House of Commons - Third Report of Session 2013-14

Third Report of Session 2013-14 - European Scrutiny Committee Contents

1 Reforming Europol

(34843)

8229/13

COM(13) 173

+ ADDs 1 and 4

+ ADDs 2, 3 and 5

+ ADD 6

Draft Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA

Commission staff working documents: Impact Assessment on adapting the European Police Office's legal framework and Executive Summary

Commission staff working documents: Impact Assessment on merging the European Police College (CEPOL) and the European Police Office (Europol) and implementing a European police training scheme for law enforcement officials and Executive Summary

Commission staff working document: Ex-ante evaluation of the resources needed to fulfil the tasks set forth in the Commission's Communication on the establishment of a European Cybercrime Centre (EC3)

Legal base Articles 88 and 87(2)(b) TFEU; co-decision; QMV

Document originated 27 March 2013

Deposited in Parliament 18 April 2013

Department Home Office

Basis of consideration EM of 3 May 2013

Previous Committee Report None; but (32420) 5659/11: HC 428-xvi (2010-11), chapter 10 (9 February 2011) and HC 428-xxiv (2010-11), chapter 15 (27 April 2011) are relevant

Discussion in Council No date set

Committee's assessment Legally and politically important

Committee's decision Not cleared; further information requested; Opinion sought from the Home Affairs Committee under Standing Order No. 143 (11); opt-in decision for debate on the Floor of the House

Background

The establishment of Europol and the European Police College

1.1 Europol is the European Police Office — established in 1995 and operational since 1999 — with a broad mandate to support and strengthen cooperation between national law enforcement authorities to prevent and combat terrorism, organised crime and other forms of serious transnational crime affecting two or more Member States, such as trafficking in illicit drugs, firearms or human beings, the smuggling of illegal migrants, cybercrime and financial crime.[1] It became an EU Agency in 2010 and has a staff of 800, of whom 145 are liaison officers seconded to Europol headquarters in The Hague by EU Member States and other partner countries or organisations in order to facilitate the rapid exchange of criminal intelligence, strategic and operational information. Europol's main asset is its ability to provide strategic intelligence and forensic and technical support to Member States, based on its analysis of information sent by national law enforcement authorities and stored in its databases.[2] Europol uses its intelligence-gathering and analytical capabilities to support criminal investigations in Member States (including through the establishment of Joint Investigation Teams), to identify and assess emerging threats (it publishes each year an Organised Crime Threat Assessment and an EU Terrorism Situation and Trend Report), and to develop and disseminate expertise on law enforcement. Europol officers may take part in Joint Investigation Teams but have no direct powers of arrest and no authority to use coercive measures.

1.2 CEPOL is the European Police College — established in 2000 — responsible for organising courses and developing training materials on the European dimension of policing for senior police officers. Its core objectives are to improve knowledge of Member States' national police systems and to increase awareness of the instruments and structures (such as Europol and Eurojust) available at EU level to strengthen cross-border police cooperation. CEPOL became an EU Agency in 2006 and employs 43 staff based at Bramshill in Hampshire. The Government announced in December 2012 that the Bramshill site (which also houses the UK's College of Policing for England and Wales) would be sold and that CEPOL would be required to relocate by March 2014.

Subsequent developments

1.3 Since Europol and CEPOL were established as EU Agencies, a number of developments have taken place which affect their legal base, governance structures and functions. The Lisbon Treaty requires that Europol — currently based on a Council Decision adopted in 2009 under the pre-Lisbon arrangements for EU criminal law and policing measures — should be replaced by a Regulation which establishes its structure, operation, field of action and tasks. Article 88(2) of the Treaty on the Functioning of the European Union (TFEU) identifies Europol's core tasks as:

"(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;

"(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust."

It also requires the Regulation to establish "procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments".

1.4 A Commission Communication, published in December 2010, put forward a number of ideas for enhancing Parliamentary scrutiny of Europol. Our views, and those of the Home Affairs Committee from whom we sought an Opinion, are described in our Eighteenth and Twenty-sixth Reports of Session 2010-12 agreed on 9 February and 27 April 2011.[3]

1.5 Whilst the Lisbon Treaty makes no specific reference to CEPOL, its activities are reflected in Article 87 TFEU which establishes a legal base for police cooperation measures. These include "support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection".

1.6 The Stockholm Programme, which establishes the EU's priorities in the justice and home affairs field for the period 2010-14, also sets out a number of commitments (endorsed by the European Council) which affect both Agencies. In particular, it says that:

"Europol should become a hub for information exchange between the law enforcement authorities of the Member States, a service provider and a platform for law enforcement services",

and invites the Commission to consider ways of improving the flow of information from national law enforcement authorities to Europol so that Member States are able to make best use of its information-sharing and analytical capabilities.[4] The Stockholm Programme also underlines the need for more systematic access to European Training Schemes and exchange programmes for law enforcement professionals at all levels who have some involvement in cross-border police cooperation.

