u la t ion of t h e D e cision r e qu ir e s fu ll a t t e n t ion a nd, t h e r e for e
EUROJUST’ fut ur e use of da t a should be m onit or e d. I n part icular, any process of
personal dat a should receive furt her EP at t ent ion. Under t he changing of circum st ances
provided by t he Lisbon Treat y ( co- decision) , t he European Parliam ent can now be m ore
involved in dat a prot ect ion issues and should receive report s prepared by t he Joint
Supervisory Body of EUROJUST on t hat m at t er. Am ong t he review m echanism s, by June
2014, t he Com m ission is t o review dat a exchange bet ween EUROJUST’s nat ional
m em bers. By June 2013, EUROJUST is t o report t o t he Council and t he Com m ission on t he
provision of nat ional access t o it s case m anagem ent syst em . The process of dat a and t he
subsequent ‘t echnological’ challenges are det ailed furt her in t he sect ion 3.2.
2.6.3.3.
EUROJUST account abilit y
As advocat ed by t he LI BE Com m it t ee, inform at ion on operat ion of EUROJUST should not
only be sent t o t he European Parliam ent . The possibilit y t o hear a EUROJUST
represent at ive com ing in person, and allow ing Mem bers of t he European Parliam ent t o ask
quest ions and t o have a debat e should be est ablished on a regular basis. However, t h e
for m of t he in volve m e n t of t he Eu r ope a n Pa r lia m e n t a nd na t iona l Pa r lia m e n t s in
t h e e va lu a t ion of EUROJUST’s a ct ivit ie s r e m a in s t o be de t e r m in e d.
2.6.3.4.
Art icles 85 & 86 of t he Lisbon Treat y: power of invest igat ions and t he European
Public Prosecut or
On a longer- t erm basis, t he Lisbon Treat y opens up t wo areas for debat e concerning
EUROJUST: t he power t o init iat e invest igat ion ( art icle 85) , and t he possibilit y of a
European Public Prosecut or's office - EPPO ( art icle 86) .
EUROJUST is seen as t he origin of any fut ure EPPO, t he creat ion of which is provided for
under t he Lisbon Treat y ( Art icle 86 TFEU) . However, if t he Lisbon Treat y opens up t he
debat es, t he st rong resist ance of som e MS ( not ably UK and t he Net herlands) shall not be
overcom e in a near fut ure. Furt herm ore, and as debat ed during t he st rat egic sem inar
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organised by EUROJUST ( “ EUROJUST and t he Lisbon Treat y: t owards m ore effect ive
act ion” , Bruges, Sept em ber 2010) , t he possibilit ies of an EPPO require m any clarificat ions
of crit ical im port ance such as:
1. Which crim es will be under t he com pet ence of t he EPPO and from which definit ions
( t he definit ions of t he nat ional crim inal law syst em s or t hose of t he EPPO’s
regulat ions?) ;
2. Would it be a cent ralised or a decent ralised body?
3. Would t he aut horit ies work only wit hin t he EPPO and/ or also for t he Mem ber
St at es?
4. How t he relat ionship bet ween EUROJUST and EPPO will be agreed? I f t he power t o
‘init iat e’ according t o Art icle 85 is m ade use of, are t he services of t he EPPO
rendered dispensable? And is t he cont inued developm ent of EUROJUST necessary if
t he EPPO is est ablished?
Moreover, once t he st ruct ure of t he EPPO is bet t er defined, answers t o ot her quest ions
should be found as well, such as t hose concerning t he gat hering of evidence, defence,
appeals, possible harm onisat ion, and recognit ion of ot her Mem ber St at es’ st andards.
Art icle 85 offers concret e possibilit ies t o give m ore operat ional powers t o EUROJUST, and
opens t he possibilit y for EUROJUST t o init iat e invest igat ions part icularly t hose relat ing t o
offences against t he financial int erest s of t he Union. As an addit ion, t he 2009 Decision
grant s EUROJUST binding powers t o ask MS t o init iat e invest igat ions. However, at t he
present t im e, EUROJUST is st ill a sim ple ‘m ediat or’, wit hout any decision- m aking or
binding powers wit h regard t o prosecut ion.
2 .7 .
Th e u n de fin e d r ole of t h e Cou n t e r Te r r or ism Coor din a t or ,
OLAF a n d Sit Ce n
I n t he I SS st rat egy, som e of t he JHA act ors direct ly linked t o j udicial and police
cooperat ion seem t o have been left apart , m arginalised, or ignored. Their role in t he I SS
cont ext is t herefore unclear.
2.7.1.
The EU Count er Terrorism Coordinat or
Th e fu t u r e r ole of t he Cou n t e r Te r r or ism Coor din a t or ( CTC) , for in st a n ce , is n ot
obviou s in a n I SS con t e x t . This posit ion, creat ed in 2004 aft er t he Madrid bom bings of
March 2004, has been held by Gilles de Kerchove since 2007. The CTC operat es wit hin t he
Council Secret ariat and has t he responsibilit ies of coordinat ing t he count er- t errorism work
of t he JHA Council ( including a m ult it ude of working groups and working part ies) ;
m aint aining an overview of t he relevant EU inst rum ent s in t his area; ensuring effect ive
follow- up of Council decisions; m onit oring t he im plem ent at ion of t he EU Count erTerrorism St rat egy, including m aking report s t o t he Council; fost ering bet t er
com m unicat ion bet ween t he EU and t hird count ries; and ensuring t hat t he EU plays an
act ive role in t he fight against t errorism as a whole. As underlined in t he House of Lords
Report on t he EU I SS, while t he I SS does not exclude a cont inuing role for t he CTC, t he
ext ent t o which his role would overlap wit h COSI ’s work for inst ance is uncert ain. As
rem inded by t he CTC in his lat est EU Act ion Plan on com bat ing t errorism ( 2010) , ‘The
Lisbon Treat y offers new possibilit ies for t he European Union collect ively – t he Mem ber
St at es and t he European I nst it ut ions - also in t he field of count er t errorism . Many st eps t o
im plem ent t he t reat y have yet t o be t aken. All players have t o adj ust and t o adapt t o t he
new sit uat ion. Especially in t he field of ext ernal relat ions, t he creat ion of European
Ext ernal Act ion Service offers new opport unit ies t o bet t er coordinat e bet ween t radit ional
ext ernal policy inst rum ent s and int ernal inst rum ent s. The CTC will cont inue his
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cont ribut ion t o t his cohesion of int ernal and ext ernal aspect s’. The CTC is indeed now
posit ioning him self t o play a m aj or role in coordinat ing t he int ernal/ ext ernal aspect s of
t errorism . However, it s posit ion ing a nd it s r ole vis a vis t h e Ex t e r n a l Act ion Se r vice
r e m a in t o be de fin e d, a n d t h e va lu e of it s con t r ibu t ion a sse sse d.
2.7.2.
The European Ant i- Fraud Office ( OLAF)
Th e posit ion ing of t h e Eu r ope a n An t i- Fr a u d Office ( OLAF) in a n I SS con t e x t is
e ve n va gue r . While t he Act ion Plan I m plem ent ing t he St ockholm Program m e m ent ions
t he ‘crucial’ role of OLAF, OLAF cont inues t o appear som ehow as a kind of ‘ghost agency’,
wit h undefined t asks. Even if OLAF m ay have a revival under t he current Euro Crisis, and
despit e pract ical agreem ent s am ong t he agencies, OLAF fiercely prot ect s it s aut onom y
and is excluded from t he collaborat ive effort s ( which have been quit e difficult for years
and not t ot ally sat isfact ory) undert aken by EUROPOL and EUROJUST. Despit e shy
progresses ( such as t he first visit of t he OLAF’s direct or at EUROJUST in July 2011) , OLAF
seem s t o act a ‘free elect ron’ in t he European securit y landscape.
2.7.3.
The EU Sit uat ion Cent re ( Sit Cen)
The EU Sit uat ion Cent re was est ablished following t he appoint m ent of Javier Solana as
High Represent at ive for t he Com m on Foreign and Securit y Policy and Secret ary General of
t he Council of t he European Union by t he Cologne European Council ( June 1999) . I t was
init ially envisaged as t he equivalent of t he Operat ional Cent re creat ed wit hin t he St at e
Depart m ent in 1961, during t he planning st age of t he Bay of Pigs at t ack on Cuba, but
becam e over t he years a m eet ing point for Mem ber St at e civilian int elligence agencies
wit h int ernal and ext ernal rem it s ( e.g. t he French Direct ion Générale de la Sécurit é
Ext érieure DGSE and Direct ion Cent rale du Renseignem ent I nt érieur DCRI , t he Brit ish MI 5 or t he Germ an Federal Office for t he Prot ect ion of t he Const it ut ion BfV) . The
developm ent of t hese int elligence funct ions has not been precisely docum ent ed. 107 I t is
t ied, on t he one hand, t o t he perceived need am ong t he m em bers of t he Policy Planning
and Early Warning Unit at t ached t o t he posit ion of t he High Represent at ive ( out of which
t he first direct or of Sit Cen, William Shapcot t , would be select ed) t o have access t o
inform at ion ( m ainly t hat circulat ed wit hin t he diplom at ic net works of t he Mem ber St at es)
on pressing issues. 108 I t involves, on t he ot her hand, t he int erest expressed by som e
Mem ber St at es in t he fram ework of t he Count er- Terrorism Group ( CTG109 ) t o circulat e
inform at ion and det ach expert s from int ernal securit y services t o Sit Cen following t he
at t acks of 11 Sept em ber 2001 in t he Unit ed St at es and t he bom bings of 11 March 2004 in
Madrid. The Sit Cen in it self was est ablished wit hout a legal basis in t he Treat ies, t hrough
an adm inist rat ive decision of Javier Solana act ing as Secret ary General of t he Council, in
order t o avoid locat ing it wit hin eit her t he EU’s Second or Third Pillars. 110
107
For an ‘insider’s’ view, see t he t ranscript of t he hearings of form er Sit Cen Direct or ( 2000- 2010)
William Shapcot t at t he House of Lords’ European Union Com m it t ee: House of Lords ( 2005) ,
“ European Union Com m it t ee 5t h Report of Session 2004- 05 - Aft er Madrid: t he EU’s response t o
t errorism - Report wit h evidence” , London: The St at ionery Office Lim it ed; House of Lords ( 2011) ,
“ European Union Com m it t ee 17 t h Report of Session 2010- 12 – The EU I nt ernal Securit y St rat egy” ,
London: The St at ionery Office. For “ out side” views, see t he analysis published by t he European
Union’s I nst it ut e for Securit y St udies, B. Müller- Wille ( 2004) , “ For our eyes only? Shaping an
int elligence com m unit y wit hin t he EU” , Cahiers de Chaillot Occasional Papers, No. 50, as well as t he
Eurowat ch analysis in J. van Buuren ( 2009) , Secret Trut h: The EU Joint Sit uat ion Cent re,
Am st erdam : Eurowat ch.
108
House of Lords ( 2005) , “ Aft er Madrid” , op. cit ., pp. 53- 54.
109
Est ablished short ly aft er t he event s of 11 Sept em ber 2001, t he CTG is an offshoot of t he Berne
Club focused on issues relat ed t o t errorism . The Berne Club is an inform al st ruct ure for t he
exchange of inform at ion bet ween represent at ives of count er- int elligence services of European
count ries, originally est ablished in t he 1970s.
110
As t hen- Sit Cen Direct or William Shapcot t point ed out t o t he House of Lords in 2005: “ t he
Sit uat ion Cent re has always been in t he Secret ariat . We have been quit e careful, even from t he
beginning, not t o form ally have it in [ …] t he Second Pillar. We have played wit h Solana’s double-
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Unt il t he ent ry int o force of t he Lisbon Treat y, t he Sit Cen has t hus operat ed across t he
‘pillar divide’. Several part ially declassified docum ent s from t he Council suggest t hat t he
Sit Cen’s Count er- Terrorism Cell has been providing report s t o t he Working Part y on
Terrorism , for inst ance, and t here have been at t em pt s at prom ot ing cooperat ion wit h
EUROPOL, part icularly in t he cont ext of t he lat t er’s TE- SAT report s. 111 Sit Cen does not ,
however, have it s own int elligence- gat hering capacit ies. I t deals wit h so- called ‘assessed
int elligence’, i.e. int elligence report s t hat are t he out com e of analyt ical work conduct ed by
t he int elligence services of t he EU Mem ber St at es, and which are synt hesised and
com bined by Sit Cen analyst s. The m ain except ion is t he work conduct ed by Sit Cen on
persons of int erest for t he CP931 Working Part y, creat ed in 2007 t o replace t he inform al
consult at ion m echanism am ong Mem ber St at es aut horit ies for t he im plem ent at ion of
Com m on Posit ion 2001/ 931/ CFSP and Council Regulat ion ( EC) No. 258/ 2001 on t he
placing of persons and groups on t he EU t errorist list and t he freezing of t heir financial
asset s. 112
Following t he ent ry int o force of t he Lisbon Treat y, t he Council adopt ed Decision
2010/ 427/ EU est ablishing t he organisat ion and funct ioning of t he European Ext ernal
Act ion Service. 113 Art icle 4( 3) ( a) of t he Decision t ransfers different bodies and services of
t he Council t o t he EEAS, including t he Sit Cen. I t nonet heless est ablishes t hat despit e t his
t ransfer, “ t he specificit ies of t hese st ruct ures, as well as t he part icularit ies of t heir
funct ions, recruit m ent and t he st at us of t he st aff shall be respect ed” . This provision raises
a quest ion as regards Sit Cen. Shou ld Sit Ce n be a u t hor ise d t o con t in ue ope r a t in g
a cr oss t he EU’s in t e r n a l a nd e x t e r n a l se cu r it y policie s de spit e ha vin g be e n
t r a n sfe r r e d t o t h e EEAS? W h e r e doe s t h e r e sponsibilit y of t he a ct ivit ie s
u n de r t a k e n by Sit Ce n lie ? The Cent re now officially falls under t he responsibilit y of t he
High Represent at ive, but is st ill int ended t o report t o Council bodies in charge of int ernal
securit y. The out com e of proceedings of t he CATS m eet ing held on 11 February 2010, for
exam ple, highlight t hat t he “ Direct or of SI TCEN, Mr Shapcot t , reassured delegat ions t hat
SI TCEN would cont inue t o provide it s usual services t o t he Terrorist Working Group, CATS,
and t he Council for JHA policies, also during and aft er it s int egrat ion int o t he Ext ernal
Act ion Service” . 114 The response of t he Council Secret ariat t o t he quest ions on t he current
st at us of Sit Cen raised by MEP Mart in Erhenhauser in January 2011 em phasise in t his
respect t he lim it at ive provision laid out in Art icle 4( 3) ( a) of Decision 2010/ 427/ EU. 115
Finally, t he appoint m ent in Decem ber 2010 of t he head of t he Finnish SuPo, a securit y
service wit h a rem it for bot h int ernal and ext ernal securit y issues, at t he head of Sit Cen,
hat t ing. He is t he Secret ary General; we are at t ached t o his cabinet , so we are squarely in t he
Secret ariat General. We are not exclusively a Second Pillar body. As discussion about our role has
developed, Just ice and Hom e AVairs m inist ers have said, “ We don’t know m uch about t he Sit Cen
and is t hat not som et hing t hat works for Solana?” and we have said, “ Com e what m ay, in t he fut ure
our goal is t o work for you. We very m uch want Just ice and Hom e AVairs m inist ers t o be co- owners
of t his proj ect ; t o cont rol it , t o t he ext ent t hat t heir int erest s are t he int erest s of t he services which
t hey supervise and are involved; and t o be cust om ers, quit e clearly” . House of Lords ( 2005) , Aft er
Madrid, op. cit ., pp. 60- 61.
111
See Council of t he European Union ( 2005) , EU Sit Cen Work Program m e, 5244/ 05, 11.1.2005
( declassified 20.12.2005) ; Council of t he European Union ( 2007) , Overview of Sit Cen report s and
Polit ical Recom m endat ions, 7261/ 07, 12.3.2007 ( declassified 28.5.2009) .
112
Council Com m on Posit ion of 27 Decem ber 2001 on t he applicat ion of specific m easures t o
com bat t err orism ( 2001/ 931/ CFSP) , OJ L344/ 93, 28.12.2001; Council Regulat ion ( EC) No.
2580/ 2001 of 27 Decem ber 2001 on specific rest rict ive m easures direct ed against cert ain persons
and ent it ies wit h a view t o com bat ing t errorism , OJ L344/ 70, 28.12.2001.
113
Council Decision of 26 July 2010 est ablishing t he organisat ion and funct ioning of t he European
Ext ernal Act ion Service ( 2010/ 427/ EU) , OJ L201/ 30, 3.8.2010.
114
Council of t he European Union ( 2010) , “ Out com e of proceedings of CATS on 11 February 2010” ,
6557/ 10, 11.2.2010, p. 4.
115
Council of t he European Union ( 2011) , “ Expansion of t he Joint Sit uat ion Cent re ( Sit Cen) ” ,
5626/ 11, 24.1.2011.
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confirm s t he not ion t hat despit e it s relocat ion wit hin t he EEAS, Sit Cen will cont inue t o
operat e along est ablished venues.
2 .8 .
Cu r r e n t t r e n ds in a ge n cy a n d in st it u t ion a l coope r a t ion in EU
in t e r n a l se cu r it y policie s
2.8.1.
Cooperat ion bet ween EU agencies, bodies and services in t he field of int ernal
securit y
Cooperat ion bet ween EU agencies in t he field of int ernal securit y has becom e a significant
st ake in t he last t wo years. I n Oct ober 2009, following an inform al m eet ing of t he JHA
Council, The Swedish presidency request ed EUROPOL t o draft a report on relat ions
bet ween t he four EU ‘JHA agencies’ ( CEPOL, EUROJUST, EUROPOL, FRONTEX) . This report
was forwarded t o COSI and t he JHA Council on 9 April 2010. 116 I n January 2011, t he four
agencies subm it t ed a scorecard t o COSI t oget her wit h a report , t o provide feedback on
progress in t he im plem ent at ion of t he act ions envisaged in t heir 2010 report . 117 The
following pages provide a general assessm ent of t hese relat ions ( 2.6.1.1.) , and furt her
det ail t hree dim ensions: t he form al relat ions bet ween t he agencies, t he working relat ions
beyond form al agreem ent on cooperat ion, and t he st at e of inform at ion exchanges and
inform at ion flows bet ween t hem , including st rat egic/ operat ional inform at ion and personal
dat a when applicable. For t he last t wo ent ries, only t he m ost significant relat ions are
em phasised.
2.8.1.1.
General assessm ent
EUROPOL can be seen as one of t he m ain ‘winner’ of t he I SS. As underlined previously,
t he agency has deployed num erous com m unicat ion product s and is gaining a st at us of
leadership in m any areas, such as t hreat assessm ent s, dat abase and t echnical plat form s.
EUROPOL is cert ainly a m aj or agency at t he cent re of t he European securit y issues.
According t o t he EUROPOL st aff, EUROPOL has gained legit im acy, as t he agency prot ect
efficient ly sensit ive int elligence and is in t he 1st league in t erm s of st rat egic and
operat ional work. As proudly rem inded during our visit at t he Agency, t he added value of
EUROPOL has been assessed very posit ively by an independent organizat ion, EPSI
Rat ing. 118 Operat ion Rescue ( March 2011) is also present ed by EUROPOL represent at ives
as an insight ful exam ple of what EUROPOL is now able t o achieve. This operat ion works as
a ‘showcase’, which has a ‘real life input ’ ( “ som e children were safe” ) . The Operat ion
indeed led t o t he disrupt ion of an int ernat ional ( from Aust ralia t o I t aly) child sex abuse
net work. The EUROPOL st aff is also very confident on t he fut ure of t heir work and input s,
and highly advocat e t he furt her developm ent of t heir ‘niche product s’, such as t he " Check
t he web" or t he OCTAs, fort hcom ing SOCTAs and TE- SATs report s. As m ent ioned earlier,
t he current posit ioning of EUROPOL in t he field of cybercrim e, and it s claim t o host t he
European cybercrim e cent re is very m uch in line wit h t his st rong posit ion of EUROPOL in
t he I SS.
The second agency t o benefit from t he current st at e of play in EU int ernal securit y policies
is FRONTEX. As shown above, t he agency should see it s m andat e reinforced, wit h
increased cont rol over t he init iat ing of j oint operat ions and pilot proj ect s. Much like
EUROPOL, it appears t o be gaining an increasingly cent ral role in t he collect and analysis
of inform at ion regarding t he ext ernal borders, in t he field of risk analysis and t hreat
assessm ent on t he one hand, and wit h regard t o access t o elect ronic dat a, including t he
116
Council of t he European Union ( 2010) , “ Final report on cooperat ion bet ween JHA Agencies” ,
8387/ 10, 9.4.2010.
117
Council of t he European Union ( 2011) , “ Report on t he cooperat ion bet ween JHA Agencies in
2010” , 5675/ 11, 25.1.2011; Council of t he European Union ( 2011) , Draft Scorecard –
I m plem ent at ion of t he JHA Agencies r eport , 5676/ 11, 9.4.2010.
118
See www.epsi- rat ing.com /
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processing of personal dat a, on t he ot her. I n t he longer run, t he com ing online of
EUROSUR is likely t o place t he agency in t he posit ion of an int elligence body.
The t wo ot her m ain JHA agencies, EUROJUST and CEPOL, appear in a m uch weaker
posit ion. Does t his point t o a t endency t o reinforce t he securit y, coercive aspect s of t he
AFSJ t o t he det rim ent of it s j ust ice and freedom com ponent s? While agencies such as
EUROPOL and FRONTEX are m ent ioned at several point s t hroughout t he I SS, t he sect ion
does not m ake any reference t o t he EDPS or t he FRA for inst ance. I t seem s t hat t he
‘Freedom ’ agencies have been included at t he m argin of t he I SS, underlying significant ly
how t he fundam ent al right s challenge det ailed in t he next chapt er is of param ount
im port ance.
2.8.1.2.
Form al relat ions bet ween agencies, bodies and services
Over t he past five years, all four EU JHA agencies have concluded form al cooperat ion
agreem ent s wit h each ot her. They are det ailed in t he following pages ( for a synt het ic
view, see Ta ble 4 in t h e An ne x ) . The only except ion is t he relat ion bet ween EUROJUST
and FRONTEX, which are st ill t o com plet e t heir negot iat ions on t his m at t er.
CEPOL/ EUROJUST M e m or a n dum of Un de r st a nding
A Mem orandum of Underst anding ( ent ered int o force on 1 January 2010) is in place
bet ween EUROJUST a n d CEPOL, t he goal of which is t o define, encourage and im prove
t raining for police and prosecut ors in t he fight against serious crim e. Co- operat ion
bet ween EUROJUST and CEPOL cont inued t o develop t hrough EUROJUST’s support of
CEPOL’s t raining act ivit ies, and CEPOL’s at t endance at EUROJUST sem inars and
conferences. EUROJUST and CEPOL have agreed t o explore t he opt ions t o est ablish
t raining of senior police officers and prosecut ors about JI Ts. I n addit ion, EUROJUST will
cont ribut e t o t he developm ent and im plem ent at ion of course m at erials and a Com m on
Curriculum on EUROJUST.
CEPOL/ EUROPOL
CEPOL has signed a st rat egic agreem ent wit h EUROPOL, which ent ered int o force on 1
Sept em ber 2007, on t he basis of Art icle 8( 1) of Council Decision 2005/ 681/ JHA. The
purpose of t he agreem ent ( Art icle 1) relat es t o t he st rengt hening of t raining act ivit ies for
senior police officers and involves bot h t he organisat ion of t raining act ivit ies and t he
developm ent of t raining m at erial such as com m on curricula and course cont ent s. Through
t his agreem ent , EUROPOL has obt ained t he form al possibilit y t o perform updat es in t he
EUROPOL com m on curriculum im plem ent ed by CEPOL. The agreem ent enables t he
est ablishm ent of cont act point s bet ween t he t wo agencies ( Art icle 2) , as well as t he
possibilit y for exchanges of inform at ion ( excluding personal dat a) for t he purpose
st ipulat ed in Art icle 1 ( Art icle 5) .
CEPOL/ FRON TEX
CEPOL and FRONTEX signed a cooperat ion agreem ent , which ent ered int o force on 25
June 2009. The disposit ions of t he agreem ent m irror t hat of t he CEPOL/ EUROPOL st rat egic
agreem ent .
EUROJUST/ EUROPOL a gr e e m e nt
From a legal and form al perspect ive, t he first EUROJUST/ EUROPOL agreem ent , signed in
2004, has been replaced in 2009. The new agreem ent t akes st ock of t he Council
Fram ework Decision of 13 June 2002 on Joint I nvest igat ion Team s ( JI Ts) , t he Council
Decision of 19 Decem ber 2002 on t he im plem ent at ion of specific m easures for police and
j udicial cooperat ion t o com bat t errorism , t he Council Decision of 2009 im plem ent ing t he
rules governing EUROPOL’s relat ions wit h part ners, including t he exchange of personal
dat a and classified inform at ion. The 2009 agreem ent ( ent ered int o force in January 2010)
covers t he following areas: consult at ion and cooperat ion bet ween t he t wo agencies
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( including t he JI Ts) , t he Exchange of inform at ion, processing of inform at ion, and t he issue
of confident ialit y.
EUROPOL/ EM CD D A coope r a t ion a gr e e m e nt
EUROPOL h a s a coope r a t ion a gr e e m e nt w it h EM CD D A since 2001. The purpose of
t his Agreem ent is t o enhance t he co- operat ion bet ween Europol and t he EMCDDA in
part icular t hrough t he exchange of st rat egic and t echnical inform at ion on drug- relat ed
issues and m oney laundering. However, and as analyzed furt her in t he sect ion devot ed t o
t he “ Current t rends in agency and inst it ut ional cooperat ion in EU int ernal securit y
policies” , t he cooperat ion agreem ent is lim it ed t o a st rict law enforcem ent perspect ive.
EUROPOL/ FRON TEX
The St rat egic Agreem ent bet ween EUROPOL and FRONTEX ent ered int o force on 29 March
2008. I t was t he first agreem ent concluded by FRONTEX wit h anot her JHA agency. The
m ain purpose of t he Agreem ent , as laid out in it s Art icle 1, is t he exchange of st rat egic
and t echnical inform at ion. The Agreem ent as it current ly st ands explicit ly excludes t he
exchange of personal inform at ion, t hough t he degree t o which t his m ight change in t he
fut ure due t o t he revision of t he FRONTEX Regulat ion will require scrut iny. The t ype of
inform at ion exchanged bet ween t he t wo agencies on t he basis of t his agreem ent is
specified below ( 2.6.1.4.) . The agreem ent est ablishes a basis for cont act s bot h at
m anagem ent level and at unit level ( Art icle 4) . I t also lays down disposit ions for t he
exchange and use of expert ise bet ween t he t wo agencies, for t raining purposes as well as
t he provision of expert ise ( Art icle 6) . I t furt her est ablishes t he possibilit y for t he t wo
agencies t o exchange confident ial inform at ion ( Art icle 7 and 8) , on t he basis of a principle
of equivalent prot ect ion ( inform at ion received by one Part y should be given an equivalent
level of prot ect ion as t hat used by t he sending Part y) and by lim it ing such exchanges t o
t he EUROPOL RESTRI CTED classificat ion level, which should be classified as EU classified
inform at ion by FRONTEX at t he level RESTREI NT UE. FRONTEX, in ot her words, is
expect ed t o apply t he classificat ion used by t he Council t o t he inform at ion forwarded by
EUROPOL.
The t wo agencies concluded an addit ional Cooperat ion Plan in Oct ober 2009. 119 The
cont ent s of t his Plan rem ains undisclosed t o t he best of our knowledge. I t t akes int o
account t he m odificat ions t o EUROPOL’s m andat e int roduced by t he EUROPOL Decision of
April 2009. I t is point ed out in several docum ent s t hat t he cooperat ion plan specifies t he
various disposit ions of t he st rat egic agreem ent of March 2008, including on t he use of
inform at ion and com m unicat ions t echnology.
EUROPOL/ OLAF a dm in ist r a t ive a gr e e m e n t
OLAF a nd EUROPOL have an adm inist rat ive agreem ent concluded in 2004 t hat includes
provisions on t he exchange of st rat egic or t echnical inform at ion. Such st rat egic or
t echnical inform at ion does not include personal dat a. I t m ay include relevant inform at ion
from t he Europol I nform at ion Syst em , t he Cust om s I nform at ion Syst em or any ot her OLAF
or Europol dat abase, and m ay also be used t o support operat ional analysis carried out by
t he Part ies. However, working relat ionships wit h EUROPOL are alm ost non- exist ent .
I nt erest ingly, t he OLAF annual report s hardly m ent ion EUROJUST or EUROPOL.
2.8.1.3.
Working relat ions and inform at ion exchanges
The following pages offer a non- exhaust ive overview of working relat ions and inform at ion
exchanges bet ween EU JHA agencies, beyond t he form al provisions laid out in t he
corresponding cooperat ion agreem ent s. I nform at ion exchanges are part icularly cent ral in
t he relat ions bet ween EUROJUST and EUROPOL, on t he one hand, and EUROPOL and
FRONTEX on t he ot her.
119
EUROJUST/ EM CD D A
Alt hough not disclosed, t he Cooperat ion Plan is filed under t he Europol file num ber 3710- 588.
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The t wo agencies have also est ablished relat ions. The EMCDDA and Euroj ust share
knowledge and inform at ion on t he differences bet ween, and t he enforcem ent and
im plem ent at ion of, drug t rafficking laws across Europe. I n 2007 EUROJUST designat ed t he
Nat ional Mem ber chairing t he Trafficking and Relat ed Crim es t eam as t he EUROJUST
cont act point for all EMCDDA- relat ed m at t ers. The EUROJUST represent at ive was invit ed
t o t he annual EMCDDA legal expert s m eet ings where t rafficking issues were discussed.
Com parat ive inform at ion about precursor t rafficking laws and nat ional requirem ent s t o
aut horise cont rolled deliveries has in t urn been passed t o EUROJUST from t he EMCDDA.
EUROJUST/ OLAF
The working relat ion bet ween EUROJUST a n d OLAF has dem onst rat ed a degree of
st rain. Despit e pract ical agreem ent s ( not ably t he 2008 Pract ical Agreem ent on
arrangem ent s of cooperat ion bet ween EUROJUST and OLAF) , exchanges bet ween OLAF
and EUROJUST are irregular. According t o t he lat est EUROJUST annual report , in 2010,
OLAF referred only four cases t o EUROJUST and EUROJUST referred only one case t o
OLAF. I n July 2010, t he President of EUROJUST and t he Act ing Direct or General of OLAF
m et in Brussels t o evaluat e co- operat ion and discuss t he need t o im prove m et hods of
ident ifying appropriat e cases t hat would benefit from a collaborat ive approach. The need
t o explore synergies bet ween t he t wo bodies was st ressed in t he cont ext of possibilit ies
under t he Lisbon Treat y. However, t he t wo agencies st ill st ruggle t o define and separat e
t heir fields of com pet ences. The problem at ic posit ioning of OLAF in t he securit y landscape
is addressed furt her in t he sect ion devot ed t o t he “ undefined role of som e players in t he
field” .
EUROJUST/ FRON TEX
Art icle 26.1 of t he EUROJUST Decision st at es t hat EUROJUST shall est ablish and m aint ain
‘cooperat ive relat ions’ wit h EUROPOL and FRONTEX. While t he relat ion wit h EUROPOL, as
det ailed above, is current ly fram ed by a form al agreem ent , relat ions wit h FRONTEX have
proceeded at a slower pace. I n 2010, EUROJUST int ensified cont act s wit h FRONTEX t o
est ablish and m aint ain co- operat ive relat ions. As report ed in t he EUROJUST annual report ,
on 29 April 2010, as a follow- up t o inform al cont act s bet ween t he t wo organisat ions, t he
President of EUROJUST and t he Execut ive Direct or of FRONTEX m et at Euroj ust t o discuss
possible areas for fut ure of co- operat ion. Euroj ust init iat ed cont act s wit h FRONTEX for t he
possible negot iat ion of a draft co- operat ion inst rum ent in accordance wit h Art icle 26.1 of
t he EUROJUST Decision. Following t his developm ent , negot iat ions wit h FRONTEX are
current ly under way and t he conclusion of a form al agreem ent was expect ed in 2011.
EUROJUST/ EUROPOL
The exchange of inform at ion includes t he obligat ion of EUROPOL ( at it s own init iat ive or
upon a request of EUROJUST) t o provide EUROJUST wit h analysis dat a and analysis
result s, including int erim analysis result s if j udicial follow- up is required, and t he
obligat ion for EUROJUST t o act ively support EUROPOL by st im ulat ing t he flow of
inform at ion t o EUROPOL from t he com pet ent nat ional aut horit ies and by providing it wit h
opinions based on analysis carried out by EUROPOL. EUROJUST provides, at it s own
init iat ive, EUROPOL wit h t he findings of an analysis of a general nat ure and of a st rat egic
t ype and provides on a regular basis EUROPOL wit h relevant dat a for t he purpose of it s
analysis work files, as well as ot her inform at ion, including inform at ion on cases, provided
t hat t hey fall wit hin t he com pet ence of EUROPOL and advice which m ay be required for
t he obj ect ives and t asks of EUROPOL. Art icle 13 of t he agreem ent addresses t he issue of
t ransm ission, and art icle 15 addresses t he Right of Access, rem inding t hat “ any individual
shall have t he right t o have access t o personal dat a concerning him self t ransm it t ed under
t his Agreem ent , t o have his dat a correct ed and delet ed, or t o have such dat a checked, in
accordance wit h t he applicable provisions of t he Part y t o which t he request is addressed” .
Art icle 18 st at es t hat “ Personal dat a shall be delet ed im m ediat ely when it is no longer
necessary for t he purposes for which it was t ransm it t ed. A ret ent ion review m ust t ake
place wit hin a m axim um period of t hree years, and when prescribed under t he regulat ions
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of t he Part y ret aining t he dat a. I f t he st orage of dat a t ransm it t ed from one of t he Part ies
exceeds a period of t hree years, t he need for cont inued st orage shall be reviewed
annually” .
