Legally and politically important; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union
(a) Previously cleared from scrutiny
(b) Cleared from scrutiny
(a) Council Implementing Decision amending Decision 2009/935/JHA as regards the list of third States and organisations with which Europol shall conclude agreements
(b) Draft Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and the European Police Office (Europol)
(a) Article 26(1)(a) of Council Decision 2009/371/JHA, QMV, consultation of EP
(b) Article 23(2) of Council Decision 2009/371/JHA, QMV
(a) (38494), 15778/16, —
(b) (38611), 7078/17, —
8.1These documents concern Denmark’s future relationship with Europol. Denmark participates fully in the current Europol Council Decision, adopted in April 2009, but is unable to participate in the new Europol Regulation which will take effect on 1 May 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 2009.28
8.2Document (a), a Council Implementing Decision, was adopted in February. It designates Denmark as a third (non-EU) country under the 2009 Europol Council Decision, meaning that Europol is able to conclude a cooperation agreement with Denmark before the new Europol Regulation takes effect. This Regulation will repeal the 2009 Europol Council Decision for those Member States (all bar Denmark) participating in it but includes a provision “grandfathering” (maintaining the legal effects of) agreements concluded with third countries before 1 May 2017.
8.3The Government voted for the adoption of the Council Implementing Decision before we had an opportunity to consider it, resulting in a scrutiny override. The Minister for Policing and the Fire Service (Brandon Lewis) told us that “without further action, Denmark would no longer be able to participate in Europol after [1 May 2017]” and that:
“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.”29
8.4We raised a number of questions on the Council Implementing Decision. Our purpose was to clarify the reasons for the delay in depositing the document for scrutiny, to examine legal concerns stemming from the designation of Denmark as a third country under the 2009 Europol Council Decision and to explore the wider implications for the UK since it too would have third country status following Brexit. We asked the Minister how he would expect a bespoke agreement with the UK to differ from that envisaged for Denmark, whether it would be easier or harder for the UK to negotiate such an agreement under the new Europol Regulation and whether the UK had additional leverage which would enable it to negotiate equal or better terms than Denmark. We also made clear to the Minister that his Explanatory Memorandum on the proposed Agreement should explain how the new arrangements differ from the level of cooperation Denmark currently enjoys as a full participant in Europol.
8.5Document (b) is a draft Agreement on Operational and Strategic Cooperation between Denmark and Europol, accompanied by a letter from the Chair of the Europol Management Board and an Opinion issued by Europol’s Joint Supervisory Body on the data protection elements of the Agreement.
8.6The draft Agreement establishes the legal framework for Denmark’s future cooperation with Europol. The recitals to the Agreement make clear that it is intended to “minimise the negative effects” of Denmark’s departure from Europol by establishing cooperation at “a level at least equivalent” to that of other third countries that have concluded similar agreements with Europol. The cooperation envisaged precludes direct access to Europol’s information systems but, by requiring Europol to assign up to eight Danish-speaking staff to provide a round-the-clock (24/7) service, provides for a level of service designed to ensure close to real-time access.
8.7There are a number of special factors underpinning the Agreement, notably Denmark’s membership of the EU and participation in Schengen. The enhanced service that Denmark will receive through dedicated staff based at Europol is subject to a number of conditions. These include:
8.8In his Explanatory Memorandum on the draft Agreement, the Minister welcomes “continued practical law enforcement cooperation” between Denmark and Europol and recognises that the Agreement with Denmark “will help inform negotiations” on the UK’s future relationship with Europol once it leaves the EU. He adds, however, that the UK is in a different position:
“The UK will, unlike Denmark, no longer be a member of the EU and we need to consider how we should interact with Europol from outside the bloc. As the Prime Minister has made clear, we will do what is necessary to keep our people safe but we will not be following any other nation’s model. The position we build outside the EU will be unique to Britain.”31
8.9The Minister is unwilling to speculate on the model of cooperation that the UK will seek with Europol, but says it should reflect the UK’s position as “a former Member State that has played a leading role in developing security and law enforcement cooperation”.32
8.10A spate of terrorist attacks on European soil has intensified the need to strengthen security cooperation. The political imperative and operational necessity of some form of agreement to enable Denmark to cooperate effectively with Europol from 1 May is clear. Given these circumstances, we do not consider that it would appropriate to delay the conclusion of the draft Agreement—document (b)—and jeopardise future security cooperation between Denmark and Europol. We therefore clear document (b) from scrutiny so that the Government, should it so wish, can support its conclusion before the end of April. We do so subject to a number of reservations which we wish to place on record.