1.7 More recently, in July 2012, the European Parliament, Council and Commission endorsed a Common Approach on EU decentralised Agencies which is intended to provide "a political blueprint" for their future development by:

establishing better governance structures;
enhancing efficiency and accountability; and
introducing greater coherence in the way EU Agencies operate.

The Common Approach expressly requires the Commission to consider merging Agencies which have overlapping tasks or where greater efficiencies or economies of scale could be achieved.

The UK's position and the 2014 block opt-out decision

1.8 The UK participates fully in Europol and CEPOL. The legal instruments establishing both organisations as EU Agencies were adopted by unanimity under the arrangements in place before the Lisbon Treaty entered into force and are amongst the list of approximately 130 pre-Lisbon EU criminal law and policing measures which will be subject to the jurisdiction of the Court of Justice from 1 December 2014. However, transitional provisions agreed at the time of the Lisbon Treaty confer a right, exclusive to the UK, to opt out en masse of all pre-Lisbon EU criminal law and policing measures. If the Government decides to exercise this block opt-out — it has until 31 May 2014 to notify its decision — then the extension of the Court's jurisdiction would not affect the UK, as the measures would cease to apply to the UK from 1 December 2014. In her Statement to the House on 15 October 2012, the Home Secretary explained that:

"the Government's current thinking is that we will opt out of all pre-Lisbon police and criminal justice measures and then negotiate with the Commission and other Member States to opt back into those individual measures that it is in our national interest to rejoin."

1.9 The Government has not yet formally notified its intention to exercise the block opt-out or identified those measures which it intends to seek to rejoin. Meanwhile, if the Government decides to participate in a new EU legislative instrument that amends, or repeals and replaces, one or more of the pre-Lisbon EU criminal law and policing measures, then the amended or repealed measures would be removed from the scope of the block opt-out. Once adopted, the new instrument, like all other post-Lisbon EU criminal law and policing measures, would be subject to the jurisdiction of the Court.

The draft Regulation

1.10 The draft Regulation would repeal the Council Decisions establishing Europol and CEPOL and create in their place a single EU Agency for Law Enforcement Cooperation and Training which would retain the distinctive identity of Europol but subsume within it the training functions currently performed by CEPOL. CEPOL's headquarters would be closed and operational posts transferred to the newly reconstituted Europol which would have two core tasks:

to strengthen mutual cooperation between national law enforcement authorities and support their actions in preventing and combating terrorism and serious crime affecting two or more Member States; and
to establish a Europol Academy to support, develop, deliver and coordinate training for law enforcement officers.

1.11 The draft Regulation also seeks to:

align the legal framework for Europol with the requirements of the Lisbon Treaty;
establish Europol as a hub for information exchange between national law enforcement authorities, as envisaged in the Stockholm Programme;
enable Europol to become a centre of expertise for certain types of crime, such as cybercrime;
ensure that robust data protection safeguards are in place; and
improve governance by applying the principles set out in the Common Approach on EU decentralised Agencies.

Merging Europol and CEPOL

1.12 The Commission considers that merging the operational police cooperation know-how of Europol with the training expertise of CEPOL "would create important synergies and efficiency gains" and allow cost savings — which it estimates to be in the region of €17.2 million for the period 2015-20 — to be redeployed and invested in core operational and training functions.

1.13 The Commission's Impact Assessment on the proposed merger (ADD 2) indicates a very high level of satisfaction (93%) with CEPOL amongst those who have participated in its police training activities. However, the Commission suggests that changes to the governance and structure of CEPOL are needed to align it more closely with the principles set out in the Common Approach and to ensure that it is able to focus on the strategic training needs described in an accompanying Commission Communication proposing a European Law Enforcement Training Scheme (see chapter 14 of this Report). The Commission underlines, in particular, the need to extend training on the EU dimension of tackling cross-border crime to law enforcement officers of all ranks and to exploit synergies between evolving operational priorities and the provision of related training. However, the Impact Assessment also highlights the risk that "a merged Agency could subordinate training needs to more immediately pressing operational priorities" while suggesting that it could be mitigated by establishing training as a new "core task" for Europol and by designating a Deputy Director of Europol with specific responsibility for training.[5]

1.14 Article 9 of the draft Regulation provides for the establishment of the Europol Academy which would take over the tasks currently performed by CEPOL whilst also seeking to develop stronger links with other EU bodies, notably Eurojust and Frontex, academic and research organisations, and national law enforcement training institutes. To ensure that training is not subordinated to operational law enforcement needs, each Member State is required to appoint an alternate member to the Europol Management Board with specific knowledge of national policy on law enforcement training. A new Scientific Committee for Training would provide independent advice on all aspects of training, including the quality of common training curricula developed by the Europol Academy, applied learning methods and tools, and scientific developments.[6] One of Europol's four Deputy Executive Directors would be responsible for managing the Europol Academy and its activities.[7] This role would initially be performed by CEPOL's current Executive Director. For the first three budgetary years following the entry into force of the draft Regulation, a sum of at least €8 million of Europol's operational budget would be ring-fenced for training.[8]

