Letter from the Chairman to Bob Ainsworth
MP, Under-Secretary of State Home Office
Sub-Committee F (Social Affairs, Education and
Home Affairs) considered this proposal at its meeting on 15 January.
The Committee notes that the Agreement will generate a substantial
flow of data between Europol and Eurojust. We believe that any
arrangements for data exchange should be subject to stringent
data protection safeguards and welcome your confirmation that
the Government will not endorse any such agreement until the Joint
Supervisory Body has given an opinion. It is essential to examine
the JSB opinion in order to fully assess the data protection implications
of the proposal.
We would also like to raise with you the following
Joint Investigation Teams
Article 6(1) provides that Europol and Eurojust
may "together" participate in the setting up and action
of joint investigation teams. It is not clear to us what is the
legal basis for allowing participation of Eurojust members in
joint investigation teams and we would welcome clarification of
this. We are also unclear what it would mean in practice. Will
the team include officers from both Eurojust and Europol? What
is the added value of "together" in this context?
Transmission of information
Article 8(4) provides that the transmission
of sensitive personal data must be limited to "absolutely
necessary cases". It further states, however, that "the
existence of such data may be indicated". The purpose of
this qualification is unclear. If it means that the existence
but not the nature of such data may be disclosed, it is open to
the strong objection that it would be tantamount to an indication
of adverse information about the person concerned.
Correction and deletion of information
Article 12(3) provides that a retention review
of transmitted data must take place within a period of a maximum
three years. This period is much longer than the annual review
provided by Article 21(3) of the Europol Conventionwhich
will not be extended by the current proposals to amend Convention.
The need for a longer period in this Agreement is unclear.
Article 17(1) states that the Agreement "may
be amended by mutual consent between the Parties at any time in
accordance with their respective statutory requirements".
It is unclear whether such an amendment would require fresh Council
approval, and to what extent it would be subject to national Parliamentary
We would welcome your comments on these points.
The Committee decided to retain the document under scrutiny pending
your reply and the JSB opinion.
16 January 2003
Letter from Bob Ainsworth to the Chairman
Thank you for your letter of 16 January 2003
responding to my Explanatory Memorandum of 29 November 2002 on
the above-mentioned agreement. You explain in the letter that
Sub-Committee F (Social Affairs, Education and Home Affairs) will
in the usual way wish to see the Joint Supervisory Body's opinion
on the agreement. I will of course deposit the opinion for scrutiny
when in due course it is received. The Europol Management Board
has in fact not yet forwarded the agreement to the Joint Supervisory
Body and before doing so will be giving the agreement further
consideration in its meeting scheduled for 11-12 February. My
officials are still considering the points in your letter and
wish to take account of the discussions in the meeting on 11-12
February before offering full advice. I shall therefore write
to you again shortly with what I hope will be a comprehensive
and helpful response to all the points which the Committee has
5 February 2003
Letter from Bob Ainsworth to the Chairman
I refer to your letter of 16 January 2003 in
which you raised on behalf of Sub-Committee F (Social Affairs,
Education and Home Affairs) a number of questions concerning the
above-mentioned draft agreement between Europol and Eurojust.
I said in my letter of 5 February that I would send you an early
full reply taking into account discussions in the meeting, on
11-12 February, of the Europol Management Board. In that meeting,
we also sought further clarification of a number of the points
raised in your two letters of 30 January concerning the above-mentioned
draft agreements between Europol and the Republic of Bulgaria
and between Europol and the Slovak Republic. I am therefore taking
this opportunity to reply fully to those two letters as well.
UK initiative for superintending the preparation
of future Europol agreements
Before dealing with the various matters raised
in your letters, I would like to explain that with the Presidency's
agreement we tabled for discussion in the meeting on 11-12 February
a short paper recommending that a sub-group of the Board be established
to superintend the preparation of future Europol third country/third
body agreements. This could for example be established under Article
4(4) of the Act of the Management Board of Europol of 1 October
1998 laying down its rules of procedure. The paragraph reads:
"On matters for which the Management Board does not consider
a plenary meeting necessary, it may appoint an ad hoc committee
or committees with as many members as it considers necessary to
perform the tasks involved. Such committee(s) shall be chaired
by the Chairman of the Management Board and shall be dissolved
upon completion of the tasks for which it was/they were set up".
