Europol - European Scrutiny Committee Contents


1 Europol


Committee's assessment 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
Department

Document numbers

Home Office

(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 2014.

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 protection provisions.

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".[1] 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 Parliament.

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 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

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:

·  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, 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".[2]

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:

    "This task 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 matter."

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. She continues:

    "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:

1.  Definitions;

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 2015."

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 2013).

Annex~

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).

·  The 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.

·  The 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.

·  The 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').

·  The 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[3] on this draft Regulation for more details.

·  The 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 consistency.


1   Letter of 20 June 2013 from the then Security Minister (James Brokenshire) to the Chair of the European Scrutiny Committee. Back

2   Letter of 30 June from the Minister (Karen Bradley) to the Chair of the European Scrutiny Committee. Back

3   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


 
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Prepared 27 November 2014