11 Reforming Europol
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8229/13
+ ADDs 1-6
COM(13) 173
| 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
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| Legal base | Articles 88 and 87(2)(b) TFEU; co-decision; QMV
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| Department | Home Office
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| Basis of consideration | Opinion delivered by the Home Affairs Committee
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| Previous Committee Reports | HC 83-xiii (2013-14), chapter 21 (4 September 2013);
HC 83-ix (2013-14), 10 July 2013;
HC 83-vii (2013-14), chapter 1(26 June 2013); and
HC 83-iii (2013-14), chapter 1 (21 May 2013)
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| Discussion in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background and previous scrutiny
11.1 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.[50]
11.2 Changes introduced by the Lisbon Treaty require
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, as well as procedures for
scrutiny of its activities by the EP, together with national Parliaments.[51]
The draft Europol Regulation proposed by the Commission seeks
to satisfy this requirement. Our earlier Reports provide a detailed
overview of its main provisions and the Government's approach.[52]
Our purpose, in this Report, is to consider the arrangements
for inter-parliamentary scrutiny of Europol's activities in light
of two Opinions provided by the Home Affairs Committee.
11.3 We first considered the role of national Parliaments
in scrutinising the work of Europol in 2011, following the publication
of a Commission Communication which sought to stimulate ideas
as a prelude to the formulation of "concrete proposals as
to how mechanisms of parliamentary scrutiny can be put in place
and effectively implemented in practice."[53]
The Commission recognised that it would be for national Parliaments
to determine the shape and content of any new procedures for scrutiny
of Europol, but suggested that one way forward might be the establishment
of a joint or inter-parliamentary forum which would bring together
members of the relevant EP and national parliamentary committees
responsible for police matters. This forum would provide a mechanism
for "information exchange and coordination between national
parliaments and the EP with a view to unifying Parliamentary control
at EU level (without prejudice to national Parliamentary procedures)."[54]
11.4 We sought an initial Opinion from the Home Affairs
Committee on the Commission Communication which we reported to
the House in our Twenty-sixth Report of Session 2010-12, agreed
on 27 April 2011. The Opinion recognised that there was scope
to make scrutiny of Europol by national Parliaments more methodical
and to develop best practice, but rejected the proposition that
it was necessary or desirable to establish a new, formal forum
or mechanism to unify parliamentary control or scrutiny of Europol
at European Union level, not least because such a forum or mechanism
could not make decisions which would bind national Parliaments.
We agreed with the Home Affairs Committee that there was scope
to build more systematic discussions on Europol's activities into
existing mechanisms, such as inter-parliamentary meetings involving
the European Parliament and national Parliaments, and to exchange
information and share best practice on scrutiny at both EU and
national Parliamentary levels, adding:
"we trust that the Commission, in formulating
proposals for a Regulation in 2013 establishing a new legal framework
for Europol, and the Council, in considering the content of the
draft Regulation, will be mindful of Article 9 of the Protocol
on the Role of National Parliaments 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.' In our view, neither the Commission
nor the Council have any locus to determine the format, frequency
and procedures applicable to such inter-parliamentary cooperation;
any future arrangements for scrutiny of Europol should, therefore,
be determined by the European Parliament and national Parliaments."
11.5 New provisions on Parliamentary scrutiny of
Europol's activities are contained in Article 53 of the draft
Europol 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."
11.6 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."
11.7 Various other provisions of the draft Regulation
establish that national Parliaments shall receive the following
information, without prescribing any particular form or method
of scrutiny:
· 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).
11.8 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.
11.9 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.
11.10 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.[55]
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.
11.11 We invited the Home Affairs Committee to provide
a further Opinion on arrangements for Parliamentary scrutiny of
Europol in light of Article 53 and other relevant provisions contained
in the draft Regulation.
11.12 Meanwhile, the designated Rapporteur
for the Committee on Civil Liberties, Justice and Home Affairs
(LIBE) in the European Parliament has also prepared a draft Report
to be considered by the plenary early in 2014 which proposes a
number of significant changes to Article 53 of the draft Regulation.
These would:
· establish a small, specialised structure
called the "Parliamentary Scrutiny Unit", composed of
Members of the EP's LIBE Committee and one representative from
the appropriate Parliamentary Committee of each Member State;
and
· provide for all meetings to be convened
by the Chair of the LIBE Committee and to take place at the seat
of the European Parliament (Brussels or Strasbourg).[56]
11.13 Amendments to the draft Report proposed by
other Members of the LIBE Committee would give national parliamentarians
participating in the Parliamentary Scrutiny Unit a purely consultative
role, whilst their counterparts from the EP would have a right
to vote. They would also give the Unit far more extensive powers
of oversight of Europol's activities, as well as formal powers
in relation to the appointment and dismissal of Europol's Executive
Director.
The Opinion of the Home Affairs Committee
11.14 The Chair of the Home Affairs Committee (the
Rt Hon Keith Vaz) refers to two passages from the Committee's
first Opinion, issued in May 2011, on the Commission Communication
on Parliamentary scrutiny of Europol's activities. The first
passage stated:
"It is neither necessary nor desirable to create
a mechanism 'with a view of unifying parliamentary control at
European Union level.' It is difficult to see what value this
would add in terms of quality of scrutiny and, in practical terms,
a formal forum of representatives of 27 Member States plus the
European Parliament would be unwieldy and, because of different
national constitutions, could not anyway make any decisions binding
on national Parliaments."
