Select Committee on European Union Twentieth Report



  I am writing in response to Sub-Committee F's report on Europol's Role in Fighting Crime. I would like to thank the Committee for its work in preparing such a detailed and useful report on the Danish Presidency's proposals to amend the Europol Convention, and other issues of major significance to the organisation's future. The Committee has drawn on an extensive range of written and oral evidence in conducting its enquiry, and I am grateful for the balanced and thorough report it has produced.

  The Government views Europol as a key element in an effective system at EU level to combat and prevent serious and organised cross-border crime. We are committed to seeing Europol provide an outstanding service in support of the law-enforcement operations of Member States. The UK is one of Europol's most significant supporters, both financially and in terms of sharing with it relevant intelligence and expertise, and our law-enforcement agencies have also been amongst the most effective in utilising Europol's capabilities. We will continue to play our full part in making sure that Europol lives up to our highest expectations. Our view is that Europol should be aiming to develop into an international centre of excellence for the sharing and analysis of criminal intelligence.

  In striving to achieve this vision for Europol we recognise that there are a number of key challenges and issues that need to be addressed, which we will be focusing on in future meetings with our EU partners:

    —  Legislative framework—if Europol is to add real value to Member States' own operations it needs a settled mandate and a firm, but flexible legal base. A clearly defined remit is vital to ensure that Europol remains focused on the most pressing activities that require its involvement. But we also need to ensure that Europol's legislative framework is flexible enough to allow it to respond rapidly to new crime threats, and it may be necessary to consider adopting alternative legal instruments to achieve this.

    —  Prioritisation of activities—it is important that Europol has a clear sense of purpose and focuses on the crime threats that are of greatest importance to the EU Member States. Europol must demonstrate that it is meeting the priorities identified by its Management Board, which in turn should reflect the priorities of the EU Justice and Home Affairs Ministers in creating an area of freedom, security and justice.

    —  Corporate governance and accountability—better and clearer business planning is needed to underpin Europol's efforts. Organisational flexibility and innovation will be vital in the coming years for Europol to adapt effectively to the challenges of enlargement and a rapidly changing international scene. The Management Board in particular has an important role to play in ensuring that Europol delivers in the interests of the Member States. Accountability could be improved though clearer and more comprehensive reporting of performance and results, and we are committed to ensuring that Europol delivers tighter financial management and greater value for money for the Member States' contributions.

    —  Data exchange—intelligence is the lifeblood of Europol. The UK has an excellent record for providing Europol with a high quality flow of intelligence, and we will continue to play our full part. However, if the organisation is to reach its full potential we need a greater commitment from all Member States to contribute to, and benefit from, Europol's intelligence gathering and analysis capabilities. We need to find strategies to address this issue, for example though more proactive marketing by Europol and national units to raise its profile amongst national law-enforcement authorities. Initiatives to increase the sharing of intelligence must however be balanced with adequate safeguards to protect the personal data rights of EU citizens.

  Overall the Government is satisfied with the current version of the proposed amendments to the Europol Convention, which provide useful progress on many of these issues, by providing more flexibility for Europol and improving its effectiveness, openness and accountability. Following the meeting of the Justice and Home Affairs (JHA) Council last December, where a general approach was reached, the intention now is that the amendments to the Convention will be adopted later this year, possibly at the JHA Council meeting in June. The proposals however will be subject to consideration of the forthcoming opinion of the European Parliament, and of the requested further opinion of the Joint Supervisory Body, which the UK considered important and successfully pressed to be obtained. This second opinion was deposited for scrutiny on 27 March, and we will be providing a full explanatory memorandum in due course. In reaching a general approach last December, we made it clear to the Presidency that the UK Government reserves the right to re-open the text on the basis of unresolved significant concerns.

  While offering broad support to the Presidency during the course of negotiations, the UK has worked hard on a number of specific points to optimise the outcome. I appreciate the Committee's detailed and balanced analysis of these issues, and welcome the support offered for the Government's approach on many of the points of discussion. I have responded to each of the Committee's specific conclusions and recommendations below, and hope this will provide a helpful update on developments and a satisfactory explanation on the points of concern raised.

