Explanatory Memorandum to COM(2006)817 - European Police Office (Europol) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2006)817 - European Police Office (Europol). |
|---|---|
| source | COM(2006)817  |
| date | 20-12-2006 |
● Grounds for and objectives of the proposal
The European Police Office (Europol) was created in 1995, on the basis of a Convention between Member States i. Europol was the first organisation set up under the provisions of the Treaty on European Union. At that time, international organised crime was not so widespread and European co-operation on justice and home affairs was mainly limited to the TREVI-framework.
Since then, a significant acquis has been adopted in this area, including instruments establishing other bodies set up by virtue of Council Decisions such as Eurojust and CEPOL (the European Police College). The main advantage of a Decision over a Convention is that it is relatively easy to adapt to changing circumstances because it does not require ratification.
This is particularly relevant for Europol as an organisation, since experience has demonstrated that there is a recurrent need to adapt its legal basis. Since its adoption in 1995, three different Protocols have been adopted to amend the Europol Convention, respectively in 2000, 2002 and 2003, which include provisions which will significantly improve Europol's effectiveness i. At the time of writing, none of these instruments have entered into force yet, due to the fact that not all Member States have ratified them.
In addition discussions on Europol's functioning have demonstrated that even after the entry into force of the three Protocols, further improvements to Europol's functioning are still desirable. This is partly due to the emergence or increase of new security threats such as terrorism, which pose new challenges to Europol and require novel approaches. Moreover, improved sharing of information and implementation of the principle of availability as supported in the Hague Programme, make it necessary to further adapt Europol's legal framework while maintaining an emphasis on robust data protection provisions.
A significant change which is proposed is that Europol should be financed from the Community budget. This will put Europol on an equal footing with Eurojust and CEPOL and increase the role of the European Parliament in the control of Europol, thus enhancing democratic oversight over Europol at European level. Application of the EU Staff Regulations will also bring significant simplification. This is in line with the resolution adopted by the European Parliament i.
The current proposal aims at establishing Europol on the basis of a Council Decision, including all the amendments already incorporated in the three Protocols, as well as further improvements to address the new challenges faced by Europol.
● General context
The discussions on Europol's legal basis are not new. Already in 2001, the possibility to replace the Europol Convention by a Council Decision was discussed by the Council. At that time, it was decided to address the issue in the European Convention and the subsequent Intergovernmental Conference which prepared the Constitutional Treaty. The current Article III-276 of the Constitutional Treaty incorporates the vision which emerged on Europol's future, which has been taken into consideration in the preparation of the proposal.
More recently, the Austrian Presidency of the Council has put Europol's future firmly back on the political agenda. Starting with a discussion at the informal JHA Council in January 2006, followed by a High Level Conference on Europol's future in February, work has continued through a number of meetings of a Friends of the Presidency Group, whose work has been consolidated in an Options paper (Council document 9184/1/06 rev 1) on ways to improve Europol's functioning. A significant number of these require amendments to Europol's legal framework. These options have been carefully considered in the preparation of this proposal.
In addition, Council Conclusions on the future of Europol were discussed within the Council structures and agreed at the JHA Council in June 2006. These Conclusions provide clear political guidelines on how the work on Europol's future is to be taken forward. In particular Conclusion 4 reads: 'Competent Council bodies should commence work in order to consider whether and how to replace by 1 January 2008, or as soon as possible thereafter, the Europol Convention by a Council Decision as foreseen in Article 34(2)(c) TEU, where possible on the basis of a concrete initiative or proposal'.
● Existing provisions in the area of the proposal
At the current time, Europol's legal framework is the Europol Convention, which establishes the organisation, determines its competence, tasks and management, and includes provisions with respect to its organs, its staff and budget. The Convention also contains a large number of provisions on data processing, data protection and other issues, including the rights of citizens. In addition to the Europol Convention, a significant amount of secondary legislation has been adopted, both by the Council and by Europol's Management Board. All these legal instruments have been taken into consideration in the preparation of the proposal.
An important consideration in the preparation of the proposal has been to ensure that there will be a smooth transition process from the current situation to the situation envisaged by this proposal. A significant number of transitional provisions have been included to ensure that the process will not interfere with Europol's operational work, and that existing rights of staff are not prejudiced.