Aligning Europol with the Lisbon Treaty and enhancing its democratic accountability

1.15 The Lisbon Treaty imposes two requirements. The first is to (re-)establish Europol on the basis of a Regulation adopted by the European Parliament and the Council. The second is to include within that Regulation "procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments." This second requirement is addressed in Article 53 of the draft Regulation. Article 53(1) provides that the Executive Director of Europol — responsible for the day-to-day management of the Agency and the implementation of its work programme — and the Chairperson of the Europol Management Board (on which all Member States and the Commission are represented)

"shall appear before the European Parliament, jointly with national Parliaments, at their request to discuss matters relating to Europol, taking into account the obligations of discretion and confidentiality."

1.16 Article 53(2) specifies that:

"Parliamentary scrutiny by the European Parliament, together with national Parliaments, of Europol's activities shall be exercised in accordance with this Regulation."

Various other provisions of the draft Regulation establish that national Parliaments shall receive the following information:

annual activity reports — Article 14(1)(d);
Europol's final accounts for each financial year — Article 62(6);
Europol's annual and multiannual work programmes — Article 15;
annual reports on the quantity and quality of information provided to Europol by each Member State's competent authorities and on the performance of each Europol National Unit (the liaison body with Europol) — Article 7(10); and
evaluation reports on Europol — Article 70(2).

Moreover, Article 15(4) states that Europol's multiannual programme, which sets out its strategic objectives, shall only be adopted after consulting the European Parliament and national Parliaments.

1.17 Finally, Article 53(3) requires Europol to send to the European Parliament and national Parliaments, for information, all of its threat assessments, strategic analyses and general situation reports, the results of studies and evaluations it has commissioned, and copies of the "working arrangements" it has concluded with non-EU third countries and international organisations concerning the transfer of personal data.

1.18 Additional powers conferred on the European Parliament (other than those enabling it to fulfil its functions as part of the EU's budgetary authority) include the possibility to hold a pre-appointment hearing for the Executive Director designate and to invite the incumbent Executive Director to report on the performance of his or her duties.[9] Article 54 of the draft Regulation makes provision for Europol and the European Parliament to conclude a working arrangement on access to classified or sensitive information.

Establishing Europol as a hub for information exchange

1.19 In its first Impact Assessment (ADD 1), the Commission identifies two shortcomings in Europol's existing legal framework which prevent it from becoming an effective hub for information exchange. The first concerns significant disparities between Member States in terms of the quantity of information they send to Europol. The second concerns the existence of three separate databases which are not inter-linked. As regards the supply of information, the Commission observes:

"If a Member State does not share information on a given serious cross-border crime, Europol is incapable either of identifying patterns and links with crime phenomena in other countries or of coordinating joint investigative actions at the EU level."[10]

1.20 Currently, National Units responsible for liaising with Europol are required to supply, "on their own initiative", information for storage in Europol's databases and any additional information and intelligence necessary for it to carry out its tasks.[11] Whilst the Commission considers that the obligation to supply information falling within Europol's mandate is clearly expressed, it says that some Member States question the existence or extent of such an obligation or are uncertain as to the type and quantity of information to be provided.

1.21 The draft Regulation seeks to strengthen the obligation to provide Europol with relevant data, thereby increasing the flow of information and enhancing Europol's capacity to develop an up-to-date criminal intelligence picture and identify connections between serious criminal activity in different Member States. Article 7 imposes an express obligation on Member States to "cooperate with Europol in the fulfilment of its tasks" and to ensure that their National Units "supply Europol with the information necessary for it to fulfil its objectives." It specifies that the information should include areas of crime considered a priority within the EU (for example, those highlighted in the EU's Internal Security Strategy) and copies of bilateral or multilateral exchanges with other Member States on crimes falling within Europol's mandate. Article 7 also includes a new reporting mechanism which requires Europol to produce an annual report on the quantity and quality of information provided by each Member State and the performance of each National Unit.

1.22 The draft Regulation removes the current distinction between information held in the Europol Information System (a database used to cross-check personal data on individuals suspected of involvement in serious criminal offences) and in Europol's Analysis Work Files (databases established to provide analytical support and intelligence for criminal investigations). Instead, the draft Regulation sets out the purposes for which all information provided to Europol may be processed (for cross-checking to establish connections between information, for strategic or thematic analyses, and for operational analyses in specific cases), specifies the sources of information which Europol may process, and who may access the information.[12] These changes are intended to enable Europol analysts to establish links between stored information, identify trends and patterns in serious cross-border criminal activity more quickly, and reduce multiple storage of the same information.

