9 European Police College
| (26037)
13506/04
COM(04) 623
| Draft Decision establishing the European Police College as a body of the European Union
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| Legal base | Articles 30(1)(c) and 34(2)(c) EU; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 30 November 2004
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| Previous Committee Report | HC 42-xxxvi (2003-04), para 11 (10 November 2004)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
9.1 In 2000, the Council adopted a Decision establishing the European
Police College as a network of national police training institutes
to supplement and support Member States' training for their senior
police officers in the prevention and detection of serious crimes
such as terrorism and trafficking in people, drugs and arms.[30]
The Decision gave the College neither a legal personality nor
a permanent location. The College is financed by contributions
from Member States. The College's budget for 2004 is €3.1
million. The United Kingdom makes the second largest contribution
to the budget, amounting to nearly 18% of the total.
9.2 Earlier this year, the Council adopted Decisions
to give the College a legal personality and to name Bramshill
in Hampshire as the permanent location of the College.[31]
9.3 Title VI of the Treaty on European Union (the
EU Treaty) makes provision for police and judicial cooperation
between Member States in criminal matters. Article 30(1)(c) of
the EU Treaty provides for cooperation and joint initiatives in
police training. Article 34(2)(c) empowers the Council to adopt
Decisions for any purpose consistent with the objectives of Title
VI of the Treaty, but excluding any approximation of the laws
and regulations of Member States.
9.4 Article 291 of the Treaty on the establishment
of the European Community (the EC Treaty) provides that:
"The Community shall enjoy in the territories
of the Member States such privileges and immunities as are necessary
for the performance of its tasks, under the conditions laid down
in the Protocol of 8 April 1965 on the privileges and immunities
of the European Communities. The same shall apply to the European
Central Bank, the European Monetary Institute and the European
Investment Bank."
The Protocol referred to in Article 291 contains
no reference to "bodies of the European Union". Although
Article 41 EU applies a number of Articles of the EC Treaty to
activities under Title VI of the EU Treaty, it does not apply
Article 291 EC.
The Commission's proposal
9.5 The document comprises a draft Decision and an
explanatory memorandum on it by the Commission. In the latter,
the Commission says that the effectiveness of the College has
been hampered by the absence of a legal personality, a permanent
base, direct funding from the Community's budget and the necessary
management arrangements and staff rules. The aim of the draft
Decision is to help overcome these difficulties. The main provisions
of the draft Decision are as follows.
9.6 Articles 1 and 2 propose that the College be
established "as a body of the European Union" with its
own legal personality.
9.7 Article 3 proposes that the privileges and immunities
of the European Communities should apply to the College, its director
and its staff.
9.8 Article 5 proposes a definition of the purpose
of the College.
9.9 Article 6 proposes that the College's objectives
should be:
- to increase the number of officers
with a working understanding of the practical aspects of law enforcement
cooperation;
- to contribute to the development of technical
and scientific knowledge about crime and the maintenance of law
and order; and
- to strengthen and improve cooperation in training
for law enforcement officers.
9.10 Article 7 proposes that the College's tasks
should be:
- to develop common standards
for training courses for law enforcement officers and provide
national training institutions with those standards and with course
modules;
- provide training for Member States' trainers;
- assess whether (and, if appropriate, certify
that) national training institutions are providing the College's
modules and methods to common standards;
- identify priorities for research in law enforcement
and commission research;
- disseminate best practice and research findings;
and
- promote training-related exchanges and secondments
of law enforcement officers.
9.11 Article 9 proposes that the Governing Board
of the College should be comprised of one representative of each
Member State and of the Commission. The Board's responsibilities
would include determining the College's budget and work plan and
nominating candidates for appointment as Director of the College.
9.12 Article 10 proposes that the Director should
be appointed by the Council for a term of five years, renewable
for a further five. The Director would be responsible for the
day-to-day management of the College and would be accountable
to the Governing Board.
9.13 Article 12 proposes that each Member State should
set up a College "national unit". The national units
would be responsible for putting into effect the modules, methods
and standards developed by the College and for evaluating their
use in national training institutions.
