The Reform Of Europol: Modern Eu Agency, Or Intergovernmental Dinosaur?

Introduction

The EU’s constabulary cooperation agency, Europol, has played a major role inwards the evolution of Justice in addition to Home Affairs cooperation inwards the European Union from an early on stage. Europol was originally gear upward informally, in addition to so on the ground of a 1995 Convention, after replaced past times a Council Decision in 2009. While its powers direct keep gradually been expanded, so has the disputation nearly its accountability in addition to the adequacy of its information protection rules. Since it is a beast of the sometime 'third pillar' (the previous special rules on policing in addition to criminal law) it is something of a 'dinosaur' inwards institutional terms, beingness an essentially intergovernmental body.

With the entry into forcefulness of the Treaty of Lisbon, the European Parliament (EP) straight off has articulation powers with the Council equally regards the adoption of a Regulation governing Europol, in addition to the Treaty straight off refers expressly to the importance of ensuring accountability to both national parliaments in addition to the EP. Furthermore, the European Union institutions agreed inwards 2012 a ‘Common Understanding’ on measure rules which would apply to the governance of European Union agencies. To expand Europol’s powers further, piece addressing the issues of governance, accountability in addition to information protection, the Commission proposed a novel Regulation reconstituting Europol inwards 2013.

At the most recent Justice in addition to Home Affairs Council, ministers agreed the Council’s position on the Commission’s proposal.  Since the European Parliament also latterly agreed its ain position, this clears the way for negotiations to bring house betwixt the ii institutions for a concluding deal, in ane trial the EP is fully operational in ane trial to a greater extent than next the recent elections. This is thus a skilful fourth dimension to examine the progress of discussions on the proposed Regulation so far.

It should hold upward noted that Republic of Ireland has opted inwards to this proposed Regulation, piece the United Kingdom of Great Britain in addition to Northern Ireland in addition to Kingdom of Denmark direct keep opted out. The UK’s objections are due to the proposals to house national law enforcement bodies to comply with Europol’s requests to commencement investigations, in addition to to provide information to Europol without a national safety exception. However, equally discussed farther below, the Council’s in addition to EP’s positions on the proposal address these issues, raising the possibility that the United Kingdom of Great Britain in addition to Northern Ireland volition opt inwards after adoption of the Regulation.

Europol’s powers

First in addition to foremost, the Commission failed inwards its displace to merge together Europol with the European Police College. The Commission thought it was a skilful thought to merge the two, given the overlap of their subject-matter. There has never been a merger of European Union agencies before, for essentially political reasons: Member U.S. of A. struggle bitter battles to host European Union agencies, in addition to so are reluctant to allow ane move in ane trial they direct keep one. However, unusually, inwards this representative the master copy host of the European Police College, the UK, was rather keen to kicking the agency out, equally it was planning to sell the infinite where the College was located in addition to declared itself unable to disclose a novel one.

So in that location was a golden chance to merge these ii agencies, but neither the European Parliament nor the Council wanted to bring it. In calorie-free of the Commission’s inflexible insistence on its proposal, an unprecedented grouping of 25 Member U.S. of A. tabled an initiative to amend the previous Decision establishing the European Police College, which was after adopted. This novel Regulation simply moves the College to Budapest. The Council has requested the Commission to brand a split upward proposal making farther changes to the Police College, but it remains to hold upward seen whether the Commission volition exercise so, or whether it volition proceed to sulk nearly the failure of its master copy proposition for a merger.

The Commission’s mo primary objective related to Europol itself. It cannot ship out ‘coercive powers’, according to the Treaties, in addition to all 3 institutions concur that a clause to this resultant should seem inwards the novel Regulation.  So it is destined to rest an agency which gathers in addition to analyses information, in addition to it is exclusively able to exercise the latter to the extent that it does the former. As dinosaurs go, Europol is clearly a herbivore, non a carnivore.

But the Commission withal hoped to give Europol around sharper teeth. So it proposed ii key amendments: a clarification of Member States’ obligation to give information to Europol, in addition to an enlargement of Europol’s access to national databases. In parallel to this, the Commission’s proposal removed the detailed rules on the construction of information processing that existed inwards the Europol Decision (and earlier that, inwards the Europol Convention). In house of these rattling specific rules on analysis files in addition to the Europol Information System, et al, in that location would instead hold upward full general provisions on information processing, which would hold upward centred upon an obligation to ensure ‘privacy past times design’.

