COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the procedures for the scrutiny of Europol’s activities by the European Parliament, together with national Parliaments
Date: 2010-12-17
Institutions: European Commission
Subjects: European Parliament, Europol, access to information, exchange of information, information processing, national parliament, operation of the Institutions, parliamentary scrutiny

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EUROPEAN COMMISSION 

Brussels, 17.12.2010 
COM(2010) 776 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL  

on the procedures for the scrutiny of Europol’s activities by the European Parliament, 
together with national Parliaments 

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TABLE OF CONTENTS 

1. 

2. 

2.1. 

2.2. 

3. 

3.1. 

3.2. 

4. 

4.1. 

4.2. 

5. 

5.1. 

5.2. 

Introduction: The issue of - parliamentary scrutiny of Europol................................... 3 

Parliamentary scrutiny of Europol’s activities in the current framework .................... 4 

European Parliament .................................................................................................... 5 

National Parliaments .................................................................................................... 6 

The debate on the parliamentary scrutiny of Europol.................................................. 7 

The Position of the European Parliament..................................................................... 7 

The views of the national Parliaments ....................................................................... 10 

Outlook for the future: Europol in the new institutional framework ......................... 12 

The issue of the attribution of coercive powers — Article 88(3) TFEU ................... 12 

Role of national Parliaments under the Treaty of Lisbon .......................................... 13 

Conclusion and recommendations ............................................................................. 13 

Setting up of a permanent joint or interparliamentary forum .................................... 15 

Increased transparency: a new communication strategy with the EP and national 
Parliaments................................................................................................................. 15 

5.3. 

Separating roles.......................................................................................................... 16 

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1. 
INTRODUCTION: THE ISSUE OF - PARLIAMENTARY SCRUTINY OF EUROPOL 
Europol’s founding act is the Council Decision of 6 April 20091. It repeals the previous legal 
framework, a Convention which entered into force in 19982 and was amended in 2007 by the 
entry into force of three Protocols.3  

The aim of the Council Decision was first and foremost to replace Europol’s legal basis by a 
an  instrument  which  would  be  more  flexible than  an  international  agreement.  Secondly,  the 
Council Decision replaced intergovernmental funding by a subsidy drawn from the budget of 
the  Union,  thus  conferring  upon  Europol  the  status  of  EU  agency.  The  essence  of  the 
organization — a European law-enforcement support centre for the collection, exchange and 
analysis  of  information  on  cross-border  forms  of  crime  affecting  two  or  more  Member 
States —  was  not  altered  by  the  Decision,  although  Europol's  mandate  was  extended  from 
‘organized’  to  ‘serious’  crime.  Other  changes  were  introduced,  but  these  do  not  affect  the 
fundamental  nature  of  Europol’s  mission,  which  remains  a  law  enforcement  support  centre 
without coercive powers. 

The Council Decision entered into application on 1 January 2010, one month after the entry 
into force of the Treaty on the Functioning of the European Union (hereinafter TFEU).  

Article 88 of the TFEU provides for a new legal regime for Europol. It stipulates that Europol 
shall  be  governed  by  (a)  regulation(s),  to  be  adopted  in  accordance  with  the  ordinary 
legislative procedure, i.e. by co-decision. One aspect of the future European Parliament and 
Council regulation(s), which will lay down, inter alia, Europol’s structure and tasks, relates to 
the  procedures  for  the  scrutiny  of  Europol’s  activities  by  the European  Parliament  together 
with national Parliaments. The Stockholm Programme4 calls on the Commission to produce a 
reflection document on these procedures. 

Europol’s  future  legal  framework  is  the  subject  of  an  ongoing  reflection,  led  by  the 
Commission,  involving  all  key  institutions  and  stakeholders,  in  particular  the  European 
Parliament and Council representatives. In the course of this reflection, the institutions will be 
invited  to  make  concrete  proposals  as  to  how  mechanisms  of  parliamentary  scrutiny  can  be 
put in place and efficiently implemented in practice in line with Article 88 of the TFUE.  

Over  the  last  decade,  the  European  Parliament  (hereinafter  EP),  and  in  particular  its 
Committee  on  Civil  Liberties  and  Justice  and  Home  Affairs,  has  issued  several  resolutions 
and other reflection documents on the subject of democratic scrutiny. 

1 

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Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (OJ L 121/37, 
15.05.2009) (the "Council Decision"). 
OJ C 316, 27.11.1995, p.1. 
1. The Protocol drawn up on the basis of Article 43(1) of the Europol Convention amending Article 2 
and the Annex to that Convention — (the ‘Money Laundering Protocol’), OJ C 358, 13.12.2000, p. 2. 
2. The Protocol amending the Europol Convention and the Protocol on the privileges and immunities of 
Europol,  the  members  of  its  organs,  the  deputy  directors  and  the  employees  of  Europol  —  (the  ‘JIT 
Protocol’), OJ C 312, 16.12.2002, p. 2. 
3.  The  Protocol  drawn  up  on  the  basis  of  Article  43(1)  of  the  Europol  Convention  amending  that 
Convention — (the ‘Danish Protocol’), OJ C 002, 06.01.2004 p. 3. 
The Stockholm Programme — An open and secure Europe serving and protecting citizens, OJ C 115, 
4.5.2010, p.1. 

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In addition, in 2001 the Swedish Presidency presented a detailed inventory of existing legal 
provisions  on  parliamentary  controls  along  with  proposals  to  extend  the  role  of  the  EP  in 
matters related to Europol 5. 

These contributions took as their reference the provisions of the Europol Convention, as well 
as the proposals  for Council acts drawing up the abovementioned  three Protocols amending 
the  Convention.  Further  more,  this  Communication  will  consider  the  position  that  the  EP 
expressed on the proposal for a Council Decision establishing Europol. 