  I am copying this letter to Lord Grenfell, Chairman of the European Union Committee, to Jimmy Hood MP, Chairman of the European Scrutiny Committee, to Simon Burton, Clerk to the European Union Committee, to Dorian Gerhold, Clerk to the European Scrutiny Committee, to Tony Rawsthorne, Clerk to Sub-Committee F (European Union Committee), to Les Saunders (Cabinet Office) and to Joanne Harrison, Departmental Scrutiny Co-ordinator.

Bob Ainsworth



Defining Europol's remit

  The Committee concluded that "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" (paragraph 16).

    "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" (paragraph 17).

  We very much agree with the Committee's view that Europol must have a clearly defined remit. This is necessary to ensure that all of the EU's law-enforcement agencies share an unambiguous understanding of Europol's role and competencies, and will help to keep the organisation focused on the tasks that specifically require its involvement, where it can add real value. A clearly defined remit prevents disputes and confusions resulting from differences of interpretation, and is a vital starting point to promote effective co-operation between the Member States. Consequently the Government welcomes the revised proposals for amending Article 2 of the Europol Convention, which, as the Committee notes, is very close to the existing text in this respect. This should guarantee that Europol's mandate continues to be precisely defined by reference to specific types of serious international crime, which must involve an organised criminal structure.

  The Committee notes that "if further clarification is required, there would be advantage in including a reference to the UN Convention to help interpret `organised crime'" (paragraph 16).

  We agree that there should be merit in adopting for the Europol Convention the definitions of organised crime provided in the UN Convention on Transnational Organised Crime. This would help to provide a more specific and clear interpretation, which accession and other third countries would also already be aware of. We did in fact press for the inclusion of such definitions during negotiations, but at no point did we receive any support for this view. Consequently we did not consider that we should hold out for this given that the existing definition in Article 2 of the Europol Convention has proved to be workable in practice, with no evidence that it is an impediment to effective co-operation.

  The Committee suggests that "it would be desirable to clarify the meaning of `suspicion' in the new text" (paragraph 16). The Government was also concerned about the reference to "suspicions", and successfully pressed for compromise language. The current draft of the Danish proposals (Council document 13254/2/02 EUROPOL 76 REV 5) now includes in Article 2 the following qualification for Europol's remit:

    "where there are factual indications or reasonable grounds for believing that an organised criminal structure is involved".

  This wording is more precise than "suspicions that an organised criminal structure is involved", and in practice "reasonable grounds" would almost always be founded on objective indications of the involvement of an organised criminal structure. The Government accepts the view put forward in the negotiations that this modified wording may in limited circumstances provide a more certain basis for Europol's enquiries. If, contrary to initial expectations, the enquiries showed that an organised crime element was not present, then they would not be continued. This slight modification to the definition of Europol's remit provides a degree of extra flexibility, but does not affect its meaning.

Prioritisation of activities

  The Committee recommends that "it is also essential, as the Minister acknowledged, 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 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" (paragraph 17).

  It is the strong view of the Government that Europol must concentrate on a limited number of priority crime threats, rather than attempting to tackle all of the activities in its extensive remit. This is essential to avoid spreading its resources too thinly across an overly ambitious range of tasks, and will ensure that it can focus on delivering real results for the member States with value for money. This is why we pressed hard in negotiations for the Presidency to include provisions in the amended Convention on the prioritisation of Europol's activities. Our success in this will ensure that Europol is more accountable to the Management Board for its performance in meeting the most pressing needs of Member States, and will reinforce the Management Board's responsibility for scrutinising Europol's delivery in the interests of its members. The UK will continue to push strongly in future Europol Management Board meetings for these requirements and responsibilities to be fully met.


  The Committee concludes that "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" (paragraph 22).

  "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" (paragraph 24).

  "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" (paragraph 26).

