EUROPOL: ESTABLISHING THE EUROPEAN POLICE
OFFICE (5055/07)
Letter from the Chairman to Tony McNulty
MP, Minister of State, Home Office
Sub-Committee F (Home Affairs) of the House
of Lords Select Committee on the European Union examined this
proposal at a meeting on 21 February 2007.
The Committee notes that the current debate
on the future of Europol is largely based on the assumption that
the cumbersome legal framework is preventing it fulfilling its
potential. The fact that Protocols signed in 2000, 2002 and 2003
will only come into force in the next two months is evidence of
this. The establishment of Europol as an Agency of the EU is certainly
a welcome move, and will allow Europol to adapt more easily to
changes in the security environment.
However, it is not clear to us why a change
in the legal framework of Europol has to be accompanied by a further
expansion of its mandate and powers. The changes proposed are
significant, in that they have the potential to transorm an entity
set up to assist Member States' investigations by providing high
quality analysis of criminal intelligence into an investigative
and operational agency. The new legal framework also has the consequence
that Europol could develop a major operational role simply as
a result of a succesion of relatively small changes to its remit.
This makes it all the more important that changes in Europol's
mandate and powers are accompanied by enhanced controls.
We examined previous proposals to extend the
mandate of Europol to criminal conduct which is not strictly related
to organised crime, and we had reservations about this. The Government
shared our view this time (see Europol's role in fighting crime,
5th Report of session 2002-03, paragraphs 9-10). You appear
still to be unconvinced that the extension of Europol's remit
to crime which is serious but not organised would be justified.
We would be interested to know why such an expansion of Europol's
remit is being proposed again, and how much support there is from
the other Member States for this.
The proposal defines serious crime by reference
to the same list of offences which obviate the requirement of
dual criminality as a condition for executing a European Arrest
Warrant. The lack of an EU-wide definition of offences such as
"swindling", "sabotage", and "racism
and xenophobia" is likely to cause difficulties in defining
clearly the area of competence of Europol. Since the United Kingdom
has not opted in to the jurisdiction of the Court of Justice under
Article 35 of the EU Treaty, it seems to us that a United Kingdom
court would be unable to resolve any problems in the interpretation
of these expressions by referring the question to the Court of
Justice for a preliminary ruling. We would be grateful for your
views on this.
We believe that any proposal to increase Europol's
investigatory and operational powers should be accompanied by
safeguards to ensure accountability in relation to these new powers.
At the moment the role of the European Parliament is limited,
and most national parliaments do not play any direct role in the
work of Europol. The draft Decision fails to provide any real
enhancement of the European Parliament's oversight of Europol,
since the provision enabling the Director and the Presidency of
the Council to report to the European Parliament simply mirrors
a provision to the same effect in the 2003 Protocol.
We note that proposals for a joint EP-national
parliament mechanism to follow Europol's activites were considered
in the Friends of the Presidency "Options Paper", and
we are aware that the national parliaments are also to be involved
in scrutiny of Europol under the terms of the Constitutional Treaty.
There is no mention in the draft Decision of national parliaments
despite their loss of power to control, through the ratification
process, the development of Europol.
Various national parliaments are pressing for
the idea of a joint committee of members of national parliaments
and the European Parliament, and we did likewise in our report
on Europol's role in fighting crime (paragraph 69). When
that report was debated on 3 June 2003 Lord Bassam of Brighton,
replying for the Government, agreed that national parliamentary
scrutiny of Europol was important; in relation to data protection
he thought national parliaments had a "key role". Is
this still the Home Office view? Will the Government be arguing
for the insertion in the Decision of provisions to this effect?
Finally, we note that the Commons European Scrutiny
Committee have questioned the legality of Article 50 of the draft
Decision, which would extend to the Direcctor and staff of Europol
the Protocol on the Privileges and Immunities of the European
Communities. The Council Legal Service were asked to provide an
opinion on this for a special session of the Europol Working Party
on 14 February. We would be interested to know whether the Legal
Service considered this question, and what the outcome was of
that meeting.
The Committee has decided to keep the document
under scrutiny pending receipt of the information requested. We
would also be glad to have regular reports on the progress of
negotiations.
22 February 2007
Letter from Tony McNulty MP to the Chairman
Thank you for your letter dated 22 February,
which unfortunately was only received in the Home Office on 29
March.
The Europol Working Group, which is discussing
the draft Council Decision article by article, has now met five
times this year. Progress on the discussions has been quite slow
and to date the Working Group has discussed Chapter One twice
and the next four chapters, covering Articles 10-34 (of 62 articles)
just once. Following the Working Group meeting on 3-4 April we
expect the Presidency to issue what it hopes will be the final
draft of Chapter One in the next few weeks, and I will send it
to you when we receive it.
PROGRESS UPDATE
There have been a number of revisions to Chapter
One. Member States have sought to limit to some extent Europol's
involvement in serious crime that is not linked to organised crime.
And other changes have reduced the opportunity for Europol to
take the initiative in operational matters, or to lead Joint Investigation
Teams.
