9
historical experiences, strategic preferences, beliefs, values, and
geographical necessities.
25
Concerning the external relations of the EU, it is one of the strongest
political and economic actors in the world. The EU uses an external
governance strategy to diffuse its rules and policies into third countries,
including the countries without an EU membership perspective.
26
Through
the external governance of the area of justice and home affairs the EU
transfers its internal security policies to third countries in order to
enhance these countries’ law enforcement capabilities.
27
To influence the
internal security policies of third states, the EU relies on a soft power
approach. It uses its political and trade power and the “tools” of the
accession negotiations and the provision of technical assistance and aid
opportunities.
28
If a country is dependent on the opportunities provided
by the EU, it is then in the interest of that country to maintain
cooperation with the EU and this country may adopt the EU rules if the
benefits of rule adoption exceed the internal political costs. This
dependence increases the EU’s leverage over these countries and the EU
benefits from this asymmetric interdependence in that it is used as a
bargaining chip in order to ensure domestic security policy change and
adaptation in third countries.
The EU is not always the dominant actor in its relations with third
countries. Depending on the circumstances, there might be cases where
the EU is politically and economically dependent on other states. In such
cases, there is asymmetry of power between the EU and these countries
and the EU cannot always fully impose its rules on them. In other words,
in these cases it is often in the interest of both sides to make
compromises.
29
Therefore, the EU’s normative requirements regarding
these countries are not always met or they are fulfilled only after a
bargaining process.
10
Given the above, this article sets four conditions that shape the interest
calculations of the EU and the power hierarchy between the EU and third
countries regarding the data exchange agreements. If one of these
conditions is met, then EU relinquishes its imposing role and it is less
persistent on the adoption of data protection rules. Otherwise, the EU
adopts a stance based on hierarchical superiority and requires from the
third country under question to adopt EU’s data protection norms.
1.
If the agreement with the third country enhances EU’s and
Europol’s policies and institutional structures and benefits
Europeans’ interests
2.
If there is a common terrorist threat between the EU and the
third country, the EU is as much concerned with this threat as its
counterpart and signing an agreement with this country is
considered as a solution for eradicating the threat.
3.
If signing an agreement with the third country enhances the
good reputation of the EU institutions.
4.
If the political environment within the EU is suitable for a
compromise regarding the conclusion of an agreement with the
third country.
Transatlantic relations and the U.S.-Europol counterterrorism
agreement
The transatlantic security cooperation has a long history since during the
Cold War the U.S. protected Western Europe in the face of Soviet
aggression. After the collapse of the Soviet Union, an increased emphasis
was placed by both Americans and Europeans on the emerging threats of
organised crime, drug trafficking, and illegal immigration. Regarding the
threat of transnational terrorism in the pre-9/11 period, the absence of
any spectacular terrorist attacks within the territory of the EU or the U.S.
meant that this threat was not considered a top priority by either actor.
This lack of political prioritisation was reflected in the fact that the EU-
U.S. counterterrorism cooperation did not expand significantly in the
11
period before the 9/11 attacks.
30
After the 9/11 attacks countering
transnational terrorism moved at the top of the political and security
agenda of both the U.S. and the EU.
When the Bush administration declared a global war on terror in 2001, it
also asked from its allies to choose their side and to either support the
U.S. or stand by with terrorists.
31
As a key partner of the U.S., the EU
was asked to support the US-led global war on terror. The 9/11 attacks
gave the opportunity to the U.S. authorities to pressure both the EU
member states and the EU institutions.
32
One of the US requirements was
allowing the U.S. Federal Bureau of Investigation (FBI) to access the data
bases of Europol.
In response to the U.S. calls, the EU was very keen to show its solidarity
with the U.S.
33
In the extraordinary Justice and Home Affairs Council
meeting of September 20, 2001 the Director of Europol was invited to
“take all the measures necessary (…) [in order] to establish informal
cooperation with the United States, pending the conclusion of a formal
agreement”.
34
Additionally, the Council called for Europol’s Director to
finalise the strategic agreement with the U.S. by November and to open
negotiations for a formal personal data agreement.
In this respect, the first agreement regarding the posting of liaison
officers and the exchange of strategic and technical data (excluding the
sharing of personal data) was signed in 6 December 2001. It was
followed by a supplemental agreement in 20 December 2002, which
encompasses the exchange of personal data;
35
Europol was authorised to
share personal data with its US counterparts including the names,
addresses, and criminal records of terrorist suspects.
36
The main point of friction in the Europol-U.S. negotiations for a personal
data exchange agreement was the issue of data protection.
37
The way
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