9 Relocation of the European Police
College (CEPOL)
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17043/13
+ ADDs 1-2
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| Initiative of Belgium, Bulgaria, the Czech Republic, Germany. Estonia, Greece, Spain, France, Croatia, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Slovenia, Slovakia, Finland and Sweden for a Regulation amending Decision 2005/681/JHA establishing the European Police College (CEPOL)
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| Legal base | Article 87(2)(b) TFEU; co-decision; QMV
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| Department | Home Office
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| Basis of consideration | Minister's letter of 14 March 2014
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| Previous Committee Reports | HC 83-xxxv (2013-14), chapter 1 (5 March 2014);
HC 83-xxvi (2013-14), chapter 3 (8 January 2014);
(35741) 5522/14: HC 83-xxxiv (2013-14), chapter 23 (26 February 2014) is also relevant
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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; opt-in decision recommended for debate (decision reported on 8 January 2014)
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Background and previous scrutiny
9.1 The draft Regulation — a Member State initiative
presented by 25 Member States (excluding Denmark, the UK and Ireland)
— provides for the relocation of the European Police College
(CEPOL) from Bramshill (Hampshire) to Budapest. It follows an
announcement by the Government in December 2012 that it intended
to sell the Bramshill site and a political agreement reached by
the Justice and Home Affairs Council last October on "provisional
arrangements" to host CEPOL in Budapest. Relocating CEPOL
would require changes to a 2005 Decision establishing CEPOL as
an EU Agency and providing for it to be based in Bramshill.[16]
9.2 We first considered the draft Regulation
at our meeting on 8 January 2014 (see our Twenty-ninth Report)
and asked the Government to clarify its position on a number of
issues, in particular:
· whether
it agreed with the choice of Budapest, and why it would be a good
base for CEPOL;
· whether
the draft Regulation should cite a different legal base, in light
of the Government's concern to avoid the involvement of the European
Parliament in decisions on the location of EU agencies;
· whether
a draft Regulation was the appropriate legal instrument to amend
the 2005 Council Decision establishing Bramshill as CEPOL's base;
· the
costs which the UK may be required to bear for the relocation
of CEPOL; and
· the
implications of the Government's opt-in decision for its 2014
block opt-out of pre-Lisbon EU police and criminal justice measures
(in particular, confirmation that a decision to opt into the draft
Regulation would remove the 2005 CEPOL Decision from the list
of measures subject to the UK's block opt-out).
9.3 As the draft Regulation is subject to the
UK's Title V (justice and home affairs) opt-in, we also recommended
that the Government's opt-in decision should be debated in European
Committee B. Our Twenty-ninth Report, agreed on 8 January 2014,
provides further information on the background to the proposed
move and the content of the draft Regulation.
9.4 The Minister for Policing and Criminal Justice
(Damian Green) wrote to us on 27 February explaining that the
draft Regulation was "an important step towards ensuring
that CEPOL vacates the Bramshill site in good time for any sale"
and that it was "very much in UK interests to support the
proposal". His letter did not, however, address the questions
we had raised in our earlier Report or provide a clear indication
of whether or not the Government intended to opt into the draft
Regulation. Nor did the Minister explain the reasons for the
apparent delay in scheduling an opt-in debate, having previously
told us that deadline for the UK to notify its opt-in decision
to the Council Presidency was 8 March.[17]
9.5 On 10 March, the Council issued a press notice
stating that the Committee of Permanent Representatives (Coreper)
had reached a compromise with the European Parliament on 5 March
which paved the way for the draft Regulation to be formally approved
by the EP and the Council during the Greek Presidency (which ends
in June). In light of this information, we wrote to the Minister
on 12 March noting that we still had received no response to the
questions raised in our initial Report two months previously and
requesting an urgent explanation for the Government's failure
to hold an opt-in debate within the three-month period available
to it to make a decision. A copy of our letter is annexed to
this chapter.
