6. PROTOCOL AMENDING THE EUROPOL CONVENTION
(a)
(23616)
10307/02
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(b)
(23929)
13254/02
—
(c)
(24006)
13254/2/02
—
(d)
(24007)
13688/02
—
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Initiative of the Kingdom of Denmark with a view to adopting a Council Act drawing up, on the basis of Article 43(1) of the Convention on the establishment of a European Police Office (Europol Convention), of a Protocol amending that Convention.
Initiative of the Kingdom of Denmark with a view to adopting a Council Act drawing up, on the basis of Article 43(1) of the Convention on the establishment of a European Police Office (Europol Convention), of a Protocol amending that Convention.
Initiative of the Kingdom of Denmark with a view to adopting a Council Act drawing up, on the basis of Article 43(1) of the Convention on the establishment of a European Police Office (Europol Convention), of a Protocol amending that Convention.
Initiative of the Kingdom of Denmark with a view to adopting a Council Act drawing up, on the basis of Article 43(1) of the Convention on the establishment of a European Police Office (Europol Convention), of a Protocol amending that Convention.
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| Legal base: | Article 43(1) Europol Convention; consultation; unanimity
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| Document originated: | (b) 21 October 2002
(c) 21 November 2002
(d) 4 November 2002
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| Deposited in Parliament: | (b) 1 November 2002
(c) 25 November 2002
(d) 25 November 2002
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| Department: | Home Office
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| Basis of consideration: | Minister's letter of 3 December 2002 and EM of 3 December 2002 and Minister's letter to Lord Grenfell of 11 December 2002
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| Previous Committee Report: | (a)HC 152-xxxix (2001-02), paragraph 5 (23 October 2002)
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| To be discussed in Council: | 19/20 December 2002
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| Committee's assessment: | Politically important
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| Committee's decision: | (a) (b) and (d) Cleared
(c) Not cleared; further information requested
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Background
6.1 The proposed Protocol, which Member States would
need to adopt according to their respective constitutional requirements,
puts forward a number of changes which the Danish Presidency considers
need to be made to the Europol Convention. When we considered
document (a) in October, we agreed with the Government that this
measure might not be of the first priority and asked what had
happened to the proposal for a simplified procedure for amending
the Europol Convention.
6.2 We also supported the Parliamentary Under-Secretary
of State at the Home Office (Mr Bob Ainsworth) in opposing any
weakening of the role of Europol National Units. We kept the document
under scrutiny until there was more information about whether
the Government had been successful in negotiations on this issue.
6.3 One of the Government's earlier concerns was that
discussion of this document might delay the adoption of the provisions
on Europol support for joint investigation teams.[13]
These were, however, adopted by the Justice and Home Affairs Council
on 29 November 2002.
6.4 Our sister Committee in the House of Lords is undertaking
an enquiry on this proposal. Its report is due to be published
early in the new year.
The Minister's letter
6.5 The Minister wrote to us on 3 December, sharing our
concern about the number of documents recommending changes to
Europol, and answering our question about what happened to the
proposal for a simplified procedure for amending the Europol Convention.
He tells us that the proposal was discussed in various EU fora
under the Spanish Presidency, without any agreement being reached.
The papers remain on the table: they have not been discussed during
the Danish Presidency and it is not known whether they will be
picked up by any incoming Presidencies.
The new documents
6.6 The Government has now deposited three further documents
with a covering Explanatory Memorandum. Document (b) reflects
the outcome of discussions by the Member States on document (a).
Document (d) contains the comments of the Joint Supervisory Body
(JSB)[14] on document
(a). Document (c) is an amended version of document (a) which
effectively supersedes, while taking account of, documents (b)
and (d).
6.7 The Minister has also provided us with two helpful
Annexes, one showing how document (c) would amend the Convention
if it were adopted; the other showing how document (a) would have
amended the Convention. He tells us that the European Parliament
has not yet given an opinion on document (a), but the Europol
Management Board has.
6.8 On 11 December, the Minister wrote to Lord Grenfell
(whose letter outlining a number of issues related to the proposal
had crossed with the new documents and Explanatory Memorandum).
This letter largely covers the same ground as the Explanatory
Memorandum.
