Documents considered by the Committee on 9 February 2011 - European Scrutiny Committee Contents

10   National parliaments' scrutiny of Europol



COM(10) 776

Commission Communication on the procedures for the scrutiny of Europol's activities by the European Parliament together with national parliaments

Legal base
Document originated17 December 2010
Deposited in Parliament11 January 2011
DepartmentHome Office
Basis of considerationEM of 20 January 2011
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionNot cleared


10.1  Europol — or the European Police Office — is the Hague-based EU law enforcement organisation responsible for the collection, exchange and analysis of criminal intelligence. It was originally established by means of an intergovernmental Convention and became fully operational on 1 July 1999. Each subsequent change to the Convention has required a lengthy process of negotiation and ratification in each Member State. This made it difficult to adjust Europol's objectives and activities to changing circumstances. The Council therefore decided to adopt an EU Decision in 2009 ("the 2009 Decision") which took effect on 1 January 2010 and which replaces the Convention and establishes Europol as an EU agency.[50] This has a number of consequences. The Decision itself is easier to amend; Europol is financed from the EU budget, rather than by contributions from Member States, and is subject to the EU's Financial Regulations; and EU Staff Regulations apply to Europol staff.

10.2  Europol's objective is to support and strengthen the work of national law enforcement authorities in preventing and combating organised crime, terrorism and other forms of serious crime affecting two or more Member States which require a common approach because of the scale, significance and consequences of the offences concerned.[51] Europol provides criminal intelligence analysis, expertise and technical support for investigations and operations carried out by Member States, and generates its own strategic reports (for example on organised crime). Europol is also active in providing training, crime analysis, advice on crime prevention and on investigative techniques.

10.3  Europol is politically accountable to the Council which appoints (and may also remove) its Director. The Director is accountable to Europol's Management Board which is made up of one representative from each Member State and the Commission. Each year, the Management Board is required to agree an annual budget for Europol and to produce two reports, one reviewing Europol's activities in the previous year and the other setting out a work programme for Europol's future activities. All three documents must be endorsed by the Council and sent to the European Parliament for information.

10.4  The Lisbon Treaty, which entered into force on 1 December 2009, introduced a number of changes which will affect Europol. First, it amended the Treaty on the European Union (TEU) to include a new Article 12 on national parliaments. This Article sets out the different ways in which national parliaments may "contribute actively to the good functioning of the Union," including through involvement in the "political monitoring of Europol."[52] Second, a new Article 88 in the Treaty on the Functioning of the European Union (TFEU) says that, in future, the legal framework establishing Europol's structure, operation, field of action and tasks will be jointly agreed by the European Parliament and the Council by means of Regulations which will "also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national parliaments."[53] Finally, Article 9 of Protocol 1 on the role of national parliaments in the European Union provides that "the European Parliament and national parliaments shall together determine the organisation and promotion of effective and regular inter-parliamentary cooperation within the Union."

10.5  In the Stockholm Programme, which establishes the EU's multi-annual programme for the area of freedom, security and justice for the period 2010-14, the European Council invites the Commission to "issue as soon as possible a reflection document on how best to ensure that the activities of Europol may be scrutinised by the European Parliament, together with national parliaments in line with Article 88 TFEU".[54]

The Commission Communication

10.6  The purpose of the Communication is to stimulate ideas and, eventually, "concrete proposals as to how mechanisms of parliamentary scrutiny can be put in place and efficiently implemented in practice, in line with Article 88 TFEU."[55] These proposals are likely to form part of a broader legislative initiative by the Commission in 2013 to establish a new legal framework for Europol based on an EU Regulation.

10.7  The Communication sets out the ways in which the 2009 Decision enables the European Parliament to exercise oversight of Europol at EU level. These include:

  • budgetary oversight, as part of the EU's budgetary authority;
  • a right to require the Director or the Chair of the Management Board to appear before it; and
  • access to annual reports on Europol's budget, past activities and future work programme and to activity reports produced by the Joint Supervisory Body responsible for monitoring Europol's compliance with data protection rules.

10.8  By contrast, the Commission explains that oversight of Europol by national parliaments is determined "in accordance with the constitutional rules of each Member State." Member State representatives on Europol's Management Board report to the Justice and Home Affairs Council; and each Government Minister participating in the Council "is responsible for providing adequate information on the functioning of Europol to his/her national parliament, where he/she can be held accountable for the Ministry's policy regarding Europol."[56]

10.9  The Commission says that a number of suggestions for enhancing scrutiny of Europol have been suggested within the Conference of Parliamentary Committees for EU Affairs ("COSAC"). These have included:

  • using COSAC as a forum for exchanging ideas, information and best practice on national parliamentary scrutiny of Europol;
  • establishing a Joint Committee with members drawn from the relevant specialist committees at EP and national level; or
  • using existing inter-parliamentary meetings involving members of the European Parliament and of national parliaments to strengthen cooperation on Europol.

10.10  The Commission notes that one of the factors driving the demand for greater parliamentary (and judicial) oversight of Europol in the past has been a concern that Europol might eventually acquire autonomous powers to initiate investigations and carry out operations on the territory of a Member State, including, for example, powers to make an arrest, perform a house search or tap communications. The Commission says that Article 88(3) TFEU expressly rules out this possibility by making clear that any operational action by Europol officers "must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned" and by specifying that "the application of coercive measures shall be the exclusive responsibility of the competent national authorities."

10.11  It follows, in the Commission's view, that the opportunities for scrutiny of Europol by the European Parliament are "legally appropriate". The Commission would not support deeper involvement by, for example, including provision in a future Regulation for the European Parliament to designate members of Europol's Management Board or to participate in the appointment of Europol's Director. The Commission adds, however, that existing arrangements do not meet the requirements of Article 88(2) TFEU which suggest a need for coordination between the European Parliament and national parliaments in scrutinising Europol.

