Documents considered by the Committee on 21 July 2015 - European Scrutiny Contents


36 Europol

Committee's assessment Legally and politically important
Committee's decision(a) Not cleared from scrutiny

(b) Not cleared from scrutiny; further information requested; (a) and (b) drawn to the attention of the Home Affairs Committee

Document details(a) Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA

(b) Proposal for a 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 numbers

Home Office

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

(b) (36118), 10033/14, —

Summary and Committee's conclusions

36.1 Europol is the EU's law enforcement agency, based in The Hague, which supports Member States in tackling serious international crime and terrorism.[ 286] Originally established on the basis of an intergovernmental Convention, Europol became an EU agency in 2010. The current legal framework governing Europol is set out in a 2009 Council Decision.

36.2 The Lisbon Treaty requires Europol to be established on the basis of a Regulation, adopted by the Council and the European Parliament, which determines its structure, operation, field of action and tasks, and includes (for the first time) provision for scrutiny of its activities by the European Parliament, together with national parliaments.[ 287] The Commission proposed a Regulation — document (a) — in March 2013. The European Parliament agreed its First Reading amendments to the proposed Regulation in February 2014. Shortly afterwards, in June 2014, the Justice and Home Affairs Council agreed a "general approach" — a vital step in determining the Council's negotiating position with the European Parliament during trilogue discussions which began last autumn.

36.3 The proposed Regulation is based on provisions contained in Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU) concerning the area of freedom, security and justice. As such, it is subject to the UK's Title V opt-in, meaning that the UK will only be bound by the proposal if it has chosen to opt in. The Government decided not to opt into the proposal put forward by the Commission — document (a) — so had no right to vote on the Council general approach set out in document (b), but has played an active role in negotiations and has indicated that it intends to opt into the Regulation, once adopted, if it succeeds in securing its negotiating objectives.

36.4 In this chapter, we focus once again on the provisions of the proposed Regulation which deal with scrutiny of Europol's activities by the European Parliament, together with national Parliaments. We report the reply we have received from the Vice-President of the European Commission, Frans Timmermans, and the Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos to a letter our predecessor Committee wrote last November which expressed concern at the far-reaching and excessively prescriptive arrangements proposed by the European Parliament.

36.5 We are heartened by the response we have received from the Vice-President of the European Commission, Frans Timmermans, and Commissioner Avramopoulos which supports our view that the arrangements for parliamentary scrutiny of Europol proposed by the European Parliament are inconsistent with the EU Treaties.

36.6 We expect arrangements for Parliamentary scrutiny of Europol's activities to be a significant issue in ongoing trilogue discussions between the European Parliament, Council and Commission. As we have made clear in our earlier Reports, 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. 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.

36.7 We look forward to receiving regular progress reports on the trilogue negotiations. Meanwhile, pending further developments, documents (a) and (b) remain under scrutiny. We draw the Commission's observations to the attention of the Home Affairs Committee.

Full details of the documents: (a) Proposal for a 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) Proposal for a 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

36.8 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.

36.9 The Government's decision not to opt into document (a) stemmed from a concern that the Commission's proposal to strengthen the obligation on Member States to share law enforcement information with Europol and to initiate a criminal investigation when requested by Europol might threaten the operational independence of the UK's law enforcement authorities.

36.10 The Commission proposal also 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.

36.11 The Government considers that the changes contained in the Council's general approach — document (b) — are "promising" and have helped to clarify 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.

36.12 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, our predecessors wrote last November to 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), as well as to the Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos whose reply is reported in this chapter.[ 288]

36.13 Our letters drew attention to an Opinion delivered by the Home Affairs Committee on the arrangements proposed for parliamentary scrutiny of Europol, as well as our own legal opinion explaining why we consider that national parliaments cannot be the subject of binding obligations under the EU Treaties or EU secondary legislation.[ 289]

36.14 We suggested that the changes proposed by the European Parliament in its First Reading amendments 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."

36.15 By contrast, the European Parliament has sought to 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". We considered the changes to be far-reaching and excessively prescriptive and suggested that they would give the European Parliament a dominant role in overseeing Europol's activities.

36.16 We understand that the Dutch Tweede Kamer has raised similar concerns, 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".[ 290]

36.17 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.

The letter from Commissioners Timmermans and Avramopoulos of 20 April 2015

36.18 In their joint letter, the Vice-President of the Commission (Frans Timmermans) and the Commissioner for Migration, Home Affairs and Citizenship (Dimitris Avramopoulos) refer to a 2010 Communication published by the Commission concerning procedures for the scrutiny of Europol's activities by the European Parliament, together with national Parliaments.[ 291] They note that the Commission has "on several occasions made its position clear on the modalities" for joint scrutiny of Europol's activities. The letter continues:

    "During the consultations on the Communication and the debates that followed, several solutions were discussed in the different fora where the stakeholders met. The Commission expressed support for the setting up of an inter-parliamentary forum in order to establish a formal mechanism for information exchange and coordination between national Parliaments and the European Parliament. Nonetheless, the Commission considered that it lies within the power of both the European Parliament and the national Parliaments to coordinate their work and enhance their cooperation, and that they should be encouraged to take that initiative as well as ownership of their own procedures.

    "For these reasons, the Commission agrees with the House of Commons that the model of scrutiny of Europol's activities as proposed by the European Parliament through a supranational body would go beyond what is provided by the Treaty.

    "Therefore, the Commission maintains this position and considers that, in order to respect the independence of national Parliaments and of the European Parliament as well as their freedom to organise themselves, it is not for the proposed Regulation to set the rules and modes of such cooperation."

36.19 The Commissioners conclude by expressing their hope that "these clarifications address the concerns raised by the House of Commons" and look forward to "continuing our political dialogue in the future".

Previous Committee Reports

    Thirty-sixth Report HC 219-xxxv (2014-15), chapter 10 (11 March 2015); 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).


286   Europol's website provides further details about its mandate, activities and resources.  Back

287   Article 88 TFEU.  Back

288   See our Thirty-sixth Report HC 219-xxxv (2014-15), chapter 10 (11 March 2015) for details of the reply from the EP rapporteur responsible for the proposed Europol Regulation, Mr Agustin Diaz de Mera-Garcia Conseugra.  Back

289   See our Twenty-ninth Report HC 83-xxvi (2013-14), chapter 11 (8 January 2014). Back

290   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

291   (32420), 5659/11: See our Eighteenth Report HC 428-xvi (2010-12), chapter 10 (9 February 2011) and our Twenty-sixth Report HC 428-xxiv (2010-12), chapter 15 (27 April 2011).  Back


 
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Prepared 30 July 2015