9.14 Article 14 proposes that the income of the College
should come from:
· an
annual subsidy from the budget of the European Union (the Commission
estimates that the subsidy would be about €4.5
million a year);
· fees
for services; and
· any
voluntary contributions from Member States.
9.15 Under Article 22, the Governing Board would
be required, at five-year intervals, to commission an independent
external evaluation of the implementation of the Decision and
of the efficiency and effectiveness of the College. The evaluation
reports would be sent to the Commission, the Council and the European
Parliament and be made public.
The Government's view
9.16 The Parliamentary Under-Secretary of State at
the Home Office (Caroline Flint) told us that the Commission's
proposal to transform the College into a body of the European
Union would enable it to improve its effectiveness. In the Government's
view, the proposal would not change the College's fundamental
role.
9.17 The Minister said that:
"As an EU Body, CEPOL [the College]
would receive funding from the Community budget. The benefit of
the change from funding the CEPOL budget from Member State contributions
on the basis of Gross National Product to Community funding is
that CEPOL could be funded for all of its activity from a central
source rather than having to apply for top up funding from various
EU programmes… The Government believes that this would add
flexibility, improve business planning, and assist with a more
responsive and more timely programme delivery."
9.18 The Minister also said that the proposal would
improve the arrangements for the governance of the College and
for decision-making. It would make the College's objectives more
explicit and extend the College's scope to include training for
law enforcement officers generally, rather than confine it to
senior police officers. Moreover, the proposal would require the
College to evaluate the effectiveness of its work. The Government
believes that these changes would enable the College to become
more effective.
Our initial questions
9.19 When we considered the proposal in November
2004, we recognised that cooperation between Member States in
the training of law enforcement officers can make a valuable contribution
to improving the prevention and detection of serious cross-border
crime. The European Police College has the potential to play a
major role in this. But, so far, it has been hampered by factors
outside its control, such as the present funding mechanism and
delay in providing it with a permanent base. We said that we were
glad, therefore, that it now has a permanent base at Bramshill
and that we shared the Government's view that changes along the
lines proposed in the draft Decision would be likely to enable
the College to be more effective and provide better value for
money.
9.20 We had the following questions, however, about
the provisions of the draft Decision:
- Article 1 proposes the establishment
of the College as "a body of the European Union". The
EC Treaty contains provision for the establishment of bodies of
the Community. But we were not aware of a legal base for the establishment
of bodies of the Union. We asked the Minister to explain the
significance of making the College "a body of the European
Union" when the EU Treaty does not provide for the EU itself
to enjoy legal personality.
- Article 291 of the EC Treaty does not apply to
Title VI of the EU Treaty, and neither that Article nor the Protocol
referred to in Article 291 EC refers to privileges or immunities
of the European Union or bodies of the Union. We asked the Minister
to explain the legal basis for conferring the privileges and immunities
of the European Communities on European Union bodies.
- The approximation of the laws and regulations
of the Member States is excluded from the scope of the decisions
that may be adopted under Article 34(2)(c) of the EU Treaty. We
asked the Minister to explain why the proposal in Article 3 of
the draft Decision to confer immunities and privileges on the
College, thereby affecting in a like manner the operation of the
laws of all Member States in relation to the College, does not
amount to an approximation of the laws and regulations of the
Member States. We also asked the Minister to explain why it is
thought necessary to extend each of the privileges and immunities
of the European Communities to the College, its director and its
staff when no analogous provision has been made in relation to
Eurojust.
- Article 12 of the draft Decision proposes that
every Member State should be required to appoint a "national
unit". It did not appear to us that the Commission had provided
a sufficient justification for this proposal. Moreover, it was
not clear that the requirement imposed on Member States by Article
12 would satisfy the tests for compliance with the principle of
subsidiarity.
- Article 22 of the draft Decision proposes that
there should be an independent external assessment of the College
once every five years. It seemed to us, however, that an early
improvement in the effectiveness of the College is called for
and that it might be prudent, therefore, if the first evaluation
were done after three rather than five years.