8.11The referendum in which the Danish people voted to retain their opt-out of all post-Lisbon EU justice and home affairs measures, including the new Europol Regulation, took place in December 2015. A provisional agreement on Denmark’s future cooperation with Europol was reached amongst the key players—the Presidents of the European Council and European Commission and the Danish Prime Minister—in December 2016. Given the time taken to reach a provisional agreement, it is unacceptable that Europol’s Joint Supervisory Body, responsible for overseeing Europol’s data processing activities, should be given only four working days to assess the content of the draft Agreement and publish its Opinion. That Opinion casts “serious doubts” on the legality of the transitional provisions contained in the draft Agreement and questions the extent to which Denmark is accorded a level of cooperation equivalent to that of other third countries (see below). The Minister’s Explanatory Memorandum is silent on both issues.
8.12The Minister accepts that the 2009 Europol Council Decision will continue to apply to Denmark “as a matter of law” but says that it is “practically necessary” for Europol to have a separate third country agreement with Denmark. Asked how Denmark could simultaneously be a Member State under the 2009 Europol Council Decision and a third country, the Minister appears to adopt the Commission’s view that “as Denmark will become a third country for the purposes of the [new] Europol Regulation, it can be considered to be a third country for the purposes of reaching an agreement under the [2009 Europol] Council Decision”. This is Kafkaesque reasoning. As our earlier Report made clear, whilst it may be difficult for the 2009 Europol Council Decision and the new Europol Regulation to co-exist, this is what EU primary law (Denmark’s Protocol to the EU Treaties) and secondary law (the Regulation itself) appear to require as a matter of law.
8.13The draft Agreement further compounds the confusion over Denmark’s status by providing, on the one hand, that Denmark’s cooperation with Europol should be “to a level at least equivalent to that of third countries” with which similar agreements have been concluded, and on the other, that Denmark is to be considered a Member State for the purpose of applying the data protection safeguards set out in the new Europol Regulation—a Regulation in which Denmark is not entitled to participate. As the Opinion of the Joint Supervisory Body makes clear, the effect is to treat Denmark “as any other Member State and not as a third State”. Moreover, the draft Agreement allows direct access to Europol’s information systems for a six month transitional period—a right which, under Article 20 of the new Europol Regulation, is reserved exclusively to participating Member States. The Joint Supervisory Body questions whether the draft Agreement can, in effect, “set aside” Article 20, albeit for a limited six month period.
8.14We share these concerns and remain to be persuaded that there is a legally robust case for Denmark’s cooperation with Europol to be based on a third country agreement.
8.15The Minister does not tell us what type of bespoke agreement with Europol the Government intends to seek or how it is likely to differ from the draft Agreement with Denmark on the grounds that “it would not be appropriate to speculate on the details of our future participation in specific elements of cooperation before [exit] negotiations begin”. Nor is the Minister willing to tell us whether he expects it to be easier or harder to reach a bespoke agreement once the provisions of the new Europol Regulation take effect on 1 May, even though we consider this to be a factual question which would not undermine the Government’s negotiating objectives.
8.16We trust that the Minister will overcome his reluctance to engage meaningfully with Parliament on the Government’s aspirations for the UK’s future relationship with Europol once exit negotiations begin in the coming weeks. Given that the security of its citizens is of paramount concern to the Government, and that its aim in exit negotiations is to “keep our justice and security arrangements at least as strong as they are”, we expect the Government to demonstrate transparency and accountability to Parliament during, and not just at the end of, exit negotiations.33
(a) 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, —; (b) Draft Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and the European Police Office (Europol): (38611), 7078/17, —.
8.17Our earlier Reports listed at the end of this chapter describe the special Treaty arrangements governing Denmark’s participation in EU justice and home affairs measures and developments leading up to the adoption of document (a)—the Council Implementing Decision. We were not satisfied with the Minister’s initial response to the questions we raised and requested further information.
8.18We questioned the Minister’s assertion that “it is not standard procedure” to deposit a document of this nature and asked which provision of our Standing Order he relied on to reach this conclusion. We recognised that there were circumstances in which a more flexible approach to the deposit of Implementing Acts might apply, but added that this clearly was not one of them and that Cabinet Office guidance on parliamentary scrutiny of EU documents made clear that the onus was on the Government to bring to our attention proposed Implementing Acts which were “considered to be sensitive”. We suggested there could be little doubt that a proposal designating an EU Member State as a third country to overcome a Treaty prohibition on that Member State’s participation in an EU measure qualified as “sensitive”.
8.19The Minister responds:
“I apologise for any confusion caused by my previous response on the process of depositing Council Implementing Decisions which add a country to the list of third states that Europol can conclude agreements with. I can confirm that the Government’s default position will be to deposit these documents in the future. The Committee should also note that a different process will be in place from 1 May 2017 under the new [Europol] Regulation. There will no longer be a list of third countries that Europol can conclude agreements with. Instead, cooperation agreements will follow the process set out in Article 218 TFEU. This will mean that in accordance with the current scrutiny process for handling Article 218 TFEU agreements, we will notify the Committee when a negotiating mandate has been agreed, and we will deposit Council Decisions on signature and conclusion of the agreement.”