1.23 The categories of personal data that may be collected and processed by Europol, and the individuals to whom the data relate, are described in detail in Annex 2 to the draft Regulation.

Developing Europol as a centre of expertise for specific crimes

1.24 One of the new tasks conferred on Europol is to develop centres of expertise specialising in specific types of crime within its mandate.[13] Europol already hosts the European Cybercrime Centre which began operations in January 2013 and seeks to become "a focal point" for combating cybercrime by developing operational and analytical capacity for investigations and cooperation involving Member States and other international partners. According to the Commission,

"Such EU centres integrating various approaches towards fighting the specific form of crime would add value to Member States' actions. They could, for instance, be information focal points, pool expertise to support Member States in capacity building, support Member States' investigations or become the collective voice of European investigators across law enforcement in the specific area."[14]

Strengthening data protection safeguards

1.25 The draft Regulation includes a detailed set of rules on data processing, the transfer of personal data by Europol to other EU bodies or to third (non-EU) countries or international organisations, data protection safeguards, and redress for unlawful data processing. These are intended to underpin the core objective of increasing the flow of information to Europol. The draft Regulation includes a clear set of general data protection principles applicable to all types of data collection and processing (Article 34) and criteria for assessing the accuracy and reliability of the source and content of information supplied to Europol (Article 35). It allows Member States and others providing information to Europol to impose restrictions on access to, or use of, that information (Article 25) and prohibits the processing of personal data on certain categories of individuals (such as victims of crime, witnesses or those under 18) or the processing of certain types of sensitive data (such as racial or ethnic origin, political opinion or religious beliefs) unless "strictly necessary" (Article 36).

1.26 Two changes introduced by the draft Regulation are particularly noteworthy. First, under the data protection regime currently applicable to Europol, the Council establishes a list of the third (non-EU) countries and organisations with which Europol may enter into cooperation agreements and is required to approve their conclusion. Before agreeing to the conclusion of such agreements, the Council must satisfy itself that an adequate level of data protection is in place, drawing on the opinion of the Joint Supervisory Body (a Body comprising representatives of Member States' independent data protection authorities who are jointly responsible for overseeing the processing and use of personal data by Europol). Article 31 of the draft Regulation preserves the legal effects of cooperation agreements already concluded, but includes two new bases on which a transfer of personal data may take place:

international agreements concluded by the EU under Article 218 TFEU (establishing procedures for the conclusion of such agreements) which adduce "adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals"; or
a Commission decision certifying that a third country, international organisation or processing sector within it ensures an adequate level of data protection (called "adequacy decisions").

1.27 Under these new arrangements, Europol would no longer have any formal role in negotiating or concluding (subject to Council oversight) information-sharing agreements with third countries, although it would still be able to conclude "working arrangements" to implement the agreements or adequacy decisions.

1.28 The second change concerns the role of the existing Joint Supervisory Body (JSB). In its Impact Assessment (ADD 1), the Commission observes that "[t]he JSB has a well-established record in supervising the protection of personal data in areas which require a knowledge of law enforcement specificities" but also highlights its lack of enforcement powers and dependence on Europol for its funding.[15] It notes that Declaration 21 to the Lisbon Treaty recognises that police and criminal law cooperation may require specific data protection rules. The European Data Protection Supervisor (EDPS) supervises EU institutions and bodies, as well as a number of large-scale IT systems but, hitherto, has not been given responsibility in the criminal law and policing field. The draft Regulation entrusts the role of independent external supervisory body to the EDPS, in cooperation with national data protection authorities, on the grounds that "streamlined and consistent data protection supervision over all EU agencies by an EU data protection body could also be seen as advantageous" and would generate some cost savings.[16] However, the Commission suggests that "there are equally strong arguments for either the JSB or EDPS" and that the final decision would be one of "political choice".[17]

Improved governance based on the Common Approach on EU decentralised Agencies

1.29 One of the main innovations, in line with the Common Approach, is to make provision for the Management Board to establish a smaller Executive Board (comprising the Chair and three other members of the Management Board and one Commission representative). It would prepare decisions for the Management Board and strengthen supervision of budgetary and management matters.[18]

Other issues

1.30 The summary of the Commission's consultation on possible reform of Europol and CEPOL (briefly described in the first Impact Assessment — ADD 1) indicates that no Member State sought to expand Europol's existing mandate.[19] As a result, the list of crimes in respect of which Europol is competent to act (set out in Annex 1 of the draft Regulation) is largely unchanged, with only one addition concerning sexual abuse and sexual exploitation of women and children.

1.31 The scope of Europol's power to provide financial as well as technical support for cross-border operations and investigations — currently limited to counterfeiting of the euro — is extended to include any of the offences within its mandate.[20]

Budget

1.32 Whilst the Commission expects the merger of Europol and CEPOL to produce cost savings, it says that Europol will require additional resources to support the training activities of the Europol Academy, process and analyse the increased flow of information which the draft Regulation is intended to generate, and ensure that the European Cybercrime Centre has the necessary expertise and IT infrastructure to perform its tasks. The Commission estimates the cost of the merged Agency for the period 2015-20 as €623 million, with an additional sum of €1.5 million to enable the EDPS to exercise its new supervisory function.

