Select Committee on European Union Fifth Report

The role of national units


15.  We do not regard expansion of Europol's remit as a high priority. It is already extensive (covering some 25 offences) and the current arrangements have been in place only since the end of 2001. In our view the existing approach, which relies on reference to specific offences, is probably the best way to achieve clarity in relation to Europol's tasks. It also ensures that, if further offences need to be added to Europol's remit, it is a matter for the Member States. (Article 43 (3) of the Convention provides a procedure for adding new offences to the Annex without having to amend the Convention itself.) It must be for Governments and national parliaments, and not for Europol itself, to decide on its remit

16.  Consequently we welcome the abandonment of the proposal to define Europol's remit solely by reference to "serious international crime" and reversion to a definition close to that currently in the Convention. If further clarification is required, there would be advantage in including a reference to the UN Convention to help interpret "organised crime"; and it would be desirable to clarify the meaning of "suspicion" in the new text.

17.  The definition of the remit is less important in its own right than as a means of ensuring that Europol's tasks are clearly defined so that:

·   there is a shared understanding throughout law enforcement agencies across the Member States of what Europol is responsible for; and

·   Europol does not engage in matters that do not require its involvement.

It is also essential, as the Minster acknowledged,[13] that there should be effective prioritisation of Europol's tasks to avoid it becoming over-burdened. The Europol Management Board has a key role in identifying Europol's priorities and measuring performance against them. The draft Decision calls on the Council, on a proposal from the Europol Management Board, to prioritise action in relation to specific forms of crime (Article 2(1)). It will be important that good use is made of this provision

18.  At present a central feature of Europol's operation is that a national unit established in each Member State "shall be the only liaison body between Europol and the competent national authorities".[14] In the United Kingdom the national authority is NCIS. The Danish Presidency's proposals would allow Europol, subject to certain limitations, to liaise directly with law enforcement agencies in the Member States other than the national units.

19.  The initial version of the proposals would have deleted the requirement for all communication with Europol to be via the national units. It would have enabled "competent authorities" to:

·   supply Europol with information;

·   respond to requests for information; and

·   issue requests for advice, information, intelligence and analysis.

Evaluating information and intelligence and supplying Europol with information for storage in the computerised system would have remained reserved to the central units.

20.  The only witness in favour of this change was Europol itself, which argued that it would increase the information available to Europol and, by bringing Europol into direct contact with operational law enforcement agencies, make them more familiar with its work and appreciate better the contribution it could make.

21.  The Government were strongly opposed to this proposal—as we understand were other Member States—on the ground that bypassing the national units would complicate communication and be a recipe for confusion. We agree with the Government on this point. The concept of the national units was devised in order to ensure that there was a single authority in each Member State responsible for passing information to Europol and receiving analyses from them. If requests for information could bypass the national unit, not only would there be no way of keeping track of what had been provided to Europol, but the opportunity to issue requests for analyses etc would make it more difficult for Europol to prioritise its work in responding to requests, a difficult enough task already given the width of its remit. The National Crime Squad pointed out that the national units have important functions in analysing and grading intelligence before it is passed to Europol and in relation to data protection. They said: "abolition of national units would be at the expense of both the format and quality of intelligence therefore significantly increasing the risk to successful operations" (p 22). The Office of the Data Commissioner also drew attention to the risk that the proposal could have an adverse impact on data quality (p 32). Not surprisingly NCIS was opposed to a proposal that would undermine its role but its evidence was supported by the Director General of the National Crime Squad, whose Director General described the bypassing of national units as "a recipe for internal chaos", particularly in the light of forthcoming enlargement (Q 73); and by the Associations of Chief Police Officers both in England and Wales and in Scotland.[15]

22.  We support the Government's view that the Europol national units should remain the sole liaison bodies between Europol and national authorities and that provision should not be made, as the draft Decision proposes, for Europol to communicate directly with "other competent authorities". We have received no evidence in support of this proposal except from the Commission and Europol itself, and in our view it would be likely to cause confusion about what information was passing to and from Europol with little apparent gain.

23.  The Presidency's revised proposals contain a different solution, leaving it to Member States to decide whether competent authorities other than the national units should be able to contact Europol directly. Direct contact would be with the prior involvement of the national unit and information exchanges would be copied to the national unit. In their explanatory memorandum the Government said that they would seek to add further safeguards:

·  clarification that information communicated under Article 4 will be sent simultaneously to the national unit,

·  assurance that the national unit will always be involved if the outcome of the query is positive, and

·  a requirement that Member States should designate and declare who their competent authorities are.

24.  The safeguards sought by the Government would all be desirable, but in our view it would be preferable to retain the existing system of communication with Europol exclusively through the national units.

Extension of the right to interrogate the Europol Information System

25.  Similar considerations apply to the proposed amendment of Article 9 of the Europol Convention, which would extend the right to interrogate the Europol Information System to "competent authorities" other than the Europol national units. "Competent authorities" are defined very widely as all public bodies responsible for preventing and combating criminal activities. This would cover not only individual police forces but even local authorities and—as the Office of the Information Commissioner pointed out—the Information Commissioner herself (p 33). While this extension of the right to interrogate the System might indeed—as the European Commission suggested (p 47)—make the system more flexible and help to increase the acceptance of Europol in the Member States, it would have the disadvantages of both undermining the central role of the Europol national units and increasing the risk of uncontrolled use of data.

