This blog post discusses the ‘migration’ of the existent Europol Cooperation Agreements into future international cooperation of Europol under the New Regulation. The current procedure for their adoption, form and content raise some concerns, and perpetuating their implementation after 2017 appears as a sub-standard result.
By Zheni Zhekova
On 11 May 2016, the institutions adopted the new Europol Regulation (EU) 2016/794. Thereby, international cooperation of the agency, which permits the exchange of personal data, remains possible based on three instruments: an international agreement of the Union concluded under art. 218 TFEU; a Commission ‘adequacy decision’ that provides safeguards on the protection of privacy and fundamental rights and freedoms of individuals; and a pre-existing Cooperation Agreement of Europol. The Regulation will come into effect on 1 May 2017, replacing the current legal regime for external cooperation set by the Establishing Europol Council Decision (2009/371/JHA), the ‘Procedural Council Decision’ (2009/934/JHA) on the exchange of classified and personal data with third parties and the ‘Implementing Council Decision’ (2009/935/JHA) determining the list of countries and international organisations approved for cooperation with the agency.
Unfortunately, the Regulation underlines that it will not affect the legal force of the Cooperation Agreements concluded by Europol under the Europol Convention or under the current legal regime and therefore any new Agreement that can still be adopted up until the day of entry into force of the New Regulation. Those instruments will remain in force until at least 2021, when they will be reviewed by the Commission, with an option of recommending to readopt them as Treaties at a later stage.
Currently, the procedure for adoption and revision of Cooperation Agreements is still governed by the Council Decisions and it appears to side-line the European Parliament. The list of cooperating partners for Europol is approved by a Council Decision in consultation with the Parliament. In 2012, the Council proposed Implementing Decision (2014/269/EU), adding 4 new countries to the list; however the Parliament rejected the proposed Decision. Even though the Parliament had concerns about the level of data protection in some of the countries, the Council still adopted the Decision, authorising Europol’s cooperation with all 4 countries. Perhaps not incidentally, the Parliament challenged the Decision on other procedural grounds (Case C-363/14), yet unsuccessfully.
Europol’s Cooperation Agreements are Strategic and Operational, both permitting exchange of classified information, while Operational Agreements also allow the exchange of personal data. At present there are 15 Operational and 6 Strategic Agreements concluded with 13 third states and with 3 international organizations. Some instruments are newly adopted or renegotiated under the current Council Decisions. Others, such as the agreements with Interpol and with USA, are still in force as adopted under the Convention.
A closer look at the form of the Agreements raise the reasonable question whether they are Agreements concluded under international law and should thus continue to govern the agency’s cooperation for at least 4 years after the Regulation becomes applicable. Most instruments (irrespective of their regime of origin) have the formal features of international law instruments such as ratification, entry into force and termination. Notably, some Operational Agreements provide for arbitration by a tribunal, with also possibly the President of the International Court of Justice appointing an arbitrator, whose decision would be final and binding. More importantly, most Cooperation Agreements contain multiple substantive features on mutual normative obligations between contracting parties. The provisions of the New Regulation bracket the regime for future cooperation of Europol under an international agreement of the Union concluded under art. 218 TFEU, whereas in practice the ‘migration’ of its Cooperation Agreements actually makes them the future of its international cooperation.
An additional review of the content of the Agreements raises more concerns about the substantive provisions on the exchange of data. The Supplemental Agreement with the USA contains such normative features in the absence of overt provisions regarding the adequate level of protection of personal data in the USA and respective safeguards as regards further transmission of the data. Arguably, this agreement does not stand alone, as other of the instruments also are not dressed with elaborate arrangements on data protection. Moreover, some of the Agreements include detailed provisions the on the exchange of Liaison officers, enabling the practical transfer of a full range of information through security clearance and access to each party’s premises and provided resources, as well as diplomatic-level inviolability of their records.
Against this backdrop, while the New Europol Regulation installs new procedures and standards for international cooperation of Europol, the effects of these provisions cannot reasonably be expected to unfold for years. Procedural, formal and substantive issues with the Europol’s Cooperation Agreements prompts the question as to whether they are compatible with the expected standards of operation of Europol as a fully-fledged EU agency.
Zhen Zhekova is a PhD candidate at the Faculty of Law, Economics and Finance at the University of Luxembourg.