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
| 