Europol  is  the  first  European  body  operating  in  the  field  of  police  cooperation.  At  the  time 
this debate began6, this was an area largely dominated by intergovernmental decision-making, 
on the sidelines of the Community legal order, where the EP had very limited powers. Initially 
(according  to  the  original  Convention),  parliamentary  supervision  was  limited  to  the 
forwarding, by the Council Presidency, of an annual special report on Europol’s activities and 
to  consultation  in  the  event  of  amendments  to  the  Convention.  It  was  felt  that  Europol’s 
involvement  in  police  activities  and  its  key  role  in  the  exchange  of  information  among 
national law-enforcement services required parliamentary oversight of a sort that went beyond 
the provisions foreseen in the Convention. The processing of information, including personal 
data — Europol’s core business — has the potential to impact on the fundamental rights of 
individuals,  in  particular  the  right  to  the  protection  of  their  personal  data.  A  more  robust 
parliamentary control system was seen as the means to enhance democratic legitimacy in this 
area. 

This  Communication  takes  stock  of  reflections  and  opinions  expressed  in  the  past  about 
parliamentary  supervision  of  Europol  and  explains  the  controls  over  the  organization’s 
activities  currently  in  place.  On  that  basis,  the  Communication  draws  conclusions  and 
formulates  recommendations  which  are  designed  to  inform  future  discussions.  Among  the 
proposals put forward, some can be implemented within the existing framework of Europol’s 
legal basis. Others will need further reflection and could be considered in a new Proposal for a 
Regulation on Europol, including a change of legal basis in line with Article 88 TFEU, which 
the  Commission  intends  to  present  by  2013,  after  an  evaluation  of  the  current  Council 
Decision and an impact assessment have been carried out. 

2. 

PARLIAMENTARY  SCRUTINY  OF  EUROPOL’S  ACTIVITIES 
FRAMEWORK 

IN  THE  CURRENT 

The  Council  Decision  establishing  Europol  introduces  new  powers  for  the  EP.  In  fact,  it 
radically  alters  the  terms  of  the  relationship  between  Europol  and  the  EP.  By  incorporating 
Europol  within  the  EU  legal  framework,  the  EP  is  now  directly  involved  in  steering  the 
activities of the newly created agency, in particular in its capacity as a branch of the budgetary 
authority. 

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See  Council  document  8677/01  Europol  39,  Note  from  the  Swedish  Presidency  to  the  Article  36 
Committee, Democratic control over Europol. 
The  discussions  preceding  the  adoption  of  the  Europol  Convention  started  the  debate  on  democratic 
scrutiny.  While  supporting  the  creation  of  Europol,  the  rapporteur  Hartmut  Nassauer  called  for  a 
revision of the Convention to increase parliamentary scrutiny. (Summary of debate in plenary 14 March 
1996 — procedure file-reference: INI/1994/2221). 

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2.1. 

European Parliament 

Budgetary procedure 

In  terms  of  parliamentary  influence,  the  most  notable  innovation  in  the  Council  Decision 
establishing Europol is linked to Europol’s change of status from intergovernmental body to 
EU agency, which entails direct funding from the Union budget. It also means that Europol is 
subject  to  the  EU’s  Financial  Regulations.  In  its  capacity  as  a  branch  of  the  budgetary 
authority, the EP can have a direct impact on the activities of the new agency7. 
Furthermore,  the  EP  is  responsible  for  the  control  of  the  budget8.  Taking  into  account  a 
recommendation  from  the  Council,  the  EP  gives  a  discharge  to  the  Director  regarding  the 
budget implementation. Europol is also obliged to submit to the EP, at the latter’s request, any 
information required  for  the  smooth  application of the discharge procedure for the  financial 
year in question. 

Direct exchanges with the European Parliament 

A new provision in the Decision opens the way for regular and formal exchanges between the 
EP  and  Europol,  giving  the  EP  the  right  to  request  at  any  time  that  the  Presidency  of  the 
Council, the Chairperson of the Management Board and the Director appear before the EP to 
discuss  matters  relating  to  Europol,  taking  into  account  the  obligations  of  discretion  and 
confidentiality9. Significantly, there is now an obligation to abide by the EP’s request. This, 
too, is an important innovation, in that the provision enables the EP to question the Director 
independently. Such a strong obligation (‘shall’) is an important innovation in the Justice and 
Home Affairs (hereinafter JHA) area.  

Consultation on implementing measures  

The EP is to be consulted on any implementing measure of the current legal basis which takes 
the form of a Council decision. 

The Council Decision contains a number of provisions regarding the information to be made 
available to the EP. These constitute an improvement over what the so-called Danish Protocol 
of 2003 introduced into the Convention:  

Information to the EP via the Council 
The Council endorses and forwards on an annual basis the following documents10 to the EP 
for its information:  

- the draft estimate of revenue and expenditure, the draft establishment plan and the 
final budget; 
- the work programme for Europol’s future activities11; 

- the general report on Europol’s activities during the previous year. 

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Article 42(1) Council Decision. 
Article 43(6), (9). and (10) Council Decision. 
Article 48 Council Decision. 
Article 37(10) Council Decision. 
In  addition,  Article  27(4)(a)  of  Commission  Regulation  (EC,  Euratom)  No  652/2008  of  9  July  2008 
amending  Regulation  (EC,  Euratom)  No  2343/2002  on  the  framework  Financial  Regulation  for  the 
bodies referred to in Article 185 of Council Regulation (EC, Euratom) No 1605/2002 on the Financial 
Regulation applicable to the general budget of the European Communities (OJ L 181/23, 10 July 2008, 
p. 23-34) as amended by Commission Regulation No 652/2008 of 9 July 2008 requires Europol to ‘send 
to  the  Commission  and  the  budgetary  authority  by  31  March  each  year  at  the  latest  its  draft  work 
programme’. 

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Information to the EP via the Joint Supervisory Body12 

The  Joint  Supervisory  Body  forwards  its  activity  reports,  which  are  drawn  up  at  regular 
intervals, not only to the Council but also to the EP13. 