8.20We made clear in our earlier Report that we expected the Minister to make good on his undertaking to engage with us “as early as possible” on the content of the proposed agreement between Europol and Denmark so that there would be an opportunity for meaningful scrutiny. We added that he should explain how the agreement differed 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. The Minister considers that he has delivered on his undertaking to engage “as early as possible” by submitting his Explanatory Memorandum on the draft Agreement on 21 March (see below).
8.21We commented in our earlier Report that there was no question of Denmark participating in the new Europol Regulation but said we were not persuaded that there was a legally robust case for Denmark’s cooperation with Europol to be based on a third country agreement when it remained bound (as a Member State) by the 2009 Europol Council Decision. Put simply, we asked how Denmark could simultaneously be a Member State under the 2009 Europol Council Decision and a third country. The Minister responds:
“The Commission takes the view that as Denmark will become a third country for the purposes of the Europol Regulation, it can be considered to be a third country for the purposes of reaching an agreement under the Council Decision.”
8.22The Minister told us in previous correspondence that it was “hard to see how the Council Decision could exist alongside the Regulation”.34 We suggested that, whatever the practical and operational difficulties, this was what EU primary law (Denmark’s Protocol to the EU Treaties) and secondary law (only Member States participating in the new Europol Regulation are bound by the repeal of the 2009 Europol Council Decision) appeared to require. We were particularly surprised by the Minister’s seemingly equivocal support for the argument that the 2009 Europol Council Decision had not been repealed for Denmark and asked whether this signified a change in longstanding Government policy that the repeal of EU justice and home affairs only took effect for those Member States participating in the repeal measure. The Minister responds:
“My comments on the application of the Council Decision for Denmark do not signify a change in Government policy. While I consider that the Council Decision will continue to apply for Denmark as a matter of law, it has been seen as practically necessary for Denmark to have an international agreement with Europol.”
8.23We did not see how the Minister could credibly argue that the UK’s situation was “very different” from Denmark’s given that future cooperation with Europol would, in both cases, be based on a third country agreement. We reiterated our request for the Minister to comment on the status of 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 to minimise the negative effects of Denmark’s departure from Europol and the specific conditions it set out.35 We asked the Minister:
8.24We noted also that the Minister had not explained (in response to an earlier request) whether he considered that the provisions in the new Europol Regulation on the transfer of personal data to third countries were likely to make it easier or harder for the UK to reach an agreement on the exchange of sensitive law enforcement information with Europol once the UK leaves the EU.
8.25Turning first to the Declaration issued in December, the Minister tells us that it was “a political statement with no binding effects” and that “Denmark’s case is very different to that of the UK, so the impact of the Declaration on us will be limited”. He continues:
“Although Denmark’s future participation in Europol will be on the basis of a third country agreement, it will still be a member of the EU and of the Schengen area. As I have stated in previous correspondence, the UK will be seeking a model of cooperation with the EU that reflects its position as a former Member State that has played a leading role in developing security and law enforcement cooperation. It would not be appropriate to speculate on the details of our future participation in specific elements of cooperation before negotiations begin. That includes the provisions of the new Europol Regulation and the transfer of data to third countries.
“The fact that the UK has played such a leading role in Europol puts us in a good position but as negotiations have yet to begin we do not know the EU’s position or that of the other 27 Member States. Consequently it would not be appropriate to compare the Denmark agreement to a theoretical agreement with the UK.”
8.26The draft Agreement establishes the legal framework for Denmark’s future cooperation with Europol. It provides for the exchange of information, including personal data, and other forms of cooperation within Europol’s mandate, in particular the exchange of specialist knowledge, general situation reports, the results of strategic analysis, information on criminal investigation procedures and crime prevention methods, participation in Joint Investigation Teams and training activities as well as the provision of advice and support in individual criminal investigations.
8.27Many of the provisions of the draft Agreement replicate those found in other third country agreements concluded by Europol. For example, Denmark will be required to establish a national contact point (the Danish National Police) to act as the central point of contact with Europol and there is provision for the secondment of liaison officers from Denmark to Europol and from Europol to Denmark. Crucially Denmark, in common with other third countries, will not have direct access to Europol’s information systems.
