1 Europol |
||Legally and politically important |
|Committee's decision||(a) Not cleared from scrutiny
(b) Not cleared from scrutiny; further information requested
|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
(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
|Legal base||(a) Articles 88 and 87(2)(b) TFEU; co-decision; QMV (b) Article 88 TFEU; co-decision; QMV
(a) (34843), 8229/13 + ADDs 1-6), COM(13) 173
(b) (36118), 10033/14,
Summary and Committee's conclusions
1.1 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.
1.2 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.
1.3 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.
1.4 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
during trilogue discussions. 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 our Ninth Report, agreed on 3 September
1.5 We agreed with the assessment of the Minister
for Modern Slavery and Organised Crime (Karen Bradley) that the
Council general approach was "promising" and clarified
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 expressed our support for the general thrust of the changes
contained in the general approach which largely reflect the way
in which Europol currently operates. We also welcomed greater
transparency in the arrangements for the transfer by Europol of
personal data to third countries and international organisations.
1.6 In her latest letter, the Minister responds to
our request for further information on a number of the changes
contained in the Council general approach, as well as providing
details of the UK Information Commissioner's views on the data
1.7 We note the Minister's view that Article 77
of the Council's general approach is "very clear" that
the current legal base for Europol the 2009 Europol Council
Decision and four associated Council Decisions would remain
in force for the UK if the Government were to decide not to opt
into the draft Regulation following its adoption by the Council
and European Parliament. We remind the Minister, however, that
the Government has previously told us that, "in the longer
term, it is clear that our continued participation in Europol
] will depend on our participation in this new measure".
We ask her whether this remains the Government's view, or whether
she considers that the UK could continue to cooperate with Europol
on the basis of the current 2009 Council Decision, without opting
into the draft Regulation once it has been adopted by the Council
and European Parliament.
1.8 We welcome the summary of the UK Information
Commissioner's views on the Council general approach. We look
forward to hearing how the concern he expresses about Europol's
role in responding to Member States' objections to requests for
data access are addressed in the course of negotiations.
1.9 We also welcome the Government's commitment
to ensuring a satisfactory outcome on the provisions on parliamentary
scrutiny of Europol's activities. We intend to write again to
the President of the Council, the Commissioner for Home Affairs
and the Chair of the European Parliament's LIBE Committee to reiterate
our concerns with the prescriptive approach proposed by the European
1.10 We look forward to receiving regular progress
reports, now that trilogue negotiations are underway. Meanwhile,
pending further developments, both draft Regulations remain under
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, .
1.11 Our earlier Reports, listed at the end of this
chapter, provide a detailed overview of the Commission's original
proposal document (a) and the Council's general
approach document (b) as well as the Government's
position on both documents.
1.12 We asked the Government to provide further information
on the following changes included in the Council general approach:
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;
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
legal consequences of the provisions on "replacement"
contained in Article 77 of the general approach, in particular
whether the UK would 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.
1.13 We also asked for a summary of the views of
the UK Information Commissioner on the data protection
provisions contained in the Council's general approach.
1.14 We have taken a particular interest in the provisions
on parliamentary scrutiny of Europol's activities and made clear
that this will be a key factor in our consideration of any recommendation
by the Government to opt into the Regulation once it has been
adopted. Our Twenty-ninth Report, agreed on 8 January 2014, included
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.
1.15 Although the UK has no vote on the draft Regulation,
we have urged 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. The Government, in turn, has expressed its
commitment to ensuring that "the voices of national parliaments
are heard in this debate and that their legitimate interests are
reflected in the final text".
The Minister's letter of 20 November 2014
1.16 The Minister confirms that the Government is
content with the proposed expansion of the range of crimes for
which Europol would be competent to act, adding that similar changes
have been proposed in the draft Eurojust Regulation. She continues:
"As these are serious crimes which often
have a cross-border dimension, it therefore seems sensible to
bring the capabilities of Europol to bear in supporting Member
State action in these areas and to ensure a consistent approach
between Europol and Eurojust."
1.17 The Government also supports the expansion of
Europol's tasks to include the provision of risk analyses under
the recently revised Schengen evaluation mechanism, as well as
strategic analyses and threat assessments to assist with the evaluation
of candidate States for EU accession. The Minister explains:
complements the process
contained within the Schengen Evaluation Mechanism (SEM) Regulation.
Under those processes, the Commission has already demonstrated
that it will circulate, present and discuss Frontex and Fundamental
Rights Agency strategic analyses and threat assessments with Member
States sitting as a Comitology Committee. This has supported the
right of Member States to assess the validity of the Commission's
draft evaluation programmes. We have been able to directly challenge
and hold to account the Commission through the Committee procedures.