The Minister's letter of 14 March 2014
9.6 The Minister (Damian Green) writes to inform
us of the Government's decision to opt into the draft Regulation
for the following reasons:
"The current CEPOL Council Decision states that
the headquarters of CEPOL shall be in Bramshill. The Regulation
replaces the part of the CEPOL Council Decision that specifies
Bramshill, with a statement that the seat shall be in Budapest.
The Bramshill site is owned by the Home Office, and is also currently
used by the College of Policing. The site costs the Home Office
£5 million per annum to run, and is not economically viable.
The Home Secretary therefore decided in December 2012 that Bramshill
should be sold. It was placed on the market in the summer with
a listing price of £20-25 million, and we are on schedule
to complete the sale by March 2015. The sale of Bramshill means
that we will be unable to continue housing CEPOL there.
"The publication of the Regulation is an important
step towards ensuring that CEPOL vacates the Bramshill site in
good time for any sale. Any buyer would expect vacant possession,
so in the context of securing the sale it is very much in UK interests
to support the proposal. CEPOL have been guaranteed occupation
of the site until September 2014, as the new site in Budapest
will not be ready to house CEPOL until the end of August 2014.
"We are keen to cooperate fully in the process
of moving CEPOL from Bramshill to its new location. To give CEPOL
staff some much needed assurance this process needs to be completed
quickly. The Regulation has been helpfully brought forward to
accommodate our objectives in moving CEPOL from Bramshill. Opting
in to the measure will maintain the good momentum we have built
with other Member States and the European Parliament to secure
our objectives of relocating CEPOL and selling Bramshill. It
is therefore important we opt in to give us the best possible
chance of ensuring a positive and timely outcome."
9.7 Turning to the implications of the Government's
opt-in decision for its block opt-out of pre-Lisbon police and
criminal justice measures (including the 2005 Council Decision
establishing Bramshill as the base for CEPOL) , the Minister adds:
"It is also important to note that if the UK
does not opt in to the proposal to relocate CEPOL, and if it is
subsequently adopted by the rest of the EU, the UK will remain
bound by the underlying CEPOL Council Decision. Under such circumstances,
it is possible we would be ejected from the underlying measure
under Article 4a(2) of our JHA opt-in Protocol (Protocol 21).
"If (as is likely) the Member State Initiative
is agreed before 1 December 2014 and the UK opts in to it, then
the CEPOL Council Decision would become subject to Commission
and ECJ enforcement powers from the date of the initiative's adoption
and would no longer be within scope of the 2014 opt out. However,
as you know, the current CEPOL Council Decision is one of the
set of 35 measures that we are seeking to rejoin."
9.8 The Minister explains why he considers that
Budapest would be a suitable base for CEPOL:
"All Member States, including the UK, are supportive
of the relocation of CEPOL to Budapest. The headquarters offered
by Hungary for CEPOL are situated in the city centre of Budapest,
easily accessible from most European capitals by cost-effective
transport. The office space and facilities exceed the requirements
defined by CEPOL. All the facilities, and their management, are
being offered free of charge by Hungary."
9.9 The Minister notes that the funding of relocation
costs is "still to be determined" but adds:
"our primary aim has always been to ensure the
move takes place as quickly as possible. The UK has committed
to enter into negotiations with the Presidency, CEPOL and Union
partners in order to ensure that the regular budget of CEPOL is
not jeopardised as a result of the move."
9.10 Turning to the role of the European Parliament
in determining the future location of CEPOL, and the use of a
Regulation to amend the 2005 Decision, the Minister explains:
"The Member State Initiative has been proposed
under Article 87(2)(b) of the Treaty on the Functioning of the
European Union (TFEU), and is therefore subject to the Ordinary
Legislative Procedure, including co-decision with the European
Parliament. The Government does not believe that any other legal
base could have been cited. This is the only applicable legal
base because the original Council Decision which is due to be
amended by the Member State Initiative was made under powers that
are now set out in Articles 87 and 88 of the TFEU. However, only
Article 87 is applicable because Article 88 is exclusively concerned
with another Agency, namely Europol.