There has been considerable discussion on the
proposed application of the EC Staff Regulations and Community
Funding. The opinion of the Council Legal Service, makes it clear
that the EC Staff Regulation must be applied in its entirety to
an EU Agency that operates under Community Funding. It follows
therefore that Europol could not change its source of funding
from Member State contributions to Community Funding if Member
States could not agree to the provisions of the EC Staff Regulations.
There are still differences of opinion between
the Commission legal officers and Council Legal Service about
the application of privileges and immunities to Europol members
of Joint Investigation Teams, and some concern about Europol's
ability to continue to recruit specialist staff (the so-called
bold posts). It has also been impossible to get the sides to agree
on the cost implications of introducing the EC Staff Regulations,
since different calculation methods were used. That said we are
persuaded by Europol's estimate of a 10% increase in staff costs
per annum (around €4 million) plus as yet un-quantified transition
costs, since this calculation is based on the current payroll
and staff plan. The Commission based its figures on estimates
and made some assumptions about staff grades.
In common with the vast majority of the Member
States represented in the Europol Working Group, the Government
is not persuaded that the introduction of EC Staff Regulations
and Community Financing will bring any operational benefit to
Europol. Indeed we see increased costs and risks associated with
the uncertainty over the bold posts, privileges and immunities
and the operation of Joint Investigation Teams, where none exist
under the existing arrangements.
The Presidency intends to host a workshop for
Article 36 Members early in May, to discuss the issue of EC Staff
Regulations and Community Financing, with a view to getting agreement
on the way forward at the June Council. The Working Group is currently
preparing an options paper for this workshop, the two options
being (i) a Council Decision, Community Financing and EC Staff
Regulations and (ii) a Council Decision, Member State financing
and Europol Staff Rules, with a proposal that the Commission comes
back at some later time with a more considered proposal on financing.
EUROPOL'S
MANDATE
You have asked why the change to Europol's legal
base should be accompanied by getting involved in serious crime
in addition to its core activities involving terrorism and organised
crime. You will be aware that this was a recommendation contained
in the Friends of the Presidency report on the future of Europol
(EUROPOL 40 9184/1/06 19 May 2006), and it has the support of
the vast majority of Member States.
The Government's concern stemmed mainly from
a worry that extending Europol's operational mandate could divert
it from its core business, which we see as being organised crime
and terrorism. However that concern has been assuaged to some
extent by the comments we have heard in the Europol Working Group
that a relatively limited increase is being sought to enable Europol
to provide assistance in only the most serious cases. We now believe
that some relaxation would improve Europol's efficiency and effectiveness.
The Government accepts there are occasions where
Europol's support in the investigation of some "serious crime"
could be very welcome and this takes account that not all serious
crime will have proven links to organised crime or terrorism;
relevant examples include child pornography on the internet, serial
killings and travelling hooligans. We believe that the issue is
less about preventing Europol's involvement in this area, but
more about limiting that involvement.
The Europol Working Group has agreed revised
language in the latest draft of Article 4, which would limit Europol's
involvement in serious crime to cross border criminality (affecting
two or more member States), which involves a common approach in
relation to the scale and significance of the offences.
We will continue to press for further safeguards
to limit Europol's involvement in serious crime, as the discussions
in the Working Group move onto the role of the Management Board,
and ultimately to the proposed list of offences at Annex I of
the draft Council Decision.
LIST OF
OFFENCES—ANNEX
1 OF THE
DRAFT COUNCIL
DECISION
The Government recognises the point you are
making about the Commission's proposal to include the list of
offences used in connection with executing a European Arrest Warrant,
to define Europol's "increased area of competence".
However, and without prejudice to my earlier comment that the
contents of the list have yet to be discussed at the Working Group,
a list of offences would only be intended to provide an indication
of the scope of Europol's involvement and not a test of the definition
of particular crimes.
PARLIAMENTARY OVERSIGHT
In common with most Member States at the Europol
Working Group, the Government was keen to ensure that there was
an appropriate balance of authority between Europol and the Member
States. For instance we had concerns about the proposal that Europol
could co-ordinate operational actions and the possibility that
they could lead Joint Investigation Teams. We believe that proposed
amendments to Chapter 1 of the draft Council Decision, particularly
to Articles 5 and 6 mean that Europol's role will remain largely
supportive.
Taking this into account, and while the Government
is keen to ensure transparency in Europol's activities, we believe
that the extent of parliamentary oversight, while important should
be proportionate. We believe that Europol is already one of the
most regulated bodies in Europe, particularly with regard to data
processing and data protection, and thus far we are broadly satisfied
with the provisions which are emerging from the Working Group
discussions.
PRIVILEGES AND
IMMUNITIES
Finally you asked about the opinion of the Council
Legal Service in regard to Article 50. The Council Legal Service
did issue an opinion on privileges and immunities (EUROPOL 16—6543/07—19
February) but it did not deal with the specific issue of the legality
of Article 50 of the draft Council Decision. The opinion took
issue with Article 50 only in as much as it attempts to exempt
certain members of Europol staff from being covered by the EC
PPI, when under the EC Staff Regulations this is not permissible.
I hope this addresses the points you have made
and I will keep the Committee updated on the progress of discussions
on the draft proposal.
23 April 2007
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