The Council weakened the proposed rules which required national authorities inwards regulation to human activity upon Europol’s asking to initiate investigations. However, this number is mainly symbolic, since in that location was no absolute obligation to act, nether the Commission’s proposals (authorities could ‘decide non to comply’ with a request, on whatsoever grounds).

Furthermore, the Council did non bring the Commission’s proposal to allow Europol to contact national authorities straight inwards all cases, without going through the ‘Europol national units’ (the official points of contact betwixt Europol in addition to national forces). Instead, it simply provided (as at present) for the possibility for Member U.S. of A. to allow this. It also reinserted the electrical current provisions which allow national authorities to reject requests for information from Europol on grounds of national security, electrical current investigations or tidings activities.

However, the Council agreed with the proposal to give Europol a listing of other novel powers, in addition to added novel provisions giving Europol the might to assistance with Schengen evaluations, equally good equally the evaluation of candidate Member States. It also specified that Member U.S. of A. direct keep to allow their Financial Intelligence Units (special units dealing with coin laundering) to collaborate with Europol. Finally, it wants to extend the fields of criminal offense which Europol deals with to include state of war crimes in addition to genocide equally good equally insider trading.

For its part, the EP, similar the Council, voted against strengthening the provisions relating to Europol requests to Member States, although it did concur to Europol’s direct contact with national authorities (under sure conditions). It also agreed to retain the provisions allowing authorities to reject requests from information from Europol.

Furthermore, the EP wants to reinsert the existing weather condition relating to Europol’s participation inwards articulation investigation teams, whereas the Commission (and the Council) desire to provide exclusively for full general rules inwards this respect.

Data processing in addition to information protection

Europol’s powers are inevitably closely linked with the information processing in addition to information protection rules that apply to its processing of personal data. On this point, the Commission’s primary objective with its proposal was to get upward the information protection framework of Europol past times ensuring that its information protection supervisor was fully independent in addition to had effective powers.

To this end, the Commission suggested to a greater extent than detailed rules on information processing in addition to to a greater extent than information protection rights for individuals. The rules on external transfers of information exterior the EU, which currently allow Europol itself to sign treaties with the Council’s approval, would hold upward replaced past times the full general external relations rules of European Union law (treaty negotiations carried out past times the Commission, treaties concluded past times the Council after consent past times the EP). In general, the rules on transferring information to 3rd U.S. of A. would hold upward modelled on the rules inwards the European Union information protection directive (see the recent post on this blog), allowing for transfers inwards regulation exclusively where a 3rd State’s information protection has been judged ‘adequate’, with limited derogations from this rule. The supervisory powers currently held past times a Joint Supervisory Board would hold upward transferred to existing European Data Protection Supervisor (EDPS), which has information protection supervisory might equally regards most European Union agencies.   

The Council would amend the proposal to add together a full general might to procedure personal information inwards fellowship to facilitate information central betwixt Europol, other European Union bodies, 3rd countries, Member U.S. of A. in addition to international organisations. Also, the Council would impose an absolute obligation for Europol to inform Member U.S. of A. nearly information concerning them. The Council would also allow for broader derogations from the normal rules equally regards the transfers of information to 3rd countries, adding grounds relating to legal claims in addition to the combating of criminal offences.

As for information protection rules, the Council would strengthen the proposal past times banning the pick of a grouping persons purely on the ground of a ‘sensitive’ ground, such equally racial origin. It would also add together a requirement for Europol to notify its information protection officeholder in addition to the EDPS inwards the trial of a safety breach. Europol would also direct keep to inform information subjects of the fourth dimension menstruation for the processing of their data, in addition to the right to brand requests to Europol for erasure, et al of that data.

However, the Council would drib the requirement for Europol to written report on its processing of sensitive information every half dozen months to the EDPS. Also, Europol would direct keep to comply with whatsoever Member State’s objection to the release of information which it provided to Europol. H5N1 information subject’s asking for correction et al of personal information would direct keep to hold upward funnelled through a national authority, rather than addressed straight to Europol, in addition to the Council would include rattling wide grounds for Europol to reject such requests.

The Council is also keen to amend the institutional ‘architecture’ regarding information protection inwards the Commission’s proposal. It would cutting dorsum a piffling on the proposed powers of the EDPS, in addition to impose the status that it considers law enforcement concerns when it communicates with information subjects. National information protection bodies would direct keep the might to comment on the draft annual written report of the EDPS earlier its conclusion. More generally, the EDPS would direct keep farther obligations to consult national information protection bodies, in addition to the Council wants to constitute a Cooperation Board that would direct keep a large number of advisory powers.