"You further
asked if we consider that the Member State Initiative is the appropriate
legal instrument to amend the 2005 Council Decision, and why a
draft amending Decision would not be appropriate. This is because
the 2005 Council Decision which established CEPOL (including the
specific naming of its seat at Bramshill), was made under powers
(the "legal base"), that are now set out in Articles
87 and 88 of the TFEU. Amendments to Articles 87 and 88 TFEU are
governed by Article 76 TFEU, which provides that any amendment
to legislation whose legal base is in chapters 4 and 5 of Title
V (Articles 82-89 TFEU), shall be adopted either by a Commission
proposal or by a Member State Initiative. It was felt that a
Member State Initiative would be more appropriate than a Commission
proposal in this case, which would have been the only other alternative.
Articles 87 and 88 TFEU are both subject to the ordinary legislative
procedure, which is defined in Article 289(1) TFEU as requiring
the joint adoption by the European Parliament and Council of a
proposal from the Commission. This is because under Article 16(1)
of the TEU, following amendments made by the Treaty of Lisbon,
the Council can no longer make legislation (that is, Council Decisions)
alone, but has to do so jointly with the European Parliament.
Under Article 289(1) TFEU the ordinary legislative procedure
can apply to a regulation, directive or decision, so in principle
a further decision amending the 2005 Council Decision could have
been made. However the extent of a decision is not as wide as
that of a regulation — a decision binds only those to whom
it is addressed, while a regulation has general application and
is binding in its entirety and directly applicable in all Member
States (Article 288 TFEU). Given CEPOL's pan-European role as
an EU Agency a Regulation is therefore the appropriate EU measure
for its governance because it is necessary for the same rules
to apply to an Agency throughout the EU, in all the Member States
bound by the measure establishing it."
9.11 The Minister confirms that, contrary to
the information provided in his Explanatory memorandum, the opt-in
deadline is 13 March. He continues:
"Following the European Parliament's vote on
25 February against the merger [with Europol], the Justice and
Home Affairs Council agreed on 3 March to remove references to
it from the Europol Regulation, and the Commission accepted this
decision. All references to the merger will now be removed from
the text. It is likely that the Commission will propose a new
CEPOL Regulation in due course to update CEPOL's tasks and bring
it into line with the Lisbon Treaty. The Government is not convinced
that further reform of CEPOL is necessary. Any new legislation
in this area would be subject to our JHA opt-in."
Conclusion
9.12 The information provided by the Minister
is long overdue. We see no reason why it could not have been
made available sooner. Although dated 14 March, we note that
the Minister's letter makes no reference to the compromise agreement
approved by the Committee of Permanent Representatives on 5 March.
Nor does it offer any explanation for the Government's failure
to schedule an opt-in debate before the expiry of the three-month
period for formally notifying its opt-in decision to the Council
Presidency. We reiterate the request made in our letter to the
Minister of 12 March (attached as an Annex to this chapter) for
an urgent explanation.
9.13 Turning to the substance of the Minister's
response, we understand that the Government's decision to sell
Bramshill has created uncertainty for CEPOL staff, but we would
expect there to be some agreement on how relocation costs are
to be funded before the Government commits itself to a new site.
The Impact Assessment accompanying the draft Regulation indicates
that "one-off expenditure" for relocating CEPOL may
approach €2 million. Given that there appears to be a consensus
that "the regular budget" of CEPOL should not be placed
in jeopardy by virtue of the move to Budapest, we ask the Minister
to explain the basis on which he expects the funding issue to
be resolved, and the anticipated cost to the UK.
