Select Committee on European Union Twenty-Ninth Report


CHAPTER 5: GOVERNANCE AND ACCOUNTABILITY

Governance

124.  The Council of Justice and Home Affairs Ministers, the European Parliament, the Management Board and the Director are all involved in the governance of Europol at various stages and in varying degrees. They share the same high objectives, but their aims and time scales are fundamentally different. The role of the Council is to set the overall priorities which are translated into the five-year programme on Freedom, Security and Justice, which includes provisions specific to Europol. The Parliament is involved only in budgetary issues. The responsibility for the governance of Europol rests primarily with the Management Board and the Director. It is vital that their respective roles should be clearly defined, and so arranged that they can complement and support one another. Currently this is not the case, and under the Decision things will be scarcely better.

125.  Europol is not alone in having such a structure; Frontex, which apart perhaps from Eurojust is the agency most similar to it, also has a Management Board and a Director. But there the similarities end. The Regulation setting up Frontex dates from 2004,[59] and a comparison of the provisions on the Management Board and the Director is instructive. Frontex has been operative for only three years, and it may be that with time defects in its governing structure will appear. The fact remains that during our inquiry into Frontex last year we received no evidence suggesting that the structure was inadequate or ineffective.[60]

126.  Under both the Europol Convention and the Frontex Regulation each Member State appoints one member of the Management Board. The members of the Frontex Management Board must be appointed "on the basis of their degree of high level experience and expertise"; the Europol Convention contains no equivalent provision, and nor does the Decision. Maybe in practice this makes little difference, but in the case of at least some Member States such a provision might ensure that persons of the right calibre are appointed.

127.  The Executive Director of Frontex is appointed by the Management Board for a term of five years, renewable once, and is also dismissible by the Management Board. In the case of Europol the Director is appointed, not by the Management Board, but by the Council for a term of four years, renewable once, and it is also the Council which has the power to dismiss him. This may have the effect that political factors become involved in the appointment. Mr Diaz de Mera was unhappy that the European Parliament's suggestion that it should be involved in the appointment and dismissal of the Director had not been accepted. (Q 270) We do not ourselves regret this; in our view it would have resulted in the appointment being even more overtly political.

THE CHAIRMANSHIP OF THE MANAGEMENT BOARD

128.  It is in the case of the chairmanship of the Management Board that the difference is greatest. The Chairman of the Frontex Management Board is elected by the Board from among its members for a term of two years, renewable once,[61] but in the case of Europol the Chairman is the representative of the Member State holding the Presidency. Inevitably therefore there is a new Chairman every six months.

129.  In its three years of existence Frontex has had one Executive Director who has worked with one Chairman of the Management Board. By contrast, Mr Ratzel told us that in his three and a half years as Director of Europol he had had "eight or nine different heads of the Management Board". By now, under the French Presidency, he will have had yet another. "Some of them came new to the function with the Presidency so they had no background in the Management Board; they had no background in Europol. You can imagine that this is not to the advantage of the organisation … and we have had to learn lessons every time from scratch, both of us, the Chairman of the Management Board and myself and the directorate members."(Q 177)

130.  On 25 June, during the Slovenian Presidency of the EU, we took evidence from the then Chairman of the Management Board, who was of course the Slovene member. Mr Robert Crepinko outlined to us his career in the Slovenian police, beginning as a cadet at the age of 14 and proceeding through rapid promotions to be Deputy Director of the Slovenian Criminal Police, a post he had held since November 2007, i.e. barely two months before he took up the chairmanship of the Management Board. (QQ 294-295) We mean no disrespect to Mr Crepinko, a senior and plainly very able officer, when we question whether a career solely in a national police force, with little or no previous experience of international organisations, is necessarily the best preparation for taking up at short notice the chairmanship of the body responsible for the strategic direction of Europol.

