COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to Article 294(6) of the Treaty on the Functioning of the European Union concerning the Position of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA
Date: 2016-04-08
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: CEPOL, Eurojust, Europol, fight against crime, institutional reform, operation of the Institutions, rules of procedure

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 8.4.2016  COM(2016) 209 final 2013/0091 (COD)   COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the Position of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA  
 
 
2013/0091 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the 

Position of the Council at first reading with a view to the adoption of a Regulation of the 
European Parliament and of the Council on the European Union Agency for Law 
Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 
2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA 

1. 

BACKGROUND 

Date of transmission of the proposal to the European Parliament and 
to the Council 
(document COM(2013) 173 final – 2013/0091 COD)) 

27.03.2013 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

n/a 

Date of the position of the European Parliament, first reading: 

25.02.2014 

Date of transmission of the amended proposal: 

Date of adoption of the position of the Council: 

n/a 

10.03.2016 

2. 

OBJECTIVE OF THE PROPOSAL FROM THE COMMISSION 

The proposal aimed at aligning Europol with the requirements of the Treaty of Lisbon by 
setting  up  the  legislative  framework  of  Europol  in  a  regulation  and  by  introducing  a 
mechanism  for  control  of  Europol's  activities  by  the  European  Parliament,  together  with 
national  parliaments.  The  proposal  also  intended  to  increase  Europol's  efficiency, 
effectiveness and accountability. This was to be achieved by enhancing Europol's analytical 
capabilities and triggering operational action on the part of Member States while at the same 
time  strengthening  even  further  the  agency's  data  protection  regime.  In  order  to  enhance 
efficiency, and in line with the Common Approach on Decentralised Agencies, the proposal 
intended  to  merge  Europol  with  the  European  Agency  for  Law  Enforcement  Training 
(CEPOL). Finally, the proposal aligned Europol's governance with the principles set out in the 
Common Approach on the EU decentralized agencies.  

3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

Political  agreement  was  reached  between  co-legislators  at  the  trilogue  meeting  of  26 
November 2015, and  was endorsed by COREPER on 27 November 2015, and by the LIBE 
Committee on 30 November 2015. 

EN 

2 

   EN 

 
 
 
The  main  differences  between  the  Common  Position  and  the  original  Commission  proposal 
are set out below. 

Merger between Europol and CEPOL (Title, Article 1) 

As a result of the widespread and strong opposition expressed both in Council formations and 
in LIBE against the merger of Cepol with Europol, the Commission decided to renounce to 
this  aspect  of  its  legislative  proposal.  A  Regulation  reforming  CEPOL  has  been  meanwhile 
adopted. Therefore, no reference to the merger is made in the text of the Common position.  

Internet Referral Unit (Article 4) 

The  Common  position  lays  down  provisions  necessary  for  the  functioning  of  the  Internet 
Referral Unit (IRU), which is one of the important anti-terrorist measures designed to reduce 
the volume and accessibility of the terrorist propaganda online. IRU was a new element to the 
regulation introduced following the terrorist attacks in Paris in 2015, highly promoted by the 
European  Agenda  on  Security  and  vital  in  the  current  security  context.  The  text  allows 
Europol to transfer publicly available personal data to private parties, if necessary to support 
Member States in the prevention and fight against the crime falling under Europol’s mandate, 
committed or facilitated by the use of internet. 

Governance provisions  

Provisions on governance as presented in Commission's original proposal stemmed from the 
Common  Approach  on  EU  Decentralised  Agencies.  Governance  was  one  of  the  most 
controversial  issues  discussed  during  the  negotiations.  The  following  compromises  were 
agreed by the co-legislators: 

(a)  Composition of the Management Board (Article 10) 

The Common position limits the number of representatives of the Commission in the 
Management Board to  one  instead  of two (as foreseen in the Common  Approach  on 
Decentralised Agencies).  

(b)  Executive Board (former Chapter IV) 

The  Commission  proposal  provided  for  the  optional  establishment  of  an  Executive 
Board, in charge of delivering administrative support to the Management Board and to 
the  Executive  Director.  As  a  consequence  of  the  strong  opposition  of  the  co-
legislators,  the  Common  position  does  not  include  the  possibility  to  set  up  such  a 
body.  The  Commission  accepted  the  deletion  of  the  option  to  set  up  an  Executive 
Board. However, on the basis of Article 68 of the Common position, the Commission 
will  have  the  possibility  to  assess  in  the  future  the  necessity  of  establishing  an 
Executive Board. The Commission also explained this in a declaration and committed 
to  an  evaluation  of  the  situation  in  two  years.  In  order  not  to  jeopardise  future 
negotiations  on  the  Eurojust  proposal,  the  declaration  is  complemented  with  a 
statement  underlining  the  value  of  the  Executive  Board  in  the  management  of  EU 
agencies. 