The Government's view
6.9 The Minister makes the following general points:
"The Government supports the general purposes
of the Danish Presidency's proposals, but has been concerned that
a number of the original proposals in [document (a)] would significantly
alter the scheme of the Europol Convention. In particular, the
Presidency's original proposals ....involved widening Europol's
mandate to cover serious international crime which is not organised,
and would have allowed competent authorities and Europol to
by-pass the national units, which collectively need to retain
an overview of the totality of the information flows to and from
Europol. Together, these proposals would have made it difficult
to ensure that the focus of Europol's activities is on high priority
crime threats. The Government was also concerned about details
of proposals having data protection implications, and suggested
to the Presidency that an opinion from the Joint Supervisory Body
would be helpful nothwithstanding that there is no requirement
under the Convention to obtain an opinion.
"The Presidency's latest proposals in [document
(c)] amount to a significant shift from the Presidency's original
position....The Government is now broadly content with the latest
proposals. The Presidency intends to seek a general approach
in the meeting of the Justice and Home Affairs Council on
19-20 December 2002."
6.10 In his letter of 11 December, the Minister amplifies
this last point. He says that the Government has made clear to
the Presidency that its support is conditional on an opinion on
document (c) from the Joint Supervisory Body. He continues:
"We understand that a further opinion will
indeed be obtained, though probably not before the meeting on
19-20 December. We have made clear that in the event that the
Joint Supervisory Body has any remaining substantial concerns,
then we would wish to revisit the text with a view to ensuring
that the outstanding points are resolved before the amendments
to the Convention are finally agreed in the Council. In agreeing
to a general approach, we have previously made it clear to Presidencies,
and will continue to make it clear, that the UK Government reserves
the right to re-open a text after a general approach has been
approved on the basis of concerns raised by our Parliament."
6.11 In his Explanatory Memorandum, the Minister provides
a brief commentary on a number of provisions in document (c).
We concentrate below on some of the key issues.
Europol's Objective
6.12 The Minister tells us:
"The Presidency has reverted to Europol's existing mandate,
which covers all the forms of serious international crime which
are organised in the existing Article 2 and the existing Annex
to the Convention. Article 2 and the Annex list the forms of crime,
making clear that related money laundering offences and crimes
associated with terrorist activities are included. Article 43
provides that the Annex may be amended, so that for example further
crimes may be added to the list if appropriate. The Joint Supervisory
Body, commenting on the earlier provisions,...was concerned that
they did not include objective criteria for assessing what was
meant by 'serious international crime'. The Government would have
preferred that the Article provide more comprehensive definitions
of 'serious international crime' and 'organised criminal structure'
but can accept the present compromise. The Article also provides
that Europol may assist the Member States where there are 'suspicions'
that an organised criminal structure is involved. The Government
is not convinced that there is a need for this, but can accept
it.
"Proposed Article 2 (1a) provides for the Europol Management
Board and the Council to prioritise Europol's activities. The
United Kingdom pressed for this. The Government takes the line
that it is not necessary for Europol to spread its activities
across the whole range of crimes in its mandate."
The Minister informs us that a later Article requires the Director
to up-date the Management Board on the implementation of priorities.
Again, the UK pressed for this.
National units and right of access to the information system
6.13 The Minister tells us that the Government's strong
views on the earlier proposals to remove reference to the Europol
National Units as the only liaison body between Europol and competent
national authorities have broadly been met. He continues:
"In particular, each Member State would be
able to decide for itself whether direct contact would be appropriate
for its own competent authorities. Direct contact would be with
the prior involvement of the national unit, and information exchanged
would be sent to the national unit. The Government will, though,
seek clarification that information will be sent simultaneously
to the national unit. (This to an extent reflects what is
understood to happen already on occasions when competent authorities
have direct contact with Europol, but in the presence, and with
the agreement of, a member of the national unit.) The Joint Supervisory
Body had concerns about the security of personal data if an increased
number of organisations had direct contact with Europol. There
will also be a need to clarify that Article 9 (4), involving interrogation
of the Europol information system on a hit/no-hit basis, should
always involve the national unit if the outcome of the query is
positive.
"The United Kingdom has also made clear that
it will be important for provision to be made for each Member
State to designate its competent authorities under the Convention
for the purposes of direct contact with Europol...and there
needs also to be a requirement written in to the Convention
that each Member State must declare who its competent authorities
are."