I therefore believe this is a positive step. It would create a
coherent formal process which would allow Member States to be
aware of issues of concern from Europol throughout all SEM actions
and greatly aid the Member States' consideration of these issues."
1.18 The Minister notes that the replacement provisions
contained in Article 77 of the Council's general approach make
clear that the underlying legislation (the 2009 Council Decision
establishing Europol as an EU Agency, as well as four related
Council Decisions) will only be replaced for those Member States
participating in the new Regulation. She continues:
"As such, the 2009 Europol Council Decision
would not be replaced and would therefore still be in force for
the UK if we do not opt in. The UK will give consideration to
opting in post-adoption, and subsequent to the Government's decision
at that stage, we will consider any practical issues arising from
the UK being a member of Europol in line with the 2009 Decision
rather than the current Regulation."
1.19 Turning to parliamentary scrutiny of Europol,
the Minister explains:
"I can assure you that we agree with you
that the text on this matter should not follow the prescriptive
approach advocated by the European Parliament. We are seeking
to explain our position to the EP with a view to seeking a satisfactory
final text in this area. In the meantime, whilst I accept that
national parliaments do not have a seat at the table during trilogue
negotiations, I would like to take this opportunity to ask that
you continue to make direct representations to the EP on this
1.20 The Minister encloses with her letter a summary
of the UK Information Commissioner's views on the data protection
provisions contained in the Council's general approach which we
reproduce as an Annex to this chapter.
1.21 The Minister explains that trilogue negotiations
between the Council and European Parliament began in mid-October.
"So far only the first four Articles have
been discussed, but without agreement. We understand that the
current plan agreed between the Presidency and EP is for trilogue
negotiation to be dealt with in five discrete chunks, to be taken
in the order below:
2. Role of national Europol units;
3. Governance of Agency;
4. Parliamentary supervision; and
5. Data protection.
"We anticipate that negotiations on the
last two issues in particular might be quite time consuming and
we understand that the EP's LIBE Committee may seek to delay the
discussion on data protection until the wider EU data protection
package has been settled. There is also a read across to the Eurojust
and EPPO dossiers, which again might cause delays. In light of
this, our expectation is that trilogue will continue well into
1.22 The Minister undertakes to provide us with regular
updates on the progress of negotiations.
Previous Committee Reports
Ninth Report HC 219-ix (2014-15), chapter 16
(3 September 2014); 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
Summary of the ICO's views on the Council General
Approach on the proposal for a 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 (COM(2013) 173 final: 27 March 2013).
data protection provisions contained in the draft Regulation,
in particular, will need to align with those of the draft Data
Protection Directive for law enforcement agencies, as well as
the recently announced Draft Criminal Justice and Data Protection
(Protocol No. 36) Regulations in the UK that enact the EU Council
of the EU's data protection framework decision (2008/977/JHA).
· It is
important that (as far as reasonably possible) data protection
provisions such as subject access requests, rectification rights,
supervision etc are harmonised across the EU regardless of the
data processing that is occurring and who is doing the processing.
purposes that Europol serves and Europol's roles as data controller
in some instances and data processor or service provider in other
instances are clearer in the General Approach, e.g. in the objectives
set out in the General Approach.
provisions on retention periods have been clarified in the General
Approach (e.g. article 37 'only as long as necessary for
the performance of its tasks').
ICO shares concerns of its counterparts in the Joint Supervisory
Body (JSB) of Europol about the wording in article 39, 1 (a),
paragraph 4 on Europol's role in responding to Member States'
objections to access requests by the data subject. Refusing access
is only possible when necessary for the purposes referred to in
the exemptions. Therefore Europol has to assess whether any reasons
provided by a Member State are as such that an exemption is applicable
or not, in each specific case. We refer to the JSB's Third Opinion
on this draft Regulation for more details.
ICO broadly supports the compromise found in the General Approach
for the Cooperation Board as a new type of supervision model.
This is likely to produce an effective solution to take account
of concerns from some quarters, including the Joint Supervisory
Body of Europol so that the European Data Protection Supervisor
together with the national supervisory authorities together create
an independent and integrated supervision structure. The new coordination
role whereby the European Data Protection Supervisor uses the
experience of the national data protection authorities is to be
welcomed as this reflects the sharing of responsibilities for
the data between Europol and the Member States and will ensure
1 Letter of 20 June 2013 from the then Security Minister
(James Brokenshire) to the Chair of the European Scrutiny Committee. Back
Letter of 30 June from the Minister (Karen Bradley) to the Chair
of the European Scrutiny Committee. Back
Third Opinion of the Joint Supervisory Body of Europol (Opinion
14/39) with respect to the proposal for a Regulation of the European
Parliament and of the Council on the European Union Agency for
Law Enforcement Cooperation and Training (Europol) - adopted 2
October 2014). Back