131.  The term of the Chairmanship is the single significant change which the Council Decision will make to the constitution of the Management Board. On 7 November 2007, while the draft Decision was in the course of negotiation, Mr Tony McNulty MP, then the Home Office Minister responsible for policing, wrote to the Chairman of this Committee to say: "… it is largely accepted that the Board would benefit from having a longer term arrangement when appointing a Chair. The six month rotating Presidency arrangement allows little time for the Chair to stamp any authority on either the Board or the Director. It is being proposed that the Chair of the Management Board would serve a term of between 18-24 months …" And in oral evidence to us he agreed that, on one level, four years might be better, but "we are in the rotation world; we are in the sort of demi-world where politics and organisational matters meet … I am not sure that four-year rotations would garner much support in the hallowed ranks of the European Union". (QQ 494, 497)

132.  The result of the negotiations is that we remain in the rotation world. In the form in which it was agreed the draft Decision provides that the Chairman is to be "selected by and from within" the three Member States holding the incoming Presidency and the two succeeding Presidencies. The Board member so selected will hold office during those 18 months for a term which will not of course be renewable. The other members of the Management Board will have no say in who is selected to be Chairman; inevitably there will be competition between the three Member States involved, because two of them will not have what Mr Crepinko called "the possibility of enjoying the pleasure of being the Chairman. (Q 301) There can be no guarantee that the person selected will even be the best qualified of the three candidates: "the prize of Chairman of the Management Board then becomes one which the three presidencies in question have to fight over." (Storr, Q 498)

133.  Mr Storr told us: "… we would have been happy to have had a system in which the Chair was elected for a period of two years from within the Management Board as a whole; in other words, the best or the recommended one out of all the twenty-seven Member States. I think the two­year period would have given greater continuity."(Q 27) This of course, with a renewable two-year term, is the Frontex system.

OUR CONCLUSIONS AND RECOMMENDATIONS

134.  If the aim of those negotiating was to produce the best possible system of governance for Europol, we can only say that they have signally failed. There is no conceivable logical connection between the nationality of the person best qualified to be Chairman of the Management Board and the identity of the Member States holding the troika Presidency; there is no reason why the other members of the Management Board should be excluded from the selection of their Chairman; and the length of three Presidencies should be irrelevant to the term of office.

135.  The new system is held up by some as a considerable improvement. We regard it simply as a missed opportunity.

136.  We recommend that the Decision should be amended before its entry into force to adopt for Europol a system identical to that of Frontex: a Chairman of the Management Board elected by and from among his colleagues for a term of two years, renewable once.

137.  We further recommend that the dates of appointment of the Chairman and Director should be such as to give several months of overlap between their respective terms of office.

THE RELATIONSHIP BETWEEN THE MANAGEMENT BOARD AND THE DIRECTOR

138.  As we have said, a clear delineation of the respective powers and duties of the Management Board and the Director is vital to the proper functioning of Europol. A good professional and personal relationship between them is more likely if their responsibilities are clearly defined. Here too some comparisons with Frontex are pertinent.

139.  The Director is accountable to the Management Board for "his activities" (Frontex) or "in respect of the performance of his duties" (Europol Convention and Decision). We see no significant difference between these formulations. However the Europol Convention and Decision have a further provision: the Management Board "oversees" the Director's performance. The Frontex Regulation has no equivalent to this. It is not clear whether this second provision is simply the corollary of the first, or whether it implies a closer supervision by the Management Board. Whatever the intentions of the draftsman, this seems to be how it is interpreted, and a number of witnesses regretted this.

140.  Mr Storr felt that the Management Board was becoming "a little bit bogged down in the sort of day-to-day detail which in a police force within this country you would expect the chief officer of police to undertake without reference … I would hope that the Board would not get so far down into the weeds as seriously to interfere with the ability of the Director to run an efficient organisation."(QQ 20, 42-43) Both of the SOCA witnesses made the same point, Mr Wainwright concluding that "[the Director] should be allowed to run his organisation as a Chief Executive Officer, running the day-to-day administration of his resources and of the conduct of the operation which Europol are supporting. The Management Board … should not be concerned with the day-to-day running of the organisation but very much with the strategy of Europol, its external relationships, and ensuring budgetary probity and efficiency."(QQ 98-100) And Mr McNulty agreed: "There should be the time, space and discretion for the Director to get on with the job."(Q 490)

141.  Victoria Amici, for the Commission, explained that "what the Commission has proposed in its original proposal to bring Europol into the fold of the EU agencies, is precisely to give it a structure which is similar to that of other agencies … where at least the respective roles of Management Board and Director are more clearly defined … the Management Board should be responsible for the strategic direction of the organisation, for setting objectives and monitoring their implementation, for monitoring progress and keeping an eye on the operation of the Director, whilst the Director should be concerned with the day-to-day management and with delivering the objectives that are set to him."(Q 267)

142.  We do not ourselves see that this would necessarily have followed from the Commission proposal. However the negotiations have resulted in the draft Decision giving the Management Board a new first task: to "adopt a strategy for Europol, which includes benchmarks to measure whether the objectives set have been reached". We believe this is a welcome addition, since it makes clear that the Board's primary duty is strategic.