The 2009 agreem ent , t herefore, covers operat ional, st rat egic or t echnical inform at ion, as
well as personal dat a. The EU creat ed t wo independent ‘j oint supervisory bodies’ ( JSBs)
for EUROPOL and EUROJUST, which review t he act ivit ies of t hese agencies in order t o
ensure t hat t he processing of personal dat a is carried out in accordance wit h t he
applicable legal fram ework. I n order t o fulfil t heir t asks, bot h JSBs have access t o all files
and prem ises where personal dat a is being processed. EUROPOL and EUROJUST have t o
supply all docum ent s, paper files or dat a st ored in EUROPOL's or EUROJUST’s dat a files.
The m andat e and powers of JSB are det ailed in a recent st udy on t he “ Parliam ent ary
Oversight of Securit y and I nt elligence Agencies in t he EU” . 120 The st udy underlines t he
fact t hat t he work of t he JSBs has at t ract ed lit t le int erest from t he EP despit e t he
dissem inat ion of t heir act ivit y report s t o t he EP. Recent progress is however report ed. For
exam ple, t he EUROPOL JSB’s report on t he Terrorist Financing Tracking Program m e has
generat ed significant int erest from MEPs. I n t his cont ext , t he chair of t he EUROPOL JSB
present ed t o Parliam ent t he conclusions of it s first inspect ion of Europol’s role in t he
im plem ent at ion of t he TFTP agreem ent .
EUROJUST also cont ribut es t o OCTAs and TE- Sat s. This cont ribut ion is, however, a source
of t ensions, as described above.
EUROPOL/ FRON TEX
The m ain purpose of t he March 2008 St rat egic Agreem ent bet ween EUROPOL and
FRONTEX is t he exchange of inform at ion. To t his day, as m ent ioned earlier, t he exchange
of personal dat a is excluded from t he scope of t he agreem ent , since FRONTEX did not
have at t he m om ent of it s ent ry int o force a m andat e t o process such dat a. Two
cat egories of inform at ion are included under Art icle 2 of t he agreem ent : ‘st rat egic’ and
‘t echnical’ inform at ion ( t he det ails are list ed in Ta ble 5 in t h e An ne x ) . I t is im port ant t o
not e, however, t hat t hese list s are not lim it at ive.
The exchange of inform at ion falling int o t hese different cat egories, furt herm ore, is lim it ed
t o specific ‘areas of crim inalit y’, which “ relat e t o t he perform ing of t he t asks of Front ex
and t o relevant areas of crim e wit hin Europol’s m andat e” ( Art icle 3) . The list of crim inal
offences involved in such ‘areas’ is included in an annex t o t he agreem ent . This list , in
t urn, can be m odified on t he basis of a writ t en proposal of Europol, subj ect t o a writ t en
accept ance by Front ex ( see Ta ble 6 in t h e An n e x for t he list of crim inal offences falling
wit hin t he scope of t he agreem ent ) .
The list is ident ical t o t he form s of crim e annexed t o Council Decision 2009/ 371/ JHA on
t he est ablishm ent of EUROPOL. This observat ion does raise a num ber of int errogat ions, on
t he risks incurred by t he em phasis on cooperat ion bet ween JHA agencies. To w ha t
e x t e n t , for in st a n ce , doe s t h e e x ch a n ge of infor m a t ion be t w e e n EU JH A a ge n cie s
con t r ibu t e t o t he blur r in g of t he r e spe ct ive m a n da t e s of t he se a ge n cie s? The m ain
focus of t he m andat e of FRONTEX, in t his case, is t he coordinat ion of operat ional
cooperat ion am ong t he Mem ber St at es of t he European Union for t he cont rol of t heir
ext ernal borders ( Council Regulat ion ( EC) No 2007/ 2004, Art icle 2( 1) ( a) ) . D oe s t he
e x cha n ge of st r a t e gic a n d t e ch n ica l in for m a t ion w it h EUROPOL r e infor ce t h is
m a n da t e , or doe s it in cr e a se t he possible ove r la ps be t w e e n t he r e m it s of t h e t w o
a ge n cie s? The quest ion is all t he m ore st ringent , as t he possibilit ies of oversight of such
exchanges rem ain lim it ed. The July 2011 not e from t he Belgian delegat ion t o t he JHA
counsellors and COSI support group on t he final report of Proj ect Group ‘Measure 6’ is
very t elling in t his respect . 121 The aim of t he Proj ect Group was t o “ im prove t he collect ion,
120
Wills, A. et al. ( 2011) , Parliam ent ary Oversight of Securit y and I nt elligence Agencies in t he EU,
Brussels: European Parliam ent , PE 453.207
121
This proj ect group was set up following t he adopt ion by t he Council of t he so- called 29 m easures
for reinforcing t he prot ect ion of ext ernal borders and com bat ing illegal m igrat ion. See: Council of
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processing and syst em at ic exchange of relevant inform at ion bet ween FRONTEX, ot her EU
Agencies and Mem ber St at es” . 122 Besides t he fact t hat an im port ant effort was required on
t he Council side t o ident ify and t race t he various inform at ion flows bet ween EUROPOL,
FRONTEX and t he Mem ber St at es, t he report underlined t hat “ [ w] e lack a fram ework at
EU level for what has t o be shared bet ween t he EU agencies, bodies and Mem ber
St at es” . 123
Th e r e a r e of cou r se lim it s t o t he se e x ch a n ge s of infor m a t ion . The m ost not able is
t he exchange of personal dat a, which is ruled out so far since FRONTEX does not yet have
t he m andat e t o process such inform at ion. Possible evolut ions t ied t o t he revision of t he
FRONTEX regulat ion will need t o be scrut inised carefully. Anot her im port ant lim it , which is
point ed out in t he final report of t he ‘Measure 6’ Proj ect Group led by t he Belgian
delegat ion, is t he fact t hat t he St rat egic Agreem ent bet ween EUROPOL and FRONTEX only
applies t o st rat egic and t echnical inform at ion, and does not give legal grounds t o t he
exchange of operat ional inform at ion. FRONTEX, furt herm ore, does not have a connect ion
t o EUROPOL’s Secure I nform at ion Net work Applicat ion ( SI ENA) , which does not allow for
t he secure t ransm ission of sensit ive inform at ion. EUROPOL, sim ilarly, does not have
access t o t he FRONTEX- cont rolled I CONet inform at ion exchange syst em . As t he ‘Measure
6’ report concludes, “ This kind of cooperat ion bet ween t he t wo agencies m ust be
t ranslat ed int o a com m on act ivit y program m e. The current cooperat ion is t oo ‘ad hoc’ and
such an act ivit y program m e could im prove m ore form al cooperat ion bet ween all agencies
and avoid t he risk of duplicat ion” . 124 The quest ion, of course, is how t his act ivit y
program m e could act ively include bot h t he agencies and bodies in charge of freedom and
j ust ice wit hin t he AFSJ, while offering t he adequat e degree of t ransparency and
account abilit y wit h regard t o t he European Parliam ent and nat ional Parliam ent s.
2.8.2. The drive t owards int elligence- led policies
As m ent ioned in t he ‘background sect ion’, in t he field of count er- t errorism and OC, t he
underlying logic t hat has prevailed in t he EU st rat egy in t he last decade dem onst rat es a
focus on int elligence- led t ools and st rat egy. ‘Connect ing’ int elligence, liaise and crosscheck dat a, profile and predict have been key concept s used by law enforcem ent
specialist s in t he fight against OC and t errorism . As a consequence, t he ‘prevent ion’ side
is exclusively t ackled from a law enforcem ent and coercive perspect ive. I f prevent ion is
ranked at t he one of t he m ain obj ect ives of t he I nt ernal Securit y St rat egy for t he EU, it is
st rict ly underst ood as ‘ant icipat ion of crim e’, fuelled by profiling needs.
The working relat ions est ablished bet ween EU I SS agencies and t he European Monit oring
Cent re for Drugs and Drug Addict ion ( EMCDDA) 125 furt her illust rat e t his aspect . These
working relat ions m ainly concern t he law enforcem ent perspect ive on drug- relat ed issues.
The cooperat ion com m it m ent bet ween Europol and EMCDDA, for inst ance, st art ed at t he
end of t he 1990s and involve t oday a series of collaborat ive act ivit ies. The act ions t ake
int o account t he adopt ion of t he EU Drugs act ion plan for 2009–12 ( 2008/ C 326/ 09) . More
specifically, t he cooperat ion focuses on t hree set s of obj ect ives: t hose direct ly relat ed t o
t he EU Drugs act ion plan for 2009–12; obj ect ives relat ed t o t he exchange of m et hodology
and st rat egic inform at ion; and act ions in support of t he im plem ent at ion of Council
Decision 2005/ 387/ JHA. The EMCDDA and Euroj ust share inform at ion on t he differences
t he European Union ( 2010) , Council Conclusions on 29 m easures for reinforcing t he prot ect ion of
t he ext ernal borders and com bat ing illegal m igrat ion, 6975/ 10, 1.3.2010.
122
Council of t he European Union ( 2010) , “ Final report and r ecom m endat ions of Proj ect Group
‘Measur es’” , 7942/ 2/ 11, 6.7.2011.
123
I bid., p. 7.
124
I bid., p. 11.
125
EMCDDA was est ablished in 1993 and is based in Lisbon ( Port ugal) . I t provides t he EU and it s
Mem ber St at es wit h a fact ual overview of European drug problem s and a solid evidence base t o
support t he drugs debat e.
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bet ween, and t he enforcem ent and im plem ent at ion of, drug t rafficking laws across
Europe, and t he cooperat ion bet ween t he EMCDDA and CEPOL is current ly being
form alised and covers t he issue of drug supply and supply reduct ion in Europe.
Unfor t u na t e ly, a la r ge pa r t of EM CD D A’s w or k is not t a k e n in t o a ccou n t in t h e EU
I SS. The agency has indeed developed a num ber of m echanism s t o describe t he
availabilit y and nat ure of responses t o drugs in t erm of prevent ion, not necessarily linked
t o policing, as well as a variet y of t ools t o evaluat e t hem . EMCCDA gives evidence of
int erest ing findings t hat could influence t he debat e over drug- relat ed crim es and over t he
current fight against drugs t rafficking and it s priorit ies. For inst ance, EMCCDA findings,
based on qualit at ive research based in t he European Union, show t here is lit t le evidence of
crim e consequences from t he vast recreat ional drugs scene across Europe. EMCCDA also
st resses t hat prim ary prevent ion st rat egies m ay have beneficial effect s on social
funct ioning, including crim inal behaviour and t hat t here evidence t hat t reat m ent
program m es, which reduce drug consum pt ion, also generally reduce crim e.
The I SS clearly focus rat her on m echanism s of ‘predict ion’, such as analyt ical t ools or
early- warning syst em s. The im port ance of im pact assessm ent s is furt herm ore st rongly
advocat ed in t he I SS, in order t o “ deepen our underst anding of t he different t ypes of
t hreat s and t heir probabilit y and t o ant icipat e what m ight happen, so t hat we are not only
prepared for t he out com es of fut ure t hreat s but also able t o est ablish m echanism s t o
det ect t hem and prevent t heir happening in t he first place” .
The elaborat ion of a European Crim inal I nt elligence Model ( ECI M) and t he subsequent
designing of t he so- called Proj ect Harm ony described above derive from t his quest t o
const ant ly assess, prevent ( in a law enforcem ent perspect ive) and predict . EUROPOL
m ade, unsurprisingly, a leading cont ribut ion in t he elaborat ion and im plem ent at ion of t he
ECI M and is unquest ionably at t he cent re of ECI M im plem ent at ion.
An t icipa t ive logics a n d pr ofiling h a ve m a j or con se qu e n ce s t h a t shou ld n ot be
u n de r e st im a t e d. Am ong t hem , t he t echnological challenge, det ailed in t he next chapt er,
encapsulat es all t he aspect s linked wit h a vast collect ion of dat a and t heir prot ect ion.
At a societ al level, such logics could unfort unat ely hinder processes of social int egrat ion,
weakening any effort against exclusion and m arginalisat ion and t herefore cont ribut ing t o
shake t he social cohesion of t he EU while in ret urn enhancing feelings of insecurit y.
I nit iat ives such as ‘Check t he Web Proj ect ’, direct ly linked t o t he st rat egic prevent ion of
radicalisat ion, t arget s quasi exclusively what is referred t o as ‘I slam ist t errorist ’ or
‘j ihadist act ivit ies’ websit es. Launched in 2007, t he ‘Check t he Web’ Proj ect is coordinat ed
by EUROPOL ( who host s t he inform at ion port al) and aim s at st rengt hening cooperat ion
and sharing t he t ask of m onit oring and evaluat ing open I nt ernet sources on a volunt ary
basis. I f t his surveillance’ m ain goal is t o prevent t he m isuse of t he I nt ernet for t errorist
purposes, t he focus on ‘I slam ist t errorism ’ dem onst rat es again t he t arget ing of t he ‘usual
suspect s’.
Moreover, t he cost of such m echanism s, com pared t o t heir benefit s in t erm of ‘m ore
securit y’ and t heir cost s in t erm of social harm should be quest ioned. As recom m end in
t he LI BE report on t he EU Count er- Terrorism Policy, 126 t he Com m ission should conduct a
com pulsory proport ionalit y t est and a full im pact assessm ent for each proposal involving
t he large- scale collect ion of personal dat a, det ect ion and ident ificat ion t echnologies,
t racking and t racing, dat a m ining and profiling, risk assessm ent and behavioural analysis
or sim ilar t echniques. Such assessm ent should acknowledge not only t he legal challenges
encount ered, but also long- t erm logics on t he social level.
126
S. I nt ’Veld ( 2011) , “ Report on t he EU Count er- Ter rorism Policy: m ain achievem ent s and fut ure
challenges” , op. cit .
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2.8.3.
The role of t he freedom agencies of I SS
Along ‘t radit ional’ players in t he field of t he European landscape, EU freedom s agencies
now also have a voice in t he debat e on t he I SS. Special at t ent ion is here given t o t he EU
Freedom s and Right s agencies t hat play an increased role in t he shaping of EU int ernal
securit y policies and t hat should be fully m obilised t o ensure dem ocrat ic account abilit y in
t he areas covered by t he EU I SS: t he European Agency for Fundam ent al Right s ( FRA) , t he
European Dat a Prot ect ion Supervisor ( EDPS) and t he Art icle 29 Working Part y. This
sect ion also reviews t he pot ent ialit ies offered in t he field of EU I SS for ot her EU act ors,
not ably t he European Om budsm an.
2.8.3.1.
The European Agency for Fundam ent al Right s ( FRA)
The FRA is an advisory body of t he European Union est ablished in 2007 by Regulat ion
( EC) n° 168/ 2007 127 and is based in Vienna ( Aust ria) . The FRA’s m andat e is t o ensure t hat
fundam ent al right s of people living in t he EU are prot ect ed. According t o Council
regulat ion ( EC) n° 168/ 2007, t h e Agency carries out it s t asks wit hin t he com pet encies of
t he Com m unit y, as laid down in t he TEC. I n t he post - Lisbon cont ext , t he Agency refers t o
fundam ent al right s wit hin t he m eaning of Art icle 6( 2) of t he Treat y on European Union,
including t he European Convent ion on Hum an Right s and Fundam ent al Freedom s, and as
reflect ed in t he Chart er of Fundam ent al Right s.
I f t he FRA and EUROPOL are report edly planning t o produce a j oint cont ribut ion for t heir
respect ive work program m es for 2012 and are exploring possibilit ies for furt her j oint
product s reflect ing policing and securit y issues t oget her wit h fundam ent al right s
considerat ions ( Not e for t he LI BE Com m it t ee, 2011) , m ore form al involvem ent of t he FRA
should be im plem ent ed. The recent m id- t erm report of EUROJUST t o COSI act ing as chair
of t he JHA Agencies cooperat ion for January- May 2011, which confirm s t he j oining of FRA
in t he cooperat ion ( Council docum ent 10404/ 11) , is hence a welcom ed init iat ive.
The recent FRA opinion on t he Passenger Nam e Record dem onst rat es t he usefulness and
legit im acy of it s involvem ent . At t he request of t he EP in April 2011, t he FRA added it s
own opinion t o t hose provided by t he EDPS and t he Art icle 29 Working Part y on t he use of
Passenger Nam e Record dat a for t he prevent ion, det ect ion, invest igat ion and prosecut ion
of t errorist offences and serious crim e ( COM( 2011) 32 final) , which was released in June
2011. Even t hough t he FRA welcom es t he int roduct ion of guarant ees in t he current
proposal t hat reduce t he risk of direct discrim inat ion and discrim inat ory profiling, it
nonet heless ident ifies concerns regarding com pliance of t he Direct ive’s proposal wit h t he
Chart er of Fundam ent al Right s of t he European Union, specifically in t he following
m at t ers:
-
-
127
t he lack of safeguards in t he t ransm ission of dat a by air carriers;
t he lack of precision in t he ‘list ’ of special cat egories of dat a allowed t o be
t ransm it t ed;
t he need of st at ist ics t o assess t he efficiency of t he PNR syst em ( t ot al num ber of
persons whose PNR dat a were collect ed and exchanged; num ber of persons
ident ified for furt her scrut iny; num ber of subsequent law enforcem ent act ions;
num ber of persons lat er found t o have been unj ust ifiably flagged as suspicious by
t he PNR syst em ) ;
t he need of clarificat ion in t he t ypes of crim es covered ( serious t ransnat ional crim e,
serious crim es, m inor offense, et c) and t he lim it at ion of t he list of crim es covered
( sufficient ly serious) ;
special at t ent ion t o t he t reat m ent of innocent people;
Regulat ion ( EC) No. 168/ 2007 est ablishing a European Union Agency for Fundam ent al Right s
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t he need t o com ply wit h t he right t o prot ect ion of personal dat a
Such opinion should becom e syst em at ic, and t he FRA should include issues of crim inal
m at t ers in it s annual report . I f t he chapt er 3 of it s lat est annual report ( 2011) deals wit h
‘I nform at ion Societ y and dat a prot ect ion’ and t he t echnological challenge in general, t he
FRA should also be act ive in every fields of crim inal m at t ers t hat affect civil libert ies and
hum an right s. The issue of profiling and it s consist ency as regards t o t he Chart er ( nondiscrim inat ion) for inst ance deserve full at t ent ion, as well as t he consequences of
ant icipat ive logics on t he course of act ion in a fair t rial or t he over crim inalisat ion
int roduced in t he EU Fram ework Decision on organised crim e.
2.8.3.2.
The European Dat a Prot ect ion Supervisor ( EDPS) and Art icle 29 Com m it t ee
Despit e m ent ioning dat a prot ect ion and privacy issues in t he sect ion dedicat ed t o t he
inform at ion exchange m odel, t he I SS does not m ake any reference t o t he EDPS. The
EDPS has nevert heless t he possibilit y t o int ervene on t he policy debat es on dat a
prot ect ion m at t ers, by providing his expert ise and publishing opinions.
Est ablished in 2004, t he legal basis of t he EDPS are art icle 286( 2) of t he Treat y of
European Com m unit y ( 39) and art . 41 of Regulat ion No. 45/ 2001/ EC( 40) . The dut ies of
t he EDPS im ply a wide range of act ivit ies encapsulat ed in t he following: supervision,
consult at ion and cooperat ion. 128 The EDPS has for inst ance int ervened in t he debat e over
t he “ Dat a Ret ent ion Direct ive” , concluding t hat such Direct ive “ does not m eet t he
requirem ent s set out by t he right t o privacy and dat a prot ect ion” . 129 He has also express
opinion on t he heat ed cont roversies over t he new Passenger Nam e Records ( PNR)
proposal, indicat ing t hat “ t he Proposal wit h it s current cont ent does not m eet t he
requirem ent s of necessit y and proport ionalit y, im posed by Art icle 8 of t he Chart er of
Fundam ent al Right s of t he Union, Art icle 8 of t he ECHR and Art icle 16 of t he TFEU” . 130
EDPS is clearly legit im at e t o ensure t he respect of right s in EU securit y- relat ed m at t ers,
specifically in cases of processing of personal dat a. Sim ilarly, t he Art icle 29 Dat a
Prot ect ion Working Part y has a m eaningful role t o play. The Art icle 29 WP was set up
under t he Direct ive 95/ 46/ EC of t he European Parliam ent and of t he Council of 24 Oct ober
1995 on t he prot ect ion of individuals wit h regard t o t he processing of personal dat a and
on t he free m ovem ent of such dat a. I t has an advisory st at us and act s independent ly. The
Working Part y was set up t o achieve several prim ary obj ect ives: t o provide expert opinion
from m em ber st at e level t o t he Com m ission on quest ions of dat a prot ect ion; t o prom ot e
t he uniform applicat ion of t he general principles of t he Direct ives in all Mem ber St at es
t hrough co- operat ion bet ween dat a prot ect ion supervisory aut horit ies; t o advise t he
Com m ission on any Com m unit y m easures affect ing t he right s and freedom s of nat ural
persons wit h regard t o t he processing of personal dat a and privacy; t o m ake
recom m endat ions t o t he public at large, and in part icular t o Com m unit y inst it ut ions on
m at t ers relat ing t o t he prot ect ion of persons wit h regard t o t he processing of personal
dat a and privacy in t he European Com m unit y. The Art icle 29 Working Part y com plem ent s
128
P. de Hert and R. Bellanova ( 2009) , “ Dat a Prot ect ion in t he Area of Freedom , Securit y and
Just ice: A syst em st ill t o be fully developed?” , European Parliam ent , Brussels
129
EDPS ( 2011) , Opinion of t he European Dat a Prot ect ion Supervisor on t he Ev aluat ion report from
t he Com m ission t o t he Council and t he European Parliam ent on t he Dat a Ret ent ion Direct ive
( Direct ive 2006/ 24/ EC) , 31 May, p. 14.
130
EDPS ( 2011) , Opinion of t he European Dat a Prot ect ion Supervisor on t he Proposal for a Direct ive
of t he European Parliam ent and of t he Council on t he use of Passenger Nam e Recor d dat a for t he
prevent ion, det ect ion, invest igat ion and prosecut ion of t errorist offences and serious crim e,
Brussels, 25.3.2011.
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t he work of t he EDPS. I n t he case of t he PNR Direct ive for inst ance, it reached sim ilar
conclusions in it s April 2011 opinion on t he Com m ission proposal. 131
As an addit ion, t he EU does have m echanism s t hat prom ot e t he vit alit y and dynam ics of
dem ocrat ic right s in a t ransparent m anner. There are pot ent ialit ies t o open up debat es on
issues covered by t he EU I SS and t o ensure t he part icipat ion of t he EU cit izens and
resident s in t he Union's dem ocrat ic funct ioning. The posit ion of t he European Om budsm an
and it s m ission illust rat es t his point .
2.8.3.3.
The European Om budsm an
The Lisbon Treat y int roduces a horizont al am endm ent , replacing “ inst it ut ions ( and/ or
bodies) ” wit h “ inst it ut ions, bodies, offices or agencies” . Wit h t his am endm ent , som e
general principles ( e.g. t he right of access of EU cit izens t o docum ent s or t he right t o file
com plaint s t o t he European Om budsm an) would apply explicit ly t o European agencies as
well. 132 Thus, t h e a dm inist r a t ive a ccou n t a bilit y of t he EU a ge n cie s in volve d in t h e
I SS is in cr e a sin gly sa fe gua r de d by t he Eu r ope a n Om bu dsm a n , w h o h a s t h e
pow e r t o in ve st iga t e com pla in t s of m a la dm in ist r a t ion. The Treat y of Lisbon also
broadened t he Om budsm an’s m andat e t o include possible m aladm inist rat ion in t he
fram ework of t he Com m on Foreign and Securit y Policy, including t he Com m on Securit y
and Defence Policy.
The office of European Om budsm an was est ablished by t he Maast richt Treat y as part of
t he cit izenship of t he European Union. Art icle 24 of t he Treat y on t he Funct ioning of t he
European Union ( TFEU) provides for t he right t o com plain t o t he European Om budsm an as
one of t he right s of cit izenship of t he Union. This right is also included in t he Chart er of
Fundam ent al Right s of t he EU ( Art icle 43) . Possible inst ances of m aladm inist rat ion com e
t o t he Om budsm an’s at t ent ion m ainly t hrough com plaint s, alt hough t he Om budsm an also
conduct s inquiries on his own init iat ive.
According t o his m ission st at em ent , “ t he European Om budsm an seeks fair out com es t o
com plaint s against European Union inst it ut ions, encourages t ransparency, and prom ot es
an adm inist rat ive cult ure of service. He aim s t o build t rust t hrough dialogue bet ween
cit izens and t he European Union and t o fost er t he highest st andards of behaviour in t he
Union’s inst it ut ions” . 133 I nquiries can be opened by t he Om budsm an in a rat her easy
fashion. Com plainant s can subm it t heir request s online. Cit izen of a Mem ber St at e of t he
EU, or who reside in a Mem ber St at e, can m ake a com plaint . Businesses, associat ions or
ot her bodies wit h a regist ered office in t he EU m ay also com plain t o t he Om budsm an.
I n I SS- relat ed issues, int erest ing past exam ples illust rat es t h e pot e n t ia l for t h e
Eu r ope a n Om bu dsm a n t o be m or e involve d in JH A m a t t e r s. I n 2009, a case was
subm it t ed t o t he Om budsm an. 134 The com plainant request ed public access t o a not e from
t he Council Presidency. The request ed docum ent was a not e from t he Presidency of t he
Council t o Coreper in response t o a let t er from t he European Parliam ent concerning t he
t ransfer of inform at ion t o Parliam ent 's Tem porary Com m it t ee on t he alleged use of
131
Art icle 29 Working Part y ( 2011) , Opinion 10/ 2011 on t he proposal for a Direct ive of t he
European Parliam ent and of t he Council on t he use of passenger nam e record dat a for t he
prevent ion, det ect ion, invest igat ion and prosecut ion of t errorist offences and serious crim e,
00664/ 11/ EN, WP 181.
132
S. Andoura and P. Tim m erm an ( 2008) , “ Governance of t he EU: The Reform Debat e on European
Agencies Reignit ed” , CEPS, Brussels
133
European Om budsm an Annual Report , 2010
134
The
case
523/ 2009/ TS
is
ht t p: / / www.om budsm an.europa.eu/
det ailed
on
t he
European
Om budsm an’s
websit e:
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European Count ries by t he Unit ed St at es’ Cent ral I nt elligence Agency for t he
t ransport at ion and illegal det ent ion of prisoners. The not e was regist ered by t he Council
under reference num ber 14483/ 06 and classified as 'RESTREI NT UE'. The com plainant was
refused t his access, and subm it t ed a com plaint t o t he Om budsm an in March 2009, upon
which t he Om budsm an opened an inquiry. The com plaint was t hen forwarded t o t he
Council, which provided it s opinion, which was sent t o t he com plainant wit h an invit at ion
t o m ake observat ions. The com plainant subm it t ed his observat ions in Novem ber 2009. I n
Decem ber 2009, t he Om budsm an inspect ed t he docum ent in quest ion at t he prem ises of
t he Council. The report of t he inspect ion was subsequent ly forwarded t o t he com plainant
and t o t he Council.
I n his assessm ent , t he Om budsm an gives det ails on how t he case was handled, and
declares t hat on t he basis of his invest igat ion, and having accessed t he docum ent in
quest ion, he concludes t hat , in t his case, t he st at em ent of reasons set out by t he Council
for applying t he except ion based on t he prot ect ion of public int erest as regards
int ernat ional relat ions was sufficient . The Om budsm an considers t hat t he brevit y of t he
st at em ent of reasons is accept able in light of t he fact t hat m ent ioning addit ional
inform at ion, in part icular m aking reference t o t he cont ent s of t he docum ent concerned
beyond what is st at ed above, would negat e t he purpose of t he except ion. On t he basis of
t he above, t he Om budsm an concludes t hat t here was no m aladm inist rat ion by t he
Council.
I f t he Om budsm an’s decisions are not legally binding and do not creat e legally enforceable
right s or obligat ions for t he com plainant , or for t he inst it ut ion concerned, t he use of such
dem ocrat ic t ools should be publicised. Sensit ive areas for t he EU cit izens such as dat a
prot ect ion, wat ch list s, and m ore broadly at t em pt s t o freedom s and right s wit hin t he EU,
could be brought t o t he European Om budsm an’s at t ent ion.
2.8.3.4.
Conclusion: t he perpet uat ion of t he t hird pillar?
Taken t oget her, t he developm ent s highlight ed so far in Chapt er 1 and 2 raise t he quest ion
of whet her t he t hird pillar has effect ively disappeared in EU AFSJ policies. The point is not
t o deny t he legal changes brought about by t he ent ry int o force of t he Lisbon Treat y. I n
som e respect s, act ors from t he form er t hird pillar have t aken st ock of t he new syst em of
checks and balances and it s effect s. A good exam ple of t his is t he fact t hat t he Hungarian
Presidency has shown a degree of com pliance wit h t he obligat ion laid down in Art icle
87( 3) TFEU and Art icle 6( 2) of t he COSI Decision t o keep t he European Parliam ent and
nat ional Parliam ent s inform ed of t he developm ent s t aking place in t he field of operat ional
cooperat ion in law enforcem ent by recent ly forwarding a let t er det ailing t he act ivit ies of
COSI in 2010- 2011 t o t he chairm an of t he LI BE Com m it t ee. COSI should discuss in it s
upcom ing m eet ing of 8 Sept em ber 2011 a draft report t o t he European and nat ional
Parliam ent s on t he sam e quest ion ( Council docum ent 12980/ 11, not available publicly) .
On t he side of t he cooperat ion bet ween agencies, t he FRA was invit ed for t he first t im e by
EUROPOL t o at t end, t oget her wit h EUROJUST, EMCDDA, OLAF and Sit Cen t he Novem ber
2010 m eet ing of t he JHA Heads of Agencies. 135 During t he first sem est er of 2011, t he
FRA ha s officia lly be e n w e lcom e d a s a n e w JH A Age n cy by EUROJUST 136 , which
holds t he chairm anship and secret ariat of JHA Agency cooperat ion unt il t he end of 2011
( FRONTEX is t o t ake over in 2012, CEPOL in 2013) . By t he sam e t oken, FRA
represent at ives have also been invit ed t o at t end som e COSI m eet ings, for inst ance on t he
occasion of t he discussion of t he Com m ission’s I SS in Act ion com m unicat ion in Oct ober
135
Council of t he European Union ( 2011) , “ Report on cooperat ion bet ween JHA Agencies in 2010” ,
5675/ 11, 25.1.2011.
136
Council of t he European Union ( 2011) , “ JHA agency cooperat ion – Midt erm report January- May
2011 – Act ivit ies and Key Findings” , 10404/ 11, 19.5.2011.
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2010. 137 The revision of t he FRONTEX Regulat ion indicat es an effort , albeit lim it ed, t o t ake
int o considerat ion t he obligat ions regarding t he com pliance of t he agency’s act ivit ies wit h
fundam ent al right s provisions in t he t reat ies.
I n t he m eant im e, a nu m be r of de ve lopm e n t s m igh t r e su lt in t h e se cha nge s be in g
m inor a dj u st m e n t s, r e fle ct ing a n in clu sion a t t h e m a r gin r a t h e r t h a n fu ll
in t e gr a t ion. Som e of t he old working habit s of t he t hird pillar, including t he t endency t o
engage wit h securit y m at t ers on a st rict ly int ergovernm ent al basis and in confident ial
set t ings, are st ill at work. There are several issues at st ake, which will be furt her refined
and explored in t he next chapt er, regarding t he policy process and t he possibilit ies of
oversight in int ernal securit y act ivit ies, as well as in view of t he com pliance of t hese
act ivit ies wit h fundam ent al freedom s and right s obligat ions. The preservat ion of t he
est ablished working habit s associat ed wit h t he t hird pillar, in addit ion, operat es alongside
a num ber of shift s in t he orient at ions of EU int ernal securit y policies. To som e ext ent ,
t hese orient at ions have been present for som e t im e, and m ost find t heir origins in t he
developm ent s surrounding t he creat ion of t he first European police and j ust ice bodies and
in t he unfolding of t he Schengen cooperat ion in t he 1990s. They are current ly
encom passed under t he not ion of ‘int elligence- led policing’ and it s correlat es, such as t he
syst em at ic prom ot ion of a pro- act ive post ure wit h regard risks and t hreat s. Th e ‘EU’
policy cycle in in t e r n a l se cur it y, in t h is r e ga r d, ca n pot e n t ia l e n a ble t h e
pr e se r va t ion of la w - e n for ce m e n t coope r a t ion a s a n in t e r gove r n m e n t a l dom a in
de spit e t he e n d of t h e pilla r syst e m . One of t he m ost crucial aspect s of t hese
orient at ions is t he com binat ion of an int elligence- led and pro- act ive approach wit h
increasing reliance on t echnology and surveillance. Current developm ent s involving
FRONTEX and t he est ablishm ent of EUROSUR reflect t his t rend, and t he relat ed challenge
posed by t echnology. Finally, an essent ial aspect t hat has not been scrut inised so m uch
up t o now in t his st udy is t he quest ion of t he ext ernal effect s of int ernal securit y policies
and of t he ent anglem ent bet ween int ernal and ext ernal securit y. All t he EU agencies,
bodies and services evoked so far are engaged in act ivit ies in, or cooperat ion wit h, t hird
count ries. This is t he last challenge t hat will be surveyed in t he next chapt er.
137
Council of t he European Union ( 2010) , “ St anding com m it t ee on operat ional cooperat ion in
int ernal securit y ( COSI ) – Sum m ary of discussions” , 14651/ 10, 8.10.2010.
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3 . CH ALLEN GES OF EU I N TERN AL SECURI TY
3 .1 .
KEY FI N D I N GS
The st udy of t he I SS underlines t he need t o address t hree m ain challenges: t he
policy process, t he issue of dat a prot ect ion and an effect ive com pliance of ext ernal
act ivit ies.
The analysis of t he m et hodology current ly used in t he int ernal securit y policy
process highlight s t he need for m ore t ransparency ( including access t o
inform at ion) and ext ernal assessm ent . An evidence- based EU policy in t he field of
int ernal securit y can only benefit from a pluralist ic and cont radict ory debat e.
There are also not only legal grounds, but also a real need for m ore act ive
engagem ent from t he EP in t he field of int ernal securit y, in t he oversight of
proposals m ade by t he Council and various EU agencies, in COSI ’s act ivit ies, and in
t he process of t hreat assessm ent s.
