by Oldrich Bureš

The recent terrorist attacks in Belgium and France have once again highlighted the contradiction between the seemingly free movement of terrorists across Europe and the lack of EU-wide intelligence sharing. Due to their earlier criminal activities, most perpetrators of the attacks in both Paris and Brussels were known to the various security agencies in several EU member states. For instance, the Abdeslam brothers had run a café in Brussels that was notorious for drug peddling.

In early 2015, Belgian police questioned them about a failed attempt to travel to Syria, but they were not detained. Soon after, Dutch police stopped them during a routine traffic check, fined them €70 for carrying a small quantity of hashish and then released them because they were not listed in their national information system. Allegedly neither the French security agencies nor the EU coordinating agency, Europol, were informed of either of these incidents prior to the Paris terrorist attacks in November 2015 (La Baume and Paravicini 2015). Similar stories of information non-sharing have emerged in the aftermath of other major terrorist attacks in Europe since the Madrid bombings in 2004. In response, EU policymakers have repeatedly promised to improve intelligence sharing across Europe, and some have even floated the idea that Europol should be turned into a centralised EU criminal intelligence hub, akin to the US Federal Bureau of Investigation (FBI) (Zimmermann 2006, 135).

In this article, I argue that despite the clear need for borderless intelligence sharing as a response to borderless terrorism, Europol is highly unlikely to become a genuine intelligence agency in the foreseeable future. My research on Europol suggests that it is one thing for Europe’s politicians to make public promises to improve the fight against terrorism via better intelligence sharing across Europe, and quite another thing for them to persuade the relevant national agencies, over which politicians usually exercise less than perfect control, to comply.

The structure of this article is as follows. Brief accounts of Europol’s original mandate and its post-9/11 counterterrorism role are offered in the first section. Sections two and three review the key obstacles to Europol’s counterterrorism coordination efforts and counterterrorism intelligence sharing, respectively. The concluding section offers a discussion of the possible ways for Europol to add tangible value in the area of counterterrorism and a summary of the key reasons why none of these are likely to materialise in the foreseeable future.

Europol’s counterterrorism mandate

Europol started limited operations on 3 January 1994 in the form of the Europol Drugs Unit. Progressively, other areas of criminality were added to Europol’s mandate, including countering terrorism. In the aftermath of 9/11, Europol’s counterterrorism mandate was further expanded. A December 2002 Council Decision (Council of the European Union 2003) specifically stipulated that each member state must ensure that at least the following intelligence information is communicated to Europol:

  • data which identify the person, group or entity;

  • acts under investigation and their specific circumstances;

  • links with other relevant cases of terrorist offences;

  • the use of communications technologies; and

  • the threat posed by the possession of weapons of mass destruction.

The Decision also provided for the appointment of specialised services or magistrates within the police services and judicial authorities, urgent priority treatment of requests for mutual assistance concerning persons and groups included in the EU terrorist list, and maximum access by the authorities of other member states to information on target persons and groups. In the last area, Europol’s role is unique as it offers ‘the only EU-wide platform for multilateral exchange and analysis of personal data in relation to organized crime and terrorism via a secure network which is subject to strict regulations on handling of data based on specific handling codes’ (Ratzel 2007, 113). The emphasis on the exchange of data on terrorism was further reinforced in Council Decision 2005/671/JHA, which stipulated that there must be one point of contact within each member state that collates ‘all relevant information concerning and resulting from criminal investigation conducted by its law enforcement authorities’ and passes it on to Europol (Council of the European Union 2005).

Europol also gained the authority to ask the police forces of EU member states to launch investigations and to share information with the US FBI and other third parties, including Interpol, as well as with police forces in non-EU states. Information sharing and other forms of cooperation have also been progressively developed with other relevant EU agencies, including the European Anti-Fraud Office (OLAF), the European Police Chiefs Task Force and, perhaps most notably, Eurojust. Europol was also assigned to open and expand the terrorist ‘analysis work files’, created from information and intelligence provided by the police forces and intelligence services of the EU member states. A 24-hour counterterrorism alert unit has also been established within Europol, comprised of national liaison officers from police and intelligence services. In January 2015, a new European Counter Terrorism Centre was established within Europol. It is supposed to function as the central information hub in the fight against terrorism in the EU, providing analysis for ongoing investigations and contributing to a coordinated reaction in the event of a major terrorist attack.

