Select Committee on European Scrutiny Twenty-Second Report


AMENDING THE EUROPOL CONVENTION AND ITS PROTOCOLS


(23154)

5455/02


Initiative of the Kingdom of Belgium and the Kingdom of Spain with a view to adopting a Council Act drawing up a Protocol amending the Convention on the establishment of a European Police Office (Europol Convention), the Protocol 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 and the Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and the employees of Europol.

Legal base:Article 43 (1) Europol Convention, Article 7 Protocol on interpretation, by way of preliminary rulings, by the European Court of Justice, and Article 18 Protocol on the privileges and immunities of Europol, the members of its organs, the deputy directors and employees of Europol; consultation; unanimity
Deposited in Parliament:4 February 2002
Department:Home Office
Basis of consideration:EM of 13 February 2002
Previous Committee Report:None; but see (22977) 14242/01: HC 152-x (2001-02), paragraph 14 (12 December 2001) and (22843) 13284/01: HC 152-ix (2001-02), paragraph 10 (5 December 2001)
To be discussed in Council:No date set
Committee's assessment:Legally and politically important
Committee's decision:Not cleared; further information requested



Background

  9.1  The two key drivers behind this proposal are the concern that Europol should be able to play a part in joint investigation teams, and the wish to simplify the procedure for amending the Europol Convention. We have considered, and cleared, related proposals on both issues previously.[23]

The document

  9.2  The amending Protocol addresses four matters: the involvement of Europol in joint investigation teams; the simplification of the procedure for amending the Europol Convention; the amendment of the Protocol on interpretation, by way of preliminary rulings, by the European Court of Justice (ECJ)[24] ; and the amendment of the Protocol on privileges and immunities of Europol and its members and employees.[25]

Joint investigation teams

  9.3  Article 1 of the amending Protocol provides for Europol to participate in a support capacity in joint investigation teams in accordance with the draft framework decision on joint investigation teams[26]. The document spells out the conditions under which Europol can participate (most of which parallel provisions in the draft framework decision). These include an explicit statement to the effect that officers may not assist in the execution of powers of arrest or detention, and provisions relating to liability. Europol officers will participate in accordance with an arrangement between the Director of Europol and the Member States setting up the team, and will be under the leadership of the team leader. Subject to the arrangement, Europol officials may liaise directly with team members and provide them with data from the Europol information system; information they collect may be added to that system.

  9.4  Article 1 also provides for Europol to ask the competent authorities of Member States to conduct or co-ordinate investigations. (These need not necessarily be joint investigations.)

Amending the Europol Convention

  9.5  Article 1 further provides for the simplification of the procedure for amending the Europol Convention. It does this by replacing Article 43 of the Europol Convention with the following wording:

"Amendments to this Convention shall be adopted by the Council acting unanimously, after having obtained the opinion of the Management Board, and, insofar as such amendments concern issues falling within its mandate, the Joint Supervisory Body[27]...The European Parliament shall be consulted."

Amending the Protocol on interpretation by the ECJ

  9.6  This Protocol provides for the ECJ to give preliminary rulings on the interpretation of the Europol Convention. The amending Protocol provides, in addition, for the ECJ to give preliminary rulings on the validity and interpretation of Council acts amending the Europol Convention, and of Council measures implementing the Convention. It confers similar powers in relation to interpretation of the Protocol on privileges and immunities of Europol and its members and employees, and in relation to the validity and interpretation of Council measures implementing that Protocol.

  9.7  The amending Protocol also provides for the ECJ to have jurisdiction to review the legality of Council acts amending the Europol Convention in actions brought by a Member State (on grounds of lack of competence, for example). The court would also have jurisdiction to rule on any disputes between Member States on the interpretation or application of the Europol Convention and of Council measures implementing the Convention, and similarly in relation to the Protocol on privileges and immunities of Europol and its members and employees.

Amending the Protocol on privileges and immunities of Europol and its members and employees

  9.8  Article 8 paragraph 1 (a) of this Protocol provides that Europol staff shall enjoy "immunity from legal process of any kind in respect of words spoken or written, and acts performed by them, in the exercise of their official functions." The amending Protocol provides for that immunity not to be granted to Europol officials participating in joint investigation teams.