We explained that what we have in mind, broadly,
is having arrangements in place for: ensuring that Europol is
given a clear negotiating mandate, approved by the Board and the
Council, before negotiations are commenced; submitting to the
sub-group detailed negotiating records; reporting every two months
or so to the Board on the progress of negotiations; and preparing
Explanatory Reports, to go to the Council, to accompany, and be
read with, the agreements. These suggestions were welcomed in
the meeting and will be worked up by us, in consultation with
other Member States, for detailed consideration in the Board's
next meeting on 10-11 April. I will let you know in due course
what progress we make with this initiative which should improve
the efficiency of the negotiating process and, in particular through
the Explanatory Reports, assist in answering the kind of questions
which are raised in your three letters of 16 and 30 January.
Turning now to the detailed points in your letters,
I deal with these below in the order in which you raised them.
1. Joint investigation teams
Your Committee asks what is the legal base for
allowing participation of Eurojust members in joint investigation
teams, what it would mean in practice, whether the teams would
include officers from both Europol and Eurojust, and what is the
added value of Europol and Eurojust working "together"
as envisaged in Article 6(1) of the agreement.
The legal base is in part in Article 13 of the
EU Convention on mutual assistance in criminal matters, which
has been brought into advance effect by the Framework Decision
on joint investigation teams. Article 1(12) reads: "To the
extent that the laws of the Member States concerned or the provisions
of any legal instrument applicable between them permit, arrangements
may be agreed for persons other than representatives of the competent
authorities of the Member States setting up the joint investigation
team to take part in the activities of the team. Such persons
may, for example, include officials of bodies set up pursuant
to the Treaty. The rights conferred upon the members or seconded
members of the team by virtue of this Framework Decision shall
not apply to these persons unless the agreement expressly states
otherwise". The Explanatory Report to the EU Convention on
mutual assistance in criminal matters explains, for the avoidance
of doubt, that "bodies set up pursuant to the Treaty"
include Europol and Eurojust.
The legal basis is also partly in the Council
Decision setting up Eurojust. Article 7 provides that Eurojust,
acting as a College and in relation to the types of crime in respect
of which Europol is competent, may ask the competent authorities
of the Member States concerned, giving its reasons, "to set
up a joint investigation team in keeping with the relevant cooperation
instruments" and "to provide it with any information
that is necessary for it to carry out its tasks". The Article
also provides that Eurojust "shall assist the competent authorities
of the Member States, at their request, in ensuring the best possible
coordination of investigations and prosecutions", "shall
give assistance in order to improve cooperation between the competent
authorities of the Member States, in particular on the basis of
Europol's analysis" and "may assist Europol, in particular
by providing it with opinions based on analyses carried out by
In accordance with Article 1(3) of the Framework
Decision on joint investigation teams, the team leader must always
be a representative of the competent authorities of the Member
State in which the team is operating. All the members of the team
must carry out their tasks relating to the team under his leadership.
These provisions, taken together, provide a
basis for Eurojust to provide substantial support to joint investigation
teams, and indeed to do so through participation in the team at
the request of the Member States setting up the team. It is envisaged
that Eurojust would in particular assist the team in coordinating
investigations and prosecutions, and in doing so would also take
account of information provided by Europol.
The Europol Convention has recently been amended
by the Council Act of 28 November 2002 to enable Europol officers
to participate in joint investigation teams in a support capacity
in line with the Tampere conclusions of October 1999. It is envisaged
that this support would principally be through adding value to
Member States' own intelligence, and doing so through direct liaison
with other members of the team, keeping the relevant Europol National
Units informed. The Europol officers would not have, while participating
in a joint investigation team, the immunity against legal process
of any kind under Article 8(1a) of the Protocol on privileges
and immunities of Europol members. The Europol officers would
be complementing the work of the Eurojust officers, and indeed
Article 26(1) of the Council decision setting up Eurojust effectively
provides that duplication should be avoided, see under (4) below.
