Select Committee on European Scrutiny Nineteenth Report




8785/01 ADD1




(and COR 1)

Initiative of the Kingdom of Sweden with a view to the adoption of a Council Act amending the Council Act of 12 March 1999 adopting the rules governing the transmission of personal data by Europol to third States and third bodies.

Council Act amending the Council Act of 12 March 1999 adopting the rules governing the transmission of personal data by Europol to third States and third bodies.

Legal base:Article 18(2) of the Europol Convention; consultation; unanimity
Forwarded to the Council:(a) 21 May 2001

(b) 4 December 2001

Deposited in Parliament:(a) and (b) 31 January 2002
Department:Home Office
Basis of consideration:Minister's letter of 1 February 2002 and EM of 31 January 2002
Previous Committee Report:None
To be discussed in Council:28 February 2002
Committee's assessment:Politically important
Committee's decision:(Both) Cleared


  14.1  The Council Act of 12 March 1999[48] adopted the rules governing the transmission of personal data by Europol to third States and third bodies. In July 1998, our sister Committee in the House of Lords published a report on the four sets of rules governing the relations of Europol with third States and bodies.[49] In the report, the Committee criticises the Government for not having provided three of the sets of rules (including those governing the transmission of personal data by Europol to third States and third bodies) for scrutiny in advance of their agreement. (At this time, our terms of reference did not allow us to scrutinise third pillar[50] proposals.)

The Minister's letter

  14.2  The Parliamentary Under- Secretary of State at the Home Office (Mr Bob Ainsworth) has sent us a letter with his Explanatory Memorandum, apologising for the delay in depositing the documents. He explains:

"The original initiative was launched under the Swedish Presidency in late May 2001. As a result of an internal administrative error these papers were marked down as not subject to Parliamentary Scrutiny. Discussion of these points during a working group meeting on 3 September 2001 led us to believe that a further redrafting would take place, after which scrutiny would then be addressed. This did not happen, and the measures were sidelined by the need to focus on responses to the events of 11 September. It was only when detailed enquiries were made in the last few days, in order to clear this initiative, that it was revealed that scrutiny had not been addressed."

The documents

  14.3  Document (b) is the proposed Council Act amending the Council Act of 1999. Document (a) contains the correspondence between the Europol Management Board and the Joint Supervisory Body (JSB) on the draft amendments. (The JSB monitors the activities of Europol in relation to data protection issues.)

Document (b)

  14.4  The purpose of the amendments is to allow, in certain circumstances, for data transmitted from Europol to a third body to be transmitted onwards to a third State or body. At present, the rules prohibit such onward transmission, which causes problems for third bodies which do not or cannot undertake their own data analysis.

  14.5  Amendments to three Articles in the Council Act of 1999 are proposed. First, additional wording to Article 4 provides for the Director of Europol to inform the Management Board and the JSB without undue delay of any decision to allow outward transmission of personal data, and to give the reasons for the decision.

  14.6  Secondly, two additions are proposed to Article 5 (5) which currently provides that Europol shall transmit data to a competent authority of a third State or to a third body only if that authority or body agrees that it will not communicate the data to other third States or bodies. The additions both provide for outward transmission in certain circumstances. The first provides for such transmission with the prior consent of Europol in cases where the third State or body receiving the data has concluded an agreement with Europol on the transmission of personal data, including data from onward transmission. The second allows the Director of Europol to authorise onward transmission of data in emergency situations. Even in such situations, however, account must be taken of the law and the administrative practice of the third State or non EU- related body in the field of data protection. In all cases of onward transmission, the consent of the Member State which originally provided Europol with the data must be obtained before transmission, and the Director must state why the data was transmitted via a third body rather than directly.

  14.7  Finally, a new Article (8a) is appended to Article 8, at the request of the JSB. This provides for the rules to be evaluated as from 1 January 2004 under the supervision of the Management Board, which is to obtain an Opinion from the JSB.

Document (a)

  14.8  Document (a) comprises five pieces of correspondence between the Europol Management Board and the JSB about document (b). In spelling out the proposed amendments to the JSB, the Management Board makes it clear that serious cases of counterfeiting the euro would be considered to constitute emergencies and hence could trigger onward transmission. Following comments from the JSB, the Management Board amended document (b) and added the new Article about evaluation. The JSB now finds the amendments acceptable.

The Government's view

  14.9  The Minister tells us that the amendments properly address the concerns which were originally raised by the JSB. He considers that they strike the right balance between the need for a strong data protection regime and the need to be able to respond to exceptional circumstances.


  14.10  We note with disappointment a further instance of delay from the Home Office. Although we accept that administrative oversight was to blame, there are unfortunate echoes of the earlier failure to provide our sister Committee with the original versions of the rules. We take the opportunity to emphasise the importance we place on these rules and to ask that special care be taken in future to deposit any amendments in good time.

  14.11  It is encouraging to see that the Management Board took account of the Opinion of the Joint Supervisory Body (JSB) in its framing of the amendments, and we are pleased that the rules are to be evaluated.

  14.12  Given the JSB's favourable Opinion, we clear the documents.

48  OJ C88/1, 30.3.99. Back

49  Europol: Third Country Rules: Twenty-ninth Report from the Select Committee on the European Communities, HL Paper 135(1997-98). Back

50  Before the entry into force of the Treaty of Amsterdam in May 1999, all justice and home affairs matters were dealt with under the "third pillar" of the EU. Back

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