The Government's view

  9.9  The Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth) tells us that the Government is keen to see early amendment of the Europol Convention so that officials can participate in joint investigation teams. It welcomes and supports the proposed amendments relating to liabilities and privileges. He adds:

"Nonetheless, the Government will be negotiating the liabilities provisions with a view to ensuring clarity as regards the inter-relationship of the proposed new Article on civil liabilities...and the existing Articles 38 and 39 in the Convention, which deal with liabilities arising from unauthorised or incorrect data processing and other liabilities. Clarity will be important for speedy settlement of any claims."

  9.10  The Government also welcomes the proposal to simplify the procedure for amending the Europol Convention. It supports the approach of agreeing the simplified procedure at the same time as agreeing the priority amendments relating to joint investigation teams, rather than embarking on proposals to amend the Convention across a range of issues.

  9.11  The Minister tells us:

"The proposals to extend the jurisdiction, by way of preliminary rulings, of the European Court of Justice in relation to validity and interpretation of the Europol Convention and associated instruments will not affect the UK, which has not opted in to such jurisdiction. The amending Protocol would also confer jurisdiction on the European Court of Justice to review legality of Council acts and to rule on disputes...The Government supports these amendments which follow similar provisions in Articles 35(6) and (7) of the Treaty of European Union."

  9.12  The Minister tells us that adoption of this draft Council Act and Protocol is not expected until the second half of 2002, during the forthcoming Danish Presidency.

Justice and Home Affairs Council discussion: 28 February 2002

  9.13  During this Council, Ministers debated the procedure for amending the Europol Convention. Although there was unanimous support for simplifying the procedure, opinions differed as to how this should be done. According to the Council Press Release, the Presidency put forward three options:

"—  amendment of the entire Europol Convention by simple Council decision [the option proposed in the amending Protocol];

  • amendment of a limited number of specific Articles in the Europol Convention by Council decision with a ratification procedure for amending the other Articles;

  • replacing the Europol Convention with a Council decision (like Eurojust) which in future could be amended by a simple Council decision."

No majority view emerged on these options, and the Council preparatory bodies were tasked with fleshing them out.

Conclusion

  9.14  The combination within one document of a proposal to amend the Europol Convention in relation to a specific area (participation in joint investigation teams) with a proposal for a simplified procedure for amending the Convention as a whole seems to us inherently unsatisfactory. That it has also proved over-ambitious is reflected in the discussion at the Justice and Home Affairs Council, reported above. We understand that it is now possible that the two proposals will be unyoked, and considered separately.

  9.15  We also find the inclusion of proposed amendments to the Protocol on the interpretation, by way of preliminary rulings, by the European Court of Justice (ECJ) rather puzzling. Presumably, they are intended to ensure that no aspect of the Europol Convention, including its amendment and implementation, can be excepted from the jurisdiction of the ECJ. We ask the Minister if our view is correct. We also query his comment: "the proposals to extend the jurisdiction, by way of preliminary rulings, of the European Court of Justice in relation to validity and interpretation of the Europol Convention and associated instruments will not affect the UK, which has not opted in to such jurisdiction", since the UK will undoubtedly be affected by interpretations given by the Court on questions submitted by the other Member States which have opted into such jurisdiction.

  9.16  In general, we do not have problems with the provisions to do with joint investigation teams. However, we ask the Minister why he considers that the inter-relationship of the proposed new Article on civil liberties and the existing Articles in the same area needs clarification.

  9.17  We shall keep this document under scrutiny until the final shape of the proposals is clearer, and until we have the Minister's response to the points above.


23  (22977) 14242/01 and (22843) 13284/01; see headnote to this paragraph. Back

24  OJ No.C 299, 09.10.1996, pp.1-14. Back

25  OJ No C 316,27.11.1995, p.1. Back

26  (22977) 14242/01; see headnote to this paragraph. Back

27  The Joint Supervisory Body monitors the activities of Europol in relation to data protection issues. Back


 
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