  The role of the national units in co-ordinating exchanges of information between competent authorities and Europol was the subject of intense discussion between the Presidency and Member States. It became clear that discussion between the Presidency and Member States. It became clear that the majority of delegations supported the current revised proposal to amend Article 4 of the Convention, whereby each Member State would be able to decide for itself whether direct contact is appropriate for its own competent authorities. This would be subject to conditions determined by the Member State in question, including the prior involvement of the national unit. The UK successfully pressed for additional safeguards to be put in place, requiring that Member States only allow direct contact with designated competent authorities, and that information exchanged directly must be copied simultaneously to the national unit. The proposed amendment to Article 9 of the Convention, allowing competent authorities to directly query the Europol Information System, is also subject to the requirement that the authorities be designated by the Member States. The result of queries will only indicate whether the requested data is available on the Europol Information System, and further information can then only be obtained through the national units.

  The Government is content with these proposals as they now stand, and we believe that these changes will bring an element of order to what might otherwise have been unworkable arrangements. The requirement for contemporaneous involvement of the national units in direct exchanges will enable them to maintain an up-to-date overview of the information flowing to and from Europol. The designation arrangements will control which competent authorities are authorised to contact Europol directly or query the Europol Information System, and will provide the assurance that those which do so are acting under the laws and procedures of the Member State in question. It is necessary to find a balance between the need for Member States and Europol to co-operate effectively and quickly, and the need to maintain the clarity and coherence of the co-operation. Taking into account that relations between each national unit and its own country's competent authorities are a matter for the internal arrangements of each Member State, the Government is satisfied that the above compromise proposals are acceptable. The Joint Supervisory Body, in its further opinion on the revised amendments to Article 4, likewise concludes that "sufficient safeguards are in place for decent processing of data and the controllability of this processing".


  "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" (paragraph 30).

  Europol has already been tasked to act as the central co-ordinating unit for the sharing and analysis of information relating to Euro counterfeiting, and the Government supports the proposed amendment to Article 3 of the Convention to reinforce this role. We agree absolutely that there needs to be effective co-operation between Europol and the European Antifraud Office (OLAF) in the fight against the counterfeiting of the Euro, and it is important that there should be no unnecessary duplication of effort. This is best assured pragmatically in the Europol Management Board, where the European Commission—which has responsibility for OLAF and will be briefed by it—has observer status. The UK will play its full part in supporting efforts to improve co-operation between OLAF and Europol.

  The Committee will be interested to note that a co-operation agreement between Europol and the Commission was signed in February 2003, to enable the sharing of strategic information (not including personal data), such as situation reports and threat assessments[1]. Part of the agreement is an annex, which specifies the co-operation between Europol and OLAF regarding the fight against Euro counterfeiting. This should provide the formal base necessary to clarify the respective roles of the two agencies, to ensure an effective and efficient working relationship.


  While Europol must remain accountable, first and foremost, to the Member States of the European Union, through the Europol Management Board, the Government recognises the important role that both the European and UK Parliaments play in scrutinising Europol's work. The Scrutiny Committees of both Houses in particular play a key part in this process.

  Parliamentary oversight of Europol's work is appropriate for two reasons. First, Europol's core work as the EU's criminal intelligence agency is the collection, analysis, processing, and transmission of personal data. National parliaments have an important role in ensuring that due care is taken to protect EU citizens' privacy and rights in the treatment of personal data. Second, in view of the significant contributions that the UK makes to Europol's budget, Parliament also has a role in overseeing Europol's work to ensure that the organisation is delivering adequate value for money and that the Government's spending is justified.

Oversight of Europol's activities by the European Parliament

  The Danish Presidency's proposals to amend the Europol Convention included, in a revised version of Article 34 of the Convention, a number of measures to increase the European Parliament's oversight of Europol. These included, importantly, the obligation to consult the European Parliament on certain specified matters such as relations with third States. These revisions to the Europol Convention mark a clear enhancement of the European Parliament's role in scrutinising Europol's work, which the Government welcomes.

