16 Europol
| Committee's assessment
| Legally and politically important |
| Committee's decision | (a) Not cleared from scrutiny
(b) Not cleared from scrutiny; further information requested
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| Document details | (a) Draft Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA (34843), 8229/13 + ADDs 1-6), COM(13) 173
(b) Draft Regulation on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA — Council general approach (36118), 10033/14, -.
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| Legal base | (a) Articles 88 and 87(2)(b) TFEU; co-decision; QMV
(b) Article 88 TFEU; co-decision; QMV
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| Department | Home Office
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Summary and Committee's conclusions
16.1 The Lisbon Treaty requires Europol to be established
on the basis of a Regulation, adopted by the Council and the European
Parliament, setting out its structure, operation, field of action
and tasks, and including (for the first time) provision for scrutiny
of its activities by the European Parliament, together with national
Parliaments. The Commission proposed a draft Regulation —
document (a) — in March 2013. Its proposal included provision
for the functions of Europol and the European Police College (CEPOL)
to be merged within a single European Agency for Law Enforcement
Cooperation and Training. The Commission proposal also sought
to strengthen the obligation on Member States to share law enforcement
information with Europol and to initiate a criminal investigation
when requested by Europol.
16.2 The Government considered that these changes
would threaten the operational independence of the UK's law enforcement
authorities. Whilst expressing support for the work of Europol,
the Government decided not to opt into the Commission proposal
but to play an active part in negotiations and to seek changes
which might enable it to recommend opting in following the adoption
of the draft Regulation.
16.3 The European Parliament agreed its First Reading
amendments to the draft Regulation in February 2014. They include
far-reaching and, in our view, excessively prescriptive changes
to the provisions on parliamentary scrutiny of Europol contained
in the Commission's original proposal and would give the European
Parliament a dominant role in overseeing Europol's activities.
16.4 The Justice and Home Affairs Council agreed
a general approach in June 2014 — a vital step in determining
the Council's negotiating position with the European Parliament
once trilogue discussions commence in the autumn. The UK had no
right to vote on the Council general approach — set out
in document (b) — as it has not opted into the draft Regulation,
but the Government considers that it has been able to secure some
important changes. These are described in the Explanatory Memorandum
provided by the Minister for Modern Slavery and Organised Crime
(Karen Bradley).
16.5 We agree with the Minister's assessment that
the Council general approach is "promising" and clarifies
some of the ambiguities in the Commission's original proposal
concerning the extent of the obligation to share information with
Europol and the role of Europol in initiating criminal investigations.
We support these changes which largely reflect the way in which
Europol currently operates. We also welcome the inclusion of provisions
requiring Europol to publish and update a list of agreements and
other arrangements for the transfer of personal data to third
countries and international organisations. This should enhance
transparency in determining the basis for such transfers.
16.6 We would welcome the Minister's views on
the following changes included in the general approach:
· the expansion of the forms of crime
for which Europol is competent to act (listed in Annex 1 of the
general approach) to include aggravated theft, insider dealing
and financial market manipulation, and genocide, crimes against
humanity and war crimes;
· the expansion of Europol's tasks to
include the provision of risk analyses to assist the Commission
in evaluating Member States' application of the Schengen acquis,
and strategic analyses and threat assessments to assist with the
evaluation of candidate States for EU accession (Article 4(2a)
and (3)); and
· the legal consequences of the provisions
on "replacement" contained in Article 77 of the general
approach — would the UK remain bound by the 2009 Council
Decision establishing Europol and subsequent implementing measures,
and continue to participate in Europol on the basis set out in
these measures, if it decided not to opt into the Regulation once
adopted?
16.7 As the Council general approach includes
a number of changes to the data protection provisions of the draft
Regulation, we ask the Minister to confirm that she has consulted
the UK Information Commissioner on the detail and to provide us
with a summary of his views.
