COUNCIL OF THE EUROPEAN UNION
1 March 2000
5845/00 ADD 3
NOTE from General Secretariat to Europol Working Party
No. prev. doc.: 5845/00 EUROPOL 1, 13370/99 EUROPOL 48
Subject : Observation of the Italian delegation to the “First reflections concerning the Tampere Conclusions as far as they relate to Europol” as contained in doc. 13370/99 EUROPOL 48
Recommendation no. 43
We do not deem it necessary to introduce amendments to the Europol Convention. On the contrary, a decision could be envisaged – on the terms of article 34 of the Treaty on the European Union – in order to define the “support” functions of the Europol personnel on the basis of the regulation governing joint investigative teams in the framework of the Convention on Mutual Legal Assistance in Criminal Matters.
In this connection, however, we would like to stress that the legal foundation to set up joint investigative teams is already available in the framework of cooperation among States, which can resort both to Europol headquarters and means with a view to developing coordinated investigations.
It should also be stressed that as from now Europol staff can give their support on the basis of the information available which, as provided for by the Convention, they are obliged to report to member countries (art. 13 of the Europol Convention).
Recommendation no 44
We do not deem it advisable for the operational Task Force to operate in the institutional framework of Europol, since the European Police Office has no general jurisdiction. Moreover, since the Task Force is composed of Police Chiefs, we do not deem it advisable – as suggested by a number of delegations – to include it in the framework of the meeting of the Heads of National Units, as this group is advisory to Europol’s Management Board and Director.
Nor is it possible to include the Task Force in the framework of the Art. 36 Committee, which has no operational functions.
From a first analysis of Recommendation no. 44 there seems to be no institutional area in which to include said Task Force, which could also meet at intergovernmental level.
Therefore, it is suggested to convene the Task Force at a short notice, whose first task should be to study its position within the Union.
Recommendation no 45
As to the possibility of receiving operational data from Member States, it should be stressed that Europol’s Management Board has already given instructions to open some analysis files, which receive operational data from Member States.
In compliance with the legislation in force, it seems impossible to envisage the possibility for Europol of having direct access to SIS data.
However, since this possibility is of great importance under an operational viewpoint, the issue must be studied more in detail, in order to find a legal basis for the implementation of said hypothesis.
As to the possibility for Europol of asking Member States to start investigations, as envisaged in Art. 30 of the Treaty on the European Union, said Treaty does not contain any provision or principle leading us to think of a supremacy of Europol over the police bodies of Member Countries.
On the contrary, it is expressly corroborated that the responsibility for public order and security matters rests with Member Countries.
Moreover, this is without prejudice to bi- and multilateral cooperation, which – in compliance with the Amsterdam Treaty – can be developed within the Union. The Treaty envisages that the Council should establish limits and conditions within which the competent authorities mentioned in articles 30 and 31 can operate on the territory of another Member State, in connection and in agreement with its authorities (Art. 32).
Given the above, Europol cannot be conceived as a body superior to national sovereignties, since the pre-requisite should be the harmonization between criminal and criminal procedure provisions. This is not envisaged in the Treaty, and the joint action in the field of judicial cooperation limits “the progressive adoption of measures establishing basic rules for the identification of crimes and relevant sanctions” to “organized crime, terrorism and illicit drug trafficking only”.
Therefore, we hold that the sentence contained in Art. 30.2.b) of the Treaty, according to which Europol can ask the competent authorities of Member States to undertake and coordinate investigations into specific cases, should be understood as a proposal for initiating investigations, whereas the substantial decision rests with the State sovereignty.
Recommendation no. 46
Before being able to establish how to interact with EUROJUST, it is necessary for the network to be defined in the relevant institutional fora.
Recommendation no. 51 and 56
A study is still under way on the possibility of extending the mandate in the field of money laundering, without having to amend the Convention in force.
To the Presidency of the Europol working group and the General Secretariat of the Council
Subject : Request of the Italian Delegation for an examination of the Protocol on the privileges and immunities of Europol
In Italy the ratification of the a.m. Protocol was difficult and took a long time. The debate focussed mainly on art. 2 section 1 of the text, giving Europol legal immunity from the liability envisaged in art. 38 section 1 of the Convention, i.e. illicit of improper data processing.
The provision gave rise to a concern for a possible weakening of the guarantees contained in the Convention to safeguard personal data, as well as for a non compliance with international data protection rules.
With a view to not delaying the beginning of Europol’s activities, the Italian Parliament ratified the Protocol at issue, however the Government undertook – the relevant agenda is annexed herewith – to request its European partners to examine the system of privileges and immunities in the framework of Europol’s initiatives, in order to establish whether measures are necessary (among which a possible re-negotiation of the text, also) to guarantee that the provisions contained in said Protocol are not or have not been the cause for a decreased level of protection provided for by the Convention, by constitutional laws, as well as by the Italian data protection regulations.
Considering that Europol started its activities on July 1st, 1999, the Italian delegation requests that said examination be carried out within the Europol Working Group.
The House of Deputies
Act no.93 of March 23, 1998, authorised to ratify and implement the Convention setting up a European Police Office (Europol) and assigned the monitoring of the activities carried out by the Europol National Unit to the Parliamentary Committee for the Monitoring of the Implementation and Functioning of the Schengen Implementing Convention (art. 6) ;
The Europol Convention devotes twenty articles to data processing and ways of use of Europol files, in order to guarantee a high level of data protection, and that it trusts their monitoring to an autonomous body, i.e. the Guarantor of personal data protection, as envisaged in Act no.675 of 1996 and its ratification provisions ;
Article 38 of the Convention envisages forms of liability in case of illicit or unproper data processing either by Member States or by Europol ;
The authorisation to ratify the Protocol on Europol Privileges and Immunities does represent a need for Italy, since it is necessary for the entry into force of the Europol Convention ;
It should be noted that said Protocol gives Europol (art. 2, section 1) legal immunity from the liability envisaged in art. 38, section 1 of the Convention, relating to illicit or unproper data processing ;
This provision – regardless of its compliance with other international agreements on the privileges and immunities of international bodies and institutions – introduces a derogation from international data protection rules, which causes concern for a possible weakening of the guarantees contained in the Convention.
binds the Government
To request its European partners to examine immediately the system of privileges and immunities envisaged by the Protocol, in order to assess with them, in the framework of Europol’s initiatives, the need to adopt measures aiming at guaranteeing that in no way the implementation of the provisions contained in the Protocol on Europol Privileges and Immunities shall decrease the level of data protection provided for in the Convention, in the Italian constitutional laws and in Act. no 675 of 1996 ; to this end, a re-negotiation of said provision and of art. 38 of the Europol Convention might also be carried out. Moreover, it binds the Government to keep the Parliamentary Monitoring Committee constantly and punctually informed of the decisions made and of their developments.
Adopted by the Government on March 24, 1999
Source of this document: SEMDOC database
Statewatch European Monitoring and Documentation Centre