University of Dundee The counterterrorism agreements of Europol with third countries
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personal data was protected among European countries was different from the system that was in place in the U.S. The protection of personal data had a central place in Europol’s mode of operation as reflected in the organisation’s convention. 38 In this respect, the EU had a detailed data protection regime (the comprehensive legislative framework model) based on a number of international agreements, rules and regulations, and on data protection supervisory authorities. Furthermore, the Europeans were sceptical about giving much flexibility to law enforcement agencies regarding the storage and process of personal records concerned about the risk of potential abuse. 39
The U.S. system, on the other hand, was based on sector-specific laws, the self-regulation of private sector and technologies that enhanced personal privacy. 40 Contrary to the Europeans, the U.S. authorities see the law enforcement agencies as a strong partner of the U.S. justice system and in case of data protection abuses from the law enforcement institutions the U.S. system relies on the judiciary for the correction of misconducts . 41
Despite these major differences between the two parties, in the negotiations that ensued, Europeans made a number of concessions to the Americans on the data protection issues of data retention, purpose limitation, data accuracy, and data protection adequacy. According to Europol’s rules, before the start of negotiations, the data protection system of the U.S. should have been assessed according to European standards. 42 In practice, this never happened. 43 Regarding the purpose limitation principle, the data that was requested and subsequently transferred should only be used for the purpose for which the request was submitted. In the Europol-U.S. agreement however the allowed use of the shared data was broadened. 44 Concerning data retention, Europol Convention stated that the organisation could not store data for more than three years and Europol’s Supervisory Body highlighted that this 13
time limit should be applicable to the data transferred to the U.S. too. The final text of the Europol-U.S. agreement did not include however any time-limitation to the storage of data, in accordance with the U.S. preferences on this topic. 45 Finally, there was no mentioning in the agreement about the deletion of incorrect data and about the number and status of the U.S. law enforcement agencies that would have access to the Europol information. 46
The above concessions of the EU and Europol mean that the EU was not in a position of hierarchical superiority which could allow Europeans to impose their data protection rules. In this sense, there was a situation of asymmetrical interdependence against the EU which led Europeans to compromise.
The first reason for this compromise was that in the wake of the 9/11 attacks where the U.S. had a superior and global role in the fight against terrorism Europe was left with no other choice than to cooperate with the U.S. 47
found a window of opportunity which allowed them to institutionalise their counterterrorism policies and Europol was central in this effort. 48 The
security officials of the EU used the U.S. demands for enhanced transatlantic cooperation as an excuse for increasing the role and status of the Europol within the EU’s security machinery. 49 This agreement was an opportunity for Europol to improve its intelligence network both internally and externally, given that many member states were reluctant to share critical information with Europol due to mistrust; 50 the Europol- U.S. agreement, however, paved the way for Europol to become a central body in EU’s intelligence, counterterrorism and law enforcement apparatus.
A second reason for Europol’s flexible stance was the fact that Europol saw an opportunity for benefiting from U.S. intelligence which could 14
prevent future attacks at European soil. 51 When the Al Qaeda declared its intention to target Western countries, along with the U.S. the EU countries were also included in the terrorist organisation’s list. 52 In this sense, there was a common threat, that of Al Qaeda, that united the U.S. and the EU, and Europeans were as concerned about this threat as the Americans.
The third reason behind Europol’s stance was that Europol officials wanted to enhance the status and the prestige of the European organisation through an agreement with the U.S. which emerged after the 9/11 attacks as a dominant counterterrorism actor. 53 Such an agreement would confirm globally the status of Europol as an important pan- European law enforcement institution. This was even more important if the frequent criticisms about the progress of Europol and EU’s third pillar are taken into account. In this sense, the dependency of Europol on the recognition by the U.S. led the EU to be less persistent on data protection issues in the negotiations with the Americans.
The fourth factor that played a role in Europol’s stance was the fact that when the Europol-U.S. agreement was concluded Europol was not accountable to the European Parliament 54 and the European Court of Justice had a limited role on reviewing the actions of Europol. 55 In other words, there was a suitable political environment for Europol to sign a data exchange agreement with the U.S. without consulting the European Parliament which has been critical of the EU-U.S. counterterrorism cooperation and without the risk of ECJ’s judicial review.
In view of the four factors mentioned above, Europol faced a situation of interdependence with the U.S. in the field of counterterrorism and therefore the EU made a number of compromises on the issue of data protection for its own interest. This retrenchment from EU’s normative values could create a negative precedent on the effort of the EU and Yüklə 275,33 Kb. Dostları ilə paylaş:
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