I n t he area of Hum an Right s, freedom agencies play an increasing role in t he I SS,
which help inflect ing t he European securit y m odel advocat ed in t he EU I SS t hat
support s an all- encom passing definit ion of int ernal securit y and neglect t he issue of
Fundam ent al Right s. The FRA, t he EDPS and t he Art icle 29 Working Part y have a
legit im at e role in assessing and influencing t he I SS from a fundam ent al right s
perspect ive.
Furt herm ore, t he role of such EU act ors is crit ical in a cont ext of t echnology
int ensive int ernal securit y policies relying on t he processing of personal dat a. The
need for a single dat a prot ect ion fram ework for increased oversight of law
enforcem ent act ivit ies involving t he processing of personal dat a is high in t his
regards.
This aspect is enhanced by t he securit y cooperat ion wit h t hird count ries t hat raises
a num ber of challenges and can be highly sensit ive, as dem onst rat ed by
cont roversies around t he EU- US TFTP and PNR agreem ent s. The gist of t he
challenge regarding ext ernal relat ions is t he possibilit y t o ensure effect ive
com pliance of ext ernal act ivit ies in t he field of int ernal securit y wit h t he principles
governing t he AFSJ as a whole, and part icularly wit h Treat y- based obligat ions in
t he field of fundam ent al freedom s and right s. I n t his specific area, t here is clearly a
need for m onit oring t he arrangem ent s and agreem ent s concluded by EU agencies
and bodies wit h t hird count ries.
Th e policy ch a lle n ge
The cent rem ost challenge for ensuring t he proper funct ioning of t he EU syst em of checks
and balances, guarant eeing dem ocrat ic account abilit y and enforcing com pliance wit h t he
fundam ent al freedom s and right s obligat ions laid down in t he Treat ies, relat es t o t he
organisat ion of int ernal securit y policy. I t is t o devise a policy process t hat is inclusive of
all st akeholders and does not narrow int ernal securit y act ivit ies t o discussions am ong lawenforcem ent specialist s. By reinforcing t he powers of t he European Parliam ent and despit e
t he derogat ions t o t he ordinary legislat ive procedure in t he field of police cooperat ion and
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operat ional act ivit ies, t he Lisbon Treat y also places addit ional dem ands on t he EP t o
engage act ively wit h t he m onit oring of EU init iat ives in t he field of int ernal securit y.
Monit oring and oversight involve t hree key areas: t he developm ent of an evidence- based
EU policy in t hese areas, t he enforcem ent of effect ive consult at ion at all st ages of t he EP,
and t he guarant ee of a m ore open part icipat ion in int ernal securit y policies.
3.1.1.
3.1.1.1.
Towards an evidence- based EU policy
The knowledge challenge
As explained in t he background sect ion, how we com e t o define and give priorit y t o t he
t hreat s and risks affect ing t he EU is of param ount im port ance in order t o ensure t hat EU
int ernal securit y policies, including t he areas of count er- t errorism and organised crim e, is
adequat ely evidence- based and support ed by t he best available assessm ent s. The
consequences of t he various t hreat assessm ent s report s produced by EUROPOL or FRONTEX
should not be underest im at ed, bot h in t erm s of reliabilit y and im pact . As not ed in a recent
report for t he LI BE Com m it t ee 138 , even t hough EU agencies such as EUROPOL and
EUROJUST are not m eant t o set priorit ies or m ake policy, t hey do have a specific role in t he
policy process, as t heir assessm ent s will inform polit ical priorit y- set t ing and policy in t he
area. The long- t erm invest m ent of EUROPOL in such act ivit ies, for inst ance, offers t he
agency t he possibilit y of shaping fut ure EU policy. The em erging organisat ion of work
around t he EU policy cycle and COSI is likely t o furt her reinforce t his t rend. EUROPOL’s
expert ise is expect ed t o support t he developm ent of a large ecosyst em of policy- planning
docum ent s, including PADs, MASPs and OAPs, which will st eer int ernal securit y act ivit ies in
fort hcom ing years.
Th e m e t hodology use d t o de ve lop t he se docum e n t s sh ou ld be m a de pu blicly
a va ila ble t o e na ble e x t e r na l a nd in de pe nde n t r e vie w ing a n d a sse ssm e nt . The TESAT report s should receive sim ilar scrut iny and supervision. The sam e holds for t he
m et hodology of t he risk assessm ent s produced by FRONTEX, where som e m et hodological
issues are openly acknowledged by t he agency it self. Here again, t here exist s a significant
degree of expert ise pooled am ong t he research proj ect s funded under t he EU’s 6 t h and 7 t h
Fram ework Program m es t o ensure an ext ernal evaluat ion of t he highest qualit y 139 . I t is
wort h not ing, for inst ance, t hat ot her bodies of t he European Union have relied on such
ext ernal and independent support and review in t his area. The abovem ent ioned FP6
Proj ect THESI M t hus provided expert ise t o t he European Parliam ent , EUROSTAT as well as
nat ional bodies in t he cont ext of t he negot iat ions t hat led t o t he adopt ion of Regulat ion
( EC) No 862/ 2007 on Com m unit y st at ist ics on m igrat ion and int ernat ional prot ect ion.
CEPOL, and t o a lesser ext ent FRONTEX ( and m ore recent ly) have also dem onst rat ed a
degree of willingness t o involve ext ernal review, including from recognised scholars in t he
social sciences, so t his can be considered as an accept ed pract ice am ong JHA agencies.
The quest ion of knowledge, however, cannot be lim it ed t o t he provision of expert ise t o
int ernal securit y agencies, bodies and services, be it ext ernal and independent . An
evidence- based EU policy in t he field of int ernal securit y can only benefit from a pluralist ic
and cont radict ory debat e. Th e r e a r e a nu m be r of t ools a va ila ble t o t h e EU
in st it u t ions t o e n su r e t h a t su ch a de ba t e t a k e s pla ce . These include t he briefing
not es and st udies t hat can be request ed by t he European Parliam ent , but also t he
research proj ect s funded under t he EU’s Fram ework Program m es. I n recent years
however, t he handling of t he lat t er wit h regard t o securit y research, and especially of t he
138
M. Busuioc and D. Curt in ( 2011) , op. cit . The report also underlines how t he dividing lines
bet ween policy advice and act ual policy- m aking becom e blurry in pract ice, part icularly given t he
close link bet ween t hreat assessm ent , polit ical priorit y- set t ing and ensuing policy choices.
139
The European Com m ission’s repor t on EU research on m igrat ion provides inform at ion on a
num ber of proj ect s t hat have worked on t he st at ist ical t reat m ent of m igrat ory dynam ics, which is of
key im port ance for FRONTEX: European Com m ission ( 2009) , “ Moving Europe: EU research on
m igrat ion and policy needs, DG Research, Brussels.
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FP7 Securit y Them e ( FP7- ST) , has becom e a source of concern. 140 The FP7- ST will be
exam ined in m ore det ails below, but it is im port ant t o point out t hat t he priorit ies and
funding of research in t he field of securit y is an area where t he European Parliam ent has a
st rong capacit y for int ervent ion t hrough it s powers as budget ary aut horit y.
3.1.1.2.
The quest ion of access t o inform at ion
The corollary of a broader evidence base and m ore pluralist ic knowledge base in t he field
of int ernal securit y is access t o inform at ion. The key quest ion is t he possibilit y for act ors
beyond t he narrowly defined law- enforcem ent sect or t o have access t o som e inform at ion
deem ed classified or confident ial. I nt ernal securit y agencies, bodies and services are keen
t o em phasise t hat confident ialit y is a pre- requisit e for efficiency and for confidence
building am ong securit y pract it ioners. The quest ion has em erged probably m ost st rongly
in ongoing discussions about t he recast of Regulat ion ( EC) 1049/ 2001 regarding public
access t o European Parliam ent , Council and Com m ission docum ent s. The count ert errorism coordinat or usefully recapit ulat ed t he view of securit y pract it ioners in an April
2010 m eet ing on t he issue of access t o docum ent s aft er t he ent ry int o force of Lisbon, by
point ing out t hat as far as int elligence cooperat ion was concerned, confident ialit y is a
prerequisit e for t rust , and int elligence services want t o be able t o ensure t hat “ inform at ion
t hey supply should not be passed on wit hout t he consent of t he originat or” 141 . But as t he
CTC recognises him self in t he sam e int ervent ion, t here is very lit t le involvem ent of
Mem ber St at e int elligence services per se at t he EU level, t he only m aj or except ion being
Sit Cen ( and for ext ernal relat ions m at t ers, t he EUMS int elligence division) .
There are, in fact , t wo discussions here. The first one concerns public access t o
docum ent s and t he ext ent t o which rules of confident ialit y designed for int elligence
m at erials should be considered fit t ing for ot her t ypes of docum ent s, including it em s such
as FRONTEX or EUROPOL risk assessm ent s. The second one involves checks and balances
and Parliam ent ary oversight , which should not be confused wit h full disclosure of
confident ial docum ent s. On t his second point , it is wort h not ing t hat all Mem ber St at e
nat ional Parliam ent s have, t o one degree or anot her, developed m echanism s of oversight
for policies involving classified m at erials, and t hat t his should be a priorit y for t he
European Parliam ent as well.
The independent assessm ent concerning t he count er- t errorism cost s ( see Report for t he
LI BE Com m it t ee, May 2011) shows t hat EU CT relat ed spending increased from €5,7 m in
2002 t o €93,5 m in 2009. As underlined by t he LI BE Rapport eur on t he Count er- Terrorism
Policy 142 , a proper evaluat ion of t en years of count er- t errorism policies would provide t he
basis for an evidence- based, needs- driven, coherent and com prehensive EU count ert errorism st rat egy. A panel of independent expert s could carry such an in- dept h and
com plet e appraisal. Such panel should not only set out clearly t he result s of t he policies in
t erm s of increased securit y in Europe, but also include a full overview of t he accum ulat ed
im pact of count er- t errorism m easures on civil libert ies.
3.1.2. Effect ive consult at ion and involvem ent of t he European Parliam ent and of bodies
in charge of fundam ent al freedom s and right s
I n order t o st rengt hen t he dem ocrat ic account abilit y of JHA m at t ers, t he first obj ect ive
should be t o oblige t he European Council and t he Council of t he European Union t o m ake
t heir preparat ory work m ore t ransparent . I n t he m eant im e, t he effect ive consult at ion and
involvem ent of t he European Parliam ent and of bodies in charge of fundam ent al freedom s
and right s is also cent ral.
140
See t he st udies conduct ed on behalf of t he LI BE Com m it t ee on securit y research in t he FP6 and
FP7 ( PE 393.289 and PE 432.740) .
ioj dsf
142
S. I nt ’Veld ( 2011) , op. cit .
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3.1.2.1. The effect ive involvem ent of t he European Parliam ent at all st ages
An efficient cooperat ion bet w een t he European Parliam ent and nat ional parliam ent s and
t he est ablishm ent of int er- parliam ent ary oversight is crit ical. I n part icular, a way t o break
t he current de fact o convent io ad excludendum of t he European Parliam ent and som e
nat ional parliam ent s could be for t he nat ional parliam ent s t o share am ong t hem selves and
t he European Parliam ent t he inform at ion/ preparat ory t ext s of general int erest .
The Com m ission should regularly assess t he dem ocrat ic scrut iny of count er- t errorism and
OC policies. I f it is clear for t he LI BE Com m it t ee t hat such assessm ent m ust cover t he
access of inform at ion and preparat ory docum ent s; t he t im e and right s t o m odify t he
proposals, t o overview t he legal basis used for each policy m easure, it is also of sim ilar
im port ance t o est ablish an independent m echanism of oversight and follow up of each
m easures t aken in t he nam e of securit y.
Moreover, and beyond t he need for consult at ion, t h e ne e d for m or e a ct ive
e n ga ge m e nt fr om t he Eur ope a n Pa r lia m e n t m u st be t a ck le d. For COSI act ivit ies for
inst ance, Art icle 71 TFEU m ent ions t he need t o keep t he EP and nat ional Parliam ent s
inform ed. The provision provides a legal basis for t he EP t o act ively st age hearings wit hin
t he relevant Com m it t ees. Hearings can be based on Rule 193( 2) of t he European
Parliam ent ’s rules of procedures. Regular hearings could prom ot e t he new syst em of
checks and balances int roduced by t he Lisbon Treat y and cont ribut e t o t he regular
m onit oring of act ivit ies in t he field of int ernal securit y. For m ore prom inent cases, t here
are t wo possibilit ies:
Rule 184 of t he EP’s rules of procedure provides for t he creat ion of special
com m it t ees, on a proposal from t he Conference of President s. The t erm of office of
such a com m it t ee m ay not exceed 12 m ont hs, unless decided ot herwise by
Parliam ent upon it s expiry. One possibilit y would be t o set up a special com m it t ee
wit h powers t o m onit or int ernal securit y act ivit ies and see t hat all t he agencies,
bodies and services involved inform t he EP. While not a durable solut ion, it m ight
provide for oversight in t he upcom ing year or m ore while t he fram ework of int ernal
securit y policies is being put in place by COSI and t he agencies
Tem porary com m it t ees of inquiry: part icular pot ent t ool wit h a t reat y base ( Art icle
226 TFEU, Rule 185 of t he EP’s rules of procedure) . The EP can convene such
com m it t ees t o invest igat e alleged cont ravent ions or m aladm inist rat ion in t he
im plem ent at ion of EU law, except where t he alleged fact s are already being
invest igat ed by a court .
An int ensive and ext ended parliam ent ary represent at iveness in t he JHA act ivit ies should
be brought forward. This does not only cover t he involvem ent in t he t hreat assessm ent s
and t he oversight of proposals m ade by t he Council and various EU agencies.
Parliam ent ary represent at iveness at all st age of t he decision- m aking level should be
prom ot ed.
3.1.2.2. The involvem ent of EU bodies in charge of fundam ent al freedom s and right s
The Lisbon t reat y brings t wo crucial m odificat ions in t erm s of HR: it gives t he Chart er of
Fundam ent al Right s legally binding st at us and int roduces in t he Treat y on European Union
a general com m it m ent t o such principles as freedom , t he rule of law and respect for
hum an right s ( Art icle 2 TEU) .
As not ed earlier, despit e t he Com m ission’s com m it m ent , in it s Act ion Plan on
im plem ent ing t he St ockholm Program m e, t o a “ Zero Tolerance Policy” regarding violat ions
of t he Chart er of Fundam ent al Right s, t he I SS in Act ion does not regard t he t ransposit ion
of t his policy in t he field of int ernal securit y as a st rat egic obj ect ive. I f t he com m unicat ion
fram es EU int ernal securit y policies as being based on com m on values and refers bot h t o
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t he EU Chart er of Fundam ent al Right s and t o t he Com m ission’s st rat egy for it s
im plem ent at ion, it offers a rat her rest rict ive definit ion of t he art iculat ion bet ween securit y,
freedom and j ust ice.
The I SS t hus offers lit t le provisions in t erm s of ensuring libert y t o individuals across t he
EU. This elem ent has not only consequences t hat should not be underest im at ed ( such as
t he infringem ent of civil libert ies) . Law enforcem ent officials have indeed m uch m ore t o
gain t o ensure t hat fundam ent al freedom s are respect ed wit hin t he EU. As right ly put by
EU expert s in t he field, “ when people know t hat t heir right s are prot ect ed by law, law
enforcem ent officials are secure in t he knowledge t hat t heir act ions are fully com pat ible
wit h fundam ent al right s and t he accused are guarant eed a fair t rial, a t ruly effect ive I SS
will be achieved. ( ...) The EU’s I SS should be built around t he obj ect ive of delivering t o
everyone living in t he EU t he t win right s of Rule of Law and prot ect ion of Fundam ent al
Right s” i143 . Thus, t h e involve m e n t of EU “Fr e e dom s Age n cie s” shou ld n ot be se e n
a s a con ce ssion offe r e d t o “civil libe r t ie s” su ppor t e r s, bu t a s a n e fficie n t w a y t o
pr om ot e de ba t e s a nd com ply w it h t h e Ru le of La w a n d, in doin g so, a void h e a t e d
cont r ove r sie s, as well as financial com pensat ions for wrongdoings.
As described above, freedom agencies play an increasing role in EU int ernal securit y
policies, and an enhanced use of exist ing EU agencies responsible for t he respect of
Hum an Right s would help inflect ing t he European securit y m odel advocat ed in t he EU I SS
t hat support s an all- encom passing definit ion of int ernal securit y and neglect t he issue of
Fundam ent al Right s.
I n part icular, t he FRA should m ake use of it s current ( post - Treat y of Lisbon) powers t o
assess t he I SS from a fundam ent al right s perspect ive and it should also see it s
com pet ences expanded as regards independent and obj ect ive evaluat ion ( not only
research act ivit ies) of EU policies covering in part icular t he dom ains of police cooperat ion
and crim inal j ust ice 144ii . Furt herm ore, a FRA represent at ive could at t end COSI m eet ings. I t
would provide m ore balance t o t he COSI com posit ion, where t he j ust ice elem ent is barely
represent ed, wit h t he except ion of t he EUROJUST represent at ive present at COSI
m eet ings. As an addit ion, t he ED PS, t h e Ar t icle 2 9 W or k in g Pa r t y, a n d t h e FRA
sh ou ld be con su lt e d on a syst e m a t ic ba sis on da t a pr oce ssin g a n d e x ch a nge s
w it h t h ir d pa r t ie s sch e m e s for in t e r na l se cu r it y pu r pose s. The issue of dat a
prot ect ion, as well as init iat ives undert aken by t he EDPS and t he Art icle 29 Com m it t ee are
det ailed furt her in t he sect ion devot ed t o t he ‘t echnological challenge’.
Along wit h t his need t o fully involve t he FRA, t he EDPS and Art icle 29 WP ( in COSI ’s scope
of act ivit ies for inst ance) , a m ore int egrat ed cooperat ion and coordinat ion bet ween t hese
agencies would be welcom e.
3 .2 .
Th e t e ch n ologica l ch a lle n ge
The reliance on t echnological syst em s in EU int ernal securit y policies has becom e over t he
past few years a cent ral feat ure of a growing num ber of init iat ives. Significant budget ary
resources have been earm arked for t he purpose of researching securit y t echnologies: t he
‘securit y t hem e’ of t he Union’s 7 t h Research Fram ework Program m e has been endowed
wit h an overall budget of €1.4 billion. Program m at ically at least , t hen, t he reliance on
t echnology for int ernal securit y is a cent ral issue.
Out lining t he ‘t echnological challenge’, however, requires t hat a num ber of quest ions be
raised. To w ha t e x t e n t do t he post - Lisbon in it ia t ive s in t h e a r e a of t e ch nology a n d
se cu r it y, a n d t h e pr ior it ie s single d ou t in t h e EU I SS diffe r fr om pr e viou s policy
143
E. Guild and S. Carrerra, ( 2011) , op. cit .
144
E. Guild and S. Carrerra, ( 2011) , Tow ards an I nt ernal ( I n) secur it y St rat egy for t he EU?, CEPS,
Brussels
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or ie n t a t ion s? Technology has been cent ral in a num ber of cont roversies over t he past
decade, part icularly in cases where t he reliance on t echnical syst em s appeared t o
challenge t he right t o dat a prot ect ion and t he right t o privacy of EU cit izens. Exam ples of
such cont roversies have involved t he European Parliam ent , as in t he case of t he t ransfer
t o t he Unit ed St at es of Am erica’s Depart m ent of Hom eland Securit y of financial dat a
generat ed by t he Swift com pany for t he purpose of t he TFTP program m e im plem ent ed by
t his body, 145 or in t he case of t he t ransfer and processing of Passenger Nam e Record
( PNR) dat a. 146 Ot hers have rem ained m ore discret e and lim it ed t o expert discussions, as
in t he case of t he delays encount ered in t he deploym ent of t he second- generat ion
Schengen I nform at ion Syst em ( SI S I I ) . 147 H a ve t h e se cont r ove r sie s be e n t a k e n in t o
a ccoun t in for e se e n in it ia t ive s?
At t he heart of t he ‘t echnological challenge’ lie s t h e que st ion of t h e pr oce ssin g of
pe r sona l da t a by in t e r n a l se cu r it y a ge n cie s, bodie s a n d se r vice s of t h e EU a nd it s
M e m be r St a t e s. Dat a processing is a cent ral feat ure of t he priorit ies singled out in t he
EU I SS. The obj ect ive out lined by t he docum ent is t hat t here should be “ int eract ion”
bet ween “ all t he different EU dat abases relevant for ensuring securit y [ …] as far as it is
needed and perm it t ed, for t he purpose of providing effect ive inform at ion exchange across
t he whole of t he EU and m axim ising t he opport unit ies present ed by biom et rics and ot her
t echnologies for im proving our cit izens’ securit y wit hin a clear fram ework t hat also
prot ect s t heir privacy” ( p. 13) . W h ich m e ch a n ism s of ove r sigh t a r e a va ila ble t o
e n su r e t ha t t h is pr e scr ipt ion is im ple m e n t e d?
3.2.1.
The drive t owards t echnology- int ensive EU int ernal securit y policies
The reliance on som e t echnologies, such as com put erised inform at ion exchanges, for
int ernal securit y purposes is a long- st anding t rend, bot h in individual Mem ber St at es and
in t he European cont ext . The first pan- European police dat abase, in t his respect , was t he
Schengen I nform at ion Syst em ( SI S) , which cam e online in 1995. The current period
differs from earlier init iat ives by t he sign ifica n t pr ogr a m m a t ic infla t ion t hat can be
observed wit h regard t o t he use of t echnology for purposes of int ernal securit y. M u lt iple
in it ia t ive s, pa r t icu la r ly w it h r e ga r d da t a - pr oce ssin g sche m e s, a r e be ing
pr ogr a m m e d in close su cce ssion , r a ising t h e que st ion of possible ove r la ps a n d of
t h e a ct u a l n e ce ssit y of t h e diffe r e n t e nvisa ge d syst e m s. I n t he m eant im e, t he
program m at ic focalisat ion on t echnology and t he alleged need for forward- looking policies
in t his field h a ve br oa de n e d t he r a nge of a ct or s involve d in EU in t e r na l se cu r it y
policie s, pa r t icu la r ly fr om t h e pr iva t e se ct or. Program m at ic inflat ion, however,
r a ise s t he qu e st ion of pr a ct ica l im ple m e n t a t ion : t o w ha t e x t e n t h a ve
pr ogr a m m e d t e ch n ica l syst e m s, in clu ding t h ose fu nde d t h r ough EU in st r u m e n t s,
be com e ope r a t iona l so fa r ?
3.2.1.1.
Technology and program m at ic inflat ion in EU int ernal securit y policies
Th e e m pha sis on t e ch n ology a s a cr u cia l com pon e n t of t he Un ion ’s policie s in t h e
fie ld of int e r na l se cu r it y is not spe cifica lly t ie d t o t he e n t r y in t o for ce of t h e
Lisbon Tr e a t y a n d t he a dopt ion of t h e EU I n t e r n a l Se cu r it y St r a t e gy. Discussions
on t he use of t echnology have been going on across a num ber of issue areas, and
involving different groups of part icipant s, since t he end of t he 1990s. Modificat ions t o t he
SI S, for one, were envisaged on a regular basis aft er it cam e online, for exam ple t o
accom m odat e it s ext ension t o new Schengen count ries. Wit h t he inclusion of t he Nordic
count ries in t he syst em , SI S becam e ‘SI S I + ’ and, following on a decision from t he
145
For an overview, see int er alia A. Am icelle ( 2011) , “ The Great ( Dat a) Bank Robbery: Terrorist
Financing Tracking Program and t he ‘SWI FT Affair’” , Paris: CERI , QDR No. 36.
146
See e.g. P. De Hert and R. Bellanova ( 2011) , “ Transat lant ic Cooperat ion on Travellers’ Dat a
Processing: From Sort ing Count ries t o Sort ing I ndividuals” , Migrat ion Policy I nst it ut e, Washingt on,
D.C.
147
See J. Parkin ( 2011) , “ The Difficult Road t o t he Schengen I nform at ion Syst em I I : The legacy of
‘laborat ories’ and t he cost for fundam ent al right s and t he rule of law” , CEPS, Brussels.
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Decem ber 2006 JHA Council, ‘SI S one4all’ t o allow t he syst em ’s ext ension t o t he new EU
Mem ber St at es. 148 New cat egories of records ( such as t he ‘inform al’ inclusion of persons
list ed on t he UN t errorist list s) , new funct ionalit ies, and new access possibilit ies have been
added over t im e t o t he syst em . 149 Measures t owards t he est ablishm ent of SI S I I were
init iat ed from t he end of 2001 onwards, in parallel t o t he ongoing m odificat ions of SI S150 –
in som e cases, such as t he SI S ‘one4all’, because of t he delays encount ered in it s
developm ent 151 - while t he purposes of t he syst em were only form alised wit h t he adopt ion
of t he SI S I I Regulat ion in Decem ber 2006. 152 I n t he field of visa policy, t he principle of a
com put erised consult at ion syst em on visas ( VI SI ON) am ong Schengen Mem ber St at es
was est ablished in Docum ent SCH/ I I - Vision ( 99) 5 of t he Schengen Execut ive Com m it t ee.
Aft er t he event s of 11 Sept em ber 2001, discussions am ong Mem ber St at e represent at ives
wit hin t he Visa Working Part y resum ed wit h t he possibilit y of using visa- relat ed
inform at ion for count er- t errorism purposes. The est ablishm ent of VI S followed t he sam e
pat t ern as SI S I I : nam ely, a Council Decision was adopt ed in June 2004 t o enable t he
Com m ission t o init iat e t he t echnical developm ent of t he syst em , while t he VI S Regulat ion
as such, which defined it s purpose and cont ent s, was adopt ed only in July 2008. 153
I f discu ssion s on t h e u se of t e ch n ology for in t e r n a l se cu r it y pu r pose s ha ve be e n
going on r e gu la r ly a m on g EU M e m be r St a t e s a n d w it h in t h e Eu r ope a n
in st it u t ions sin ce t he e n d of t h e 1 9 9 0 s, t h e for m a lisa t ion of t h is qu e st ion a s a
st r a t e gy issu e in t he con t e x t of t he AFSJ is m or e r e ce n t , st art ing wit h t he 2004
Hague Program m e. The first it em under t he “ St rengt hening Securit y” heading of t he
program m e deals wit h “ I m proving t he exchange of inform at ion” . The m ain m easure
envisaged t o t his effect is t he im plem ent at ion of t he “ principle of availabilit y” according t o
which “ t hroughout t he Union, a law enforcem ent officer in one Mem ber St at e who needs
inform at ion in order t o perform his dut ies can obt ain t his from anot her Mem ber St at e, and
[ …] t he law- enforcem ent agency in t he ot her Mem ber St at e which holds t his inform at ion
will m ake it available for t he st at ed purpose, t aking int o account t he requirem ent of
ongoing invest igat ion in t hat St at e” . 154 The im plem ent at ion of t he principle of availabilit y
“ should m ake full use of new t echnology” according t o t he program m e. The ot her
reference t o t he use of t echnology for int ernal securit y purposes in t he Hague docum ent
148
See e.g. S. Peers ( 2008) , “ Key Legislat ive Developm ent s on Migrat ion in t he European Union” ,
European Journal of Migrat ion and Law, Vol. 10, pp. 77- 104.
149
Council Regulat ion ( EC) No 871/ 2004 of 29 April 2004 concer ning t he int roduct ion of som e new
funct ions for t he Schengen I nform at ion Syst em , including in t he fight against t errorism ( OJ
L162/ 29, 30.04.2004) and Council Decision 2005/ 211/ JHA of 24 Februar y 2005 concerning t he
int roduct ion of som e new funct ions for t he Schengen I nform at ion Syst em , including in t he fight
against t errorism ( OJ L68/ 44, 15.3.2005) , for exam ple, int roduce t he possibilit y for Euroj ust ,
Europol, nat ional j udicial aut horit ies and aut horit ies responsible for issuing or exam ining visa
applicat ions or issuing residence per m it s t o access t he SI S. For a m ore syst em at ic view of
subsequent m odificat ions t o t he SI S, see E. Brouwer, “ Digit al Borders” , op. cit ., pp. 71- 116.
150
The t echnical developm ent of SI S I I was enabled by t he adopt ion of Council Decision
2001/ 886/ JHA on t he dev elopm ent of t he second generat ion Schengen I nfor m at ion Syst em ( SI S I I ) ,
OJ L 328/ 1, 13.12.2001 and Council Regulat ion ( EC) No 2424/ 2001 of 6 Decem ber 2001 on t he
developm ent of t he second gener at ion Schengen I nform at ion Syst em ( SI S I I ) , OJ L 328/ 4,
13.12.2001.
151
See for inst ance: House of Lords European Union Com m it t ee ( 2007) , “ Schengen I nform at ion
Syst em I I : Report wit h Evidence” , London: The St at ionery House, 9 t h Report of Session 2006- 07,
pp. 13- 14.
152
See Regulat ion ( EC) No 1987/ 2006 of t he European Parliam ent and of t he Council of 20
Decem ber 2006 on t he est ablishm ent , operat ion and use of t he second generat ion Schengen
I nform at ion Syst em ( SI S I I ) , OJ L 381/ 4, 28.12.2006.
153
Council Decision of 8 June 2004 est ablishing t he Visa I nform at ion Syst em ( VI S) ( 2004/ 512/ EC) ,
OJ L213/ 5, 15.6.2004; Regulat ion ( EC) No 767/ 2008 of t he European Parliam ent and of t he Council
of 9 July 2008 concerning t he Visa I nform at ion Syst em ( VI S) and t he exchange of dat a bet ween
Mem ber St at es on short - st ay visas ( VI S Regulat ion) , OJ L218/ 60, 13.8.2008.
154
Council docum ent 16054/ 04, op. cit ., p. 18.
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involves t he use of biom et ric ident ifiers and inform at ion syst em s for purposes of m igrat ion
cont rol, t he key issue being int eroperabilit y of dat abases.
The pursuit of ‘new t echnologies’, and part icularly of addit ional inform at ion exchange
syst em s, in t he field of int ernal securit y t ook on new dynam ics following t he adopt ion of
t he Hague Program m e. W h ile SI S I I a nd VI S, a r gua bly t h e t w o ‘cor e ’ syst e m s in
t h e fie ld of in t e r na l se cu r it y, e x pe r ie nce d sign ifica n t de la ys, pr oposa ls a nd
in it ia t ive s for ne w syst e m s ha ve m u lt iplie d ove r t h e ye a r s. I n it s Novem ber 2005
Com m unicat ion on t he principle of int eroperabilit y, for exam ple, t he Com m ission already
foresaw t hat t hree new syst em s should be developed in t he long- run, a European crim inal
Aut om at ed Fingerprint s I dent ificat ion Syst em ( AFI S) , an ent ry/ exit syst em ( EES)
com bined wit h a border- crossing facilit at ion schem e, and one or several European
regist er( s) for t ravel docum ent s and ident it y cards. 155 At least one of t hese syst em s, t he
EES, had previously been ruled out as a policy opt ion by DG JHA in t he im pact assessm ent
at t ached t o t he 2004 proposal for t he VI S Regulat ion. 156 This opt ion was nonet heless repackaged less t han a year lat er as a long- t erm developm ent for t he AFSJ. The EES
subsequent ly found it s way int o t he European Com m ission’s 2008 ‘border package’ and is
current ly considered as part of t he European Com m ission’s ‘sm art borders init iat ive’. 157 I n
May of t he sam e year, furt herm ore, seven Mem ber St at es signed a convent ion, dubbed
t he Prüm Convent ion, on t he st epping- up of cross- border cooperat ion, part icularly in t he
area of count er- t errorism , cross- border crim e and illegal im m igrat ion. 158 The Prüm
Convent ion foresaw t he est ablishm ent of yet anot her schem e for t he exchange of
inform at ion, including in t he cont roversial area of DNA profiles. The fact t hat t he
Convent ion was concluded bet ween seven Mem ber St at es only could also be int erpret ed
as t he cont est at ion of t he principle of availabilit y feat ured in t he Hague Program m e and
ot herwise support ed by t he European Com m ission. 159
Th e se t w o dyna m ics – m u lt iplica t ion of pr oposa ls, on t h e on e ha nd, a n d r e fr a m ing of pr e viou sly disca r de d or u nsu cce ssfu l pr oposa ls, on t h e ot h e r – h a ve
n u r t u r e d t h e in fla t ion in t h e nu m be r of pr ogr a m m e s for t h e de ve lopm e n t a n d
e st a blishm e n t of n e w t e ch nologie s a nd t e ch n ica l syst e m s for in t e r n a l se cu r it y
pu r pose s. The ‘t echnological challenge’, in t his respect , should be in upcom ing years t o
designs ways t o regulat e t his process and ensure t hat it is em bedded in proper oversight
m echanism s. One specific issue t hat deserves m ore at t ent ion, in t his respect , is t he
growing involvem ent of t he privat e sect or in EU int ernal securit y policies, which will be
exam ined in t he following point .
155
See European Com m ission ( 2005) , Com m unicat ion on im proved effect iveness, enhanced
int eroperabilit y and syner gies am ong European dat abases in t he area of Just ice and Hom e Affairs,
COM( 2005) 597 final, 24.11.2005.
156
The EES was found t oo cost ly and less advant ageous t han t he opt ion t hat was event ually
select ed, nam ely t he set t ing- up of VI S wit h biom et rics.European Com m ission ( 2008) , Annex t o t he
Proposal for a Regulat ion of t he European Parliam ent and of t he Council concerning t he Visa
I nform at ion Syst em ( VI S) and t he ex change of dat a bet ween Mem ber St at es on short st ay visas –
ext ended im pact assessm ent , SEC( 2004) 1628 final, 28.12.2004.
157
See, respect ively European Com m ission ( 2008) , Preparing t he next st eps in border m anagem ent
in t he European Union, COM( 2008) 69 final, 13.2.2008; European Com m ission ( 2010) , Legislat ive
proposal t o set up Ent ry/ Exit Syst em , JHA/ 2010/ 004, 8.2010.
