House of Lords - European Union - Twenty-Ninth Report

Select Committee on European Union Twenty-Ninth Report

CHAPTER 2: THE EVOLVING CONSTITUTION

9. The first high level suggestion that the Member States of the European Union had a common interest in the fight against serious crime was an initiative of the German Chancellor Helmut Kohl at the Luxemburg European Council in June 1991. He suggested that one of the aims of the Inter-Governmental Conference in Maastricht in December that year should be to have Treaty commitments on the fight against drug trafficking and organised crime. The minutes record that "The European Council noted with interest the practical proposals submitted by the German delegation,[9] which supplement the work already carried out in this area. The European Council agreed on the objectives underlying these proposals and instructed the Conference to examine them further with a view to revision of the Union Treaty".

10. Under the heading DRUGS the minutes continue: "Regarding the fight against international drug trafficking and organized crime, the European Council has agreed on the objectives underlying the German delegation's proposals … and requests the Ministers with responsibility for drugs matters to submit proposals before the European Council's next meeting in Maastricht."

11. As a result, when the Maastricht Treaty was signed on 7 February 1992 it included in the new Title VI a provision, Article K1(9), that Member States should regard as a matter of common interest "police cooperation for the purposes of preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime, including if necessary certain aspects of customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European Police Office (Europol)."

12. This provision recorded the agreement of the—then twelve—Member States on the setting up of a European Police Office, but it was not a legal basis for establishing such an Office. Article K3(2) required the Council to draw up a Convention and recommend it to the Member States for adoption. The negotiations resulted in the signature on 26 July 1995 of a Convention on the Establishment of a European Police Office—the Europol Convention.[10] This was a document which gave great prominence to easing the exchange of information and to the provision of analysis in support of criminal investigation. But by then there were fifteen Member States whose ratification of the Convention was needed before it could come into force. The ratifications were slow in coming and Belgium, the last State to ratify, did not do so until June 1998. In accordance with Article 45(3) of the Convention, it entered into force on 1 October 1998.[11] Europol began operations from its headquarters in The Hague on 1 July 1999, at which point it also took over the work of a European Drugs Unit which since 1994 had been in operation without any formal constitution or powers.

13. The Convention is still the instrument governing the constitution of Europol and its work; but, as we record below, it has been significantly amended. In little more than a year it will be replaced by the Council Decision. In the course of this report we consider the changes which this will make to the constitution of Europol and to its work.

The disadvantages of a Convention

14. The Convention, like any other treaty, can only be amended either in accordance with its own provisions, or by another treaty, and therein has lain the problem. An Annex to the Convention contains a list of the crimes to which the Convention can apply, and definitions of them; and Article 43(3) allows the Council to amend them. There has been a Council Decision amending the definition of "traffic in human beings" to include child pornography.[12] However this is the only form of change which the Convention itself has allowed the Council to make. Other and more substantial changes have needed an amendment to the Convention by further Protocols, each of them, like the Convention, subject to ratification by all the Member States which were signatories.[13]

15. In November 2000 a Protocol was signed adding money-laundering to the list of crimes,[14] and two years later a further Protocol was signed allowing Europol staff to participate in Joint Investigation Teams, something we consider in paragraphs 109 to 112.[15] In July 2002 the Danish Presidency published proposals for a much more substantial Protocol,[16] extending Europol's remit, streamlining its methods of operation, and completely re-writing the nature of the crimes within Europol's competence (and hence superseding the first of these Protocols). This third Protocol—the Danish Protocol—also gives Europol wider access to personal data, and facilitates data transfers to third countries. The Protocol was signed in November 2003,[17] but over three more years were to elapse before any of these Protocols was ratified. It is hard to know why Member States troubled to ratify the first at all. However it duly came into force on 29 March 2007, to be superseded less than three weeks later when the 2003 Protocol came into force on 18 April 2007, nearly five years after the original Danish proposals.

16. These problems arose because, as we have explained in paragraph 11, at the time Europol was set up there was no Treaty base allowing it to be established otherwise than by a Convention between the Member States. No problem would have arisen after the entry into force on 1 May 1999 of the Treaty of Amsterdam, since this completely re-wrote Title VI of the Treaty on European Union, adding a new Article 30(2) which not merely allowed but required the Council to take major steps in the development of Europol, in particular to support investigation in "specific" cases.

BOX 2
Article 30 (2) of the Treaty on European Union

The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:

(a)  enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;

(b)  adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;

(c)  promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;

(d)  establish a research, documentation and statistical network on cross-border crime.

