US embassy cable - 04BRUSSELS4536

UNCLAS SECTION 01 OF 04 BRUSSELS 004536 
 
SIPDIS 
 
SENSITIVE 
 
DEPARTMENT PASS INL/PC AND EUR/ERA 
 
E.O. 12958: N/A 
TAGS: EU, KCRM, KJUS, PREL, SNAR, USEU BRUSSELS 
SUBJECT: EUROPOL - FEELING ITS WAY FORWARD 
 
REF: 03 BRUSSELS 02375 
 
1.  (SBU) Summary.  During their recent visits to The Hague, 
DHS Secretary Ridge and AG Ashcroft announced the assignment 
of an FBI agent to Europol's reconstituted task force on 
counter terrorism and a Secret Service agent for 
counterfeiting.  This strengthened U.S. law enforcement 
liaison suggests the need for  further consideration of 
Europol's role and the complexities of dealing with this 
institution.  Europol is not a law enforcement agency in the 
classical sense, although it has become increasingly 
operational with each new enforcement decree adopted by the 
Council of Justice Ministers.  Europol personnel, while 
trained police officers, have  limited operational authority 
at the present.  They do not have arrest power or search and 
seizure authority, cannot initiate criminal investigations, 
and cannot interview witnesses.  They can, however, 
participate in a support capacity in multinational task 
forces and perform analytical assessments, and often do.  The 
United States was able to successfully negotiate two landmark 
agreements with Europol permitting the full exchange of 
analytical (December 2001) and personal data (December 2002) 
between Europol and U.S. law enforcement agencies at the 
federal, state and local levels.  However, Europol does not 
collect data on its own; it only receives data from Member 
States, who remain in ultimate control of the information, 
including with whom it is shared.  As a practical matter, 
Europol is not in a position to give us much data.  Still, 
Europol provides a unique, member-wide criminal justice 
analytical capability that is increasingly looked upon at the 
Ministerial level as an expression of an EU police body.  At 
the political level, it enjoys widespread support and is 
often cited as being a critical aspect of EU integration. 
Nonetheless, support for Europol is not uniform among Member 
State enforcement agencies.  Many remain highly skeptical 
about the value Europol provides.  Some Member States, led by 
Germany, envision Europol evolving into a EU Federal Bureau 
of Investigation, while others are reluctant to allow it to 
become a fully operational police organization.   End Summary. 
 
Background 
-------------- 
 
2.  (U) Europol was established by the Treaty of the European 
Union in 1992 and has its headquarters in The Hague, The 
Netherlands.  In 1994, it began limited operations as the 
Europol Drugs Unit focusing exclusively on illicit drugs 
within the Member States.  Following ratification of the 
Europol Convention (1998), Europol began its expanded 
activities in July 1999.  In January 2002, Europol,s 
jurisdiction was extended to include all forms of serious 
crime.  Europol,s main priorities are directed by the 
Justice and Home Affairs Council,  They are: counter 
terrorism, trafficking in drugs and other contraband, illegal 
immigration, trafficking in persons, and counterfeiting of 
the Euro. There are almost 400 staff members at Europol 
including officers, analysts and other experts. 
 
3.  (U) The strategic premise behind the creation of Europol 
was that by pooling its intelligence and information 
concerning crime within the EU, and facilitating channels for 
exchanging operational matters, Member States would gain a 
better insight into, and could achieve a more effective 
response to, crime within the EU.  Each EU Member State is 
obliged to assign one or more senior officials to Europol in 
The Hague along with computer linkage to its national law 
enforcement databases.  By placing these officers in close 
proximity to each other, a country needing police data from a 
sister member state has only to go across the hall to make 
the request rather than follow a tedious and time consuming 
route at the bilateral level.   Such officers must have 
direct computer access at Europol headquarters to the 
criminal justice computer databases employed by their 
respective national law enforcement agencies, although it is 
still prohibited to integrate all databases into a single 
EU-wide system.  On the contrary, Member States &own8 their 
information and can refuse to share it if doing so would, in 
its judgment, be prejudicial. 
 