  In the longer term, and given the recommendations in the final report of Working Group X "Freedom Security and Justice" within the Convention on the Future of Europe, legislative proposals linked to Europol are likely to be subject to the co-decision process. This proposal, should it be agreed, would significantly enhance the European Parliament's ability to influence discussions of legislative instruments relating to Europol.

Oversight of Europol by national parliaments

  As outlined above, national parliaments have a vital role to play in the oversight of Europol's work. Through the process of domestic parliamentary scrutiny of EU business the UK Parliament is fully involved in scrutinising legislative proposals on Europol's work.

  The idea of a joint committee of members of the European and national parliaments to oversee Europol was first suggested by the Commission's Communication on Democratic Control of Europol of March 2002. This idea was included in early versions of the Danish proposals to amend the Europol Convention, but was not included in the version upon which a general approach was reached last December.

  The Committee concluded that "we recommend that the Government press for the idea of a joint committee of Members of national parliaments and the European Parliament to be re-instated" (paragraph 40).

  The proposed amendment to the Europol Convention to set up such a joint committee was removed early on in negotiations because the Convention, as secondary European legislation, has no power to establish parliamentary committees involving either national or European parliaments. Only primary European legislation—the European Treaties themselves—has the power to establish formal parliamentary committees of any kind. The Government does not oppose in principle the concept of a joint parliamentary committee to scrutinise Europol, but this idea would have to be pursued informally, possibly building on the existing "Parlopol" mechanism.

  The Government values the role of national parliaments in scrutinising Europol's work, and has been fully involved in discussions on this in the context of the Future of Europe debate. The final report of Working Group X "Freedom, Justice and Security" concludes that national parliaments should continue to lay an important role in overseeing current third pillar EU work, including Europol, and we wholeheartedly agree with this view. The Government would therefore not oppose the development of inter-parliamentary mechanisms of supervision of Europol, should provision be made for it in a new Treaty.


  Regarding discussions during the Danish Presidency on the Commission's 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" (document 11702/02 Europol 60), the Committee concluded that: "there are telling practical reasons for resisting the proposal for Community funding of some of Europol's activities, which would also be inconsistent with its status as a Third Pillar body. The Government should resist future attempts to change the basis of Europol's funding" (paragraph 44).

  The Government agrees that clarity about Europol's funding source is important. We are not opposed to the principle of Europol being financed by the Community budget. It is the concept of a mixed model of funding—which would have been established should the Council have agreed to the aforementioned Council Decision—which the Government considers inappropriate. Such a mixed model of funding could lead to an obligation for Europol to report both to the Europol Management Board and to the European Commission, leading to a highly undesirable dual system of accountability and possible distortion of Europol's priorities. This is why the UK opposed the Council Decision that aimed to establish a legal base for Europol to take up an offer of

5 million from the Community budget.

  It should be clarified though that Europol's status as a third pillar body does not preclude it from being financed by the Community budget. Article 41(3) of the Treaty on European Union establishes that operational expenditure for the implementation of third pillar activities should be charged to the Community budget, unless the Council unanimously decides otherwise. The reason that Europol remains funded directly by the Member States is that Article 35 of the Europol Convention explicitly indicates that this should be the case. If the Europol Convention were to be amended or replaced by a Council Decision (or equivalent legal instrument), there is no requirement for the funding regime to remain intergovernmental.

  Should Europol's funding source be transferred to the Community budget, the Government's priority would be to define clearly how Europol's budget be spent. We would wish to ensure that Europol's work remains focused on the areas that the UK considers to be priorities in the fight against cross-border crime in the EU.


  The Committee concludes that "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" (paragraph 31).

  This is an important point made by the Committee, and is absolutely in line with the Government's view. We are content that none of the proposed amendments to the Convention change the fundamental role of Europol, which is to support, principally through the sharing and analysis of intelligence, Member States' own operations in preventing and combating serious forms of international organised crime. Although provisions for Europol to support joint investigation teams involving two or more Member States were agreed last year, this support would only be in a technical and advisory capacity. Europol officers do not have any coercive or operational powers, and there is broad support from EU Member States that this should remain the case. We do not wish to see Europol developing its own investigative powers at this stage, and would prefer to see efforts focused on making more of a success out of the responsibilities it already has.

