Documents considered by the Committee on 17 December 2014 - European Scrutiny Committee Contents


8 Europol

Committee's assessment Legally and politically important
Committee's decision(a) and (b) Not cleared from scrutiny; (b) 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 repealing Decisions 2009/371/JHA and 2005/681/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 details

Home Office

(a) (34843), 8229/13 + ADDs 1-6, COM(13) 173

(b) (36118), 10033/14, —

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


 
previous page contents next page


© Parliamentary copyright 2014
Prepared 23 December 2014