6
in 1992 with the Treaty on European Union (TEU) which postulated
explicitly the creation of a European Police Office. Subsequently, the
Europol Drugs Unit (the predecessor of Europol) emerged in January
1994.
9
Europol emerged out of this unit in 1995 when the EU’s member
states signed the Europol Convention (1995) which came finally into
operation in 1998.
10
Since the establishment of Europol, senior Europol officials emphasized in
every occasion that cooperation with third countries was necessary for the
fight against transnational crime. In line with this view, the Council of the
EU adopted in 1997 an action plan against organised crime;
11
among the
plan’s recommendations was the enhancement of Europol’s ability to liaise
with third countries and international organisations with the creation of
suitable legal instruments. Additionally, in December 1997 the Justice and
Home Affairs Council adopted three reports related to the exchange of
police and criminal intelligence between Europol and third countries.
12
These reports dealt with issues like the posting of liaison officers and the
transmission of personal data from Europol to a third country.
Initially, counter-terrorism was beyond Europol’s mandate, given, among
others, the lack of a political agreement among Europeans on the
definition of terrorism.
13
However, this situation started gradually to
change through the efforts of the Spanish government, which has
suffered from ETA’s (Euskadi Ta Askatasuna) terrorist activities. In 1998,
the Council of the EU agreed to add terrorism into Europol’s mandate.
14
Finally, the Council of the EU authorised in 2000 Europol’s Director to
start negotiations with non-EU states and with international bodies and
organisations for the conclusion of cooperation agreements.
15
Europol’s cooperation with third countries is based on two types of
agreements, namely strategic agreements and operational agreements.
The former aims to facilitate Europol’s cooperation with third countries
7
through the sharing of best practices and technical expertise and the
establishment of liaison points; it does not include, however, the sharing
of personal data. It is also a preliminary agreement in the sense that it
can open the way for the conclusion of an operational agreement. The
latter, allows the exchange of both personal and technical data between
Europol and the law enforcement agencies of third countries.
16
According
to the rules of Europol, before the start of negotiations with a third
country the data protection system of this country should be assessed
according to the European standards.
17
If a third country has adopted
EU’s data protection rules, then the member countries can exchange
information with this country through the Europol channels. However, in
the absence of compliance with EU’s data protection regulations third
countries cannot benefit from Europol’s intelligence.
18
As of August 2015, Europol has concluded operational agreements with
thirteen countries (Albania, Australia, Canada, Colombia, Macedonia,
Iceland, Montenegro, Norway, Serbia, Switzerland, Liechtenstein, Monaco,
and the U.S.) and strategic agreements with five countries (Bosnia-
Herzegovina, Moldova, Russian Federation, Turkey, and Ukraine). A quick
look at these agreements gives a mixed picture regarding the inclusion of
data protection rules; in other words, EU’s and Europol’s data protection
requirements have not been fulfilled in the same way across the
agreements. This lack of consistency is linked with the power of the EU
vis-à-vis each country; EU is more effective in exporting its norms into
countries that are not as powerful as the EU rather than into countries
which have equal or more power than the EU.
Power asymmetry, interest formation and the conditions for a
change in asymmetry
Power has been traditionally one of the main concepts through which
scholars have tried to examine the relations among states and between
states and international organisations. From the perspective of stronger
8
actors it can be defined as “the ability of an actor to get others to do
something”.
19
From the perspective of weaker actors power is “the ability
to overcome the resistance of others”.
20
The equilibrium between the
ability of a stronger player to impose its preferences and the ability of a
weaker player to resist such an imposition determines the nature of the
power relations between the two actors under question.
Equally important to the concept of power is the concept of
interdependence. According to Keohane and Nye, interdependence
emerges when there are intensive cross-border transactions between two
or more actors, such as flows of money, goods, persons, and information,
creating certain gains and losses for both parties. The actors which have a
preponderance of resources and which are less dependent on
international cooperation can influence more easily the actors which are
more dependent on cooperation.
21
In relations based on interdependence,
the powerful actors may cause or trigger an interest formation process in
the weaker actors which have a greater need to initiate or sustain the
cooperation; in this way, weaker actors may abandon their previous
legislative and institutional priorities.
22
In such situations of asymmetric
interdependence the actors which are more dependent on the cooperation
with third states tend to compromise and to give concessions to these
third states in order to secure the benefits gained from international
cooperation.
23
Additionally, in the international relations literature power is often
conceptualised as having two dimensions, namely “hard” power and “soft”
power. Hard power is based on using coercive tactics for influencing other
countries. On the contrary, soft power is based on persuasion tactics,
social interactions and the promotion of norms and values for shaping the
behaviour of other actors.
24
The type of power that an actor favours the
most depend on this actor’s “strategic culture” which is shaped by
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