143.  A less welcome change is a new provision in the Decision that a duty of the Director is "supporting the Chairperson of the Management Board in the preparation of Management Board meetings". This might allow a strong Director with a compliant Chairman to control strategy as well. The Director already has a voice (though not a vote) on the Management Board; that should be enough.

144.  The support for the Chairman should come from a Secretariat which, though inevitably it will be staffed by Europol employees under the control of the Director, must have a sufficient degree of independence to allow it to carry out the requirement of the Decision that it should be "closely and continually involved in organising, coordinating and ensuring the coherence of the Management Board's work". Mr Crepinko thought that the workload of the Secretariat was already very high, but under the new Decision would be even higher. (Q 309) If he is right, the Secretariat will need to be larger than it currently is. Mr McNulty however told us that the Secretariat had not been expanded, precisely so that they would leave the Director to get on with the job. (Q 490)

145.  We agree with Mr Wainwright that "in the end it is going to come down to personal relationships between the Director and members of the Management Board."(Q 99) Mr Storr told us, diplomatically, that relations between the Director and the Board "have not always been entirely plain sailing in the past"; he hoped to see "a better relationship between whoever is Director and whoever is the Management Board Chair."(QQ 43, 491)

146.  There is no guarantee that this will happen even if our recommendations for the Chairmanship of the Management Board are adopted; if they are not adopted, a good personal relationship built up over a period of time will not be possible.

OUR CONCLUSIONS AND RECOMMENDATIONS

147.  It should be made clear in the text of the Decision that the Management Board is responsible for the strategic direction of Europol, and the Director for its performance and administration.

148.  It should also be made clear that the provision that the Board should "oversee the Director's performance" means no more than that he is accountable to the Board for the performance of his duties.

149.  However the Management Board will not be inclined to leave the Director free to run the organisation unless they feel they can trust him to do so efficiently and effectively.

150.  In the end, good governance of Europol depends on having complementary personalities as Director and Chairman of the Management Board. We do not believe it will be possible for them to develop a relationship of mutual respect and trust unless our recommendations on the chairmanship are adopted.

151.  The Chairman of the Management Board needs a supportive Secretariat whose staff must be allowed a sufficient degree of independence to carry out their task. If the Secretariat needs to be larger than at present, it should be enlarged.

Budgetary issues

152.  Of the changes which the new Council Decision will bring about, none will be more significant than those dealing with the budget. At present Europol is funded directly by contributions from the Member States. The United Kingdom's proportion of the contribution averages about 15%.

TABLE 2
United Kingdom Contribution to Europol

 
2002
2003
2004
2005
2006
2007
2008
€m
7.790
9.101
9.240
8.839
7.355
8.393
9.65[62]
% of total
15
16
16
15
12
13
15


Sir Ronnie Flanagan thought that the United Kingdom's contribution in 2008 of €9.65m towards a total budget of €64m "definitely does represent value for money so far as the United Kingdom is concerned." (Q 408)

153.  An audit of the accounts is currently carried out by a Committee of members of the Court of Auditors, but only because the Convention so provides; the Court of Auditors as such has no part to play.

154.  The part played by the European Parliament is currently also insignificant. Mr Diaz de Mera explained that the European Parliament had only very limited control over the last Europol budget. Out of a total budget of €64 million, it had no control over the €44 million spent on staff, €3.2 million on administration costs, €2.4 million for buildings, or €2.5 million for the Management Board; it had power to control only €10.6 million for the information system and €100,000 for the operation unit for chiefs of police. (Q 276)

155.  When Europol becomes an agency in 2010 it will adhere to the financial and budgetary legislative framework applicable to EU institutions and Community bodies, and will have to comply with the rules for the establishment and implementation of the budget at EU level. The annual accounts will be scrutinised by the Court of Auditors and published. (Q 227) The rules include direct control over the budget by the European Parliament. Professor den Boer thought that the decision was "an improvement from the point of view of budgetary control. It makes the control of Europol more democratic, more transparent. It transposes a lot of the responsibility to the European Parliament, which I regard as a significant step forward."(Q 150) We welcome these changes.