But these amendments to the Europol Convention
have not yet been brought into effect. It is therefore not yet
possible for Europol to play a full part in the work of joint
investigation teams. This does not mean to say that it cannot
provide valuable advice to the Member States and indeed to Eurojust
on for example how a joint investigation team might be set up
and what should go into the agreement establishing the team. The
provisions in Article 6 of the draft agreement between Europol
and Eurojust allude to matters of that kind, and make clear that
the precise nature of the cooperation between Europol and Eurojust
in relation to joint investigation teams must be "in accordance
with the legal framework which is in place at that time".
The Government attaches importance to closer
cooperation between the competent authorities of the Member States
in preventing and combating serious organised crime, and sees
joint investigation teams as a valuable way of promoting more
efficient and effective collaboration. Both Europol and Eurojust
have important complementary roles to play in relation to joint
investigation teams, and Home Office guidance to our own law enforcement
and judicial authorities on joint investigation teams recommends
early consultation with both Europol and Eurojust.
2. Transmission of information
The Committee asks why, in Article 8(4) of the
draft agreement, the qualification is made that the existence
may be indicated of personal data revealing racial origin, political
opinions or religious or other beliefs, or concerning health or
sexual life, notwithstanding that the transmission of such data
shall be limited to absolutely necessary cases. The Government
agrees that this qualification, which is not a feature of all
other third country/third body agreements, requires explanation.
We have informed the Presidency that we would prefer the qualification
to be deleted.
3. Correction and deletion of information
The Committee has also asked why the retention
review of transmitted data must take place within three years
under draft Article 12(3), when the Europol Convention provides
in Article 21(3) for annual review. We agree that this also requires
explanation, and we have accordingly informed the Presidency that
we would like the drafting to be reviewed.
You also say in your letter of 16 January that
the Committee notes that Article 17(1) of the draft agreement
does not make clear whether amendment of the agreement would require
fresh Council approval. It is therefore not clear whether there
would be an opportunity for further scrutiny by national Parliaments.
Our understanding is that, in general, agreements between Europol
and third bodies require approval of the Europol Management Board,
not the Council, under Article 2 of the Act of the Management
Board of Europol of 15 October 1998 laying down rules governing
Europol's external relations with European Union-related bodies.
Accordingly, we think that amendments to such agreements would
also require approval of the Board only.
But the Council Decision setting up Eurojust
provides in Article 26(1) that "Eurojust shall establish
and maintain close relations with Europol, insofar as is relevant
for the performance of the tasks of Eurojust and for achieving
its objectives, taking account of the need to avoid duplication
of effort. The essential elements of such cooperation shall be
determined by an agreement to be approved by the Council,
after consultation of the Joint Supervisory Body concerning the
provisions on data protection". In our view, the need for
the Council to be involved would apply also to amendments to the
In the particular case therefore of the agreement
between Europol and Eurojust, we think that amendments would require
the approval of the Council. Accordingly, they would be submitted
for Parliamentary scrutiny.
For completeness, I can confirm that it continues
to be the case that Europol is discussing the agreement with Eurojust,
and that an opinion has not yet been sought, either by Europol
or by Eurojust, from the respective Joint Supervisory Bodies.
5. Establishment of the Bulgarian Data Protection
In your first letter of 30 January you explain
that the Committee is concerned to ensure that the agreement will
not be concluded before the Bulgarian Data Protection Commission
is established. We understand that the Commission has now been
set up, but we have made clear to the Presidency that we expect
the Bulgarian authorities to provide Europol with formal notification
of the existence of the Commission before the agreement is concluded.
Such notification has not yet been received.
6. Competent authorities
The Committee seeks clarification of the procedure
for amending the list of competent authorities under Article 6(1).
We agree that a change to the list would constitute an amendment
to the agreement. It would therefore require approval of the Council
as I explain under point (8) below.
