1 Reforming Europol
| (a)
(34843)
8229/13
COM(13) 173
+ ADDs 1-6
(b)
(34842)
8230/13
COM(13) 172
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Draft Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA
Commission Communication: Establishing a European Law Enforcement Training Scheme
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| Legal base | (a) Articles 88 and 87(2)(b) TFEU; co-decision; QMV
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| (b) — |
| Department | Home Office
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| Basis of consideration | Minister's letter of 20 June 2013
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| Previous Committee Report | HC 83-iii (2013-14), chapters 1 and 14 (21 May 2013)
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| Discussion in Council | No date set
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| Committee's assessment | (a) Legally and politically important
(b) Politically important
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| Committee's decision | Not cleared; further information requested; opt-in decision on document (a) for debate on the Floor of the House (decision reported 21 May 2013)
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Background and previous scrutiny
1.1 Europol is the Hague-based European Police Office responsible
for supporting and strengthening cooperation between national
law enforcement authorities on terrorism and other forms of serious
transnational crime affecting two or more Member States. It gathers,
analyses and shares information on serious crime, provides strategic
intelligence and forensic and technical support to Member States,
and helps to coordinate cross-border criminal investigations.
Established in 1995 and operational since 1999, it became an
EU Agency in 2009.
1.2 CEPOL is the European Police College responsible
for organising courses and developing training materials on the
European dimension of policing for senior police officers. Established
in 2000, it 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.
1.3 The Lisbon Treaty requires Europol to be
established on the basis of a Regulation adopted by the Council
and European Parliament (EP) setting out its structure, operation,
field of action and tasks and including provision for scrutiny
of its activities by the EP and national Parliaments. Document
(a) — the draft Europol Regulation — seeks to satisfy
this requirement and to fulfil the commitment in the Stockholm
Programme (which sets out the EU's priorities in the justice and
home affairs field for 2010-14) to (re-)establish Europol as "a
hub for information exchange between the law enforcement authorities
of the Member States, a service provider and a platform for law
enforcement services." The draft Regulation would:
- merge Europol and CEPOL to create a single EU
Agency for Law Enforcement Cooperation and Training — the
Commission suggests that the merger would generate cost savings
and efficiencies and ensure consistency with the Common Approach
to EU decentralised Agencies agreed by the EP, Council and Commission
in 2012;
- introduce new provisions on scrutiny of Europol
by the EP and national Parliaments;
- strengthen the requirement for Member States
to provide relevant information to Europol — the Commission
says that disparities in the volume and quality of information
sent to Europol hamper its effective operation;
- re-design the data protection framework for Europol's
activities; and
- include provision for Europol to develop centres
of expertise similar to the recently established European Cybercrime
Centre.
1.4 Document (b) — the Commission Communication
on establishing a European law enforcement training scheme —
is intended to complement changes proposed in the draft Europol
Regulation. It envisages that the Europol Academy (the proposed
successor to CEPOL) would assume responsibility for overall coordination
of training for law enforcement officials at all levels (not,
as now, senior police officers only) covering cross-border aspects
of policing, bilateral and regional cooperation, in-depth specialised
training on specific policing themes with a cross-border dimension
(such as human trafficking), and pre-deployment training for civilian
missions in third countries.
1.5 Our Third Report, agreed on 21 May 2013,
describes the background to, and content of, the draft Europol
Regulation and the Commission Communication. The questions we
raised are described in the following paragraphs alongside the
Minister's response.
The Minister's letter of 20 June 2013
The opt-in decision
1.6 We welcomed the Government's offer of an
opt-in debate on the Floor of the House on its recommended approach
to the draft Europol Regulation. We asked the Minister for Security
(James Brokenshire), to explain, in advance of the debate, the
reasons informing the Government's recommended approach and how
it would affect the security of the UK and its citizens, including
the protection of their civil liberties and rights, as well as
the balance of competences between the UK and the EU as regards
operational policing matters. We added that, if the Government's
recommendation was to opt into the draft Regulation, we expected
the Minister to address any concerns relating to the role of the
Court of Justice, and to describe the main changes which the Government
would press for in the course of negotiations. If, by contrast,
the Government's recommendation was not to opt in, we asked him
to explain what steps had been taken to ascertain whether, and
on what terms, the UK would be able to continue to cooperate with
Europol.