It is important to stress, however, that as with other international police organisations such as Interpol, Europol is not an executive police force with the autonomous supranational authority to conduct its own investigations, undertake searches or arrest suspects. Instead, the objectives of Europol are to improve the effectiveness of and cooperation among national police authorities in the EU member states, primarily via facilitation of the exchange of information. Unlike all other international police organisations, however, Europol was not formed from the bottom up by police professionals, but is the result of a top-down decision by the political and legislative bodies of the EU. This has had two important repercussions on Europol’s counterterrorism role. On the one hand, Europol is ‘characterized by a degree of autonomy to determine specific means and objectives of its policing and counterterrorist programs’ (Deflem 2006, 340). On the other hand, and most importantly for this article, the top-down political decision to establish Europol may at least partly explain the lack of will shown by some relevant national law enforcement and intelligence agencies to work with and through this EU agency.

Obstacles to Europol’s counterterrorism coordination efforts

The impact of Europol’s counterterrorism measures is difficult to assess because there is relatively little information available publicly. Everything in this article is based on open, publicly accessible sources of information, complemented by interviews with relevant Europol experts (who preferred to remain anonymous). Moreover, the standard of comparison clearly matters when it comes to evaluating the added value of any type of policy. The problem is that despite the billions spent annually on counterterrorism, we still lack an adequate performance evaluation baseline from which to figure out what works and why. To some extent, this is due to the methodological difficulties of finding the right proxy indicators to complement the readily available, yet inherently limited quantitative criteria (such as the number of arrests or requests for assistance). Such criteria shed little light on the actual effects of counterterrorism measures on specific cultures, groups and individuals, and the most efficient counterterrorism measures in terms of increasing overall security may be problematic due to their impact on other important values such as liberty and justice (Guild and Geyer 2008).

Nevertheless, based on Europol’s annual reports, which contain at least some systematic data, some observers have argued that Europol has begun to play an increasingly important role in the fight against terrorism since 9/11. In the area of information sharing, however, even coordination has proven to be a difficult task. In part, this is because the political, administrative and judicial framework varies from one member state to another, which adds further impediments to effective information sharing and coordination. Moreover, according to a report by the European Commission (2004, 3), the free circulation of information is hindered by two additional obstacles:

The first is that the information tends to be compartmentalized at both organizational and legal levels. For example, it is divided between different ministries and services and is intended for use in different procedures, thereby affecting the nature and sensitivity of the information that can be handled by the services. The second obstacle is the lack of a clear policy on information channels, resulting in disagreement on the choice of channel and on how to handle sensitive and confidential information.

Another obstacle Europol faces with respect to counterterrorism is the fact that in some EU member states, terrorism is dealt with by police agencies, while in others intelligence agencies are responsible for counterterrorism. Cooperation across intelligence and police agencies can be difficult because they tend to be interested in different types of information: ‘police institutions tend to be interested in specific information about suspects in order to make an arrest, whereas intelligence agencies are very broadly interested in general information without prosecutorial purposes’ (Deflem 2006, 351). Moreover, some experts have also argued that given their different esprit de corps, ‘security services as a group do not think highly of police agencies and vice versa’ (Müller-Wille 2008, 57). Within the EU, difficulties with both police and intelligence cooperation are further compounded by the cultural and linguistic diversity that exists across the 28 EU member states.

More importantly, however, it seems that some do not necessarily welcome coordination from Brussels. Because of its top-down origins, the police forces and intelligence services of EU member states have often viewed Europol with a great deal of suspicion, believing that it infringes on their authority and autonomy. As Europol’s former director Jürgen Storbeck (Archick 2002, 9) explains: ‘For a policeman, information about his own case is like property. He is even reluctant to give it to his chief or to another department, let alone giving it to the regional or national services. For an international body like Europol, it is very difficult.’ However, as discussed in greater detail below, representatives of EU member states’ police and security agencies ‘do achieve cooperation in practical matters’ at meetings separate from those of the EU ministers and Europol (Deflem 2006, 348).

