House of Lords - The UK opt-in to the Europol Regulation

The UK opt-in to the Europol Regulation - European Union Committee Contents

The UK opt-in to the Europol Regulation

Introduction

1. On 27 March 2013 the Commission published a proposal for a Regulation on the European Police Office (Europol).[1] This proposal will only apply to the UK if, within three months of its transmission to the Council by the Commission, which took place formally on 30 April 2013, the Government notify the Council that they wish to take part in its adoption and application—in other words, opt in to it.[2] In this report, prepared by the Home Affairs, Health and Education Sub-Committee,[3] we consider whether the Government should do so. The Government must make this decision by 30 July 2013.

2. On 20 January 2011 the Rt Hon David Lidington MP, the Minister for Europe, made a written statement on behalf of the Coalition Government in which he said "The Government will continue to honour the arrangements that are currently in place following the undertakings of the then Government Minister, Baroness Ashton, for enhanced Parliamentary scrutiny of JHA[4] opt-in decisions".[5] Those undertakings commit the Government to taking into account the views of this Committee on whether the UK should opt in to a proposal and, where those views take the form of a report to the House, to making time for that report to be debated and, if necessary, voted on before the opt-in deadline.

Europol

3. Europol is the EU's law enforcement agency, which aims to achieve a more secure Europe by supporting Member States in their fight against serious organised crime and terrorism, which affects two or more Member States. It was originally established as an intergovernmental body in 1995 and became operational in 1999. It is currently constituted on the basis of a Council Decision adopted in 2009, which entered into force on 1 January 2010 and which re-established Europol as an EU agency funded through the EU budget.[6] A draft of this measure was the subject of a report by this Committee in 2008.[7]

4. Europol has no executive or coercive powers to conduct investigations or make arrests in the Member States and the proposed Regulation does not change this. Europol supports the work of Member States' law enforcement authorities by gathering, analysing and sharing information and coordinating operations. It has developed expertise in tackling cross-border drug trafficking, money laundering, fraud, cybercrime, human trafficking, and the forgery of money (including euro counterfeiting), among other offences. Approximately 800 staff work at its headquarters in The Hague, the Netherlands. It works closely with law enforcement agencies in the Member States, and in non-EU partner states such as Australia, Canada, the USA and Norway, through the secondment of approximately 145 Europol Liaison Officers (ELO) to Europol's headquarters. Europol's aim is to facilitate fast and effective cooperation based upon personal contact and mutual trust both between the participating states and beyond their frontiers.

5. Europol facilitates cooperation through the production of regular assessments offering comprehensive and forward-looking analysis. These include the European Organised Crime Threat Assessment (OCTA), which profiles the structure and operation of organised crime groups, and the main types of organised crime affecting the EU, and the annual EU Terrorism Situation and Trend Report (TE-SAT), which provides a detailed account of the state of the terrorist challenge across the EU. Operationally, Europol also deals with more than 9,000 cases a year, providing analytical support through subject-focused analysis work files (AWFs) and encouraging the establishment of cross-border Joint Investigation Teams (JITs). Data sharing between Member States is facilitated by the Europol Information System (EIS), which allows national law enforcement authorities to upload information to it, to which other authorities have access.

EUROPEAN CYBERCRIME CENTRE (EC3)

6. At the end of 2010 the Commission announced its intention to establish a European Cybercrime Centre, within existing EU structures, as part of its EU Internal Security Strategy.[8] In its 2011 report on this Strategy, the Committee welcomed the establishment of such a Centre and stated that it should be established within Europol and that additional resources and funding would be needed in order for it to achieve its key aims.[9] While the Government also supported the establishment of the Centre within Europol, they considered that it should be funded from within Europol's existing budget.[10] The Centre, or EC3 as it became known, was officially opened on 11 January 2013 and is expected to become fully operational in 2015. It is charged with assisting Member States in their efforts to detect, disrupt and dismantle cyber crime networks and will develop tools to that end and provide training. The possible development of further specialist centres is foreseen in the current draft Regulation, which the Government have concerns about because of the budgetary implications.[11]