16.8 We have made clear in our earlier Reports
that a satisfactory outcome on Parliamentary scrutiny of Europol
will be a key factor in our consideration of any recommendation
by the Government to opt into the Regulation once it has been
adopted. We are pleased to note that the Council general approach
does not follow the prescriptive approach advocated by the European
Parliament. We urge the Government to do its utmost to ensure
that the views we and the Home Affairs Select Committee have expressed
on the appropriate form of Parliamentary scrutiny are given due
weight in trilogue negotiations (from which national Parliaments
are excluded) and to resist any attempt by the European Parliament
unilaterally to prescribe and impose a new model of scrutiny on
national Parliaments.
16.9 We look forward to receiving the further
information we have requested on document (b) and also ask the
Minister to continue to provide regular progress reports once
trilogue negotiations are underway. Pending further developments,
both documents remain under scrutiny.
Full details of the documents:
(a) Draft Regulation on the European Union Agency for Law Enforcement
Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA
and 2005/681/JHA: (34843), 8229/13 + ADDs 1-6, COM(13) 173; (b)
Draft Regulation on the European Union Agency for Law Enforcement
Cooperation (Europol) and replacing Decisions 2009/371/JHA, 2009/934/JHA,
2009/935/JHA, 2009/936/JHA and 2009/968/JHA: (36118), 10033/14,
—.
Background
16.10 Our earlier Reports, listed at the end of this
chapter, provide a detailed overview of the Commission's original
proposal — document (a) — and the Government's response
to the questions we have raised.
16.11 We have taken a particular interest in the
provisions on scrutiny of Europol's activities by the European
Parliament, together with national Parliaments. Our Twenty-ninth
Report, agreed on 8 January 2014, includes an Opinion of the Home
Affairs Committee on the arrangements proposed for Parliamentary
scrutiny of Europol, as well as a legal opinion explaining why
we consider that national Parliaments cannot be the subject
of binding obligations under the EU Treaties or EU secondary legislation,
such as the draft Europol Regulation.
16.12 Although the UK has no vote, the Government
has made clear that it intends to build alliances with like-minded
Member States to oppose the ideas advanced by the European Parliament
and that it is committed to ensuring that "the voices of
national Parliaments are heard in this debate and that their legitimate
interests are reflected in the final text".[59]
The Council general approach — document
(b)
16.13 The general approach agreed at the Justice
and Home Affairs Council in June makes a number of changes to
the Commission's original proposal. We summarise the most significant
changes in the following paragraphs.
SCOPE AND LEGAL BASE
16.14 The Council (in common with the European Parliament)
rejects the Commission's proposal to merge the functions of Europol
and CEPOL within a single European Agency for Law Enforcement
Cooperation and Training. All references to the creation of a
Europol Academy within Europol to develop, deliver and coordinate
training, as well as the appointment of an independent, advisory
Scientific Committee for Training, have been removed in the Council
general approach. These changes are reflected in the Council's
choice of legal base which excludes Article 87(2)(b) of the Treaty
on the Functioning of the European Union (TFEU) concerning police
cooperation measures to support the training of staff.
16.15 The Council general approach expands the list
of crimes for which Europol is competent to act by including aggravated
theft, insider dealing and financial market manipulation, and
genocide, crimes against humanity and war crimes.[60]
EUROPOL'S TASKS
16.16 The Council general approach states explicitly
that Europol "shall not apply coercive measures" in
carrying out any of its tasks and makes clear that it plays a
supporting role in any investigations or operational action undertaken
by Member States. The general approach envisages a role for Europol
in producing risk assessments to assist the Commission in implementing
the Schengen evaluation mechanism and in providing analyses and
threat assessments as part of a broader evaluation of States which
are candidates for accession to the EU.
THE INITIATION OF CRIMINAL INVESTIGATIONS
16.17 The Council general approach removes the presumption
implicit in the Commission's original proposal that Member States
would accede to a request by Europol to initiate, conduct or coordinate
a criminal investigation if requested to do so by Europol. The
general approach makes clear that the decision to initiate an
investigation rests with the competent national authority subject,
as now, to an obligation to inform Europol of the reasons for
declining a request unless to do so would be harmful to national
security or jeopardise a current investigation or the safety of
individuals.