Counterterrorism intelligence sharing: Europol as an optional bonus only?

Intelligence sharing has arguably been one of the most problematic areas of the EU’s counterterrorism efforts. While there appear to have been gradual improvements over time, Europol has certainly struggled to transcend the traditional obstacles to intelligence sharing, and national security and law enforcement agencies are still too often reluctant to share ‘high-grade’, real-time intelligence on terrorism that can be acted on immediately. This is primarily due to the persistence of nationality in international policing and intelligence. Although numerous Council decisions and Commission proposals include an obligation for EU member states to share information, in practical terms, this duty has had little impact because it cannot force member states’ authorities to share more information, that is, intelligence that has not previously been disseminated. This is also confirmed by Europol officials: ‘We know that [national] intelligence services cannot share personal-related and operational-related data with us because of their very strict data protection regimes and there is no use talking it over’ (interview with a Europol official, September 2009).

In either case, information exchange with Europol headquarters is de facto voluntary, and the level of involvement from the various national units varies greatly from one EU member state to another. Consequently, although the intelligence and analysis capacities at Europol headquarters have improved considerably since 9/11, the volume of data that officially reaches Europol remains relatively low. There are several reasons for this, including the defence of sovereignty in matters of ‘national security’, which is further buttressed by a culture of secrecy and the independence of national services, which fear that confidential sources and methods of work could be compromised if intelligence is widely shared. In the case of Europol, these fears are further exacerbated by the fact that prior to 9/11, this EU agency was considered to be a law enforcement support unit only, while after 9/11, it was decided at the political level that Europol would support ‘all competent authorities, including the intelligence services, which were not necessarily ready for this change’ (interview with a Europol official, September 2009). As an alternative explanation, some analysts have suggested that intelligence is also ‘a “currency” to obtain other valuable information or political favors [and therefore] it is not appealing to share it on the basis of general rules with all EU member states’ (Bossong 2008, 19). Others have even argued that national security services may undermine community regimes by submitting low-quality information (Argomaniz 2011, 227).

Furthermore, even when they formally participate in international agencies such as Europol, European police agencies may be reluctant to share information in the absence of several prerequisites, most importantly a sense of mutual trust and a shared expectation of positive outcomes. These, however, cannot simply be created by EU legislation. Moreover, in practice there is a clear preference for bilateral cooperation, which many national agencies consider as ‘the most workable instrument’ from an intelligence perspective (Council of the European Union 2004, 19). As a consequence, ‘Europol represents but an optional bonus, of which the member states can avail themselves at free will’ (Müller-Wille 2004, 26).

An independent study ordered by the European Commission in 2007 provides another explanation for Europol’s shortcomings (John Howell & Co. 2007). The study suggests that the weakness of EU intelligence exchange is due to the presence of an ‘elephant in the room’. The authors recognise that counterterrorism intelligence sharing among member states takes place along two axes. The first axis consists of institutional actors, namely law enforcement, internal security, foreign intelligence agencies and policymakers. The second axis is geographical: global, regional and bilateral (including small-scale multilateral). The authors of the report claim that ‘one of the bilateral players, the USA, is so significant as to represent a separate class of interaction’ (John Howell & Co. 2007, 36). This is because the US (a) has an outreach policy in counterterrorism, (b) actively engages EU member states on policy formulation and implementation, (c) provides technical assistance in the form of training and equipment, and (d) exchanges data. As such, the US ‘is a de facto intelligence hub to which most MS [member states] are in some way connected’, and the ‘EU arrangements risk being crowded out by these relationships’ (John Howell & Co. 2007, 37).

Finally, while formally supporting political initiatives at the EU level, many EU member states simultaneously participate in numerous informal, practitioner-led multilateral networks (e.g. Club de Berne or the Police Working Group on Terrorism), often at the expense of supporting Europol (Bureš 2012). Because of their flexibility, relative independence from national governments and ability to include a broad range of participants on an equal footing, it is generally assumed that these informal networks ‘are more suitable for tackling governance problems or achieving common goals than more hierarchical and formal strategies’ (Den Boer et al. 2008, 103). Especially among professionals, informal horizontal cooperation arrangements are regarded as highly successful, pragmatic and flexible. In this light, it is hardly surprising that a number of studies concerning intelligence sharing consider the preference of EU member states for bilateral and informal multilateral arrangements to be natural and warn against hasty attempts to build supranational intelligence institutions (Benjamin 2005, 15; Müller-Wille2004, 35–6).

