Select Committee on European Union Forty-Ninth Report


EUROPOL/EUROJUST

Letter from the Chairman to Bob Ainsworth MP, Under-Secretary of State Home Office

  Sub-Committee F (Social Affairs, Education and Home Affairs) considered this proposal at its meeting on 15 January. The Committee notes that the Agreement will generate a substantial flow of data between Europol and Eurojust. We believe that any arrangements for data exchange should be subject to stringent data protection safeguards and welcome your confirmation that the Government will not endorse any such agreement until the Joint Supervisory Body has given an opinion. It is essential to examine the JSB opinion in order to fully assess the data protection implications of the proposal.

  We would also like to raise with you the following points.

Joint Investigation Teams

  Article 6(1) provides that Europol and Eurojust may "together" participate in the setting up and action of joint investigation teams. It is not clear to us what is the legal basis for allowing participation of Eurojust members in joint investigation teams and we would welcome clarification of this. We are also unclear what it would mean in practice. Will the team include officers from both Eurojust and Europol? What is the added value of "together" in this context?

Transmission of information

  Article 8(4) provides that the transmission of sensitive personal data must be limited to "absolutely necessary cases". It further states, however, that "the existence of such data may be indicated". The purpose of this qualification is unclear. If it means that the existence but not the nature of such data may be disclosed, it is open to the strong objection that it would be tantamount to an indication of adverse information about the person concerned.

Correction and deletion of information

  Article 12(3) provides that a retention review of transmitted data must take place within a period of a maximum three years. This period is much longer than the annual review provided by Article 21(3) of the Europol Convention—which will not be extended by the current proposals to amend Convention. The need for a longer period in this Agreement is unclear.

Amendments

  Article 17(1) states that the Agreement "may be amended by mutual consent between the Parties at any time in accordance with their respective statutory requirements". It is unclear whether such an amendment would require fresh Council approval, and to what extent it would be subject to national Parliamentary scrutiny.

  We would welcome your comments on these points. The Committee decided to retain the document under scrutiny pending your reply and the JSB opinion.

16 January 2003

Letter from Bob Ainsworth to the Chairman

  Thank you for your letter of 16 January 2003 responding to my Explanatory Memorandum of 29 November 2002 on the above-mentioned agreement. You explain in the letter that Sub-Committee F (Social Affairs, Education and Home Affairs) will in the usual way wish to see the Joint Supervisory Body's opinion on the agreement. I will of course deposit the opinion for scrutiny when in due course it is received. The Europol Management Board has in fact not yet forwarded the agreement to the Joint Supervisory Body and before doing so will be giving the agreement further consideration in its meeting scheduled for 11-12 February. My officials are still considering the points in your letter and wish to take account of the discussions in the meeting on 11-12 February before offering full advice. I shall therefore write to you again shortly with what I hope will be a comprehensive and helpful response to all the points which the Committee has raised.

5 February 2003

Letter from Bob Ainsworth to the Chairman

  I refer to your letter of 16 January 2003 in which you raised on behalf of Sub-Committee F (Social Affairs, Education and Home Affairs) a number of questions concerning the above-mentioned draft agreement between Europol and Eurojust. I said in my letter of 5 February that I would send you an early full reply taking into account discussions in the meeting, on 11-12 February, of the Europol Management Board. In that meeting, we also sought further clarification of a number of the points raised in your two letters of 30 January concerning the above-mentioned draft agreements between Europol and the Republic of Bulgaria and between Europol and the Slovak Republic. I am therefore taking this opportunity to reply fully to those two letters as well.

UK initiative for superintending the preparation of future Europol agreements

  Before dealing with the various matters raised in your letters, I would like to explain that with the Presidency's agreement we tabled for discussion in the meeting on 11-12 February a short paper recommending that a sub-group of the Board be established to superintend the preparation of future Europol third country/third body agreements. This could for example be established under Article 4(4) of the Act of the Management Board of Europol of 1 October 1998 laying down its rules of procedure. The paragraph reads: "On matters for which the Management Board does not consider a plenary meeting necessary, it may appoint an ad hoc committee or committees with as many members as it considers necessary to perform the tasks involved. Such committee(s) shall be chaired by the Chairman of the Management Board and shall be dissolved upon completion of the tasks for which it was/they were set up".

