Select Committee on European Union Fifth Report


Danish Presidency proposals

32.  The Protocol originally tabled by the Danish Presidency contained a number of proposals designed to strengthen the role of the European Parliament in scrutinising Europol's work. These included:

·  provision for the annual (non-confidential) reports of both Europol and the Europol Management Board[18] (which produces one general report on Europol's activities during the previous year and another on Europol's future activities) to be sent to the European Parliament for information after they have been approved by the Council,

·  similar provision for the analytical reports of the Joint Supervisory Body to be sent to the European Parliament,

·  a provision that the "Presidency of the Council or its representative and the Director of Europol may appear before the European Parliament (EP) and before any joint committee that may be set up by the European Parliament in co-operation with national parliaments with a view to discussing questions relating to Europol", and

·  an obligation on the Council to consult the European Parliament before measures are adopted on certain specified matters, in accordance with the consultation procedures laid down in the Maastricht Treaty. This applies to measures concerning the processing of personal data, communication of data to third States and other bodies, relations with third bodies and Europol organisational matters.[19]

33.  In the amended draft the third of these proposals has been weakened in so far as it now provides only that the Presidency may be assisted by the Director of Europol; and the reference to a possible joint committee has been removed. We regret these changes: if the European Parliament is to have a role in scrutinising the work of Europol, it should be able to question the Director in his own right rather than only in support of the Presidency.[20] It also needs to be clarified what is meant by "may" in this context. It would be undesirable for the Presidency to be able to refuse a reasonable request from the Parliament to appear before it. We discuss in more detail below the idea of a joint committee.

34.  In general, however, these proposals, particularly the last, would strengthen the role of the European Parliament quite substantially: an amendment by the European Parliament of an initiative in these areas of competence could be rejected only by unanimous decision in the Council. We do not regard the proposals as objectionable in themselves—they represent a significant increase in parliamentary and democratic involvement in Europol's important work—but they raise important issues about the nature of Europol's accountability and the respective roles of the European Parliament and national parliaments.

The role of parliaments

35.  In his evidence to us the Minister said that, while the Government could agree to proposals for informing, and in some areas consulting, the European Parliament about Europol's activities, they could not accept that Europol should be accountable to the European Parliament. In their view Europol's accountability is to the Member States through the Europol Management Board (p 12, Q 54).

36.  We accept that Europol's primary accountability must be to the Member States. They provide its funding, appoint its senior staff, and, through the Management Board, set its priorities. At the same time it is clearly right that an organisation of such importance in the law enforcement field should not be immune from parliamentary scrutiny.

37.  In the United Kingdom the closest parallels to Europol are national policing organisations like NCIS and the National Crime Squad, particularly the former. They are funded by the Government and accountable to them, albeit at arm's length through the Service Authorities. But they may also be called to account by Parliament, usually through the Select Committee system, whether the Commons Home Affairs Committee or the European Scrutiny Committees in both Houses. (We ourselves have taken oral evidence from both organisations not only in this inquiry but also in our previous inquiry on illegal immigration.) Whether this amounts to "accountability" is to some extent a question of semantics, but it certainly represents an ability on the part of Parliament to call on these bodies to provide information and to explain and, where necessary, justify their actions.

38.  We see no objection to an extension of scrutiny of Europol by the European Parliament (provided that the confidentiality of information held by Europol is not thereby compromised) but we are disappointed that similar consideration has not been given to the role of national parliaments. It is anomalous that formal parliamentary oversight of an essentially inter-governmental institution should be confined to the European Parliament.

39.  In February 2002 the European Commission published a Communication to the European Parliament and the Council on Democratic Control over Europol.[21] It made a number of proposals for increased oversight of Europol by the European Parliament, which, with some modifications, have been largely picked up in the draft Protocol.

40.  The Communication also proposed a joint committee of national parliaments and the European Parliament meeting twice a year to scrutinise the work of Europol. Closer contact with Europol would be maintained through a smaller group of members nominated by the joint committee. We are not aware of any precedent for such an arrangement, but, while there was some concern whether it might be an unduly heavy mechanism for oversight of an organisation for which it did not have direct operational responsibility, it would have met the need for the involvement of national parliaments in the work of Europol. The first draft of the Presidency's proposals included a reference to such a committee but it has been withdrawn from the latest proposals. We regret that change. It is particularly disappointing in view of the emphasis that has been placed in the Convention on the Future of Europe on the role of national parliaments in European policy-making. As the Convention Working Group on National Parliaments states in its final report: "an enhanced role for national parliaments would help to strengthen the democratic legitimacy of the Union and bring it closer to the citizens".[22] A joint parliamentary committee would provide a good practicable example of how national parliaments can have a positive input into European decision-making and increase democratic legitimacy. A possible alternative would be for there to be separate arrangements for scrutiny of Europol by national parliaments, but that would be likely to duplicate the work of the European Parliament. We recommend that the Government press for the idea of a joint committee of Members of national parliaments and the European Parliament to be re-instated.