11.15 The second noted that:
"Two informal fora already exist in relation
to policing issues: the meetings of representatives of the Home
Affairs Committees of national parliaments which take place most
years and the ad hoc inter-parliamentary meetings involving both
national parliaments and the European Parliament, often hosted
by the LIBE Committee of the European Parliament. One or both
of these could be used as a mechanism for discussing Europol on
a regular basis and exchanging ideas about best practice."
11.16 He says that the Committee's view remains unchanged,
for the following reasons:.
"The draft Europol Regulation sets out in Article
53(1) that: '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.' This is consistent with Article 88 TFEU,
and ensures that sovereign national parliaments are not the subject
of legally binding EU obligations. Our interpretation of Article
53(1) is that it would be fulfilled through either of the fora
outlined above without the establishment of a new mechanism for
inter-parliamentary scrutiny. However, it also provides the flexibility
for national parliaments to agree additional arrangements in the
future if a case were made for further oversight. In that instance,
the appropriate means of determining the mechanism for any such
oversight would be the Speakers' Conference, as has been the case
in respect of other new inter-parliamentary fora on common foreign
and security policy, and economic governance. It should also be
noted that a discussion on this issue was held at the April 2011
Speakers' Conference in the Belgian Parliament and Speakers, including
the then European Parliament President, concluded that inter-parliamentary
scrutiny of Europol's activities should be organised within the
framework of existing inter-parliamentary structures."
11.17 The Opinion expresses the Committee's dismay
at the prescriptive approach adopted by the European Parliament's
Committee on Civil Liberties, Justice and Home Affairs (the LIBE
Committee) in its proposed amendments to the draft Europol Regulation,
notably the establishment of a "Parliamentary Scrutiny Unit"
as a "small and specialist structure", adding:
"As you know, the LIBE Committee has 60 members.
Notwithstanding the fact that this proposal makes no provision
for bicameral parliaments such as our own, the unit could in no
way be described as 'small.' The balance of competency within
the unit would also be grossly skewed towards the European Parliament.
This would be further emphasised by amendments to the Regulation
that would see the unit meet only ever at the European Parliament's
seat, and even then at the discretion of the Chair of the LIBE
Committee. The European Parliament must be aware that the representation
at and organisation of any forum for inter-parliamentary scrutiny
of Europol would need to more accurately reflect the role of all
29 parliaments in the EU in that scrutiny."
11.18 The Opinion continues:
"The Home Affairs Committee is also concerned
that some amendments to the Europol Regulation proposed by certain
members of the LIBE Committee go further still, potentially interfering
with the operational independence of the organisation, and denying
voting rights to representatives of national parliaments that
take part in the unit. On the latter point, notwithstanding objections
to the unequal treatment of such a proposal, we do not envisage
a role for voting arrangements in any form of inter-parliamentary
scrutiny of Europol. Overall, the position adopted by the European
Parliament runs counter to the spirit of Article 9 of the Protocol
on the Role of National Parliaments (TEU/TFEU), which states 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 thus expect
the UK Government and other Member States in Council to robustly
defend the role of national parliaments in scrutiny of Europol's
activities in any future negotiations with the European Parliament
on the draft Regulation."
11.19 Turning to possible arrangements for consulting
national Parliaments on Europol's multiannual work programme and
their consideration of other material sent by Europol for information
purposes, the Opinion states:
"We do not believe that the mechanism for this
need be prescribed further in the current draft Regulation. We
would expect those documents set out for parliamentary scrutiny
in the Regulation to be considered by the European Scrutiny Committee
in the first instance within the existing framework for filtering
European Union documents, and seeking the opinion of the Home
Affairs Committee where appropriate. It is a matter for the House
of Lords how it conducts its affairs in this respect."
11.20 The Opinion notes that Article 53(2) of the
draft Regulation provides that "Parliamentary scrutiny by
the European Parliament, together with national Parliaments, of
Europol's activities shall be exercised in accordance with this
Regulation" and adds:
"As you know, the Home Affairs Committee took
evidence from the Director General of Europol in September 2013
as part of its inquiry into the UK's justice and home affairs
opt-out. I have also recently visited Europol to see first-hand
the excellent work conducted by that organisation. We would not
wish the terms of Article 53(2) to preclude such ad hoc
scrutiny in the future where we deem it appropriate. We would
expect this to also be the view of national parliaments in other
countries which are significant contributors to the work of Europol.
"Negotiations on the draft Europol Regulation
have already been underway for some time, and while consideration
is still in its early stages in Council, the European Parliament
is more advanced. Although it seems unlikely that anything will
be agreed between the co-legislators before the European Parliamentary
elections in May 2014, once agreed, there will not be another
opportunity to amend the Regulation for some time. As such, we
believe that the final Regulation on Europol must provide sufficient
flexibility to shape the nature of inter-parliamentary scrutiny
of that body over time in a way that is proportionate, not overly
prescriptive, and adequately reflects the interests of national
parliaments."