COOPERATION WITH EUROPOL
16.18 The Council general approach establishes a
mutual obligation for Member States and Europol to cooperate with
one another and states explicitly that Member States are under
no obligation to supply information to Europol that would harm
national security interests, jeopardise the success of a current
investigation or the safety of individuals, or disclose information
relating to "organisations or specific intelligence activities
in the field of national security".[61]
The general approach does not, however, reinstate the wording
in the current framework governing Europol that information is
supplied by the competent national authorities "on their
own initiative".[62]
It does include a new requirement for Financial Intelligence Units
in each Member State to cooperate with Europol.
THE TRANSFER OF PERSONAL DATA TO THIRD COUNTRIES
16.19 The Council general approach includes provision
for Europol's Management Board to "invite the Council to
suggest to the Commission" that it adopt an adequacy decision
allowing the transfer of personal data to a third country or international
organisation, or that it recommend the opening of negotiations
for an international agreement incorporating appropriate safeguards.
Under the Commission's original proposal, the initiative would
rest exclusively with the Commission.
16.20 The general approach would require Europol
to publish and update a list of adequacy decisions, agreements
or other arrangements for transferring personal data to third
countries or international organisations. It would also give the
Executive Director the power to authorise the transfer of personal
data on a case-by-case basis where "necessary in individual
cases for the purposes of prevention, investigation, detection
or prosecution of criminal offences or the execution of criminal
sanctions".[63]
EUROPOL'S EXECUTIVE DIRECTOR
16.21 The Council general approach removes the obligation
contained in the Commission's original proposal requiring the
Executive Director to report to the European Parliament, when
requested, on the performance of his or her duties, but retains
the right of the Council to invite him or her to do so.
ACCESS TO EUROPOL DATA
16.22 The Council general approach introduces tighter
restrictions on access by Eurojust and the European Anti-Fraud
Office (OLAF) to information held by Europol.
PERSONAL DATA FROM PRIVATE PARTIES
16.23 The Commission's original proposal includes
a requirement to evaluate "the necessity and possible impact
of direct exchanges of personal data" between Europol and
private parties, such as companies or other legal persons. This
requirement is removed from the Council general approach and a
new provision added authorising the transfer of personal data
from Europol to private parties if "absolutely necessary
in the interests of preventing imminent danger associated with
crime or terrorist offences" or if the data subject has (or
can be presumed to have) consented to such a transfer.[64]
ERASURE AND BLOCKING OF PERSONAL DATA
16.24 The Council general approach introduces a new
provision authorising Europol to refuse or restrict a request
for the erasure or blocking of a data subject's personal data
if necessary to enable Europol to fulfil its tasks properly, protect
security and public order or prevent crime, ensure that a national
investigation is not jeopardised, or protect the rights and freedoms
of third parties.[65]
SUPERVISION OF DATA PROTECTION REQUIREMENTS
16.25 As in the Commission's original proposal, the
Council general approach transfers responsibility for supervising
the data protection requirements set out in the draft Regulation
from the current Europol Joint Supervisory Board to the European
Data Protection Supervisor (EDPS), but includes more extensive
provisions on cooperation with national supervisory authorities
and proposes establishing a Cooperation Board[66]
to oversee general policy and strategy on data protection within
the Europol framework and to examine other matters arising from
the interpretation or application of the Regulation.
PARLIAMENTARY SCRUTINY
16.26 The Council general approach broadly retains
the arrangements for Parliamentary scrutiny of Europol set out
in the Commission's original proposal, but adds wording to make
clear that scrutiny must take account of "Europol's character
as an operational law enforcement agency".[67]
RELATIONSHIP WITH THE 2009 COUNCIL DECISION ON EUROPOL
16.27 The Council general approach makes clear that,
for Member States participating in the draft Regulation, it will
replace the 2009 Council Decision establishing Europol as an EU
Agency, as well as four implementing measures concerning the exchange
of personal data with other EU bodies and with third countries,
and rules on the confidentiality of Europol information and on
the organisation of Europol's analysis files.