2.2. 

National Parliaments 

National  Parliaments’  supervision  of  Europol’s  activities  is  exercised  through  their  control 
over their respective governments, in accordance with the constitutional rules of each Member 
State. 

Responsibility  for  guiding  and  supervising  Europol  lies  with  its  Management  Board.  This 
Board, which is composed of representatives of Member States, reports in turn to the Council. 
The Council members concerned with Europol-matters, i.e. the Interior or Justice Ministers, 
are subject to national parliamentary controls. 

Each of these Ministers is responsible for providing adequate information on the functioning 
of  Europol  to  his/her  national  Parliament,  where  he/she  can  be  held  accountable  for  the 
Ministry’s  policy  regarding  Europol.  Europol  is  therefore  already  scrutinized  by  national 
Parliaments. 

As indicated in section 3.2 below, the preparatory report by the Conference of Parliamentary 
Committees  for  Union  Affairs  (hereinafter  COSAC)  Secretariat  for  the  41st  COSAC-
conference describes current practices relevant to parliamentary scrutiny of Europol14. 

Situations vary. The control exercised by some national assemblies is confined to a document-
based ad hoc scrutiny of Europol when they discuss acts, e.g. a proposal modifying Europol’s 
competences. For instance, the Council Decision establishing the European police office was 
a matter for ex-ante scrutiny in national Parliaments15.  

Other  Parliaments  use  their  right  to  hold  their  governments  to  account  in  EU  matters  as  a 
means  of  obtaining  information  about  Europol  at  any  given  moment  (the  Belgian  Chambre 
des  Représentants,  the  French  Sénat).  Other  practices  include  direct  relations  between  the 
Parliaments and their country’s national representative on the Europol Management Board or 
annual discussions on reports on Europol. 

In the case of Denmark and Ireland, the respective governments need to seek parliamentary 
approval prior to agreeing, in the Council, to their countries’ participation in measures in the 
area of Justice and Home Affairs. Both Parliaments discuss Europol-matters if the point is on 
the  agenda  of  a  JHA  Council  meeting.  Thus,  these  Parliaments  can  still  exercise  a  direct 
influence on decisions relating to Europol. 

As regards the possibilities of inter-parliamentary cooperation in the future, the report noted: 
‘National Parliaments currently scrutinise Europol within their systems of general scrutiny of 

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Europol’s independent and external data protection monitoring authority. 
Article 34(6) Council Decision. 
Eleventh Bi-annual Report: Developments in the European Union — procedures and practices relevant 
to parliamentary scrutiny, prepared by the COSAC-Secretariat and presented to the XLI Conference of 
Community and European Affairs Committees of Parliaments of the European Union, 11-12 May 2009, 
Prague, www.cosac.eu. 
For  example,  in  the  process  preceding  the  adoption  of  the  Council  Decision,  this  resulted  in  a 
reservation by the Parliament of the Czech Republic, which adopted a resolution stressing the need for 
the proposed measures to fulfil the requirements of proportionality. The Committee on Constitutional 
and Legal Affairs Committee recommended that the government approve the proposal provided certain 
conditions were met. 

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Justice and Home Affairs. In some cases this involves the Committees on EU Affairs, in other 
cases the specialised committees, or a combination of both.’ 

3. 

THE DEBATE ON THE PARLIAMENTARY SCRUTINY OF EUROPOL  

The current framework for parliamentary scrutiny of Europol, as set out in Section 2, reflects 
the  historic  developments  over  the  last  decade  in  the  debate  on  the  supervision  of  Europol. 
This Communication also specifically takes into account opinions which have been expressed 
in  the  past  with  a  view  to  achieving  an  appropriate  system  of  parliamentary  scrutiny  of 
Europol. 

The Position of the European Parliament  

3.1. 
►The EP’s past views and desiderata on the subject can be broadly summarized as follows16: 

Inclusion within Community law and funding by the EC budget  

The EP repeatedly asked that Europol be governed by Community law, particularly, but not 
necessarily,  if  it  were  to  acquire  cross-border  operational  powers.  The  EP  also  proposed  to 
incorporate  Europol’s  budget  within  the  Community  budget.  Given  the  very  lengthy  and 
cumbersome procedure for amending the Convention, the EP insisted on it being replaced by 
a Council Decision. 