Communication of data to third States and third bodies
6.14 The Minister welcomes the Presidency's decision
to drop its earlier proposal which provided for prior consent
by a Member State to communication be presumed. He tells us that
earlier proposals provided for data to be communicated to third
states and bodies without an adequate level of data protection
in exceptional cases. The Joint Supervisory Body had commented
that, even in such cases, some assessment should be undertaken.
The latest proposals, with which the Government is content, provides
that, in all exceptional cases, the Director of Europol must weigh
the data protection level against the essential interests being
safeguarded.
Time limits for the storage and deletion of data files
6.15 The purpose of this Article is that data should
not be kept for longer than necessary. The Joint Supervisory Body
recommended re-examination of the Presidency's proposal to increase
storage from three to five years, and for continued storage to
be reviewed every three years instead of annually. The latest
proposals keep the five year storage limit for storage, but reinstate
the annual review of continued storage. The Government is content
with these proposals.
Europol and the European Parliament
6.16 A number of provisions relate to the European Parliament
(EP). The Minister tells us that he welcomes the proposals to
forward the Joint Supervisory Body's activity reports and Europol's
reports on past and future activities to the EP. He also supports
the proposals for the Presidency and the Director to appear before
the EP to discuss general questions. The proposal for a joint
committee of the EP and national parliaments has been dropped
from the text since it was considered to be a matter for the bodies
themselves, rather than a matter to appear on the face of the
Convention.
Conclusion
6.17 We thank the Minister for his full and helpful
Explanatory Memorandum and for the two Annexes which have helped
us find our way through these documents. We are somewhat surprised
by his broad welcome for the latest text (document (c))since,
in several respects it seems to fall short of his original wishes.
6.18 We recall, for example, that in his letter to
Baroness Harris with regard to document (a) the Minister stated
that the Government recommended adoption of the definitions of
"serious crime" and "transnational crime"
in Articles 2 and 3 of the United Nations Convention against Transnational
Organised Crime. He further stated that, if there was a consensus
among the Member States that Europol's mandate should be confined
to serious international crime that is organised (as he now tells
us there is), the Government would recommend adoption of the definitions
of "organised criminal group" and "structured group"
in Article 2 of the United Nations Convention. We agree that such
objective definitions would be helpful, and ask why the Minister
is not still pressing for them.
6.19 We also ask why the Minister "can accept"
the provision that Europol may assist Member States where there
are "suspicions" that an organised criminal structure
is involved. This seems to us a disturbingly broad provision.
6.20 With regard to national units, we note that the
Minister considers the Government's strong views on the earlier
proposals have broadly been met. We accept that the new provisions
probably ensure that the national units will collectively know
the totality of the information flows from and to Europol —
one of the UK's concerns. But the proposal that each Member State
can decide for itself whether direct contact would be appropriate
for its own competent authorities seems likely to lead to the
kind of fragmentation and lack of coherence which we understood
to be another key concern. We ask the Minister to clarify his
position.
6.21 We are pleased to learn that the UK suggested
to the Presidency that an opinion from the Joint Supervisory Body
on document (a) would be helpful, and to see that several of their
comments have led to amendments in document (c) which strengthen
aspects of data protection. It is good to know that they will
also provide an opinion on document (c) — and we ask to
see a copy.
6.22 We are pleased that the provisions for an improved
information flow to the European Parliament (EP) remain. We shall
consider taking the suggestion for a joint committee of the EP
and national parliaments forward ourselves, if it is not to appear
on the face of the Convention.
6.23 We ask the Minister if he agrees that there should
be a review of the involvement of the EP in decisions related
to Europol. As he may know, we remain convinced that the EP should
be consulted on Europol's agreements with third states and non-EU
related bodies. Even if the legal basis for such consultation
is contested, it appears absurd that the EP has to be consulted
over the amendment of the Europol staff regulations, when it has
no locus in relation to far more significant measures.
6.24 We clear documents (a), (b) and (d) as superseded
texts. We will keep document (c) under scrutiny until we know
the outcome of the discussions on it at the December meeting of
the Justice and Home Affairs Council, and until we have the Minister's
response to our questions.
13 (23817)12340/02:
see HC 152-xxxix (2001-02), paragraph 18 (23 October 2002). Back
14 The
Joint Supervisory Body monitors the activities of Europol in relation
to data protection issues.
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