5 European Police Office (EUROPOL)
| (28237)
5055/07
COM(06) 817
+ ADD 1
+ ADD 2
| Draft Council Decision establishing the European Police Office
Commission staff working document: impact assessment
Commission staff working document: summary of impact assessment
|
| Legal base | Articles 30(1)(b), 30(2) and 34(2)(c) EU; consultation; unanimity
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 2 April 2007
|
| Previous Committee Report | HC 41-ix (2006-07), para 6 (7 February 2007)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
5.1 The European Police Office (EUROPOL) was established in 1995
by the EUROPOL Convention.[20]
It became fully operational in 1999. It was set up to support
and encourage cooperation between Member States to prevent and
detect cross-border organised serious crime. It is mainly concerned
with terrorism; illegal trafficking in human beings, drugs and
arms; and vehicle crime.
5.2 EUROPOL facilitates the exchange of information between Member
States; analyses criminal intelligence and disseminates the results;
and helps coordinate and support joint investigation teams. It
has no powers of investigation or arrest. It works with Member
States' law enforcement agencies (mainly police and customs authorities)
and with Interpol. It has cooperation agreements with, among others,
the USA, Turkey and Norway. It also works closely with Eurojust
(which supports and coordinates Member States' prosecutions of
cross-border crimes).
5.3 EUROPOL has its headquarters in The Hague. Its budget for
2007 is about €68 million and it has 406 staff. Its income
is provided by direct contributions from the Member States, not
from the EU budget.
5.4 In June 2006, the Justice and Home Affairs Council called
for work on whether and how to replace the EUROPOL Convention
by a Council Decision.
Previous scrutiny of the draft Decision
5.5 In February we considered the Commission's proposal for a
draft Decision to replace the EUROPOL Convention and the Protocols
to it. The Commission argues that the replacement is necessary
and desirable because:
- The process for amending the Convention is too slow and cumbersome.
Amending Protocols were agreed in 2000, 2002 and 2003 (for example,
to extend Europol's mandate to include money laundering). They
need ratification by the Member States before they can come into
effect. None of the three Protocols has yet completed the ratification
process; and
- Making EUROPOL an EU agency and financing it from the EU budget
would save time and administrative cost because EUROPOL would
become subject to the financial and staff rules which apply to
Eurojust, the Police Training College and other EU agencies.
5.6 The draft decision is based on the EUROPOL Convention and
the three Protocols to it. But it contains some new provisions,
such as:
- Article 3 provides that EUROPOL's objective should be "to
support and strengthen action by the competent authorities of
the Member States and their mutual cooperation in preventing and
combating serious crime and terrorism". And Article 4 proposes
that Europol's competence should "cover serious crime affecting
two or more Member States, in particular organised crime and terrorism".
Neither Article specifies a requirement for a link to organised
crime as a pre-condition for EUROPOL to become involved. The Commission
says that the current requirement for such a link has caused problems.
- Article 4(2) defines serious crime as the offences
listed in Annex I of the draft Decision. The offences are identical
to those listed in the European Arrest Warrant as cases where
the Member States may not refuse to execute a warrant on grounds
of lack of dual criminality. They include "computer-related
crime"; "murder, grievous bodily harm"; "racism
and xenophobia"; "swindling"; "racketeering";
and "sabotage".
- Article 38 proposes that the Regulations which
apply to the staff of the European Communities should also apply
to the Director and staff of EUROPOL.
- Article 41 provides that EUROPOL's revenue should
be a subsidy from the general budget of the European Union. The
Council and the European Parliament would be the budgetary authority
and would fix EUROPOL's budget each year.
- Article 50 proposes that the Protocol on the
privileges and immunities of the European Communities should apply
to the Director and staff of EUROPOL.
5.7 The Minister of State at the Home Office (Mr
Tony McNulty) told us that the Government supports the proposal
to replace the EUROPOL Convention by a Decision under the EU Treaty.