16 

a)  Resolution  on  Europol  adopted  on  14  March  1996,  A4-0061/96  based  on  the  report  by  Hartmut 
Nassauer, Committee on Civil Liberties and Internal Affairs — hereinafter the 1996 Resolution. 
b)  Recommendation  to  the  Council  on  Europol:  reinforcing  parliamentary  controls  and  extending 
powers; A4-0064/1999, non-legislative resolution adopted on 13 April 1999, based on a proposal for a 
recommendation on Europol: reinforcing parliamentary controls and extending powers, Committee on 
Civil Liberties and Internal Affairs, Rapporteur: Hartmut Nassauer, 23 February 1999, A4-0064/99 — 
hereinafter the 1999 Recommendation. 
c) Resolution on the ‘Portuguese initiative’ of the European Parliament, A5-0312/2000, adopted on 14 
November  2000,  based  on  the  report  by  Rapporteur  Anna  Karamanou,  Committee  on  Civil  Liberties 
and Internal Affairs — hereinafter the 2000 Resolution. 
d) ‘Belgian-Swedish Initiative’ - Resolution including amendments by the European Parliament adopted 
on  13  November  2001  based  on  the  report  on  the  initiative  of  the  Kingdom  of  Belgium  and  the 
Kingdom  of  Sweden  with  a  view  to  adopting  a  Council  Act  drawing  up  a  Protocol  amending  the 
Convention on the establishment of a European Police Office (Europol Convention), etc., Committee on 
Civil Liberties, Justice and Home Affairs, Rapporteur: Maurizio Turco, 24 October 2001, FINAL A5-
0370/2001 — hereinafter 2001 Resolution. 
e)  ‘Belgian-Spanish  Initiative’  –  Non-legislative  resolution  adopted  on  30  May  2002  (P5-
TA(2002)0269  based  on  the  report  on  the  initiative  of  the  Kingdom  of  Belgium  and  the  Kingdom  of 
Spain with a view to adopting a Council Act drawing up a Protocol amending the Convention on the 
establishment  of  a  European  Police  Office  (Europol  Convention)  etc.  and  Recommendation  of  the 
European  Parliament  to  the  Council  on  the  future  development  of  Europol  and  its  automatic 
incorporation into the institutional system of the European Union, Committee on Civil Liberties, Justice 
and  Home  Affairs,  Rapporteur:  Gérard  M.J.  Deprez,  16  May  2002,  FINAL  A5-0173/2002  — 
hereinafter the 2002 Recommendation. 
f)  Recommendation  to  the  Council  on  the  future  development  of  Europol  (2003/2070  (INI)  —  Non-
legislative  resolution  adopted  on  10  April  2003  (P5_TA(2003)0186,  based  on  the  report  by  Co-
Rapporteurs:  Christian  Ulrik  von  Boetticher,  Maurizio  Turco,  7  April  2003  A5-0116/2003  — 
hereinafter the 2003 Recommendation. 
g)  Legislative  resolution  of  17  January  2008  on  the  proposal  for  a  Council  decision  establishing  the 
European Police Office (EUROPOL), P6_TA (2008)0015 based on the report on the establishment of 
the  European  Police  Office  (Europol),  Committee  on  Civil  Liberties,  Justice  and  Home  Affairs, 
Rapporteur:  Agustín  Díaz  de  Mera  García  Consuegra,  15.11.2007  A6-0447/2007  —  hereinafter  the 
2008 Resolution. 

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Informing and consulting the European Parliament 

The  provision  of  (mere)  information  in  an  annual  special  report  on  Europol’s  work  was 
considered to be insufficient. 

The  EP  asked  to  be  informed  regularly  (on  a  quarterly  basis)  about  Europol  activities. 
Furthermore, it urged the Council to take account of the right enshrined in the former Treaty 
on European Union to be informed and consulted. In particular, it expected to be consulted on 
a whole range of matters relating to the functioning of Europol and asked for its opinion to be 
duly taken into account. 

In 2001, the EP expressed the wish to be consulted on the definition of Europol’s prioritised 
areas of action.  

Strengthening of national and European parliamentary control procedures 

Existing arrangements for national parliamentary controls were described as cumbersome and 
ineffective  because  of  Europol’s  intergovernmental  nature.  The  EP  called  on  the  Council  to 
incorporate, within a future EU Treaty, provisions on full parliamentary scrutiny of Europol at 
the European level. In 2001, the EP asked the Commission to present a proposal for revising 
the  Europol  Convention  to  align  it  with  the  higher  standards  of  democratic  control  of  the 
police forces of the Member States. 

Anticipating the adoption of a Council Decision, there was a call for scrutiny procedures of 
Europol by national Parliaments and by the EP which should no be less stringent than those 
applied to amendments to the Convention (ratification process). Member States were invited 
to  discuss  how  their  national  Parliaments  could  be  involved  in  the  adoption  of  any 
amendments to the Europol Council Decision17. 

Inter-parliamentary coordination and exercise by national Parliaments of existing rights 

National Parliaments were urged to take consistent account of their right and duty to supervise 
the  actions  of  both  their  national  Council  member  responsible  for  Europol  and  the  Member 
States’ representatives appointed to the body’s Management Board. This should take place in 
close cooperation with the EP.  

Extending Europol’s powers 

In  its  1996  Resolution,  the  EP  had  called  for  a  future  review  of  the  Europol  Convention  to 
assess  the  possibility  of  assigning  investigative  powers  to  Europol,  within  the  scope  of  its 
mandate.  Furthermore,  the  EP  favoured  the  granting  of  operational  (this  is  interpreted  as 
meaning  ‘coercive’)  powers  to  Europol  ‘if  it  is  subject  to  the  instructions  of  the  European 
Commission and with such a European Police Office being made accountable to the European 
Parliament as well as to the national Parliaments.’18. 

Later,  the  EP  called  on  the  Council  not  to  confer  any  cross-border  operational  powers  to 
Europol without providing for an adequate scrutiny mechanism based on Community law and 
involving  the  EP.  In  2007,  the  EP  reiterated  that  the  granting  of  appropriate  operational 
powers and the improvement of democratic control were intrinsically linked. 

►A number of concrete suggestions were also put forward: 

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18 

Working document on the establishment of the European Police Office (Europol) preceding the 2008 
Resolution, Committee on Civil Liberties, Justice and Home Affairs, Rapporteur: Agustín Díaz de Mera 
García Consuegra, 19 February 2007 PE 384.589v01-00. 
Point 15 of the 1996 Resolution. 

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Role of an inter-parliamentary committee 

The Presidency of the Council, or its representative, should be required to appear before any 
joint committee which may be set up by the EP in cooperation with national Parliaments, with 
a view to discussing questions relating to Europol. 

Increased transparency by improved provision of information 

Suggestions  included  the  right  to  request  an  exchange  of  views  with  the  Director  or  the 
Council Presidency on the basis of the special annual report and the report on data protection. 
A proposal was also made to introduce a formal right to invite the Europol Director before the 
competent Parliamentary Committee or for the Director to appear at his or her own initiative. 

Involvement in the appointment and dismissal procedures of the Director 

The  EP  would  be  involved,  together  with  the  Council,  in  the  appointment  and  dismissal 
procedures  for  the  Director  and  Deputy  Directors19.  According  to  the  1996  resolution,  the 
views of the EP should ‘be duly taken into consideration’. 

European Parliament representatives on the Europol Management Board 

In  addition  to  one  representative  of  each  Member  State,  two  representatives  of  the 
Commission and two representatives of the EP would be members, each with one vote20. 

