Select Committee on European Union Fifth Report


FIFTH REPORT


28 January 2003

By the Select Committee appointed to consider European Union documents and other matters relating to the European Union.

ORDERED TO REPORT

EUROPOL'S ROLE IN FIGHTING CRIME

10307/02  Initiative of the Kingdom of Denmark with a view to adopting a Council Act drawing up, on the basis of article 43(1) of the Convention on the establishment of a European Police Office (Europol Convention), a protocol amending that Convention

11702/02  Proposal for a Council Decision on the financing of certain activities carried out by Europol in connection with co-operation in the fight against terrorism

13254/02  Initiative of the Kingdom of Denmark with a view to adopting a Council Act drawing up, on the basis of Article 43(1) of the Convention on the Establishment of a European Police Office (Europol Convention), of a Protocol amending that Convention

13688/02  Initiative of the Kingdom of Denmark with a view to adopting a Council Act drawing up, on the basis of Article 43 (1) of the Convention on the Establishment of a European Police Office (Europol Convention), of a Protocol amending that Convention

Abstract

  Europol (the European Police Office) has a crucial role to perform in supporting the Member States in combating serious organised crime.



  It is important that it should have the tools to operate effectively but also that it should be properly accountable.



  This report examines a number of proposed amendments to the Europol Convention, which would:



  Extend Europol's remit: the formulation now proposed does not represent a major change, but the proposal to allow access to Europol other than through the national units is likely to cause problems



  Increase the European Parliament's oversight of Europol: increasing parliamentary oversight is welcome but there is a need to involve national parliaments as well as the European Parliament



  Facilitate data transfer with third countries: it is essential that adequate data protection safeguards should be in place.


PART 1: INTRODUCTION

1.  Europol (the European Police Office) is the agency responsible for supporting the Member States of the European Union in combating serious organised crime by collating and analysing intelligence provided by national authorities. Its headquarters are in The Hague. The Europol Convention, which formally established Europol, came into force on 1 October 1998 following ratification by the Member States. Europol started its full activities on 1 July 1999, although it had been operating on a limited basis in the form of the Europol Drugs Unit since 1994.[1]

2.  Article 2(1) of the Convention sets out Europol's objective as being:

"to improve…the effectiveness and co-operation of the competent authorities in the Member States in preventing and combating terrorism, unlawful drug trafficking and other serious forms of international crime where there are factual indications that an organised criminal structure is involved and two or more Member States are affected by the forms of crime in question in such a way as to require a common approach by the Member States owing to the scale, significance and consequences of the offences concerned".

3.  Europol is funded by contributions from the Member States. Its budget for 2002 was €m 48.5, of which the United Kingdom's contribution was €m 7.8.[2] Europol has some 240 staff members from the Member States, of whom 32 are from the United Kingdom (more than from any other country apart from the Netherlands).

4.  This report examines proposals for amending the Europol Convention initially published by the Danish Presidency in July 2002.[3] The Presidency subsequently issued revised proposals in October and November 2002.[4] In conducting our inquiry we also took account of a number of related documents, in particular the Opinions of the Joint Supervisory Body (JSB), which is responsible for advising on the data protection aspects of Europol's work, and of the Europol Management Board;[5] the Commission's Communication on Democratic Control over Europol, which the Committee had examined earlier in the year;[6] and a draft Council Decision on Community funding of certain activities of Europol relating to terrorism, which we decided to incorporate in our inquiry.[7]

5.  We have also examined in some depth a proposed Agreement between Europol and the United States of America on the transfer of personal data. The data protection issues raised by this Agreement are relevant to the proposed amendments to the Convention relating to transfer of data to third countries, which we consider in Part 4.

6.  The inquiry was undertaken by Sub-Committee F of the Select Committee, whose membership is shown at Appendix 1. A copy of our call for evidence is at Appendix 2; and a list of the witnesses who gave evidence to the Committee, to all of whom we are most grateful, at Appendix 3.