158
See Council of t he European Union ( 2005) , Convent ion bet ween t he Kingdom of Belgium , t he
Federal Republic of Germ any, t he Kingdom of Spain, t he French Republic, t he Grand Duchy of
Luxem bourg, t he Kingdom of t he Net herlands and t he Republic of Aust ria on t he st epping up of
cross- bor der cooperat ion part icularly in com bat ing t errorism , cross- border crim e and illegal
m igrat ion, Prüm , Germ any, 27 May 2005, 10900/ 05, 7.7.2005.
159
See int er alia t he analysis in T. Balzacq et al. ( 2006) , “ Securit y and t he Two- Level Gam e: The
Treat y of Prüm , t he EU and t he Managem ent of Threat s” , CEPS Working Docum ent No. 234, CEPS,
Brussels.
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3.2.1.2.
Technology, int ernal securit y and t he privat e sect or
A growing dim ension of t he ‘t echnological challenge’ is r e la t e d t o t h e involve m e n t of
t h e pr iva t e se ct or in t h e de ve lopm e n t of t e chn ica l syst e m s t o be use d in EU
in t e r na l se cu r it y policie s. This involvem ent has been fost ered by a num ber of init iat ives
support ed by t he European Com m ission’s DG I nform at ion Societ y ( I NFSO) and DG
Ent erprise over t he past decade, in t he field of ‘securit y research’, st art ing wit h t he
Preparat ory act ion in securit y research ( PASR, 2004- 2006) and current ly cont inued under
t he Securit y Them e of t he Sevent h Fram ework Program m e ( FP7- ST, 2007- 2012) .
Represent at ives from m aj or com panies in t he field of defence and elect ronics have been
act ively involved in t he form ulat ion of priorit ies relat ed t o securit y research, t hrough a
series of high- level venues, st art ing wit h t he Group of Personalit ies on Securit y Research
( GoP, 2003- 2004) , t he European Advisory Board on Securit y Research ( ESRAB, 20052006) and t he European Securit y Research and I nnovat ion Forum ( ESRI F, 2008- 2009) .
I n it s Sept em ber 2007 com m unicat ion, t he European Com m ission has fram ed it s support
t o securit y research and t he organisat ion of such high- level venues as part of an ongoing
effort t o build a ‘public- privat e dialogue’. I n t he words of t he com m unicat ion, t his dialogue
is expect ed t o “ bring t oget her all t he relevant st akeholders in order t o discuss issues of
cross- cut t ing, com m on concern, facilit at e t he assessm ent of t heir different iat ed st rengt hs
and resources, ident ify areas for pot ent ial synergies, or j oint program m ing” . 160 A num ber
of report s, som e draft ed by civil libert ies organisat ions 161 and som e support ed bot h by t he
European Com m ission and by t he LI BE Com m it t ee have nonet heless int errogat ed t his
not ion of dialogue. 162 ” They raise t wo quest ions. Fir st ly, w hy ha s t h e dia logu e
in volve d so fe w r e pr e se n t a t ive s fr om t h e pr iva t e se ct or ? I n t he ‘public- privat e
dialogue’ as it current ly st ands, t he ‘privat e’ part is m ost ly m ade up of m aj or com panies,
which used t o be very act ive in t he field of defence and elect ronics, and are current ly
redeploying a part of t heir prom ot ional, research and developm ent and m anufact uring
act ivit ies t owards int ernal securit y issues. Se con dly, w hy ha s t h e dia logu e be e n
lim it e d t o r e pr e se nt a t ive s fr om na t iona l a nd EU in t e r n a l se cu r it y a ge n cie s,
bodie s a nd se r vice s a n d r e pr e se n t a t ive s fr om t he se m a j or com pa n ie s? I n t he
im pact assessm ent accom panying t he com m unicat ion on public- privat e dialogue, t he
European Com m ission indicat es t hat civil societ y organisat ions have been involved in t he
GoP and ESRAB. The European Parliam ent had in fact expressed it s concerns about “ a
balanced involvem ent of indust rial represent at ives, research sponsors and public and
privat e cust om ers, scient ific research bodies, public inst it ut ions and represent at ives of
civil societ y” in such high- level venues on securit y research. 163 Research has shown,
however, t hat out of t he 660 part icipant s in ESRI F, only 9 ( 1.4% ) could be considered as
represent at ives from civil societ y organisat ions, none of which were part of a civil libert ies
or privacy group. 164
160
European Com m ission ( 2007) , Com m unicat ion on Public- Privat e Dialogue in Securit y Research
and I nnovat ion, COM( 2007) 511 final, 11.9.2007, p. 3.
161
See e.g. t he work conduct ed by St at ewat ch and t he Am st erdam - based Tr ansnat ional I nst it ut e:
B. Hayes ( 2006) , “ Arm ing Big Brot her:
The EU’s Securit y Resear ch Program m e” ,
Am st erdam / London: St at ewat ch/ TNI ; B. Hayes ( 2009) , “ Neoconopt icon: The EU Securit y- I ndust rial
Com plex” , Am st erdam / London: St at ewat ch/ TNI .
162
See t he following st udies com m issioned by t he European Parliam ent at t he request of t he LI BE
Com m it t ee: J.P. Burgess and M. Hanssen ( 2008) , “ Public Privat e Dialogue in Securit y Research” ,
Brussels: European Parliam ent , PE 393.286 ; J. Jeandesboz and F. Ragazzi ( 2010) , “ Review of
securit y m easures in t he Research Fram ework Program m e” , Brussels: European Parliam ent , PE
432.740. See as well som e of t he out com es of t he I NEX proj ect ( FP7) , e.g. D. Bigo and J.
Jeandesboz ( 2009) , “ The EU and t he European Securit y I ndust ry: Quest ioning t he ‘Public- Privat e
Dialogue’” , I NEX Policy Brief No. 5, CEPS, Brussels.
163
European Parliam ent ( 2006) , Securit y Research: European Parliam ent resolut ion on Securit y
Research – The Next St eps ( 2004/ 2171( I NI ) ) , OJ C133/ 135, 8.6.2006, p. 138.
164
B. Hayes, 2009, op. cit ., p. 24.
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An addit ional quest ion is raised by t he not ion, support ed by t he European Com m ission’s
DG Ent erprise, t hat public- privat e dialogue should result in a degree of ‘j oint
program m ing’ in t he field of securit y t echnologies. Because of t heir part icipat ion in t he
GoP, ESRAB and ESRI F, represent at ives from t he defence and elect ronics indust ry have
been st rongly involved in t he form ulat ion of priorit ies for securit y research and
developm ent funding, while being sim ult aneously am ong t he m ain beneficiaries of t hese
schem es. 165 Th e qu e st ion , h e r e , lie s in t h e e x t e n t t o w h ich r e pr e se n t a t ive s fr om
t h e pr iva t e se ct or sh ou ld be a ble t o cont r ibu t e t o t h e sh a ping of pu blic pr ior it ie s.
Represent at ives from t he defence and elect ronics indust ry have clearly expressed a
num ber of views on what t hey consider t o be t he priorit ies in t echnological developm ent s
relat ed t o int ernal securit y. The not - for- profit European Organisat ion for Securit y ( EOS) ,
est ablished in 2007 and represent ing t he key com panies and professional associat ions in
t he sect or, has published a num ber of Whit e Papers on what t hese priorit ies should be.
For exam ple, t he Novem ber 2009 Whit e Paper on Border Managem ent prom ot es t he
developm ent of a ‘one- st op int egrat ed border cont rol concept ’ com bining t he elem ent s
from t he proposals for t he Ent ry/ Exit syst em and ot hers such as t he Regist ered Traveller
Program m e ( RTP) . 166 Th e a ppr oa ch pr om ot e d is t e ch n ology- in t e n sive a n d dr a w s on
policy opt ion s for w hich a polit ica l de cision a nd a le gisla t ive in st r um e n t h a ve ye t
t o be a dopt e d by t he Eu r ope a n Pa r lia m e n t a n d t he Cou n cil. Such an approach is
under developm ent as well in t he num erous securit y research and developm ent proj ect s
funded under t he FP7- ST.
Th e issu e of ove r sigh t , he r e , is a ga in ce n t r a l. I f t h e ide a of a ‘dia logue ’ on
se cu r it y a n d t e ch nology, involvin g a ll t he con ce r ne d pa r t ie s, is t o be pu r su e d, it
ca n on ly be n e fit fr om a fu lly t r a n spa r e n t , w e ll- a sse sse d a nd a ccou n t a ble
pr oce ss. This is all t he m ore fundam ent al as t he pract ical im plem ent at ion of t echnologies
in EU int ernal securit y policies, as shown above, dem onst rat es a weak t rack record over
t he past decade.
3.2.1.3.
The issue of pract ical im plem ent at ion
Pract ical im plem ent at ion is t he t hird cent ral dim ension of t he t echnological challenge of
EU int ernal securit y policies. The quest ion of pract ical im plem ent at ion arises, first ly, from
t he observat ion t he t wo key syst em s of exchange of inform at ion in t he field of int ernal
securit y developed t hrough t he EU, t he SI S I I and t he VI S, are not yet operat ional. The
SI S I I has been in developm ent since 2001: t he original deadline for it s deploym ent was
2006, and is long passed. While t he cost s of developm ent have exceeded init ial
proj ect ions by 500% , 167 t he syst em is not yet operat ional. The VI S has been in
developm ent since 2004, but it is only on 21 Sept em ber 2011 t hat t he Com m ission has
adopt ed t he I m plem ent ing Decision on t he st art of VI S operat ions in so- called ‘first region’
count ries. 168 Th e obviou s qu e st ion , in vie w of su ch de la ys, is w h e t he r t h e for e se e n
de ve lopm e n t a nd e st a blish m e nt of ne w com pu t e r ise d da t a - syst e m s is a via ble
policy opt ion , con side r in g h ow lon g it is t a k ing t h e t w o m ost im por t a n t of t h e m
t o r e a ch ope r a t ion a l st a t u s. One can t hink, in t his respect , of t he upcom ing proposals
from t he European Com m ission on ‘sm art borders’, int roducing legal inst rum ent s for t hree
addit ional syst em s ( EES, RTP and t he European Border Surveillance Syst em EUROSUR)
165
See t he research result s in J. Jeandesboz & F. Ragazzi, 2010, op. cit ., pp. 18- 28.
166
See European Organisat ion for Securit y ( 2009) , Whit e Paper : A European Approach t o Border
Managem ent , Brussels: EOS.
167
See J. Parkin ( 2011) , op. cit .
168
See Com m ission I m plem ent ing Decision of 21 Sept em ber 2011 det erm ining t he dat e from which
t he Visa I nform at ion Syst em ( VI S) is t o st art operat ions in a first region ( 2011/ 636/ EU) , OJ
L249/ 18, 27.9.2011. First count ry regions are est ablished in Com m ission Decision of 30 Novem ber
2009 det erm ining t he first regions for t he st art of operat ions of t he Visa I nform at ion Syst em ( VI S)
( 2010/ 49/ EC) , OJ L23/ 62, 27.1.2010. The count ries in which t he VI S has st art ed operat ing on 11
Oct ober 2011 are Algeria, Egypt , Libya, Maurit ania, Morocco, and Tunisia.
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and int roducing a com m unicat ion on an EU Elect ronic Syst em of Travel Aut horisat ion
( ESTA) , all of which had already been discussed in t he Com m ission’s 2008 ‘border
package’ com m unicat ions. The issue has been raised for exam ple by t he Conference of
European Dat a Prot ect ion Aut horit ies in it s April 2008 declarat ion on t he aforem ent ioned
‘border package’. The declarat ion suggest t hat t here is a need from t he European
inst it ut ions and t he Mem ber St at es t o “ first evaluat e whet her already exist ing legal
m easures are im plem ent ed and execut ed in an effect ive way” before deciding on new
m easures. 169
The quest ion of pract ical im plem ent at ion also arises in relat ion t o t he effect ive operat ion
of already operat ional syst em s. To w ha t e x t e n t a r e t e ch n ologie s u se d for in t e r na l
se cu r it y pu r pose s fun ct iona l a n d u se fu l t o se cur it y a ge n cie s, bodie s a nd se r vice s
in t h e fie ld? The issue has spurred a num ber of cont roversies in som e Mem ber St at es. I n
a January 2009 report , t he French dat a prot ect ion aut horit y CNI L ( Com m ission nat ionale
de l’inform at ique et des libert és) , has for exam ple found t hat only 17% of t he records on
indict ed persons ( ‘personnes m ises en cause’) in t he largest nat ional police dat abase, t he
STI C ( Syst èm e de Trait em ent des I nfract ions Const at ées) , were accurat e. 170 Such doubt s
have recent ly been expressed, furt herm ore, in relat ion t o t he im plem ent at ion of an EUwide schem e, t he 2006 Dat a Ret ent ion Direct ive ( DRD) , which was t he obj ect of a recent
evaluat ion by t he European Com m ission’s DG Hom e. 171 Th e r e por t h igh ligh t s a nu m be r
of difficu lt ie s r e la t e d bot h t o t he pr a ct ica l im ple m e nt a t ion of t h e D RD , a n d t o t h e
possibilit y for a n e vide n ce - ba se d a sse ssm e nt of t h e e ffe ct s of t h is
im ple m e n t a t ion. As of April 2011, t he DRD has been unevenly t ransposed in Mem ber
St at e nat ional law, despit e a deadline of 15 Sept em ber 2007, and t he t ransposit ion has
been annulled by several nat ional const it ut ional court rulings in t he Czech Republic,
Germ any and Rom ania. 172 Besides t he quest ion of t ransposit ion, however, anot her
quest ion which surfaces upon reading t he Com m ission’s evaluat ion is t hat of t he effect ive
assessm ent of t he use of dat a ret ent ion by t he agencies, bodies and services in charge of
crim inal invest igat ion. The problem is clearly acknowledged in t he docum ent : on t he issue
of “ obt aining reliable qualit at ive and quant it at ive dat a [ …] dem onst rat ing t he necessit y
and value of securit y m easures such as dat a ret ent ion” , t he report point s out t hat “ it has
not been possible t o achieve t his obj ect ive” due t o t he part ial t ransposit ion of t he DRD
and t o diverging st at ist ical pract ices am ong Mem ber St at es. 173 Based on t he inform at ion
available t o DG Hom e, it appears t hat t here were 11 request s for every 100 recorded
crim es across 19 responding Mem ber St at es. 174 Alt hough it assert s t hat “ dat a ret ent ion is
an int egral part of crim inal invest igat ion” , however, t he report rem ains piecem eal and
inconclusive as t o t he role played by inform at ion obt ained t hrough dat a ret ent ion schem es
in act ual crim inal prosecut ions and convict ions. 175
169
Conference of European Dat a Prot ect ion Aut horit ies ( 2008) , Declarat ion
com m unicat ions from t he Com m ission on border m anagem ent , Rom e, 18 April, p. 1.
on
t hree
170
Com m ission nat ionale de l’inform at ique et des libert és ( 2009) , Conclusions du cont rôle du
syst èm e de t rait em ent des infract ions const at es ( STI C) – Rapport rem is au Prem ier Minist re le 20
j anvier 2009, Paris: CNI L.
171
For t he DRD, see Direct ive 2006/ 24/ EC of t he European Parliam ent and of t he Council of 15
March 2006 on t he ret ent ion of dat a generat ed or processed in connect ion w it h t he provision of
publicly available elect ronic com m unicat ion services or of public com m unicat ion net works and
am ending Direct ive 2002/ 58/ EC, OJ L105/ 54, 13.4.2006. For t he evaluat ion by DG Hom e, see
European Com m ission ( 2011) , “ Evaluat ion report on t he Dat a Ret ent ion Direct ive ( Direct ive
2006/ 34/ EC) ” , COM( 2011) 225 final, 18.4.2011.
172
For a legal analysis of t hese rulings w it h part icular at t ent ion t o t he Vorrat sdat enspeicherung
ruling of t he Germ an Const it ut ional Court ( March 2010) , see e.g. K. De Vries, R. Bellanova and P.
De Hert ( 2010) , “ Proport ionalit y overrides Unlim it ed Surveillance: The Germ an Const it ut ional Court
Judgem ent on Dat a Ret ent ion” , CEPS, Brussels.
173
Evaluat ion Report on t he Dat a Ret ent ion Direct ive, op. cit ., p. 19.
174
I bid, p. 23.
175
I bid, p. 25.
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I t has t o be st ressed t hat t he difficult ies encount ered by t he Com m ission in collect ing
st at ist ics on, and evidence of, use of dat a obt ained t hrough t he DRD m echanism in
crim inal prosecut ion and convict ion has been experienced by ot her bodies. The Art icle 29
Working Part y docum ent s t he sam e difficult ies in it s report on t he second j oint
enforcem ent act ion on t he im plem ent at ion of t he DRD, for exam ple. 176 Despit e t he
difficult y t o assess t he pract ical im plem ent at ion and use of t he DRD schem e, however, t he
European Com m ission appears t o rem ain firm ly com m it t ed t o t he fact t hat “ t he EU should
support and regulat e dat a ret ent ion as a securit y m easure” , arguing in part icular t hat t he
dat a t hus obt ained “ has result ed in convict ions for crim inal offences which, wit hout dat a
ret ent ion, m ight never have been solved” . 177 Ot her assessm ent s have considered a
broader range of policy opt ions, including repealing t he DRD. Am ong civil libert ies
organisat ions, t he European Digit al Right s organisat ion ( EDRI ) for exam ple concludes
from it s ‘shadow report ’ on t he Com m ission’s evaluat ion t hat “ t he st at ist ics provided by
t he Mem ber St at es do not prove t he necessit y of dat a ret ent ion” , assert ing t hat t he EU
“ should rej ect t he principle of dat a ret ent ion” . 178 The EDPS has added t o t his view in it s
opinion on t he Com m ission’s evaluat ion of t he DRD. I t concludes, first ly, t hat aft er
exam ining t he available evidence “ t he Dat a Ret ent ion Direct ive does not m eet t he
requirem ent s set out by t he right t o privacy and dat a prot ect ion” . 179 I t furt her not es t hat
“ t he Com m ission seem s t o exclude t he possibilit y of repealing t he Direct ive, eit her per se
or com bined wit h a proposal for an alt ernat ive, m ore t arget ed EU m easure” , and “ calls
upon t he Com m ission t o seriously consider t hese opt ions in t he im pact assessm ent as
well” . 180
The evaluat ion and assessm ent of t he pract ical im plem ent at ion of t echnological schem es
for int ernal securit y is t herefore a m aj or quest ion for possible m echanism s of oversight .
As t he case of t he DRD shows, such m e cha nism s a r e a lr e a dy a va ila ble for t he le ga l
a spe ct s of im ple m e n t a t ion , in clu ding t r a nsposit ion . These fall wit hin t he rem it of t he
Com m ission. W h a t is m issing, how e ve r , is t h e possibilit y t o ha ve de t a ile d a n d
com pa r a ble qua lit a t ive a nd qua n t it a t ive e va lua t ions of t he pr a ct ica lit y of su ch
sch e m e s, a n d t he de gr e e t o w h ich t he y a r e pu t t o u se by EU a nd M e m be r St a t e
se cu r it y a ge n cie s, bodie s a n d se r vice s.
3.2.2.
The quest ion of dat a processing
Most of t he m aj or t echnology- orient ed init iat ives launched t hrough t he EU fram ework over
t he past years t ouch upon t he processing of personal dat a. This t rend also echoes t he
relat ion bet ween program m at ic inflat ion and pract ical im plem ent at ion exam ined
previously and leads t o t he following quest ion: t o w h a t e x t e n t is it possible , e ve n for
t h e pr a ct it ion e r s a nd e x pe r t s in volve d in t h e de ve lopm e n t of t h e se syst e m s, t o
k e e p t r a ck of a ll e x ist in g a n d upcom in g da t a pr oce ssin g sche m e s?
This quest ion appears all t he m ore im port ant as m ost recent init iat ives diffe r bot h
qu a n t it a t ive ly a nd qu a lit a t ive ly from already exist ing dat a processing schem es, such
as EURODAC or t he SI S. Quant it at ively, t hey would involve t he pr oce ssin g of m a ssive
a m ou nt s of pe r sona l da t a . Qualit at ively, t hey are suppose d t o include ne w
fu n ct iona lit ie s a nd se r ve sim u lt a n e ou sly m u lt iple pu r pose s. These ‘new’ form s of
dat a processing, as we will see, raise in part icular t he quest ion of t he reliance on
t echniques of dat a m ining and profiling.
176
Art icle 29 Working Part y ( 2010) , Report on t he second j oint enforcem ent act ion, 00068/ 10/ EN,
WP 172.
177
I bid.
178
European Digit al Right s ( 2011) ,
( 2006/ 24/ EC) , Brussels: EDRI , 17 April.
Shadow
evaluat ion
of
t he
Dat a
Ret ent ion
Dir ect ive
179
EDPS ( 2011) , Opinion of t he European Dat a Prot ect ion Supervisor on t he Ev aluat ion report from
t he Com m ission t o t he Council and t he European Parliam ent on t he Dat a Ret ent ion Direct ive
( Direct ive 2006/ 24/ EC) , 31 May, p. 14.
180
I bid.
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The quest ion of keeping t rack of exist ing and upcom ing personal dat a processing schem es
and t he quant it at ive and qualit at ive shift t hey seem t o reflect raises a t hird quest ion.
W h a t a r e , w it h in cu r r e n t discu ssion s a m ong t he a ct or s of t h e EU in t e r na l
se cu r it y la n dsca pe , t h e opt ion s e n visa ge d for r e gula t ing da t a pr oce ssing?
3.2.2.1.
Dat a processing schem es in EU int ernal securit y policies: brief overview and
foreseeable developm ent s
Keeping t rack of t he various dat a processing schem es current ly used, in developm ent or
foreseen in t he fram ework of t he EU has proven problem at ic. I t is only in t he course of
2010 t hat t he Com m ission published, under t he lead of DG Hom e, an overview of dat a
processing schem es involving t he use of personal of personal dat a. 181 The European
Parliam ent , at t he request of t he LI BE Com m it t ee has also com m issioned a num ber of
assessm ent s. 182 Based on t hese st udies, it appears t hat som e 25 syst em s for t he
exchange and analysis of inform at ion are current ly in operat ion, in developm ent or
foreseen as part of t he Union’s int ernal securit y policies. 183 Som e of t hese syst em s are
cont rolled by EU agencies, such as Europol’s TECS. Ot hers are or will be m anaged by EU
bodies, such as t he SI S and SI S I I , Eurodac and t he VI S. Ot hers yet are bot h cont rolled
and m anaged by Mem ber St at e aut horit ies, including t he syst em originat ing in t he Prüm
Convent ion and Decision or t he so- called ‘Swedish init iat ive’ on t he sharing of inform at ion
bet ween Mem ber St at es for crim inal invest igat ion or crim inal int elligence invest igat ions. 184
Am ong recent and fort hcom ing proposals, t he following appear t o be of part icular
im port ance for t he fut ure developm ent of EU policies in t he field of int ernal securit y:
1. ‘Sm a r t bor de r s’ in it ia t ive : The Com m ission has int roduced at t he end of
Oct ober 2011 a com m unicat ion on ‘sm art borders’ t hat exam ines t he
possibilit ies for creat ion t hree new syst em s, an Ent ry/ Exit Syst em ( EES) ,
Regist ered Traveller Program m e ( RTP) and European Elect ronic Syst em of
Travel Aut horisat ion ( ESTA) . 185 Th e fa ct t ha t t h e se syst e m s a r e not ne w
in it ia t ive s ( having been foreseen already in t he Com m ission’s 2008 ‘border
package’) a n d h a ve in som e ca se s ( t h e EES) a lr e a dy be e n r u le d ou t in
pr e viou s im pa ct a sse ssm e n t docum e n t s, ca lls for a n in - de pt h
e x a m ina t ion of t h e ir n e ce ssit y. I n t he m eant im e, t he com m unicat ion rules
out t he possibilit y of est ablishing a European ESTA for t he t im e being. The
European Com m ission expect s t o ret urn t o t his issue in 2012.
2. EU- PN R: in February 2011, t he Com m ission t abled a new proposal on an EUwide syst em for t he processing of Passenger Nam e Record dat a. 186 An earlier
181
European Com m ission ( 2010) , Overview of inform at ion m anagem ent in t he area of freedom ,
securit y and j ust ice, COM( 2010) 385 final, 20.7.2010.
182
See for inst ance Hem pel, L. et al. ( 2009) , Exchange of inform at ion and dat a bet ween lawenforcem ent aut horit ies wit hin t he European Union, Brussels: European Parliam ent , PE 419.590. For
a com plem ent ary cont ribut ion, see Geyer, F. ( 2008) , Taking St ock: Dat abases and Syst em s of
I nform at ion Exchange in t he Area of Freedom , Securit y and Just ice, Brussels: CEPS, CHALLENGE
Research Papers No. 9.
183
A full overview and assessm ent has been provided t o t he European Parliam ent in t he st udy
request ed by t he LI BE Com m it t ee on t he updat ing of t he EU dat a prot ect ion fram ework: D. Bigo et
al. ( 2011) , Towards a New EU Legal Fram ework for Dat a Prot ect ion and Privacy: Challenges,
Principles and t he Role of t he European Parliam ent , Brussels, EP st udy 453.216, Chapt er 2.
184
Est ablished by Council Fram ework Decision 2006/ 960/ JHA of 18 Decem ber 2006 on sim plifying
t he exchange of inform at ion and int elligence bet ween law- enforcem ent aut horit ies of t he Mem ber
St at es of t he European Union, OJ L386/ 15, 25.11.2005.
185
European Com m ission ( 2011) , “ Sm art bor ders – opt ions and t he way ahead” , COM( 2011) 680
final, 25.10.2011.
186
European Com m ission ( 2011) , Proposal for a Direct ive of t he European Parliam ent and of t he
Council on t he use of Passenger Nam e Record dat a for t he prevent ion, det ect ion, invest igat ion and
prosecut ion of t errorist offences and serious crim e, COM( 2011) 32 final, 2.2.2011.
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proposal, t abled in Novem ber 2007, 187 had been blocked following t he European
Parliam ent ’s decision t o reserve it s form al opinion due t o concerns over t he
proposal’s com pliance wit h t he EU Chart er of Fundam ent al Right s and t he
European Convent ion on Hum an Right s, 188 and t he Com m ission’s choice of legal
basis. 189 I t was event ually wit hdrawn by t he Com m ission, form ally in light of
t he change in legal basis deriving from t he ent ry int o force of t he Lisbon
Treat y. 190 The new PNR proposal, however, has already proved cont roversial. I n
it s March 2011 opinion, for exam ple, t he EDPS has indicat ed t hat “ t he Proposal
wit h it s current cont ent does not m eet t he requirem ent s of necessit y and
proport ionalit y, im posed by Art icle 8 of t he Chart er of Fundam ent al Right s of
t he Union, Art icle 8 of t he ECHR and Art icle 16 of t he TFEU” . 191 The Art icle 29
Working Part y reached sim ilar conclusions in it s April 2011 opinion on t he
Com m ission proposal. 192 The FRA was consult ed on t he request of t he President
of t he European Parliam ent . I n it s June 2011 opinion, it considers t hat t he
Com m ission has addressed a num ber of t he concerns expressed in it s previous
opinion on t he 2007 EU- PNR proposal, but st ill form ulat es a num ber of rem arks
relat ed t o t he possibilit y of direct and indirect discrim inat ion, t o t he need for
m ore st at ist ics t o provide proper evaluat ions of t he efficiency of PNR dat a
processing, and t o requirem ent s regarding t he lim it at ion of right s envisaged in
t he Com m ission’s proposal, part icularly in relat ion t o t he principle of necessit y
and proport ionalit y. 193
3. EU- TFTP: t he Com m ission t abled in July 2011 a com m unicat ion on t he
est ablishm ent of an EU- TFTP syst em , derived from t he U.S. Terrorist Finance
Tracking Program m e. 194 The proposal follows from t he im plem ent at ion of t he
second EU- U.S. TFTP agreem ent , signed on 28 June 2010, t o which t he
European Parliam ent consent ed aft er a prot ract ed negot iat ion process by
adopt ing a legislat ive resolut ion on 8 July 2010. 195 The Com m ission’s proposal
for an EU- TFTP syst em builds on t he out com e of t he first review of t he
agreem ent and on t he t wo report s draft ed at t he request of t he European
187
European Com m ission ( 2007) , Pr oposal for a Council Fram ework Decision on t he use of
Passenger Nam e Records ( PNR) for law enforcem ent purposes, COM( 2007) 654, 6.11.2007.
188
Expressed by t he EDPS, t he Art icle 29 Working Part y and t he Fundam ent al Right s Agency.
189
European Parliam ent ( 2008) , Resolut ion of 20 Novem ber 2008 on t he proposal for a Council
Fram ework Decision on t he use of Passenger Nam e Recor d ( PNR) dat a for law enforcem ent
purposes, P6_TA( 2008) 0561, 20.11.2008.
190
See European Com m ission ( 2009) , “ Consequences of t he ent ry int o force of t he Treat y of Lisbon
for ongoing int erinst it ut ional decision- m aking procedures” , COM( 2009) 665 final, 2.12.2009.
191
EDPS ( 2011) , Opinion of t he European Dat a Prot ect ion Supervisor on t he Proposal for a Direct ive
of t he European Parliam ent and of t he Council on t he use of Passenger Nam e Recor d dat a for t he
prevent ion, det ect ion, invest igat ion and prosecut ion of t errorist offences and serious crim e,
Brussels, 25.3.2011.
192
Art icle 29 Working Part y ( 2011) , Opinion 10/ 2011 on t he proposal for a Direct ive of t he
European Parliam ent and of t he Council on t he use of passenger nam e record dat a for t he
prevent ion, det ect ion, invest igat ion and prosecut ion of t errorist offences and serious crim e,
00664/ 11/ EN, WP 181.
193
European Union Agency for Fundam ent al Right s ( 2011) , Opinion on t he pr oposal for a Direct ive
of t he European Parliam ent and of t he Council on t he use of passenger nam e recor d dat a for t he
prevent ion, det ect ion, invest igat ion and prosecut ion of t errorist offences and serious crim e
( COM( 2011) 32 final) , 1/ 2011.
194
European Com m ission ( 2011) , “ A European t error ist finance t racking syst em : available opt ions” ,
COM( 2011) 429 final, 13.7.2011.
195
European Parliam ent ( 2010) , Legislat ive resolut ion on t he draft Council decision on t he
conclusion of t he Agreem ent bet ween t he European Union and t he Unit ed St at es of Am erica on t he
processing and t ransfer of Financial Messaging Dat a from t he European Union t o t he Unit ed St at es
for t he purpose of t he Terr orist Finance Tracking Program , P7_TA( 2010) 0279.
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Com m ission by Judge Jean- Louis Bruguière on t he TFTP. 196 Despit e dissent ing
opinions, bot h assessm ent s found t he TFTP t o provide significant added value
t o count er- t errorism policies. The proposal for an EU- TFTP syst em builds on t his
assessm ent , but also on t he argum ent t hat such a syst em would address t he
“ serious concerns [ …] in relat ion wit h it s [ t he EU- U.S. TFTP Agreem ent ]
consequences on t he fundam ent al right s of cit izens” linked in part icular t o t he
t ransfer of bulk dat a t o t he U.S. aut horit ies. The aim of t he EU- TFTP syst em ,
t hen, would be “ t o ensure t hat t he processing of such dat a would t ake place in
accordance wit h EU dat a prot ect ion legislat ion and principles, and in accordance
wit h t he EU Chart er of Fundam ent al Right s” , part icularly it s Art icle 8. 197
The overview of bot h exist ing and foreseen syst em s raises several quest ions:
1. Policy im pa ct a sse ssm e n t in in t e r na l se cu r it y: t he fact t hat som e
init iat ives, such as t he Ent ry/ Exit or EU- PNR syst em s, can be regularly
resubm it t ed despit e t he fact t hat t hey have been eit her put aside or rej ect ed in
t he decision- m aking process, raises a quest ion wit h regard t he qualit y of im pact
assessm ent s in EU int ernal securit y policies. Th e ‘r e cycling’ of policy
in it ia t ive s m igh t indica t e t h a t im pa ct a sse ssm e nt s h a ve not be e n
con du ct e d pr ope r ly a t t h e m om e n t of fir st su bm ission , or t ha t im pa ct
a sse ssm e nt s do not ha ve sign ifica n t e ffe ct s on t h e de cision t o t a ble t he
pr oposa l for a n e w da t a pr oce ssin g sche m e .
2. N e ce ssit y a n d pr opor t iona lit y: direct ly t ied t o t he quest ion of im pact
assessm ent s is t he issue of necessit y and proport ionalit y. As t he num ber of
dat a processing schem es increases in EU int ernal securit y policies, it appears
t hat a growing num ber of cont roversies involve t hese t wo principles. Necessit y
and proport ionalit y have been t he key grounds on which t he init ial EU- PNR
proposal was quest ioned by t he EDPS and Art icle 29 Working Part y, as well as
by t he FRA. The proposals com posing t he ‘sm art borders’ init iat ive have raised
sim ilar int errogat ion when t hey were first form alised by t he European
Com m ission’s DG JLS as part of it s ‘border package’ of February 2008. Not ing
t he “ am azing pace” at which new proposals for dat a processing schem es in t he
area of m ovem ent s of persons were being t abled, t he EDPS request ed for
exam ple “ t o see evidence t hat t here is a m ast er plan for all t hese init iat ives,
giving a clear sense of direct ion” . 198
3. Effe ct ive im plica t ions of a ll con ce r n e d a ge n cie s, bodie s, se r vice s, a nd
in st it u t ions: a num ber of policy pract ices appear t o t ake shape where
agencies and bodies such as t he Art icle 29 Working Part y, t he EDPS and t he
FRA are consult ed on a syst em at ic basis on dat a processing schem es for
int ernal securit y purposes. This is also cert ainly t he case for t he European
Parliam ent , as dem onst rat ed by t he case of t he init ial EU- PNR proposal for
inst ance, and even m ore so following t he ent ry int o force of t he Lisbon Treat y.