Conclusion
11.21 We thank the Home Affairs Committee for
its Opinion and strongly endorse its conclusion that the new Europol
Regulation must "provide sufficient flexibility to shape
the nature of inter-parliamentary scrutiny of that body over time
in a way that is proportionate, not overly prescriptive, and adequately
reflects the interests of national Parliaments."
11.22 We note that the EU Treaties, whilst recognising
the important contribution that national Parliaments make to the
good functioning of the European Union, do not — and cannot
— impose binding obligations on national Parliaments or
prescribe the nature of their contribution. For example, Article
12 of the Treaty on European Union (TEU) refers to national Parliaments
"being involved in the political monitoring of Europol"
and Article 88 of the Treaty on the Functioning of the European
Union (TFEU) makes provision for regulations to "lay down
the procedures for scrutiny of Europol's activities by the European
Parliament, together with national Parliaments." Both Articles
envisage a role for national Parliaments; neither seeks to determine
how that role should be fulfilled. We attach, as an Annex to
this chapter, a legal opinion setting out the reasons why national
Parliaments cannot be the subject of binding obligations under
the EU Treaties or EU secondary legislation, such as the draft
Europol Regulation.
11.23 We consider that the language proposed by
the Commission in Article 53 of the draft Regulation provides
a suitable starting point for developing some form of inter-parliamentary
scrutiny and democratic oversight of Europol's activities. We
agree with the Home Affairs Committee that there is scope to make
better use of existing inter-parliamentary fora without, at this
stage, seeking to develop new oversight structures. Moreover,
whatever arrangements for inter-parliamentary scrutiny of Europol
are eventually agreed should be in keeping with the spirit of
Article 9 of the Protocol on the Role of National Parliaments
in the European Union which provides: "The European Parliament
and national Parliaments shall together determine the organisation
and promotion of effective and regular inter-parliamentary cooperation
within the Union."
11.24 We note that the Speakers' Conference, which
brings together Speakers (or their representatives) from all Member
States and the European Parliament, considered the role of Parliaments
in monitoring Europol's activities at its meeting in April 2011
and issued the following Conclusions:
"The Speakers were of the opinion that
the current forms of scrutiny were insufficient. Consequently,
that scrutiny should be exerted by an inter-parliamentary body
within which representatives of the national Parliaments and the
European Parliament would meet on a regular basis. In order to
limit costs, this scrutiny should be organised within the framework
of existing inter-parliamentary structures. The LIBE Committee
of the European Parliament could organise joint meetings on Europol
with the corresponding committees of the national Parliaments.
The Chairpersons of Home Affairs Committees could also organise
regular meetings on Europol. Such increased transparency would
strengthen Europol's legitimacy.
"The purpose of these meetings should
be to discuss all questions relating to Europol's structure, functioning,
planning and work. To that end, it should be possible to have
hearings with the Chair of the Board of Directors as well as the
Director of Europol on Europol's strategic documents and/or its
evaluation reports."
11.25 The Speakers' Conference remains, in our
view, the most appropriate forum for discussions of this nature
to take place, ensuring that each Parliament has an equal opportunity
to make a contribution and be heard. Accordingly, we recommend
that arrangements for Parliamentary scrutiny of Europol's activities
should be discussed at the forthcoming Speakers' Conference in
April 2014 and that further consideration of the provisions of
the draft Europol Regulation on Parliamentary scrutiny should
await, and not pre-empt, the outcome of these discussions.
11.26 In the spirit of political dialogue, we
intend to transmit our views on the arrangements for inter-parliamentary
scrutiny of Europol's activities to the President of the Council
(Mr Giannis Michelakis), to Commissioner Malmstr½m and to
the Rapporteur (Mr Agustín Díaz de Mera García
Consuegra) and Chair (Mr Juan Fernando López Aguilar) of
the European Parliament's LIBE Committee.
11.27 Meanwhile, the draft Regulation remains
under scrutiny. We look forward to receiving regular progress
reports on the negotiations and ask the Government to confirm
that discussions within the Council are proceeding on the basis
that any new arrangements for inter-parliamentary scrutiny of
Europol's activities will only be introduced with the agreement
of national Parliaments.
50 See Council Decision 2009/371/JHA, OJ No. L 121,
15.05.09. Back
51
See Article 88(2) of the Treaty on the Functioning of the European
Union. Back
52
See headnote. Back
53
See p.3 of the Commission Communication on procedures for the
scrutiny of Europol's activities by the European Parliament together
with the national parliaments; Council document 5659/11, (32420),
HC 428-xvi (2010-11), chapter 10 (9 February 2011) and HC 428-xxiv
(2010-11), chapter 15 (27 April 2011). Back
54
See p.15 of the Communication. Back
55
See Articles 56(2) and 19(3). Back
56
See http://www.europarl.europa.eu/committees/en/libe/draft-reports.html?linkedDocument=true&ufolderComCode=LIBE&ufolderLegId=7&ufolderId=12427&urefProcYear=&urefProcNum=&urefProcCode=#menuzone. Back
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