Concluding remarks: towards a European FBI?

According to Müller-Wille (2004, 33), a supranational EU agency adds value if

  • it produces something that is not, will not or cannot be produced at the national level; and

  • the responsibility for a certain form of intelligence product is transferred to the European level, that is, if the European unit can relieve national authorities.

At the moment, Europol fails to meet either of these two preconditions. In contrast to some other EU agencies (e.g. the EU Satellite Centre or the Intelligence Division of the European Military Staff), the providers of intelligence to Europol are identical to its main customers—the national intelligence agencies of the member states. Currently, there is also ‘no EU function that requires, let alone depends on, intelligence support from Europol’ (Müller-Wille 2004, 31). This, in combination with the fact that no other unique responsibilities have been transferred from the national level to Europol, leads to a duplication that sets the limit for Europol’s intelligence role: ‘Simply put, whatever Europol does has to be produced at the national level as well’ (Müller-Wille 2004). Müller-Wille therefore argues that the incentive for EU member states’ national agencies to feed Europol with intelligence is rather limited because they still carry full responsibility for producing the intelligence support required for national security and, as such, cannot be dependent on Europol:

No national service can argue that it failed to foil a terrorist plot because Europol did not do its job accurately. Neither the government nor the public would accept such an explanation. Therefore, national services maintain the task of producing and providing national law enforcement authorities with accurate and complete intelligence. Hence, they cannot and will not rely on Europol’s contribution. (Müller-Wille 2004, 56)

Since Europol’s work parallels the work of national agencies when it comes to information analysis, and merely complements the bi- and multi-lateral cooperation arrangements that predate it, it is understandable that many national agencies perceive information sharing via Europol as an extra burden rather than as adding value.

It is also worth remembering that it was primarily for political reasons that terrorism was not originally included in Europol’s agenda when it was created in 1994. Moreover, full consensus has not yet emerged on the role and future of Europol. While some EU member states, including Austria, Belgium and the Netherlands, would indeed have liked to see Europol evolve into an organisation with an independent investigative role like the US FBI, others, including Germany, France, Italy, Spain and the UK, have opposed such an evolution, preferring instead to keep investigative authority at the national level with Europol acting as a coordinating body (Zimmermann 2006, 135). Disputes like this indicate that at least for some member states, it may still be too early to allow the EU to have an influential role in traditionally state-specific areas such as policing, criminal justice and intelligence gathering. This was recently acknowledged by Europol’s director Rob Wainwright (Le Baume and Paravicini 2015), who stated that while there is pressure on his agency to take on more of a ‘front-line’ role, it would be politically difficult to extend his organisation’s mandate beyond the role ascribed to it in the Lisbon Treaty, which is to support national law enforcement services by collecting, analysing and exchanging information.

Finally, it is important to note that in some cases, there may be good reasons for caution in sharing sensitive information with an EU agency—in particular, for the intelligence services the protection of sources is paramount; the originators of intelligence must be confident that the organisation with which it is shared is secure and that it will not be passed on to a third party without their permission. As aptly summarised in a report for the British House of Lords in the aftermath of the London terrorist attacks in 2005:

Ensuring that agencies exchange information effectively cannot be achieved solely by agreeing general principles such as the principles of equivalent access and availability. Such principles can place a general obligation on agencies to share information but they cannot ensure that that happens without a build-up of knowledge and mutual trust between the agencies (UK House of Lords, EU Committee 2005).

There is of course a possibility that over time Europol will succeed in convincing both the national policymakers and the relevant national security agencies that it can be trusted, even in the highly sensitive area of counterterrorism. However, the process of trust-building is likely to be rather long. After all, even in the US, it took 132 years before the FBI was formally established in 1908.

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