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European Parliament meant that if a Turkey-Europol agreement was
signed these networks would try to bring the issue of human rights and
data protection in Turkey into the agenda of the Parliament and the ECJ.
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In order to avoid negative ECJ rulings, the EU authorities were reluctant
to sign a data exchange agreement with Turkey.
As a caveat to the above argument, in recent years, the recruitment of
European foreign fighters to the Islamic State (IS) through the Turkish-
Syrian borders and the possibility of these fighters to return to their home
countries and to be involved in terrorist attacks in the EU is expected to
change the existing asymmetrical situation in favour of Turkey; the EU
may, as a result, compromise on some data protection issues. According
to the International Centre for the Study of Radicalisation and Political
Violence (ISCR), by 2015 the estimated number of foreign fighters joining
the IS from EU countries has reached to almost 4000.
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The IS atrocities
towards EU citizens, including several beheadings and the terrorist attack
against the Charlie Hebdo cartoonists in France, necessitates the
cooperation of Europeans with Turkey in order to stop radicalised
European citizens from traveling to Iraq and Syria. The Europol Chief Rob
Wainwright has also highlighted the need for the EU and Europol to
cooperate with third countries establishing, for example, a database of
foreign fighters.
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In order to facilitate the exchange of personal data with
Turkey through the conclusion of an operational agreement and prevent
the increasing IS threat for the EU both the EU institutions and member
states may therefore ease their data protection requirements. But this
may affect future negotiations only in the medium to long term.
A third factor is that, if compared to the U.S. case, cooperation with
Turkey does not add much in terms of the international status and
prestige for Europol. While cooperation with the U.S. enhanced the
international recognition and actorness of Europol, cooperation with
Turkey, which has not been a trendsetter country in global
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counterterrorism, cannot bring similar benefits. For this reason Europol
has been less flexible with Turkey and less willing to accept concessions
on data protection issues.
Finally, since 2009 and the coming into force of the Lisbon treaty, Europol
has become an EU agency, which implies that the European Court of
Justice has acquired jurisdiction over the whole area of justice and home
Affairs, including Europol; Europol’s agreements with third countries are
therefore under the legal scrutiny of the ECJ
67
and Europol has less
autonomy compared to the pre-Lisbon treaty period when the agreements
with the U.S. were signed.
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In other words, the political environment is
not favourable for Europol and this factor reduces the ability of Europol to
be more flexible and make compromises on the issue of data protection in
its negotiations with Turkey.
To sum up, in view of the above four conditions, the EU is less dependent
on Turkey than vice versa and it insists on a hierarchical superiority mode
of relations for now. The EU has not made any compromises with Turkey
on data protection as it has done in the U.S. case. While this strict
approach enhances the normative aspects of the EU, it also reveals an
inconsistent stance on the part of the EU and Europol regarding the
degree to which they insist on the adoption of European norms and rules
by third countries. A comparison of the cases of Turkey and the U.S.
shows that the EU acts in a pragmatic manner on the issue of data
protection. The EU has been dependent on the U.S. and therefore it has
accepted the American demands. It has not, however, made any
concessions towards its EU candidate partners, such as Turkey, due to the
fact that it is less dependent on them. A similar pattern of relationship is
evident in the Morocco-EU/Europol relations which are analysed in the
next section.
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Political conditionality and the Morocco-Europol agreement
The relations between the EU and the European Neighbourhood countries
of the Mediterranean started in 1995 with the Barcelona Process which
aimed towards the promotion and adoption of liberal democratic norms in
the Mediterranean region.
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When it was launched, this initiative aimed to
ensure stability and security in the Mediterranean area through a Political
and Security Dialogue, an Economic and Financial Partnership and a
Social, Cultural and Human partnership. Regarding security issues, at that
time more emphasis was placed on the issues of organised crime and
illegal immigration rather than on the issue of terrorism.
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In 2004 the
broader European Neighbourhood Policy (ENP) was launched which
included the countries of the Barcelona Process. The ENP was modified by
the EU’s enlargement policy instruments.
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After the 9/11 attacks and especially after the attacks in Madrid and
London the EU perceptions towards the ENP countries changed. Regarding
Morocco, the involvement of Moroccan citizens to the Madrid Bombings
necessitated a closer cooperation of the EU with this country on
counterterrorism issues, including the conclusion of an agreement with
Europol on the sharing of personal data.
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At that time, however, the ENP
reports mentioned that there were significant shortcomings in the
capacity of Morocco to fight terrorism within the limits set by democratic
and human rights norms and within the rule of law.
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Therefore, an
important condition that Europeans set for the conclusion of an
operational agreement with Morocco was the improvement of human
rights and the strengthening of the rule of law in the area of
counterterrorism.
In 2005 the ENP plan for Morocco was adopted which prioritised the
enhancement of judicial and police cooperation on counterterrorism
matters between Morocco and member states and the negotiation of a
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