16Europol: agreement with Denmark
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Committee’s assessment |
Legally and politically important |
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Cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union |
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Document details |
Council Implementing Decision amending Decision 2009/935/JHA as regards the list of third States and organisations with which Europol shall conclude agreements |
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Legal base |
Article 26(1)(a) of Council Decision 2009/371/JHA, QMV, consultation of EP |
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Department |
Home Office |
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Document Number |
(38494), 15778/16, — |
Summary and Committee’s conclusions
16.1Europol is at the forefront of the EU’s response to international crime. Founded as an intergovernmental organisation in 1995 and operational since 1999, Europol became an EU Agency in 2010. It provides analytical and operational support to national law enforcement authorities in all 28 EU Member States, enhancing their capacity to tackle security threats which have a cross-border dimension. A new Regulation updating Europol’s governance structure, objectives and tasks was adopted in May 2016 and will take effect on 1 May 2017. The UK has opted into the Regulation on the grounds that:
“Opting in will maintain operational continuity for UK law enforcement ahead of the UK exiting the EU, ensuring our Liaison Bureau at Europol is maintained, and that law enforcement agencies can continue to access Europol systems and intelligence. This decision is without prejudice to discussions on the UK’s future relationship with Europol when outside the EU.”67
16.2Denmark participates fully in the current Europol Council Decision, adopted in April 2009, but is unable to participate in the new Regulation which is intended to replace it as Denmark has an opt-out of all EU justice and home affairs legislation adopted after the Lisbon Treaty entered into force on 1 December 2009. However, Protocol 22 to the EU Treaties on the Position of Denmark provides that pre-Lisbon EU police cooperation measures which are amended post-Lisbon “shall continue to be binding upon and applicable to Denmark unchanged”.68 The amendment of a pre-Lisbon measure is generally understood to encompass post-Lisbon measures which repeal or replace the earlier measure. The new Europol Regulation repeals and replaces the 2009 Europol Council Decision and a number of associated measures with effect from 1 May 2017, but only for those Member States participating in the Regulation.
16.3In a referendum held in December 2015, the Danish people voted to retain their opt-out of all post-Lisbon EU justice and home affairs measures and rejected a proposal which would have enabled Denmark, like the UK, to opt in selectively to measures such as the new Europol Regulation. The vote was widely seen as a blow to the Danish Government’s efforts to keep Denmark within Europol.
16.4The proposed Council Implementing Decision is intended to enable Denmark to continue to cooperate with Europol from 1 May when the new Europol Regulation takes effect. It does so by designating Denmark as a third (non-EU) country under the 2009 Europol Council Decision. Europol is required to prioritise the conclusion of cooperation agreements with designated third countries.
16.5The Minister for Policing and the Fire Service (Brandon Lewis) “welcomes Europol cooperating with Denmark to ensure continued practical law enforcement cooperation”. The document was deposited on 1 February 2017. The Minister’s Explanatory Memorandum of 15 February notes that “the process is moving quickly” and anticipates that the proposed Council Implementing Decision will be adopted at the March Justice and Home Affairs Council. His letter, sent a day later, explains that “the matter has moved faster than anticipated” and that the proposal is expected to be agreed on 17 February. He adds that “this is only the first step to allow Denmark to start actual negotiations with Europol towards an Operational Agreement” and that the Government intends to engage with us “as early as possible on the detail of this”. He continues:
“In the circumstances we therefore intend to support this Implementing Decision by voting in favour at tomorrow’s Council ahead of the process to agree the Operational Agreement itself. I recognise that the timing of this instrument going to Council so soon is unhelpful in the context of domestic scrutiny arrangements, but hope that the Committee will understand the Government’s position in these unusual and time constrained circumstances.”
16.6We recognise that the Minister has written to us at the earliest opportunity to explain the Government’s reasons for overriding our security reserve. He does not, however, explain why it took the Government so long to deposit the proposed Council Implementing Decision, given that the decision to establish new operational arrangements between Denmark and Europol was announced in December and the proposal itself was published in early January. We ask the Minister to account for the delay which has led to the scrutiny override.
16.7The Minister tells us that, “without further action, Denmark would no longer be able to participate in Europol” once the new Europol Regulation takes effect on 1 May 2017. The approach proposed by the Council—to designate Denmark as a third (non-EU) country—is highly unorthodox, not least because the designation is made under the 2009 Europol Council Decision in which Denmark participates fully as a Member State. It is not clear to us why the proposed Council Implementing Decision is necessary, given the wording of Protocol 22 to the EU Treaties on the Position of Denmark and Article 75 of the new Europol Regulation.