It is important to note that the Third Protocol to the Europol Convention, which entered into 
force  in  April  2007,  introduced  a  few  improvements  in  respect  of  the  EP’s  right  of 
information and consultation. In particular, the EP was to be consulted by the Council on the 
adoption  of  a  series  of  measures  pertaining  to  different  aspects  of  Europol’s  operation21.  In 
addition,  the  possibility  was  introduced  for  the  Council  Presidency,  with  or  without  the 
assistance  of  the  Europol  Director,  to  appear  before  the  EP  to  discuss  general  questions 
relating to Europol.22 

In  other  words,  at  least  some  of  the  concerns  expressed  by  the  EP  in  the  early  years  of 
Europol’s activity were addressed through these amendments to the original Convention. 

►Having  been  consulted  on  the  Commission  proposal  for  a  Council  Decision  establishing 
Europol, the EP set out its opinion in the legislative resolution of 17 January 2008.23 

In  tabling  the  proposal,  the  Commission  had  taken  on  board  some  of  the  most  important 
recommendations previously made by the EP. The Council Decision embeds Europol in the 
EU  institutional  framework  in  terms  of  legal  basis  and  funding.  This  placing  of  the 
organization  on  a  Community  footing  increases  the  opportunities  for  parliamentary  control, 
through the EP’s involvement in the procedure for the adoption of implementing decisions by 
means  of  the  mandatory  consultation  of  the  EP  and,  more  importantly,  through  its 
fundamental role in the adoption of the budget, including the establishment plan, as well as in 
the discharge procedure. 

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23 

a) Point 11 of the 1996 Resolution. 
b) Amendment 8 in the 2000 Resolution. 
c) Recommendation 4 of the 2002 Recommendation. 
d) Recommendation 4 of the 2003 Recommendation. 
a) Amendment 7 in the 2000 Resolution. 
b) Recommendation 4 of the 2002 Recommendation.  
c) Recommendation 4 of the 2003 Recommendation. 
Article 34 paragraph 1 of the Convention. 
Article 34 paragraph 2 of the Convention. 
2008 Resolution. 

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Significantly,  the  request  to  introduce  the  obligation  for  the  Presidency  of  the  Council,  the 
Chairperson of the Management Board and the Director to appear before the EP at its request 
‘to  discuss  matters  relating  to  Europol’  was  also  eventually  incorporated  in  the  text  of  the 
Council Decision24. 

Out  of  the  55  amendments  tabled  by  the  EP  on  different  aspects  of  the  proposed  Decision, 
there  emerged  three  main  clusters  of  suggestions  concerning  improved  democratic 
accountability and governance: 

Strengthening parliamentary control, in particular through an inter-parliamentary committee 

Noting  that  some  improvements  to  Europol’s  democratic  accountability  were  still  required 
following the extension of Europol’s operational powers, the EP asked for Europol’s priorities 
for  the  coming  year  to  be  presented  by  the  Chairman  of  the  Management  Board  or  the 
Director of Europol ‘before a joint committee comprising members of the EP and members of 
national  Parliaments  in  order  to  guarantee  a  democratic  debate  with  civil  society  and  better 
control over its activities’.25  

If (1) the draft budget estimate, the preliminary draft budget including the establishment plan, 
and the final budget, (2) a work programme for Europol’s future activities and (3) a general 
report  on  Europol’s  activities  are  submitted  to the  EP,  ‘which  shall  have  the  opportunity  to 
examine  them  as  appropriate,  where  necessary  in  association  with  national  Parliaments’26, 
early involvement at the planning stage is possible.  

The  transmission  of  the  annual  draft  planning  documents  to  the  EP  only  (  not  to  national 
Parliaments)  was  accepted,  but  just  for  information  purposes  and  not  for  consultation.  This 
gives the EP a decisive influence in the context of the budgetary procedure. 

The idea of an obligation to appear before inter-parliamentary committee was not taken up by 
the Council, and was therefore not reflected in the text of the Decision. Furthermore, such a 
Committee was not set up by the EP together with national Parliaments. 

Involvement in the procedures for appointing the Director 

The EP would be entitled to put questions to the candidates, give an opinion and state an order 
of preference. The Management Board would have to take those opinions into account when 
appointing the Director. This proposal was not taken up. 

More stringent data protection provisions 

The  EP  attaches  considerable  importance  to  reinforcing  data  protection  provisions  to 
introduce  additional  safeguards.  This  includes  taking  account  of  ‘the  level  of  respect  for 
human rights, democracy and the rule of law’27 in Europol’s relations with third countries.  

The idea of directly involving the EP in data protection processes was not followed up. 

3.2. 

The views of the national Parliaments 

►National  Parliaments  have  mainly  used  the  COSAC  forum  to  enunciate  their  agenda 
regarding national parliamentary control of Europol.  

24 
25 
26 
27 

Article 48 of the Europol Council Decision. 
Amendment 50. 
Amendment 39. 
Amendment 58. 

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COSAC called for concerted parliamentary oversight of Europol by the EP and the national 
Parliaments.  This  forum  did  not  spell  out  how  well-functioning  procedures  could  be 
established,  but  called  for  the  consultation  and  involvement  of  national  Parliaments  in  the 
discussion process on the implementation of democratic scrutiny28.  
However, in 2009, in preparation for its 41st conference, the COSAC-Secretariat compiled an 
interesting report based on a questionnaire sent out to all EU Parliaments. Since one part of 
the report deals with the issue of parliamentary oversight of Europol, it gives an overview of 
the situation at national level as well as the suggestions from national Parliaments29. 

Proposals for putting into practice the parliamentary cooperation provided for in Article. 88 
TFEU30.  