1.7 The Minister tells us that the Government
will provide a Motion in advance of the opt-in debate (scheduled
for 3 July) on the decision the Government must make as to whether
or not to opt into the draft Regulation. He adds:
"This will state whether or not we recommend
opting into the draft Regulation."
He also undertakes to provide, at the same time,
the information we requested on the reasons informing the Government's
recommended approach.
The impact on the UK's 2014 block opt-out decision
1.8 We sought the Minister's views on our assessment
that the draft Europol Regulation would, once in force, repeal
six instruments included in the list of measures subject to the
UK's block opt-out — the 2005 and 2009 Council Decisions
establishing CEPOL and Europol as EU Agencies and four implementing
Decisions.
1.9 In his reply, the Minister notes that Article
77 of the draft Europol Regulation expressly repeals and replaces
the 2005 and 2009 Council Decisions, whereas Article 78(1) states
simply that all legislative measures implementing these Decisions
are repealed from the date of application of the draft Regulation.
He continues:
"We are unclear from this drafting what measures
the Commission envisages repealing, and we will be seeking further
clarity. Our preference would be for any specific measures to
be listed in order to provide legal clarity and be as transparent
as possible."
1.10 However, the Minister expects negotiations
on the draft Regulation to be lengthy and extend beyond 1 December
2014 — the date on which measures subject to the block opt-out
cease to apply to the UK, except those which the Government has
successfully negotiated to rejoin. If this proves to be the case,
the scope of the UK's 2014 block opt-out decision will not be
affected by negotiations on the draft Regulation.[1]
The Minister adds:
"In the longer term, it is clear that our continued
participation in Europol (and CEPOL, or its successor if the merger
goes ahead) will depend on our participation in this new measure."
The merger of Europol and CEPOL
1.11 We raised three issues. First, we asked
the Minister whether he considered that Article 88 of the Treaty
on the Functioning of the European Union (TFEU) exhaustively defined
Europol's mission or tasks or whether it could also undertake
the training activities envisaged in Article 87 TFEU. He replies:
"We believe that Article 88 does define Europol's
scope fully, in that all the Agency's functions must have their
legal base there. However, Article 88(2) does not set out an
exhaustive list of Europol's tasks, merely stating that they "may
include" those listed in sub paragraphs (a) and (b)."
1.12 Second, we asked whether CEPOL and Europol
supported the proposed merger. The Minister's response makes
clear that they — and many others — do not:
"The Management Boards of both Europol and CEPOL
have expressed opposition to the proposed merger, and the Directors
of both Agencies spoke against it at a meeting of the European
Parliament's Civil Liberties, Justice and Home Affairs ("LIBE")
Committee on 7 May. During the LIBE discussion, MEPs from all
sides were also strongly critical of the merger. The Chairman
of the LIBE Committee has written to the President of the JHA
Council expressing his opposition to this aspect of the proposal.
The vast majority of Member States opposed the merger at the
JHA Council on 7 June. The Presidency consequently summed up
the discussion by stating that negotiations on the Regulation
in Council would proceed on the assumption that the merger would
not take place. The Government welcomes this approach."
1.13 Third, we sought further information on
the implications of closing CEPOL's current headquarters at Bramshill
in 2014. The Minister tells us:
"The Government has informed the Commission
and the Director of CEPOL of our decision to sell the current
Bramshill premises and we would not seek to relocate the CEPOL
functions to elsewhere in the UK. Our priority is to relocate
the College of Policing so that it will be on a strong footing
to support policing in England and Wales. While our decision
to close Bramshill will obviously require CEPOL to move, we do
not believe that it makes its merger with Europol necessary.