  We explained that what we have in mind, broadly, is having arrangements in place for: ensuring that Europol is given a clear negotiating mandate, approved by the Board and the Council, before negotiations are commenced; submitting to the sub-group detailed negotiating records; reporting every two months or so to the Board on the progress of negotiations; and preparing Explanatory Reports, to go to the Council, to accompany, and be read with, the agreements. These suggestions were welcomed in the meeting and will be worked up by us, in consultation with other Member States, for detailed consideration in the Board's next meeting on 10-11 April. I will let you know in due course what progress we make with this initiative which should improve the efficiency of the negotiating process and, in particular through the Explanatory Reports, assist in answering the kind of questions which are raised in your three letters of 16 and 30 January.

  Turning now to the detailed points in your letters, I deal with these below in the order in which you raised them.

DRAFT AGREEMENT BETWEEN EUROPOL AND EUROJUST

1.   Joint investigation teams

  Your Committee asks what is the legal base for allowing participation of Eurojust members in joint investigation teams, what it would mean in practice, whether the teams would include officers from both Europol and Eurojust, and what is the added value of Europol and Eurojust working "together" as envisaged in Article 6(1) of the agreement.

  The legal base is in part in Article 13 of the EU Convention on mutual assistance in criminal matters, which has been brought into advance effect by the Framework Decision on joint investigation teams. Article 1(12) reads: "To the extent that the laws of the Member States concerned or the provisions of any legal instrument applicable between them permit, arrangements may be agreed for persons other than representatives of the competent authorities of the Member States setting up the joint investigation team to take part in the activities of the team. Such persons may, for example, include officials of bodies set up pursuant to the Treaty. The rights conferred upon the members or seconded members of the team by virtue of this Framework Decision shall not apply to these persons unless the agreement expressly states otherwise". The Explanatory Report to the EU Convention on mutual assistance in criminal matters explains, for the avoidance of doubt, that "bodies set up pursuant to the Treaty" include Europol and Eurojust.

  The legal basis is also partly in the Council Decision setting up Eurojust. Article 7 provides that Eurojust, acting as a College and in relation to the types of crime in respect of which Europol is competent, may ask the competent authorities of the Member States concerned, giving its reasons, "to set up a joint investigation team in keeping with the relevant cooperation instruments" and "to provide it with any information that is necessary for it to carry out its tasks". The Article also provides that Eurojust "shall assist the competent authorities of the Member States, at their request, in ensuring the best possible coordination of investigations and prosecutions", "shall give assistance in order to improve cooperation between the competent authorities of the Member States, in particular on the basis of Europol's analysis" and "may assist Europol, in particular by providing it with opinions based on analyses carried out by Europol".

  In accordance with Article 1(3) of the Framework Decision on joint investigation teams, the team leader must always be a representative of the competent authorities of the Member State in which the team is operating. All the members of the team must carry out their tasks relating to the team under his leadership.

  These provisions, taken together, provide a basis for Eurojust to provide substantial support to joint investigation teams, and indeed to do so through participation in the team at the request of the Member States setting up the team. It is envisaged that Eurojust would in particular assist the team in coordinating investigations and prosecutions, and in doing so would also take account of information provided by Europol.

  The Europol Convention has recently been amended by the Council Act of 28 November 2002 to enable Europol officers to participate in joint investigation teams in a support capacity in line with the Tampere conclusions of October 1999. It is envisaged that this support would principally be through adding value to Member States' own intelligence, and doing so through direct liaison with other members of the team, keeping the relevant Europol National Units informed. The Europol officers would not have, while participating in a joint investigation team, the immunity against legal process of any kind under Article 8(1a) of the Protocol on privileges and immunities of Europol members. The Europol officers would be complementing the work of the Eurojust officers, and indeed Article 26(1) of the Council decision setting up Eurojust effectively provides that duplication should be avoided, see under (4) below.