CEPOL

7. The European Police College (CEPOL, from the French name: Collège européen de police) brings together senior police officers from across the EU and aims to encourage cross-border cooperation in the fight against crime, and the maintenance of public security and law and order, through training and exchange programmes and the sharing of research and best practice. It was established as an EU agency in 2005 by a Council Decision, which entered into force on 1 January 2006.[12] It is currently based at Bramshill in the UK, alongside the English and Welsh College of Policing, although the Government have announced their intention to close the Bramshill site which will require the agency to relocate by March 2014.[13]

The draft Europol Regulation

8. Under the pre-Lisbon Title VI of the Treaty on European Union, Council Decisions were adopted by unanimity in the Council, with a limited role for the European Parliament, so the question of an opt-in did not arise—as the UK could block a proposal if it did not support it. The new legal bases of the current draft Regulation are Article 87(2)(b) and Article 88 of the Treaty on the Functioning of the European Union (TFEU), which provide for measures for both agencies. The proposal aims to repeal and replace the earlier Europol and CEPOL Council Decisions.

9. Crucially, because it is based on Title V, Part Three, TFEU, this proposal will, unlike the earlier measures, apply to the UK only if the Government decide to opt in to it; a decision they are required to make within a period of three months from the proposal's publication. The proposal will be adopted through the ordinary legislative procedure (formerly called co-decision) by the European Parliament and by a qualified majority vote in the Council. Unlike the two Council Decisions that it intends to replace the proposal, once adopted, will be subject to the jurisdiction of the Court of Justice of the European Union (CJEU) and the Commission's enforcement powers.

10. The main changes proposed in the draft Regulation can be summarised as follows:

· To strengthen and clarify the obligation for Member States to supply data to Europol so that it can become an EU hub for information exchange and analysis on serious crime, with Europol producing annual reports on the quantity and quality of the data supplied by Member States. Incentives may be provided to law enforcement agencies to do so through the provision of financial support to cross-border investigations.

· To enable Europol to establish links between data already in its possession and analyse this more effectively by redesigning the agency's data processing structure, which will also allow it to adapt to and accommodate future developments. The rights of individuals affected by data processing by Europol will be strengthened and the European Data Protection Supervisor will be given responsibility for external data protection supervision of Europol in place of the existing Joint Supervisory Board (a body comprised of representatives of Member States' independent data protection authorities) which will be abolished.

· To merge Europol and CEPOL into a single EU agency housed in Europol's existing headquarters in The Hague; to strengthen and combine the operational law enforcement functions with the training and education functions of both agencies; and reduce duplication and make estimated efficiency savings of €17.2 million during the 2015-2020 period, including staff costs, which could be reallocated to core operational and training functions, including the operation of EC3 and the implementation of the proposed European Law Enforcement Training Scheme.[14] A new department of Europol called the Europol Academy would assume the functions of CEPOL and a Scientific Committee for Training would be established to advise the Europol Management Board on technical training issues. A new deputy director for training would be appointed.

· To increase parliamentary scrutiny of Europol by the European Parliament and national Parliaments by consulting them on Europol's strategic multiannual work programme and providing them with annual activity reports, accounts, threat assessments, strategic analyses and general situation reports. In addition, the European Parliament will be responsible for discharging the implementation of the Europol budget and may also invite future candidates for Director or Deputy Director to appear before the Civil Liberties, Justice and Homes Affairs (LIBE) Committee for a hearing. At present the European Parliament can request the Chairman of the Europol Management Board and the Executive Director of CEPOL to appear before it. The proposal preserves this right but explicitly provides that it has to be exercised jointly with national parliaments.