7. Termination of supply of personal data
The Committee asks about Article 9(5) which
provides that personal data shall not be supplied where an adequate
level of data protection is no longer guaranteed. The Committee
asks how the adequacy would be assessed, which body would decide
on termination, and whether termination could be done unilaterally
by one of the Parties. We understand that there is not a formal
procedure for assessing the continued adequacy of the data protection
arrangements, but that if, in operating the agreement, it came
to Europol's attention that the arrangements were not, or possibly
not, working as intended, then the circumstances and relevant
indications giving cause for concern would be reported up the
management line for further consideration. In the event that a
situation arose where Europol concluded that the arrangements
could no longer be regarded as satisfactory, then termination
of the supply of data would be a certain consequence, determined
administratively by the Director of Europol, in the absence of
immediate remedial action by the Bulgarian competent authorities.
We understand that there is no impediment under the agreement
to termination of the supply being by way of unilateral action.
8. Amendments to the agreement
The Committee asks whether amendment of the
agreement under Article 19(1) would require approval of the Council.
Europol's agreements with third countries are governed by the
Council Act of 3 November 1998 laying down rules governing Europol's
external relations with third States and non-European Union related
bodies. Article 2(3) provides that such agreements can only be
concluded after unanimous approval by the Council. We understand
that amendments to the agreements would similarly require the
unanimous approval of the Council. Accordingly, amendments would
be subject to Parliamentary scrutiny.
9. Competent authorities
You say in your second letter of 30 January,
that the Committee asks much the same question in relation to
this agreement as under (6) above in relation to the agreement
with Bulgaria. I can again confirm that, for the same reasons,
amendments to the list of competent authorities would require
the approval of the Council. I take this opportunity to explain
that there is a recent Corrigendum to the draft agreement, in
Council document 15747/02 COR 1 EUROPOL 105, which adds "Military
Police" to the list of competent authorities. We did not
consider it necessary to deposit this Corrigendum for scrutiny,
but we have made it clear to the Presidency that we expect Europol
to obtain full explanations from the Bulgarian authorities on
precisely why they wish to include the military police. We would
need to be satisfied that insofar as the military police are competent
in relation to any of the serious forms of organised crime for
which Europol has competence, any military offences associated
with that criminal conduct would also constitute offences under
the ordinary criminal law, inline for example with Article 1(2)
of the 1959 European Convention on mutual assistance in criminal
10. Termination of supply of personal data
The Committee asks much the same question as
under (7) above. My response is the same.
11. Amendments to the agreement
The Committee asks much the same question as
under (8) above. My response is the same.
17 February 2003
Letter from the Chairman to the Lord Filkin,
CBE Under-Secretary of State Home Office
Thank you for your letter of 17 February, which
Sub-Committee F (Social Affairs, Education and Home Affairs) considered
at a meeting on 26 February. We are grateful to you for informing
us of the UK initiative for superintending the preparation of
future Europol agreements, which will be welcome if it leads to
closer supervision of these measures, and we look forward to hearing
of future progress.
As for the draft Agreement itself, we welcome
the fact that you share the Committee's data protection concernsin
view of the extensive exchange of information the Agreement may
entail, it is clearly essential that it is subject to stringent
data protection safeguards. In this context, the Committee will
wish to scrutinise carefully the Opinions of the Europol and Eurojust
Joint Supervisory Bodies when they are available.
The one point on which we did not find your
response entirely satisfactory was on joint investigation teams
(JITs). The only specific reference to Eurojust and JITs is Article
7(a)(iv) of the Council Act, which enables Eurojust to ask national
authorities "to set up a joint investigation team in keeping
with the relevant cooperation instruments". This does not,
of course, authorise Eurojust's participation in JITs. It is true
that, as you say, the Convention on mutual assistance gives a
general authorisation to "officials of bodies set up pursuant
to the Treaty" to participate in JITs, but without giving
any further details of what their role would be. This seems anomalous
when Europol's participation in JITs is the subject of a separate
detailed instrument. We can see no reason why a similar instrument
should not be a pre-requisite for allowing extensive participation
of Eurojust members in JITs.