The UK's Title V opt-in and block opt-out

1.33 The draft Regulation is based on provisions in Title V of Part Three of the Treaty on the Functioning of the European Union — Articles 88 and 87(2)(b) TFEU — which are subject to the UK's Title V opt-in. The deadline for determining whether or not the Government intends to opt in is 30 July.

1.34 The draft Regulation would repeal and replace the 2005 and 2009 Council Decisions establishing CEPOL and Europol as EU Agencies, as well as repealing all subsequent implementing measures.[21] The 2005 and 2009 Council Decisions, and four Council implementing Decisions,[22] are included in the list of pre-Lisbon EU criminal law and policing measures subject to the UK's block opt-out (described in paragraphs 1.8 and 1.9). The Government's decision whether or not to participate in the draft Regulation will have implications for the scope of the UK's block opt-out decision. If the UK opts in, and the draft Regulation is adopted or in force by 1 December 2014, none of the six measures will be subject to the block opt-out as they will all have been repealed.[23] If the UK opts in, but the draft Regulation is not in force by 1 December 2014, the measures will remain within the scope of the UK's block opt-out will cease to apply to the UK if the Government exercises the UK's block opt-out without seeking to opt back into each of the measures relating to CEPOL and Europol. If the UK does not opt into the draft Regulation, it will not be bound by the provisions repealing the six earlier instruments and they would remain subject to the block opt-out.

The Government's view

1.35 The Parliamentary Under-Secretary of State for Security (James Brokenshire) explains that the draft Regulation would retain most of Europol's existing functions without significantly expanding its powers. The role of each Member State's Europol National Unit and liaison officers, as well as the general governance structure of the Europol Management Board, would be retained and Europol would not be given any coercive powers. The Minister is satisfied that the draft Regulation respects the rights set out in the EU Charter of Fundamental Rights. He says that the Government has consulted the Serious Organised Crime Agency, the Association of Chief Police Officers (ACPO) and the ACPO Criminal Records Office, the Metropolitan Police, Her Majesty's Revenue and Customs, the Ministry of Justice, the Devolved Administrations and Gibraltar during the preparation of his Explanatory Memorandum. The main features of the draft Regulation, and the Government's preliminary concerns, are described in the following paragraphs.

The UK's Title V opt-in and block opt-out

1.36 The draft Regulation is subject to the UK's Title V opt-in. One consequence of opting in would be to recognise the jurisdiction of the Court of Justice to rule on the validity and interpretation of the draft Regulation, once it enters into force. The Minister sets out the Government's commitment to approaching all opt-in decisions on a case-by-case basis, "putting the national interest at the heart of our decision making." He continues:

"The Government decision on the exercise of the opt-in in relation to this proposal will consider whether participation in the measure as drafted would benefit the security of the UK and its citizens including the protection of their civil liberties and rights. We will also consider the implications in relation to the balance of UK and EU competence, particularly in relation to operational policing and serious organised crime as well as the wider implication of ECJ jurisdiction in this area.

"Furthermore, we will also consider the extent to which we think the proposal can be improved in negotiations and the degree to which the prospects of improving the text would be enhanced should we opt-in and thus have a vote. This will be balanced against the consideration of any implications of not opting in for our broader relationship with the EU, its Institutions and with other Member States particularly in the field of police cooperation."[24]

1.37 The Minister expects the Government's opt-in decision to attract particularly strong interest in Parliament and, in line with the commitment given by the Minister for Europe in his Written Ministerial Statement of 20 January 2011 on enhancing Parliamentary scrutiny of EU justice and home affairs matters, offers a debate on the Floor of the House on a motion setting out the Government's recommended approach to the opt-in.

1.38 The Minister notes that the 2005 and 2009 Council Decisions establishing CEPOL and Europol as EU Agencies are both subject to the UK's 2014 block opt-out decision but says that the reference in Article 78 of the draft Regulation to the repeal of additional implementing Decisions is "ambiguous" and that the Government will seek further clarification.[25]

The merger of Europol and CEPOL

1.39 The Minister describes the merger of Europol and CEPOL as the most significant change proposed in the draft Regulation. Whilst indicating that the Government would, in principle, support the physical relocation of CEPOL to premises outside the UK, following its decision to sell CEPOL's current headquarters at Bramshill, the Minister expresses a broader concern that merger will result in Europol's operational activities taking priority over CEPOL's training role. He alludes to independent research commissioned by the Commission which highlights the risk that learning activities would, over time, be subordinated to operational needs and suggests that cost savings from the merger would be minimal.