For its part, the EP would dependent plain all access to personal information past times Europol to full general rules of necessity in addition to proportionality in addition to the adoption of specific rules setting out information protection principles.  The categories of personal information which could hold upward processed would hold upward to a greater extent than tightly restricted, in addition to the EP does non back upward anything similar to a full general might to procedure personal information to facilitate relations with the Member States, et al. There would hold upward a requirement to ship out an deport upon assessment earlier information processing operations.

The EP would ban access to Europol information past times OLAF, the EU’s anti-fraud body, in addition to also would impose a ban on processing of information obtained past times agency which breach human rights. Pre-existing treaties with 3rd states relating to the processing of personal information would direct keep to hold upward renegotiated within 5 years. The EDPS would direct keep to hold upward consulted earlier treaties with 3rd U.S. of A. are negotiated. 

While the EP broadly agrees with the Council regarding the derogations from the external transfer rules, it wants to require Europol’s Executive Director to consider the tape of the 3rd terra firma concerned earlier authorising the utilization of these derogations. The EP also agrees with the Council on a clause regarding notification of a information breach to the EDPS, although its version is to a greater extent than detailed, in addition to the EP also wants a clause on notification of such breaches to the information subject. Finally, the EP wants to a greater extent than item inwards the annual written report past times the EDPS, in addition to proposes to a greater extent than cooperation betwixt the EDPS in addition to national authorities, although it does non back upward the Council’s thought of creating a Board.

Governance

First of all, equally regards Europol’s management board, inwards accordance with the Common Understanding on European Union Agencies, the Commission proposed that it direct keep ii representatives, with ane from each Member State. However, both the EP in addition to Council desire to cutting this dorsum to ane representative (as at present). Moreover, the EP (based on the Common Understanding, which refers to total EP members on agencies’ management boards) proposes to allow an observer from its Joint Parliamentary Scrutiny Group (see below) attend meetings of the Management Board. Both the EP in addition to the Council desire to drib the proposed clause (based on the Common Understanding) which would require Member U.S. of A. to bound turnover inwards the Board. 

The EP supports the Commission’s proposal to ‘aim to range a balanced representation betwixt men in addition to women’ on the board, but the Council does not. 

Next, the Council in addition to Commission concur that (in accordance with the Common Understanding) members of the Management Board should direct keep measure price of 4 years. However, the EP wants their term of business office to hold upward laid past times each Member State.

Furthermore, the Council wants the chair of the Management Board to come upward (as at present) from ane of the 3 Member U.S. of A. which is jointly belongings the Council Presidency, whereas the Commission in addition to the EP reject this. Finally, the EP wants all members of the Management Board to sign a proclamation of interests, for such declarations to hold upward published, in addition to for the Commission to direct keep the might to object to draft Management Board decisions on primal legal or policy grounds. These proposals are based on the Common Understanding.

Secondly, the Council wants to retain its electrical current powers to appoint Europol’s Executive Director in addition to the Deputy Executive Directors, instead of shifting this might to the Management Board equally the Commission proposes, inwards accordance with the Common Understanding on agencies (the EP agrees with the Commission). But the Council does non desire to part this might with the EP.

Thirdly, the Commission proposed the creation of a novel Executive Board equally component of the management structure. The EP rejects this thought completely, whereas the Council tin bring it on status that the Management Board agrees unanimously to exercise it, leaving it to the Board (rather than the Regulation) to laid out the details.

Finally, the Council wants to curtail the reach of the time to come reviews of the Regulation, piece the EP wants to get upward them to include the provisions on parliamentary accountability. The Commission in addition to EP back upward the possibility of a time to come amendment or repeal of the Regulation, piece the Council wants to drib this possibility. It should hold upward noted that the Common Understanding refers to the possibility of disbanding an agency.

Parliamentary accountability

Currently, the EP tin have reports on Europol, plays a role equally regards the budget, is consulted upon implementing measures in addition to tin handgrip hearings with the Director. Due to concerns nearly ensuring to a greater extent than effective parliamentary accountability for Europol’s actions, the Commission proposed a number of reforms, inwards especial sending the EP in addition to national parliaments to a greater extent than reports, in addition to involving the EP to a greater extent than inwards the procedure of choosing the (Executive) Director.

In response, the Council insists upon split upward references to the EP in addition to national parliaments. It would also delete many of the proposed powers for the EP, inwards especial dropping the proposed obligation for the Executive Director to written report to the EP in addition to the obligation for the candidate to hold upward Executive Director to brand a argument earlier the EP.