17. Paragraph (c) of Article 30(2) is significant. This is the long-awaited coalescence of law enforcement and justice in the fight against serious crime, which ultimately led to the partnership with Eurojust which we describe in Chapter 6. The contrast between the creation of Europol and Eurojust is instructive. Although the idea of an EU judicial cooperation unit was first suggested by what is now the Article 36 Committee[18] in 1996, it was only after the entry into force of the Treaty of Amsterdam that a decision was taken at the European Council at Tampere in 1999 to set up a body with the task of coordinating the activities of national prosecuting authorities and supporting criminal investigations in organised crime. Eurojust therefore could be, and was, set up by a Council Decision;[19] this Decision could be amended by the Council in the same way, and indeed the budgetary provisions were amended barely a year later by a further Council Decision.[20] Eurojust has therefore suffered none of the problems of being established by a Convention which have afflicted Europol from the outset.

The Council Decision

18. In February 2006 the Austrian Presidency set up a "Friends of the Presidency" Group to discuss the future of Europol. When the Group reported in May 2006 it complained that because of Europol's legal basis "changing provisions of even minor importance has proven to last five years and longer. Particularly in comparison to younger institutions like Eurojust or CEPOL this becomes an obvious and unnecessary disadvantage … A delay of more than five years for putting a minor change to Europol's mandate into effect is clearly not tolerable."[21] Of the 76 changes to Europol's constitution and functions suggested by the Group, nearly half would have required amendment of the Convention.

19. This report was discussed on 1-2 June 2006 by the JHA Council, which concluded that work should begin on considering whether and how to replace the Europol Convention by a Council Decision. On 5 January 2007 the Commission brought out a Proposal for a Council Decision establishing the European Police Office.[22] Negotiations on the proposal lasted a year, but a political agreement was reached on 18 April 2008. This Committee indicated to the Minister that his agreement on behalf of the United Kingdom need not be withheld despite the fact that the Decision was being kept under scrutiny during the currency of our inquiry. As we have said, the Decision is expected to be adopted later in November 2008 and will enter into force on 1 January 2010—two years after the date optimistically suggested by the Council in June 2006, but well before any amendment to the Convention would have had a chance of entering into force.

20. Peter Storr, the International Director at the Home Office who is also the United Kingdom member of the Article 36 Committee, told us that the United Kingdom was a member of the Friends of the Presidency Group, and thought that "the way in which Europol was originally structured was inflexible and rather bureaucratic. It meant that if there were new developments, new crime trends and new mandates for Europol, it became a rather cumbersome process for Europol to be able to change its priorities in order to take these on board." The United Kingdom was "very supportive of the idea of changing the constitutional arrangements for Europol to the present Council Decision". (Q 20)

21. Mr Storr added a note of caution. "I would not want to over-sell the Council Decision but the changes I think are changes in the right direction. They are modest changes and they reflect the fact that there are different approaches among Member States as to how Europol should be run and governed." (Q 37) We think his caution is justified, since the changes are indeed modest—in our view, too modest. The transition from the Convention to the Decision was an opportunity for making important changes to the constitution and working of Europol. The changes that were made are for the most part in the right direction, but in this report we explain where we believe opportunities were missed.

22. Because amendment of a Decision is not subject to the legal formality of ratification, we hope that those of our recommendations which require amendment of the Council Decision will meet with the approval of all the Member States, and can be made so that they enter into force, if not with the entry into force of the Decision on 1 January 2010, then soon after.

What Lisbon might do

23. One reason the Member States were anxious to adopt the Decision before the end of 2008 was that, when the Decision was agreed in April 2008, it was thought certain that the Treaty of Lisbon would be ratified and would come into force on 1 January 2009. The Council Decision is currently a third pillar instrument, adopted by unanimity of the Member States and requiring only consultation of the European Parliament. If the Decision had not been adopted by the end of this year, the merging of the first and third pillars meant that adoption of the Decision would have required co-decision of the Council and the Parliament. Although the Treaty of Lisbon does not include transitional provisions showing exactly what would happen to proposals made and agreed but not adopted before its entry into force, the involvement of the Parliament at that stage would certainly have delayed matters, and might have required amendment of the draft Decision.

24. The other consequence of the entry into force of the Lisbon Treaty would be the application of Article 88 of the Treaty on the Functioning on the European Union (TFEU). This Article reads:[23]

BOX 3
TFEU Article 88

1.  Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.

2.  The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:

(a)  the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;

(b)  the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.

These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.

3.  Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities

Thus the TFEU would give Europol a remit differently expressed and in some respects wider than the Decision. We consider Europol's mandate in detail in the following chapter. The TFEU would also introduce a provision on accountability to the European Parliament and national Parliaments, something we deal with in Chapter 5.

The Future Group

25. In January 2007, at the outset of the German Presidency, the German Minister of the Interior, Dr Wolfgang Schaüble, convened an informal JHA Council in Dresden. One of the purposes was "the creation of an informal Group at ministerial level with the objective to consider the future of the European area of justice, freedom and security". The members of the Group, which became known as the Future Group, were ministers from what were then the two current trios of Presidencies (Germany, Portugal, Slovenia; France, Czech Republic, Sweden); a representative of the future Presidency trio (Spain, Belgium and Hungary); and an observer from the United Kingdom, representing the common law countries.