The position of the Committee and the Government on the proposal

THE SUPPLY OF DATA TO EUROPOL

11. We have expressed concerns in two of our previous reports about the limited sharing of information by Member States' law enforcement agencies with Europol, as well as the limited use of Europol databases, by some Member States. We therefore welcome the draft Regulation's intention to improve the supply of data to Europol.[15] The Government have expressed concerns about what they consider to be the "wider obligations on Member States to provide data to Europol" in the proposal. They note that the words "on their own initiative" have been removed from the existing obligation on Member States to share data with Europol contained in the existing Council Decision and that the words "without delay" have also been added to the new version of this obligation. They also express concerns about the feasibility of an additional requirement on Member States to copy any bilateral information exchanges between them to Europol. While they agree that Member States should be encouraged to share information with Europol, they believe that this should continue to be on a voluntary basis, and therefore support the preservation of the existing wording in this regard.[16] We believe the Government's concerns about the obligations placed on Member States to supply data to Europol should be pursued in negotiations on the draft Regulation.

DATA PROTECTION

12. We also welcome the proposal's provisions to improve the analysis of Europol data, including checking that information for cross-references, on which we have also commented in the past.[17] As the data protection standards in the existing Europol Decision have caused us concern[18] we welcome the provisions to strengthen Europol's data protection regime in the proposal. However, we agree with the Government's view that the data protection provisions in the proposal, which reflect to a degree the provisions in the draft Data Protection Directive, which is still under negotiation in the Council, will remain unclear until the latter proposal has been adopted.[19] The House debated this Directive on 20 June 2012 and endorsed the Government's decision to participate in this proposal.[20] We also note the Government's concerns about the abolition of Europol's existing Joint Supervisory Board, particularly because of the significant expertise that this body has built up over time.[21] We hope the Government will seek to ensure in the negotiations that the data protection provisions in the draft Europol Regulation correspond to the provisions of the draft Data Protection Directive as much as possible.

MERGER OF EUROPOL AND CEPOL

13. In recent evidence to the Committee the Director of Europol, Rob Wainwright, expressed concerns about the proposed merger of Europol and CEPOL, primarily because of the resource implications. He also suggested that the LIBE Committee might not be supportive of such a move.[22] Dr Ferenc Banfi, the Director of CEPOL, also wrote to us to indicate the agency's opposition to the proposed merger. This letter is reproduced in Appendix 2. While the Government supports the relocation of CEPOL "in principle" they have concerns that the proposed merger could see training priorities losing out to operational priorities in the long-term. The Government are also sceptical about the Commission's estimate of the degree of savings that could be achieved through the merger.[23]

14. The potential merger of EU agencies is anticipated in a Joint Statement on decentralised agencies, which was endorsed by the European Parliament, Council and the Commission. It states that "merging agencies should be considered in cases where their respective tasks are overlapping, where synergies can be contemplated or when agencies would be more efficient if inserted in a bigger structure".[24] However, we note that in June 2012 the Commission presented a paper to the Council Standing Committee on Operational Cooperation on Internal Security (COSI), which stated that a merger of Europol and CEPOL risked "diluting training under the politically more eye catching pressures of operational law enforcement".[25] While we accept in general the possible merger of EU agencies we consider that the Commission has not yet made a convincing case for the merger of Europol and CEPOL in terms of reducing duplication, achieving efficiency savings and increasing effectiveness. We would welcome further information from the Government as to why, despite their misgivings about the proposed merger, they appear to be unconcerned about the possible relocation of CEPOL to The Hague.

SCRUTINY AND ACCOUNTABILITY

15. At the end of 2010, the Commission published a Communication on the procedures for the scrutiny of Europol's activities (but not the operational aspects) by the European Parliament together with national parliaments.[26] We wrote to the President of the European Parliament on 3 March 2011 regarding this Communication to support the establishment of such an arrangement but making clear our preference for this to be achieved by building on existing bodies[27] rather than through the establishment of new ones.[28] We therefore welcome the provisions in the draft Regulation to increase scrutiny of Europol and its accountability to the European Parliament and national parliaments. Since Rob Wainwright became Director in April 2009 our inquiry work has benefited from his willingness to engage fully with the Committee and we expect that this relationship with Europol will continue in the future.[29] We note the Government are cautious about the potential disclosure of classified information to such a forum and that they will seek assurances in this respect during the negotiations.[30]