A  considerable  number  of  Parliaments  expressed  the  view  that  either  Joint  Committee 
Meetings (JCM) or Joint Parliamentary Meetings (JPM) should be considered as instruments 
for  achieving  efficient  cooperation  between  Parliaments.  As  regards  their  composition, 
suggestions  ranged  from  the  use  of  existing  inter-parliamentary  meetings,  the  creation  of  a 
specific  mixed  committee  composed  of  members  of  national  Parliaments  and  the  EP,  to 
enhancing  the  role  of  the  existing  COSAC.  A  combination  of  all  the  above  was  also 
considered as a possibility. 

The  report  contains  a  wide  range  of  views  on  the  potential  role  of  COSAC  in  scrutinising 
Europol's activities. A number of Parliaments stated that COSAC could serve as a forum for 
discussing, sharing ideas and exchanging information as well as best practices on the issue of 
democratic  scrutiny  of  Europol.  Some  Parliaments  suggested  that  the  Director  of  Europol 
should be invited to participate in these discussions to provide information on a regular basis 
on the activities of Europol and that the  scrutiny  of Europol’s activities should be a regular 
point on the agenda at COSAC meetings. However, other national assemblies, backed by the 
EP,  were  concerned  that  these  items  would  not fit  COSAC’s  current  role  and  were  rather  a 
matter for a specialised committee of the EP.  

Improving parliamentary scrutiny at national level after the entry into force of the Treaty of 
Lisbon31 

Most  Parliaments  do  not  seem  to  have  discussed  this  issue  in  depth  and  only  a  very  few 
concrete changes were mentioned. Some, however, had already defined in detail their future 
involvement, e.g. setting up of a specific administrative task force, meetings with competent 
Parliamentarians  and  government  representatives  and  an  evaluation  of  the  current  scrutiny 
system.  

►The  specific  issue  of  democratic  control  over  Europol  was  also  debated  at  a  dedicated 
interparliamentary conference on Parliamentary Control of Europol in 2001 in The Hague.  

28 

29 

30 
31 

Latest contributions: Contribution of the XLIV COSAC, Brussels, 24 -26 October 2010, Contribution 
of the XLII COSAC, Stockholm, 4-6 October 2009 and Contribution of the XLI COSAC, Prague, 10-12 
May 2009 www.cosac.eu . 
Eleventh Bi-annual Report: Developments in the European Union — procedures and practices relevant 
to parliamentary scrutiny, prepared by the COSAC Secretariat and presented to the CLI Conference of 
Community and European Affairs Committees of Parliaments of the European Union, 11-12 May 2009, 
parts 1.4 and 1.5 www.cosac.eu . 
Also covering the evaluation of Eurojust activities provided for in Article 85 TFEU. 
Eleventh Bi-annual Report: Developments in the European Union — procedures and practices relevant 
to parliamentary scrutiny, prepared by the COSAC Secretariat and presented to the CLI Conference of 
Community and European Affairs Committees of Parliaments of the European Union, part 1.2. 

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The draft resolution of the abovementioned conference made concrete suggestions for the first 
time regarding national parliamentary control of Europol32. 

The  central  recommendation  was  the  creation  of  the  ‘Parlopol-Committee’.  ‘Parlopol’  was 
meant  to  form  a  network  for  exchanging  information  and  taking  initiatives  in  a  more 
concerted way. It was to be composed of ‘parliamentarians of national Parliaments and the EP 
concerned with police and justice affairs which are subject to forms of European cooperation 
or integration within the Council of Ministers or within the governing bodies of Europol’. 

Such a network would also facilitate a concerted approach by various national parliamentary 
control mechanisms via the Member States’ governmental representatives. It appears from the 
2009 COSAC report referred to above that it was difficult for national Parliaments, on their 
own, to gather sufficient information on the relevant decisions of the Council of Ministers and 
of Europol’s Management Board.  

4. 

OUTLOOK FOR THE FUTURE: EUROPOL IN THE NEW INSTITUTIONAL FRAMEWORK 

The  Lisbon  Treaty  has  brought  about  a  number  of  innovations  that  have  a  direct  impact  on 
Europol’s future development and a direct bearing on the subject of parliamentary scrutiny. 

4.1. 

The issue of the attribution of coercive powers — Article 88(3) TFEU 

Over the past decade, the extension of Europol’s mission to include coercive powers has been 
an  open  question.  However,  in  the  ensuing  discussions,  the  hypothetical  introduction  of 
coercive powers was linked to the precondition of greater parliamentary and judicial oversight 
of  Europol.  In  its  Communication  of  200233,  the  Commission  stated  that  farther-reaching 
measures of parliamentary control would become necessary if in the future Europol were to 
be  entrusted  with  investigative  powers.  A  similar  conclusion  was  last  mentioned  in  the 
working document of the rapporteur of the LIBE-Committee in February 200734. 

A  development  of  this  kind  is  now  excluded.  Article  88  (3)  of  the  TFEU  rules  out  any 
attribution  of  coercive  powers  to  Europol  in  the  future:  ‘Any  operational  action  by  Europol 
must be carried out in liaison and in agreement with the authorities of the Member State or 
States  whose  territory  is  concerned.  The  application  of  coercive  measures  shall  be  the 
exclusive responsibility of the competent national authorities.’ 

Europol has none of the powers which typically fall within the remit of national police forces 
— such as the right to arrest, to perform house searches, or to wiretap. The provision granting 
Europol the right to request that Member States initiate criminal investigations35 only enables 
it  to  instigate  action  in  specific  cases  and  not  to  force  a  Member  State  to  do  so.  Europol 
cannot  independently  conduct  enquiries  in  the  Member  States.  The  same  applies  to 

32 

33 

34 

35 

Draft  Resolution  of  the  Interparliamentary  Conference  on  Parliamentary  Control  of  Europol  in  The 
Hague, 8 June 2001. 
Communication  from  the  Commission  to  the  European  Parliament  and  the  Council  —  Democratic 
Control over Europol, 26.02.2010, COM(2002) 95 final. 
Working document on the establishment of the European Police Office (Europol, Committee on Civil 
Liberties, Justice and Home Affairs, Rapporteur: Agustín Díaz de Mera García Consuegra, 19 February 
2007 PE 384.589v01-00. 
Article  7  of  the  Council  Decision.  The  right  to  request  the  opening  of  an  investigation  was  already 
included in Article 3 of the Europol Convention. Now Member States are obliged to react to Europol’s 
request (‘shall’),while previously they were merely invited to do so( ‘should'), but they can still decide 
not to initiate the requested investigation. 