The Europol Academy

1.40 The Minister considers that the role envisaged for the new Europol Academy would go beyond the tasks currently performed by CEPOL. He highlights, in particular, the preparation of multiannual strategic training needs analyses and multiannual learning programmes, the development of common curricula for law enforcement officers taking part in EU civilian missions in third countries, and the obligation to promote the mutual recognition of law enforcement training in Member States and of related European quality standards.[26] The Minister suggests that the broader tasks given to the Europol Academy, as well as its role in implementing the proposed new Law Enforcement Training Scheme (described in the next chapter), would "increase the role of the EU in police training significantly and may limit the flexibility for Member States to decide how police training should be delivered".[27]

Europol's role in initiating criminal investigations

1.41 Under the 2009 Council Decision, Member States are required to give "due consideration" to a request by Europol to initiate, conduct or coordinate an investigation, to inform Europol if they decide not to, and to explain why unless to do so would harm national security or jeopardise an on-going investigation or the safety of individuals. Europol may also suggest establishing Joint Investigation Teams in specific cases.[28] Articles 5 and 6 of the draft Regulation contain similar provisions but require Member States' Europol National Units to inform Europol "without delay" if an investigation is initiated or, if it is not, to provide reasons within one month. The Minister suggests that these provisions are:

"much more specific, possibly creating the presumption that Member States will comply, although there is clearly provision for Member States to 'decide not to comply with the request' in Article 6(4)"

and would place "a stronger responsibility on Member States to give a reason, by imposing a time limit". However, the grounds on which a Member State may refuse to give reasons remain unchanged. The Minister adds "The Government values Europol analysis but we maintain that Member States should take their own decisions on operational actions".[29]

Information exchange and cooperation with Europol

1.42 The Minister describes the "inferred wider obligation" on Member States to provide information to Europol as the most contentious element of the draft Regulation as regards the role of Europol. Whilst the 2009 Council Decision requires Member States' Europol National Units to supply Europol, on their own initiative, with the information and intelligence necessary for it to carry out its tasks, the Minister suggests that Article 7(5) of the draft Regulation removes the element of discretion implied under the current Decision by omitting the words "on their own initiative." He also highlights the obligation to provide information "without delay" and to copy bilateral information exchanges with other Member States to Europol and says:

"The Government would have concerns with any increased data provision obligation and would wish to see the status quo maintained, i.e. allowing Member States the discretion to prioritise their own data provision. We would further want to ensure clarification around the references to bilateral information exchange, more particularly where that information is sensitive. The Government strongly believes Member States should decide who receives their information. However, the Government does agree that Member States should be encouraged to share information with Europol voluntarily, and welcomes the provision in Article 7(10) of the Regulation for the Europol Director to report on the quantity and quality of information provided by each Member State."[30]

1.43 Article 7 of the draft Regulation also introduces a general obligation for Member States to cooperate with Europol. The Minister explains:

"Given that this measure will be open to full ECJ jurisdiction the Government would need to seek a clear definition of what, if any, additional obligations are created by this language, particularly as the Treaties already contain a 'duty of sincere cooperation'."[31]

Engaging with the private sector

1.44 The Minister welcomes the role accorded to Europol National Units and their liaison officers as a conduit for the exchange of information, including personal data, derived from private parties which must, as now, be transmitted to Europol through the relevant National Unit. Europol may not directly exchange personal data with private parties, but this prohibition will be subject to further evaluation within three years of the draft Regulation entering into force.[32]

Governance of Europol

1.45 The Minister notes that the draft Regulation retains most of Europol's existing governance structure, subject to a number of changes intended to bring it into line with the Joint Statement on EU decentralised Agencies. He agrees that it would be inappropriate for the European Parliament to be represented on Europol's Management Board, given Europol's operational role, and is content for Europol's Executive Director to be appointed by the Management Board rather than, as now, the Council since it will help to ensure appropriate selection procedures and operational continuity.[33]

Third country cooperation agreements

1.46 The Minister expresses concern that Europol will no longer be able to negotiate information sharing agreements with third countries. He continues:

"We believe that the Commission will argue that this reflects the position on third country negotiations following the Lisbon Treaty. Article 216 of the TFEU states that '[t]he Union may conclude an agreement with one or more third countries or international organisations where ... [it] is provided for in a legally binding Union act'. The Government's view, however, is that this does not prevent individual EU Agencies such as Europol being given the power to negotiate their own agreements. The Government is concerned about the potential expansion of EU competence here, in particular because of the operational urgency in establishing third country cooperation agreements with Europol. There may also be a risk that the Commission would not give agreements with countries that are important in the context of organised crime appropriate priority if those countries were not also key priorities for engagement by the EU as a whole. We would be keen to ensure that Europol can establish relationships effectively to meet Member States' needs and operational priorities."[34]

