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Democratic control over Europol
The Commission is clarifying the tasks and powers of Europol compared with those of national police forces. It is also analysing possible methods of exercising democratic control over Europol's activities while preserving the confidentiality and freedom of action that are essential if Europol is to carry out its tasks.
Commission Communication to the European Parliament and the Council. Democratic control over Europol [COM(2002) 95 final - Not published in the Official Journal].
In the interests of creating an area of freedom, security and justice, Article 29 of the Treaty on European Union provides for closer cooperation between police and customs authorities in preventing and combating crime. The competent authorities of the Member States may cooperate directly or through Europol.
In October 1999 the Tampere European Council recognised the key role of Europol in crime prevention and called on the Council to provide it with the necessary support and resources for carrying out its tasks (point 45 of the Conclusions).
When the Scoreboard was updated in October 2001, the Commission raised the question of revising the Europol Convention in order to introduce some form of democratic control [COM(2001) 628 final]. The importance of the issue was then highlighted in December 2001 in the Laeken Declaration on the future of the European Union, in which the Member States expressed their commitment to greater transparency and efficiency.
The European Parliament's Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (LIBE) recently launched a debate on the possibility of exercising democratic (and more particularly parliamentary) control over Europol.
European Parliament's position
Maintaining that the arrangements for informing it about Europol's activities did not constitute an adequate level of control, Parliament formulated proposals in a recommendation on reinforcing parliamentary controls and extending Europol's powers (April 1999) and two reports on initiatives by the Member States to extend Europol's powers (October 2000 and 2001).
Parliament made a number of suggestions in these documents. It called on the Council to:
- provide for adequate parliamentary control in the event of Europol being given operational powers;
- provide for the creation of a European public prosecutor in the event of Europol being given cross-border operational powers;
- make the Director of Europol accountable to the competent Parliamentary committee.
Parliament also asked the Commission to present a proposal for a comprehensive reform of Europol which would include other topics, such as judicial review of the instruments of police and judicial cooperation in criminal matters (third pillar) by the Court of Justice and the funding of the instruments in question from the Community budget.
Analysis of Europol's current tasks
In order to assess the effectiveness of existing control over Europol, the Commission believes it is necessary to analyse the tasks currently performed by the European Police Office. These essentially consist of exchanging information and analysing criminal activity. On a practical level, Europol stores, analyses and distributes the information it receives from the Member States or collects on its own initiative.
Unlike national police forces, Europol has no powers of enforcement or investigation (search, arrest, use of firearms, etc.). But, whereas until January 2002 Europol was competent to deal only with certain types of criminal activity, the Council Decision of 6 December 2001 extended Europol's mandate to include all the forms of crime listed in the Annex to the Europol Convention (Official Journal C 362, 18.12.2001).
As Europol's principal task is to collect information, its activities have a direct bearing on the right to privacy. The Europol Convention devotes a number of articles to the problem of the processing of personal data (Title IV), requiring each Member State to designate a national supervisory body and set up an independent joint supervisory body. In addition, the Council has adopted measures over the years to regulate the transmission of data originating from third parties or intended for third-party organisations.
Europol's Management Board, which consists of representatives of the Member States and in which the Commission has observer status, meets at least six times a year. It performs a number of tasks which essentially amount to a close monitoring of Europol's activities.
Practicalities of parliamentary control
Each year the Management Board reports to the Council meeting at the level of the ministers responsible for police cooperation. The ministers are accountable to their national parliaments.
The Europol Convention provides for:
- the Presidency to present an annual report on Europol's activities to the European Parliament. This report is not exactly the same as the annual report that Europol presents to the Council. The Commission is suggesting amending the Convention to provide for a single report to Parliament and the Council;
- the European Parliament to be consulted before any amendment to the Convention.
In addition, the Treaties contain provisions allowing Parliament to intervene in the decision-making process relating to Europol, namely:
- Article 39 of the EU Treaty introduces the procedure whereby Parliament must be consulted before the adoption of the measures referred to in Title VI of the EU Treaty (decisions, framework decisions). The same article also states that Parliament must be regularly informed by the Commission of activities carried out in the area of police and judicial cooperation in criminal matters and that it may ask questions of the Council. Provision is also made for an annual debate on the progress that has been made;
- Article 195 of the EC Treaty gives the Ombudsman the power to handle complaints of maladministration relating to Community institutions and bodies, including Europol.
Debate is currently focusing on Article 30(2) of the EU Treaty, which states that within five years of the entry into force of the Treaty of Amsterdam (1 May 1999 - 1 May 2004) Europol should be able to participate in joint investigation teams, to ask the Member States to conduct investigations and, in general, to wield more extensive operational powers than it does at present.
As soon as such powers are conferred upon Europol, the question of democratic control over the European Police Office will have to be discussed.
Given the very limited nature of Europol's powers at present, compared with those of the national police forces, the Commission believes that the controls provided for are formally adequate. They are, however, fragmented and in some cases insufficiently explicit.
The Commission therefore suggests that, as soon as Europol's powers are extended, the arrangements for controlling it should be revised so as to provide for:
- a regular, formal exchange of information between Europol, the national parliaments and the European Parliament;
- the creation of a joint committee consisting of representatives of the parliamentary committees (in national parliaments and the European Parliament) that are responsible for police cooperation;
- the amendment of the Europol Convention (presentation of a single annual report on Europol's activities to both the European Parliament and the Council, the right of the European Parliament to summon the Director of Europol to appear before the competent committee).