GOVERNANCE STRUCTURE

16. The proposal largely maintains Europol's existing governance structure. In the past we have recommended that the Chair of the Europol Management Board should be decoupled from the rotating EU Presidency and that all members of the Board should be eligible to elect the Chair, for a longer period than one and a half years, renewable once.[31] We are pleased to note that this approach is reflected in Article 16 of the proposal and note that the Government are also supportive of this provision.

The UK's 2014 opt-out decision

17. Under Protocol 36 to the EU Treaties, the Government must decide whether or not the UK should continue to be bound by around 130 EU police and criminal justice (PCJ) measures, which were adopted before the Treaty of Lisbon entered into force in 2009, or whether it should exercise its right to opt out of them all. That decision must be made at the latest by 31 May 2014. If the Government decide to exercise the opt-out then it may seek to rejoin any of the measures, subject to the conditions set out in the Protocol. On 15 October 2012, the Home Secretary said the Government's "current thinking" was that the UK should opt out of all the pre-Lisbon measures and negotiate to rejoin individual measures where that is in the national interest. We published a comprehensive report on the opt-out decision on 23 April 2013, which concluded, among other things, that the Government had not made a convincing case to exercise the opt-out.[32] We draw on some of its content below.

18. Our witnesses for that inquiry were generally very positive about Europol's role[33] and when we took evidence from Rob Wainwright on 29 January 2013 he set out what were, in his view, the significant benefits that UK police and law enforcement agencies currently enjoyed through their participation in Europol, as well as the potentially negative consequences of withdrawing from it for those agencies. The benefits included access to Europol's information, analysis, intelligence and support, as well as the efficient and cost-effective arrangement of having access to 40 countries[34] in one place rather than cooperating through a network of bilateral arrangements. The negative consequences of withdrawal from Europol included the risk of serious crimes not being detected or prevented in the UK, as well increased risks to public safety as a result.[35] He also emphasised that approximately 50 per cent of Europol's operational casework involved the UK. We agreed with the Director and the other witnesses' view about the benefits provided by Europol and recommended that the UK should continue participating in the agency whether or not the opt-out was exercised.[36] If the Government were to opt in to the current Europol proposal we urged them to take care to avoid any gaps developing between the opt-out, if it is exercised, taking effect on 1 December 2014 and the new proposal entering into force, which may not necessarily be realised before this date.[37]

19. When we took evidence from the Rt Hon Theresa May MP, the Home Secretary, on 13 February 2013, she praised the work of Europol and suggested that the UK's continued involvement in Europol would be determined separately from the opt-out decision saying "I do not believe Europol … will be in the list".[38]

20. If the Government were to exercise their right to opt in to the proposal, and it took effect before December 2014, then the two Council Decisions that the proposal would replace would no longer fall within the scope of the opt-out decision. However there are four other Council Decisions which may not be repealed and replaced by the current Europol proposal and which Europol told us are "directly connected" with the Europol Council Decision and, presumably, will continue to be connected to the European Regulation, once adopted.[39] Article 78 of the proposal says that "All legislative measures implementing the [Europol and CEPOL Council] Decisions … are repealed with effect from the date of application of this Regulation" but the Government consider this provision to be "ambiguous" and they intend to seek clarity on this issue during the negotiations.[40] If the Government were to opt in to the draft Europol Regulation and also exercise the block opt-out we urge them to opt back in to the Council Decisions which fall within the scope of the opt-out and which are connected with Europol's continued operations, should this prove necessary.

Should the Government opt in?