The Minister's Explanatory Memorandum of 7 July
2014
16.28 The Minister for Modern Slavery and Organised
Crime (Karen Bradley) confirms that a general approach was agreed
at the Justice and Home Affairs Council on 5 June and that this
text will form the basis for trilogue negotiations with the European
Parliament and Commission in the autumn. She explains that the
Government decided not to opt into the draft Regulation proposed
by the Commission but to take an active part in negotiations with
a view to considering a post-adoption opt-in, adding:
"The Government has made it clear that its
decision not to opt in to the Commission's proposal at the outset
was not due to any lack of support for Europol, but rather because
of serious concerns about the implications of specific areas of
the initial text — most notably those that seemed potentially
to empower Europol to direct national law enforcement agencies
to initiate criminal investigations or share data that might conflict
with national security. The Government made clear that it would
seek to opt in to the proposal 'post-adoption' if these concerns
were adequately remedied in the final adopted text."[68]
16.29 The Minister notes that the Council general
approach reflects the view, which the European Parliament shares,
that the proposed merger of Europol and the European Police College
(CEPOL) and the creation of a Europol Academy should no longer
proceed. She expects a separate Regulation concerning CEPOL to
be brought forward later this year.[69]
She considers that good progress has been made on the Government's
"key conditions" for opting into the draft Regulation
after it has been adopted and also highlights improvements to
the provisions on the supervision of data protection requirements.
Her Explanatory Memorandum identifies the main changes.
POWER OF EUROPOL TO REQUEST CRIMINAL INVESTIGATIONS
16.30 The Minister considers that the general approach
is a significant improvement on the Commission's original proposal:
"The first of our two key concerns has been
the risk that the European Court of Justice (ECJ) could take the
view that Member States are required to initiate investigations
in some circumstances and could be challenged when they refuse
to do so; for example, where they fail to give reasons or when
the reasons provided are judged to be inadequate. We were also
concerned that the inclusion of wording stating that 'the National
Units shall inform Europol without delay of the initiation of
the investigation' appeared to suggest an obligation upon
Member States to comply with Europol's request. That text has
now been removed and replaced with wording, which, when taken
with the rest of the Article, can be read as not presupposing
any element of obligation and the ability to turn down the request."[70]
OBLIGATION TO SHARE DATA WITH EUROPOL
16.31 The Minister continues:
"The General Approach text is also significantly
improved in relation to our second key concern — that Member
States must not be required to share data that conflicts with
national security. In particular, an exemption in relation to
sharing data with Europol where doing so could conflict with national
security interests has been introduced to the text at our request
and with the support of a number of other Member States. In addition,
the latest text removes wording requiring Member States to share
copies of bilateral or multilateral exchanges (with other Member
States) with Europol. This is also very welcome."[71]
EUROPOL PROCESSING OF DATA FROM PRIVATE PARTIES
16.32 The Minister welcomes changes to the provisions
on the processing by Europol of personal data received from private
parties. The Council general approach:
"ensures that Europol is required to provide
any such data to the relevant National Unit before processing
it, with the National Unit then defining the purpose for which
Europol may undertake further data processing. The only circumstance
in which Europol may process such data before passing it to a
National Unit would be limited to processing that is necessary
to establish which is the appropriate National Unit to send it
to. The new text would therefore seem to alleviate our concern
that Europol would be able to effectively bypass National Units
in processing such data."[72]
DATA PROTECTION SUPERVISION
16.33 The Minister notes that the Council general
approach is in line with the Commission's proposal to transfer