10.12  The Commission says that EU institutions and other stakeholders — notably, national parliaments — will need to determine "the shape and content of forthcoming procedures for the democratic scrutiny of Europol" but that it would favour the establishment of a permanent joint or inter-parliamentary forum which would:

  • bring together members of the relevant European Parliament and national parliamentary committees responsible for police matters;
  • meet regularly;
  • invite Europol's Director and Chair of the Management Board to discuss questions relating to Europol's work; and
  • possibly, establish a sub-group to liaise directly with Europol.

10.13  The Commission contemplates that this new inter-parliamentary forum would establish a mechanism for "information exchange and coordination between national parliaments and the European Parliament with a view to unifying parliamentary control at European Union level (without prejudice to national parliamentary procedures)."[57] The forum could also facilitate a more regular exchange of views with Europol's governing bodies on overall strategy as well as on reports evaluating Europol's performance. It would provide a new channel of communication to enable information on Europol to be transmitted swiftly to national parliaments

The Government's view

10.14  The Minister for Crime Prevention (James Brokenshire) says that the Government "fully supports the need for accountability" but considers that existing procedures allow for stringent scrutiny of Europol by Parliament and remain appropriate. He continues:

"The Government would need to be confident that any additional scrutiny process is proportionate and adds value. A proposal for an inter-parliamentary forum was first raised in 2002 by the Commission in their Communication on Democratic Control over Europe, and the House of Lords European Union Committee stated in their November 2008 report on Europol that the notion of a joint Committee involving 27 Member States would be almost unworkable. We agree with that view and see no added value in establishing such a forum."

10.15  Notwithstanding, the Minister adds that the Government would welcome the Committee's views. He notes that the inter-parliamentary forum could be established without the need for further legislation but that, if new forms of scrutiny are introduced, they are likely to be reflected in the new Regulation on Europol which the Commission intends to propose in 2013. He adds that the inter-parliamentary forum would have financial and resource implications.

10.16  Finally, the Minister agrees with the Commission that, in order to protect Europol's political independence, there should be no role for the European Parliament on Europol's Management Board or in appointing Europol's Director.


10.17  We think it is important to emphasise that the ideas contained in the Commission's Communication would be in addition to our existing scrutiny procedures. Any future changes to Europol which would require legislation — for example, to amend the 2009 Decision establishing Europol as an EU agency, or to propose a new Regulation on Europol in 2013 — would therefore be subject to scrutiny in the usual way and the Government would be accountable to Parliament for the positions it takes in the Council of Ministers.

10.18  The type of scrutiny which the Communication appears to envisage would operate at a different level (European, rather than national), would involve a different set of actors (members of the European Parliament and, potentially, members of specialist national parliamentary committees responsible for police matters) and would cover aspects of Europol's strategic planning and activities which this Committee would not routinely consider. In considering how to give effect to the procedures for joint scrutiny of Europol contemplated in Article 88(2) TFEU, we think it is essential to adhere to the principles set out in Articles 9 and 10 of Protocol 1 that, first, it is for the European Parliament and national parliaments to determine together how to organise and promote effective and regular inter-parliamentary cooperation and, second, that any views expressed within the framework of inter-parliamentary cooperation should not bind national parliaments or prejudge their positions.

10.19  It is difficult to envisage how, in practical terms, Article 88(2) TFEU could be implemented without establishing some form of inter-parliamentary forum, but we think the emphasis should be on exchanging information and best practice and strengthening cooperation. We do not accept that it is a feasible, or desirable, aspiration for the forum to create a mechanism "for coordination between national parliaments and the European Parliament with a view to unifying parliamentary control at European Union level", as the Commission suggests. National parliaments must remain free to express their own views and concerns. Nor do we accept that the way in which national parliaments are represented in the forum, for example, by specifying that only members of specialist national parliamentary committees responsible for police matters may attend, should be prescribed in advance. Each national parliamentary chamber should be free to determine whether and how it wishes to be represented.

10.20  We accept that there is a risk that an inter-parliamentary forum involving all 27 national parliaments and the European Parliament could be unwieldy and cumbersome but do not see how a smaller body could claim to be representative. We think that the risk could be mitigated by making procedures as light and flexible as possible and minimising the call on resources. One possibility might be to use the mechanisms already established for inter-parliamentary meetings between the European Parliament and national parliaments using the format of Joint-Committee meetings.

10.21  The ideas contained in the Communication are likely to be of interest to the Home Affairs Committee, not least because its 2007 Report on Justice and Home Affairs Issues at the European Union level suggested that provision should be made for scrutiny of Europol by national parliaments in conjunction with the European Parliament. The role of the European Scrutiny Committee, set out in Standing Order No. 143, is to examine all EU documents and to express its opinion on their legal and political importance. We cannot consider proposals in the same depth as Departmental Scrutiny Committees. We therefore invite the Home Affairs Committee to provide its opinion on the possible establishment, membership and role of an inter-parliamentary forum on Europol. We will report further on the Commission's Communication in light of that opinion and so hold the document under scrutiny.

50   See Council Decision 2009/371/JHA, OJ L 121, 15.05.2009, p. 37.  Back

51   See Articles 3 and 4 of the 2009 Council Decision.  Back

52   See Article 12(c) TEU. Back

53   See Article 88(2)(b) sub-paragraph 2 TFEU. Back

54   See Council document 17024/09, paragraph 4.3.1. Back

55   See page 3 of the Communication.  Back

56   See page 6 of the Communication.  Back

57   See page 15, paragraph 5.1 of the Communication.  Back

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