21. On 3 May 2013 the Home Office submitted to us a very full explanatory memorandum (EM) on the draft Regulation, for which we are grateful. They note that the proposal does not "significantly expand" Europol's existing powers, which they welcome, but also consider the proposed merger of Europol and CEPOL as the "most significant" provision in the proposal.[41]

22. The EM explains that the Government are committed to taking all opt-in decisions on a case-by-case basis, putting the "national interest" at the heart of their decision-making. They list the following factors as being relevant to the Government's consideration of whether or not to opt in to the Regulation.[42] These are:

· Whether the proposal as drafted would benefit the security of the UK and its citizens including the protection of their civil liberties and rights;

· The implications for the balance of UK and EU competences, particularly in relation to operational policing and serious organised crime as well as the wider implications of the CJEU having jurisdiction in this area; and

· The extent to which the proposal can be improved in negotiations and the degree to which the prospects of improving the text would be enhanced were they to opt-in and thus have a vote on its adoption, which will be balanced against the implications of not opting in for the UK's broader relationship with the EU, its Institutions and the other Member States, particularly in the field of police cooperation.

23. We agree that these are important considerations. It is not unusual for a proposal for legislation to raise questions of substance at an early stage, like those mentioned above, alongside the Government's concerns about specific provisions in the proposal that are considered elsewhere in this report. These are best resolved in the course of negotiations, and the Government will be able to play a fuller part in those negotiations if they have opted in.

24. These are issues that we will continue to consider more closely in the course of our scrutiny of the proposal. But in our view none of the concerns expressed by the Government in their EM outweigh the benefits to the UK of Europol's assistance to national police and law enforcement agencies in the fight against cross-border threats (including terrorism) and serious organised crime. It is our considered view that the Government should opt in to the draft Europol Regulation.

Debate on this report

25. As part of the undertakings described in paragraph 2, the Minister for Europe gave a commitment that, where there was strong parliamentary interest, the Government would set aside time for a debate in both Houses on its proposed approach to opting-in to a particular draft measure. The Government's EM not only confirms that this will be the case in relation to this proposal but states that they are focusing their efforts on "ensuring a successful debate".[43]

26. We welcome the fact that the Government have undertaken to make time for a debate on this report, and hope that this can take place as early as possible in the 2013-14 Session, and in any case well before the expiry of the time limit for the Government to decide whether or not to opt in on 30 July 2013. An early debate on this report will allow the Government to be fully aware of the views, not just of this Committee, but of the House as a whole, before they have to reach this decision. We make this report to the House for debate.

27. We retain the proposed Europol Regulation under scrutiny.

1 COM (2013) 173, Proposal for a Regulation on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA, 27.3.2013, Document No 8229/13 + ADD 1, 2, 3, 4, 5 & 6. Back

2 Protocol (No 21) to the Treaties on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, Article 3. Formally, the three months runs from the date that all official EU language versions of the proposal are presented to the Council by the Commission. Back

3 The members of the Sub-Committee are listed in Appendix 1. Back

4 Justice and Home Affairs, the commonly used expression for the matters now covered by Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU). Back

5 HL Deb 20 January 2011 col WS 20-22. The undertakings are set out in full in Appendix 1 of our report Enhanced scrutiny of EU legislation with a UK opt-in (2nd Report, Session 2008-09, HL Paper 25). Back

6 Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol) (OJ L 121, 15 May 2009, p. 37). Back

7 EU Committee, EUROPOL: Coordinating the fight against serious and organised crime (29th Report, Session 2007-08, HL Paper 183). Back

8 COM (2010) 673, The EU Internal Security Strategy in Action: Five steps towards a more secure Europe, 22.11.2010, Document No 16797/10. Further information about the Centre was set out in COM (2012) 140, Tackling Crime in our Digital Age: Establishing a European Cybercrime Centre, 28.3.2012, Document No 8543/12. Back

9 EU Committee, The EU Internal Security Strategy (17th Report, Session 2010-12, HL Paper 149), paragraph 147. Back

10 This position is repeated in paragraphs 49 and 50 of their explanatory memorandum on the proposed Europol Regulation (EM 8229/13). Back

11 Paragraph 43, EM 8229/13. Back