● Consistency with the other policies and objectives of the Union
The proposal is consistent with existing policies and objectives of the European Union, in particular the objective to improve the effectiveness of the law enforcement authorities of the Member States in preventing and combating serious forms of crime.
In the preparation of the proposal, account has also been taken of the recent Commission proposals with respect to the exchange of information under the principle of availability, as well as with respect to the protection of personal data processed in the framework of police and judicial cooperation in criminal matters.
The Decision also seeks to ensure full respect for the right to freedom and security, the right to respect for private and family life, the right to protection of personal data and the principles of legality and proportionality of criminal offences and penalties (Articles 6, 7, 8, 48 and 49 of the Charter of Fundamental Rights of the European Union).
The processing of personal data pursuant to this Decision will be done in accordance with the Council Framework Decision 2007/XX/JHA on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, and in accordance with specific provisions contained in this draft proposal, many of which were already incorporated in the Europol Convention.
● Consultation of interested parties
The Commission did not organise a dedicated round of consultations with stakeholders. The reason for this is that, as described above, the Austrian Presidency had already organised what could be described as a wide consultation process at all levels. This process included discussions at the Ministerial level, at the level of the Article Thirty Six Committee (CATS) and at the level of technical experts, including data protection experts. As indicated above, the results of this work have been taken into careful consideration in the preparation of the proposal.
● Collection and use of expertise
There was no need for external expertise.
● Impact assessment
A number of alternative options were considered before submitting the present proposal.
The first option was to leave the situation as it is. That option was discarded, given the clear difficulties which are currently experienced with the procedures for amendment of the Europol Convention. An effective European law enforcement organisation can not function to the best of its capacities if changes to its main legal instrument can only enter into force several years after they have been decided. In addition, consultations during the Austrian Presidency demonstrated that many options to further improve Europol's functioning were supported by the Member States.
A second option, also discarded, was to replace the Europol Convention by a Council Decision, but to propose at the same time a Protocol to abrogate the Europol Convention since some experts indicated that the entry into force of such a Protocol would be necessary before a Europol Council Decision could enter into force. The main disadvantage of this option is clearly that a Protocol abrogating the Europol Convention would itself be an instrument which would require a long process of ratification by all the Member States.
After careful legal analysis, Commission Staff Working Document - SEC(2006) 851, 21.6.2006 - outlined the main reasons why the Commission is of the view that it is possible to replace the Europol Convention by a Council Decision without the need for a Protocol abrogating the Europol Convention.
A third option would have been to replace the Europol Convention by a Council Decision without stipulating that Europol would be financed from the Community budget. However, this method of financing derives from Article 41 i TEU, which provides for the general rule that unless unanimously decided otherwise by the Council, operational expenditure arising out of the implementation of Title VI will be charged to the budget of the European Communities. Moreover amounts for such financing are already included in the budget planning under the Financial framework 2007-2013.
Contents
● Summary of the proposed action
The proposal aims to replace the Europol Convention by a Council Decision. It incorporates the amendments to the convention introduced by the three Protocols such as extension of Europol's mandate and tasks to cover money laundering, assistance in the field of crime prevention, technical and forensic police methods, the possibility to participate in joint investigation teams or request Member States to conduct or coordinate investigations and greater information of the European Parliament.
The proposal provides for financing of Europol from the budget of the European Communities and application of the EU Staff Regulations, which will increase the involvement of the European Parliament in the management of Europol, and will simplify the procedures for managing the budget and staff of Europol.
To increase the effectiveness of Europol's functioning, the proposal contains improvements with respect to the mandate and tasks of Europol, as well as in the areas of data processing and data protection.
Modifications in the mandate and tasks:
The proposal extends the mandate of Europol to criminality which is not strictly related to organised crime (Article 4). This will ease support provided by Europol to Member States in relation to cross-border criminal investigations where involvement of organised crime is not demonstrated from the start.
The text provides for a legal basis for Europol to receive data from private bodies, in line with recommendation No 22 of the Friends of the Presidency report (Article 5(1)).
The possibility to support to a Member State in connection with a major international event with a public order policing impact is also introduced (Article 5(1)(f)).
New information processing tools and increased efficiency of existing ones:
Europol’s main existing tools are the Europol Information System and the Analysis Work Files.
In so far as necessary to achieve its objectives, Europol shall be entitled to manage new information processing tools for instance on terrorist groups or on child pornography (Article 10). The Council shall determine the conditions related to the processing of personal data in such systems.