Data protection supervisory authority

1.47 The draft Regulation would abolish Europol's Joint Supervisory Body and transfer supervisory responsibility to the European Data Protection Supervisor (the EDPS). The Minister questions whether such an approach takes due account of the "significant expertise" developed by the Joint Supervisory Body over a number of years. He notes that the draft Regulation focuses principally on Europol's role in ensuring data security and compliance with the data protection principles set out in Article 34 of the draft Regulation but also highlights the potential for overlap with separate proposals for a new data protection framework in the EU.[35] He continues:

"The full implications of the data protection provisions are currently unclear given that both the EU Data Protection Directive and Regulation dossiers are currently under negotiation themselves and will need to be agreed by Member States and the European Parliament. Some of the language in the draft text seems to mirror these data protection proposals, suggesting scope and flexibility for Member States to provide conditions and restrictions on the use and processing of data which they have provided to Europol. However we take a cautious approach with respect to the data protection principles contained within this draft Regulation since the data protection dossiers, when agreed at EU level, will set the direction for those principles to be applied to Member States."[36]

Parliamentary scrutiny of Europol

1.48 The Minister notes that the draft Regulation includes provision for the European Parliament to request access to classified or sensitive non-classified information processed by or through Europol in order to scrutinise Europol's activities, and adds:

"[w]e would take a cautious approach to the disclosure of classified information given the operational sensitivity of law enforcement intelligence. The Government would need assurances in this area."[37]

Developing Europol as a centre of expertise for specific crimes

1.49 The Minister expresses support for the European Cybercrime Centre which Europol hosts whilst raising a broader concern about the budgetary implications of an open-ended commitment to create additional new centres of expertise and says he will seek further clarification during negotiations.

Financial implications

1.50 The Minister questions whether the proposed merger of Europol and CEPOL will generate savings of the magnitude anticipated by the Commission. Whilst welcoming the creation of the European Cybercrime Centre and recognising the significant operational and financial benefits which are likely to accrue by accommodating it within Europol, he makes clear that it should "develop in line with the resources available rather than identify work that it might wish to do and then seek funding" and that there should be no increase in Europol's overall budget for the period 2014-20. He suggests that the Cybercrime Centre should develop partnerships with industry and civil society to assist with funding and human resources.

Conclusion

The opt-in debate

1.51 We thank the Minister for his informative Explanatory Memorandum and agree with his assessment that the Government's decision on whether or not to opt into the draft Regulation is likely to attract particularly strong interest in Parliament. We therefore welcome his offer of an opt-in debate on the Floor of the House based on a motion setting out the Government's recommended approach. We urge the Minister to ensure that the Government's recommended approach, and the reasons informing it, are made available to us in sufficient time to produce a further Report in advance of the debate. In particular, we ask the Minister to address the expected impact of the Government's recommended approach on the security of the UK and its citizens, including the protection of their civil liberties and rights, and on the balance of competences between the UK and the EU as regards operational policing matters.

1.52 Should the Government be minded to recommend opting into the draft Regulation, we ask him to set out any concerns he has regarding the role of the Court of Justice, and to describe the main changes which the Government will press for in the course of negotiations. If, however, the Government is minded not to opt into the draft Regulation, we ask the Minister to explain what steps he has taken to ascertain whether, and on what terms, the UK would be able to continue to cooperate with Europol.

1.53 Given the legal and political significance of the draft Regulation, we intend to hold it under scrutiny and we may wish to recommend a further debate as negotiations progress. To assist with our scrutiny, we would welcome further information on the following issues.

THE UK'S 2014 BLOCK OPT-OUT DECISION

1.54 We note that a decision to opt into the draft Regulation would potentially affect the scope of the UK's 2014 block opt-out decision. Whilst it is clear that the draft Regulation would, once in force, repeal and replace the 2005 and 2009 Council Decisions establishing CEPOL and Europol as EU Agencies, the Minister suggests that the extent to which it would also repeal other legislative implementing measures is "ambiguous." Our assessment is that the draft Regulation would repeal six measures in total which are currently included within the scope of the UK's block opt-out. We ask the Minister to clarify as soon as possible the measures subject to repeal and how this would affect the scope of the UK's 2014 block opt-out decision.

THE MERGER OF EUROPOL AND CEPOL

1.55 The Minister expresses little enthusiasm for the proposed merger of CEPOL and Europol or the enhanced training role envisaged for the Europol Academy. We note that Europol's mission and tasks, as set out in Article 88 TFEU, only extend to operational police cooperation and criminal intelligence, not training, which is based on a different Treaty provision (Article 87 TFEU) establishing police cooperation between Member States' competent authorities.

1.56 We ask the Minister:

whether he considers that the scope of Europol's activities is exhaustively defined in Article 88 TFEU, or whether it may also extend to support for training as envisaged in Article 87 TFEU;
whether CEPOL and Europol support the proposed merger; and
whether, in light of the Government's decision to close CEPOL's current headquarters at Bramshill in 2014 and not to seek its relocation elsewhere in the UK, he believes that some form of merger with Europol represents the best available option, or whether he supports the retention of CEPOL as a separate EU Agency; if the latter, whether he has a view on a suitable location.