  But these amendments to the Europol Convention have not yet been brought into effect. It is therefore not yet possible for Europol to play a full part in the work of joint investigation teams. This does not mean to say that it cannot provide valuable advice to the Member States and indeed to Eurojust on for example how a joint investigation team might be set up and what should go into the agreement establishing the team. The provisions in Article 6 of the draft agreement between Europol and Eurojust allude to matters of that kind, and make clear that the precise nature of the cooperation between Europol and Eurojust in relation to joint investigation teams must be "in accordance with the legal framework which is in place at that time".

  The Government attaches importance to closer cooperation between the competent authorities of the Member States in preventing and combating serious organised crime, and sees joint investigation teams as a valuable way of promoting more efficient and effective collaboration. Both Europol and Eurojust have important complementary roles to play in relation to joint investigation teams, and Home Office guidance to our own law enforcement and judicial authorities on joint investigation teams recommends early consultation with both Europol and Eurojust.

2.   Transmission of information

  The Committee asks why, in Article 8(4) of the draft agreement, the qualification is made that the existence may be indicated of personal data revealing racial origin, political opinions or religious or other beliefs, or concerning health or sexual life, notwithstanding that the transmission of such data shall be limited to absolutely necessary cases. The Government agrees that this qualification, which is not a feature of all other third country/third body agreements, requires explanation. We have informed the Presidency that we would prefer the qualification to be deleted.

3.   Correction and deletion of information

  The Committee has also asked why the retention review of transmitted data must take place within three years under draft Article 12(3), when the Europol Convention provides in Article 21(3) for annual review. We agree that this also requires explanation, and we have accordingly informed the Presidency that we would like the drafting to be reviewed.

4.   Amendments

  You also say in your letter of 16 January that the Committee notes that Article 17(1) of the draft agreement does not make clear whether amendment of the agreement would require fresh Council approval. It is therefore not clear whether there would be an opportunity for further scrutiny by national Parliaments. Our understanding is that, in general, agreements between Europol and third bodies require approval of the Europol Management Board, not the Council, under Article 2 of the Act of the Management Board of Europol of 15 October 1998 laying down rules governing Europol's external relations with European Union-related bodies. Accordingly, we think that amendments to such agreements would also require approval of the Board only.

  But the Council Decision setting up Eurojust provides in Article 26(1) that "Eurojust shall establish and maintain close relations with Europol, insofar as is relevant for the performance of the tasks of Eurojust and for achieving its objectives, taking account of the need to avoid duplication of effort. The essential elements of such cooperation shall be determined by an agreement to be approved by the Council, after consultation of the Joint Supervisory Body concerning the provisions on data protection". In our view, the need for the Council to be involved would apply also to amendments to the agreement.

  In the particular case therefore of the agreement between Europol and Eurojust, we think that amendments would require the approval of the Council. Accordingly, they would be submitted for Parliamentary scrutiny.

  For completeness, I can confirm that it continues to be the case that Europol is discussing the agreement with Eurojust, and that an opinion has not yet been sought, either by Europol or by Eurojust, from the respective Joint Supervisory Bodies.

DRAFT AGREEMENT BETWEEN EUROPOL AND THE REPUBLIC OF BULGARIA

5.   Establishment of the Bulgarian Data Protection Commission

  In your first letter of 30 January you explain that the Committee is concerned to ensure that the agreement will not be concluded before the Bulgarian Data Protection Commission is established. We understand that the Commission has now been set up, but we have made clear to the Presidency that we expect the Bulgarian authorities to provide Europol with formal notification of the existence of the Commission before the agreement is concluded. Such notification has not yet been received.

6.   Competent authorities

  The Committee seeks clarification of the procedure for amending the list of competent authorities under Article 6(1). We agree that a change to the list would constitute an amendment to the agreement. It would therefore require approval of the Council as I explain under point (8) below.