The degree t o which t he views of t hese act ors are t aken on board is up for
discussion, of course. I n t he case of t he EU- PNR syst em , for exam ple, t he
opinions of t he EDPS and Art icle 29 WP are cert ainly m ore negat ive t han t he
FRA’s. Ye t t h e pe r sist e n ce of som e pr a ct ice s r a ise s qu e st ion s, in
196
European Com m ission ( 2011) , “ Report on t he j oint review of t he im plem ent at ion of t he
Agreem ent bet ween t he European Union and t he Unit ed St at es of Am erica on t he processing and
t ransfer of Financial Messaging dat a from t he European Union t o t he Unit ed St at es for t he pur pose
of t he Terrorist Finance Tracking Program ” , SEC( 2011) 438 final, 17.2.2011.
197
As well as wit h Art icle 16 TFEU. See European Com m ission ( 2011) , “ A European t errorist finance
t racking syst em ” , op. cit ., p. 3. For an analysis, see A. Am icelle ( 2011) , “ The Great ( Dat a) Bank
Robbery” , op. cit .
198
EDPS ( 2008) , Prelim inary com m ent s of t he European Dat a Prot ect ion Supervisor on t hree
com m unicat ions from t he Com m ission on border m anagem ent COM( 2008) 69 final, COM( 2008) 68
final, COM( 2008) 67 final, 3 March 2008, p. 3.
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pa r t icu la r t h e t e nde n cy, in it ia t e d w it h SI S I I a nd t h e VI S, t o be gin t h e
t e ch n ica l de ve lopm e n t of a syst e m be for e a le ga l in st r um e n t
e st a blish ing it s scope a nd pu r pose s h a s be e n a dopt e d a nd a ll
con ce r ne d a ge n cie s, bodie s, se r vice s a nd in st it u t ion s fu lly in volve d.
This is t he case, for exam ple, of t he European Border Surveillance syst em
EUROSUR, on which t he European Com m ission appears t o plan a legislat ive
proposal as part of it s ‘sm art borders’ init iat ive. As evidenced by progress
report s subm it t ed by DG Hom e, t he developm ent of t he syst em has been
ongoing at least since 2008. 199 On t he basis of t he t echnical specificat ions
developed in t he Com m ission’s 2011 working paper on EUROSUR, cost s
incurred direct ly t o t he EU budget are of €5 m illion, wit h Mem ber St at es using
an addit ional €695 m illion from t he Ext ernal Borders Fund ( 45% of t he EBF for
t he period 2007- 2013) , and about €106 m illion funded under t he FP7- ST ( first
and second call est im at e) .
All t hree point s e m pha sise t h e qu e st ion t ha t ha s be e n su st a in e d t h r ou ghou t t h is
st u dy, na m e ly of t h e im por t a n ce of m e ch a n ism s of ove r sigh t a n d fu ll
in volve m e n t of a ll t h e r e le va nt EU a ct or s in t he pr oce ss of policy de ve lopm e n t ,
de cision , a n d im ple m e n t a t ion . W it h r e ga r d t o da t a pr oce ssin g in in t e r na l se cu r it y
policie s, t h is is a ll t h e m or e im por t a n t a s cu r r e n t t r e n ds indica t e t h e gr ow ing
e m ph a sis pla ce d on m a ss pr oce ssin g of t h e pe r sona l da t a of bot h for e ign e r s a nd
cit ize n s.
3.2.2.2.
The shift t owards m ass processing of personal dat a
Two m aj or t rends are current ly influencing t he developm ent of dat a processing schem es
in t he EU. The first t rend is quant it at ive: da t a pr oce ssin g in EU in t e r na l se cu r it y
policie s is in cr e a singly m oving t ow a r ds m a ss pr oce ssing. The second t rend is
qualit at ive: it involves t h e sh ift t ow a r ds t h e u se of a u t om a t e d pr oce ssing a n d da t a m in ing w it h t h e a im of pr ofiling ca t e gor ie s of pe r son a n d ide n t ify in dividu a ls on
t he basis of t he personal dat a held in EU dat abases, in t he n a m e of pr e ve n t ion. 200
The first t rend, i.e. t he qu a n t it a t ive sh ift in da t a pr oce ssing, is best illust rat ed by
looking at t he difference in scale bet ween t he SI S and t he VI S, which are bot h used by
Mem ber St at e consular officials for t he delivery of Schengen visas. As Figure 2 ( available
in t he Annex) highlight s, t h e nu m be r of va lid pe r sona l r e cor ds st or e d in t h e SI S
ove r t h e pe r iod 2 0 0 4 - 2 0 1 0 ha s n e ve r e x ce e de d 1 m illion, t he largest cat egory of
personal records being collect ed under Art icle 96 of t he Convent ion on t he
I m plem ent at ion of t he Schengen Agreem ent ( CI SA) concerning “ [ d] at a on aliens for
whom an alert has been issued for t he purposes of refusing ent ry” .
I n it s 2004 im pact assessm ent st udy on t he est ablishm ent of VI S, t he European
Com m ission est im at ed t hat from 2007 onwards, Mem ber St at es would receive about 20
m illion visa request s a year. Figure 3 and 4 ( available in t he Annex) provide inform at ion
on t he num ber of visa applicat ions for cat egories A, B and C received by Schengen and
non- Schengen EU Mem ber St at es over t he period 2005- 2009, and t he num ber of visas in
cat egories A, B, C, VTL, D and D+ C issued over t he sam e period. 201 During t his five- year
199
European Com m ission ( 2009) , Report on progress m ade in developing t he European border
surveillance syst em , SEC( 2009) 1265 final, 24.9.2009; European Com m ission ( 2011) , Det erm ining
t he t echnical and operat ional fram ework of t he European bor der surveillance syst em ( EUROSUR)
and t he act ions t o be t aken for it s est ablishm ent , SEC( 2011) 145 final, 28.1.2011.
200
See t he com pilat ion of briefings request ed by t he European Parliam ent in: Baldaccini, A. et al.
( 2008) , Cont rolling Securit y, Paris: L’Harm at t an; G. Gonzalez Fust er et al. ( 2010) , “ Profiling in t he
European Union : A High Risk Pract ice” , Brussels: CEPS, I NEX Policy Brief No. 10.
201
These figures were built on t he basis of t he inform at ion provided by Mem ber St at es t o t he Visa
Working Part y. Dat a on visa applicat ions and issuances for t he year 2010 w as not found available.
To t he best of our knowledge, t here are no officially available figures on t he t ot al num ber of visas,
102
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period, which corresponds t o t he dat a ret ent ion period applicable t o personal records in
t he VI S, Schengen and non- Schengen EU Mem ber St at es report ed a t ot al of 59.409.621
applicat ions for visa cat egories A, B and C. They furt her report ed t he issuance of
63.399.852 visas, t aking int o account visa cat egories VTL, D and D+ C. This is below t he
2004 est im at e of t he European Com m ission, bu t pr ovide s a r ou gh ide a of how m a n y
r e cor ds w ill be he ld in t h e VI S a t a n y give n t im e , i.e . in t h e ne ighbour hood of 6 0
m illion . 202
Alt hough it is clear t hat SI S and VI S do not operat e along t he sam e logic, t he
im plem ent at ion of VI S does signal t he change of scale in dat a processing for purposes of
EU int ernal securit y. Mass processing is also at t he heart of several envisaged syst em s,
such as t he Ent ry/ Exit syst em and t he EU PNR dat abase. I f t he EES is lim it ed t o persons
requiring a Schengen visa, it would overlap in t erm s of t he num ber of personal records
wit h t he VI S. I f t he EES is ext ended t o all ‘t hird count ry nat ionals’, as was suggest ed in
one of t he preferred policy opt ions of t he Com m ission’s 2008 im pact assessm ent
docum ent , 203 t his num ber would be considerably higher. To give a r ou gh e st im a t e of
t h e sca le of pe r sona l da t a colle ct ion in t h is se con d ca se , t he Unit ed Nat ions World
Tourism Organisat ion ( UNWTO) considers in it s m ost recent Tourism Highlight s report t hat
Europe rem ained t he m ost t ourist ic region in t he world, wit h t he EU- 27 regist ering m or e
t h a n 3 5 0 m illion int e r n a t iona l ( i.e . n ot r e giona l) t ou r ist a r r iva ls la st ye a r . 204
Tourist s, of course, would only be one cat egory of t ravellers whose com ings and goings
would be regist ered in t he EE. I n t h e ca se of t h e EU- PN R da t a ba se , t he est im at es
provided by t he European Com m ission in t he im pact assessm ent docum ent at t ached t o it s
February 2011 proposal for an EU- PNR syst em are t hat such a m e a su r e w ou ld con ce r n
ove r 5 0 0 m illion t r a ve lle r s, r ega r dle ss of w he t h e r t h e y hold EU cit ize nsh ip or not
( t hese findings are sum m arised in Ta ble 7 in t h e An n e x ) . 205
This change of scale raises quest ions as t o guarant eeing fair t reat m ent for t he persons
whose dat a, including biom et rics in t he case of VI S or det ailed biographical inform at ion in
t he case of EU- PNR, is t o be collect ed and processed, part icularly if t hey are not EU
cit izens. One issu e , for e x a m ple , is t h e pr oba bilit y of fa ile d a n d m ist a k e n m a t ch e s
in biom e t r ic ide n t ifica t ion . The Com m ission subm it t ed t he init ial VI S proposal on t he
underst anding t hat t he accuracy requirem ent of t he syst em would be sim ilar t o t hat of
Eurodac, leaving a m argin of error bet ween 0.1% and 0.5% . 206 The figure provided by t he
consort ium in charge of t he VI S feasibilit y st udy was of 12.000 cases on t he basis of 12
m illion visa applicat ions a year ( bet ween 12.000 and 60.000 in fact ) . Give n t ha t r e cor ds
a r e st or e d a n d a cce ssible on VI S for 5 ye a r s, how e ve r , t he qu e st ion is w h e t h e r
t h is n u m be r is a ccur a t e or shou ld t he ca lcu la t ion t a k e in t o a ccoun t t h e t ot a l
a n t icipa t e d n um be r of r e cor ds in t h e syst e m for a n y five - ye a r pe r iod, i.e .
all cat egories included, delivered yearly by EU Mem ber St at es, hence t he choice t o prov ide dat a on
t he t ot al num ber of visas issued acr oss all cat egories. This dat a, finally, should be considered as a
rough est im at e, as t he inform at ion provided by Mem ber St at e consular services t o t he Visa Working
Part y are som et im es incom plet e or inaccurat e, depending oft en on t he infrast ruct ures available t o
consular officers in t he field.
202
The init ial st udy com m issioned by DG JHA on t he feasibilit y of VI S concluded on a figure of 70
m illion records at any given t im e on t he basis of a 20 m illion visa applicat ions per year. See
European Policy Evaluat ion Consort ium ( 2004) , St udy for t he ext ended im pact assessm ent of t he
Visa I nform at ion Syst em , Brussels: EPEC, 12.2004.
203
European Com m ission ( 2008) , “ Preparing t he next st eps in bor der m anagem ent in t he European
Union” , SEC( 2008) 153 final, 13.2.2008, p. 50.
204
Unit ed Nat ions World Tourism Organisat ion ( 2011) , “ UNWTO Tourism Highlight s” , Madrid:
UNWTO.
205
European Com m ission ( 2011) , “ Accom panying docum ent t o t he Proposal for a European
Parliam ent and Council Direct ive on t he use of Passenger Nam e Recor d dat a for t he prevent ion,
det ect ion, invest igat ion and prosecut ion of t errorist offences and serious crim e” , SEC( 2011) 133
final, p. 16
206
See EPEC ( 2004) , op. cit ., p. 54.
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be t w e e n 6 0 .0 0 0 a nd 3 0 0 .0 0 0 ca se s? What should be done in case t he use of VI S
shows t his m argin of error t o be t oo high?
This change of scale also raises polit ical quest ions regarding t he t endency t owards
generalised surveillance, whet her t hrough t he use of personal dat a ( ‘dat aveillance’) or by
t he conj unct ion of different t echnical inst rum ent s ( som et im es qualified as t he ‘surveillance
societ y’ 207 ) .
3.2.2.3.
The shift t owards profiling in t he nam e of prevent and ant icipat ion
Changes in t he scale of dat a processing are com bined w it h cha n ge s bot h in t he
pu r pose for w h ich , a n d in t h e w a y in w h ich da t a is pr oce sse d. As far as t he
purpose of dat a processing is concerned, t he ‘European Securit y Model’ prom ot ed by t he
EU I nt ernal Securit y St rat egy, as dem onst rat ed previously, places st rong em phasis on
‘prevent ion and ant icipat ion’ and on a ‘proact ive and int elligence- led approach’. The EU
I SS considers for inst ance t hat t he European Passenger Nam e Record would enable
int ernal securit y agencies, bodies and services “ t o deepen our underst anding of t he
different t ypes of t hreat s and t heir probabilit y and t o ant icipat e what m ight happen, so
t hat we are not only prepared for t he out com es of fut ure t hreat s but also able t o est ablish
m echanism s t o det ect t hem and prevent t heir happening in t he first place” . 208 I n ot h e r
w or ds, da t a pr oce ssin g is n ot on ly su ppose d t o su ppor t t h e in ve st iga t ion of
cr im ina l a ct s or t o e n h a n ce pr e pa r e dn e ss, bu t a lso t o su ppor t t h e possibilit y of
in t e r ve n ing be for e t h e se a ct s a r e com m it t e d. The Art icle 29 Working Part y and t he
Working Part y on Police and Just ice ( WPPJ) have highlight ed t his t rend in t heir j oint
cont ribut ion on “ The Fut ure of Privacy” t o t he European Com m ission’s consult at ion on t he
legal fram ework for dat a prot ect ion in t he EU. They suggest t hat “ t he use of inform at ion
focuses on earlier st ages in t he chain: in addit ion t o t he t radit ional use of inform at ion for
t he invest igat ion and t he det ect ion of a specific crim e, inform at ion is gat hered and
exchanged in order t o prevent possible crim inal act s” . 209
One of t he m ain consequences of t he em phasis on pro- act ivit y in a cont ext where dat a
processing is becom ing increasingly m assive is t he growing int erest in t he use of dat a
m ining and profiling. The proposals for a European PNR offer a good illust rat ion of t his
int erest , which has already been not ed in ot her st udies subm it t ed t o t he European
Parliam ent . 210 The im pact assessm ent docum ent accom panying t he February 2011
Com m ission proposal for a Regulat ion on European PNR st resses t hat “ PNR dat a are
m ainly used as a crim inal int elligence t ool, in part icular for assessm ent , rat her t han as an
ident it y verificat ion t ool” . 211 ‘Asse ssm e n t ’ in t h e EU PN R pr oposa l is u se d a s a
su bst it ut e for pr ofilin g. 212 I t relat es t o t he use of crit eria such as “ ways of t ravel,
behaviour, t ravel rout es, et c.” 213 t o screen passengers and t o ident ify “ t hose who fit int o
t he fact - based assessm ent crit eria but who were previously unsuspect ed” . 214
207
See e.g. Art icle 29 Working Part y & Working Part y on Police and Just ice ( 2009) , “ The Fut ure of
Privacy: Joint cont ribut ion t o t he Consult at ion of t he European Com m ission on t he legal fram ework
for t he fundam ent al right t o prot ect ion of per sonal dat a” , Working Paper No. 168, 1.12.2009, p. 26;
Surveillance St udies Net work ( 2006) , “ A Report on t he Surveillance Societ y, London, Report for t he
I nform at ion Com m issioner, 9.2006.
208
Council docum ent 5842/ 2/ 10, op. cit ., p. 12.
209
Art icle 29 WP & WPPJ ( 2009) , “ The Fut ure of Privacy” , op. cit ., p. 25.
210
See e.g. R. Bellanova and P. De Hert ( 2009) , “ Dat a prot ect ion in t he area of freedom , securit y
and j ust ice : a syst em st ill t o be fully developed ?” . Brussels: European Parliam ent , PE 410.692,
3.2009, pp. 17- 18 ; D. Bigo et al. ( 2011) , “ Towards a New EU Legal Fram ework for Dat a Prot ect ion
and Privacy” , op. cit ., Chapt er 2.
211
SEC( 2011) 133, op. cit ., p. 10.
212
R. Bellanova and P. De Hert ( 2011) , Transat lant ic Cooperat ion on Travellers’ Dat a Processing,
op. cit .
213
SEC( 2011) 133, op. cit ., p. 10.
214
I bid.
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The quest ion, here, is w h e t h e r su ch ‘fa ct - ba se d a sse ssm e n t cr it e r ia ’ a m ou n t t o
e vide n ce , a n d pr ovide sufficie n t ly e st a blish e d gr oun ds for a ct ion . While profiling
based on t he analysis of t he behaviour of persons who are already known ( e.g. for which
a crim inal record already exist , or who can be linked t o specific crim inal fact s) can be
accom m odat ed in a t radit ional crim inal j ust ice syst em , pr ofilin g ba se d on t h e
ide n t ifica t ion of pr e viou sly u nk n ow n pe r son s t h r ou gh e x t r a pola t ion ba se d on
pa t t e r n s of be h a viour t h a t ha ve be e n m a de a nonym ou s, su ch a s t he pr opose d
ope r a t ion of t he Eu r ope a n PN R, a ppe a r s t o be m or e pr oble m a t ic. 215 I n t heir j oint
cont ribut ion, for inst ance, t he Art icle 29 WP and t he WPPJ point out t hat profiling “ m ight
st igm at ize persons wit h cert ain backgrounds” while “ [ a] nalyses m ade on t he basis of
general crit eria run t he risk of high inaccuracies, leading t o a high num ber of false
negat ives and false posit ives” . 216 The r isk of discr im ina t ion h a s a lso be e n poin t e d
ou t by t h e Eu r ope a n Pa r lia m e n t in it s Apr il 2 0 0 9 r e com m e nda t ion t o t h e Coun cil
on pr ofiling, which rem ains t o t his day t he only at t em pt by EU inst it ut ions t o com e up
wit h a definit ion of t his t echnique. 217 While t his kind of profiling is yet t o becom e com m on
pract ice for EU- wide dat a processing schem es, it arguably requires a degree of at t ent ion
in light of foreseeable init iat ives such as t he EU PNR and ot her proposals involving
aut om at ed assessm ent s and t he processing of bulk dat a. The quest ion, here, m ight be
relat ed t o t he decision- m aking process as such, and t o t he t rend, ident ified as
‘program m at ic policy- m aking’ or ‘fut ure perfect policy m aking’ in anot her st udy request ed
by t he LI BE Com m it t ee, consist ing in m ult iplying proposals for new dat a- processing
schem es before exist ing init iat ives are im plem ent ed. 218
3.2.3. The issue of oversight
The different dim ensions of t he ‘t echnological challenge’ exam ined so far all raise t he
quest ion of oversight . I n t his last subsect ion, we exam ine how oversight is envisaged
wit hin EU int ernal securit y policies t hem selves, how it can be conceived t hrough t he issue
of t he right t o dat a prot ect ion, but also t hrough ot her procedures.
3.2.3.1.
The regulat ion of dat a processing
inform at ion m anagem ent st rat egy
in
int ernal
securit y
policies:
t he EU
The expansion of dat a processing has led t o t he developm ent of a num ber of proposals for
t heir regulat ion wit hin t he fram ework of int ernal securit y policies. Th e cor e st r a t e gy
docum e n t h e r e is t h e I n for m a t ion M a na ge m e n t St r a t e gy ( I M S) . The draft ing of t he
I MS was init ially discussed in t he fram ework of t he inform al High Level Group for t he
fut ure of European Hom e Affairs. The incom ing Swedish presidency of t he EU subm it t ed a
first draft of t he I MS t o t he Council’s Ad Hoc Working Group on I nform at ion Exchange on
26 June 2009, and t he I MS was adopt ed by t he JHA Council at t he end of 2009. 219
According t o t he Council, t he I MS is “ a m e t hodology ( t he ‘how’) t o ensure t hat decisions
about t he need for m anaging and exchanging dat a and decisions about t he ways t o do so
are t aken in a coherent , professional, efficient , cost - effect ive way, account able and
com prehensible t o t he cit izens and t he professional users. I t is not a le ga lly bin din g
215
G. Gonzalez Fust er et al. ( 2010) , “ Profiling in t he European Union : A High Risk Pract ice” , , I NEX
Policy Brief No. 10, CEPS, Brussels.
216
Art icle 29 WP & WPPJ ( 2009) , “ The Fut ure of Privacy” , op. cit ., p. 26.
217
European Parliam ent ( 2009) , European Parliam ent recom m endat ion t o t he Council of 24 April
2009 on t he problem of profiling, not ably on t he basis of et hnicit y and race, in count er- t errorism ,
law enforcem ent , im m igrat ion, cust om s and border cont rol ( 2008/ 2020( I NI ) ) , OJ C184/ 119,
8.7.2010.
218
D. Bigo et al. ( 2011) , “ Towards a New EU Legal Fram ework for Dat a Prot ect ion and Privacy:
Challenges, Principles and t he Role of t he European Parliam ent , Brussels, EP st udy 453.216, Chapt er
2.
219
Council of t he European Union ( 2009) , Draft Council Conclusions on an I nfor m at ion Managem ent
St rat egy for EU I nt ernal Securit y, 16637/ 09, 25.11.2009.
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t e x t ” . 220 I t seeks, in ot her words, t o r e gu la t e da t a e x ch a n ge s a n d pr oce ssin g,
in clu ding w it h r e spe ct t o t he r igh t t o da t a pr ot e ct ion a n d t o pr iva cy t hr ou gh t he
ide n t ifica t ion of a se t of n on- m a n da t ory gu ide line s for a ge n cie s, bodie s a n d
se r vice s in ch a r ge of in t e r n a l se cu r it y. I nform at ion m anagem ent , for inst ance, is not
a legal not ion but is “ funct ionally defined, i.e. depends on t he t ask t o be carried out , as
opposed t o com pet ence- based or organisat ionally defined” . 221 The guidelines laid out in
t he I MS are t o be t aken int o account bot h in t he m anagem ent and developm ent of crossborder inform at ion exchanges, and at t he nat ional level.
The I MS t akes a st rong st ance in favour of dat a sharing and processing. I t considers t hat
one of it s obj ect ives is t o prom ot e “ an at t it ude of dat a- sharing by default ” . 222 I ssues
relat ed t o dat a prot ect ion are m ent ioned in t he I MS, which point s out t hat “ [ c] ooperat ion
wit h a view t o ensuring t he EU int ernal securit y places high dem ands on dat a
prot ect ion” . 223 I n t he m anagem ent and developm ent of inform at ion exchanges, t herefore,
“ t he legal requirem ent s for prot ect ion of personal dat a and for securit y st andards m ust be
assessed t oget her wit h business needs” . 224 Two quest ions can be raised in relat ion t o t he
possibilit ies for oversight involved in t he guidelines laid out by t he I MS. Fir st ly, w hy is
da t a se cur it y t h e on ly pr in ciple t ie d t o t h e r igh t t o da t a pr ot e ct ion t ha t is
e x plicit ly m e n t ione d in t h e st r a t e gy? As m ent ioned by t he EDPS, “ dat a securit y [ …] is
also a dat a prot ect ion principle but ot her principles relat e t o im port ant prelim inary issues,
such as what is a legit im at e purpose and what is legit im at e access [ …] All principles
t oget her, including dat a securit y, det erm ine whet her an inform at ion syst em deserves t o
be im plem ent ed” . 225 Se con dly, w h ich a r e t h e a ge n cie s, bodie s, in st it u t ion s or
se r vice s t h a t sh ou ld be involve d in e n su r ing t ha t ‘infor m a t ion m a na ge m e n t ’
com plie s w it h a ll t he r e qu ir e m e n t s r e la t e d t o t he r igh t t o da t a pr ot e ct ion ? The
I MS only m akes references t o Mem ber St at e aut horit ies and t he European Com m ission.
W h a t shou ld be t h e r ole of EU a nd n a t iona l da t a pr ot e ct ion a u t h or it ie s, of t h e
Eu r ope a n Pa r lia m e n t a n d of na t iona l Pa r lia m e n t , in t he m a na ge m e n t of
in for m a t ion e x ch a n ge s? The I MS, in t his respect , m irrors t he m anagerial logic already
at work t hrough t he EU ‘policy cycle’ in int ernal securit y as advocat ed by t he result s of t he
Harm ony proj ect .
3.2.3.2.
Updat ing t he EU legal fram ework on t he right t o dat a prot ect ion
Since EU int ernal securit y policies m ove t owards t echnology- int ensive act ivit ies involving
in part icular t he m ass collect , exchange and processing of personal dat a, t he updat ing of
t he EU legal fram ework on t he right t o dat a prot ect ion becom es cent ral. I n t his respect ,
t he European Com m ission has adopt ed in Novem ber 2010 a series of proposals for a
com prehensive approach on dat a prot ect ion in t he European Union. 226
The key elem ent s t hat em erge from t his com m unicat ion as well as from various
cont ribut ions discussing t he ‘com prehensive fram ework’ as regards int ernal securit y are
t he following:
1. Th e ne e d for a single da t a pr ot e ct ion fr a m e w or k : at t he m om ent , t he legal
fram ework for t he prot ect ion of personal dat a in t he EU’s area of freedom , securit y
and j ust ice is fragm ent ed. Mat t ers t hat prior t o t he ent ry int o force of t he Lisbon
Treat y belonged t o t he First Pillar are generally governed by Direct ive 95/ 46/ EC,
220
I bid, p. 1.
221
I MS, op. cit ., p. 7.
222
I bid., p. 10.
223
I bid.
224
I bid., p. 11.
225
P. Hust inx, P. ( 2009) , “ Dat a Prot ect ion and t he need for an EU I nfom at ion Managem ent
St rat egy” , Brussels: Council Ad Hoc Working Group on I nfor m at ion Exchange, Recept ion by t he
Swedish Presidency, 6.7.2009.
226
European Com m ission ( 2010) , “ A com prehensive approach on personal dat a prot ect ion in t he
European Union” , COM( 2010) 609 final, 4.11.2010.
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also known as t he Dat a Prot ect ion Direct ive ( DPD) . 227 Mat t ers which belonged t o
t he Third Pillar are governed by a separat e legal inst rum ent , Council Fram ework
Decision 2008/ 977/ JHA, also known as t he Dat a Prot ect ion Fram ework Decision
( DPFD) . 228 The Com m ission’s proposals, as well as t he views expressed by dat a
prot ect ion aut horit ies and t he European Parliam ent , insist t hat in order t o reflect
t he changes brought about by Lisbon, a single legal inst rum ent should be adopt ed
t hat est ablishes general principles and rules across all EU policy dom ains. 229
2. Th e n e e d for in cr e a se d ove r sigh t of la w e n for ce m e n t a ct ivit ie s involvin g
t h e pr oce ssin g of pe r sona l da t a : at t he m om ent , oversight act ivit ies involving
t he right t o dat a prot ect ion of EU bodies and inform at ion syst em s are fragm ent ed.
Europol, Euroj ust and t he SI S, for exam ple, have t heir own Joint Supervisory
Bodies ( JSBs) com posed of represent at ives of nat ional dat a prot ect ion aut horit ies.
Proposals have surfaced t o harm onise t he m et hods used by t hese different bodies.
The EDPS, for exam ple, has suggest ed in his opinion on t he Com m ission’s
proposals for a com prehensive dat a prot ect ion fram ework t hat t he t hree layer,
‘coordinat ed supervision’ m odel, operat ional in Eurodac for inst ance and soon t o be
ext ended t o VI S and SI S I I , be generalised. 230 I n t his m odel, supervision is
exercised at t he nat ional level by DPAs, at t he EU level by t he EDPS, and
coordinat ion is ensured t hrough regular m eet ings where t he EDPS is t he lead body
and provides secret ariat funct ions.
3. Th e n e e d t o pa y pa r t icu la r a t t e n t ion t o spe cific for m s of da t a pr oce ssin g:
t his quest ion has, in t urn, t wo dim ensions. I t involves first ly t he quest ion of socalled ‘sensit ive personal dat a’, e.g. biom et rics. The cases of SI S I I , t he VI S and
t he Prüm Decision highlight t he t rend t owards t he increased processing of such
dat a. One principle advocat ed by t he Art icle 29 WP and t he WPPJ, in t his respect , is
t hat “ [ b] iom et ric dat a should only be used if t he use of ot her less int rusive m at erial
does not present t he sam e effect ” . 231 The quest ion also involves t he issue of
profiling, t he absence of a legal definit ion t hereof, and t he apparent t endency t o
avoid m aking explicit reference t o profiling syst em s in policy docum ent s.
I n t his perspect ive, a num ber of possibilit ies are current ly being considered. The
St ockholm
Program m e,
for
inst ance,
expresses
int erest
for
‘privacy- aware’
t echnologies. 232 I n t heir j oint Fut ure of Privacy report , t he Art icle 29 WP and t he WPPJ
suggest , in t his regard, t hat ‘privacy by design’, nam ely t he “ idea of incorporat ing
t echnological dat a prot ect ion safeguards in inform at ion and com m unicat ion t echnologies”
be m ade int o a principle of t he right t o dat a prot ect ion. 233 Privacy by design, however,
also reflect s t he not ion t hat t he right t o dat a prot ect ion, despit e having been given
aut onom ous st at us as a fundam ent al right in Art icle 8 CFR, is em bedded in a broader legal
and regulat ory fram ework offering m ult iple possibilit ies for oversight .
227
Direct ive 95/ 46/ EC of t he European Parliam ent and of t he Council of 24 Oct ober 1995 on t he
prot ect ion of individuals wit h regar d t o t he processing of personal dat a and on t he free m ovem ent of
such dat a, OJ L281/ 31, 23.11.1995.
228
Council Fram ework Decision 2008/ 977/ JHA of 27 Novem ber 2008 on t he prot ect ion of personal
dat a processed in t he fram ework of police and j udicial cooperat ion in crim inal m at t ers, OJ L350/ 60,
30.12.2008.
229
See e.g. European Dat a Prot ect ion Supervisor ( 2011) , Opinion on t he Com m unicat ion from t he
Com m ission “ A com prehensive approach on personal dat a prot ect ion in t he European Union” ,
Brussels: EDPS, 14.1.2011. See t he report from t he LI BE Com m it t ee: European Parliam ent ( 2011) ,
Report on a com prehensive approach on personal dat a prot ect ion in t he European Union, Brussels,
A7- 0244/ 2011, 22.6.2011.
230
EDPS ( 2011) , Opinion on “ A com prehensive approach on personal dat a prot ect ion in t he
European Union” , op. cit ., pp. 31- 32.
231
Art icle 29 WP & WPPJ ( 2009) , “ The Fut ure of Privacy” , op. cit ., p. 27.
232
Council docum ent 5731/ 10, p. 34.
233
Art icle 29 WP & WPPJ ( 2009) , “ The Fut ure of Privacy” , op. cit ., pp. 13- 15.
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3.2.3.3.
Oversight beyond dat a prot ect ion
Dat a prot ect ion is a cent ral issue for oversight in a cont ext of t echnology int ensive
int ernal securit y policies relying on t he processing of personal dat a. At t he sam e t im e,
dat a processing im pact s on a num ber of right s, including t he right t o privacy, t he right t o
freedom of speech, of religion and so fort h, 234 and on a num ber of principles, for inst ance
account abilit y and t ransparency. As such, ove r sight in t h e con t e x t of t he
‘t e ch n ologica l ch a lle n ge ’ ca nnot be lim it e d t o e x ist in g m e cha n ism s put in pla ce
t o sa fe gua r d t h e r ight t o da t a pr ot e ct ion , h ow e ve r ce n t r a l it m igh t be .
An int erest ing illust rat ion of t his issue can be found in t he July 2010 opinion of t he Art icle
29 WP on t he issue of account abilit y. 235 The opinion expresses support for t he inclusion in
t he revised EU dat a prot ect ion fram ework of a ‘st at ut ory account abilit y principle’ which
“ would explicit ly require dat a cont rollers t o im plem ent appropriat e and effect ive m easures
t o put int o effect t he principles and obligat ions of t he Direct ive and dem onst rat e t his on
request ” . 236 The need t o “ im plem ent appropriat e and effect ive m easures” relat ed t o t he
legal obligat ions of t he EU and it s Mem ber St at es wit h regard fundam ent al right s and
freedom s, including t o t he right of dat a prot ect ion, point out t he need t o ascert ain t hat
t he proper procedures are being used t o develop policy init iat ives in t he field of int ernal
securit y. Th e se pr oce du r e s in clu de , for e x a m ple , r e spe ct of t he im pa ct
a sse ssm e nt gu ide lin e s a n d che ck s on how pr opose d m e a su r e s com ply w it h t he
CFR, a s e st a blish e d in se ve r a l Com m ission docu m e n t s. 2 3 7 Sim ila r gu ide line s h a ve
r e ce n t ly be e n a dopt e d in t he fr a m e w or k of t h e Coun cil’s W or k ing Pa r t y on
Fu nda m e nt a l Righ t s, Cit ize n s’ Righ t s a nd Fr e e M ove m e n t of Pe r son s. 2 3 8 Oversight ,
in t his respect , can involve m aking sure t hat policy proposals syst em at ically include
properly designed im pact assessm ent docum ent s, and follow guidelines and checks on
com pliance wit h t he CFR and ot her legal obligat ions of t he Union and it s Mem ber St at es.
Mechanism s such as t hat of not ificat ions for prior checking in t he field of dat a prot ect ion
could be syst em at ised t o cover all t he issues relat ed t o t he im plem ent at ion of t he CFR, in
relat ion for inst ance wit h t he FRA.
Part icular at t ent ion should also be paid t o t he involvem ent of t he privat e sect or in t he field
of int ernal securit y. I n securit y research and developm ent , t he European Parliam ent has
expressed concern, part icularly by m eans of parliam ent ary quest ions, about t he FP7- ST
funded proj ect I NDECT. 239 I n it s resolut ion of 8 June 2011, t he EP recalled in part icular
t hat “ all research conduct ed wit hin t he FP7 m ust be conduct ed in accordance wit h
fundam ent al right s as expressed in t he European Chart er” and requires t he Com m ission t o
234
This is t he reason why, for exam ple, t he ECt HR has syst em at ically refused in it s case law t o
m ent ion privacy and equat e it wit h dat a prot ect ion, preferring t he t erm inology of t he “ r ight for t he
respect of privat e life” which encom passes t he right t o dat a prot ect ion but has a broader scope. See
Bigo et al ( 2011) , “ Towar ds a New EU Legal Fram ework for Dat a Prot ect ion and Privacy” , op. cit .,
Chapt er 1.