A number of other Member States have expressed an interest in
hosting CEPOL as an independent Agency, though we do not yet have
a settled view on which alternative location would be appropriate
for it."
Information exchange and cooperation with Europol
1.14 In light of the Government's reluctance
to endorse any strengthening of requirements for Member States
to share information with Europol, we asked the Minister to provide
some indication of the volume of information which the UK currently
shares with Europol, relative to other Member States, and to explain
how a purely voluntary information-sharing mechanism would reduce
the significant disparities in the amount of information provided
by different Member States. The Minister replies:
"Information obtained by the Serious Organised
Crime Agency shows that, in 2012, the UK:
- provided approximately 14% of the total data
entries in the Europol Information System (EIS) (26,858 out of
186,896) — the third highest in the EU;
- provided approximately 22% of the total number
of EIS entries relating to persons (10,674 out of 48,023) —
the highest in the EU;
- initiated approximately 10% of all the cases
set up via Europol's Secure Information Exchange Network Application
(SIENA) (1,523 out of 15,949) — the second highest in the
EU; and
- was responsible for approximately
8% of all information exchanged via SIENA (22,217 messages out
of 272,747) — the third highest in the EU."
1.15 He adds:
"We accept that not all Member States share
the same amount of information with Europol, and that it would
be desirable for some to share more. We could support a system
of incentives to share more information, as well as a system of
reporting on the quantity and quality of information that each
Member State provides, as proposed in Article 7(10) of the draft
Regulation. However, we are concerned that a stronger legal
requirement to share information could lead some to prefer
quantity over quality, uploading information in order to avoid
infringement proceedings rather than because it is useful. An
obligation to share information would also reduce Member States'
control over intelligence they own."
Third country cooperation agreements
1.16 Given 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 asked the Minister whether other Member
States agreed 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. The Minister says that he
expects to learn more about the position of other Member States
once detailed negotiations begin this month.
Data protection
1.17 We asked the Minister to indicate his preference
for oversight of Europol's data processing activities by either
the Joint Supervisory Body (JSB), as is currently the case, or
by the European Data Protection Supervisor (EDPS), and to seek
the views of the UK's Information Commissioner's Office (ICO)
on the data protection framework proposed in the draft Regulation
and the appropriate supervisory body. The Minister tells us:
"Unlike the Commission, the ICO does not believe
that there are any issues with the independence of the JSB that
would require the EDPS to take over the supervision of
Europol. It argues that the JSB is no more or less independent
than the EDPS. The Government agrees.
"The ICO understands the Government's concerns
about the possible loss of the JSB's expertise, but notes that
the EDPS is a well-established and effective supervisory authority
with its own expertise. It is also satisfied that the EDPS would
be able to develop any necessary knowledge in areas in which it
is not currently expert, such as law enforcement, and to agree
suitable arrangements for the involvement of national data protection
authorities in the supervisory process. Finally, it argues that
the abolition of the JSB could save national data protection authorities'
resources, as they would no longer need to send representatives
to JSB meetings in Brussels.
"The Government supports independent supervision
of Europol's data protection. We accept that the EDPS could,
in time, develop the necessary expertise to supervise Europol
effectively, but are unconvinced of the need to require it do
so when a fully adequate supervisory body already exists.
"The ICO also queries whether the increased
scope for Europol to receive information and coordinate joint
operations offers enough certainty over the nature of the data
that it will receive, and the purpose for which it will be used.
My officials will meet with the ICO shortly to discuss these
concerns. As I said in the EM, we do need more clarity on the
data protection provisions. We anticipate that they will develop
as the negotiations on the draft Data Protection Regulation and
Directive make progress."