PART 2: EXTENDING EUROPOL'S REMIT

7.  The Danish Presidency's proposals fall into three main parts:

·  extending Europol's remit and streamlining its method of operation;

·   increasing parliamentary oversight of Europol's activities; and

·  facilitating data transfer with third countries.

We consider each of these sets of issues in turn.

The scope of Europol's remit

8.  Since its inception Europol's remit has been progressively extended from its initial responsibility for combating drugs to its current responsibilities as set out in the box below:

What crimes does Europol cover?

Crimes specified in Article 2 of the Convention

  Unlawful drug trafficking


  Trafficking in nuclear and radioactive substances

  Illegal immigrant smuggling

  Trade in human beings

  Motor vehicle crime

  Crimes committed in the course of terrorist activities.

Other forms of crime listed in the Annex to the Convention[8]


  Crimes against life, limb or personal freedom


  Crimes against property or public goods including fraud

  Illegal trading and harm to the environment


These offences fall within Europol's remit only if:

"there are factual indications that an organised criminal structure is involved and two or more Member States are affected by the forms of crime in question in such a way as to require a common approach by the Member States owing to the scale, significance and consequences of the offences concerned".[9]

Europol's remit currently focuses, therefore, on serious forms of transnational organised crime. [10]






9.  The initial draft of the proposal to amend the Europol Convention would have replaced the existing provisions and defined Europol's remit simply by reference to the generic term "serious international crime". This would have removed not only the list of offences (including the specific reference to terrorism) but also the requirement for crime to be "organised" in order to fall within Europol's remit. In its evidence Europol justified broadening its mandate in this way on the grounds that:

·  international criminals do not always operate within the boundaries of the offences specified;

·  it is not always clear from the outset whether or not a particular instance of crime is part of the work of an organised structure;

·   the extension would enable Europol to assist in cases of transnational crime which are not organised (such as serial killings in more than one Member State); and

·  Europol's mandate would be brought in line with the mandate of Eurojust, the EU's judicial co-operation unit (p 49).

10.  There was, however, very little support from the Member States, including the United Kingdom, for such an extension of Europol's remit. The Government said that they would prefer to see specific references to organised crime but would be willing to accede to the proposal if adequate arrangements for prioritising Europol's activities were put in place in the Convention itself (p 11, Q37). The Government also called for "a more objective definition": rather than it being left to the national authorities to define serious international crime, they recommended adoption of the definitions of "serious crime" and "transnational crime" in Articles 2 and 3 of the United Nations Convention against Transnational Organized Crime (p 11).[11] The lack of clarity of the term "serious international crime" was also criticised by other witnesses ranging from JUSTICE to the Director of the National Criminal Intelligence Service (NCIS). JUSTICE argued that the extension would effectively open up Europol's mandate to cover "any crimes with a cross-border element" (p 55). The Director General of NCIS also took exception to the use of serious crime as the criterion, observing that "a murder in a local community is a very serious crime, but it may well not be too relevant to the work of Europol" (Q79).

"Serious international crime"

11.  Defining Europol's remit solely by reference to "serious international crime" would in our view have been highly unsatisfactory. We accept that, as Europol itself argued, it would have had the advantage of flexibility in covering all forms of organised crime without the need for further Council Decisions or amendments to the Europol Convention. But, in the absence of fuller statutory definition, it would in effect have left interpretation of the term, and consequently of Europol's remit, to Europol itself and national law enforcement authorities.

12.  A "catch-all" concept of serious international crime would also leave it unclear whether Europol's remit extended to offences which do not require a degree of organisation and which are not in their nature cross-border (even though the offender may commit offences in different Member States). This approach would be likely to lead to significant differences of interpretation in different Member States. It would also raise serious data protection issues. In its opinion on the Danish proposal, the Joint Supervisory Body (JSB) referred to Council of Europe Recommendation R(87)15, Principle 2.1 of which limits the collection of personal data for police purposes "to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence" (emphasis added). The JSB took the view that the extension to serious international crime would not contravene the Recommendation provided that a regulatory instrument was adopted to determine objective criteria by which to regard certain types of crime as serious international crime. The Information Commissioner took a similar view, stating that any move to extend Europol's remit in this manner ought to define the crime (Q 115, emphasis added).

