Documents considered by the Committee on 11 March 2015 - European Scrutiny Contents

10 Europol

Committee's assessment Legally and politically important
Committee's decisionNot cleared from scrutiny; further information requested on document (b); drawn to the attention of the Home Affairs Committee
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

Document details

Home Office

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

(b) (36118), 10033/14, —

Summary and Committee's conclusions

10.1 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 has abandoned this element of its proposal. Europol and CEPOL will continue to operate as independent EU Agencies.

10.2 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.

10.3 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.

10.4 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.

10.5 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.

10.6 We have welcomed the Government's commitment to securing a satisfactory outcome on the provisions on parliamentary scrutiny of Europol's activities. To reinforce the strength of our concerns, we wrote last November to the new Commissioner for Migration, Home Affairs and Citizenship (Dimitris Avramopoulos), the then 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). Our letters drew attention to our Twenty-ninth Report, agreed on 8 January 2014, which 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.

10.7 We suggested that the changes proposed by the European Parliament to the provisions of the draft Regulation concerning parliamentary scrutiny were contrary to the spirit of mutual cooperation enshrined in Protocol (No. 1) on the Role of National Parliaments in the European Union which provides (in Article 9):

    "The European Parliament and national Parliaments shall together determine the organisation and promotion of effective and regular interparliamentary cooperation within the Union."

10.8 By contrast, the changes agreed by the European Parliament at its First Reading of the draft Regulation would go much further, unilaterally establishing a form of scrutiny and oversight by a Joint Parliamentary Scrutiny Group and imposing obligations on national Parliaments which would, in our view, be inconsistent with Article 4(2) TEU which requires the EU to respect Member States' "national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local government".

10.9 We have asked the Presidency, Commission and European Parliament to take our concerns fully into account during trilogue negotiations and to resist any attempt to prescribe and impose a new model of scrutiny on national parliaments. We understand that the Dutch Tweede Kamer has written in similar terms, highlighting the "far-reaching changes" on parliamentary scrutiny of Europol proposed by the European Parliament and making clear that "discussion about how to establish efficient and effective procedures for scrutiny of Europol's activities should take place between the European Parliament and national parliaments".[18]

10.10 In this chapter, we report the Minister's latest up date on the progress made so far in trilogue negotiations, ahead of the dissolution of Parliament later this month, as well as the reply we have received from the EP rapporteur responsible for the draft Europol Regulation, Mr Agustin Diaz de Mera-Garcia Conseugra.

10.11 We are heartened to hear that our correspondence with the EU institutions has prompted further consideration of the provisions on parliamentary scrutiny of Europol's activities. It is essential that Member State Governments defend the interests of national parliaments during the trilogue negotiations and ensure that they are not diluted as part of the trade-offs required to secure a deal with the European Parliament. As we have made clear in our earlier Reports, a satisfactory outcome on this issue will be a key factor in considering the merits of any Government recommendation for a post-adoption opt-in to the Regulation. Such a recommendation would undoubtedly warrant an opt-in debate on the floor of the House.

10.12 We look forward to receiving regular progress reports on the trilogue negotiations. Meanwhile, pending further developments, both documents remain under scrutiny. We draw them to the attention of the Home Affairs Committee.

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, —.


10.13 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 response to various questions we have raised.

10.14 During our scrutiny of the draft Regulation, we have sought 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 Government has been clear that the only means of "guaranteeing" continuing UK participation in Europol would be to opt into the Regulation once adopted. We have recognised that this is the only failsafe option, but have questioned the assumption that UK ejection from Europol would necessarily follow if the UK were to decide not to opt into the Regulation post-adoption, given that some accommodation would also have to be found for Denmark. Denmark, unlike the UK, is precluded from participating in the draft Regulation, but 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.[19]

10.15 We have made clear that we expect the Government to explore the possibility that the UK would be able to establish some form of cooperation with Europol, short of formal participation, 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. We have also asked the Government to keep us informed of developments in addressing the concerns expressed by the UK's Information Commissioner about provisions in the Council's general approach concerning Europol's role in responding to Member States' objections to requests for data access.

The Minister's letter of 3 March 2015

10.16 The Minister (Karen Bradley) thanks us, along with our counterparts on the EU Committee in the House of Lords, for raising our concerns regarding the provisions on parliamentary scrutiny of Europol's activities directly with the Commission, Council Presidency and European Parliament. She continues:

    "Your letter, with one from the European Union Committee, has been circulated by the Latvian Presidency to all Member States and has prompted further consideration, which has been helpful in advancing our shared objectives. I am pleased to note that the Chair of the standing committee on Security and Justice in the Dutch House of Representatives wrote in similar terms to the European Parliament's rapporteur. Parliamentary Scrutiny is likely to be a significant issue in the trilogue discussions. The Presidency is defending the General Approach text."

10.17 Turning to the progress made on other matters, the Minister adds:

    "The Latvian Presidency has held three technical meetings with the European Parliament on 9, 23 and 26 January and a trilogue on 4 February, at which provisions relating to information processing, data protection and Europol's relations with partners were discussed. Both the Presidency and the EP presented and defended their respective positions. The Latvian Presidency has expressed a wish to advance the negotiations and to that end is considering possible compromises on certain provisions with the European Parliament to take to future technical meetings and trilogues.

    "As your Committee will be aware, two of the Government's key concerns are that Europol should not be given the power to direct national law enforcement agencies to initiate investigations; and that Governments should not be obliged to share data in ways that conflict with national security. In considering any compromises, the Government will be mindful of these concerns."

10.18 The Minister does not expect the trilogue process to conclude before the dissolution of Parliament at the end of March and therefore anticipates that any post-adoption opt-in decision will have to be considered by our successors in the next Parliament. She undertakes to continue to provide regular updates on the progress of negotiations.

Letter of 16 December 2014 from the LIBE Rapporteur

10.19 In his response to our letter, Mr Agustin de Mera Garcia-Consuegra notes that the European Parliament voted by a large majority for the changes proposed to the draft Regulation at its First Reading, including those concerning Parliamentary scrutiny of Europol's activities. He adds that, in doing so, the views of the British "shadow rapporteur", Timothy Kirkhope, were carefully considered. He reiterates the importance which the European Parliament attaches to parliamentary scrutiny, as well as its efforts to work with national parliaments to find a suitable mechanism for implementing Article 88 of the Treaty on the Functioning of the European Union which stipulates that the Regulation shall "also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments".

Previous Committee Reports

    Twenty-seventh Report HC 219-xxvi (2014-15), chapter 8 (17 December 2014); 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).

18   Letter of 12 February 2015 from the Chair of the Standing Committee on Security and Justice in the Tweede Kamer to the Rapporteur of the LIBE Committee, Mr Diaz de Mera Garcia-Consuegra. Back

19   Denmark's position may change if the outcome of a referendum, expected later this year, agrees to replace Denmark's opt out of post-Lisbon EU police and criminal justice measures with an opt-in Protocol (similar to the UK and Ireland's opt-in Protocol). Back

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