9.14 We do not dissent from the Minister's
view that Article 87(2)(b) TFEU is the correct legal base for
the draft Regulation. However, we ask him whether he accepts
that the Government's support for the draft Regulation will serve
as a precedent for the involvement of the European Parliament
in decisions determining the future location of other EU Agencies
— an outcome which his Explanatory Memorandum suggested
the Government was keen to avoid.[18]
9.15 We are not entirely convinced by the
Minister's explanation of the reasons for using a draft Regulation
to amend the 2005 Council Decision. We note that there are Articles
within the EU Treaties which make provision for legislative action
without the joint participation of the European Parliament, including
Article 89 TFEU on cross-border police operations. However, we
accept that, in this case, there is no particular significance
in the choice of a draft Regulation or Decision.[19]
9.16 Pending the Minister's reply to our letter
of 12 March, and to our questions concerning the involvement of
the European Parliament in decisions determining the future location
of EU Agencies, as well as the funding of relocation costs for
CEPOL, the draft Regulation remains under scrutiny.
Annex: Letter of 12 March 2014
to the Minister for Policing and Criminal Law
At its meeting on 8 January 2014, the European Scrutiny
Committee recommended that the Government's decision whether or
not to opt into this draft Regulation should be debated in European
Committee B. The Committee also sought your response to a number
of questions which were set out in our Twenty-ninth Report and
repeated in our Thirty-eighth Report (agreed on 5 March 2014).
Your officials have advised that the deadline for
opting into the draft Regulation is 13 March 2014 (not 8 March,
as indicated in your Explanatory Memorandum). We have not received
a substantive response to the questions raised in our earlier
Reports even though none, in our view, pre-empts the Government's
opt-in decision. Nor has an opt-in debate been scheduled within
the three-month period available to the UK to reach an opt-in
decision under Article 3 of Protocol No. 21 to the EU Treaties.
On 10 March, the Council issued a press release entitled
CEPOL moving to Budapest which states:
"The Permanent Representatives Committee (Coreper)
approved on 5 March 2014 a compromise reached with the European
Parliament on an initiative of several Member States for a Regulation
amending Decision 2005/681/JHA establishing the European Police
College (CEPOL). Today the European Parliament's Committee on
Civil Liberties, Justice and Home Affairs also approved that agreement,
which paves the way for the formal adoption of the Regulation
by the European Parliament and the Council before the end of the
Parliamentary term under the Greek Presidency.
"The decision will allow CEPOL to move its seat
from Bramshill (United Kingdom) to Budapest (Hungary), following
the information from the United Kingdom that it could no longer
host CEPOL."
Your letter of 27 February 2014 made no reference
to the accelerated timetable for agreeing the draft Regulation
or the likelihood that it would be considered by Coreper several
days later. Nor did it provide any indication of the Government's
opt-in decision.
In his Written Ministerial Statement to the House
on 20 January 2011, the Minister for Europe (Mr David Lidington)
expressed the Government's full commitment to rigorous scrutiny
of its opt-in decisions, adding:
"The Government urges the Committees to take
full advantage of their existing right to call a debate on an
amendable motion on any opt-in decision and expresses its willingness
to participate in these debates to ensure full transparency and
accountability of opt-in decisions."
We have taken "full advantage" in this
case, only to be thwarted by the absence of a date and motion
for the debate, or any explanation for the delay. This is the
first time, to our knowledge, during this Parliament (excluding
recesses), that the Government has failed to meet its commitment
to hold an opt-in debate within the three-month period available
to it to make a decision. We request an urgent explanation.
16 Article 4 of Council Decision 2005/681/JHA, OJ No.
L 256, 01.10.2005. Back
17
See our Thirty-eighth Report of 5 March 2014. Back
18
See para 18 of the Minister's Explanatory Memorandum of 13 December
2013, which stated that the Government would want to consider
the consequences of "granting co-decision rights to the EP
on a decision in relation to the location of an Agency; a matter
usually reserved to the Council". Back
19
Under the pre-Lisbon Treaty procedures which applied to the adoption
of the 2005 Council Decision on CEPOL, based on Title VI of the
Treaty on European Union, the Council had to act by means of Decisions;
Regulations were only available for measures based on the EC Treaty. Back
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