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participation  by  Europol  agents  in  joint  investigation  teams36,  which  takes  place  in  a 
supporting capacity, while the taking of any coercive measures remains the sole responsibility 
of the competent authorities of the Member State37. 

4.2. 

Role of national Parliaments under the Treaty of Lisbon 

The Treaty of Lisbon increases the rights and obligations of national Parliaments to the extent 
that  they  actively  contribute  to  the  good  functioning  of  the  Union38.  Their  new  role  in  the 
political processes includes: 

- receiving from the Commission any draft legislative act (at the same time as it is 
transmitted to the EP and the Council);  

- verifying the latter’s compliance with the principle of subsidiarity. 

Thus  national  Parliaments  are  now  important  actors  at  the  early  stages  of  European  policy 
making. 

Looking  ahead  to  a  future  regulation  on  Europol,  as  required  by  Article  88(2)  TFEU,  the 
involvement  of  national  Parliaments  in  scrutinizing  draft  legislative  acts  at  European  level 
also has implications for the issue of parliamentary scrutiny of Europol. 

Under  the  Lisbon  framework,  the  national  Parliaments  have  the  right  to  be  informed  about 
legislative proposals and have an opportunity to state their opinion. On the basis of national 
constitutional  procedures,  national  Parliaments  can  issue  an  opinion  on  any  legislative 
proposal by  the EU legislator.  Depending  on national law, the Parliament’s opinion may be 
binding upon the government’s position in the Council.  

Hence,  national  Parliaments  will  also  be  able  to  contribute  to  the  shaping  of  the  future 
regulation governing Europol. 

5. 

CONCLUSION AND RECOMMENDATIONS  

There can be no doubt that law enforcement-related activities need to be supervised, above all 
where they interfere with citizens’ fundamental rights and freedoms. In the case of Europol, 
Article 88 of the TFEU provides for the establishment of control mechanisms on the part of 
the  European  Parliament  and  national  Parliaments.  Europol's  mission  and  tasks  have  the 
potential to affect individuals’ right to privacy39. Control by the European Parliament together 
with national Parliaments is therefore necessary to enhance the democratic legitimacy of this 
particular area of transnational EU cooperation.  

In  recent  years,  discussions  on  the  future  of  Europol  have  often  focused  on  a  possible 
extension of its role to include an attribution of coercive powers similar to the ones entrusted 
to  national  police  forces.  There  has  been  a  general  consensus  that  such  an  extension  of  its 
powers should go hand in hand with a strengthening of parliamentary powers of supervision. 

36 
37 

38 
39 

Article 6 of the Council Decision. 
The  Council  Regulation  (EC)  No  371/2009  of  27  November  2008  amending  Regulation  (Euratom, 
ECSC, EEC) No 549/69 on Europol staff determining the categories of officials and other servants of 
the  European  Communities  to  whom  the  specific  provisions  of  Article  12,  the  second  paragraph  of 
Article 13 and Article 14 of the Protocol on the Privileges and Immunities of the Communities apply 
(OJ L 121, 15.05.2009, p.1) clarifies that immunity from legal proceedings does not apply to Europol 
staff participating in joint investigation teams. 
Article 12 of the Treaty on the European Union (TEU). 
Article 8 of the Charter of Fundamental Rights of the European Union. 

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As we have seen, despite a gradual enhancement of Europol’s tasks, it has not acquired any 
coercive  or  autonomous  investigative  means  of  action40  and  the  TFEU  prevents  the  agency 
from acquiring any coercive powers in the future.  

Given the nature of Europol’s powers, the existing control mechanisms have generally been 
considered  to  be  legally  appropriate  and  —  taken  together  —  these  mechanisms  go  beyond 
what  generally  exists  with  respect  to  the  parliamentary  control  of  police  services  in  the 
Member States. However, there are a few outstanding issues in the debate about parliamentary 
oversight.  Some  of  these  were  touched  upon  at  a  recent  interparliamentary  Committee 
meeting41. 

Firstly,  existing  controls  through  the  Parliaments,  the  national  data  supervisory  bodies, 
Europol’s  Joint  Supervisory  Body  and  the  Management  Board  are  perceived  as  being 
exercised  in  a  manner  which  is  indirect,  fragmented  and  not  easy  to  understand.  National 
Parliaments  in  particular  consider  the  supervision  process  via  the  control  of  their 
governmental  representative  on  the  Board  or  in  the  Council  to  be  cumbersome.  Moreover, 
they have found it difficult to coordinate their efforts among each other. National Parliaments 
may still feel they that they lack information about Europol’s work. 

Secondly, in the absence of an incisive legislative role, the EP has for some time wished to 
exercise a closer and deeper scrutiny of Europol’s activities. 

The Council Decision of 2009 introduced innovations which extended considerably the role 
of the EP vis-à-vis Europol and also provided opportunities for regular information exchange 
mechanisms. 

However,  these  new  supervisory  instruments  do  not  touch  upon  coordination  between  the 
European  Parliament  and  national  Parliaments  on  the  issue  of  monitoring.  Moreover,  in  the 
absence  of  a  ‘COSAC-like’  gathering  of  national  parliamentary  committees  responsible  for 
issues  surrounding  policing,  the  coordination  of  National  Parliamentary  efforts  could  be 
increased. 