16.8On the former, we understand Article 2 of the Protocol to mean that EU police cooperation measures, such as the 2009 Europol Council Decision, which were adopted before the Lisbon Treaty took effect and are amended post-Lisbon, “shall continue to be binding upon and applicable to Denmark unchanged”. Whilst the new Europol Regulation repeals and replaces, rather than amends, the 2009 Europol Council Decision, precedent suggests that repeal and replace measures are treated in the same way as amending measures under the Protocols to the EU Treaties. The procedures governing the UK’s 2014 block opt-out decision are instructive.69
16.9Moreover, Article 75 of the new Europol Regulation provides that the 2009 Europol Council Decision and associated measures are only repealed and replaced “for the Member States bound by this Regulation”. As Denmark is not bound by the Regulation, we do not see how it can have the effect of repealing and replacing the earlier measures as regards Denmark. We ask the Minister to explain why Denmark could not continue to participate in Europol on the basis of these earlier Council Decisions.
16.10The decision to designate Denmark as a third country for the purpose of establishing new operational arrangements with Europol has clear implications for the UK’s future relationship with Europol once it leaves the EU. It is disappointing that the Minister does not allude to the Declaration issued by the Presidents of the European Council (Donald Tusk) and European Commission (Jean-Claude Juncker) and the Danish Prime Minister (Lars Løkke Rasmussen) in December which makes clear that the new operational agreements:
“[…] must be Denmark-specific, and not in any way equal full membership of Europol, i.e. provide access to Europol’s data repositories, or for full participation in Europol’s operational work and database, or give decision-making rights in the governing bodies of Europol. However, it should ensure a sufficient level of operational cooperation including exchange of relevant data, subject to adequate safeguards.
“This arrangement would be conditioned on Denmark’s continued membership of the European Union and of the Schengen area, on Denmark’s obligation to fully implement in Danish law Directive (EU) 2016/680/EU on data protection in police matters by 1 May 2017 and on Denmark’s agreement to the application of the jurisdiction of the Court of Justice of the EU and the competence of the European Data Protection Supervisor.”70
16.11We ask the Minister to comment on the status of this declaration, the specific conditions it sets out and its implications for any future agreement between the UK and Europol once the UK leaves the EU. We also ask him whether he considers that the provisions in the new Europol Regulation on the transfer of personal data to third countries will make it easier or harder for the UK to exchange sensitive law enforcement information with Europol once the UK leaves the EU.
16.12As the Council Implementing Decision has been adopted, we clear it from scrutiny. We note the Minister’s undertaking to engage with us “as early as possible” on the content of the operational agreement to be concluded with Denmark. We expect him to explain how the agreement differs from the level of cooperation Denmark currently enjoys as a full participant in Europol and how any conditions imposed on Denmark, for example in relation to the jurisdiction of the Court of Justice or Schengen membership, might affect the scope of any new post-Brexit agreement with the UK. We draw this chapter to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.
Full details of the documents
Council Implementing Decision amending Decision 2009/935/JHA as regards the list of third States and organisations with which Europol shall conclude agreements: (38494), 15778/16, —.
Background
Procedures for concluding third country agreements under the 2009 Europol Council Decision
16.13The 2009 Europol Council Decision authorises the Council, acting by a qualified majority, to determine the third countries with which Europol shall conclude cooperation agreements.71 The list is set out in an Annex to a related Council Decision.72 None of the third countries listed is a member of the European Union but four—Iceland, Norway, Switzerland and Liechtenstein—are associate members of the Schengen free movement area. Any addition to the list must be agreed by a qualified majority of the Council, based on a recommendation made by Europol’s Management Board outlining the operational need to conclude a cooperation agreement.
16.14Europol may enter into two types of cooperation agreement. Strategic agreements are limited to the exchange of general intelligence as well as strategic and technical information. Operational agreements allow the exchange of personal data, but are conditional on the third country ensuring an adequate level of data protection. The choice of agreement is determined by Europol’s Management Board, based on Europol’s assessment of the adequacy of data protection standards in the third country and the opinion of Europol’s Joint Supervisory Body—a body on which each Member State’s national data protection supervisory body is represented. Negotiations are carried out by the Director of Europol, under the supervision of the Management Board. The agreement must be approved by the Council, acting by a qualified majority.73
Procedures for establishing operational cooperation with third countries under the new Europol Regulation
16.15From 1 May 2017, the procedures for establishing operational cooperation with third countries will be based on the new Europol Regulation.74 The Regulation authorises the transfer of personal data to third countries in the following circumstances:
- The Commission has adopted an “adequacy decision” establishing that the third country ensures an adequate level of data protection; or
- The EU has concluded an international agreement with the third country “adducing adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals”.
