Select Committee on European Scrutiny Twenty-Eighth Report








Draft agreement between Interpol and Europol.



Opinion of the Joint Supervisory Body in respect of the draft agreement to be signed between Europol and Interpol.


Legal base:

Articles 42,10 and 18 of the Europol Convention and the Council Decision of 27 March 2000 authorising the Director of Europol to enter into negotiations on agreements with certain third states and non-EU related bodies; unanimity


Deposited in Parliament:

15 March 2001


Home Office

Basis of consideration:

Minister's letter of 17 December 2001 and Information Commissioner's Memorandum of 3 May 2002

Previous Committee Report:

HC 152-iv (2001-02), paragraph 6 (7 November 2001)

To be discussed in Council:

Already adopted

Committee's assessment:

Politically important

Committee's decision:

Not cleared; further information requested




  3.1  The Joint Supervisory Board (JSB) monitors Europol's activities in relation to data protection issues. We have put on record the importance we accord to its opinions on draft Agreements between Europol and third countries or non-EU bodies.

  3.2  In March 2001, the previous Committee did not clear the draft Agreements between Europol and Norway and Europol and Interpol, because it had not had sight of the JSB's opinions. The Government overrode the scrutiny reserve, and the Agreements were adopted at the Transport and Telecommunications Council on 27-28 June 2001.

  3.3  Following the oral evidence session with the Parliamentary Under-Secretary of State at the Home Office (Angela Eagle) on scrutiny matters[5], the JSB Opinions were deposited, and we considered them last November. At that time, we cleared the documents relating to the Agreement with Norway. However, as the JSB's Opinion on the draft Agreement with Interpol was the most negative that we had seen, we left it, and the draft Agreement itself, uncleared and asked the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth ) for a detailed account of how each of the JSB's points had been addressed by the Europol Management Board.

  3.4  The Minister replied in December (although we did not receive his letter until mid-January) with a list of the JSB's points and the response of the Management Board to each. Given the detailed nature of the points, and our concern about the status of the JSB, we asked the Information Commissioner (who is a member of the JSB) for her comments on the letter, and more generally on whether she considered the JSB's Opinions were being given due weight. Although we wrote to the Information Commissioner on 23 January, we have only now received a response.

The Information Commissioner's Memorandum

  3.5  The Memorandum is accompanied by a letter apologising for the long-delayed response, caused by the temporary inaccessibility of the relevant papers.

  3.6  With regard to the Agreement between Europol and Interpol, the Commissioner states:

"The proposed agreement between Europol and Interpol was somewhat different [from the others on which the JSB had provided Opinions] in that this was an agreement with a third body with its own specific legal constitutional arrangements. The differences between the scope of the two organisations' activities were at the heart of the JSB's concerns and it was particularly anxious to ensure that these various differences did not lead to a weakening of data protection safeguards where personal data are communicated to Interpol. The JSB did make a number of observations with the aim of ensuring that the final agreement addressed these concerns. The response of the Parliamentary Under-Secretary of State at the Home Office provides a helpful summary of Europol Management Board's response to the JSB's concerns. In order to double check that all the JSB's outstanding points have been addressed, clarification has been sought from the Secretary of the Europol JSB who has confirmed that all the points made in the JSB's opinion have been satisfactorily addressed by Europol and have been reflected in the final agreement as necessary. The matter is now resolved to the JSB's satisfaction."

  3.7  The Information Commissioner then turns to the proposed Agreement between Europol and the USA. We had expressed the hope that the JSB's Opinion would be fully reflected in any such agreement. The Commissioner says:

"The Committee will no doubt be aware that since 11th September 2001, Europol has undertaken a substantial amount of urgent work, in consultation with the JSB, aimed at putting in place the necessary agreement with the USA. Due to urgency of the situation and given that no such agreement was in existence, the Director of Europol has authorised the communication of data to the US authorities using the special procedure established under Article 4 of the rules governing the transmission of personal data by Europol to third states and bodies (as established under Article 18 of the Europol Convention).

"The JSB has been kept fully informed of this by the Director, as he is required to do. The JSB are satisfied that the use of this urgency procedure was appropriate in the circumstances but has requested the Director to move to a full third state agreement to cover such disclosures as soon as possible and to keep under review the continued need for the urgency decision.

"Europol staff have been involved in close consultation with the JSB over moves to establish an agreement with the US. This has included the attendance of its Legal Adviser at a JSB meeting to provide clarification of a number of points. A major issue for both Europol and the JSB is the level of data protection in the US. The different approach to data protection in the US and the European Union has meant that this continues to require detailed attention. The JSB provided an initial opinion requesting more detailed information and this has been received in the form of a report from the US Department of Justice. However there are still a number of points that need to be clarified and there continues to be very close co-operation between Europol and the JSB in an effort to resolve the outstanding points."

  3.8  In response to our more general question about the weight given to JSB Opinions, the Commissioner tells us that, in general, the JSB is satisfied that its observations are taken seriously by the Management Board and especially by the Director. She tells us that there are many examples of modifications to third state Agreements and Analysis Work Files opening orders stemming from JSB Opinions. However, she draws our attention to one matter of concern, as follows:

"The Committee may be aware that the analysis work undertaken by Europol is regulated [by] Article10 of the Europol Convention (and rules established under this Article). This provides procedures for establishing analysis work file (AWF's) and a framework of data protection supervision by the JSB. However over time the practice has developed of Europol using its analysis capabilities to assist projects that remain under the control of a particular member state (although other member states may be involved) and therefore outside the supervision of the JSB. These have become known as Member State Operational Projects With Europol Support (MSOPES). The JSB believes that the analysis support provided by Europol can only take place within the framework of Article 10 of the Convention and that these Member State projects are outside the Article and therefore the Convention. Although the JSB has expressed its concern that work by Europol on MSOPES is outside the Convention, the Director of Europol and Europol Management Board take a different view and the MSOPES continue to operate. It is understood that as far as the United Kingdom is concerned, it does not participate in any MSOPES given the uncertainty of the legal basis for these under the Convention. This continues to be the main area of concern expressed by the JSB that has not been adequately addressed by the Europol Management Board."


  3.9  We thank the Minister for his detailed letter and the Information Commissioner for her helpful Memorandum. It is good to know that the JSB is satisfied with the Agreement between Europol and Interpol.

  3.10  Although we should like to be able to move on, two points in the Information Commissioner's Memorandum cause us some concern. The first is the news that the Director of Europol has authorised the communication of data to the US authorities using the urgency procedure. We are surprised that there was no mention of this in the Minister's Explanatory Memorandum on the draft Agreement between Europol and the USA[6] (which specifically excludes the transmission of personal data). We ask the Minister whether there is any provision for notifying Parliament about the use of the urgency procedures.

  3.11  Secondly, we ask the Minister to comment on the JSB's concern about Member States Operational Projects with Europol Support (MSOPES).

  3.12  We shall continue to hold the documents under scrutiny until we have the Minister's response.


5   See HC-325 (2001-02), 31 October 2001. Back

6  (22814) 13359/01; see HC 152-vii (2001-02), paragraph 26 ( 21 November 2001). Back

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