8 Europol
| Committee's assessment
| Legally and politically important |
| Committee's decision | (a) and (b) Not cleared from scrutiny; (b) 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; (b) Draft Regulation on the European Union Agency for Law Enforcement Cooperation (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA— Council general approach
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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
Document details
| Home Office
(a) (34843), 8229/13 + ADDs 1-6, COM(13) 173
(b) (36118), 10033/14, —
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Summary and Committee's conclusions
8.1 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. As both the Council and the European
Parliament opposed the merger, the Commission abandoned this element
of its proposal earlier this year. Europol and CEPOL will continue
to operate as independent EU Agencies.
8.2 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. 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.
8.3 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.
8.4 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 which began 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 our
Ninth Report, agreed on 3 September 2014.
8.5 We supported the general thrust of the changes
contained in the Council's general approach and agreed with the
assessment of the Minister for Modern Slavery and Organised Crime
(Karen Bradley) that it was "promising" and clarified
some of the ambiguities in the Commission's original proposal
concerning the extent of Member States' obligation to share information
with Europol and the role of Europol in initiating criminal investigations.
8.6 In her latest letter, the Minister seeks to clarify
the Government's position on the possibility for the UK to continue
to cooperate with Europol on the current basis — as set
out in a 2009 Europol Council Decision — without opting
into the draft Regulation.
8.7 We thank the Minister for endeavouring to
clarify the Government's position on the consequences for the
UK of not opting into the Regulation following its adoption by
the Council and the European Parliament. Whilst acknowledging
a degree of uncertainty regarding the UK's position, the Minister
is clear that the only means of "guaranteeing" continuing
UK participation in Europol would be to opt into the Regulation
once adopted. We agree that this is the only failsafe option,
but question whether UK ejection from Europol is as inevitable
as the Minister appears to suggest, should the Government decide
not to opt into the Regulation. We note that Denmark, unlike
the UK, is precluded from participating in the draft Regulation,
but that Article 2 of Protocol No. 22 on the position of Denmark
makes clear that Denmark will continue to remain bound by the
2009 Europol Council Decision and associated Decisions. If these
Decisions are to remain operable in relation to Denmark, it is
difficult to see how they could not also be considered operable
in relation to the UK.
8.8 Even if the UK were to be ejected from the
2009 Europol Council Decision and associated Decisions, we do
not consider that the Government has yet adequately explored the
possibility that the UK would be able to establish some form of
cooperation with Europol, short of formal participation. We expect
the Government to do so, and to provide us with an analysis of
options, whether or not it decides to recommend opting into the
Regulation once it has been adopted.
8.9 We welcome the Government's commitment to
securing a satisfactory outcome on negotiations concerning the
provisions on Parliamentary scrutiny of Europol's activities.
As we have made clear in our earlier Reports, this will be a
key factor in our consideration of any recommendation by the Government
to opt into the Regulation post-adoption. We look forward to
receiving regular progress reports on the trilogue negotiations
between the Council, European Parliament and Commission. Meanwhile,
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 repealing Decisions 2009/371/JHA and
2005/681/JHA: (36118), 10033/14, —.
Background
8.10 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.
8.11 In our Twenty-third Report, agreed on 26 November
2014, we noted the Minister's view that Article 77 of the Council's
general approach was "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 reminded the Minister that the Government had
previously told us that, "in the longer term, it is clear
that out continued participation in Europol […] will depend
on our participation in this new measure".[29]
We asked her whether this remained the Government's view, or whether
she considered that the UK could continue to cooperate with Europol
on the basis of the current 2009 Council Decision, without opting
into the draft Regulation after its adoption by the Council and
European Parliament.
8.12 In this context, the provisions contained in
Article 4a of Protocol No. 21 on the position of the United Kingdom
and Ireland in respect of the area of freedom, security and justice
are relevant. Article 4a establishes a procedure for ejecting
the UK from an existing measure — in this case, the 2009
Council Decision establishing Europol and four associated Decisions
— if its non-participation in a subsequent amending measure
(the proposed Regulation) makes the application of that measure
inoperable for the participating Member States or for the EU.
The decision to eject the UK would be taken by a qualified majority,
excluding the UK.
8.13 We welcomed the provision by the Government
of a summary of the views of the UK Information Commissioner on
the Council's general approach. We asked the Minister to keep
us informed of developments in addressing the concerns he expressed
about Europol's role in responding to Member States' objections
to requests for data access.
8.14 We also welcomed the Government's commitment
to ensuring a satisfactory outcome concerning the provisions on
Parliamentary scrutiny of Europol's activities, adding that we
had written to the new Commissioner for Migration, Home Affairs
and Citizenship (Dimitris Avramopoulos), the Italian Presidency
(Minister for the Interior, Angelino Alfano), the Chair of the
European Parliament's LIBE Committee (Claude Moraes, MEP) and
its Rapporteur for the draft Europol Regulation (Mr Agustin
Diaz de Mera Garcia Consuegra, MEP) to remind them of the concerns
set out in our earlier Reports. In particular, 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.
The Minister's letter of 9 December 2014
8.15 The Minister (Karen Bradley) thanks us for writing
to the President of the Council, the Commissioner for Home Affairs
and the Chair of the European Parliament's LIBE Committee to raise
directly with them our concerns about the prescriptive approach
to Parliamentary scrutiny of Europol proposed by the European
Parliament. She undertakes to keep us informed of trilogue negotiations,
including how they relate to the concern expressed by the UK Information
Commissioner about Europol's role in responding to Member States'
objections to requests for data access.
8.16 Turning to the wording of the replacement provisions
contained in Article 77 of the Council's general approach, and
its implications for continuing UK cooperation with Europol, the
Minister explains:
"the text is very clear that the underlying
legislation will be replaced only for those Member States participating
in the new legislation. This means that, as drafted, the UK would
remain bound by the current Council Decision upon adoption of
the draft Regulation. Article 4a of Protocol 21 to the Treaties
also makes express provision that, where the UK decides not to
opt into a measure amending an existing measure which the UK is
bound by, the UK would remain bound by the existing measure unless
the UK's non-participation in the measure (as amended) would make
the application of the measure inoperable for the other Member
States or the EU. It is unclear what the effect of continuing
to be bound by the current Council Decision would be once the
new Regulation has come into force. As such, the only way to
guarantee our continued participation in Europol will depend on
our participation in this new measure, as it would remain open
for the UK to be ejected from the old measure upon adoption of
the Regulation [if] our continued participation rendered the new
measure inoperable. I hope this clarifies the Government's position
for you."
Previous Committee Reports
Twenty-third Report HC 219-xxii (2014-15), chapter
1 (26 November 2014); 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).
29 Letter of 20 June 2013 from the then Security Minister
(James Brokenshire) to the Chair of the European Scrutiny Committee. Back
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