Parliamentary scrutiny of Europol
1.18 Although we raised no questions on the provisions
on Parliamentary scrutiny of Europol and have requested an Opinion
from the Home Affairs Committee, the Minister nevertheless agrees
with the principles we set out in our last Report on the subject,[2]
and adds:
"The Government supports the scrutiny of Europol
by national Parliaments. However, we have reservations about
the specific procedure set out in Article 53(1) of the Regulation,
and would expect any process to be agreed by the European Parliament
and national Parliaments.[3]
We believe it is important to have a clear demarcation between
the role of the European Parliament and national Parliaments.
Any joint role in scrutinising Europol should be in line with
Article 9 of the Protocol on the Role of National Parliaments."
European law enforcement training
1.19 Turning to the Communication on establishing
a European law enforcement training scheme (LETS), we asked the
Minister whether he considered that some of the preliminary work
envisaged by the Commission (pending the transfer of CEPOL's functions
to the Europol Academy) was consistent with CEPOL's current mandate.
The Minister observes:
"As you know, CEPOL is governed by EU Council
Decision 2005/681/JHA of 20 September 2005. The Government is
of the view that the preliminary tasks that CEPOL has been requested
to undertake would go beyond the purpose, objectives and tasks
of the current Council Decision, in particular because CEPOL is
in general restricted to providing training to senior law enforcement
officers, while the LETS is intended to cover officers at all
ranks.
"In addition, the Commission have stated that
to implement the training effort envisaged in the Communication,
an EU Agency with the appropriate legal mandate and the necessary
resources is needed. The Commission is therefore proposing a
new legal framework for Europol, granting it powers to work on
training which exceed those of CEPOL. The Communication proposes
a much wider mandate for the new 'Europol Academy', which will
be responsible for implementing LETS, than currently held by CEPOL."
1.20 The Minister adds that, given the strength
of opposition to the proposed merger of CEPOL and Europol, it
is unclear how the ideas in the Communication will be taken forward
or how the Presidency will handle the relationship between the
Communication and the draft Europol Regulation.
The Home Secretary's Written Ministerial Statement
on the Justice and Home Affairs Council on 6/7 June 2013
1.21 In her Statement of 13 June, the Home Secretary
notes that the Presidency sought views on the draft Europol Regulation
and that there was "a clear consensus" against the merger
of CEPOL and Europol, with the UK and 18 other Member States expressing
concern that it would have "a negative impact on both training
and operational activities and that the Commission's own calculations
had failed to demonstrate cost savings." A number of Member
States also joined the UK in opposing the proposed obligation
to share information with Europol. She adds:
"The UK acknowledged the importance of information
sharing but said we could not accept any proposal that made national
law enforcement agencies accountable to Europol, or that would
lead to Member States losing control over decisions on what data
they share and with whom."
1.22 The Home Secretary says that the UK also
raised concerns over obligations to carry out domestic investigations
at the request of Europol, but no other Member States intervened
on this point.
Conclusion
1.23 The Government has repeatedly told us
that it is committed to enhancing Parliamentary scrutiny of EU
justice and home affairs measures. In her Statement to the House
on 15 October 2012, the Home Secretary said:
"This Government, more than any other before
them, have done their utmost to ensure that Parliament has the
time to scrutinise properly our decisions relating to the European
Union and that Parliament's views are taken into account."[4]
1.24 In his Written Ministerial Statement
(WMS) of 20 January 2011, the Minister for Europe (Mr David Lidington)
made two new commitments which were intended to strengthen Parliament's
oversight of EU justice and home affairs measures and make the
Government more accountable for decisions taken in Brussels.
The first was to allow both Houses of Parliament to vote on the
Government's recommended approach to the UK's 2014 block opt-out
of pre-Lisbon EU police and criminal law measures. The second
was to set aside Government time on the Floor of the House to
debate the Government's recommended approach to opt-in decisions
on EU justice and home affairs measures which attract "particularly
strong Parliamentary interest." Europol is highly pertinent
to both commitments since its current legal base — a 2009
Council Decision — is subject to the UK's 2014 block opt-out
and the new draft Europol Regulation is recognised by the Government
as being of sufficient importance to warrant the enhanced Parliamentary
scrutiny which Lidington debates are intended to ensure.