235
Art icle 29 Working Part y ( 2010) , Opinion 3/ 2010 on t he principle of account abilit y, 00062/ 10/ EN,
WP 173, 13.7.2010.
236
I bid, p. 3.
237
European Com m ission ( 2005) , Com pliance wit h t he Chart er of Fundam ent al Right s in
Com m ission legislat ive proposals, COM( 2005) 172 final, 27.4.2005 ; European Com m ission ( 2010) ,
St rat egy for t he effect ive im plem ent at ion of t he Chart er of Fundam ent al Right s by t he European
Union, COM( 2010) , 573 final, 19.10.2010. I m pact assessm ent guidelines, including on com pliance
wit h t he CFR, are laid out in: European Com m ission ( 2009) , “ I m pact Assessm ent Guidelines” ,
SEC( 2009) 92 final, 15.1.2009.
238
Council of t he European Union ( 2011) , “ Guidelines on m et hodological st eps t o be t aken t o check
fundam ent al right s com pat ibilit y at t he Council’s preparat ory bodies” , 10140/ 11, 18.4.2011.
239
“ I nt elligent inform at ion syst em support ing observat ion, searching and det ect ion for securit y of
cit izens in urban environm ent ” , see t he proj ect websit e ( www.indect - proj ect .eu/ ) and it s CORDI S
landing
page
( ht t p: / / cor dis.europa.eu/ fet ch?CALLER= FP7_PROJ_EN&ACTI ON= D&DOC= 1&CAT= PROJ&RCN= 8937
4) .
108
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give full access t o all t he docum ent s t ied t o t his proj ect . 240 Beyond t he specific case of
I NDECT, however, research has dem onst rat ed t he need for clearer guidelines and
supervision of securit y research and developm ent support ed by t he FP7 wit h regard t o t he
legal obligat ions of t he Union and Mem ber St at es relat ed t o fundam ent al freedom s and
right s. 241 Th e k e y st a k e a ppe a r s t o in volve t he ca pa cit y of EU in st it u t ion s t o m ove
be yond a ca se - by- ca se ba sis a n d e st a blish a r e gu la t or y fr a m e w or k t h a t w ou ld
e n a ble a r ou t ine follow - u p of r e se a r ch a n d de ve lopm e n t in it ia t ive s in volvin g
pr iva t e st a k e h olde r s.
3 .3 .
Th e in t e r n a l/ e x t e r n a l r e la t ion s ch a lle n ge
The fourt h challenge of EU int ernal securit y lies in t he ext ernal relat ions of t he Union. This
is arguably an ext rem ely variegat ed dom ain, com prising operat ional act ivit ies undert aken
under t he auspices of t he EU in collaborat ion wit h t hird count ries ( e.g. t he deploym ent of
t he net works of im m igrat ion liaison officers) , t he provision of financial and t echnical
assist ance t o t hird count ries ( e.g. t he BOMCA or EUBAM program m es respect ively in
Cent ral Asia and Moldova and Ukraine) , and t he conclusion of part nerships and
int ernat ional agreem ent s ( e.g. t he PNR and SWI FT agreem ent s wit h t he Unit ed St at es) .
The next subsect ion ( 3.4.1.) will provide a brief overview of t he ext ernal dim ension of
int ernal securit y policies in t he post - Lisbon cont ext .
Th e gist of t h e ch a lle n ge r e ga r din g e x t e r n a l r e la t ion s is t h e possibilit y t o e n su r e
e ffe ct ive com plia n ce of e x t e r na l a ct ivit ie s in t h e fie ld of in t e r n a l se cu r it y w it h
t h e pr in ciple s gove r nin g t h e AFSJ a s a w hole , a nd pa r t icu la r ly w it h Tr e a t y- ba se d
obliga t ions in t h e fie ld of fu n da m e n t a l fr e e dom s a n d r igh t s. There are t wo aspect s
t o t his quest ion. Com pliance should be ensured, first ly, in relat ion t o t he im pact t hat EU
act ivit ies in t he field of int ernal securit y m ight have regarding fundam ent al freedom s and
right s in t hird count ries ( 3.4.2.) . I t should, secondly, be ensured in relat ion t o t he im pact
t hat relat ions wit h t hird count ries are suscept ible t o have on t he guarant ees provided by
t he EU legal fram ework t o persons, and chiefly t he t ransat lant ic relat ion wit h t he US
( 3.4.3) .
3.3.1.
3.3.1.1.
The ext ernal dim ension of int ernal securit y policies in t he post - Lisbon cont ext
The pre- Lisbon sit uat ion
The quest ion of t he relat ions bet ween int ernal and ext ernal EU act ivit ies in t he field of
securit y received it s first form al endorsem ent in t he 2004 Hague Program m e under t he
label of t he ‘ext ernal dim ension’ of t he AFSJ. The developm ent of t his policy dom ain has
been st eered in part t hrough t he st rat egic docum ent s t abled at a few weeks’ int erval by
t he Com m ission and t he Council, respect ively in Oct ober and Novem ber 2005. As not ed in
a previous st udy com m issioned by t he LI BE Com m it t ee ( PE 410.688) , t he ‘ext ernal
dim ension’ has developed wit hout a form al legal basis. Prior t o t he ent ry int o force of t he
Lisbon Treat y, t he m ain legal basis for ext ernal relat ions in t he field of j ust ice and hom e
affairs laid in Tit le VI TEU Art icle 38 ( wit h Art icle 24) which grant ed t he EU a t reat ym aking com pet ence in t he dom ains pert aining t o t his Tit le. Out side of t his specific act ivit y,
m ost EU init iat ives were eit her ‘im plied’ from Treat y obj ect ives242 or founded in ot her legal
bases in t he TEC ( developm ent or t rade policies) and TEU ( CFSP, ESDP) .
240
European Parliam ent ( 2011) , European Parliam ent resolut ion of 8 June 2011 on t he m id- t erm
review of t he Sevent h Fram ework Program m e of t he European Union for research, t echnological
developm ent and dem onst rat ion act ivit ies ( 2011/ 2043( I NI ) ) , P7_TA- PROV( 2011) 0256, 8.6.2011,
§.27.
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See t he st udy request ed by t he LI BE Com m it t ee on t he m id- t er m assessm ent of t he FP7- Securit y
Them e: J. Jeandesboz and F. Ragazzi ( 2010) , “ Review of securit y m easures in t he Research
Fram ework Program m e” , PE 432.740, European Par liam ent , Brussels.
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Crem ona suggest s for inst ance t hat t hese have been in part im plied from Art icle 63( 3) ( b) TEC on
t he obj ect ive of est ablishing t he AFSJ ( Crem ona, 2008 : 5- 6) .
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One out com e of t his sit uat ion is t hat init iat ives associat ed wit h t he ext ernal dim ension of
t he AFSJ have m ult iplied in a seem ingly haphazard way, alt hough som e t rends have
em erged. Wit h regard t o t he provision of financial and t echnical assist ance, t hese
com prise:
The t endency t o focus on candidat e and/ or neighbourhood count ries.
The t endency t o priorit ise t he securit y aspect over freedom and j ust ice.
The t endency t o concent rat e on issues relat ed t o m igrat ion cont rol, including
border m anagem ent .
I n t he case of t he West ern Balkans, for inst ance, 37% of t he €470 m illion engaged by t he
Com m ission in t he j ust ice and hom e affairs sect or have concerned border m anagem ent
and border securit y according t o a recent European Court of Audit ors audit report ( Special
Report 12/ 2009, p. 14) . I n a 2008 audit report , t he Court found t hat out of t he €104.7
m illion com m it t ed by t he Com m ission t o j ust ice and hom e affairs in Belarus, Moldova and
Ukraine t hrough t he TACI S inst rum ent , 63.2% were dedicat ed t o border m anagem ent , t he
m ost significant proj ect being t he EU border assist ance m ission ( EUBAM) deployed in
Moldova and Ukraine since 2005 ( Special Report 9/ 2008, pp. 10- 11) . A num ber of t hese
financial and t echnical assist ance proj ect s are furt her underpinned by direct involvem ent
from EU JHA agencies, chiefly EUROPOL and FRONTEX.
Anot her issue for concern in recent years has been t h e dir e ct in volve m e n t of t h e EU
a n d it s M e m be r St a t e s in in t e r n a l se cur it y ope r a t ion s in t h ir d cou n t r ie s. The best known exam ple of such a sit uat ion is t he HERA series of operat ions coordinat ed by
FRONTEX since 2006, which are based in t he Canary I slands. The HERA operat ions involve
t he diversion of craft s heading for t he high seas or Spanish t errit orial wat ers t owards
Senegal and Maurit ania. A num ber of such operat ions have been conduct ed direct ly in t he
t errit orial wat ers of bot h count ries, on t he basis of bilat eral Mem oranda of Underst anding
concluded by Spain, t he host count ry of t he HERA operat ions. The MoUs have rem ained
confident ial t o t his day, which const it ut es an issue of account abilit y and t ransparency.
More worrying, a num ber of report s have point ed out t hat t he HERA operat ions m ight
have led t o t he breaching of t he principle of non- refoulem ent , and led t o t he persons
‘divert ed’ in t his fashion t o experience int olerable condit ions of det ent ion in Maurit ania
and Senegal. Ot her, possibly less high profile act ivit ies include t he deploym ent of
im m igrat ion liaison officers in t hird count ries, which has been pioneered in t he West ern
Balkans and is support ed by EUROPOL. A num ber of cooperat ive schem es also cover t he
exchange of confident ial dat a bet ween EU JHA agencies and t hird count ries. One exam ple
is t he so- called Neus net work which should enable such exchanges bet ween EUROPOL and
t he law- enforcem ent aut horit ies of Bosnia Herzegovina, following t he signing of a st rat egic
agreem ent and t he conclusion of a MoU on a secure com m unicat ion link bet ween t he t wo
part ies.
A t hird set of quest ions regarding t he ext ernal dim ension involves t h e im pa ct of t h e
se cu r it y policie s of EU pa r t n e r s on t h e gua r a n t e e s r e ga r din g fun da m e n t a l
fr e e dom s a n d r igh t s a ffor de d by t he Un ion ’s le ga l fr a m e w or k . At st ake here is in
part icular t he unfolding of t he relat ionship bet ween t he EU and t he US in securit y m at t ers.
To som e ext ent , t his quest ion has placed a st rain on t ransat lant ic relat ions for som e t im e.
I n t he 1990s, t he m ost not orious episode has involved t he surveillance of
t elecom m unicat ions t hrough t he ECHELON net work, where t he European Parliam ent has
played a key role in support ing t he research conduct ed on t his syst em and publicising t he
effect s it had on EU cit izens and ot her persons. The securit y policies im plem ent ed by t he
US adm inist rat ion aft er t he at t acks of 11 Sept em ber 2001 have been m et in t wo ways. On
t he one hand, som e am ong t he Mem ber St at es and wit hin t he EU inst it ut ions have been
keen on cooperat ing fully, including by giving in t o dem ands concerning t he t ransfer of
banking and passenger dat a t o t he US securit y agencies and bodies. This pat t ern has
been j ust ified by arguing, for inst ance, t hat t he bom bings of 11 March 2004 in Madrid and
7 July 2005 in Madrid dem onst rat ed t hat t he EU and t he US shared a com m on int erest in
prom ot ing count er- t errorism policies. This has result ed in t he signing of several
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agreem ent s, including a working agreem ent bet ween EUROPOL and t he US on dat a
exchanges, agreem ent s on m ut ual legal assist ance in crim inal j ust ice m at t ers and
ext radit ion, and t he bet t er- known PNR and SWI FT agreem ent s. This orient at ion, however,
has also been challenged, chiefly by t he European Parliam ent , which expressed it s
opposit ion t o t he erosion of t he respect for privacy and dat a prot ect ion, m ost not ably in
t he case of t he SWI FT agreem ent .
3.3.1.2.
The post - Lisbon sit uat ion
The sit uat ion following t he ent ry int o force of t he Lisbon Treat y is at t his st age delicat e t o
assess. On t he one hand, a num ber of elem ent s cont ribut e t o t he reinforcem ent of t he
possibilit ies for ensuring effect ive com pliance of t he ‘ext ernal dim ension’ of int ernal
securit y wit h t he freedom and j ust ice sides of t he AFSJ. Ext ernal act ivit ies in t he field of
int ernal securit y have not been at t ribut ed a legal basis in t he Treat ies. I n t he m eant im e,
t he collapse of t he pillar syst em and t he incorporat ion of t he Chart er of Fundam ent al
Right s in t he Treat ies m ean t hat all EU policy areas have t o com ply wit h fundam ent al
freedom s and right s guarant ees. The redefinit ion of t he posit ion of High represent at ive,
t oget her wit h t he est ablishm ent of t he European ext ernal act ion service, are suscept ible
t o m ake pract ical int ervent ions in t his area m ore feasible for t he European Parliam ent .
Anot her im port ant change lies in t he fact t hat t he Lisbon Treat y grant s t he EU a single
legal personalit y and provides a single legal basis for t he conclusion of int ernat ional
agreem ent s ( Art icle 217 TFEU) . Art icle 218 TFEU furt her est ablishes a single procedure for
t his purpose, where t he consent of Parliam ent is required for all fields where t he ordinary
legislat ive procedure applies, and in t he fields where t he special legislat ive procedure
requires consent ( Art icle 218( 6) ( a) TFEU) . I n ot her cases, t he Parliam ent is t o be
consult ed, alt hough t he Council does have t he opt ion of fixing a t im e lim it for t he issuance
of an opinion ( Art icle 218( 6) ( b) TFEU) . This im plies t hat in m at t ers falling under Art icle
87( 3) TFEU ( operat ional cooperat ion in int ernal securit y m at t ers) , Parliam ent m ay only be
consult ed, but t his consult at ion is m andat ory.
These t wo rem arks suggest t hat t h e post - Lisbon sit u a t ion offe r s a n u m be r of
possibilit ie s for a ct ion , shou ld t h e EP w ish t o con t inu e on t h e cour se it h a s
a dopt e d so fa r r e ga r din g t he e x t e r n a l pu r su it of in t e r na l se cu r it y policie s. The
sit uat ion has clearly changed wit h regard t he EU’s t reat ing- m aking powers. Under t he
previous Treat y fram ework, Parliam ent int ervent ions on t he agreem ent s on m ut ual legal
assist ance and on ext radit ion, as well as on SWI FT, have been m et wit h som e degree of
success insofar as t hey prom ot ed great er t ransparency and insist ed on com pliance wit h
fundam ent al freedom s and right s. Maint aining t his course of act ion would seem t he
opt im um way t o m ake best use of t he EP’s new powers in t his field and m at ch upcom ing
developm ent s. Changes regarding t he conduct of operat ional act ivit ies by JHA agencies in
t hird count ries are less clear- cut . The quest ion here is whet her Art icle 87( 3) should be
considered as having effect in t he field of ext ernal relat ions, and of t he int erface wit h
CSDP, which is t he ot her m ain policy dom ain where t he ordinary legislat ive procedure and
it s correlat es have not been ext ended.
3.3.2.
EU int ernal securit y act ivit ies in t hird count ries: key areas of concern for t he
fut ure
3.3.2.1. The linkage bet ween t he int ernal and ext ernal aspect of securit y in t he cont ext of
COSI and ‘ret urns in int ernal securit y’
The quest ion of t he relat ions bet ween int ernal and ext ernal securit y act ivit ies has recent ly
been opened up in COSI discussions wit h t he t abling of a not e of t he Hungarian
Presidency on “ Tight ening links bet ween t he ext ernal and int ernal aspect s of EU securit y”
( Council docum ent 5620/ 1/ 11) . The r e is a sligh t diffe r e n ce , h ow e ve r , be t w e e n t h is
issu e a nd t h e ove r a ll qu e st ion of t he e x t e r n a lisa t ion of in t e r na l se cu r it y policie s.
The m ain st ake considered in t he docum ent is indeed t he possibilit y for int ernal securit y
act ors t o use CSDP act ivit ies for ‘ret urns in int ernal securit y’. Two relat ed point s are
brought up in t he not e:
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o
The possibilit y of “ [ e] nhancing t he exchange of personal and st rat egic
inform at ion and crim inal int elligence bet ween EU civilian crisis m anagem ent
m issions and relevant EU agencies, nam ely EUROPOL, EUROJUST and
FRONTEX” ( 5620/ 11, p. 2) . Quest ions brought up by t he Hungarian
Presidency not e include t he feasibilit y of exchanging personal dat a bet ween
m issions and agencies, but also of int egrat ing CSDP sources of inform at ion
in t he devising of risk and t hreat assessm ent s, using t he civilian and
m ilit ary analysis capabilit ies of crisis m anagem ent m issions. A long- t erm
aim would t hen be t he int egrat ion of knowledge about securit y in t he
various ‘product s’ of EU securit y agencies, including EUROPOL OCTAs,
SOCTAs and TE- SATs, FRONTEX risk assessm ent s or Sit Cen count ry and
region report s.
o
The possibilit y, accordingly, for int ernal securit y act ors such as COSI or t he
JHA agencies, t o part icipat e in t he planning of CSDP m issions t o st ream line
t he principle of ret urns in int ernal securit y from t he incept ion st age of crisis
m anagem ent m issions.
These perspect ives, of course, are not new. I n Novem ber 2008, t he JHA Council adopt ed
conclusions “ on possible cooperat ion m echanism s bet ween civilian ESDP m issions and
EUROPOL as regards t he m ut ual exchange of inform at ion” ( Council docum ent 15771/ 08) ,
em phasising t he im port ance of im plem ent ing such provisions as soon as possible in t he
cont ext of t he relat ions bet ween EULEX and EUROPOL. A num ber of inform al ‘ret urns’
have also been collect ed over t he years by Sit Cen from ESDP/ CSDP m issions in t he field,
alt hough t he ext ent of t his pract ice is difficult t o assess due t o t his body’s dedicat ion t o
confident ialit y.
The est ablishm ent of links bet ween ext ernal and int ernal securit y would seem t o be
underway as far as Brussels act ors are concerned. COSI adopt ed in June 2011 a ‘working
m et hod’ regarding t he organisat ion of m eet ings am ong Brussels- based agencies, bodies
and services ( Council docum ent 10715/ 11) . The m et hod foresees:
o
The organisat ion of a quart erly int er- inst it ut ional inform at ion m eet ing
bet ween Council, Com m ission and EEAS. The m eet ing would include
represent at ives from t he different preparat ory bodies of t he Council
involved in CSDP and int ernal securit y m at t ers ( e.g. PSC and COSI ) , t he
General Secret ariat of t he Council and Com m ission DGs ( HOME, JUST and
ot hers if needed) , as well as t he EEAS and possibly ot her act ors such as t he
CTC. The purpose of t he m eet ing is m ainly organisat ional, involving t he
preparat ion of agenda and exchange of inform at ion about past and
upcom ing m eet ings, t he organisat ion of furt her j oint m eet ings bet ween
Council bodies in charge of securit y issues, and relat ions wit h t he European
Parliam ent . The m eet ing would have officially no decision- m aking powers.
o
The organisat ion of j oint m eet ings bet ween Council preparat ory bodies on
t opical securit y issues, on t he m odel of t he first PSC- COSI m eet ing t hat
t ook place on 1 June 2011, wit h possible present at ions from t he
Com m ission and t he EEAS. Besides PSC- COSI m eet ings, bodies under
considerat ion would involve CI VCOM and t he COSI Support Group, PROCI V
( civil prot ect ion) and JAI EX ( Ext ernal JHA counsellors) , t he Council working
group on t errorism ( COTER) wit h t he Terrorism Working Group ( TWG) and
possibly t he CTC, and JAI EX m eet ings wit h t he various geographical
preparat ory bodies in charge of ext ernal relat ions ( e.g. COMAG/ MAMA,
COEST, COWEB, et c) .
o
The select ion of key t hem es of com m on concerns t o int ernal and ext ernal
securit y pract it ioners. Tent at ive t hem es ident ified by t he Hungarian
presidency include t errorism , serious and organised crim e as well as nat ural
and m an- m ade disast ers.
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There are t wo quest ions t o address here. Fir st ly, sh ou ld t h e se policy or ie n t a t ion s be
con side r e d a s a lin k a ge be t w e e n t w o dist in ct policy dom a ins, or a s a pr oce ss of
e n t a n gle m e n t , w h ich e na ble s a de gr e e of ‘colon isa t ion ’ of e x t e r n a l se cur it y by
in t e r na l se cu r it y pr a ct it ion e r s? The second quest ion concerns oversight . The issue,
here, lies as m uch wit h account abilit y and t ransparency as wit h concerns for t he
com pliance of such act ivit ies wit h legal obligat ions in t he field of fundam ent al freedom s
and right s. I nt ernal securit y and CSDP are t he t wo key EU policy dom ains t hat have been
m aint ained out of t he ordinary dom ain of EU law- and policy- m aking. I t is where t he
Union’s syst em of checks and balances rem ains t he weakest . The m onit oring of act ivit ies
involving ‘ret urns in int ernal securit y’, in t his regard, is a clear gap t hat should be
addressed, all t he m ore since t he ‘linkage’ of CSDP and int ernal securit y is in t he process
of being form alised. On e poin t of e n t r y, he r e , w ou ld be t o in sist on ha vin g t r u ly
in t e r - in st it u t iona l qua r t e r ly infor m a t ion m e e t in gs t h a t w ou ld n ot j u st discu ss
r e la t ion s w it h t h e Eu r ope a n Pa r lia m e n t , bu t a ct ua lly involve r e pr e se n t a t ive s
fr om t he va r iou s Com m it t e e s ( ce n t r a lly t h e LI BE Com m it t e e a nd Com m it t e e on
For e ign Affa ir s) . This can be j ust ified on t he basis of t he provisions on inform at ion of
t he EP laid down in Art icle 87( 3) TFEU, and would be wit hout prej udice t o t he provisions
on CFSP/ CSDP and police cooperat ion in t he Treat ies, since t he int er- inst it ut ional m eet ing
does not have any decision- m aking powers.
3.3.2.2.
The redefinit ion of relat ions wit h neighbouring count ries in t he field of freedom ,
securit y and j ust ice
As m ent ioned above, neighbouring count ries have been t oget her wit h candidat e count ries
key t arget s in t he ext ernalisat ion of EU int ernal securit y policies, whet her t hrough t he
act ivit ies of JHA agencies or t hrough t echnical assist ance proj ect . While purport ed t o
include t he full range of policies included in t he EU AFSJ, a m aj or part of t hese init iat ives
have focused on t he securit y aspect . Engagem ent wit h neighbouring count ries has for
inst ance been an im port ant com ponent in t he work of FRONTEX. Wit hin t he scope of t he
neighbourhood, t he agency has ent ered int o working arrangem ent s wit h Ukraine,
Moldova, Georgia and Belarus, and wit h count ries t hat wield significant influence in t he
area, nam ely Russia and Turkey. As of February 2011, FRONTEX report s t hat it is at
various st ages of negot iat ions wit h Libya, Morocco and Egypt , and wit h count ries in t he
close vicinit y of t he EU neighbourhood, nam ely Senegal, Maurit ania and Nigeria.
The focalisat ion of ext ernal EU AFSJ act ivit ies on securit y has com e under harsh crit icism
in t he past few m ont hs in t he light of t he event s in Tunisia, Egypt and Libya. The bulk of
t hese crit icism s have involved t he engagem ent of specific Mem ber St at es such as France
and I t aly wit h t he securit y agencies and services of t hese count ries, and t heir react ion t o
t he arrivals on t heir t errit ory of persons fleeing from areas of unrest . I t has t o do, m ore
broadly, wit h t he predom inant concern t hat has inform ed t he policies of t he EU and it s
Mem ber St at es over t he past decade in relat ion t o neighbouring count ries, nam ely
st abilit y. One key quest ion here is whet her t he use of init iat ives such as t he European
neighbourhood policy as a channel for securit y act ivit ies is polit ically sound. I n a recent
com m unicat ion, t he European Com m ission and t he High represent at ive advocat e for a
‘new approach’ t o t he neighbourhood in light of recent developm ent s, which focalises on
building and consolidat ing ‘healt hy dem ocracies’. I n t he m eant im e, however, t he JHA
Council has insist ed in it s June 2011 conclusions on “ enhancing t he links bet ween int ernal
and ext ernal aspect s of count er- t errorism ” t hat t he EEAS and t he Com m ission “ t ake a
coordinat ed and coherent approach t owards t he st rat egic and m ult iannual indicat ive
program m ing of t he EU ext ernal assist ance inst rum ent s such as t he Developm ent
Cooperat ion I nst rum ent ( DCI ) and t he European Developm ent Fund ( EDF) ” and “ t ake int o
considerat ion t he assessm ent of t he t errorist t hreat when planning t he allocat ion of
funding from t he European Neighbourhood Policy I nst rum ent ” ( ENPI ) ( Council Docum ent
11075/ 11, p. 9) .
This aspect of t he ext ernal relat ions challenge in t he field of int ernal securit y can be m et
in t wo ways. First ly, t here is cle a r ly a n e e d for m on it or ing t h e a r r a nge m e n t s a n d
a gr e e m e n t s con clu de d by EU a ge n cie s a n d bodie s w it h t h ir d cou n t r ie s in t h is
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a r e a – w it h a n e m ph a sis on t h e a ct ivit ie s of EUROPOL a n d FRON TEX. The
derogat ion from t he ordinary course of EU law- and policy- m aking est ablished in Art icle
87( 3) does not preclude t he fact t hat t he European Parliam ent and nat ional Parliam ent s
should be kept inform ed of such developm ent s. Addit ionally, t he use of hearings such as
t he ones recent ly held by t he LI BE Com m it t ee on EU Count er- t errorism policy ( April 2011)
or on dem ocrat ic account abilit y in t he AFSJ ( Oct ober 2010) organised t oget her wit h
nat ional parliam ent s would ensure a degree of scrut iny on t hese quest ions. Secondly, t he
EP holds t he possibilit y as budget ary aut horit y t o decide on t he priorit ies of t he EU’s
ext ernal assist ance inst rum ent s such as t he DCI , EDF and ENPI and t heir im plem ent at ion
by t he European Com m ission. M a k ing su r e t h a t t h e n e w pr ior it ie s a dopt e d by t h e
EEAS a n d t h e Com m ission for n e ighbou r in g cou n t r ie s a r e a de qu a t e ly fun de d is
on e w a y t o se e t ha t a ll policy a r e a s in t h e AFSJ a r e pu r sue d in r e la t ion s w it h
t h ir d cou nt r ie s.
3.3.3.
3.3.3.1.
The im plicat ions of t hird count ry securit y policies for EU fundam ent al freedom s
and right s
Requirem ent s of securit y cooperat ion wit h t hird count ries and lim it at ions of
right s
Securit y cooperat ion wit h t he Unit ed St at es has clearly placed t he heaviest st rain on EU
policies in t he field of freedom and j ust ice in past years. The ent ry int o force of t he Lisbon
Treat y has t ransform ed t he legal and inst it ut ional environm ent where t his cooperat ion is
unfolding, but est ablished policy pat t erns appear t o cont inue wit h very lit t le changes. This
is usefully illust rat ed by a recent cont roversy raised by t he legal service of t he European
Com m ission in relat ion t o t he PNR agreem ent current ly negot iat ed by t he services of DG
Hom e wit h t he US. I n a let t er dat ed 18 May 2011, t he legal service expressed “ grave
doubt s as t o [ t he draft agreem ent ’s] com pat ibilit y wit h t he fundam ent al right t o dat a
prot ect ion” ( Com m ission docum ent SJ.1( 2011) 603245) . I t quest ioned t he scope of t he
agreem ent and it s inclusion of m inor crim es, t he ret ent ion period ( which exceeds t he
pract ice est ablished in ot her such agreem ent s) , t he absence of possibilit ies for j udicial
redress, and t he ext ension of t he use of PNR dat a t o include t he purpose of guarant eeing
US border securit y. On t he issue of ret ent ion, t he legal service of t he Com m ission point s
out t hat “ it also represent s alm ost no im provem ent com pared t o t he current EU- US
agreem ent , which t he Parliam ent refused t o approve” ( SJ.1( 2011) 603245, p. 2) . The
draft agreem ent was nonet heless t ransm it t ed by DG Hom e t o t he Council t wo days lat er
( Council docum ent 10453/ 11) .
One issue here concerns t r a n spa r e n cy a nd a ccoun t a bilit y. I t is st riking, for one, t hat
such agreem ent s would be negot iat ed wit h confident ial m andat es t o t he ext ent t hat
( wit hout envisaging full public disclosure) EU bodies wit h a st ake in t he m at t er are not
inform ed of t heir cont ent . I n t he case of t he PNR agreem ent s wit h t he US, Canada and
Aust ralia, for inst ance, t he Art icle 29 Working Part y has had t o rely on a let t er forwarded
on 11 January 2011 t o Com m issioner Malm st röm t o provide input s on t he fundam ent al
right s aspect s of t he issue. Such agreem ent s are not oriously difficult t o m onit or, as t he
‘discovery’ of t he MoU bet ween Canada and t he US on t ransfers of EU PNR dat a during t he
Novem ber 2008 j oint review fully illust rat es. The absence of inform at ion for concerned
bodies and services regarding t he m andat es of negot iat ion com plicat es m onit oring
furt her, and can end up underm ining t he very goals of such agreem ent s. I n t he case of
t he EU- US PNR agreem ent , enhanced t ransparency and m onit oring could also ensure t hat
cont roversies regarding com pliance wit h t he new Treat y- based obligat ions are avoided,
and as such cont ribut e t o t he support of EU inst it ut ions, bodies, offices and agencies by
an open, efficient and independent adm inist rat ion ( as laid out in Art icle 298( 1) TFEU) .
3.3.3.2.
The challenge of im port ing securit y policies from t hird count ries
Securit y cooperat ion wit h t hird count ries can also lead EU aut horit ies t o reconsider t he
conduct of EU int ernal securit y policies. The m ost explicit case, here, is t hat of t he EU
TFTP and EU PNR proposals which are current ly being considered. Bot h init iat ives follow
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from t he requirem ent s of cooperat ion wit h t he US, which, as dem onst rat ed previously,
have t hem selves fuelled a num ber of cont roversies am ong t he EU inst it ut ions over
quest ions of privacy and dat a prot ect ion in part icular.
The idea of an EU TFTP was init ially discussed in t he European Parliam ent resolut ion of 17
Sept em ber 2009, which “ not es t hat it m ay be useful for t he Com m ission t o evaluat e t he
necessit y of set t ing up a European TFTP” 243 , am idst concerns for t he prot ect ion of t he
fundam ent al freedom s and right s of EU cit izens. The EU Count er- Terrorism Coordinat or
t ook t he not ion up a m ont h lat er, albeit in different t erm s: concerned wit h t he possibilit ies
“ t o im prove t he way in which Mem ber St at es are feeding inform at ion int o EUROJUST and
EUROPOL” , his Novem ber 2009 discussion paper t o t he JHA Council and European Council
suggest s t hat t he idea of an EU TFTP, t oget her wit h an EU PNR syst em , should be
pursued. “ An added benefit of developing our own European PNR ( or even TFTP) m odels
would be t he developm ent of a m ore equal part nership wit h t he US” , concludes t he
paper. 244 Council Decision 2010/ 412/ EU on t he conclusion of t he EU- US TFTP agreem ent
calls upon t he Com m ission “ t o subm it t o t he European Parliam ent and t o t he Council, no
lat er t han one year from t he dat e of ent ry int o force of t he Agreem ent , a legal and
t echnical fram ework for t he ext ract ion of dat a on EU t errit ory” ( Art icle 2) . 245 The
legislat ive roadm ap subm it t ed by t he European Com m ission in Oct ober 2010 is not
part icularly det ailed, but argues in part icular t hat t he rat ionale for a European TFTP would
be for t he current syst em “ t o be replaced wit h one where t he sending of bulk dat a can be
replaced wit h m ore specific, t arget ed inform at ion. For t hat t o be possible, a European
syst em for collect ing and analysing t he financial m essaging dat a will be required” . 246
Two quest ions can be raised wit h regard t o t hese developm ent s. First ly, sh ou ld t h e EU’s
in t e r na l se cu r it y policie s be dr ive n by con side r a t ion s of diplom a t ic com pe t it ion ?
The developm ent of a m ore equal part nership wit h t he US, which is one of t he concerns
expressed by t he CTC, m ight be obt ained t hrough ot her m eans t han t he replicat ion of
U.S. hom eland securit y policies, for exam ple by prom ot ing t he EU policies relat ed t o t he
right t o dat a prot ect ion and t he right t o privacy. Secondly, is it possible t o de ve lop
a ddit ion a l ca pa cit ie s for t h e colle ct a n d pr oce ssin g of pe r sona l da t a for in t e r na l
se cu r it y pu r pose s in t h e na m e of t h e pr ot e ct ion of fu n da m e n t a l r igh t s a nd
fr e e dom s? The European Com m ission’s current roadm ap fram es t he creat ion of a
European TFTP as a prot ect ive m easure, which would ensure t hat only cust om - t ailored
inform at ion is t ransferred t o t he US aut horit ies. Bu t t h is ‘t a r ge t in g’ w ill on ly t a k e
pla ce a ft e r t h e “fina n cia l m e ssa ging da t a of a la r ge por t ion of popu la t ion s bot h
w it h in t h e Un ion a nd a br oa d” ( t o cit e t he Com m ission ’s w or ds) is colle ct e d a nd
pr oce sse d. As it is envisaged t hat EUROPOL would be put in charge of t he European
TFTP, such a m easure would in addit ion furt her reinforce t he predom inance of t his
agency, and widen it s access t o personal dat a. The fact t hat t he processing will t ake place
on EU t errit ory will cert ainly provide m ore legal cert aint y and guarant ees t o EU cit izens,
but t here is nonet heless a need t o address t he various pressing quest ions t hat have been
raised in t his st udy, including on t he issue of oversight and of t he ‘t echnological
challenge’, before considering t he est ablishm ent of a European TFTP. I n t he m eant im e, as
one analyst point s out , cooperat ion wit h t he Unit ed St at es has enabled t he considerat ion
of an init iat ive which European int ernal securit y agencies, bodies and services would have
243
European Parliam ent ( 2009) , Resolut ion of 17 Sept em ber 2009 on t he envisaged int ernat ional
agreem ent t o m ake available t o t he Unit ed St at es Treasury Depart m ent financial paym ent
m essaging dat a t o prevent and com bat t errorism , P7_TA( 2009) 0016, 17.9.2009.