Your letter also provides little explanation
on how, in practice, Europol and Eurojust will work "together"
in JIT. It appears that a great deal of action is envisaged on
a preparatory level, but little is said on the allocation of roles
once a JIT is operational. Is it possible to say more on this
We would welcome your comments on these points.
The Committee decided to retain the document under scrutiny.
28 February 2003
Letter from Bob Ainsworth MP Parliamentary
Under Secretary of State to the Chairman
Thank you for your two letters of 28 February
in which you raised on behalf of Sub-Committee F (Social Affairs,
Education and Home Affairs) some points of concern regarding the
above-mentioned draft agreements. I am taking this opportunity
to reply to both letters, to update you on developments on the
Bulgaria and Slovakia agreements, which I hope will resolve the
Committee's remaining concerns, and to provide some clarification
regarding the legal base and role of Eurojust in participating
in joint investigation teams.
Draft agreement between Europol and the Republic
I am pleased to be able to inform you that formal
notification of the establishment of the Bulgarian Data Protection
Commission has now been received. I have attached for your information
a message from the Bulgarian Ministry of the Interior confirming
this fact, under cover of a note from the Director of Europol.
In the light of this assurance we now support the conclusion of
this agreement, subject to clearance by the Committee.
Draft agreement between Europol and the Slovak
You explain that the Committee would welcome
clarification regarding the inclusion of the "Military Police"
in the list of bodies which can receive Europol data in Slovakia.
Following the concerns raised by the UK and other Member States
about the addition of this competent authority, I am pleased to
be able to confirm that the Military Police have now been removed
from the latest draft of this agreement. Consequently we are satisfied
that the Slovakia agreement can now be concluded, again subject
to your approval.
Draft agreement between Europol and Eurojust
My letter of 17 February explained that the
intention, as expressed in Article 13 of the EU Convention on
mutual assistance in criminal matters and Article 1(12) of the
Framework Decision on joint investigation teams, has always been
that persons other than representatives of the competent authorities
should be able to participate in a joint investigation team (JIT).
This was particularly with a view to participation by Europol
and Eurojust. Your letter referred to the separate instrument
dealing with Europol's participation in JITs and suggested that
a similar instrument should be a pre-requisite to participation
by Eurojust Members. The Council Act of 28 November 2002 amended
the Europol Convention to enable Europol to participate in a support
capacity in a joint investigation team. There is no requirement
for an additional enabling provision in the Eurojust Decision.
Unlike the Europol Convention, the Eurojust Decision already provides
in Articles 6(c ) and 7(c ) that Eurojust "shall assist the
competent authorities of the Member States, at their request,
in ensuring the best possible co-ordination of investigations
and prosecutions". This power to assist the competent national
authorities in investigations and prosecutions is sufficient to
enable Eurojust to take part in the activities of a joint investigation
team at the invitation of those authorities and subject to the
agreement on the formation of the team.
Your letter also asked for further explanation
of how Europol and Eurojust would work together in a JIT. This
is likely to develop with experience of working in JITs but Eurojust's
principal role, together with Europol, would be to use its expertise
as a cross border resource to facilitate the investigation. For
Eurojust, this may involve advising on legal or jurisdictional
issues or exercising its powers under the Eurojust Decision to
request information or legal assistance from other Member States
in support of the investigation.
27 March 2003
Members of the Management Board
With respect to the draft co-operation agreements
between Europol and the Slovak Republic, and Europol and Bulgaria,
some further issues were raised at the last Management Board meeting.
I would like to inform the members of the Management Board that
Europol has received the following information from these two
countries on the issues raised.
1. SLOVAK REPUBLIC
Europol has also requested further information
on the state of play with respect to the Personal Data Protection
Commission in Bulgaria. From the attached information received
from the Bulgarian authorities, it is clear that this Commission
was established by Decision of the National Assembly of 23 May
2002, and it has been operational since 1 September 2002.