7.   Termination of supply of personal data

  The Committee asks about Article 9(5) which provides that personal data shall not be supplied where an adequate level of data protection is no longer guaranteed. The Committee asks how the adequacy would be assessed, which body would decide on termination, and whether termination could be done unilaterally by one of the Parties. We understand that there is not a formal procedure for assessing the continued adequacy of the data protection arrangements, but that if, in operating the agreement, it came to Europol's attention that the arrangements were not, or possibly not, working as intended, then the circumstances and relevant indications giving cause for concern would be reported up the management line for further consideration. In the event that a situation arose where Europol concluded that the arrangements could no longer be regarded as satisfactory, then termination of the supply of data would be a certain consequence, determined administratively by the Director of Europol, in the absence of immediate remedial action by the Bulgarian competent authorities. We understand that there is no impediment under the agreement to termination of the supply being by way of unilateral action.

8.   Amendments to the agreement

  The Committee asks whether amendment of the agreement under Article 19(1) would require approval of the Council. Europol's agreements with third countries are governed by the Council Act of 3 November 1998 laying down rules governing Europol's external relations with third States and non-European Union related bodies. Article 2(3) provides that such agreements can only be concluded after unanimous approval by the Council. We understand that amendments to the agreements would similarly require the unanimous approval of the Council. Accordingly, amendments would be subject to Parliamentary scrutiny.

DRAFT AGREEMENT BETWEEN EUROPOL AND THE SLOVAK REPUBLIC

9.   Competent authorities

  You say in your second letter of 30 January, that the Committee asks much the same question in relation to this agreement as under (6) above in relation to the agreement with Bulgaria. I can again confirm that, for the same reasons, amendments to the list of competent authorities would require the approval of the Council. I take this opportunity to explain that there is a recent Corrigendum to the draft agreement, in Council document 15747/02 COR 1 EUROPOL 105, which adds "Military Police" to the list of competent authorities. We did not consider it necessary to deposit this Corrigendum for scrutiny, but we have made it clear to the Presidency that we expect Europol to obtain full explanations from the Bulgarian authorities on precisely why they wish to include the military police. We would need to be satisfied that insofar as the military police are competent in relation to any of the serious forms of organised crime for which Europol has competence, any military offences associated with that criminal conduct would also constitute offences under the ordinary criminal law, inline for example with Article 1(2) of the 1959 European Convention on mutual assistance in criminal matters.

10.   Termination of supply of personal data

  The Committee asks much the same question as under (7) above. My response is the same.

11.   Amendments to the agreement

  The Committee asks much the same question as under (8) above. My response is the same.

17 February 2003

Letter from the Chairman to the Lord Filkin, CBE Under-Secretary of State Home Office

  Thank you for your letter of 17 February, which Sub-Committee F (Social Affairs, Education and Home Affairs) considered at a meeting on 26 February. We are grateful to you for informing us of the UK initiative for superintending the preparation of future Europol agreements, which will be welcome if it leads to closer supervision of these measures, and we look forward to hearing of future progress.

  As for the draft Agreement itself, we welcome the fact that you share the Committee's data protection concerns—in view of the extensive exchange of information the Agreement may entail, it is clearly essential that it is subject to stringent data protection safeguards. In this context, the Committee will wish to scrutinise carefully the Opinions of the Europol and Eurojust Joint Supervisory Bodies when they are available.

  The one point on which we did not find your response entirely satisfactory was on joint investigation teams (JITs). The only specific reference to Eurojust and JITs is Article 7(a)(iv) of the Council Act, which enables Eurojust to ask national authorities "to set up a joint investigation team in keeping with the relevant cooperation instruments". This does not, of course, authorise Eurojust's participation in JITs. It is true that, as you say, the Convention on mutual assistance gives a general authorisation to "officials of bodies set up pursuant to the Treaty" to participate in JITs, but without giving any further details of what their role would be. This seems anomalous when Europol's participation in JITs is the subject of a separate detailed instrument. We can see no reason why a similar instrument should not be a pre-requisite for allowing extensive participation of Eurojust members in JITs.