1.25 It is now apparent that the Government
is struggling to deliver on both commitments. Our recent Report,
The 2014 block opt-out: engaging with Parliament suggested
that the Government's delay in providing its legal and policy
assessment of the 130-odd EU police and criminal law measures
subject to the UK's 2014 block opt-out requested by the European
Scrutiny, Justice and Home Affairs Committees was unacceptable
and irreconcilable with the Government's professed commitment
to enhanced Parliamentary scrutiny of EU justice and home affairs
measures.[5]
1.26 Similarly, the potential of Lidington
debates to enhance Parliamentary scrutiny of important opt-in
decisions in any meaningful way has yet to be realised. We do
not doubt that such potential exists, not only because debates
taking place on the Floor of the House have a profile which opt-in
debates in European Committee are far less likely to achieve.
Perhaps more importantly, the Government's commitment to make
clear whether or not it intends to recommend exercising the UK's
opt-in in advance of the debate allows Parliament to engage with
the substantive reasons put forward by the Government to support
its recommendation, rather than merely to speculate on what the
Government may or may not decide to do at a later stage, once
the opportunity for enhanced scrutiny and debate has passed.
1.27 Two Lidington debates have already taken
place in highly unsatisfactory circumstances, leading the Government
to promise that it would give "high priority to finding ways
to address the problems that have arisen to date and maximise
the effectiveness of the process."[6]
Our Third Report of 21 May 2013 made clear that we expected the
Government to notify us of its recommended approach to the draft
Europol Regulation, and the reasons informing its recommendation
to opt in or not, in sufficient time to produce a further Report
in advance of the debate. Whilst it is clear from the Minister
for Security's letter that he intended to do so, once again the
Government has been unable to deliver on its commitments.
1.28 Although it will be too late, now, to
report the Government's recommended approach to the draft Europol
Regulation before the opt-in debate takes place on 3 July, we
nevertheless urge the Minister to write to us with a full explanation
of the reasons for the Government's inability to meet its Lidington
commitments and providing the information we requested for the
opt-in debate in our Third Report. We expect to receive this
information before the debate so that it can be made available
to Parliament.
1.29 Once the debate has taken place, we will
wish thoroughly to review the Government's commitment to Lidington
opt-in debates, in light of its apparent inability to provide
Parliament with the timely information needed to ensure full transparency
and accountability for important opt-in decisions. As part of
this review, we may wish to invite the Europe Minister and Ministers
from the Home Office and Ministry of Justice to give evidence.
1.30 We will return to the other matters addressed
in the Minister's letter of 20 June 2013 once we have further
information on whether or not the Government intends to opt into
the draft Europol Regulation. Meanwhile, the draft Regulation
and the Commission Communication remain under scrutiny.
1 This is because the Council Decisions establishing
CEPOL and Europol - and all other pre-Lisbon EU criminal law and
policing measures - only cease to be subject to the block opt-out
once subsequent measures amending (or repealing and replacing)
them have been formally adopted and/or take effect. Back
2
See headnote. Back
3
Article 53(1) provides: "The Chairperson of the Management
Board and the Executive Director 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". Back
4
See HC Deb, 15 October 2012, col. 35. Back
5
Thirty-seventh Report of Session 2012-13; HC 798. Back
6
Letter of 8 June 2012 from the Minister for Security (James Brokenshire);
see (33758) 7641/12: HC 86-vi (2012-13), chapter 4 (27 June 2012).
The earlier Lidington debates concerned a draft Regulation on
data processing in the framework of police and judicial cooperation
in criminal matters and a draft Directive on the freezing and
confiscation of proceeds of crime. Back
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