Community funding of Europol

41.  As an inter-governmental institution Europol is, as explained above (paragraph 3), funded by contributions from the Member States according to a "key" determined by their respective GDPs. During our inquiry we received for scrutiny a separate draft Council Decision to establish a legal base for Community funding of Europol, to provide it with additional resources of €5 million in 2002 for certain activities in connection with the fight against terrorism.[23] Because of the important point of principle involved we decided to incorporate it in our inquiry.

42.  Community funding would be a major step towards transforming Europol from an essentially inter-governmental institution into a Community institution, responsible to the Commission and the European Parliament for its funding and in consequence—at least to some extent—for its operations. This particular proposal was presented as an exceptional measure to meet a perceived need by the European Parliament for supplementary funding for Europol. However, it would almost certainly set a precedent for a more general move to Community funding, which in our view would be inconsistent with Europol's inter-governmental status as a Third Pillar body.

43.  We were surprised to learn from the Government's Explanatory Memorandum that their objections to the proposal were mainly on grounds of practicality rather than principle. They were not opposed to Community funding as such but to separate sources of funding, which they believed would be likely to complicate the priority setting process by the Europol Management Board (as did Europol itself (p 52)). This concern was well illustrated by the handling of this proposal itself. According to the Explanatory Memorandum the proposed activities were never discussed by the Europol Management Board, which would not have necessarily regarded them as priorities. The Minister also told us that under the current arrangements additional money could be voted in if a new priority was identified (Q 68).

44.  There are telling practical reasons for resisting the proposal for Community funding of some of Europol's activities, which would also be inconsistent with its status as a Third Pillar body. The Government should resist future attempts to change the basis of Europol's funding.

Europol's future status

45.  We understand that that this funding proposal fell at the end of 2002, but the issues raised by it are still important not least in the context of the Convention on the Future of Europe. In its final report Working Group X "Freedom Security and Justice" recommended replacing existing Third Pillar instruments with First Pillar instruments: under this scheme Conventions would be converted into regulations or directives. The Working Group specifically envisaged that the Europol Convention would be replaced by a regulation, which it saw as solving "the pressing legal problems, which presently make any future development of the Europol legal framework so cumbersome".[24]

46.  The Working Group also recommended the incorporation in the Treaty of a general provision on Europol "which would give the legislator a greater margin to develop Europol's tasks and powers"; and it envisaged the possibility of Europol carrying out investigations.[25] The combination of these recommendations would radically change both the legal basis of Europol's activities and its remit. It remains to be seen what the Convention itself recommends, but to give Europol a broad general base in the Treaty would run counter to our view, explained in Part 2, of the need for a clear and detailed definition of Europol's remit. And, as we recommended above (paragraph 31), any major change in Europol's role in the direction of a major operational role would need to be debated widely. Finally, the Working Group recommended that Europol should be subject to "democratic accountability to the European Parliament and to the Council". [26] While this is unexceptionable in itself, the Working Group seems to see the role of national parliaments as being limited to involvement in the consideration of annual reports, which in our view would not be adequate, nor consistent with the view of the Working Group on National Parliaments quoted in paragraph 40.

18   The Board, which consists of representatives of each Member State, is responsible for supervising Europol's activities. Back

19   Articles 10,18,24,26,28,29,30,31,40,41and 42 of the Europol Convention. Back

20   The European Commission also criticised this proposal on the ground that it did not give the European Parliament a formal right to request the Director's appearance (p 48). Back

21   COM(2002) 95 final. Back

22   Brussels, 22 October 2002, point II.4, p.2. On the other hand in its final report Working Group X ("Freedom, Security and Justice") envisaged involving national parliaments only in the consideration of annual reports on the activities of Europol (see paragraph 46 below). Back

23   Council document 11702/02. The activities to be funded in this way were: establishment of an information network of explosive devices; creation of a communications system for special police operations; creation of an operations centre to support anti-terrorist operations; and development of a European method for analysing terrorist threats. Back

24   Op cit, p 8. Back

25   Op cit, p 18. Back

26   Op cit, p 23. Back

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