Accountability

156.  The Director, as we have said, is accountable to the Management Board for the performance of his activities. The Management Board itself is accountable to no one. The individual members, being nominees of their Member States, can account to them in whatever way they think right, but collectively they have no obligation to appear before the Council or the European Parliament, through their Chairman or otherwise. The annual reports and future work programmes are submitted to the Council, and "forwarded by the Council to the European Parliament for information." The Presidency "may appear before the European Parliament with a view to discuss [sic] general questions relating to Europol", and "may be assisted by the Director" when it does so.[63] That is all.

157.  No wonder then that Professor den Boer, although believing that Europol was the most mature justice and home affairs agency within the area of police and judicial cooperation in criminal matters, thought accountability was "still minimal, certainly when compared with the public institutions in the realm of national governance … In the past we have seen several instances when the European Parliament tended to be bypassed even though it had the right to be informed or consulted, especially in terms of the agreement between Europol and the US on the exchange of strategic data on terrorism."(Q 147)

158.  The performance of Europol can only be measured against criteria decided in advance. The 2007 annual report contains charts showing an increase in the exchange of operational information, from 35,000 exchanges in 2000 to over a quarter of a million in 2007. We have already referred in paragraph 91 to the increase in the number of entries on the EIS from 34,742 in January 2007 to 87,947 in April 2008. These are impressive figures, but they would be more useful in an evaluation of the work of Europol if there was some measure of the value added by its work.

159.  We asked the Minister whether there were key performance indicators that would help judge the performance of Europol on an annual basis. Replying for him, Mr Storr told us that one of the issues which concerned the Home Office during the course of the year was a report by an auditor that identified a number of weaknesses in overall management. He thought they would be looking to the new Director "significantly to try to sharpen up the way in which the performance of Europol and the management information indicating how good was that performance was put together."(Q 508) The report was commissioned by the Director, and we thought it would be useful for us to see it; however Home Office officials have told us that it was still in draft, and still under the control of the Director. At the date of this report it has not been published.

160.  The change to agency status in 2010 will increase accountability in two further ways which we now consider: four-yearly reviews, and accountability to the European Parliament and national parliaments.

FOUR-YEARLY REVIEWS

161.  Most EU agencies are required to commission an independent audit every few years to evaluate how well the agency is carrying out its tasks. There is no such provision under the Convention, since Europol is not yet an agency, but Article 37(11) of the Decision requires the Management Board to commission an independent external evaluation of the implementation of the Decision within four years of its entry into force, and every four years thereafter. The Management Board issues the terms of reference. The report is made to the Management Board, which is required to forward copies to the Parliament, the Council and the Commission.

162.  The Decision contains no further details. In this it contrasts, again adversely, with the Frontex Regulation. Article 33 of that Regulation requires the independent evaluation "to take into account the views of stakeholders at both European and national level". Maybe the body evaluating Europol will also do so, but it will be under no obligation to seek the views of, for example the national security agencies and police forces whose views on the performance of Europol would be illuminating.

163.  The Frontex Management Board, on receiving the results of its evaluation, is required to make recommendations about changes to the Regulation and the working practices of Frontex and to forward them to the Commission, which in turn forwards them to the Council with its own views and proposals, and if necessary an action plan with a timetable. The findings and recommendations of the evaluation are to be made public.

164.  The Europol Decision contains no similar provisions. The Commission told us that they were in the course of conducting an "evaluation of evaluations" for all 26 of the EU agencies. They were already in the course of analysing the differences, and they expected to have the results in 2009 or 2010. (Q 239) This cannot justify the current lack of any provisions which would underpin a serious evaluation. Maybe it has been assumed that the same procedures will be followed as are required to be followed in the case of Frontex; if so, we believe this is an unsafe assumption to make.

165.  If a full and independent evaluation of the work of Europol is to take place only every four years, the Decision should give guidance as to how the evaluation is to be carried out, and what is to be its outcome. We would like to see the Decision amended in line with the Frontex Regulation.

166.  Whether or not the Decision is amended, it should be clearly understood that the independent evaluation must take fully into account the views of stakeholders, and that the Management Board and the Commission both have parts to play to ensure that any shortcomings shown up by the evaluation are put right within a reasonable time.

167.  In the end, any organisation will function well only if its staff can work together as one unit in an atmosphere of mutual confidence and trust. We hope that the evaluation will pay particular attention to this issue.