I hope to have informed you sufficiently with
this, and trust that it will now be possible for the Council to
approve the signature of these two agreements.
"The Personal Data Protection Commission
was established by Decision of the National Assembly of 23 May
2002, in accordance with the Personal Data Protection Act. The
Commission is an independent collective body, which consists of
a Chairman and four members. The Commission has been operational
since 1 September 2002.
The administration of the Commission is divided
into directorates, and the total number of its staff, including
the Members of the Commission, is 76 (in accordance with the Rules
of Procedure for the Commission and its administration, promulgated
in State Gazette No. 71 of 2002, amended in State Gazette
No. 9 31 January 2003).
Since its inauguration the Commission has reviewed
19 complaints, requests for access to personal data and consultations
and has carried out on-the-spot checks in response to complaints
in Blagoevgrad and Russe. The Commission has studied and analysed
the registers kept by the main personal data administratorsthe
ministries and their departments, municipalities, the National
Social Security Institute, banks, insurance companies, etc. The
Commission has also produced and published a registration request
form for personal data administrators. The Commission takes part
in the work of expert groups responsible for drafting legislation
related to personal data protection /eg amendments to the Civil
Registration Act, etc.
The Commission works on an international level,
which is at this stage mainly related to participation in international
conferences and working visits to EU Member States. The main objective
is to establish contacts and exchange experience with counterpart
bodies/commissions in Central and Eastern Europe and in the EU
In addition to the training provided in the
framework of international co-operation, training in European
law is also carried out by the Institute for Public Administration.
A special training programme for Commission staff has been developed.
It covers areas such as trade-oriented practical implementation
of the law, protection of information systems, encryption of information,
personal data acquis and harmonisation of the national legislation,
etc. The training program should commence as of April 2003. Furthermore,
the timetable for regional training seminars for personal data
administrators will be completed by the end of April 2003.
Measures to enhance the logistical support for
the Commission are underway with a view of ensuring effective
performance of its objectives. Those include supply of technical
equipment for 10 workstations, which are to be connected in an
information system, and implementation of additional technical
equipment necessary for the normal functioning of the Commission
and its administration.
The Data Protection Commission's budget for
2003 is 778,557 levs for 76 full-time positions."
Letter from the Chairman to Bob Ainsworth
MP Parliamentary Under Secretary of State Home Office
Thank you for your letter of 27 March on the
above proposals, which Sub-Committee F (Social Affairs, Education
and Home Affairs) considered on 9 April.
We are grateful for your confirmation that notification
of the establishment of the Bulgarian Data Protection Commission
has now been received; and that following the concerns raised
by the UK and other Member States, the Military Police have been
removed from the latest draft of the Europol-Slovak Republic Agreement.
This meets our concerns and we have cleared both documents from
As for the Europol-Eurojust Agreement, your
letter provides a detailed description of the role of Eurojust
in joint investigation teams, though we remain unclear precisely
how Eurojust will work "together" with Europol in this
context. You say this "is likely to develop with experience".
It appears to us that the details of Europol-Eurojust co-operation
have not been fully thought through. We would be grateful if you
could keep us informed on how this aspect of the Agreement is
going to be implemented in practice.
You cite Articles 6(c ) and 7(c ) of the Eurojust
Decision as the authority for Eurojust officials to participate
in joint investigation teams at the request of a Member State.
We accept that this provides general authority for their participation.
But we are surprised that you do not see a need for detailed rules
governing such participation (including rules on the powers and
liability of Eurojust officials) especially when the Europol Convention
contains just such a framework of rules in relation to Europol's
participation . Such a framework is not provided by either the
Eurojust Decision or the current proposal. Article 6(1) of the
latter merely refers to "the legal framework which is in
place at that time". The Committee would be grateful for
confirmation that such a legal framework will be put in place
prior to the entry into force of the proposed Agreement.
The Committee decided to retain the document
under scrutiny pending receipt of the opinions of the Joint Supervisory
9 April 2003