Documents considered by the Committee on 28 October 2015 - European Scrutiny Contents

9 Europol

Committee's assessment Legally and politically important
Committee's decision(a) Not cleared from scrutiny; (b) Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee
Document details(a) Proposed Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) (b) Proposed Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) — Council General Approach
Legal base(a) Articles 88 and 87(2)(b) TFEU; co-decision; QMV

(b) Article 88 TFEU; co-decision; QMV

DepartmentHome Office
Document Numbers(a) (34843), 8229/13 +ADDs 1-6, COM(13) 173;

(b) (36118), 10033/14, —

Summary and Committee's conclusions

9.1 Europol is the EU's law enforcement agency, based in The Hague, which supports Member States in tackling serious international crime and terrorism.[ 60] 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.

9.2 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.[ 61] 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" — document (b) — to guide its negotiating position with the European Parliament during trilogue discussions which began in autumn 2014.

9.3 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 opts in. The Government decided not to opt into the Commission proposal — 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.

9.4 In his latest letter, the Immigration Minister (James Brokenshire) provides an update on the most recent trilogue discussions.

9.5 We make no apology for returning again, in this chapter, to the arrangements proposed for parliamentary scrutiny of Europol's activities which, as the Minister acknowledges, is the most significant outstanding issue in trilogue discussions between the Commission, Council and European Parliament. As our earlier Reports have made clear, the outcome of the negotiation on this aspect of the proposed Regulation will be a key factor in our, and the House's, consideration of any recommendation by the Government to opt into the Regulation once it has been adopted. We consider that any attempt to prescribe in EU legislation how this House should exercise its oversight of an EU Agency would raise profound constitutional questions and contradict Article 4 of the Treaty on European Union which requires the Union to respect Member States' "national identities, inherent in their fundamental structures, political and constitutional".

9.6 Our view remains that EU legislation may include obligations specifying how EU institutions or agencies are to facilitate political monitoring and scrutiny of their activities by national parliaments, but cannot prescribe or impose on national parliaments a particular form of scrutiny. Protocol No. 1 to the EU Treaties on the role of national parliaments is clear that "the European Parliament and national parliaments shall together determine the organisation and promotion of effective and regular inter-parliamentary cooperation within the Union". Such an outcome cannot be achieved through a negotiation that excludes national parliaments.

9.7 We have previously welcomed the strong statement of support for our position by the First Vice-President of the Commission (Frans Timmermans) and the Commissioner for Migration, Home Affairs and Citizenship (Dimitris Avramopoulos) and their recognition that the supranational oversight body proposed by the European Parliament "would go beyond what is provided by the Treaty". It is essential that Member State Governments defend the interests of national parliaments (who are absent from the negotiating table) and ensure that they are not diluted or traded away in order to secure a deal with the European Parliament. We expect the Government to use what influence it has, short of a vote, to ensure a satisfactory outcome. We ask the Minister to provide further information on this aspect of the trilogue negotiations and to indicate how strong the resolve is of the Presidency and Member States to resist the demands being made by the European Parliament. We also look forward to receiving regular progress reports on the negotiations.

9.8 Meanwhile, documents (a) and (b) remain under scrutiny. We draw this chapter to the attention of the Home Affairs Committee.

Full details of the documents: (a) Proposed 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) Proposed Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA — Council General Approach: (36118), 10033/14, —.


9.9 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.

9.10 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.

9.11 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.

9.12 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.

9.13 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 in November 2014 to the then Italian Presidency of the Council of Ministers, the Chair of the European Parliament's Civil Liberties (LIBE) Committee (Claude Moraes, MEP) and its Rapporteur for the proposed Europol Regulation (Mr Agustin Diaz de Mera Garcia-Consuegra, MEP), as well as to the Commissioner for Migration, Home Affairs and Citizenship, Dimitris Avramopoulos.

9.14 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.[ 62]

9.15 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 inter-parliamentary cooperation within the Union."

9.16 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. This Treaty Article 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.

9.17 Other national parliaments have raised similar concerns. For example, the Dutch Tweede Kamer has highlighted the "far-reaching changes" on parliamentary scrutiny of Europol proposed by the European Parliament and made 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".[ 63]

9.18 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 Commission's response, set out in our First Report agreed on 21 July, provides welcome support for our view, noting:

    "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."

The Minister's letter of 12 October 2015

9.19 The Minister explains that, since early March, there have been five trilogue discussions. Whilst the texts being considered remain fluid, he notes that they are broadly in line with the Government's negotiating objectives, as set out in the Minister's Written Ministerial Statement of 18 July 2013.[ 64] In his Statement, the Minister highlighted two "very serious concerns". First, an increased obligation on Member States to provide data to Europol might, without further safeguards, conflict with national security and endanger ongoing investigations or the safety of individuals. Second, requiring Member States to provide reasons if they wish to decline a request from Europol to initiate an investigation would interfere with the operational independence of the police. Both concerns have been averted in the text currently under discussion. The Minister explains that the text:

    "would not give Europol the power to direct our national law enforcement agencies or oblige us to share data if doing so would conflict with our national security."

9.20 The Minister notes that Justice and Home Affairs Council agreed in March to establish an EU Internet Referral Unit based within Europol, to be operational by July 2015.[ 65] He explains that trilogue discussions under the current Luxembourg Presidency have focussed on how the Unit should be incorporated within the General Approach agreed by the Council in June 2014. He continues:

    "The Government is supportive of the EU Internet Referral Unit and believes that the Unit's work fits within Europol's current legal framework under the Council Decision. We do not see a clear rationale for expanding Europol's mandate beyond supporting Member States, and will examine the outcome of discussions on this point closely."

9.21 The Minister identifies the arrangements for Parliamentary scrutiny of Europol as "the most significant issue outstanding in trilogue discussions", adding:

    "We remain committed to ensuring a satisfactory outcome on this important issue. With that in mind I will also be writing to Agustin Diaz de Mera Garcia Consuegra MEP, the Rapporteur for the draft Europol Regulation, Claude Moraes MEP, Chair of the LIBE Committee, and to Timothy Kirkhope MEP [the shadow Rapporteur] reiterating our concerns."

9.22 The Minister undertakes to provide us with regular updates on the progress of negotiations.

Previous Committee Reports

    First Report HC 342-i (2015-16), chapter 36 (21 July 2015); 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).

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

61   Article 88 TFEU. Back

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

63   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

64   Written Ministerial Statement on Europol, cols. 129-130WS, 18 July 2013. Back

65   The Conclusions note: Regarding the issue of internet content promoting terrorism or violent extremism, Ministers agreed on the expediency of Europol taking on additional responsibility in this field as early as possible and have asked the Agency to set up an EU Internet Referral Unit which should be operational by July 2015. Back

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Prepared 6 November 2015