8.28The draft Agreement nevertheless includes additional provisions which reflect Denmark’s special status as a member of the EU and participant in Schengen. They include:
8.29Denmark will be able to “build on” its existing secure communication line with Europol and may also be invited to attend Europol Management Board meetings as an observer (without a right to vote). These additional benefits are subject to a number of important conditions:
8.30The Agreement is also conditional on Denmark continuing to remain bound by the Schengen rule book (acquis), expressly providing that it will cease to apply in the event that the Schengen rules cease to apply to Denmark. The Agreement will enter into force on 30 April, the day before the new Europol Regulation takes effect. During a six month transitional period, while Europol establishes a dedicated staff to process Danish requests to enter or retrieve information from Europol’s information systems, Denmark will continue to have direct access on the terms set out in the 2009 Europol Council Decision.
8.31The Agreement is for an unlimited duration, but will be reviewed by the Commission no later than October 2020 with a view to deciding whether it should be replaced by an international agreement concluded between the EU (rather than Europol alone) and Denmark under the provisions of the new Europol Regulation dealing with the transfer of personal data to third countries. Such an agreement would be concluded by the Council and require the consent of the European Parliament.
8.32Europol can only conclude the Agreement with Denmark after it has been approved by the Council. Council approval can only be given after consulting Europol’s Management Board and obtaining an Opinion from the independent Joint Supervisory Body which oversees Europol’s data processing activities. In a letter dated 15 March, the Chair of the Europol Management Board reported that all Member States agreed on the need for Denmark to have “an appropriate level of cooperation and information exchange with Europol” but that the new arrangements “should not result in a more advantageous status than that of Member States”.
8.33The Joint Supervisory Body (JSB) was asked to issue its Opinion within four working days. It therefore focuses on “the principal aspects” of the draft agreement and makes the following observations:
8.34Notably, the Joint Supervisory Body expresses “serious doubts” about the six month transitional period during which Denmark’s national Europol unit, competent authorities and liaison officers will continue to have direct access to Europol’s information systems since this appears to contradict Article 20 of the new Europol Regulation which restricts direct access to Member States:
“Not only is such unlimited access for a third State not allowed, it is also not in line with the intention […] to arrange cooperation with the Kingdom of Denmark to a level equivalent to that of third countries.”
8.35The Joint Supervisory Body concludes by recognising Denmark’s “unique situation” and the risk that any delay in concluding an operational agreement with Europol by 1 May 2017 could give rise to “an uncertain data protection situation”. It therefore considers that the draft Agreement should be concluded but makes clear that it “cannot change the obligations and responsibilities of Europol, Member States and third States as defined in the Europol Regulation”.
8.36The Minister explains that the Council Implementing Decision—document (a)—added Denmark to the list of third countries with which Europol can negotiate a cooperation agreement under the 2009 Europol Council Decision. He expects the final agreement concluded with Denmark to be “very similar” to the document deposited for scrutiny—document (b)—as it reflects a provisional agreement between Denmark and Europol. He says that without the agreement, Denmark would no longer be able to cooperate with Europol from 1 May 2017. He describes it as “a bespoke arrangement” which “reflects the standard agreements between Europol and third countries”. He continues:
“In addition, Europol will set up a specific interface comprising Danish speaking Europol staff. They will manage Danish requests to input, receive, retrieve and cross check data on a 24/7 basis, and Europol will use them to exchange information with Danish competent authorities. Europol will inform Denmark without delay of information concerning it, and Denmark will be invited to the meetings of the Heads of the Europol National Units and may be invited, as an observer, to the Europol Management Board and its subgroups.”
8.37Turning to the wider implications of the draft Agreement for the UK’s future relationship with Europol, the Minister observes:
“The Government would like to stress that although the agreement on Denmark’s participation in Europol will help inform negotiations, the situation for Denmark is different to that of the UK. The UK will, unlike Denmark, no longer be a member of the EU and we need to consider how we should interact with Europol from outside the bloc. As the Prime Minister has made clear, we will do what is necessary to keep our people safe but we will not be following any other nation’s model. The position we build outside the EU will be unique to Britain.”
8.38The Minister welcomes practical law enforcement cooperation between Europol and Denmark. He expects the Justice and Home Affairs Council to endorse the draft Agreement in March or April so that it can take effect before 1 May 2017.
For (a); Thirty-fifth Report HC 71-xxxiii (2016–17), chapter 12 (15 March 2017) and Thirty-second Report HC 71-xxx (2016–17), chapter 16 (22 February 2017).
28 See Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol). The UK has opted into the new Europol Regulation.
29 See the Minister’s Explanatory Memorandum of 15 February 2017 on the Council Implementing Decision.
30 See Directive (EU) 2016/680 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data.
31 See the Minister’s Explanatory Memorandum of 21 March 2017 on the draft Agreement.
32 See the Minister’s letter of 30 March 2017 to the Chair of the European Scrutiny Committee.
33 Secretary of State for Exiting the European Union (Mr David Davis), HC Deb, 10 October 2016, col 55.
35 See the text of the Declaration issued on 15 December 2016.
21 April 2017