Europol shall make every effort to ensure that its data processing systems are interoperable with the data processing systems in the Member States and with the data processing systems in use by the European Union related bodies with which Europol may establish relations. This will create the technical conditions for smooth exchange of data, provided legal frameworks allow such an exchange and without prejudice to basic principles of data protection (Article 10(5)).
The Europol Information System shall be directly accessible for consultation by national units. The obligation under Article 7 i of the Europol Convention to demonstrate a need for a specific enquiry in order to obtain full access via the liaison officers was considered too cumbersome to implement in practice without jeopardizing the efficiency of the work (Article 11).
The frequency for review of the need for continued storage of data in data files held by Europol is extended from one year to three years after the input of data, to reduce the administrative burden for the analysts working on these files (Article 20). The review period of three years also corresponds with the period foreseen under Article 16 i where for each analysis file it needs to be determined whether there is a need for its continuation. A reduction in the administrative burden for the analysts means that they can focus on their main objective to provide criminal analysis services.
New provisions in the data protection framework:
The processing of personal data pursuant to this Decision will be done in accordance with the Council Framework Decision 2007/XX/JHA on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters, and in accordance with specific provisions contained in this draft proposal, many of which were already incorporated in the Europol Convention.
Where new possibilities are created for Europol to process personal data, such processing may only take place in accordance with clear and precise legal regulations, which must be approved by the Council.
Analysis work files shall be retained for a maximum of three years. When it is strictly necessary for the purpose of the file, Analysis Work Files may be continued for further periods of 3 years, after informing the Management Board and consulting of the joint supervisory body (Article 16).
To detect any undue access to data, control mechanisms to allow the verification of the legality of retrievals from automated data files used to process personal data will be enhanced by extending the duration of conservation of audit data from six months to eighteen months (Article 18).
Data protection will be enhanced by the establishment of a Data Protection Officer who will be completely independent (Article 27).
● Legal basis
Article 30 i (b), Article 30 i and Article 34(2)(c) of the Treaty on European Union.
● Subsidiarity principle
The subsidiarity principle applies to the actions of the Union.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reason(s).
It is not possible to establish a European Union body through action by the Member States alone, who need to combine their effort to better tackle serious cross-border crime and terrorism, notably through centralised analysis and exchange of information.
The scope of the proposal is limited to providing Europol with those instruments which make it possible to assist and support the law enforcement authorities of the Member States, and to increasing Europol's possibilities for doing so.
The proposal therefore complies with the subsidiarity principle.
● Proportionality principle
The proposal complies with the proportionality principle for the following reason(s).
In line with the Europol Convention, the proposal is limited to regulating the institutional framework and data processing and data protection measures necessary to ensure that Europol can function effectively. Where appropriate, reference is made to national law, which for example determines which data can be shared with Europol and under what conditions. Proportionality has also been taken into consideration in establishing Europol's competence, which is limited to the forms of serious crime listed in the Framework Decision on the European Arrest Warrant.
The financial burden falling upon the Community as a consequence of the proposal is proportionate to the current costs born by the Member States to finance Europol. The proposal will diminish the administrative burden through alignment with Community procedures and by avoiding the need for ratification procedures of amendments to Europol's legal instrument.
● Choice of instruments
A Council Decision based on Article 34(2)(c) TEU is the most appropriate instrument for establishing a body under Title VI TEU. Since the aim of the proposal is not to approximate Member States legislation, a Framework Decision would not have been appropriate.
Under the Financial framework 2007-2013, a total of 334 million Euro has been set aside to finance Europol from the Community budget for the years 2010-2013. These figures are consistent with Europol's most recent five-year financing plan. Europol's annual budget for 2007 is close to 68 million Euro. The total number of staff employed from that budget in 2007 will be 406.
● Simulation, pilot phase and transitory period
There will be a transitory period for the proposal.
● Simplification
The proposal provides for significant simplification of administrative procedures both for EU and national public authorities, notably by avoiding adoption of a number of legal instruments and decisions linked to the management of budget and staff, and aligning the functioning with common practice of other EU bodies and agencies.
● Repeal of existing legislation
The adoption of the proposal will lead to the repeal of existing legislation.
● Recasting
The proposal involves recasting.