DEMOCRATIC ACCOUNTABILITY

168.  Recital (20) of the Decision reads: "It is also desirable to provide for enhanced control over Europol by the European Parliament in order to ensure that Europol remains a fully accountable and transparent organisation". Aside from the budget, the only provision on these lines is Article 48, requiring the Presidency, the Chairman of the Management Board and the Director to appear before the European Parliament when so requested. The "enhanced control" seems to arise from the fact that under the Convention it is merely permissive for the Presidency and Director to appear before the Parliament.

169.  Not surprisingly, some of our witnesses regarded this as inadequate. Professor den Boer thought that "democratic accountability … could still be improved to the extent that the European Parliament were fully responsible for the democratic control of Europol in combination (and I emphasise 'in combination') with the national parliaments."(Q 149) Professor Juliet Lodge from the University of Leeds also stressed the role of national Parliaments: "I think the parliaments, the national parliaments in particular … need to become more proactive in stating what they want before technology is adopted … I think there is a role also for national parliaments in being very vigilant in defining the objectives and the competences of Europol … In addition to that, the national parliaments might want to have some oversight over the output from joint investigation teams …"(Q 126)

170.  At the time the Decision was agreed, it was assumed that the Treaty of Lisbon would have been in force for a year before Europol became an agency. Had that been the case, then as we explained in paragraph 24, Article 88 of the TFEU would have required the European Parliament and the Council to adopt regulations which, among other things, "shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments."

171.  Article 85 of the TFEU has a similar but not identical provision for Eurojust. It reads: "These regulations shall also determine arrangements for involving the European Parliament and national Parliaments in the evaluation of Eurojust's activities." In the case of Eurojust the national parliaments are placed on a more equal footing with the European Parliament, and are "involved in the evaluation" of Eurojust's activities, as opposed to "scrutinising" Europol's. There are differences in other language texts. A deliberately different text normally suggests that a different meaning is intended, but it is not clear what that difference might be in practice.

172.  What seems clear is that in the case of Europol it was to have been for the European Parliament to take the initiative. What remains unclear is whether, in the absence of a formal legal base, there will be any part for the European Parliament and national parliaments to play. Clearly there is no way in which the Parliament and Council can adopt a Regulation to lay down the procedures; but we see no reason why the Parliament should not adopt its own procedures, and invite national parliaments to play a role.

173.  In our last report on Europol,[64] looking at the proposals of the Danish Presidency which were the basis of the Danish Protocol, we noted that in February 2002 the Commission had published a Communication on Democratic Control over Europol[65] which proposed a joint committee of the European Parliament and national parliaments meeting twice a year to scrutinise the work of Europol. The Danish Presidency adopted this suggestion in the first draft of the Protocol, but it was withdrawn from subsequent drafts. We thought this a pity, and recommended that the Government should press for the idea of a joint committee to be reinstated.[66] We do not repeat that recommendation today; a committee which might have been merely cumbersome when there were only 15 Member States would surely be almost unworkable with 27.

174.  It must be for the European Parliament to decide whether it wishes to adopt, in the spirit of the Treaty of Lisbon, a formal procedure for the scrutiny of Europol's activities, and whether, and if so how, to involve the national parliaments of the Member States. We hope however that the Parliament will give this serious consideration.

175.  The change in Europol's status which will be brought about in 2010 will not of course in any way affect the ability of this Parliament, through its Select Committees, to continue to hold the Government to account for their part in the activities of Europol.


59   Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Cooperation, OJ L 349 of 26 October 2004, p.1.  Back

60   FRONTEX: the EU external borders agency (9th Report, Session 2007-08, HL Paper 60). Back

61   In the case of Eurojust the President of the College is the equivalent of the Chairman of the Management Board. He is elected by the College from among its members for a term of three years, renewable once. Back

62   This table is taken from the evidence submitted by SOCA in April 2008 (p 25), so that the figure for 2008 is what was then anticipated. The United Kingdom contribution for 2008 was in fact €9.34m. Back

63   Europol Convention, Articles 28(10) and 34(2), as substituted respectively by Articles 14(f) and 18 of the Danish Protocol. Back

64   Europol's Role in Fighting Crime (5th report, Session 2002-03, HL Paper 43) Back

65   COM(2002)95 final. Back

66   Report, paragraph 40. Back


 
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