4.  (U) Thus, Europol is not an EU-wide law enforcement 
agency, although it is progressively becoming more and more 
operational.  It has been at the center of new enforcement 
initiatives following each new enforcement decree adopted by 
the Council of Ministers.  Europol personnel, while trained 
police officers, have limited operational authority.  They do 
not have arrest power or search and seizure authority, cannot 
initiate criminal investigations, and cannot interview 
witnesses.  They can, however, participate in a support 
capacity in multinational task forces and perform analytical 
assessments, and often do, especially in the field of child 
pornography.  In effect, Europol provides a unique, 
member-wide criminal justice analytical capability that is 
increasingly looked upon at the Ministerial level as an 
expression of an EU police body. 
 
5. (U) Three protocols to the 1998 Europol Convention are now 
awaiting ratification by the Member States.  These protocols 
give an expanded role to Europol, such as providing support 
for joint investigative teams.  Similarly, the EU Mutual 
Legal Assistance Treaty provides for greater Europol 
involvement in law enforcement cooperation among the Member 
States.  The latter instrument was supposed to be implemented 
by January 2005, but this is an unlikely target. 
 
6.  (SBU)  Europol's initial mandate was in many respects 
similar to that of Interpol, an international law enforcement 
communication network based in Lyon, France.  The EU Member 
States are the major contributors to Interpol's budget as 
well as the major users of Interpol's network.  As Europol 
takes on more and more tasks, the Member States might come to 
question their financial support for Interpol.  Already, 
questions such as whether Europol will have access to 
Interpol's developing databases on child pornography and lost 
and stolen passports are emerging. 
 
Data Protection within Europol 
------------------------------------ 
 
7.  (U) Background:  The handling and sharing of data, 
including personal data, is one of the more difficult issues 
affecting our ability to establish a comprehensive law 
enforcement relationship with the EU and its Member States. 
The difficulties are compounded by the different and shifting 
competencies in the field among EU institutions and the 
Member States. Further compounding the problem is that Member 
States have wide latitude in interpreting operative EU data 
privacy instruments, as well as being able to derogate from 
these mandates at the national level on the basis of public 
security.  Thus, in many respects, while operating in the 
context of umbrella EU instruments, we are confronted with 
not just a single privacy system, but many different systems. 
 
8.  (U) Nevertheless, there is basic similarity in Member 
State organizational structures to deal with data protection. 
 As data privacy issues are covered by the EU &acquis8, all 
current and future members of the EU must adhere to these EU 
data protection instruments or face suit instituted by the 
Commission.  The challenge for the U.S. is to craft a 
relationship that lets us join forces with EU members in 
combating crime and terrorism through expansive exchanges and 
sharing all forms of data, including personal data. 
 
U.S. Agreements with Europol -- Data Protection 
--------------------------------------------- ----------------- 
 
9.  (U) The Europol Convention is the controlling legal 
instrument governing Europol.  It is a complex document. 
Over half of its operative articles are detailed provisions 
as to how, and under what circumstances, Europol can obtain, 
retain, and disseminate information, especially personal 
data.  Notwithstanding the complexity of these provisions, 
the United States was able to successfully negotiate two 
landmark agreements with Europol permitting the full exchange 
of analytical (December 2001) and personal data (December 
2002) between Europol and U.S. law enforcement agencies at 
the federal, state and local levels.   The agreements oblige 
us to engage in a joint consultation on the implementation of 
the agreements in 2005. 
 
