Documents considered by the Committee on 2 July 2014 - European Scrutiny Committee Contents

7 Reforming Europol

Committee's assessment Legally and politically important
Committee's decision Not cleared from scrutiny; further information requested
Document details Draft Regulation on the European Agency for Law Enforcement Cooperation and Training (Europol)
Legal base Articles 88 and 87(2)(b) TFEU; co-decision; QMV
Department Home Office

Summary and Committee's conclusions

7.1 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 draft Regulation seeks to satisfy this requirement and to meet the objective endorsed by the European Council in 2009 of establishing 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".[27]

7.2 Our views, as well as the Opinion of the Home Affairs Committee on the proposed arrangements for Parliamentary scrutiny of Europol, are set out in our Twenty-ninth Report of 8 January 2014, which also includes 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 Regulation.

7.3 The European Parliament has proposed far-reaching changes to the provisions contained in the Commission's original proposal which, in our view, are excessively prescriptive and would give it a dominant role in organising Parliamentary scrutiny of Europol. Whilst sharing many of our reservations, the Government suggested that it was for national parliaments themselves, working with the European Parliament, to determine the most appropriate process. As our First Report, agreed on 4 June, makes clear, it is not evident how national Parliaments can bring influence to bear on negotiations, since they are accorded no formal role in negotiating or agreeing the terms on which the European Parliament's proposal for a Joint Parliamentary Scrutiny Group would be established and operate. We therefore consider it crucial that Member State Governments demonstrate a willingness to defend the interests of national Parliaments and to ensure that their views carry some weight in the negotiations.

7.4 The Government's position is made more difficult by the absence of a right to vote on the Council general approach — a vital step in determining the Council's negotiating position with the European Parliament once trilogue discussions commence. This is because the Government decided not to opt into the draft Regulation. As, however, the Government intends to consider the possibility of opting in post-adoption, it has continued to play an active role in negotiations.

7.5 We asked the Minister for Modern Slavery and Organised Crime (Karen Bradley) for an assurance that the Government would use what influence it has to achieve an outcome on Parliamentary scrutiny of Europol which reflects the will of national parliaments and is in line with the views set out in our Twenty-ninth Report of 8 January 2014, adding that a satisfactory outcome on this issue would be a key factor in our consideration of any recommendation for a post-adoption opt-in. We also asked the Minister to press for publication of the text of the Council's agreed general approach at the earliest opportunity and to deposit it for scrutiny so that we would be able to consider and comment on it before trilogue negotiations begin with the European Parliament.

7.6 Until the draft Regulation has been adopted, cooperation with Europol will continue to be based on a 2009 Council Decision which is subject to the UK's block opt-out of around 130 pre-Lisbon police and criminal justice measures. The 2009 Council Decision is one of 35 measures, set out in Command Paper 8671, which the Government intends to seek to rejoin. The Government is anxious to avoid an operational gap between the block opt-out taking effect on 1 December 2014 and the UK rejoining Europol and the remaining measures. As the Minister indicated that negotiations on the UK's block opt-out decision were proceeding apace, we asked her to provide a formal update on the progress made to date.

7.7 We welcome the active stance taken by the Minister in seeking to form alliances with other like-minded Member States to oppose the provisions on parliamentary scrutiny of Europol put forward by the European Parliament and to ensure that "the voices of national Parliaments are heard in this debate and that their legitimate interests are reflected in the final text". We look forward to hearing what progress the Government is able to make and how many other Member States share the concerns that we and the Home Affairs Committee have expressed.

7.8 We note the Minister's expression of regret that she is unable to provide an update on negotiations on the UK's 2014 block opt-out decision and her offer to do so "separately in due course". As we make clear in chapter 8 of this Report, it is entirely unacceptable that we are compelled to glean information on both the process and progress of negotiations from Council press releases, the latest of which indicate that a broad technical agreement has been reached on the measures the UK will formally seek to rejoin.[28] We urge the Minister to provide a formal update at the earliest opportunity.

7.9 We are drawing this chapter to the attention of the Home Affairs Committee. The draft Regulation remains under scrutiny, pending further progress reports on negotiations.

Full details of the document: 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, COM(13) 173 + ADDs 1-6.

Background and previous scrutiny

7.10 Our earlier Reports, listed at the end of this chapter, provide a detailed overview of the draft Regulation and the Government's response to the questions we have raised.

The Minister's letter of 30 June 2014

7.11 The Minister (Karen Bradley) confirms that the Government has deposited the General Approach agreed by the Council at the June Justice and Home Affairs Council and will continue to provide progress reports on the negotiations.

7.12 She agrees that the changes proposed by the European Parliament (EP) to the provisions on parliamentary scrutiny of Europol are not, on the whole, welcome. She continues:

    "My concerns are threefold: Firstly, I am concerned at the level of detail that the EP seeks to introduce on the face of the Regulation. I believe a lighter touch approach, which leaves greater scope for flexibility, would be preferable. Secondly, like you, I am concerned that the mode of Parliamentary scrutiny which has been proposed gives too much power to the EP and too little power to national Parliaments. I am keen that national Parliaments have at least as important a role in this regard as the EP. Thirdly, as I noted in my previous letter, I am concerned that the form of Parliamentary scrutiny that is proposed by the EP is so detailed and lacking in scope for flexibility that there would be a significant risk that Europol's operational independence would be threatened.

    "For all of these reasons, I can confirm that I will be instructing my officials to seek to join together with like-minded Member States to oppose the EP's vision in this area, with the objective of ensuring that the voices of national Parliaments are heard in this debate and that their legitimate interests are reflected in the final text."

7.13 The Minister notes our request for an update on progress made on the negotiation of the UK's 2014 opt-out decision, adding:

    "I regret that I am not in a position to provide such an update in the context of this letter but we will provide an update separately in due course."

Previous Committee Reports

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).

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

28   See the press release issued following the General Affairs Council on 24 June 2014: Back

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Prepared 9 July 2014