244
Council of t he European Union ( 2009) , “ EU Count er- Terrorism St rat egy – discussion paper” ,
15359/ 1/ 09, 26.11.2009, p. 7.
245
Council Decision of 13 July 2010 on t he conclusion of t he Agreem ent bet ween t he European
Union and t he Unit ed St at es of Am erica on t he processing and t ransfer of Financial Messaging Dat a
from t he European Union t o t he Unit ed St at es for t he purpose of t he Ter rorist Finance Tracking
Program m e, OJ L195/ 3, 27.7.2010.
246
European Com m ission ( 2010) , European Terrorist Financing Tracking Program m e ( European
TFTP) , 2011/ HOME/ 03 – Version No.2, 10.2010, p. 1.
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considered unt hinkable a few years ago. 247 This developm ent furt her highlight s t he need
t o ext end considerat ions relat ed t o policy assessm ent and oversight fully t o t he ext ernal
dim ension of t he EU’s int ernal securit y policies.
247
A. Am icelle ( 2011) , “ The Great ( Dat a) Bank Robber y” , op. cit .
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CON CLUSI ON
The key quest ion facing t he int ernal securit y policies of t he European Union following t he
ent ry int o force of t he Lisbon t reat y and in t he cont ext of t he devising of an EU I nt ernal
Securit y st rat egy is t he possibilit y of change.
Change does not involve so m uch t he t ension bet ween nat ional sovereignt y, of which
securit y would be a key com ponent , and European int egrat ion. I t is, rat her, about t aking
st ock of t he new inst it ut ional cont ext and t he st ream lining of t he policies and procedures
init ially developed in t he cont ext of t he t hird pillar int o t he ordinary process of policy and
law- m aking.
As t his st udy has highlight ed, current developm ent s relat ed t o t he EU- I SS and int ernal
securit y policies put t his capacit y for change int o quest ion. The issue, as suggest ed, is not
a reluct ance t o perform t he t ransform at ions required by t he fram ework of t he Treat ies,
but t he act ual capacit y t o alt er est ablished courses of act ion.
Som e elem ent s suggest t hat t here is pot ent ial for change. The split t ing of DG JLS, for
one, has sent a st rong signal t hat inst it ut ional fram eworks originally est ablished in t he
cont ext of t he Schengen cooperat ion and t he Maast richt t reat y could be alt ered. Ot her
developm ent s, for exam ple in t he est ablishm ent of relat ions bet ween t he FRA and JHA
agencies, or in t he fact t hat t he views of t he European Parliam ent are increasingly t aken
int o account , const it ut e sim ilar indicat ions.
This dynam ic of change has arguably t o be accom panied and nurt ured. The old habit s of
work as it was conduct ed under t he t hird pillar rem ain st rongly root ed. As in t he case of
t he est ablishm ent of COSI and t he adopt ion of t he EU “ policy cycle” in int ernal securit y
m at t ers, t his persist ence can be accom panied by new set s of procedures and inst it ut ional
m echanism s.
Oversight is a cent ral com ponent for sust aining change.
Account abilit y and t ransparency, as a key com ponent of oversight , are not only
except ional dem ands, or concessions t o civil libert ies advocat es. They can cont ribut e t o
bet t er assessm ent of init iat ives and policies. A good illust rat ion relat es t o t he concerns
over t he qualit y and m et hodology of t he analyses and assessm ent s t hat have becom e so
im port ant in t he conduct of “ int elligence- led” securit y policies. Account abilit y and
t ransparency, here, can support ext ernal and independent evaluat ions.
By t he sam e t oken, t he const ant involvem ent of t hose agencies and bodies which are
current ly included only at t he m argin of int ernal securit y policies, such as t he EDPS and
Art icle 29 Working Part y, t he FRA and t he Om budsm an, could bring about significant
added value t o t he policy process it self. St ream lining oversight would allow for policies
t hat are bet t er assessed and rout inely exam ined. Such work requires capabilit ies, but also
dem ands t hat t hese different agencies and bodies operat e m ore closely t oget her.
The European Parliam ent , t oget her wit h nat ional parliam ent s, faces m ore dem ands in t his
regard. This is coherent wit h t he new possibilit ies t hat it has obt ained under t he new
Treat y fram ework. I n a num ber of occasions, part icularly on issues such as TFTP and PNR
agreem ent s, it s involvem ent has proven crit ical. The challenge is t o t urn t he result s
obt ained in t hese specific cases in a regular act ivit y.
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RECOM M EN D ATI ON S
The following recom m endat ions t ake st ock of t he findings of t he st udy and are all direct ed
t owards a great er involvem ent of t he European Parliam ent at all st ages of t he policy
process in t he field of EU int ernal securit y.
1 . Th e I nvolve m e n t of Th e Eu r ope a n Pa r lia m e n t : t h e Pr e - Re qu isit e s
The recom m endat ions t hat follow im ply t hat som e pre- requisit es are in place, such as an
efficient cooperat ion bet ween t he European Parliam ent and nat ional parliam ent s and t he
est ablishm ent of int er- parliam ent ary oversight st ruct ures.
On t hat m at t er, a perm anent int er- parliam ent ary body/ com m it t ee should be set up
dealing specifically wit h EU regulat ory agencies. This body should be run by t he European
Parliam ent ’s LI BE Com m it t ee, wit h t he part icipat ion of ot her relevant com m it t ees, and
including t he represent at ives of corresponding com m it t ees from t he nat ional parliam ent s.
The int er- parliam ent ary body would organise regular m eet ings and hearings focused on
t he EU Hom e Affairs agencies. I t could have t he possibilit y t o set up ‘confident ial working
groups’ assessing t he secret / non publicly disclosed operat ing plans, risks analyses and
t hreat assessm ent s and working arrangem ent s wit h t hird count ries and ot her act ors
const it ut ing t he basis of t heir operat ions in order t o exam ine t heir proport ionalit y
( including from a budget ary point of view) , soundness and added value.
2 . Th e de ve lopm e n t of a n e vide n ce - ba se d EU policy : a
bu dge t a r y a r bit r a t ion
con dit ion for
Ensuring t hat t he EU’s policy in t he field of count er- t errorism and organised crim e is
evidence- based and support ed by t he best available t hreat assessm ent s is crit ical for t he
European Parliam ent in order t o discuss budget priorit ies.
The m et hodology used t o develop docum ent s such as t hreat assessm ent report s, policyplanning docum ent s should be m ade publicly available t o enable ext ernal and independent
reviewing and assessm ent . These docum ent s m ust receive closer scrut iny and
supervision. There exist s a significant degree of expert ise pooled am ong t he research
proj ect s funded under t he EU’s 6 t h and 7 t h Fram ework Program m es t o ensure an ext ernal
evaluat ion of t he highest qualit y. Ot her bodies of t he European Union have relied on such
ext ernal and independent support and review in t his area.
The quest ion of knowledge is furt herm ore not lim it ed t o t he provision of expert ise t o
int ernal securit y agencies, bodies and services, be it ext ernal and independent . An
evidence- based EU policy in t he field of int ernal securit y can only benefit from a pluralist ic
and cont radict ory debat e. There are a num ber of t ools available t o t he EU inst it ut ions t o
ensure t hat such a debat e t akes place. These include t he briefing not es and st udies t hat
can be request ed by t he European Parliam ent , but also t he research proj ect s funded
under t he EU’s Fram ework Program m es. Despit e t he fact t hat in recent years, t he
handling of t he lat t er wit h regard t o securit y research, and especially of t he FP7 Securit y
Them e ( FP7- ST) , has becom e a source of concern, t he priorit ies and funding of research
in t he field of securit y research const it ut e areas where t he European Parliam ent has a
st rong capacit y for int ervent ion t hrough it s powers as budget ary aut horit y.
As underlined by t he LI BE Rapport eur on t he Count er- Terrorism Policy, a proper
evaluat ion of t en years of count er- t errorism policies would provide t he basis for an
evidence- based, needs- driven, coherent and com prehensive EU count er- t errorism
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st rat egy. A panel of independent expert s could carry such an in- dept h and com plet e
appraisal. Such panel should not only set out clearly t he result s of t he policies in t erm s of
increased securit y in Europe, but also include a full overview of t he accum ulat ed im pact of
count er- t errorism m easures on civil libert ies. The European Parliam ent needs t o have a
specific budget for independent expert s and scholars, in t he sam e way t hat t he US
Congress does for inst ance. Funding select ed academ ic net works or cent res of excellence
following different policy areas in t he dom ain of securit y, freedom and m obilit y and from
different disciplinary perspect ives would be an efficient way t o deliver independent input s.
The corollary of a broader evidence base and m ore pluralist ic knowledge base in t he field
of int ernal securit y is access t o inform at ion. All Mem ber St at e nat ional Parliam ent s have,
t o one degree or anot her, developed m echanism s of oversight for policies involving
classified m at erials, and t his should be a priorit y for t he European Parliam ent as well.
As an addit ion t o t his m onit oring of t he knowledge channels t hat is required for sound
budget ary arbit rat ions, t he clarificat ion of t he role of som e EU agencies is needed in order
t o avoid t ask duplicat ions/ overlapping and unnecessary budget expenses. Therefore, t he
role, t asks, m andat es of t he EU CTC, OLAF, ENI SA, in relat ion t o t he I SS need t o be
reviewed, and if need be clarified. The exam inat ion of t he role of several com ponent s of
t he Council working st ruct ures could also be useful in t his regard. The European
Parliam ent could for inst ance cont ribut e t o t he assessm ent of t he necessit y of CATS and
SCI FA, which is supposed t o t ake place from 1 January 2012.
3 . En su r ing pa r lia m e n t a r y ove r sigh t of EU policy pr oce ss in t h e fie ld of
in t e r na l se cu r it y
Furt her m onit oring of EU council st ruct ures, first ly, is highly needed, specifically in relat ion
t o COSI . A good reason for t his is t he exclusion of operat ional cooperat ion m at t ers from
t he ordinary legislat ive procedure est ablished in Art icle 87( 3) TFEU. This provision
weakens t he syst em of checks and balances bet ween t he EU inst it ut ions, insofar as
Parliam ent is only “ consult ed” as opposed t o ordinary circum st ances where it is on equal
foot ing wit h t he Council. The need t o furt her specify m echanism s t hrough which European
Parliam ent and nat ional Parliam ent s are kept “ inform ed” and how t heir com m ent s can be
t aken on board m ust be a priorit y for t he EP in relat ion t o operat ional cooperat ion m at t ers
in int ernal securit y. Such m echanism s could draw from Art icle 70 TFEU on im part ial
evaluat ion of EU policies, Art icle 71 TFEU on COSI and Art icle 6( 2) of t he COSI Decision.
The right of t he EP t o request at any t im e t hat a represent at ive of EUROPOL t o appear
before t he EP allows m em bers of t he European Parliam ent t o ask quest ions and t o st age
debat es when appropriat e. This right should be used m ore frequent ly and be ext ended t o
t he equivalent persons at Euroj ust and Front ex.
Furt herm ore, Art icle 71 TFEU provides a legal basis for t he EP t o act ively st age hearings.
Hearings can be based on Rule 193( 2) of t he European Parliam ent ’s rules of procedures.
Regular hearings could prom ot e t he new syst em of checks and balances int roduced by t he
Lisbon Treat y and cont ribut e t o t he regular m onit oring of act ivit ies in t he field of int ernal
securit y. For m ore prom inent cases, t here are t wo possibilit ies:
a) Rule 184 of t he EP’s rules of procedure provides for t he creat ion of special
com m it t ees, on a proposal from t he Conference of President s. The t erm of office of
such a com m it t ee m ay not exceed 12 m ont hs, unless decided ot herwise by
Parliam ent upon it s expiry. One possibilit y would be t o set up a special com m it t ee
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wit h powers t o m onit or int ernal securit y act ivit ies and see t hat all t he agencies,
bodies and services involved inform t he EP.
b) Tem porary com m it t ees of inquiry: part icular pot ent t ool wit h a t reat y base ( Art icle
226 TFEU, Rule 185 of t he EP’s rules of procedure) . The EP can convene such
com m it t ees t o invest igat e alleged cont ravent ions or m aladm inist rat ion in t he
im plem ent at ion of EU law, except where t he alleged fact s are already being
invest igat ed by a court .
The use of hearings such as t he ones held over t he past year by t he LI BE Com m it t ee on
EU Count er- t errorism policy or on dem ocrat ic account abilit y in t he AFSJ organised
t oget her wit h nat ional parliam ent s est ablish an addit ional way of scrut iny on t hese
quest ions.
4 . En su r ing pa r lia m e n t a r y ove r sigh t of EU se cu r it y a ge n cie s in t h e fie ld of
da t a pr ot e ct ion
The shift t owards a m ore int elligence- driven logic relying on int ensive dat a processing in
t he work of EUROJUST, EUROPOL and FRONTEX deserves close scrut iny and a st rict er
fram ework of oversight .
Any process of personal dat a should receive full at t ent ion from t he EP. The m odalit ies
t hrough which access t o inform at ion syst em s are grant ed, dat a is exchanged and st ored
should be firm ly m onit ored and guarant eed. The LI BE Com m it t ee m ust ensure t hat t he
provision t hat special cat egories of dat a concerning racial or et hnic origin, polit ical
opinions, religious or philosophical beliefs, part y or t rade union m em bership, sexual
orient at ion or healt h shall not be processed and saved unless when t his is absolut ely
necessary and proport ionat e for t he purpose of a specific case and subj ect t o specific
safeguards.
Under t he changing of circum st ances provided by t he Lisbon Treat y ( co- decision) , t he
European Parliam ent can now be m ore involved in dat a prot ect ion issues and should
receive report s prepared by t he Joint Supervisory Bodies of EUROJUST and EUROPOL. The
revision of t he EU legal fram ework for t he right t o dat a prot ect ion would be a good
occasion t o raise t his quest ion. On t hat m at t er, t he spirit of t he Lisbon Treat y and t he
‘depillarisat ion’ process should lead t o t he suppression of Supervisory Bodies per
agencies. Supervisory bodies wit hin EU agencies should be at t he very least be organised
int o a net work, and a com m on supervision syst em under t he EDPS should be est ablished.
The EP should call for m ore adequacies of t he review m echanism s in place. Likewise, t he
exist ence of t wo legal fram eworks in EU dat a prot ect ion law should be reconsidered.
The quest ion of t he processing of personal dat a also calls for furt her m onit oring in t he
evaluat ion and assessm ent of t he pract ical im plem ent at ion of t echnological schem es for
int ernal securit y. For inst ance, if t he idea of a “ dialogue” bet ween t he public and privat e
sect ors on securit y and t echnology det ailed in t his st udy, involving all t he concerned
part ies, is t o be pursued, it should be done from a fully t ransparent , well- assessed and
account able process.
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5 . Pr om ot ing a “sha r e d cu lt ur e ” of Fu nda m e n t a l Righ t s in t he Eu r ope a n
in t e r na l se cu r it y a ge n cie s a n d policie s
As det ailed in t he st udy, t here are grounds t o include agencies and bodies in charge of
fundam ent al freedom s and right s in t he EU policies and st rat egies in t he field of int ernal
securit y. There are for inst ance solid grounds for involving bodies such as t he FRA or t he
EDPS in t he planning of operat ional priorit ies undert aken by COSI . The possibilit y of legal
act ion over operat ional act ivit ies coordinat ed by t he EU, and t he relat ed need t o ensure
t hat fundam ent al freedom s and right s are upheld in t hese act ivit ies gives t he freedom
agencies m ore m eans t o int ervene in t he int ernal securit y debat e. Furt herm ore, FRA
opinions on JHA m at t ers should becom e m ore syst em at ic, and t he FRA should include
considerat ions on crim inal m at t ers in it s annual report s. The FRA should likewise m ake
use of it s powers in t he post - Lisbon cont ext t o assess t he I SS from a fundam ent al right s
perspect ive. The expansion of it s act ivit ies as regards independent and obj ect ive
evaluat ion ( not only research act ivit ies) of EU policies covering in part icular t he dom ains
of police cooperat ion and crim inal j ust ice, could be considered. Finally, a m ore int egrat ed
cooperat ion and coordinat ion bet ween EU ( freedom ) agencies, such as t he European
Agency for Fundam ent al Right s ( FRA) , t he European Dat a Prot ect ion Supervisor ( EDPS) ,
t he European Om budsm an, should be brought forward.
The st rengt hening of t he links bet ween EU agencies in charge of fundam ent al right s and
freedom s should be accom panied by furt her effort s t o prom ot e j oint endeavours wit h EU
JHA agencies. The involvem ent of t he FRA as t he fift h JHA agency is an im port ant
developm ent . Furt her links could be envisaged wit h CEPOL for inst ance. Hum an Right s are
specifically m ent ioned as a t raining priorit y in t he College’s st rat egy for t he next five
years. A real im provem ent should be t o envisage coordinat ion m echanism s bet ween
CEPOL and bodies such as t he EDPS and t he FRA, which could cert ainly cont ribut e t o t he
devising of com m on curricula alongside t he work already done on j udicial m at t ers wit h
EUROJUST. CEPOL could becom e a cent ral t raining place for t he role of hum an right s in
j uridical and operat ional m at t ers. Finally, CEPOL could also act as a “ prospect ive” cent re
invest igat ing t rends which are not t he ones t hat Europol and Euroj ust focus on, not ably on
issues relat ed t o securit y policies and hum an right s.
The new legal fram ework int roduced by t he Lisbon Treat y im plies t hat European int ernal
securit y professionals will regularly have t o assess how t heir act ivit ies relat e t o t he
Chart er of Fundam ent al Right s and t he case- law of t he ECJ. This opens int erest ing pat hs
t hat could be prom ot ed by t he European Parliam ent in order t o build up a “ shared cult ure”
of fundam ent al right s in EU securit y issues.
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_____ ( 2010) , “ ‘Joint Operat ion RABI T 2010’ – FRONTEX Assist ance t o Greece’s Border
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_____ ( 2005) , Securit y and social cohesion: Deconst ruct ing fear ( of ot hers) by going
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_____ ( 2005) , Hum an right s and t he fight against t errorism –The Council of Europe
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_____ ( 2007) , Conclusions of t he Council of Europe conference “ Why t errorism ?
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_____ ( 2008) , Council of Europe’s Whit e Paper on I nt ercult ural Dialogue, Council of
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_____ ( 2001) , Decision 2001/ 886/ JHA on t he developm ent of t he second generat ion
Schengen I nform at ion Syst em ( SI S I I ) , OJ L 328/ 1, 13.12.2001
_____ ( 2001) , Council Regulat ion ( EC) No 2424/ 2001 of 6 Decem ber 2001 on t he
developm ent of t he second generat ion Schengen I nform at ion Syst em ( SI S I I ) , OJ L
328/ 4, 13.12.2001.
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_________________________________________________________________________________________
_____ ( 2005) , Convent ion bet ween t he Kingdom of Belgium , t he Federal Republic of
Germ any, t he Kingdom of Spain, t he French Republic, t he Grand Duchy of
Luxem bourg, t he Kingdom of t he Net herlands and t he Republic of Aust ria on t he
st epping up of cross- border cooperat ion part icularly in com bat ing t errorism , crossborder crim e and illegal m igrat ion, Prüm , Germ any, 27 May 2005, 10900/ 05,
7.7.2005.
_____ ( 2001) , Com m on Posit ion of 27 Decem ber 2001 on t he applicat ion of specific
m easures t o com bat t errorism ( 2001/ 931/ CFSP) , OJ L344/ 93, 28.12.2001
_____ ( 2001) , Regulat ion ( EC) No. 2580/ 2001 of 27 Decem ber 2001 on specific
rest rict ive m easures direct ed against cert ain persons and ent it ies wit h a view t o
com bat ing t errorism , OJ L344/ 70, 28.12.2001
_____ ( 2002) , Provisional m anagem ent solut ion for t he European Police College ( CEPOL) ,
6603/ 02, 26.2.2002.
_____ ( 2003) , Three- year report on t he operat ion and fut ure of t he European Police
College, 15722/ 03, 9.12.2003.
_____ ( 2003) , European Securit y St rat egy, 15895/ 03, 8.12.2003.
_____ ( 2003) , Three year report on t he operat ion and fut ure of t he European Police
College, 15722/ 03, 9.12.2003.
_____ ( 2004) , Three- year report on t he operat ion and t he fut ure of t he European Police
College, 5136/ 04, 8.1.2004.
_____ ( 2004) , Decision 2004/ 566/ JHA of 26 July 2004 am ending Decision 2000/ 820/ JHA
est ablishing a European Police College ( CEPOL) , OJ L251/ 19, 27.7.2004.
_____ ( 2004) , Decision 2004/ 567/ JHA of 26 July 2004 am ending Decision 2000/ 820/ JHA
est ablishing a European Police College ( CEPOL) , OJ L251/ 20, 27.7.2004
_____ ( 2004) , Three year report on t he operat ion and fut ure of t he European Police
College, 5880/ 04, 2.2.2004.
_____ ( 2005) , EU Sit Cen Work Program m e, 5244/ 05, 11.1.2005 ( declassified
20.12.2005) .
_____ ( 2004) , Council Decision of 8 June 2004 est ablishing t he Visa I nform at ion Syst em
( VI S) ( 2004/ 512/ EC) , OJ L213/ 5, 15.6.2004.
_____ ( 2004) , Adopt ion of a proposal for a Council Decision est ablishing t he European
Police College ( CEPOL) , 10534/ 05, 24.6.2005.
_____ ( 2004) , Regulat ion ( EC) No 871/ 2004 of 29 April 2004 concerning t he int roduct ion
of som e new funct ions for t he Schengen I nform at ion Syst em , including in t he fight
against t errorism ( OJ L162/ 29, 30.04.2004) .
_____ ( 2005) , Decision on som e new funct ions for t he Schengen I nform at ion Syst em ,
including in t he fight against t errorism ( OJ L68/ 44, 15.3.2005) .
_____ ( 2005) , Council and Com m ission Act ion Plan im plem ent ing t he Hague Program m e
on st rengt hening freedom , securit y and j ust ice in t he European Union, 9778/ 2/ 05,
10.6.2005.
_____ ( 2005) , Decision 2005/ 681/ JHA of 20 Sept em ber 2005 est ablishing t he European
Police College ( CEPOL) and repealing Decision 2000/ 820/ JHA, OJ L256/ 63,
1.10.2005.
_____ ( 2005) , A St rat egy for t he Ext ernal Dim ension of JHA: Global Freedom , Securit y
and Just ice, 14366/ 05, 11.11.2005.
_____ ( 2005) , Fram ework Decision 2006/ 960/ JHA of 18 Decem ber 2006 on sim plifying
t he exchange of inform at ion and int elligence bet ween law- enforcem ent aut horit ies of
t he Mem ber St at es of t he European Union, OJ L386/ 15, 25.11.2005
_____ ( 2006) , Two Year Report on t he Operat ion and Fut ure of t he European Police
College, 5727/ 06, 7.2.2006.
_____ ( 2007) , Council Regulat ion ( EC) No 168/ 2007 of 15 February 2007 est ablishing a
European Union Agency for Fundam ent al Right s, OJ L53/ 1, 22.2.2007.
124
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__________________________________________________________________________________________
_____ ( 2007) , Overview of Sit Cen report s and Polit ical Recom m endat ions, 7261/ 07,
12.3.2007 ( declassified 28.5.2009) .
_____ ( 2008) , Report on t he I m plem ent at ion of t he European Securit y St rat egy –
Providing Securit y in a Changing World, 17104/ 08, 10.12.2008.
_____ ( 2008) , Council Fram ework Decision 2008/ 977/ JHA of 27 Novem ber 2008 on t he
prot ect ion of personal dat a processed in t he fram ework of police and j udicial
cooperat ion in crim inal m at t ers, OJ L350/ 60, 30.12.2008.
_____ ( 2009) , Draft Council Conclusions on an I nform at ion Managem ent St rat egy for EU
I nt ernal Securit y, 16637/ 09, 25.11.2009.
_____ ( 2009) , EU Count er- Terrorism St rat egy – discussion paper, 15359/ 1/ 09,
26.11.2009
_____ ( 2010) , CEPOL St rat egy, 15068/ 10, 18.10.2010.
_____ ( 2010) , Decision of 26 July 2010 est ablishing t he organisat ion and funct ioning of
t he European Ext ernal Act ion Service ( 2010/ 427/ EU) , OJ L201/ 30, 3.8.2010.
_____ ( 2010) , Out com e of proceedings of CATS on 11 February 2010, 6557/ 10,
11.2.2010.
_____ ( 2010) , Draft I nt ernal Securit y St rat egy for t he European Union: “ Towards a
European Securit y Model” , 5842/ 2/ 10, 23.2.2010.
_____ ( 2010) , The St ockholm Program m e – An open and secure Europe serving t he
cit izen, 5731/ 10, 3.3.2010.
_____ ( 2010) , Final report on cooperat ion bet ween JHA Agencies, 8387/ 10, 9.4.2010.
_____ ( 2010) , Council Conclusions on 29 m easures for reinforcing t he prot ect ion of t he
ext ernal borders and com bat ing illegal m igrat ion, 6975/ 10, 1.3.2010.
_____ ( 2010) , Final report and recom m endat ions of Proj ect Group “ Measure 6” ,
7942/ 2/ 11, 6.7.2011.
_____ ( 2010) , St anding com m it t ee on operat ional cooperat ion in int ernal securit y ( COSI )
– Sum m ary of discussions, 14651/ 10, 8.10.2010.
_____ ( 2010) , Decision of 13 July 2010 on t he conclusion of t he Agreem ent bet ween t he
European Union and t he Unit ed St at es of Am erica on t he processing and t ransfer of
Financial Messaging Dat a from t he European Union t o t he Unit ed St at es for t he
purpose of t he Terrorist Finance Tracking Program m e, OJ L195/ 3, 27.7.2010.
_____ ( 2011) , CEPOL five- year report , 7764/ 11, 17.3.2011.
_____ ( 2011) , Report on t he cooperat ion bet ween JHA Agencies in 2010, 5675/ 11,
25.1.2011.
_____ ( 2011) , “ Expansion of t he Joint Sit uat ion Cent re ( Sit Cen) ” , 5626/ 11, 24.1.2011.
_____ ( 2011) , Report on t he cooperat ion bet ween JHA Agencies in 2010, 5675/ 11,
25.1.2011; ( 2011) , Draft Scorecard – I m plem ent at ion of t he JHA Agencies report ,
5676/ 11, 9.4.2010.
_____ ( 2011) , CEPOL five- year report , 7764/ 11, 17.3.2011.
_____ ( 2011) , Report on cooperat ion bet ween JHA Agencies in 2010, 5675/ 11,
25.1.2011.
_____ ( 2011) , JHA agency cooperat ion – Midt erm report January- May 2011 – Act ivit ies
and Key Findings, 10404/ 11, 19.5.2011.
_____ ( 2011) , Guidelines on m et hodological st eps t o be t aken t o check fundam ent al
right s com pat ibilit y at t he Council’s preparat ory bodies, 10140/ 11, 18.4.2011.
Crawford, A. ( ed.) ( 2009) , Crim e Prevent ion Policies in Com parat ive Perspect ive,
Cullom pt on: Willan Publishing.
De Hert P. and R. Bellanova ( 2009) , “ Dat a Prot ect ion in t he area of Freedom , Securit y and
Just ice: A syst em st ill t o be fully developed?” , PE 410.692, European Parliam ent ,
Brussels.
125
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_________________________________________________________________________________________
De Hert , P. and R. Bellanova ( 2011) , “ Transat lant ic Cooperat ion on Travellers’ Dat a
Processing: From Sort ing Count ries t o Sort ing I ndividuals” , Migrat ion Policy
I nst it ut e, Washingt on, D.C..
De Vries, K., R. Bellanova and P. De Hert ( 2010) , “ Proport ionalit y overrides Unlim it ed
Surveillance: The Germ an Const it ut ional Court Judgem ent on Dat a Ret ent ion” ,
CEPS, Brussels.
Direct ive 95/ 46/ EC of t he European Parliam ent and of t he Council of 24 Oct ober 1995 on
t he prot ect ion of individuals wit h regard t o t he processing of personal dat a and on
t he free m ovem ent of such dat a, OJ L281/ 31, 23.11.1995.
Direct ive 2002/ 58/ EC of t he European Parliam ent and of t he Council of 12 July 2002
concerning t he processing of personal dat a and t he prot ect ion of privacy in t he
elect ronic com m unicat ions sect or ( Direct ive on privacy and privacy and elect ronic
com m unicat ions) , OJ L201/ 37, 31.2.2002.
Direct ive 2006/ 24/ EC of t he European Parliam ent and of t he Council of 15 March 2006 on
t he ret ent ion of dat a generat ed or processed in connect ion wit h t he provision of
publicly available elect ronic com m unicat ion services or of public com m unicat ion
net works and am ending Direct ive 2002/ 58/ EC, OJ L105/ 54, 13.4.2006.
Dum it riu, E. ( 2004) , “ The E.U.’s Definit ion of Terrorism : The Council Fram ework Decision
on Com bat ing Terrorism ” , Germ an Law Journal, Vol. 5, No 5, pp. 585- 602.
Edwards, A. and P. Gill ( eds) ( 2003) , Transnat ional Organised Crim e. Perspect ives on
global securit y, Rout ledge, London.
European Com m ission ( 2004) , Proposal for a Council Decision est ablishing t he European
Police College ( CEPOL) as a body of t he European Union, COM( 2004) 623 final,
1.10.2004.
_____ ( 2005) , The Hague Program m e: 10 priorit ies for t he next five years, COM( 2005)
184 final, 10.5.2005.
_____ ( 2005) , A st rat egy on t he ext ernal dim ension of t he area of freedom , securit y and
j ust ice, COM( 2005) 491 final, 12.10.2005.
_____ ( 2005) , Com m unicat ion on im proved effect iveness, enhanced int eroperabilit y and
synergies am ong European dat abases in t he area of Just ice and Hom e Affairs,
COM( 2005) 597 final, 24.11.2005
_____ ( 2005) , Com pliance wit h t he Chart er of Fundam ent al Right s in Com m ission
legislat ive proposals, COM( 2005) 172 final, 27.4.2005.
_____ ( 2006) , I m plem ent ing t he Hague Program m e: t he way forward, COM( 2006) 331
final, 28.6.2006.
_____ ( 2007) , Com m unicat ion on Public- Privat e Dialogue in Securit y Research and
I nnovat ion, COM( 2007) 511 final, 11.9.2007.
_____ ( 2007) , Proposal for a Council Fram ework Decision on t he use of Passenger Nam e
Records ( PNR) for law enforcem ent purposes, COM( 2007) 654, 6.11.2007.
_____ ( 2008) , Annex t o t he Proposal for a Regulat ion of t he European Parliam ent and of
t he Council concerning t he Visa I nform at ion Syst em ( VI S) and t he exchange of dat a
bet ween Mem ber St at es on short st ay visas – ext ended im pact assessm ent ,
SEC( 2004) 1628 final, 28.12.2004.
_____ ( 2008) , Preparing t he next st eps in border m anagem ent in t he European Union,
COM( 2008) 69 final, 13.2.2008.
_____ ( 2008) , Preparing t he next st eps in border m anagem ent in t he European Union,
SEC( 2008) 153 final, 13.2.2008.
_____ ( 2009) , Com m unicat ion on an area of freedom , securit y and j ust ice serving t he
cit izens, COM ( 2009) 262 final, 10.05.2009.
_____ ( 2009) , Moving Europe: EU research on m igrat ion and policy needs, DG Research,
Brussels.
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_____ ( 2009) , Decision det erm ining t he first regions for t he st art of operat ions of t he Visa
I nform at ion Syst em ( VI S) ( 2010/ 49/ EC) , OJ L23/ 62, 27.1.2010.
_____ ( 2009) , I m pact Assessm ent Guidelines, SEC( 2009) 92 final, 15.1.2009.
_____ ( 2009) , Report on progress m ade in developing t he European border surveillance
syst em , SEC( 2009) 1265 final, 24.9.2009.
_____ ( 2009) , Consequences of t he ent ry int o force of t he Treat y of Lisbon for ongoing
int erinst it ut ional decision- m aking procedures, COM( 2009) 665 final, 2.12.2009.
_____ ( 2010) , Legislat ive proposal t o set up Ent ry/ Exit Syst em , JHA/ 2010/ 004, 8.2010.
_____ ( 2010) , The Com m unicat ion from t he Com m ission t o t he European Parliam ent and
t he Council on t he procedures for t he scrut iny of EUROPOL’s act ivit ies by t he
European Parliam ent , t oget her wit h nat ional Parliam ent s ( Brussels, 17.12.2010,
COM( 2010) 776 final) .
_____ ( 2010) , European Terrorist Financing Tracking Program m e ( European TFTP) ,
2011/ HOME/ 03 – Version No.2, 10.2010.
_____ ( 2010) , St rat egy for t he effect ive im plem ent at ion of t he Chart er of Fundam ent al
Right s by t he European Union, COM( 2010) , 573 final, 19.10.2010.
_____ ( 2010) , Overview of inform at ion m anagem ent in t he area of freedom , securit y and
j ust ice, COM( 2010) 385 final, 20.7.2010.
_____ ( 2010) , A com prehensive approach on personal dat a prot ect ion in t he European
Union, COM( 2010) 609 final, 4.11.2010.
_____ ( 2010) , The EU Count er- Terrorism Policy: m ain achievem ent s and fut ure
challenges, COM( 2010) 386 final, 20.7.2010.
_____, ( 2011) , Report from t he Com m ission t o t he EP and t he Council on t he
im plem ent at ion since 2007 of t he Council Fram ework Decision of 13 June 2002 on
t he European arrest warrant and t he surrender procedures bet ween Mem ber St at es,
COM( 2011) 175 final, Brussels, 11.4.2011.
_____ ( 2011) , Evaluat ion report on t he Dat a Ret ent ion Direct ive ( Direct ive 2006/ 34/ EC) ,
COM( 2011) 225 final, 18.4.2011.
_____ ( 2011) , I m plem ent ing Decision of 21 Sept em ber 2011 det erm ining t he dat e from
which t he Visa I nform at ion Syst em ( VI S) is t o st art operat ions in a first region
( 2011/ 636/ EU) , OJ L249/ 18, 27.9.2011.