  The Committee's report highlights the relevance for Europol of the work being done in the context of the Convention on the Future of Europe, and in particular in Working Group X "Freedom Security and Justice". The final report of the Working Group proposes that Europol should be given a specific legal base that would clarify its central role in the framework of EU police co-operation. The report underlines that "this legal base should not be open ended It would rather indicate the direction of possible developments and pose basic limits to such developments". The report also notes that "the provision should make clear that any operational action involving Europol would need in any event to be carried out in liaison and in agreement with the Member State(s) concerned and ht coercive measures would always have to be carried out by competent Member State officials". It is therefore made clear that Europol should not develop into an operational police force, and the Government strongly supports this approach.

  As the Committee notes any developments towards a major operational role must be preceded by a major debate across the EU, and should be based on fundamental legislative change rather than a gradual accumulation of powers. We accept however, that at some point there may be calls from parts of the EU for Europol to be granted at least limited investigative functions of its own, for example in relation to Euro counterfeiting. Any such proposals would have to be carefully considered, with full involvement of national parliaments, but for the moment the UK's view is that Europol should focus on providing an outstanding service in support of Member States' law enforcement agencies, rather than looking to take on new responsibilities.


Transmission of data to third countries

  "The Committee hopes that the Joint Supervisory Body will continue to be closely involved with the preparation of agreements between Europol and third countries involving the transmission of personal data and urges it to adopt a robust approach to the protection of personal data in them" (paragraph 53).

  The Government recognises the essential role of the Joint Supervisory Body in ensuring that there are satisfactory data protection safeguards for Europol's activities in general, and in particular in relation to agreements to exchange personal data with third countries. Europol must be able to access and exchange relevant intelligence in order to operate effectively in support of international police co-operation, but this should never be at the expense of adequate protection of EU citizens' personal data rights. The Joint Supervisory Body has an important and influential role in the independent scrutiny of third country agreements. This has been demonstrated repeatedly in the changes that have been made to a number of draft agreements in order to comply with the recommendations of the Joint Supervisory Body. We will continue to support a strong role for the Joint Supervisory Body as an independent watchdog of Europol's activities, to ensure adequate protection of personal data.

  "The Committee urges the Government to ensure that any amendment to Article 18 of the Convention provides sufficient guarantees that any agreement on the transmission of personal data from Europol to a third country will be preceded by an individual assessment of data protection law and practice in the country concerned" (paragraph 54).

  The Europol Convention stipulates that all agreements to share personal data with third countries must be subject to an assessment of the adequacy of the data protection regime in the third state concerned. The Government attaches great importance to this process, as a means of ensuring that in co-operating with third countries through Europol, we do not compromise the personal data protection rights that our citizens are entitled to. Regarding the earlier proposals to amend Article 18—to allow deviation from an adequate data protection regime in exceptional cases where it is absolutely necessary to safeguard the essential interests of the Member States—the Joint Supervisory Body commented that even in such cases there should always be an assessment of data protection law and practice. Consequently the latest proposals for Article 18(1)(3) provide that in all exceptional cases involving such deviation, the Director must "consider the data protection level in the State or body in question with a view to balancing this data protection level with the interests referred to above". The Government is content with these modified proposals, and will continue to advocate that, whatever the circumstances, due regard must be given to the data protection implications of any third party agreement.

  "The Committee urges the Government to ensure that any agreements with third countries fully reflect the final authorisation power of the Member State concerned, which should also extend to the choice of the authorities in the countries to which personal data is transmitted" (paragraph 55).