Decisions can be amended more easily than Conventions and the
present proposal presents an opportunity to review what EUROPOL
should do and how it can be made more effective.
5.8 But the Government had reservations about some
of the provisions of the draft Decision. The Minister said that
the Government would, for example, consider whether there might
be circumstances to justify the involvement of EUROPOL in crime
that is serious but which is not strictly "organised crime";
but it would be very cautious about an enlargement of EUROPOL's
remit that would divert it from its principal focus on the analysis
of criminal intelligence.
5.9 The Minister told us that the Government would
prefer EUROPOL to remain funded directly by the Member States.
It could accept the change to Community funding only if it did
not increase expenditure. The Minister added that the proposal
for the Community Staff Regulations to apply to EUROPOL's staff
would be likely to lead to an increase in Europol's budget which
it would be hard to justify. Accordingly, the Government would
reserve a firm view on the proposals about funding and the Staff
Regulations until it had further information about the financial
implications of the draft Decision.
5.10 We recognised that EUROPOL can make a useful
contribution to the prevention and detection of serious cross-border
organised crime. We also recognised that circumstances can change
quickly and that it is desirable that EUROPOL should be able to
respond to change without avoidable delay. We had no difficulty,
therefore, in accepting the case for replacing the EUROPOL Convention
by a Decision made under the EU Treaty.
5.11 Like the Government, however, we had some important
reservations about the current draft of the Decision:
- We were not persuaded that
the Commission had made a sufficient case for its proposal that
EUROPOL's competence should cover serious cross-border crimes
even if they have no connection with organised crime.
- We expressed concern that the
draft Decision defines "serious crime" by reference
to the list of "offences" in Annex I of the draft Decision.
The same list is used for the purposes of obviating the requirement
of dual criminality as a condition for executing a European Arrest
Warrant and has already been shown to cause practical difficulties
because there are no EU-wide definitions of, for example, "swindling",
"sabotage", "racism and xenophobia", and "computer-related
crime". We asked the Minister for his comments on the prudence
of using the list in Annex I to define serious crime for the purposes
of the Decision.
- Articles 12(1) and 15(1) of
the draft Decision provide that personal data held or processed
by EUROPOL must relate to people who are suspected of having committed
or are intending to commit an offence "in accordance with
the national law of the Member State concerned". We asked
the Minister to confirm whether this means that EUROPOL would
be prohibited from holding or processing personal data on people
who were suspected of something that was not a crime in the UK.
- We also questioned the lawfulness
of Article 50. It provides that the Director and staff of EUROPOL
should have the privileges and immunities of the European Communities.
But those privileges and immunities are contained in a Protocol
annexed to the Treaties establishing the European Community and
the European Atomic Energy Community, and, so far as we were aware,
there is no lawful means, consistent with Article 47 EU, to confer
those privileges and immunities on the staff of an EU agency by
means of an EU instrument.
5.12 We asked the Minister:
- to provide us with progress
reports about the negotiations on the draft Decision;
- to tell us what further information
the Government obtained about the Commission's proposals for funding
and the application of the Staff Regulations; and
- to comment on the concerns
summarised in the preceding paragraph.
The Minister's letter of 2 April
5.13 The Minister's letter responds to our request
for further information.
PROGRESS OF NEGOTIATIONS
5.14 The Minister says that the EUROPOL Working Group
has met four times this year to consider the draft Decision. Progress
so far has been slow. All Member States retain scrutiny reserves
on the proposal.
FUNDING AND THE STAFF REGULATIONS
5.15 In the opinion of the Council's Legal Services,
EUROPOL could not be funded from the Community budget, rather
than by direct contributions from Member States, if the Community's
Staff Regulations were not applied, in their entirety, to EUROPOL.
The Commission, the EUROPOL Working Group and the Working Party
on Staff Regulations have considered the implications of applying
the Regulations. There is a consensus that it is unlikely that
the budget would not increase. The Minister says: "Indeed
figures produced by EUROPOL, and included in the Opinion of [the
Working Party on Staff Regulations], suggest a 10% increase in
staff costs … We remain to be convinced that the proposal
to introduce the EC Staff Regulation will add any value or improve
EUROPOL's efficiency or effectiveness. The discussions will continue
within the EUROPOL Working Group."
