3
Contrary to the above concerns, this article presents a more complex
picture of Europol’s relations with third states; Europol and the EU neither
sacrifice their data protection rules completely for the sake of
counterterrorism cooperation, nor do they enforce these rules to third
countries consistently and in the same manner. This article shows that
Europol pursues a pragmatic approach, depending each time on its
bargaining power and the power asymmetry vis-à-vis the third country
under question. If the power balance is in favour of the EU then the EU
insists on the adoption of data protection rules by the third country as a
precondition for signing counter-terrorism cooperation agreements. If the
power balance is equal or in favour of the third country then the EU
pursues a more flexible approach; it insists less on this country fully
adopting EU’s data protection rules for the conclusion of agreements.
In the literature, scholars have examined the issues of Europol’s
democratic accountability and legitimacy
3
and Europol’s effectiveness in
the fight against organised crime.
4
Additional topics discussed in the
literature include the establishment of Europol
5
and Europol’s
international actorness in the field of counterterrorism.
6
The issue of
whether Europol is consistent in safeguarding its data protection
principles in the agreements it concludes with third countries has not,
however, systematically examined. The only exception has been Pawlak’s
examination of the closely related question of why the EU has not met
any criticism or opposition by third countries on its data protection related
practices; according to Pawlak, these practices are not consistent with the
EU rhetoric which portrays the Union as a normative international actor
with regard to data protection.
7
However, his study has not touched
extensively upon the determinative role of the power asymmetry between
the EU and third countries and its impact on rule transfer. This article
takes Pawlak’s argument further in that it argues that the approach of the
EU is pragmatic and intentional and that EU institutions take into
4
consideration the power dynamics and the interdependence with other
countries when they negotiate counterterrorism agreements.
In order to analyse Europol’s diverse approach regarding the operational
agreements with third countries, this article examines three cases
through a power asymmetry framework. These cases are the relations of
Europol with the U.S., Turkey and Morocco. The cooperation of the above
countries with Europol intensified since the 9/11 attacks. Each country’s
relationship with Europol is based, however, on a different framework:
transatlantic relations (loose interaction) for the U.S., EU candidate status
(membership conditionality) for Turkey and European Neighbourhood
Policy (ENP) (policy conditionality) for Morocco. Regarding transatlantic
relations, the U.S.-EU counterterrorism cooperation has expanded
significantly and a number of agreements have been negotiated and
concluded by the two partners. This relationship has been based on
mutual benefits and common interests rather than being imposed by one
of the partners. Concerning Turkey, Turkey’s relations with the EU are
under the framework of membership conditionality, which postulates,
among others, the adoption of data protection rules by Turkey as one of
the conditions for Turkey being a member of the EU. The reluctance of
Turkey to fulfil the EU requirements can inhibit both this country’s
counterterrorism cooperation with the EU and Turkey’s membership
prospect in general. Morocco, for its part, is one of the ENP countries.
While membership is not in the agenda Morocco is encouraged to adopt
the EU’s data protection rules through financial and technical assistance
incentives. A comparison of the relations of Europol with the above three
countries can provide insights on whether EU’s insistence on its data
protection requirements is consistent or not. In cases of inconsistency,
this article will look whether there is a link between power asymmetry
and the EU’s diverse approach and at the conditions under which the EU
abandons its hierarchical superiority on data protection.
5
This article has developed four factors through which the asymmetrical
relations between two sides are measured and, thus, the power dynamics
between the Europol and third countries are revealed. In brief, the
attitude of Europol is shaped by interest calculations (the enhancement of
EU’s and Europol’s counterterrorism institutions and structure), common
threat perceptions with its counterparts, the reputational benefits to
Europol from the cooperation with third countries, and the political
environment that facilitates or impedes the conclusion of an agreement.
In each country case the influence of the above factors is examined
showing the link between these four factors and power asymmetry.
Applying these factors into three countries that have a different level of
counterterrorism cooperation with the EU can provide more insights on
the issue of whether the EU approach is pragmatic or not. The empirical
evidence for this article is drawn from official EU documents and elite
interviews conducted with senior officials from the EU and the countries
being investigated.
This article starts with a brief historical background on Europol’s
cooperation with third countries. The subsequent section presents the
conceptual framework employed in this article, which is based on the
concept of power asymmetry and interest formation. The main body of
the article analyses the conditions under which Europol has negotiated the
agreements with United States, Turkey and Morocco. The conclusion
evaluates the role of power asymmetry in Europol’s agreements and
relations with third countries and provides some policy prescriptions for
EU’s political actors are facing a dilemma between liberty and security.
Counterterrorism cooperation of Europol with third countries and
data protection rules
The first steps of establishing a European criminal intelligence and law
enforcement agency date back to 1991, when German Chancellor Helmut
Kohl suggested the creation of such an agency.
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His proposal came to life
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