The Minister's reply of 30 November
9.21 We set out below the Minister's reply to our
questions:
"In respect of Articles 1 and 3 of the
Commission proposal, you enquired about the legal base both for
establishing bodies of the European Union, and for conferring
privileges and immunities of the European Communities on European
Union Bodies…
"We do not consider that the absence
of a specific legal base for the establishment of bodies of the
Union implies that such bodies may not be established under the
Treaty. Nor do we consider that the fact that the Treaty does
not provide that the Union shall have legal personality implies
that no body created under the Treaty may have legal personality.
In our view, where the creation of a body is required to facilitate
the attainment of the objectives set out in Article 29 of the
Treaty then such a body may be established under the Treaty. And
the measure establishing the body may deal with such ancillary
matters as legal personality and immunity in order to ensure that
the body can properly carry out its tasks. (The Committee will
note that Eurojust has legal personality — see Council Decision
2002/1 87/JHA, Article 1.)
"You also asked why the proposal to
confer privileges and immunities to CEPOL [the College]did not
amount to an approximation of the laws and regulations of the
Member States, and further why it was felt necessary to confer
such privileges and immunities on CEPOL when no such provision
had been made for Eurojust. As you say, the approximation of the
laws and regulations of the Member States is excluded from the
scope of decisions under Article 34(2)(c)of the EU Treaty. We
do not consider that the application of the Protocol on Privileges
and Immunities to CEPOL is ruled out by this restriction on the
scope of Article 34(2)(c). We consider that that qualification
is concerned with the approximation of rules on criminal matters
in the Member States and is intended to ensure that where such
approximation is provided for under Title VI it is to be achieved
by means of a framework decision under Article 34(2)(b) rather
than by means of a decision under Article 34(2)(c).
"However, to an extent the provision
of Article 3 [of the draft Decision] is largely redundant, and
the issue of the Protocol on immunities and privileges is somewhat
academic. The Committee will wish to note that there already exists
a draft Headquarters Agreement, between the Government and CEPOL,
which will confer privileges and immunities similar to the 1965
Protocol. This is secondary legislation, under the 1968 International
Organisations Act, which is being tabled by the Foreign and Commonwealth
Office. The draft Agreement is currently with the Joint Committee
on Statutory Instruments, and it is possible that it could come
into force by the end of this year. Foreign Office lawyers have
taken into account the possible impact of the draft Commission
proposal, and no changes to the Headquarters Agreement would be
necessary when, and if, CEPOL became a body of the European Union.
"Much of the inspiration for the draft
CEPOL Headquarters Agreement has derived from a similar draft,
which is currently being negotiated between the Netherlands Government
and Eurojust.
"You also raised the issue of 'CEPOL
National Units', which is set out in Article 12 of the draft Council
Decision, and you expressed some concern about this proposal satisfying
the tests for compliance with the principle of subsidiarity. Although
the Government understands the Commission's objective with this
Article, we understand that the language used has caused some
concern in a number of Member States, and expect it to be amended.
The Commission has stated that it is seeking to formalise the
establishment of contact points in Member State police training
establishments, so that communication between them and the CEPOL
centre, the Secretariat, is improved. However, we have noted the
apparent inconsistency with that aim, involving perhaps just one
or two individuals, and later proposals (Article 12 (4)) that
the National Units should be responsible for "implementing
the training, teaching and learning tools adopted by the Governing
Board", which is, more properly, the job of the training
academies (i.e. the CEPOL network).
"This Article takes into account that
while most Member States already have contact points, a named
individual, to whom training course information can be disseminated,
and issues about course costs and remuneration can be addressed,
the reality is that this is fairly ineffectual. It is not uncommon
for there to be little or no backup for when the contact person
in unavailable, or much evidence of succession planning. The consequent
and not uncommon communication breakdown creates difficulties
for the Secretariat, and frustration for all parties when trying
to fill training places. The current, fairly casual arrangement
in many Member States also takes little account of the fact that
there are typically any number of police forces within each country,
quite often served by different police training colleges, and
that there is no national coordination of CEPOL related activity.
"That said, however, the general concern
about the language in this Article has been recognised by the
Commission, and we have been advised that they will consider the
justification again, as a part of re-drafting the proposal.