16.16In addition, the Regulation includes a “grandfathering” provision which allows the transfer of personal data to be based on cooperation agreements concluded before 1 May 2017 on the basis of the 2009 Europol Council Decision.
16.17One of the questions we raised when scrutinising the new Europol Regulation was whether these provisions were likely to make it easier or harder for the UK to exchange sensitive law enforcement information with Europol once it leaves the EU.
The proposed Council Implementing Decision
16.18The proposal adds Denmark to the list of third countries and organisations with whom Europol shall conclude cooperation agreements. It takes effect on the date of its adoption—expected to be 17 February 2017—and gives Europol the necessary authorisation to carry out an assessment of the adequacy of data protection arrangements in Denmark with a view to initiating negotiations on an operational cooperation agreement.
The Minister’s Explanatory Memorandum of 16 February 2017
16.19The Minister tells us that Denmark is not able to participate in the new Europol Regulation, adding:
“Consequently, without further action, Denmark would no longer be able to participate in Europol after [1 May 2017].”
He continues:
“The Commission and Denmark have therefore reached a bespoke arrangement, which will allow Denmark to continue to work with Europol but as a third country rather than a Member State. Europol is usually only permitted to reach agreements with non-Member States but it has been agreed exceptionally that Denmark can be treated as such in this context to ensure it retains a relationship with Europol.
“The Danish Parliament has agreed to the arrangement and the procedural steps for it to enter into force are now underway. This Council Implementing Decision represents the first procedural step, as it adds Denmark to the list of third countries with which Europol can have an agreement. Once this has taken place, Europol can directly negotiate an agreement with Denmark, which requires final sign-off from the Council. Denmark will then have a pre-existing third country agreement with Europol when the new Regulation comes into force. Such pre-existing agreements will continue to be in force under that Regulation.”
16.20The Minister sets out in familiar terms the Government’s position on the implications of the UK referendum on membership of the EU for new legislative proposals:
“On 23 June, the people of the United Kingdom voted to leave the European Union. Until exit negotiations are concluded, the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. During this period the Government will continue to negotiate, implement and apply EU legislation.”
16.21He notes the outcome of the referendum in Denmark in December 2015 on participation in EU justice and home affairs measures, adding:
“In order for them to continue cooperating with Europol, the Danish Government negotiated and agreed with the Commission for Denmark to be treated as a third country for the purposes of the current measure.
“The Government welcomes Europol cooperating with Denmark to ensure continued practical law enforcement cooperation.”
16.22The Minister notes that “the process is moving quickly” and that a final agreement needs to be achieved before the new Europol Regulation takes effect on 1 May.
The Minister’s letter of 16 February 2017
16.23The Minister explains that the proposal will be submitted to the Education, Youth, Culture and Sport Council on 17 February for adoption and acknowledges that the accelerated timetable means that the Council Implementing Decision will not be cleared from scrutiny ahead of Council agreement. He reiterates the Government’s support for “continued practical law enforcement cooperation” between Europol and Denmark and notes that “this is only the first step to allow Denmark to start actual negotiations with Europol towards an Operational Agreement”. He says he will engage with us “as early as possible” on the content agreement, adding:
“The Operational Agreement itself will also require final sign-off from the Council by Qualified Majority voting (QMV). This needs to be achieved before the new Europol Regulation comes into force on 1 May 2017 and this prompted the speeding up of the process.”
Previous Committee Reports
None on this document, but see our earlier Report on the new Europol Regulation: Twenty-first Report HC 71-xix (2016–17), chapter 1 (23 November 2016).
67 See the letter of 14 November 2016 from the Minister for Policing and the Fire Service (Brandon Lewis) to the Chair of the European Scrutiny Committee.
68 Article 2 of Protocol No. 22 on the Position of Denmark.
69 For example, Article 10 of Protocol 36 to the EU Treaties uses similar terminology. The reference to the amendment of pre-Lisbon police and criminal justice measures also encompassed their replacement and repeal by post-Lisbon measures.
70 See the European Commission press release issued on 15 December 2016.
71 See Articles 23 and 26 of Council Decision 2009/371/JHA establishing the European Police Office (Europol).
72 See Council Decision 2009/935/JHA determining the list of third States and organisations with which Europol shall conclude agreements.
73 See Articles 5 and 6 of Council Decision 2009/934/JHA adopting the implementing rules governing Europol’s relations with partners, including the exchange of personal data and classified information.
74 See Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA.
24 February 2017