26. The Group reported in June 2008,[24] and a significant part of their report is devoted to Europol.[25] They summarised their conclusions on Europol as follows:

BOX 4
Future Group: Extract from the Executive Summary

Europol is to function as close partner and focal point for national police forces at the European level. Improving data transfers from Member States to Europol is necessary if it is to become a genuine information platform for Member States. The requirement of the so-called "Swedish" framework decision of 18 December 2006,[26] aiming at better information sharing, could be fulfilled by means of creating automatic data transfer instruments. Furthermore, Europol should be, within its legal framework, increasingly used and expanded into a competence centre for technical and coordinative support.

27. The proposals of the Future Group show that some of the Member States most supportive of Europol are themselves already considering amendments to the Decision. This confirms us in our view that it is realistic for us to make recommendations which, to be implemented, would also require amendment of the Decision.

Interpol and SitCen

28. We mentioned at the start of the report that Europol is sometimes assumed to be a European police force. It is also often confused in the mind of the public, and indeed in the mind of the police, with Interpol.

BOX 5
Interpol

Interpol, based in Lyon, is a world-wide international police organisation divided into global regions, of which Europe is one. It was created in 1923, and now has 187 member countries. Interpol facilitates cross-border police cooperation, and supports and assists all organisations, authorities and services whose mission is to prevent or combat international crime. Interpol and Europol share an interest in categories of crime such as terrorism, drugs and organised crime, trafficking in human beings and financial and high-tech crime. In addition, Interpol supports law enforcement officials in the field with emergency support and operational activities, especially in its priority crime areas, pursuit of fugitives, and assuring public safety.

Interpol's databases include data on criminals such as names, fingerprints and DNA profiles, and stolen property such as passports, vehicles and works of art; this information relates to crimes which have already taken place, and the data are often placed on the databases as a result of legal proceedings which require the identification of criminals or the return of stolen property.

In the event of a disaster or major crime, Interpol can dispatch response teams of officers to the scene to help deal with the crisis. Major events support teams can also help member countries with the policing of high profile conferences or sporting events.[27] Europol has no equivalent power.

We discuss in Chapter 6 the relationship between Europol and Interpol.

29. The Council Decision setting up Europol is based on the third pillar of the Treaty on European Union (Justice and Home Affairs). Under the second pillar (Common Foreign and Security Policy) there is a Situation Centre (SitCen) which was established under the aegis of the Council Secretariat in Brussels to undertake a common assessment of particularly critical issues in relation to the Union's foreign policy. The European Council agreed that from January 2005 a counter-terrorism group should be established within SitCen. We explain in paragraph 122 why we believe that SitCen is better adapted than Europol to the exchange of intelligence between security agencies.[28]

9 The initiative is summarised as follows in the Council minutes: "Treaty commitment to full establishment of a Central European Criminal Investigation Office ("Europol") for these areas by 31.12.1993 at the latest. Details to be laid down by unanimous decision of the Council. Gradual development of Europol functions: first of all relay station for exchange of information and experience (up to 31.12.1992), then in the second phase powers to act also within the Member States would be granted. Rights of initiative for the Commission and also for individual Member States." Back

10 OJ C316 of 27.11.1995, p. 2. Back

11 At the same time there entered into force a Protocol on the interpretation of the Convention by the Court of Justice, and a second Protocol on the privileges and immunities of Europol and its staff (Protocol of 24 July 1996 on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office (OJ C 299 of 9.10.1996, p. 2), and Protocol of 19 June 1997 on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol (OJ C 221 of 19.7.1997, p. 2)). Back

12 Council Decision of 3 December 1998 supplementing the definition of the form of crime "traffic in human beings" of the Convention on the establishment of a European Police Office (Europol Convention) (OJ C 26 of 30.01.1999, p. 21). Back

13 For the accession to the Europol Convention of the 12 Member States which have joined the EU subsequently, no ratification has been necessary beyond that needed for the respective Treaties of Accession. The ten new Member States which acceded in May 2004 undertook in their Act of Accession to accede to the Europol Convention, and there was no further ratification requirement. Seven of those States acceded on 1 September 2004, Malta and Poland by the end of the year, and Estonia on 1 July 2005. Bulgaria and Romania acceded to the Europol Convention on 1 August 2007 in accordance with Article 3(3) of their Act of Accession and the Council Decision adopted under Article 3(4). Back

14 Protocol of 30 November 2000, drawn up on the basis of Article 43(1) of the Convention on the establishment of a European Police Office (Europol Convention) amending Article 2 and the Annex to that Convention (OJ C 358 of 13.12.2000, p. 2). Back