responsibility for data protection supervision from the current
Joint Supervisory Body (JSB) to the European Data Protection Supervisor
(EDPS). She continues:
"Whilst, in principle, the Government would
have preferred to see the JSB continue to perform the data protection
supervision role, there was limited support for this position
in the Council. The Government also takes the view that the EDPS
approach would be acceptable, provided the EDPS retains expertise
from the JSB and the relationship between the EDPS and national
supervisory bodies is appropriately defined. This being the case,
we have worked with like-minded Member States to achieve a number
of changes to the text in this area which more clearly define
the respective powers of the EDPS and national supervisory bodies
than was the case in the Commission's initial proposal. However,
we think the text in this area can be further improved and we
will seek to do that in the run up to and during trilogue negotiations."[73]
PARLIAMENTARY SCRUTINY OF EUROPOL
16.34 The Minister reiterates the Government's view
that the provisions on Parliamentary scrutiny should not be overly
prescriptive and should be in keeping with Article 9 of the Protocol
(No 1) on the Role of National Parliaments in the European Union,
which makes clear that it is for the European Parliament and national
parliaments, and not the European Parliament and Council acting
as co-legislators, to determine the organisation of inter-parliamentary
cooperation. She continues:
"During Council negotiations we have successfully
resisted attempts to introduce greater detail — the General
Approach text reflects this. However, we are aware that the EP
has requested significant changes here, adding a great deal of
detail, which would serve to reduce flexibility and place very
onerous demands on both national Parliaments and Europol. We will
seek to oppose the EP's vision in this area during trilogue."[74]
16.35 The Minister confirms that the Government's
position remains to seek to opt into the Regulation once it has
been adopted, but only if the UK succeeds in securing the necessary
changes in the key areas identified by the Government. She adds:
"The current General Approach text is promising
but there can be no certainty as to what the final text will look
like once trilogue negotiations have concluded. Only when we have
a final text can we take a firm view on whether the UK should
participate. The Government will ensure Parliament is able to
give its view on a post-adoption opt-in before any such decision
is finalised. Indeed, we would welcome the views of Parliament
on this matter when the time comes."[75]
Previous Committee Reports
Fifth Report HC 219-v (2014-15), chapter 7 (2 July
2014); First Report HC 219-i (2014-15), chapter 14, (4 June 2014);
Thirty-third Report HC 83-xxx (2013-14), chapter 9 (29 January
2014); Twenty-ninth Report HC 83-xxvi (2013-14), chapter 11 (8
January 2014); Thirteenth Report HC 83-xiii (2013-14), chapter
21 (4 September 2013); Eleventh Report HC 83-xi (2013-14) (10
July 2013); Seventh Report HC 83-vii (2013-14), chapter 1 (26
June 2013); Third report HC 83-iii (2013-14), chapter 1 (21 May
2013).
59 Letter of 30 June from the Minister (Karen Bradley)
to the Chair of the European Scrutiny Committee. Back
60
See Annex 1. Back
61
Article 7(5a) of the Council general approach. Back
62
See Article 8(4)(a) of Council Decision 2009/371/JHA, OJ No. L
121, 15.05.2009. Back
63
See Article 31(1a)(dd). Back
64
See Article 32(3a) of the Council general approach. Back
65
See Article 40(8a) of the Council general approach. Back
66
See Article 47(3). The Cooperation Board would meet at least twice
a year and would comprise the EDPS and a representative of each
national data protection supervisory authority. Back
67
See Article 53(2) of the Council general approach. Back
68
See para 21 of the Minister's Explanatory Memorandum. Back
69
See chapter 5 of this Report. Back
70
See para 23 of the Minister's Explanatory Memorandum. Back
71
See para 24 of the Minister's Explanatory Memorandum. Back
72
See para 25 of the Minister's Explanatory Memorandum. Back
73
See para 26 of the Minister's Explanatory Memorandum. Back
74
See para 27 of the Minister's Explanatory Memorandum. Back
75
See para 28 of the Minister's Explanatory Memorandum. Back
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