The dangerous increasing support of Europol in national criminal investigations: An additional layer of complexity

Published date01 December 2023
DOIhttp://doi.org/10.1177/20322844231214482
AuthorSarah Tas
Date01 December 2023
Special Issue Article
New Journal of European Criminal Law
2023, Vol. 14(4) 534551
© The Author(s) 2023
Article reuse guidelines:
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DOI: 10.1177/20322844231214482
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The dangerous increasing
support of Europol in national
criminal investigations: An
additional layer of complexity
Sarah Tas
Maastricht University, Netherlands
Abstract
Vice President for Promoting our European Way of Life Margaritis Schinas, stated at the time of the
adoption of Europols amendment that Europol is a true example of where EU action helps protect
us all. Todays agreement will give Europol the right tools and safeguard to support police forces in
analysing big data to investigate crime and in developing pioneering methods to tackle cybercrime.
While some characterized the changes as an achievement for the adaptability and operational role
of Europol, others argued that it undermines fundamental rights and weakens data protection. Thi s
paper analyses the amendments made to the Regulation and explores Europols increasing role of in
national investigations and the associated dangers of it. The paper starts with a historical analysis of
Europols legal framework and role in national criminal investigations, before diving into the core of
the Regulation. After 2022, Europol supports Member Statesinvestigations in many ways. First,
through the continuous retention of large and complex datasets, which was strongly criticized by
NGOs and the EDPS. Second, through the transformation of Europol into the information hub and
broker for the exchanges of data with private parties. Third, more indirectly, through Europo ls
support of research and innovation projects, for national authorities to use and explore new
technologies in their work. However, these amendments are not without dangers. The Regulation
of 2022 pushes the boundaries of Europols competences further, by circumventing existing limi ts
and questioning the legality of the operations. The stronger role of Europol lacks suff‌icient
safeguards and eff‌icient oversight. This is highly problematic considering the impact Europol may
have on national investigations, and as a result on the situation of individuals.
Keywords
Europol, Big Data, supervision, fundamental rights, data protection, private parties, Research and
Innovation
Corresponding author:
Sarah Tas, Maastricht University, Bouillonstraat 1-3, Maastricht 6200 MD, Netherlands.
Email: sarah.tas@maastrichtuniversity.nl
Introduction
Europol plays a key role in national criminal investigations as a criminal information hub and by
delivering strong operational help to national law enforcement authorities.
1
It is a high-security
operational centre, that offers analysis and support to Member States in preventing and combating
all forms of serious international and organised crime, cybercrime and terrorism. Indeed, as the
European Commissioner for Home Affairs, Ylva Johansson, has stated, [b]ecause f‌ighting or-
ganised crime and terrorism depends on police cooperation at the European level, Europol is ir-
replaceable in supporting law enforcement authorities in their investigations.
2
This strong role did
not come overnight. Initially, Member States were reluctant to give such a strong position to an EU
agency and did not fully trust the agency.
3
Over time, however, Europol has become indispensable,
and is used as a tool by Member States to strengthen security in the EU, and several amendments to
the Europol Regulation have served to solidify its status. This is particularly evident with the most
recent amendments to the Europol Regulation, made in 2022 to deal with increasingly complex
security threats (with the digital transformation, the use of new technologies, and an increasingly
wide and complex cross-border element).
4
Criminal operations and actions at the national level do
not suff‌ice to deal with transnational security threats. As a result, Member States must increasingly
rely on Europols expertise.
5
With a focus on the protection of personal data, this article explores the 2022 amendments to
question the extent to which the expansion of Europols powers is detrimental to individuals
fundamental rights. While the new Regulation allows the agency to better support national criminal
investigations, notably with information, analysis, and expertise, it also comes with its challenges.
Among others, it circumvents national procedural safeguards, such as the requirement of a warrant
when accessing data from private parties, as well as the right to be informed. Furthermore, as the
European Data Protection Supervisor (EDPS) stated [] the expansion of Europols mandate has
not been compensated with strong data protection safeguards.
6
The article starts by retracing the origins of Europol and its route towards becoming the criminal
information hub of the EU. It then extensively analyses Europols latest amendments, by em-
phasising the main ways through which Europol can now contribute to national c riminal inves-
tigations. The article argues that this reinforced mandate did not go hand in hand with strong data
protection safeguards. Drawing on the pre-existing fragmentation in legal frameworks in the police
cooperation sector, the article highlights the novel and existing challenges that appear for the
protection of an individuals personal data. It then goes beyond the current situation, to address
upcoming data protection challenges that may occur if the proposal of Prüm II (automated data
1. Europol Strategy 2020+(Europol 2018).
2. Europols Amended Regulation Enters into Force(Europol, 28 June 2022) <https://www.europol.europa.eu/media-
press/newsroom/news/europols-amended-regulation-enters-force> accessed 13 June 2023.
3. Emma Disley and others, Evaluation of the Implementation of the Europol Council Decision and of EuropolsActivities
(RAND Europe 2012) Technical Report 47.
4. Regulation (EU) 2022/991 of the European Parliament and of the Council of 8 June 2022 amending Regulation (EU)
2016/794, as regards Europols cooperationwith private parties, the processing of personal data by Europol in support of
criminal investigations, and Europols role in research and innovation 2022 (OJ L).
5. Carmen-Cristina Cirlig, Strengthening Europols Mandate - EU Legislation in Progress (Brief‌ing)(European
Parliamentary Research Service 2022).
6. Amended Europol Regulation WeakensData Protection Supervision(European Data Protection Supervisor 2022) Press Statement
EDPS/2022/16 <https://edps.europa.eu/system/f‌iles/2022-06/EDPS-2022-16-Press%20Statement%20on%20Europol%20Amended
%20Regulation_EN.pdf> accessed 2 August 2022.
Tas 535

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