German proposal: Prohibited EU secret service cooperation through the back door

Although this violates EU treaties, the police agency Europol is to cooperate closely with secret services. This involves lists of suspicious persons originating from third countries. The individuals listed there will then be discreetly searched for throughout Europe.

In fact, the European Union has no competence to coordinate the secret services of the Member States. In the case of Germany, this would also violate the principle of separating the tasks of police and services. Nevertheless, the German EU Presidency is now for the first time pushing for operational cooperation coordinated by Europol.

The German proposal for a „coordinated approach“ deals with covert searches for persons under Article 36 of the SIS II Council Decision, which are based on lists of secret services such as the USA, but also from North Africa or the Western Balkans. They are to be entered into the Schengen Information System (SIS II), to which third countries do not have access. Only the 26 EU Member States involved, Iceland, Norway, Liechtenstein and Switzerland may issue such alerts.

Europol receives and checks

Schematic diagram of the „coordinated procedure (EU Presidency).

According to the German Ministry of the Interior, Europol should therefore install a back door and initially receive intelligence information from third countries and carry out a „first quality check“. This involves examining the trustworthiness of the source and the accuracy of the data received.

Europol is to check, for example, whether persons are already entered in SIS II on the basis of similarly written names or double identities. The Member State responsible will then be informed and may add the new information, including fingerprints and/or facial images, to its alert.

After the „quality check“, the police agency will inform the Presidency of the Council and the Member States of the receipt of the lists. Individual Member States may then agree to enter the listed persons in the SIS II. Only then will Europol send the complete list to the willing authority. Once an entry has been made, the Member State becomes the „owner“ of the SIS alert and is responsible for the prescribed regular checks on the storage.

Pilot project will become permanent

Alerts based on information from third countries are part of the daily practice of intelligence services, but so far without the participation of the European Union. Most of these alerts are the result of bilateral agreements.

Last year, individual EU members had already tested the „coordinated approach“, including Italy, the Czech Republic and Germany. However, information on this is subject to confidentiality. The German government cites the „Third Party Rule“, according to which the foreign secret services prohibit the release of any of their provided information.

The pilot project is now to be made permanent. After examining the intelligence information from the third countries, Europol is to inform the „Counter Terrorism Group“ (CTG) about the receipt of the lists of persons. The CTG is an association of domestic intelligence services of the Schengen States, which was set up by the secretive „Bern Club“ in 2001. Since 2016, Europol has been exploring closer cooperation with the CTG, but according to official statements this is only to be done „strategically“.

Integration of Interpol

With the „coordinated approach“ now proposed, cooperation with the CTG would, for the first time, concern concrete operative measures. The main concern is to avoid duplication of work. The CTG is therefore asked „to comment and make recommendations“ to Europol after receiving the lists of names. This would concern, for example, cases where the persons are already known to the CTG and where they have been put under observation. This will make it possible to prevent several authorities from issuing alerts on the same persons in SIS II simultaneously.

Europol and the CTG should then „decide in mutual coordination“ on the further processing of the list. Interpol may also be invited to participate in this process.

In a multi-stage procedure, both the Member States and the national CTG services have the possibility to check the accuracy of the lists. The information and biometric data are therefore checked against national databases. The competent authorities of the participating Member States are to inform Europol of the use of the lists. Europol will notify the competent Council working groups on terrorism, exchange of information and borders.

Questionable cooperation

If the persons for whom an alert has been issued in accordance with Article 36 of the SIS II Council Decision are found during a police check, a report is first sent to the registering national authority. No arrest or search will be carried out and the persons concerned should not learn of the secret surveillance. Europol may also inform the third country whose secret service issued the SIS alert of the results of the search, subject to the authorisation of the Member State issuing the alert for them.

It is questionable whether Europol’s cooperation with secret services, as proposed by the German government, will stand up to legal scrutiny. Not only the coordination of alerts for secret services is problematic. The lists of persons from third countries are likely to be mainly of so-called „dangerous persons“ and not of persons suspected of having committed a crime.

However, according to the current Europol Regulation, the police agency may only act for the purpose of criminal prosecution. Because Europol is increasingly processing mass data, which moreover also concern non-accused persons, the agency was recently reprimanded by the European Data Protection Supervisor.

Image: Europol operation with the Spanish police against a „Djihaidist cell Information to this effect also comes from intelligence services in the USA (Policia Nacional on Twitter).

Autor: Matthias Monroy

Knowledge worker, activist, editor of the German civil rights journal Bürgerrechte & Polizei/CILIP.