Matthias Monroy

Israeli authorities are to be allowed to process and interlink personal information from the EU using „automated procedures“. According to a draft, this would even be possible in the territories occupied after 1967, although the so-called territorial clause excludes this.

Five years ago, EU member states gave the Commission a mandate to start negotiations for a Europol agreement with Israel, after the Estonian Presidency had presented a draft to that effect at the end of 2017. Now the Commission appears to have finished negotiating. The British civil rights organisation Statewatch has posted the document online. The Council and Parliament are now expected to give the green light.

The planned cooperation with the EU police agency is explicitly about the exchange of personal data. All authorities responsible for fighting terrorism and organised crime in Israel would benefit from this. According to the draft, however, it would also cover „product piracy“, „racism and xenophobia“, „swindle“ and „migrant smuggling“.

Territorial clause for geographical restriction

Europol had already concluded a similar agreement in 2018, but mainly on strategic cooperation. For example, indications of imminent criminal offences are to be mutually transmitted. Although Article 11 also addresses the transfer and processing of personal data, this is only to take place in exceptional cases of danger to life and limb.

The upgrade now planned thus goes much further. This is not the only reason why such an agreement has been controversial for years. Of particular importance for the EU is the observance of the so-called territorial clause from 2014, according to which agreements may not be implemented in the territories occupied by Israel after 1967. This is also the case with EU research funding, in whose framework Israel was the first non-European state to be allowed to participate.

However, there are plenty of territories occupied by Israel in violation of international law, such as East Jerusalem, the West Bank or the Golan Heights. As representatives of the occupying power, Israeli police authorities are also responsible for security there. In the West Bank, the Palestinian Authority also runs its own police force, which cooperates with the government of Israel and is supported and trained by the EU in an own police mission named EUPOL COPPS.

„Protection of the civilian population“ also through secret service

The Europol-Israel agreement on the exchange of personal data, which is now pending, is not actually intended to be applied in the occupied territories either. This is regulated in Article 32, for example. However, Article 7 specifies far-reaching exceptions. By way of derogation, the information may be used if it serves the „protection of the civilian population“.

The term is broadly defined: For example, Israel’s police can use personal data transmitted by Europol in the occupied territories if this is „necessary for the prevention, investigation, detection or prosecution of Criminal Offences“. Europol is to authorise this use in advance upon request, but in non-defined emergency cases Israeli authorities can also act without consent.

The Shin Bet domestic secret service is also said to be among the beneficiaries of the data exchange. Also mentioned are antitrust and tax authorities, the nature and park administration or the antiquities authority. All of the institutions mentioned were already included in the strategic agreement of 2018. However, this circle could expand significantly, as „onward transfer“ to other authorities is also possible, according to the draft.

Document contains further stumbling blocks

The fact that some Israeli media had already reported the conclusion of the Israeli-European police agreement in mid-September may have caused disgruntlement among some EU states. However, this was only the conclusion of the fourth and final round of negotiations, which was publicly welcomed by the Israeli Minister of Public Security at the time.

Whether the EU governments can agree on the draft agreement now on the table remains questionable. It contains further stumbling blocks that are not likely to meet with enthusiasm in all EU countries. For example, Israel is to be allowed to use biometric data provided by Europol. Moreover, their processing is to be carried out with the help of „automated means“. It is also possible to link them with other personal data. In Germany, for example, such dragnet searches are only permitted within very narrow legal limits.

After the member states in the Council, also the Parliament has to deal with the planned agreement. For this purpose, the draft will then be forwarded to the responsible Committee on Civil Liberties, Justice and Home Affairs. The EU governments then want to conclude similar agreements with Brazil and Turkey.

Image: The EU already supports the police in the West Bank. The agreement with Israel should also apply there (EUPOL COPPS).