10.  (U)  Europol does not collect data on its own and only 
receives it from Member States who remain in ultimate control 
of the data, including with whom it is shared. As a practical 
matter Europol is therefore not in a position to give us much 
data.  In essence, the flow of information is mainly 
one-sided with US law enforcement providing information to 
Europol but receiving little in return.   This is due to the 
reluctance of Member States to share critical data with 
Europol or to release this data to us through Europol 
channels.  The 2002 Europol Agreement on personal data was 
significant in terms of ensuring that police cooperation 
between the U.S. and EU police authorities is not disrupted 
due to differences in the respective systems of privacy 
protection.  Moreover, the relationship has been structured 
so as to provide maximum flexibility for each U.S. law 
enforcement agency to structure its relationship with Europol 
in accordance with its own needs. 
 
11.  (U) In the Europol-U.S. Agreement (December 2002) and in 
the U.S.-EU Agreement on Mutual Legal Assistance (June 2003), 
the Europeans agreed that personal data obtained by the U.S. 
under those agreements did not have to be deleted once it was 
used.  Instead, the information could be used to prevent, 
investigate or prosecute any specific criminal offense. 
Thus, the information is protected by limitations on its use 
rather than by retention limits.  These agreements, together 
with the data protection provisions contained in the Council 
of Europe Cyber-crime Convention signed by the U.S. and all 
EU Member States, demonstrate that data sharing arrangements 
can be devised which are consistent with the needs of 
operative EU privacy instruments and those of the U.S. 
 
U.S.-Europol Cooperation - Liaison Officers 
--------------------------------------------- ---------- 
 
12.  (SBU) In August 2002, Europol stationed two liaison 
officers to Washington to facilitate Europol coordination 
with U.S. law enforcement agencies.  The EU Member States 
shortly thereafter agreed to have Europol represent their 
interests in Washington through these officers where they 
deem it appropriate and to serve as a communication conduit 
between them and U.S. enforcement authorities.  The EU would 
like to have these officers represent, if necessary, the law 
enforcement interests of Member States who have not stationed 
national law enforcement representatives in Washington. 
Concerns have been expressed by several of our U.S. 
enforcement agencies that in this capacity the EU liaison 
officers could undercut the work and role of our attaches 
stationed in Europe. This issue we believe has recently been 
resolved, at least for the moment.   We have agreed with 
Europol that it might be useful to exchange letters dealing 
with the operation of the liaison officers in Washington, 
especially with respect to their handling of requests for 
assistance to the U.S. from Member States. 
 
13. (U) Many federal agencies, consistent with the 
agreements, have established direct channels of communication 
with Europol.  In the absence of such arrangements, the U.S. 
law enforcement point of contact for Europol is the National 
Central Bureau, whose primary mission otherwise is to 
facilitate law enforcement cooperation with Interpol.  The 
Department of Justice attorney stationed at the Mission to 
the EU in Brussels currently oversees liaison with Europol. 
U.S. law enforcement continues to rely on its bilateral law 
enforcement relationships with EU Member States for 
exchanging information and is generally not inclined to 
handle bilateral issues through Europol channels. 
 
14.  (SBU) Europol is anxious to expand its exchanges of 
information with the U.S. concerning terrorism.  Europol has 
complained within EU circles about our alleged failure to 
cooperate with them in sharing terrorist-related information. 
 The FBI has been reluctant to provide Europol with sensitive 
data in this field, especially where member states themselves 
don,t readily share such data with Europol, preferring to 
share through bilateral channels, if at all.  Moreover, much 
of the data sought has been acquired by the FBI via 
intelligence channels and cannot be shared absent the 
concurrence of the intelligence community.  Shortly after 
9/11, the FBI assigned a liaison agent to work with the EU,s 
Counter terrorism Task Force in Europol, but the officer was 
withdrawn when it became clear that Member States did not 
want to use Europol as the means of sharing terrorism 
information among themselves or with us.  Following the 
Madrid bombings, Europol was directed by the Ministers to 
&reconstitute8 its largely moribund terrorist task force. 
Attorney General Ashcroft recently announced that we will 
station an FBI agent at Europol to work cooperatively with 
the new task force.   Europol is still designing the unit 
which is not expected to be operational until 2005. 
 