The  recommendations  put  forward  in  the  following  sections  are  intended  to  address  these 
issues,  providing  elements  to  feed  into  the  inter-institutional  debate  on  the  mechanism  for 
parliamentary  scrutiny.  The  suggestions  contained  in  sections  5.1  and  5.2  could  be  put  into 
practice  even  before  a  new  regulation  on  Europol  is  issued  which  should  be  done  in  2013, 
because of the need to perform an evaluation of the current Council Decision and an impact 
assessment.  

The shape and content of the forthcoming procedures for the democratic scrutiny of Europol 
will  depend  on  the  contributions  which  will  be  provided  by  the  institutions  and  other 
stakeholders  in  the  context  of  the  ongoing  reflection  on  Europol’s  future  legal  framework. 
This  process,  launched  in  April  2010  by  the  Commission,  involves  all  the  institutional 
stakeholders. A first meeting took place in July 2010.  

40 

41 

Even  Europol’s  recently  acquired  task  in  the  context  of  the  implementation  of  the  EU-US  Terrorist 
Financing  Tracking  agreement  —  the  verification  process  of  incoming  requests  for  data  —  does  not 
amount to a coercive measure. 
Interparliamentary Committee Meeting on 'Democratic Accountability in the Area of Freedom, Security 
and Justice; evaluating Europol, Eurojust, Frontex and Schengen'. 4-5 October 2010, Brussels. 

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The  results  of  the  current  work  of  the  inter-institutional  group  on  regulatory  agencies42  will 
also  provide  valuable  input  to  the  debate.  The  overall  reflection  will  be  of  the  utmost 
importance for a sound and well thought-through proposal. 

This communication is meant as a first step in that direction. 

5.1. 

Setting up of a permanent joint or interparliamentary forum  

The  Commission  backs  this  idea,  which  has  been  put  forward  on  several  occasions  and  is 
supported  by  Parliaments  and  academics  alike.  The  institutional  framework  of  the  Lisbon 
Treaty provides a fresh opportunity to put the idea into practice43. 

An  interparliamentary  forum  could  consist  of  both  the  national  Parliaments'  and  the  EP’s 
committees responsible for police matters. This joint body could meet at regular intervals and 
invite  the  Director  of  Europol  to  discuss  questions  relating  to  the  agency’s  work.  It  could 
establish a special subgroup, for instance, to liaise directly with Europol44. The Commission 
recommends  that  the  Chairman  of  the  Management  Board  should  also  be  invited  to  appear 
before this body.  

By setting up this forum, a formal mechanism would be established for information exchange 
and  coordination  between  national  Parliaments  and  the  EP  with  a  view  of  unifying 
parliamentary  control  at  European  Union  level  (without  prejudice  to  national  parliamentary 
procedures). The Commission would welcome the opportunity to be actively involved in the 
work of this body. 

This  joint  body  would  have  to  be  flexible  enough  to  allow  it  to  operate  efficiently.  It  lies 
within  the  power  of  both  the  EP  and  the  national  Parliaments  to  coordinate  their  work  and 
enhance  their  cooperation,  and  they  should  be  encouraged  to  take  that  initiative  as  well  as 
ownership of their own procedures. 

5.2. 

Increased  transparency:  a  new  communication  strategy  with  the  EP  and 
national Parliaments  

In order to allow the EP to contribute to the provision of strategic guidelines and to take part 
in setting priorities for the agency’s activities, it would be useful to hold a debate in the LIBE 
Committee on Europol’s multiannual strategy and on its annual work programme. 

In recent years, Europol has made considerable efforts to improve accountability, inter alia by 
developing  performance  measurement  processes.  At  varying  intervals,  Europol  produces 
evaluation reports and other documents assessing its work.  

42 

43 

44 

As established further to the Commission Communication COM(2008)135 final ‘European Agencies — 
the way forward’. 
Article 9 of the Protocol (No 1) on the role of national Parliaments in the European Union of the TFEU 
states: ‘The European Parliament and national Parliaments shall together determine the organisation and 
promotion of effective and regular interparliamentary cooperation within the Union’. 
Article 10 of the Protocol (No1) states: 'A Conference of Parliamentary Committees for Union Affairs 
may  submit  any  contribution  it  deems  appropriate  for  the  attention  of  the  European  Parliament,  the 
Council  and  the  Commission.  That  conference  shall  in addition  promote  the  exchange of  information 
and  best  practice  between  national  Parliaments  and  the  European  Parliament,  including  their  special 
committees. 
As was suggested by the Commission in its 2002 Communication. 

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Europol’s democratic legitimacy will benefit from increased transparency vis-à-vis the EP and 
the national Parliaments. Accordingly, Europol should transmit systematically to the EP and, 
via designated contact points, also to the national Parliaments: 

- a regular update of its operational achievements; and 
- the results of the ‘user survey’45 (every 2 years). 

To consolidate communication between a future interparliamentary forum and the governing 
bodies of Europol, a regular exchange of views could also be envisaged on the occasion of the 
submission  of  Europol's  strategic  documents  or  the  abovementioned  reports  by  the  Director 
and/or  the  Chair  of  the  Management  Board.  The  network  of  the  interparliamentary  forum 
could also serve as an information channel, transmitting documents relating to Europol swiftly 
to the national Parliaments.  

Finally, the Commission will keep the national Parliaments informed of the evolution of the 
Europol Council Decision evaluation. 

5.3. 

Separating roles 

With  a  view  to  the  future  regulation,  it  will  be  important  to  ensure  adequate  separation 
between legislative and executive powers and between authorities with different roles. Hence, 
the  Commission  would  not  recommend  that  the  EP  designate  members  to  the  Management 
Board. 

Equally, to avoid turning the appointment of the executive Director into a political issue, the 
Commission  takes  the  view  that  he/she  should  be  appointed  by  the  Management  Board  and 
not by the Council or the EP. 

45 

The Europol User Survey measures the customer satisfaction level with Europol's overall performance 
and  selected  products  and  services  and  is  sent  electronically  to  selected  users  in  Member  States  and 
partners once every 2 years. 

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