_____ ( 2011) , Det erm ining t he t echnical and operat ional fram ework of t he European
border surveillance syst em ( EUROSUR) and t he act ions t o be t aken for it s
est ablishm ent , SEC( 2011) 145 final, 28.1.2011.
_____ ( 2011) , Proposal for a Direct ive of t he European Parliam ent and of t he Council on
t he use of Passenger Nam e Record dat a for t he prevent ion, det ect ion, invest igat ion
and prosecut ion of t errorist offences and serious crim e, COM( 2011) 32 final,
2.2.2011.
_____ ( 2011) , Accom panying docum ent t o t he Proposal for a European Parliam ent and
Council Direct ive on t he use of Passenger Nam e Record dat a for t he prevent ion,
det ect ion, invest igat ion and prosecut ion of t errorist offences and serious crim e,
SEC( 2011) 133 final, 2.2.2011.
_____ ( 2011) , Report on t he j oint review of t he im plem ent at ion of t he Agreem ent
bet ween t he European Union and t he Unit ed St at es of Am erica on t he processing
and t ransfer of Financial Messaging dat a from t he European Union t o t he Unit ed
St at es for t he purpose of t he Terrorist Finance Tracking Program , SEC( 2011) 438
final, 17.2.2011.
_____ ( 2011) , A European t errorist finance t racking syst em : available opt ions,
COM( 2011) 429 final, 13.7.2011.
_____ ( 2011) , Sm art borders – opt ions and t he way ahead, COM( 2011) 680 final,
25.10.2011.
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_________________________________________________________________________________________
European Court of Audit ors ( 2008) , Report on t he annual account s of t he European Police
College for t he financial year 2007 t oget her wit h t he College’s replies, OJ C311/ 136,
5.12.2008.
_____ ( 2009) , Report on t he annual account s of t he European Police College for t he
financial year 2008 t oget her wit h t he College’s replies, OJ C304/ 124, 15.12.2009.
European Dat a Prot ect ion Aut horit ies ( 2008) , Declarat ion on t hree com m unicat ions from
t he Com m ission on border m anagem ent , Rom e, 18 April.
EDPS ( 2008) , Prelim inary com m ent s of t he European Dat a Prot ect ion Supervisor on t hree
com m unicat ions from t he Com m ission on border m anagem ent COM( 2008) 69 final,
COM( 2008) 68 final, COM( 2008) 67 final, 3 March 2008.
_____ ( 2011) , Opinion of t he European Dat a Prot ect ion Supervisor on t he Evaluat ion
report from t he Com m ission t o t he Council and t he European Parliam ent on t he Dat a
Ret ent ion Direct ive ( Direct ive 2006/ 24/ EC) , 31 May.
_____ ( 2011) , Opinion of t he European Dat a Prot ect ion Supervisor on t he Proposal for a
Direct ive of t he European Parliam ent and of t he Council on t he use of Passenger
Nam e Record dat a for t he prevent ion, det ect ion, invest igat ion and prosecut ion of
t errorist offences and serious crim e, Brussels, 25.3.2011.
_____ ( 2011) , Opinion on t he Com m unicat ion from t he Com m ission “ A com prehensive
approach on personal dat a prot ect ion in t he European Union” , EDPS, Brussels,
14.1.2011.
European Digit al Right s ( 2011) , Shadow evaluat ion of t he Dat a Ret ent ion Direct ive
( 2006/ 24/ EC) , EDRI , Brussels, 17 April.
European Parliam ent ( 2001) , “ Transparency and int elligence” , int ervent ion of t he Count erTerrorism Coordinat or Gilles de Kerchove, Brussels, Hearing on t he Right t o access
t o EU docum ent s: im plem ent at ion and fut ure of Regulat ion ( EC) No 1049/ 2001.
_____ ( 2006) , Securit y Research: European Parliam ent resolut ion on Securit y Research –
The Next St eps ( 2004/ 2171( I NI ) ) , OJ C133/ 135, 8.6.2006.
_____ ( 2008) , Resolut ion of 20 Novem ber 2008 on t he proposal for a Council Fram ework
Decision on t he use of Passenger Nam e Record ( PNR) dat a for law enforcem ent
purposes, P6_TA( 2008) 0561, 20.11.2008.
_____ ( 2009) , European Parliam ent recom m endat ion t o t he Council of 24 April 2009 on
t he problem of profiling, not ably on t he basis of et hnicit y and race, in count ert errorism ,
law
enforcem ent ,
im m igrat ion,
cust om s and
border
cont rol
( 2008/ 2020( I NI ) ) , OJ C184/ 119, 8.7.2010.
_____ ( 2009) , Resolut ion of 17 Sept em ber 2009 on t he envisaged int ernat ional
agreem ent t o m ake available t o t he Unit ed St at es Treasury Depart m ent financial
paym ent m essaging dat a t o prevent and com bat t errorism , P7_TA( 2009) 0016,
17.9.2009.
_____ ( 2010) , Decision on discharge in respect of t he im plem ent at ion of t he budget of
t he European Police College for t he financial year 2008 ( 2010/ 556/ EU) , OJ L
252/ 232, 25.9.2010.
_____ ( 2010) , Resolut ion of t he European Parliam ent of 5 May 2010 wit h observat ions
form ing an int egral part of it s Decision on discharge in respect of t he im plem ent at ion
of t he budget of t he European Police College for t he financial year 2008, OJ
L252/ 233, 25.9.2010.
_____ ( 2010) , Legislat ive resolut ion on t he draft Council decision on t he conclusion of t he
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P7_TA( 2010) 0279.
128
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_____ ( 2011) , Decision on discharge in respect of t he im plem ent at ion of t he budget of
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_____ ( 2011) , Decision on discharge in respect of t he im plem ent at ion of t he budget of
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_____ ( 2011) , European Parliam ent resolut ion of 25 Oct ober 2011 wit h observat ions
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_____ ( 2011) , European Parliam ent resolut ion of 8 June 2011 on t he m id- t erm review of
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_____ ( 2011) , Report on a com prehensive approach on personal dat a prot ect ion in t he
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_____. ( 2008) , “ Taking St ock: Dat abases and Syst em s of I nform at ion Exchange in t he
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Guild, E. ( 2010) , “ EU Count er- t errorism Act ion: A fault line bet ween law and polit ics?” ,
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Guild, E. and F. Geyer ( eds) ( 2008) , Securit y Versus Just ice? Police and Judicial
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Hailbronner, K. ( 2006) , “ The Ext ernal Dim ension of t he Area of Freedom , Securit y and
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Hayes, B. ( 2006) , Arm ing Big Brot her: The EU’s Securit y Research Program m e,
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129
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Hayes, B. ( 2009) , Neoconopt icon: The EU Securit y- I ndust rial Com plex, St at ewat ch/ TNI ,
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Helm brecht , U. ( 2011) , ENI SA t oday and in t he fut ure, Com m it t ee on I ndust ry, Research
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_____ ( 2004) , “ Judicial Cooperat ion in t he EU: t he role of Euroj ust ” , The St at ionery
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_____ ( 2005) , European Union Com m it t ee 5t h Report of Session 2004- 05 - Aft er Madrid:
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_____ ( 2007) , “ Schengen I nform at ion Syst em I I : Report wit h Evidence” , The St at ionery
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_____ ( 2008) , “ European Union Com m it t ee, 9 t h Report of Session 2007- 2008: Minut es of
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_____ ( 2011) , “ The EU I nt ernal Securit y St rat egy” , The St at ionery Office, London.
Hughes G. and A. Edwards ( eds) ( 2002) , Crim e Cont rol and Com m unit y: The new polit ics
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Hust inx, P. ( 2009) , Dat a Prot ect ion and t he need for an EU I nform at ion Managem ent
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I nt ernat ional Com m ission of Jurist s ( 2008) , “ Briefing Paper: Am endm ent t o t he
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Neighbourhood Policy ( ENP) ” , PE 348.596, European Parliam ent , Brussels.
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Maguire, M. ( 2004) , “ The Crim e Reduct ion Program m e: Reflect ions on t he Vision and t he
Realit y” , Crim inal Just ice, Vol. 4, No 3, pp. 213- 238.
Menkiszak, M., M. Jaroszewicz and M. Falkowski ( 2006) , “ The Ext ernal Dim ension of t he
Area of Freedom , Securit y and Just ice in Relat ion t o Russia” , PE 348.594, European
Parliam ent , Brussels.
Mit silegas, V. ( 2001) , “ Defining Organised Crim e in t he European Union: t he Lim it s of
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130
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Mit silegas, V. ( 2009) , EU Crim inal Law, Oxford: Hart Publishing.
Mit silegas, V. ( 2011) , “ The Council Fram ework Decision on t he Fight against Organised
Crim e: What can be Done t o St rengt hen EU Legislat ion in t he Field?” , PE 453.195,
European Parliam ent , Brussels.
Monar, J. ( ed.) ( 2010) , The I nst it ut ional Dim ension of t he European Union’s Area of
Freedom , Securit y and Just ice, Brussels: Pet er Lang.
Müller- Wille, B. ( 2004) , “ For our eyes only? Shaping an int elligence com m unit y wit hin t he
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Neal, A. ( 2009) , Except ionalism and t he Polit ics of Count er- t errorism : Libert y, Securit y
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Parkin, J. ( 2011) , “ The Difficult Road t o t he Schengen I nform at ion Syst em I I : The legacy
of ‘laborat ories’ and t he cost for fundam ent al right s and t he rule of law” , CEPS,
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_____ ( 2007) , “ Salvat ion out of t he Church: Judicial Prot ect ion in t he Third Pillar aft er t he
Pupino and Segi j udgem ent s” , Com m on Market Law Review, Vol. 44, pp. 883- 929.
_____ ( 2008) , “ Key Legislat ive Developm ent s on Migrat ion in t he European Union” ,
European Journal of Migrat ion and Law, Vol. 10, pp. 77- 104.
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Wacquant , L. ( 2007) , Urban Out cast s: A Com parat ive Sociology of Advanced Marginalit y,
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AN N EX
CON TEN T:
FI GURES :
FI GURE 1 : TH E EU POLI CY CYCLE I N I N TERN AL SECURI TY AS FORESEEN BY TH E
H ARM ON Y PROJECT
133
FI GURE 2 : TOTAL RECORD S ON PERSON S AN D TOTAL RECORD S ON UN W AN TED ALI EN S I N
TH E SI S D ATABASE, W I TH ARTI CLE 9 6 RECORD S COM PON EN T ( 2 0 0 4 - 2 0 1 0 ) 1 3 4
FI GURE 3 : TOTAL V I SA APPLI CATI ON S ( CATEGORI ES A, B, C) TO SCH EN GEN AN D N ON SCH EN GEN STATES, 2 0 0 5 - 2 0 0 9
134
FI GURE 4 : TOTAL VI SAS I SSUED ( CATEGORI ES A, B, C, VTL, D , D + C) BY SCH EN GEN AN D
N ON - SCH EN GEN STATES, 2 0 0 5 - 2 0 0 9
135
FI GURE 5 : PRE- LI SBON TREATY I N STI TUTI ON AL AN D EFFECTI VE RELATI ON S BETW EEN
EU AGEN CI ES, BOD I ES AN D SERVI CES I N CH ARGE OF I N TERN AL SECURI TY
136
TABLES :
TABLE 1 : CH AN GES TO COUN CI L JH A STRUCTURES AFTER LI SBON
138
TABLE 2 : OV ERVI EW OF COUN CI L PREPARATORY BOD I ES I N JH A M ATTERS ( E. BOD I ES)
140
TABLE 3 : COSI I N I TI AL 1 2 - M ON TH W ORK PROGRAM M E AN D CURREN T 1 8 - M ON TH W ORK
PROGRAM M E
141
TABLE 4 : SUM M ARY OF FORM AL BI LATERAL RELATI ON S BETW EEN EU “JH A AGEN CI ES”
( 2011)
141
TABLE 5 : CATEGORI ES OF I N FORM ATI ON I N CLUD ED UN D ER ARTI CLE 2 TH E
EUROPOL/ FRON TEX STRATEGI C AGREEM EN T OF M ARCH 2 0 0 8 ( N ON LI M I TATI VE)
142
TABLE 6 : LI ST OF CRI M I N AL OFFEN CES FALLI N G W I TH I N TH E SCOPE OF TH E STRATEGI C
AGREEM EN T BETW EEN EUROPOL AN D FRON TEX ( AS OF M ARCH 2 0 0 8 )
142
TABLE 7 : TH E SH I FT TOW ARD S M ASS D ATA PROCESSI N G: COM PARI N G ESTI M ATES OF
TH E N UM BER OF RECORD S ON PERSON S I N SI S, VI S, EES AN D EU- PN R
143
M ETH OD OLOGI CAL N OTE ON TI M ELI N E
146
LI ST OF I N TERVI EW S
147
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Figu r e s
Figur e 1 : Th e EU policy cycle in in t e r na l se cu r it y a s for e se e n by t h e H a r m on y
pr oj e ct
Sou r ce : Council docum ent 14581/ 10, p. 16.
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Figur e 2 : Tot a l r e cor ds on pe r son s a nd t ot a l r e cor ds on u nw a n t e d a lie n s in t h e
SI S da t a ba se , w it h Ar t icle 9 6 r e cor ds com pon e n t ( 2 0 0 4 - 2 0 1 0 )
Source: Council docum ent s 8621/ 05, 5239/ 06, 6178/ 07, 5441/ 08, 5764/ 09 and 6434/ 2/ 11 Rev.2.
Figur e 3 : Tot a l visa a pplica t ion s ( ca t e gor ie s A, B, C) t o Sch e nge n a n d non Sch e nge n st a t e s, 2 0 0 5 - 2 0 0 9
134
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Figur e 4 : Tot a l visa s issu e d ( ca t e gor ie s A, B, C, VTL, D , D + C) by Sche n ge n a nd
n on - Sch e nge n st a t e s, 2 0 0 5 - 2 0 0 9
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Figur e 5 : Pr e - Lisbon t r e a t y in st it u t iona l a nd e ffe ct ive r e la t ion s be t w e e n EU a ge n cie s, bodie s a nd se r vice s in ch a r ge of
in t e r na l se cu r it y
136
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Ta ble s
Ta ble 1 : Ch a nge s t o Coun cil JH A St r u ct u r e s Aft e r Lisbon
( B = General Affairs preparat ory bodies; C = Ext ernal Relat ions/ Securit y
Defence/ Developm ent preparat ory bodies: E = JHA preparat ory bodies)
and
Designat ion
( PreLisbon)
Nam e
St at us
E.0
CATS ( Ar t icle 36 Com m it t t ee)
Meet ings w ill cont inue unt il 1 January 2012. Will focus on
st rat egic issues wher e COSI would not be able t o cont ribut e
and m eet as necessary by convening of t he Presidency ( Doc.
16070/ 09 and 16072/ 09)
E.1
St rat egic Com m it t ee on
I m m igrat ion, Front iers and
Asylum ( SCI FA)
Sam e as CATS
E.2
Working Part y on Migrat ion and
Expulsion
Renam ed as Working Par t y on I nt egrat ion, Migrat ion and
Expulsion. The WP will m eet in different for m at ions
depending on t he agenda
E.3
Visa Working Part y
Cont inues
E.4
Asylum Working Part y
Cont inues
E.5
CI REFI
Abolished. CI REFI and it s funct ions ar e t ransferred t o
FRONTEX, w hich shall report t o t he Council on st at ist ical
m at t er s previously conferred on CI REFI
E.6
Working Part y on Front iers
Cont inues. Will be called on discussing issues dealt wit h in
CI REFI prev iously
E.7
Working Part y on Civil Law
Mat t ers
Cont inues
E.8
SI S/ SI RENE Working Par t y
Merged w it h E.17 and E.18 in E.27 Working Part y for
Schengen Mat t ers
E.9
SI S TECH Wor king Par t y
Sam e as E.8
E.10
Police Cooperat ion Working Part y
Merged in E.26 Law Enforcem ent Working Part y
E.11
Europol Working Part y
Sam e as E.10
E.12
Working Part y on Terrorism
Cont inues. Will m eet w it h C.19 ( COTER) when dealing wit h
horizont al/ cross- cut t ing issues
E.13
Cust om s Cooperat ion Working
Part y
Cont inues
E.14
Working Part y on Cooperat ion in
Crim inal Mat t ers
Cont inues
E.15
Working Part y on Subst ant iv e
Crim inal Law
Cont inues
E.16
Working Part y on Collect iv e
Evaluat ion
Discont inued
E.17
Working Part y on Schengen
Evaluat ion
Merged in E.27 Working Part y for Schengen Mat t ers t oget her
wit h E.8 SI S/ SI RENE Working Part y and SI S- TECH Working
Part y
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E.18
E.19
Working Part y on t he Schengen
Acquis
Merged in E.27 Working Part y for Schengen Mat t ers t oget her
wit h E.8 SI S/ SI RENE Working Part y and SI S- TECH Working
Part y
Mult idisciplinar y Group on
Organised Crim e
Becom es E.28 Working Part y on General Mat t er s including
Evaluat ion. Deals w it h m at t er s relat ing t o or ganised cr im e
and prevent ion, excluding t er rorism , t hat ar e not cov ered by
COSI or ot her working part ies and all evaluat ion m echanism s
t hat will be set up under Ar t icle 70 TFEY except Schengen
evaluat ion ( w hich ar e dealt w it h in E.27 WP for Schengen
Mat t ers)
No longer ex ist ( abolished w it h Council Decision set t ing up
t he European Judicial Net wor k)
E.20
E.21
Working Part y on Civil Prot ect ion
Cont inues
E.22
Ad Hoc Working Part y on
Fundam ent al Right s and
Cit izenship
Renam ed as Working Par t y on Fundam ent al Right s, Cit izens
Right s and Free Movem ent of Persons, m ade perm anent and
t asked w it h all m at t er s relat ed t o FR and cit izens r ight s.
Rem it includes follow- up t o accession of t he Union t o ECHR,
follow - up of report s from t he EU- FRA
E.23
Ad Hoc Group on I nform at ion
Exchange
Renam ed Working Par t y on I nform at ion Ex change and Dat a
Prot ect ion, m ade perm anent . Merged w it h G.9 Working Par t y
on Dat a Prot ect ion ( Art .29 WP)
E.24
JAI - RELEX Ad Hoc Support Group
Made per m anent and renam ed JAI - RELEX Working Par t y
B.3
High- Lev el Working Group on
Asylum and Migrat ion
Cont inues
B.4
Horizont al Wor king Par t y on
Drugs
Cont inues
B.10
Working Part y on Legal Dat a
Processing ( E- j ust ice and E- law)
Renam ed as Working Par t y on E- Law w it h m andat e t o
im plem ent t he act ion plan on e- j ust ice. Legal dat a
processing issues should be t r ansferred t o t he European
Com m ission and include discussions on int egrat ed sy st em for
access t o Com m unit y and Union Law and CELEX
C.19
COTER
Cont inues
C.38
Working Part y on t he applicat ion
of specific m easures t o com bat
t errorism ( CP 931 WP, see Doc.
10826/ 1/ 07)
Cont inues
Source: Council docum ent s 17653/ 09 and 5688/ 1/ 11
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Ta ble 2 : Ove r vie w of Coun cil pr e pa r a t or y bodie s in JH A m a t t e r s ( E. bodie s)
Designat ion
( PreLisbon)
Nam e
E.1
St rat egic Com m it t ee on I m m igrat ion, Front iers and Asylum ( SCI FA)
E.2
Working Part y on I nt egrat ion, Migrat ion and Expulsion
E.3
Visa Working Part y
E.4
Asylum Working Part y
E.5
CI REFI - Discont inued
E.6
Working Part y on Front iers
E.7
Working Part y on Civil Law Mat t ers
E.8
SI S/ SI RENE Working Par t y - Merged w it h E.9, E.17 and E.18 in E.27
E.9
SI S- TECH Working Par t y - Merged wit h E.8, E.17 and E.18 in E.27
E.10
Police Cooperat ion Working Part y - Discont inued, t asks t ransferred t o E.26
E.11
Europol Working Part y - Discont inued, t asks t ransferred t o E.26
E.12
Working Part y on Terrorism
E.13
Cust om s Cooperat ion Working Part y
E.14
Working Part y on Cooperat ion in Crim inal Mat t er s
E.15
Working Part y on Subst ant iv e Crim inal Law
E.16
Working Par t y on Collect iv e Evaluat ion - Discont inued, evaluat ion t ransferred t o E.28
E.17
Working Par t y on Schengen Evaluat ion - Mer ged wit h E.8, E.9 and E.18 in E.27
E.18
Working Par t y on t he Schengen Acquis - Merged wit h E.8, E.9 and E.17 in E.27
E.19
Mult idisciplinar y Group on Organised Crim e - Merged in E.28
E.20
Abolished
E.21
Working Part y on Civil Prot ect ion
E.22
Working Part y on Fundam ent al Right s, Cit izens’ Right s and Free Movem ent of Persons
E.23
Working Group on I nform at ion Exchange and Dat a Prot ect ion
E.24
JAI - RELEX Wor king Par t y
E.25
CATS
E.26
Law Enforcem ent Working Par t y ( form erly E.10 and E.11)
E.27
Working Part y for Schengen m at t er s ( form erly E.8, E.9, E.17 and E.18)
E.28
Working Part y on General Mat t er s including Evaluat ion ( for m er ly E.16 and E.19)
Source: Council Docum ent 5688/ 1/ 11.
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Ta ble 3 : COSI in it ia l 1 2 - m on t h w or k pr ogr a m m e a nd cu r r e n t 1 8 - m on t h w or k
pr ogr a m m e
2010- 2011 12- m ont h work program m e
( Council Docum ent 13871/ 10)
2011- 2012 18- m ont h work program m e
( Council Docum ent 12363/ 11)
I m plem ent at ion of EU Policy Cycle
EU Policy Cycle ( Harm ony Proj ect )
I nt er nal Securit y St rat egy
Monit oring support and coordinat ion of t he developm ent
and im plem ent at ion of t he I nt ernal Securit y St rat egy,
consist ent w it h t he EU Policy Cycle
Cooperat ion t o address organised crim e
I nt eract ion bet ween ext er nal and int er nal EU secur it y
( PSC/ COSI )
COSPOL Proj ect s ( r esult s, organisat ion, subj ect s)
Co- odinat ion m echanism for j oint operat ions
European Pact t o com bat int ernat ional dr ug t raffick ing
Co- ordinat ion bet w een EU JHA Agencies
Coordinat ion m echanism s for j oint operat ions
Reinforcing t he prot ect ion of ext er nal borders and
com bat ing illegal m igrat ion
Fight against arm s t raffick ing
European Pact t o Com bat I nt ernat ional Drug Trafficking
Act ion Papers on PKK
European Pact on Synt het ic Drugs
Financing of operat ional cooperat ion/ I nt ernal Securit y
Fund
Fight against arm s t raffick ing
Coordinat ion bet ween agencies
Solidar it y clause
Reinforcing t he prot ect ion of ext er nal borders and
com bat ing illegal im m igrat ion
Solidar it y clause
I nt eract ion bet ween int ernal and ext ernal secur it y
Conclusions of t he 1 st Heads of NCBs Conference
Ta ble 4 : Sum m a r y of for m a l bila t e r a l r e la t ion s be t w e e n EU “JH A Age n cie s”
( 2011)
CEPOL
EUROJUST
MoU ( 1.1.2010)
CEPOL
MoU ( 1.1.2010)
EUROJUST
EUROPOL
FRON TEX
Agreem ent
( 20.10.2007)
Rev ised agreem ent
( 1.10.2009)
Cooperat ion
agreem ent
( 25.6.2009)
Negot iat ions under
way, form al
agreem ent
expect ed in 2011
EUROPOL
FRON TEX
Agreem ent
( 20.10.2007)
Cooperat ion agreem ent
( 25.6.2009)
Rev ised Agreem ent
( 1.10.2009)
Negot iat ions under
way, form al agreem ent
expect ed in 2011
Agreem ent ( 29.3.2008)
and Cooperat ion Plan
( 1.10.2009)
Agreem ent
( 29.3.2008) and
Cooperat ion Plan
( 1.10.2009)
Source: Council docum ent s 5816/ 10 ( p. 3) , 5675/ 11, 5676/ 11.
141
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
_________________________________________________________________________________________
Ta ble
5:
Ca t e gor ie s
of
in for m a t ion
in clu de d
u nde r
Ar t icle
2
EUROPOL/ FRON TEX St r a t e gic Agr e e m e nt of M a r ch 2 0 0 8 ( n on lim it a t ive )
“ St rat egic inform at ion”
t he
“ Technical I nform at ion”
Enforcem ent act ions t hat m ight be useful t o suppress offences
and im prove t he int egrat ed border m anagem ent of t he Mem ber
St at es of t he European Union
Means of st r engt hening adm inist rat ive and
enforcem ent st ruct ures in t he fields cover ed by
t his agreem ent
New m et hods used in com m it t ing offences, in part icular t hose
t hreat ening t he secur it y of ext ernal border s or facilit at ing illegal
im m igrat ion
Police work ing m et hods as well as inv est igat ive
procedur es and result s
Trends and developm ent s in t he m et hods used t o com m it
offences
Met hods of t raining t he officials concerned
Observat ions and findings result ing from t he successful
applicat ion of new enforcem ent aids and t echniques
Crim inal int elligence analyt ical m et hods
Rout es and changes in rout es used by sm uggler s, illegal
im m igrant s or t hose involved in illicit t raffick ing offences
covered by t his agreem ent
I dent ificat ion of law enforcem ent expert ise
Prevent ion st rat egies and m et hods for m anagem ent t o select
law enforcem ent priorit ies
Threat assessm ent s, risk analysis and crim e sit uat ion report s
Ta ble 6 : List of cr im ina l offe n ce s fa lling w it h in t h e scope of t h e St r a t e gic
Agr e e m e nt be t w e e n EUROPOL a n d FRON TEX ( a s of M a r ch 2 0 0 8 )
Annex 1 list of crim inal offences – EUROPOL/ FRONTEX St rat egic agreem ent 2008
“ Unlawful drug t raffick ing” offences - crim inal offences
list ed in Art icle 3( 1) of t he Unit ed Nat ions Convent ion of
20 Decem ber 1988 against I llicit Traffic in Narcot ic Dr ugs
and Psy chot ropic subst ances, and am ending and replacing
act s
“ Mot or vehicle crim es” - t he t heft or m isappropriat ion
of m ot or vehicles, lorries, sem i- t railers, t he loads of
lorries or sem i- t railers, buses, m ot orcycles, caravans
and agricult ural vehicles, works vehicles, and t he
spare part s for such vehicles, and t he receiv ing and
concealing of such obj ect s
“ Crim e connect ed w it h nuclear and radioact ive
subst ances” – crim inal offences list ed in Ar t icle 7( 1) of t he
Convent ion on t he Physical Pr ot ect ion of Nuclear Mat er ial
of 3 March 1980, and relat ing t o t he nuclear and/ or
radioact iv e m at erials defined in Art icle 197 of t he Eurat om
Treat y and Direct ive 80/ 836 Eurat om of 15 July 1980
“ Forgery of m oney and m eans of paym ent ” – t he act s
defined by Art icle 3 of t he Geneva Convent ion of 20
April 1929 on t he suppression of count erfeit ing
currency, w hich applies t o bot h cash and ot her
m eans of pay m ent
“ I llegal im m igr ant sm uggling” – act iv it ies deliberat ely
int ended t o facilit at e, for financial gain, t he ent ry int o,
residence or em ploy m ent in t he t errit ory of t he Mem ber
St at es of t he European Union, cont rary t o t he rules and
condit ions applicable in t he Mem ber St at es
“ I llegal m oney laundering act ivit ies” – crim inal
offences list ed in Art icle 6( 1) t o ( 3) of t he Council of
Europe Conv ent ion on Laundering, Search, Seizur e
and Confiscat ion of t he Proceeds from Cr im e of 8
Novem ber 1990
“ Traffick ing in hum an beings” – subj ect ion of a person t o
t he r eal and illegal sway of ot her persons by using
violence or m enaces or by abuse of aut hor it y or int rigue,
especially wit h a view t o t he exploit at ion of prost it ut ion,
form s of sex ual exploit at ion and assault of m inors or t rade
in abandoned children. These form s of exploit at ion also
include t he product ion, sale or dist r ibut ion of childpornography m at erial.
142
Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
__________________________________________________________________________________________
Ta ble 7 : Th e sh ift t ow a r ds m a ss da t a pr oce ssin g: com pa r in g e st im a t e s of t h e
n u m be r of r e cor ds on pe r son s in SI S, VI S, EES a n d EU- PN R
D a t a Pr oce ssin g
Sch e m e
SI S
( for com pa r ison
pu r pose s)
Est im a t e s of nu m be r of
r e cor ds on pe r son s
Ca t e gor ie s of pe r sons
conce r ne d
Under 1 m illion yearly ov er t he past
7 years
Chiefly
t hird
count ry
nat ionals
( records on t he basis of Ar t icle 96
CI SA)
VI S
( in
pr oce ss
of
be com ing ope r a t ion a l,
st a r t ing Oct obe r 2 0 1 1 )
Around 60 m illion in any given 5year period
Persons
w ho
fall
under
visa
obligat ions t o ent er t he t err it ory of
t he Mem ber St at es of t he European
Union and EU cit izens or r esident s
act ing as host s
EES
( e nvisa ge d
pr oposa l)
le gisla t ive
Should policy opt ion of r ecording
ent r ies and ex it s of all t hird count ry
nat ionals be pursued, m ore t han 350
m illion
( based
on
figures
of
int ernat ional t ourist arrivals in EU27)
Depending on policy opt ion, eit her
sam e per sons t hat
would
be
regist er ed in VI S or in addit ion,
persons not r equir ed t o obt ain a
Schengen visa t o t ravel t o t he EU
EU- PN R
( 2011
Com m ission
pr oposa l
for
a
Eu r ope a n
Pa r lia m e n t
a n d Cou n cil D ir e ct ive )
500 m illion records ( figure provided
by air carriers)
All
passengers
using
air
t ranspor t at ion t o cross t he ext ernal
borders of t he Mem ber St at es of t he
EU
143
Policy Depart m ent C: Cit izens' Right s and Const it ut ional Affairs
_________________________________________________________________________________________
M e t h odologica l not e on t im e line s
I n order t o provide addit ional inform at ion and evidence, t his st udy relies on visual
support s. Figure 5 available in t he Annex present s t he inst it ut ional and effect ive relat ions
bet ween EU agencies, bodies and services in charge of int ernal securit y in t he pre- Lisbon
cont ext . Four t im elines present ing t he evolut ion of European int ernal securit y policies
since t he 1960s can addit ionally be accessed online, at t he following URL:
ht t p: / / j im iny.m edialab.sciences- po.fr/ deviss/ t im eline/ . The Just ice and Hom e Affairs
Program m e at t he Cent re for European Policy St udies ( CEPS) assist ed on t he collect ion,
select ion and archiving of dat a. The m et hodology followed by CEPS for t he collect ion of
t his dat a foresaw a specific t im eline ( bet ween 1999 and 2011) and focused on t he
assessm ent and select ion of all available docum ent s on t he websit es of t he JHA agencies
and bodies dem onst rat ing t he evolut ion and fram ing of t hreat s in t he areas of organized
crim e, t errorism and border cont rol. I t focused as well on t he agencies, act ors and
net works in t he JHA policy sphere ( giving special at t ent ion t o Sit Cen, Front ex, Europol,
COSI , Euroj ust , CEPOL, t he CTC and ENI SA) .
The “ t im eline on European securit y” visualisat ion m aps t he hist ory of European
cooperat ion and policies in t he field of int ernal securit y. Based on available
hist oriographies, it dist inguishes bet ween four processes: t he hist ory of inform al clubs
and working group st ruct ures ( part icularly in t he field of police and j udicial cooperat ion) ,
t he hist ory of Com m unit y relat ed developm ent s in int ernal securit y, t he hist ory of t he
est ablishm ent and roll- out of syst em s for t he exchange and processing of inform at ion,
and t he hist ory of int ernat ional agreem ent s wit h t hird count ries in t he area of int ernal
securit y.
The visualisat ion present s t hese four processes in a t im e- orient ed m at rix. Each colum n
represent s a t im e period of a year, from 1967 t o 2011, and each row t he event s t hat
occurred across all four processes for a given year. Event s pert aining t o t he sam e
process are grouped t oget her, and organised by order of occurrence.
I n order t o im prove readabilit y, grouped rows are coloured according t o t heir belonging
t opic and connect ed by a light coloured line: 'Police Cooperat ion', 'Com m unit y
developm ent s', 'dat abases and inform at ion net work' and 'ext ernal dim ension'.
144
Developing an EU I nt ernal Securit y St rat egy , fight ing t errorism and organised crim e
__________________________________________________________________________________________
List of I n t e r vie w s
Baines, Vict oria, St rat egic Analyst , EUROPOL, May 2011
Banfi, Ferenc, Direct or, CEPOL, June 2011
Collon, Michael, Clerk, EU Sub- Com m it t ee F - Hom e Affairs, House of Lords, March 2011
Coninsx, Michèle, Vice President , EUROJUST, May 2011
Cuadrat - Grzybowska, Kat arzyna, Legal Advisor, European Dat a Prot ect ion Supervisor,
July 2011
Ellerm an, Jan, Dat a Prot ect ion Officer, EUROPOL, May 2011
Hij sm ans, Hielke, Head of Unit , Policy and Consult at ions, European Dat a Prot ect ion
Supervisor, July 2011
Jancewicz, Tat iana, Senior Legal Officer, EUROJUST, May 2011
Nogala, Det lef, Research and Knowledge Managem ent Officer, CEPOL, June 2011
Shapcot t , William , Direct or, DG A, Council of t he European Union, form er direct or of
Sit Cen, May 2011
Torrance, Michael, EU Policy Analyst , House of Lords, March 2011
Van Rent erghem , Pierre, Business dem and & product s - Capabilit ies Depart m ent ,
EUROPOL, May 2011
Verhaag, Alinde, Head of Case Managem ent , EUROJUST, May 2011
Wainwright , Rob, Direct or, EUROPOL, May 2011
Wewer, Gregor, Governance Depart m ent , EUROPOL, May 2011
145
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