  Your letter also provides little explanation on how, in practice, Europol and Eurojust will work "together" in JIT. It appears that a great deal of action is envisaged on a preparatory level, but little is said on the allocation of roles once a JIT is operational. Is it possible to say more on this aspect yet?

  We would welcome your comments on these points. The Committee decided to retain the document under scrutiny.

28 February 2003

Letter from Bob Ainsworth MP Parliamentary Under Secretary of State to the Chairman

  Thank you for your two letters of 28 February in which you raised on behalf of Sub-Committee F (Social Affairs, Education and Home Affairs) some points of concern regarding the above-mentioned draft agreements. I am taking this opportunity to reply to both letters, to update you on developments on the Bulgaria and Slovakia agreements, which I hope will resolve the Committee's remaining concerns, and to provide some clarification regarding the legal base and role of Eurojust in participating in joint investigation teams.

Draft agreement between Europol and the Republic of Bulgaria

  I am pleased to be able to inform you that formal notification of the establishment of the Bulgarian Data Protection Commission has now been received. I have attached for your information a message from the Bulgarian Ministry of the Interior confirming this fact, under cover of a note from the Director of Europol. In the light of this assurance we now support the conclusion of this agreement, subject to clearance by the Committee.

Draft agreement between Europol and the Slovak Republic

  You explain that the Committee would welcome clarification regarding the inclusion of the "Military Police" in the list of bodies which can receive Europol data in Slovakia. Following the concerns raised by the UK and other Member States about the addition of this competent authority, I am pleased to be able to confirm that the Military Police have now been removed from the latest draft of this agreement. Consequently we are satisfied that the Slovakia agreement can now be concluded, again subject to your approval.

Draft agreement between Europol and Eurojust

  My letter of 17 February explained that the intention, as expressed in Article 13 of the EU Convention on mutual assistance in criminal matters and Article 1(12) of the Framework Decision on joint investigation teams, has always been that persons other than representatives of the competent authorities should be able to participate in a joint investigation team (JIT). This was particularly with a view to participation by Europol and Eurojust. Your letter referred to the separate instrument dealing with Europol's participation in JITs and suggested that a similar instrument should be a pre-requisite to participation by Eurojust Members. The Council Act of 28 November 2002 amended the Europol Convention to enable Europol to participate in a support capacity in a joint investigation team. There is no requirement for an additional enabling provision in the Eurojust Decision. Unlike the Europol Convention, the Eurojust Decision already provides in Articles 6(c ) and 7(c ) that Eurojust "shall assist the competent authorities of the Member States, at their request, in ensuring the best possible co-ordination of investigations and prosecutions". This power to assist the competent national authorities in investigations and prosecutions is sufficient to enable Eurojust to take part in the activities of a joint investigation team at the invitation of those authorities and subject to the agreement on the formation of the team.

  Your letter also asked for further explanation of how Europol and Eurojust would work together in a JIT. This is likely to develop with experience of working in JITs but Eurojust's principal role, together with Europol, would be to use its expertise as a cross border resource to facilitate the investigation. For Eurojust, this may involve advising on legal or jurisdictional issues or exercising its powers under the Eurojust Decision to request information or legal assistance from other Member States in support of the investigation.

27 March 2003

Annex

Members of the Management Board

REFERENCE: LA-03-024

CO -OPERATION AGREEMENTS SLOVAK REPUBLIC AND BULGARIA

  With respect to the draft co-operation agreements between Europol and the Slovak Republic, and Europol and Bulgaria, some further issues were raised at the last Management Board meeting. I would like to inform the members of the Management Board that Europol has received the following information from these two countries on the issues raised.

1.  SLOVAK REPUBLIC

  ...

2.  BULGARIA

  Europol has also requested further information on the state of play with respect to the Personal Data Protection Commission in Bulgaria. From the attached information received from the Bulgarian authorities, it is clear that this Commission was established by Decision of the National Assembly of 23 May 2002, and it has been operational since 1 September 2002.