EXTENDING EUROL'S COMPETENCE
5.16 Under this heading, the Minister says:
"You have concerns over the proposal that
EUROPOL's area of competence should be expanded to cover serious
cross-border crime that was not necessarily linked to organised
crime. Particularly you are concerned about the proposed list
of offences — based on the list used for the European Arrest
Warrant. There is widespread support in the EUROPOL Working Group
for expanding EUROPOL's mandate although there is no doubt in
the Working Group's mind that EUROPOL's priority areas remain
organised crime and terrorism. The Government has had to concede
some ground on the general principle of expanding EUROPOL's mandate
to include serious crime but we continue to try to limit any expansion
through proposed revisions to the relevant articles in Chapter
1 and, when it is discussed, the proposed list of offences."
STORAGE OF PERSONAL DATA
5.17 The Minister assures us that his understanding
of Articles 12(1) and 15(1) is that a Member State would be required
to send data to EUROPOL, and EUROPOL would store and process data,
only if the data related to a person suspected of having committed
(or intending to commit) an offence which is a crime in that country.
The Minister adds that Articles 12(1) and 15(1) reproduce the
provisions in Articles 8(1) and 11(1) of the EUROPOL Convention.
PRIVILEGES AND IMMUNITIES
5.18 In reply to our doubts about the lawfulness
of the proposal in Article 50 for the privileges and immunities
of the European Communities to apply to the Director and staff
of EUROPOL, the Minister says:
"Conferring these privileges and immunities
on the staff of EU bodies is not unprecedented. Article 3 of the
CEPOL Decision (2005/681/JHA) applies the Protocol on Privileges
and Immunities to the Director of [the European Police College]
and the staff of its secretariat. We do not consider that this
is prevented by Article 47 of the EC Treaty. Article 47 prevents
action from being taken under Title VI of the EU Treaty that encroaches
upon the powers conferred by the EC Treaty on the Community. We
do not consider that Article 50 of the EUROPOL Decision encroaches
upon powers conferred by the EC Treaty on the Community —
there is no power in the EC Treaty that would cover the adoption
of Article 50. Any further consideration of this issue by the
Government would be taken in the light of the outcome of the discussions
referred to earlier on the proposal to introduce the EC Staff
Regulation."
Conclusion
5.19 We are grateful to the Minister for providing
such a full reply to our request for further information.
5.20 We share his doubts about the case for applying
the Community Staff Regulations to EUROPOL.
5.21 We recognise that, in negotiations, it is
sometimes necessary to make concessions. We note that the Government
has conceded some ground on extending EUROPOL's mandate to include
serious crime, removing the present requirement for a link to
organised crime. We regret this because we remain to be convinced
that the change is fully justified.
5.22 We are more concerned, however, that the
Minister has not responded to our concerns about the list of offences
which, as we said in our previous Report, has been shown to cause
real difficulties in the case of the European Arrest Warrant because
of the absence of Europe-wide definitions of the "offences".
We ask the Minister both to reply to our concern and to tell us
if all other Member States are willing to accept the list or if
some have expressed reservations about it.
5.23 We were aware that there is precedent for
the application to an EU agency of the privileges and immunities
of the European Communities. Indeed, the previous Committee questioned
the lawfulness of applying them to the Director and staff of the
European Police College which is the precedent referred to by
the Minister. But we shall not pursue the point further at this
stage because we note the Government may reconsider the issue
in the light of the discussions on the application of the Staff
Regulations to EUROPOL.
5.24 We should be grateful to the Minister for
further progress reports and for his reply to our questions about
the list of offences. Meanwhile, we shall keep the draft Decision
under scrutiny.
20 OJ No. C 316, 27.11.95, p.1. Back
| 