"International organised crime"

13.  An alternative approach to defining Europol's remit generically would have been to use the term "international organised crime". But similar issues of legitimacy and clarity would arise, not least in view of the elusive nature of the concept of organised crime. Most of our witnesses, including the Government, NCIS, and Europol, considered that a reference to the definitions contained in the UN Convention on Transnational Organized Crime (see paragraph 10 above) would help to address the lack of clarity as to what constitutes organised crime, even though, as Europol noted, some of these criteria—such as the concept of an "organised criminal structure"—are difficult to substantiate. At the same time, in the absence of a list of offences, there would still be a danger of Member States having a different understanding of what constitutes organised crime.

Revised proposals

14.  In response to the concerns described above, the latest draft of the proposal limits Europol's remit to serious international crime where "there are factual indications or suspicions that an organised criminal structure is involved and two or more Member States are affected in such a way as to require a common approach by the Member States owing to the scale, significance and consequences of the offences concerned".[12] The wording thus extends Europol's remit in covering crimes where there is a suspicion (and not only a factual indication) that organised crime occurs. But otherwise the proposal reproduces the existing wording of Article 2 of the Convention (see paragraph 8 above). Moreover, in the amended version the offences currently listed in the Convention and its Annex are specifically enumerated in new Article 2. Consequently the new version differs only marginally from the current wording of the Convention. The only other difference is the reference to "serious international crime", which is, however, still subject to the requirement that it has to be organised.


1   Europol has been the subject of several previous inquiries by the Committee: Europol (1994-95 10th report, HL Paper 51); Europol: Confidentiality Regulations (1997-98 1st Report HL Paper 9); and Europol: Joint Supervisory Body (1997-98 13th Report, HL Paper 71). In addition, in 1999 the Committee inquired into computer systems in the Justice and Home Affairs area, including the proposed Europol Information System (European Union Databases, 1998-99, HL Paper 120). Back

2   On a GDP "key" of 16.5 per cent. This will rise to 18 per cent in 2003, when the United Kingdom's contribution will be £6.2m (€m 10) (Q 71). Back

3   Council document 10307/02, EUROPOL 46. Back

4   Council documents 13254/02 EUROPOL 76; 13254/2/02, EUROPOL 76 REV 2. Back

5   Council documents 13688/02, EUROPOL 81; 13685/02, EUROPOL 79. Back

6   COM (2002) 95final, EUROPOL 167212/02. Back

7   Proposal for a Council Decision on the Financing of Certain Activities carried out by Europol in connection with co-operation in the fight against terrorism (Council document 11702/02).  Back

8   Europol's remit was extended to cover these offences by a Council Decision of 6 December 2001 (C 362, 18 December 2001, p 1). As Statewatch noted in their written evidence, "this was the fourth extension by the Council from the five original forms of crime in Europol's mandate under Article 2 to 25 specific offences" (p 1). Back

9   Article 2 of the Convention. Back

10   Europol is quite separate from Interpol (the International Criminal Police Organization) which has a much wider international coverage with 181 members. Interpol's mission is to facilitate international police co-operation. It does so primarily by providing a communication system between national police forces and an information exchange facility, including, for example, issuing wanted notices for fugitives. Although Interpol has an analytical capability and maintains intelligence databases to which its members have access, unlike Europol it would not normally undertake in-depth analyses in relation to particular serious crimes. Interpol's remit is not limited to organised crime. Back

11   "Serious crime" is defined as "conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty"; an offence is categorised as transnational if:

(a) It is committed in more than one State;

(b) It is committed in one State but a substantial part of its preparation, planning, direction or control takes place in another State;

(c) It is committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; or

(d) It is committed in one State but has substantial effects in another State. Back

12   Council document 13254/2/02 REV 2, 21 November 2002. Back


 
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