"With regard to Article 22 of the draft
Council Decision, you considered that the first evaluation of
the College should take place after three years, rather than at
the five year mark. The Government shares your concern that the
European Police College has not been as effective as it could
have been, notwithstanding the early problems with a lack of legal
personality, resource issues, and not having a permanent location
for the Secretariat. However, at the end of last year the Governing
Board produced a review report of the first three years of its
operation. At the end of 2005, a further report is required to
be delivered to the Council. The Government recognises the benefit
of an earlier assessment, and will raise the matter at the next
meeting of the working group, which is considering the Commission
proposal. But initial enquiries suggest that there will be little
support among most of the other Member States for amending this
proposal.
"Finally, you enquired about the progress
of the negotiations to date. The Article 36 Committee remitted
the draft proposal to the Police Co-operation Working Group, for
detailed discussion. At its first meeting [in] November, there
was considerable opposition to the proposal from Germany, France
and Austria, to the extent that these countries prevented any
discussion. The main concerns of these countries were around the
timing of the proposal (France, in particular felt that there
was no justification for the proposed change); concerns that the
existing CEPOL network structure would be weakened; and fears
that the new CEPOL Director would take on an executive role, thus
diminishing the authority of the Governing Board.
"The Commission proposal was discussed
at the CEPOL Governing Board meeting on 23 November, and in the
face of an obvious willingness on the part of the Commission to
consider drafting amendments, the position of France and Germany
on the Governing Board appears to have softened somewhat. The
next meeting of the Police Co-operation Working Group is on 15
December."
Conclusion
9.22 We are grateful to the Minister for providing
such a full reply.
9.23 We did not and do not question that Article
30(1)(c) of the EU Treaty provides an appropriate legal base for
the establishment of the European Police College. Our questions
were about the legal base for:
- establishing the College
as a "body of the European Union";
- giving it a legal personality; and
- conferring on the College the privileges and
immunities of the European Communities.
The Minister's answer appears to be that no express
powers exist for these three purposes but that none is needed
because the provisions are a necessary consequence of the establishment
of the College under Article 30(1)(c). Apart from the case of
Eurojust (which in any event is referred to by name in the EU
Treaty) we are unaware of any other body formally established
as a body of the European Union and we should be grateful if the
Minister would tell us of any such bodies and how they came to
be granted that status.
9.24 To our mind, the Minister still has not provided
a satisfactory explanation of the legal basis for conferring the
privileges and immunities of the European Communities on a European
Union body when Article 291 EC (which confers necessary privileges
and immunities on the European Communities) does not apply to
Title VI of the EU Treaty. Our present view is that Article 3
of the proposal (which purports to confer such immunities) is
a legal nullity and should be deleted.
9.25 We note the Minister's explanation that,
following the conclusion of a Headquarters Agreement, an order
will be presented under the International Organisations Act 1968
to confer privileges and immunities under the law of the United
Kingdom on the European Police College. If such an order is made
it would appear to make the provisions of Article 3, in the Minister's
words "redundant" and we would be grateful if the Minister
will confirm that Article 3 will be deleted from the proposed
Decision.
9.26 We note the Minister's view that the prohibition
in Article 34(2)(c) of the EU Treaty relates only to the approximation
of the laws and regulations of Member States in relation to criminal
matters, but we are not persuaded by it, since in our view the
prohibition is not limited to criminal matters but extends to
the "laws and regulations" of Member States generally.
9.27 We note that the justification for "CEPOL
National Units" is to be reconsidered and that it is expected
that Article 12 will be amended. We shall reserve further comment
on the matter until we see a revised draft of the Decision.
9.28 As for Article 22 of the proposal, we are
glad that the Government recognizes the benefit of having the
first evaluation of the College in less than five years and that
it will raise the matter in the working group. We ask the Minister
to tell us the outcome of the discussion.
9.29 It appears from the Minister's letter that
some major issues remain for negotiation. We ask her to keep us
informed of the progress of the discussions. We shall keep the
document under scrutiny pending the Minister's reply to our requests
for further information.
30 Council Decision 2000/820/JHA, OJ No. L 336, 30.12.00,
p.1. Back
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OJ No. L 251, 27.7.04, p.19 and OJ No. L 251, 27. 7. 04, p. 20. Back
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