  I hope to have informed you sufficiently with this, and trust that it will now be possible for the Council to approve the signature of these two agreements.

Ju½rgen Storbeck

Director

Annex

MESSAGE FROM THE BULGARIAN MINISTRY OF THE INTERIOR

  "The Personal Data Protection Commission was established by Decision of the National Assembly of 23 May 2002, in accordance with the Personal Data Protection Act. The Commission is an independent collective body, which consists of a Chairman and four members. The Commission has been operational since 1 September 2002.

  The administration of the Commission is divided into directorates, and the total number of its staff, including the Members of the Commission, is 76 (in accordance with the Rules of Procedure for the Commission and its administration, promulgated in State Gazette No. 71 of 2002, amended in State Gazette No. 9 31 January 2003).

  Since its inauguration the Commission has reviewed 19 complaints, requests for access to personal data and consultations and has carried out on-the-spot checks in response to complaints in Blagoevgrad and Russe. The Commission has studied and analysed the registers kept by the main personal data administrators—the ministries and their departments, municipalities, the National Social Security Institute, banks, insurance companies, etc. The Commission has also produced and published a registration request form for personal data administrators. The Commission takes part in the work of expert groups responsible for drafting legislation related to personal data protection /eg amendments to the Civil Registration Act, etc.

  The Commission works on an international level, which is at this stage mainly related to participation in international conferences and working visits to EU Member States. The main objective is to establish contacts and exchange experience with counterpart bodies/commissions in Central and Eastern Europe and in the EU Member States.

  In addition to the training provided in the framework of international co-operation, training in European law is also carried out by the Institute for Public Administration. A special training programme for Commission staff has been developed. It covers areas such as trade-oriented practical implementation of the law, protection of information systems, encryption of information, personal data acquis and harmonisation of the national legislation, etc. The training program should commence as of April 2003. Furthermore, the timetable for regional training seminars for personal data administrators will be completed by the end of April 2003.

  Measures to enhance the logistical support for the Commission are underway with a view of ensuring effective performance of its objectives. Those include supply of technical equipment for 10 workstations, which are to be connected in an information system, and implementation of additional technical equipment necessary for the normal functioning of the Commission and its administration.

  The Data Protection Commission's budget for 2003 is 778,557 levs for 76 full-time positions."

Letter from the Chairman to Bob Ainsworth MP Parliamentary Under Secretary of State Home Office

  Thank you for your letter of 27 March on the above proposals, which Sub-Committee F (Social Affairs, Education and Home Affairs) considered on 9 April.

  We are grateful for your confirmation that notification of the establishment of the Bulgarian Data Protection Commission has now been received; and that following the concerns raised by the UK and other Member States, the Military Police have been removed from the latest draft of the Europol-Slovak Republic Agreement. This meets our concerns and we have cleared both documents from scrutiny.

  As for the Europol-Eurojust Agreement, your letter provides a detailed description of the role of Eurojust in joint investigation teams, though we remain unclear precisely how Eurojust will work "together" with Europol in this context. You say this "is likely to develop with experience". It appears to us that the details of Europol-Eurojust co-operation have not been fully thought through. We would be grateful if you could keep us informed on how this aspect of the Agreement is going to be implemented in practice.

  You cite Articles 6(c ) and 7(c ) of the Eurojust Decision as the authority for Eurojust officials to participate in joint investigation teams at the request of a Member State. We accept that this provides general authority for their participation. But we are surprised that you do not see a need for detailed rules governing such participation (including rules on the powers and liability of Eurojust officials) especially when the Europol Convention contains just such a framework of rules in relation to Europol's participation . Such a framework is not provided by either the Eurojust Decision or the current proposal. Article 6(1) of the latter merely refers to "the legal framework which is in place at that time". The Committee would be grateful for confirmation that such a legal framework will be put in place prior to the entry into force of the proposed Agreement.

  The Committee decided to retain the document under scrutiny pending receipt of the opinions of the Joint Supervisory Bodies.

9 April 2003


 
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