15.  (U) In the June US-EU Summit Declaration of Combating 
Terrorism, the U.S. and EU agreed to explore a heightened 
cooperative historical analysis of frozen bank accounts. 
Europol was tasked by the Ministers to take the lead in this 
effort on behalf of the EU but initially communicated their 
&inability8 to do it, at least until the adoption of 
pending protocols to their convention which will allow them 
to engage in joint analytical projects.  This matter is still 
under discussion with the Dutch Presidency and Europol. 
 
16.  (U) Europol,s greatest operational role relates to 
counterfeiting of the Euro, much of which occurs outside of 
the territory of the EU.  Here Europol, operating off of the 
authority of the two U.S. agreements already negotiated on 
sharing of information, has been working very well with the 
U.S. Secret Service which has authority for the U.S. over 
such offenses.  In his recent visit to The Hague, DHS 
Secretary Ridge announced he was posting a Secret Service 
 
SIPDIS 
agent to Europol to facilitate further cooperation. 
 
The Europeans and Europol 
-------------------------------- 
 
17.  (U) Participation in Europol is part of the EU "acquis" 
to which all member states must adhere.  However, membership 
in Europol does not automatically follow from EU membership, 
but rather requires adoption of the Europol Convention.  On 
September 1, seven of the ten new EU accession states became 
members of Europol: Hungary, the Czech Republic, Slovakia, 
Slovenia, Lithuania, Latvia and Cyprus.  Poland, Estonia and 
Malta are expected to join by the end of the year. 
 
18.  (SBU) Support for Europol is not uniform among EU law 
enforcement agencies.  Many are highly skeptical about the 
value Europol provides.  However, at the Ministerial level 
Europol has widespread support and is often cited as being a 
critical aspect of EU integration.  Some Member States, led 
by Germany, envision Europol evolving into a EU Federal 
Bureau of Investigation, while others are reluctant to allow 
it to become fully operational.  The agency's annual report 
says that 4,700 cases were processed by Europol in 2003, 
compared to 3,400 cases the year before.  "The report shows a 
growing awareness for our services, and that our colleagues 
in the Member States appreciate the added value given from 
our analysts in the fight against organized crime and 
terrorism," according to the acting Director of Europol 
Mariano Simancas.  The European Parliament is considering 
changes to Europol's status.  The chairman of the Citizens' 
Freedoms and Rights Committee, responsible for drafting the 
European Parliament's Opinion on the "Tampere II" Program on 
Justice and Home Affairs, wants Europol to be made an EU body 
rather than an inter-governmental organization and to make it 
subject to the control of the European Court of Justice. 
 
Search for a new Director 
----------------------------- 
 
19. (SBU) Jurgen Storbeck's five-year contract as Europol 
Director expired June 30.  The organization is being run in 
the interim by Spanish Deputy Director Mariano Simancas. 
The appointment requires a consensus decision.  Within the 
next two weeks the Europol Governing Board is expected to 
develop a short list from the nominations submitted by member 
governments.  This list will then go to the JHA Council for 
its consideration.  The deputy director of Europol thinks it 
is unlikely a director will be appointed for another 
four-to-five months.  The major players in the appointment 
are France and Germany.  Failure to decide on the Europol 
Directorship before the expiration of Storbeck's term was 
seen as most unfortunate, given the enhanced role of Europol 
envisioned in the EU's counter terrorism efforts. 
 
Comment 
------------- 
 
20.  (U) The U.S. believes that Europol has the potential for 
evolving into a major organizational law enforcement 
institution both within the EU as well as in international 
law enforcement fora.  As such, we have attempted to forge 
the legal basis for exchanging all forms of law enforcement 
data, while recognizing that at the moment Europol may not 
have much with which to reciprocate.   End comment. 
 
Schnabel