INFORMATION EXCHANGE AND COOPERATION WITH EUROPOL

1.57 We note that the Government supports the introduction of an annual reporting mechanism to highlight both the quantity and quality of information provided to Europol by each Member State, but is reluctant to endorse any strengthening of the obligation to share information with Europol. We would welcome some indication of the volume of information which the UK currently shares with Europol, relative to other Member States, and ask the Minister whether he considers that a purely voluntary information-sharing mechanism would reduce the significant disparities between Member States highlighted by the Commission in its Impact Assessment.

THIRD COUNTRY COOPERATION AGREEMENTS

1.58 We note the Government's concern that Europol would lose the autonomy it currently has, subject to Council oversight, to negotiate its own data-sharing agreements with third countries or organisations and that negotiations would, instead, be conducted by the Commission. We ask the Minister whether other Member States agree with the Government that Article 216 TFEU, which establishes the basis on which the EU may conclude agreements with third countries, does not preclude EU Agencies, such as Europol, from negotiating in their own right.

DATA PROTECTION

1.59 We share the Government's concern to ensure that the data protection rules contained in the draft Regulation are consistent with, and complement, the broader EU data protection framework currently under negotiation. We note that the Commission's Impact Assessment recognises that there are equally strong arguments for oversight of Europol's data processing activities to remain with the current Joint Supervisory Body or to be entrusted, instead, to the European Data Protection Supervisor. We ask the Minister to indicate his preference. We also ask him to seek the views of the UK's Information Commissioner on the data protection framework proposed in the draft Regulation, as well as the appropriate supervisory body, and to provide us with a summary of the Commissioner's views.

PARLIAMENTARY SCRUTINY OF EUROPOL

1.60 We note that the provisions on Parliamentary scrutiny contained in the draft Regulation are intended to supplement, not supplant, our existing procedures for scrutiny of EU documents. Article 53(1) appears to envisage an additional level of scrutiny and oversight, operating at EU level, which would bring together members of the European Parliament and national Parliamentarians in some form of joint inter-parliamentary body to question Europol's Executive Director and Chairman of its Management Board on any matters relating to Europol. By contrast, Article 53(2) and (3) establish the information to be provided to the European Parliament and to national Parliaments without, however, prescribing any particular form or method of scrutiny.

1.61 As we have indicated in earlier Reports responding to a 2010 Commission Communication on Parliamentary scrutiny of Europol, any new arrangements should be underpinned by the following key principles:

any views expressed within the framework of inter-parliamentary cooperation should not bind national Parliaments or prejudge their positions;
national Parliaments must remain free to express their own views and concerns; and
each national parliamentary chamber should be free to determine how it wishes to be represented within the framework of inter-parliamentary cooperation.

1.62 We are also mindful of Article 9 of the Protocol on the Role of National Parliaments annexed to the EU Treaties which 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." We remain of the view that neither the Commission nor the Council have any locus to determine the format, frequency and procedures applicable to such inter-parliamentary cooperation.

OPINION OF THE HOME AFFAIRS COMMITTEE

1.63 Given the active interest shown by the Home Affairs Committee in the work of Europol, we expect that it will wish to be involved in any enhanced arrangements for scrutinising Europol, whether at EU or national level. The Committee provided an opinion on the possible establishment, membership and role of an inter-parliamentary forum on Europol, following publication of the Commission's Communication on Parliamentary scrutiny of Europol in 2010. We consider that a further opinion would be appropriate now in light of the provisions contained in Article 53 of the draft Regulation. We would particularly welcome the Committee's views on:

the most appropriate forum for ensuring joint scrutiny of Europol, as envisaged in Article 53(1);
possible arrangements for consulting national Parliaments on Europol's multiannual work programme under Article 15(4); and
its role in considering other material sent by Europol to national Parliaments for information (as described in paragraphs 1.16-1.17).

We would also welcome the Committee's views on any other aspects of the draft Regulation, including the proposal to merge Europol and CEPOL.

1 The types of serious crime which are within Europol's mandate are listed in an Annex to Council Decision 2009/371/JHA establishing Europol, OJ No. L 121, 15.05.2009. Back

2 Europol has three different databases: the Europol Information System and two Analytical Work Files, one on Serious and Organised Crime and one on Counter-Terrorism. Back

3 See headnote. Back

4 See p.2 of the Commission's explanatory memorandum accompanying the draft Regulation. Back

5 See p.37 of ADD 2. Back

6 Article 20 of the draft Regulation. Back

7 See Article 57 of the draft Regulation. Back

8 See Article 76 of the draft Regulation. Back

9 See Articles 56(2) and 19(3). Back

10 See p.10 of ADD 1. Back

11 See Article 8 of Council Decision 2009/371/JHA, OJ No. L 121, 15.05.2009. Back