26.  Under the proposed amendment the result of the query submitted by other competent authorities would be limited to an indication of whether or not data was available in the system—whether, for instance, a file existed on a named individual—without any of the relevant details being passed directly to the requesting authority. These would still need to be requested via the national units. However, as the Deputy Information Commissioner pointed out (Q 123), simply finding out whether there is an entry on a person on the system is in itself a significant piece of information, which could lead to some action being taken against the person concerned. It should therefore be subject to the most effective control of data transmission and data protection rules. We cannot support the case for extending access to the Europol Information System more widely. The current exclusive right of interrogation by central national units provides the best guarantee of effective data protection.

Europol as the contact point for action against counterfeiting the euro

27.  The Danish Presidency's proposals would add to Article 3 of the Convention a provision that Europol should act as the European contact point for the suppression of counterfeit euro currency. As the single currency of currently 12 of the EU Member States (and of a number of countries outside the EU), the euro is an attractive target for counterfeiting. A number of cases have already been reported (QQ 59-61).[16] The damage counterfeited euros can do to both companies and citizens is clearly a matter of common concern for the Member States, all of which also treat counterfeiting of currency as a serious crime under their national legislation. Because of the obvious cross-border dimension of the fight against counterfeiting the euro it requires the mobilisation of all available resources at both the national and the international level.

28.  One of our witnesses, Professor Guild, saw this provision as consolidating Europol's control over the euro at the expense of the claim of OLAF,[17] the EU's anti-fraud office, and intensifying competition between the two institutions by creating overlap between them (pp 52-53). In her view it was an example of a wider tension between the First and Third Pillars of the EU, the former relying on harmonisation of national provisions and the latter on the looser concept of mutual recognition.

29.  We cannot in this report do justice to Professor Guild's thesis, which goes much wider than amendments to the Europol Convention, but we have not identified the division of responsibility between Europol and OLAF in this area as particularly problematic. It is clearly right that Europol—as the EU's central police co-operation agency—should play a substantial role in countering counterfeiting of the euro. No objection to the proposed amendment was expressed in the evidence we received from other witnesses (including from the Commission). On the basis of new paragraph 3(4) of the Convention Europol should be in a position to continue and enhance its co-operation with national units by sharing relevant information and helping with training and advice. This was already done to some extent in the months prior to the introduction of the euro and, according to the Association of Chief Police Officers in Scotland, liaison through Europol in this respect is a positive step (p 44).

30.  It is important, however, that the proposed codification of Europol's role as the European contact point in the fight against counterfeiting the euro should not lead to marginalisation of OLAF in this field. As the EU's central organisation for combating fraud against the financial interests of the Union, OLAF could clearly contribute to more effective common action in a field in which some Member States have failed to take required action to protect the euro. Defining the respective tasks of Europol and OLAF does not fall within the remit of this inquiry but the Committee urges all the parties concerned to ensure that Europol and OLAF co-operate in protecting the EU from the effects of counterfeiting the euro and that the best possible use is made of the resources of both organisations.

Europol's overall role

31.  Some of our witnesses saw the Danish Presidency's proposals, taken with other measures such as a proposal (currently in abeyance) to allow the Europol Convention to be amended by a Decision of the Council and the recent decision to allow Europol to participate in joint investigation teams with the Member States, as marking a decisive shift in Europol's role. Statewatch argued that they "fundamentally alter the original constitution of Europol from a 'reactive' analytical agency to a 'proactive' operational unit." In the event the change in Europol's remit now proposed is not very significant. But even if it had remained as originally proposed, in our view it would not have represented such a profound change as Statewatch suggested. All our official witnesses, including the Minister, the Director of Europol himself, and the Directors General of the National Crime Squad and NCIS were quite clear that the role of Europol was to act in support of the law enforcement authorities of the Member States, and that this would not be affected by the changes proposed. We agree with that assessment. Europol has a crucial role to perform in combating serious organised crime, but it is at present essentially a role supporting national law enforcement authorities. If, as some have advocated, a fully operational role were proposed for Europol, this would be a very significant change, for which there should be a different legal basis, which could then be the subject of a major debate across the EU. It is important that Europol should not develop a major operational role simply as a result of a succession of relatively small changes to its remit.

Mr Ainsworth described prioritisation as the "absolute top priority" (Q 43). Back

14   Article 4 of the Convention. Back

15   ACPO submitted a joint memorandum with NCIS (p 20); (ACPO(S) commented separately that the experience of national unit staff was beneficial when determining the appropriate avenue for any enquiry being made of Europol (p 44). Back

16   According to its biannual press release on counterfeiting the euro issued in July 2002 over 400 counterfeiting cases were reported to Europol in the first six months of 2002, although this was "far less" than originally anticipated and the quality of the forgeries was generally low.  Back

17   Office de Lutte AntiFraude. Back

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