10 National parliaments' scrutiny
of Europol
| (32420)
5659/11
COM(10) 776
| Commission Communication on the procedures for the scrutiny of Europol's activities by the European Parliament together with national parliaments
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| Legal base | —
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| Document originated | 17 December 2010
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| Deposited in Parliament | 11 January 2011
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| Department | Home Office
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| Basis of consideration | EM of 20 January 2011
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared
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Background
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.
Conclusion
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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