  The Europol Convention makes it clear that any data passed to Europol by a Member State can only be communicated to a third state or party with the prior consent of the Member State concerned. The Government attaches importance to this provision, and successfully pressed the presidency to drop its earlier proposal for Article 18(4) that would have provided for prior consent for communication to the presumed. We are content with the wording of Article 18(4) as it stands, which states that "the Member State may give its prior consent, in general or other terms, to such communication; that consent may be withdrawn at any time". This provides that the Member State can choose to impose certain conditions regarding the onwards transmission of data, for example by specifying the competent authorities to which data can be passed. If the Member State has concerns about the security of data communicated to a third party it can choose to withdraw its consent at any stage. We will continue to emphasise the importance of Member States' authorisation powers in future agreements to share data with third countries.

Enabling Europol to process data as background information

  "The Committee recommends that there should be a much clearer specification of what other data it is intended to process and for what type of background information, and more explicit assurance that the processing of any personal data would be subject to adequate data protection safeguards" (paragraph 58).

  The Joint Supervisory Body shared some of the Committee's concerns regarding the Presidency's proposed amendments to Article 6, to enable Europol to process and use background information in its information system, and not only in connection with a specific work file. In particular the Joint Supervisory Body was concerned about the lack of clarity in the specification of what would be regarded as background information. Consequently the earlier proposed amendments to Article 6 were replaced with the following proposal for a new Article 6a on information processing by Europol:

    "In support of the execution of its tasks, Europol may also process data for the purpose of determining whether such data are relevant for its tasks, and can be included in the computerised system of collected information referred to in Article 6(1). The Contracting Parties meeting within the Council, acting with a two-third majority, shall determine conditions related to the processing of such data, in particular with respect to the access and usage of the data, as well as time limits for the storage and deletion of the data that may not exceed six months, having due regard to the principles referred to in Article 14. The Management Board shall prepare the decision of the Contracting Parties and consult the joint supervisory body referred to in Article 24."

  The Government is content that these additional safeguards and specifications should ensure an adequate level of data protection and greater clarity about what background information can be processed by Europol. This view is supported by the Joint Supervisory Body's latest opinion on the revised amendments.

Time limits on the storage of personal data

  The Committee notes that "unless compelling evidence is produced that the current time-limit on the storage of personal data gives rise to real practical difficulties, we recommend that it should not be increased" (paragraph 59).

  The purpose of Article 21(3) is to ensure that data is not held for longer than is necessary. The Presidency's original proposal was for the time limit for storage to be increased from three to five years and for continued storage to be reviewed every three years instead of annually. Following the Joint Supervisory Body's recommendation that these proposals be reconsidered, the latest amendments reinstate the need for continued storage to be reviewed annually, while still extending the retention period to five years. The Joint Supervisory Body acknowledges in its further opinion on the revised proposals that "Europol is of the view that the existing retention period is too short to allow for the effective analysis of certain crimes, terrorism in particular. The experience of the JSB in this area leads to the same conclusion". In light of this the JSB has proposed alternative amendments to Articles 12 and 21 of the Convention, which we will need to consider in more detail, taking into account the views of the Presidency and other Member States. We hope to provide a fuller explanation and further details in due course in our Explanatory Memorandum on the JSB opinion.

Right of access to Europol documents

  "The Committee regards it as important that a careful case-by-case assessment should be made of any requests for access to documents and that citizens should be clearly informed about the outcome of their requests" (paragraph 61).

  We welcome the proposed new Article 32a of the Europol Convention, which will being Europol in line with the legally binding transparency rules to which other EU institutions are subject. This will require the Europol Management Board, on the basis of a proposal from the Director of Europol, to lay down rules for access to Europol documents. Clearly thee rules will need to strike a balance between the conflicting demands for openness and confidentiality. It is expected that requests for access to documents should be dealt with on a case-by-case basis, and that Europol should provide a satisfactory explanation for instances where it is judged that the need to protect sensitive information outweighs the interests of public disclosure.

1   Agreements between Europol and other EU bodies are only subject to the approval of the Europol Management Board, and are not a matter for the Council to consider. The Europol-Commission agreement was therefore not deposited for scrutiny. Back

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