Conversely, the EP would get upward the parliamentary role inwards the Regulation, inwards especial past times creating a Joint Parliamentary Scrutiny Group, which would contain members of both the EP in addition to national parliaments. In its view, references to the EP inwards the proposal should hold upward replaced past times references to this group. There would also hold upward greater powers for the Joint Parliamentary Scrutiny Group equally regards the procedure of appointing the Executive Director. 

Comments

The EP in addition to the Council concur broadly on the little extension of Europol powers, including inwards especial the removal of provisions relating to the European Police College in addition to retaining the electrical current limits on Europol’s powers equally regards national authorities, so these volition probable hold upward the to the lowest degree controversial issues to negotiate. It is striking that these institutions did non bring the chance either to cut back the agencies’ costs past times agency of a merger, or at to the lowest degree to increase their efficiency past times agency of co-location.

As regards information protection, in that location are pregnant differences betwixt the EP in addition to the Council equally regards: the broadening or tightening of the grounds for information processing; the details equally regards notification of safety breaches; the rights of information subjects; the architecture of information protection authorities; in addition to the grounds to reject a information subject’s requests. Both back upward around farther powers for national authorities.

Two specific points should hold upward highlighted here. First of all, the Council’s proposition of a full general might for Europol to procedure personal information inwards fellowship to facilitate information central has to hold upward rejected on legal grounds, since this is far besides wide in addition to imprecise a legal ground on which to justify the central of personal data. The EP has the amend approach: if (as all the institutions agree) European Union legislation should no longer regulate the details of Europol’s databases in addition to analysis files, in that location shout for to hold upward rigid in addition to specific information protection principles inwards the Regulation instead.

Secondly, piece both the EP in addition to the Council concur on a full general derogation from the external transfer rules for the combating of criminal offences, this exception is probable to move the rule, since combating criminal offences is Europol’s whole raison d’etre.

As for governance in addition to accountability, the primary issues are the extent of parliamentary powers, in addition to also the nature of those powers (ie, whether in that location should hold upward split upward or articulation roles for the EP in addition to national parliaments). It is striking that the Council is keen to direct keep a articulation information protection supervisory body, but non a articulation parliamentary body, whereas the EP’s preferences are the other way around.  Remarkably, the Council’s removal of the (Executive) Director’s obligation to written report to the EP would genuinely hateful less parliamentary accountability on this betoken than nether the electrical current Decision.

Also, the EP in addition to the Council differ equally regards: whether in that location should hold upward an executive board; the role of Council equally compared to the Management Board inwards appointing the executive director; retaining a special status for the Council Presidency chairing the Management Board; rules on conflict of interest; other aspects of the composition in addition to functioning of the Management Board (term, turnover, sex equality, Commission control, conflict of interests); in addition to the review in addition to possible disbanding of Europol.

On these issues, the Council’s proposition to move backwards, past times eliminating whatsoever role for the EP questioning the Executive Director, is simply antedivulian. It flies inwards the confront of the specific reference to parliamentary accountability inwards the Treaties, given the obvious importance that parliamentary questioning of an agency manager tin play inwards ensuring that body’s accountability.

The Council’s attempts to defend the status quo tin also hold upward seen inwards its approach to the appointment of the (Executive) Director in addition to the composition in addition to chairing of the Management Board. The to a greater extent than modern approach of the EP equally regards sex equality, declarations of interests, scrutiny past times the Commission, in addition to review or disbanding of Europol, should hold upward preferred. Furthermore, accountability for sure demands a unmarried parliamentary observer on the Management Board, given that 28 Member U.S. of A. volition each direct keep a voting fellow member to advocate their interests.

It is striking that ii years after agreeing measure rules on European Union agencies, inwards a bid to preclude time to come conflicts in addition to hard negotiations, all 3 agencies direct keep taken a ‘pick in addition to mix’ approach to the Common Understanding, each selecting sure points that they similar from these mutual principles in addition to rejecting those which they dislike.

Overall, it is clear that the Council’s preference is for Europol to rest an essentially intergovernmental body, with only around other incremental increase inwards its powers, a little enhancement of the information protection rules, in addition to no pregnant alter inwards either its governance or parliamentary accountability. The EP agrees that the increase inwards its powers should hold upward limited, but is pushing instead for a modernisation of the agency inwards calorie-free of the Treaty of Lisbon in addition to the Common Understanding, equally regards stricter information protection rules, reforming its governance, in addition to greater accountability. Time volition tell whether the Council volition succeed inwards preserving this intergovernmental dinosaur. 

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