(c)  Appointment of the Executive Director (Article 54) 

EN 

3 

   EN 

 
 
 
 
The  text  of  the  Common  position  departs  from  Commission's  proposed  procedure, 
which  was  aligned  with  the  Common  Approach  on  Decentralised  Agencies  (pre-
selection of candidates by the Commission and the appointment by the MB).    

The  Common  position  sets  out  a  procedure  where  the  appointment  is  done  by  the 
Council  on  the  basis  of  a  shortlist  drawn  up  by  a  mixed  committee,  consisting  of  a 
Commission representative and representatives of the Member States.  

Given  the  abovementioned  deviations  from  the  Common  Approach  on  Decentralised 
Agencies, the Commission decided to make a political declaration underlining that the agreed 
text is not fully aligned with the principles of the Common Approach.  

Access by Eurojust to information stored by Europol (Article 21) 

Following a strong request by the European Parliament, the access by Eurojust to information 
stored by Europol has been limited to an indirect one, based on a hit-no-hit system. This is in 
line with the mirror provision contained in the Eurojust regulation.  

Cooperation  between  the  European  Data  Protection  Supervisor  and  national 
supervisory authorities (Articles 44 and 45)  

The  Common  position  enhances  the  cooperation  between  the  European  Data  Protection  
Supervisor  (EDPS)  and  national  supervisory  authorities,  while  at  the  same  time  ensuring 
EDPS independence and effectiveness.  Cooperation is enhanced in two ways: 

(a)  A  “Cooperation  Board”  is  introduced  as  a  formal  discussion  platform  for  the 
EDPS and national data protection supervisory authorities to regularly discuss 
general  data  protection  strategy,  draw  up  harmonized  proposals  for  joint 
solutions 
involvement,  examine  difficulties  with 
interpretation  of  the  Europol  regulation,  etc.  This  new  Cooperation  Board  is 
however not a decision-making body but an advisory body only.  

requiring  national 

(b)  A  reinforced  "daily"  cooperation  between  the  EDPS  and  the  national 
supervisory authorities (the EDPS will use the expertise and experience of the 
national  supervisory  authorities  in  all  cases  where  he  carries  out  his  duties; 
there will be joint inspections of the EDPS and national supervisory authorities, 
the EDPS will consult the national supervisory authorities concerned in cases 
relating to data originating from one or several Member States, etc.) 

The creation of a Cooperation Board was accepted by the Commission. However, in order to 
ensure  effectiveness  and  consistency  and  avoid  unnecessary  duplication,  the  Commission 
issued a declaration stressing that the functions exercised by Cooperation Board set up in the 
Europol Regulation shall be swiftly taken up by the European Data Protection Board created 
in the context of the Data Protection reform (see Statement n. 2 in Section 5).  

Parliamentary scrutiny (Chapter VIII) 

By means of as general provision, the Commission proposal ensured that Europol's activities 
were subject to parliamentary scrutiny, as required by Art.88 TFEU. 
During the negotiations, the European Parliament stressed the need to spell out more in detail 
the way in which parliamentary scrutiny is carried out. 

EN 

4 

   EN 

 
  
 
 
 
   
As a consequence, the creation of a Joint Parliamentary Scrutiny Group (JPSG) was included 
in the text of the Common position. The JPSG will be a specialised body established together 
by  the  national  parliaments  and  the  competent  committee  of  the  European  Parliament, 
responsible for the political monitoring of Europol's activities. This monitoring will comprise 
inter  alia  information  on  planning  and  reporting  documents,  consultation  of  the  European 
Parliament  and  national  parliaments  on  Europol’s  multi-annual  work  programme1,  and 
inviting  the  Executive  Director  and  the  Chairperson  of  the  Management  Board  to  discuss 
issues related to Europol. 

4. 

CONCLUSION 

Despite  the  changes  that  the  Common  position  has  introduced,  the  text  of  the  Common 
position  constitutes  the  best  possible  outcome  that  the  Commission  could  reach  in  the  two-
year negotiations with the Parliament and the Council on a very complex text.  

The Commission's objectives for the Europol reform have been achieved by aligning Europol 
with the requirements of the Treaty of Lisbon and by increasing its efficiency, effectiveness 
and accountability.  

The alignment of Europol's governance with the principles set out in the Common Approach 
on the EU decentralised agencies was not entirely achieved, due to the strong resistance of the 
co-legislators.  The  Commission  will  have  a  role  the  management  of  the  agency,  i.e.  it  will 
have a voting representative in the Management Board and will participate in the pre-selection 
of the Executive Director.  

5. 

STATEMENTS BY THE COMMISSION  

1. On the Common Approach to the EU Decentralised Agencies  
"The  Commission  recalls  that  the  agreed  text  is  not  fully  aligned  with  the  principles  of  the 
Common  Approach  on  the  EU  decentralised  agencies.  Therefore  the  agreement  reached 
between the EP and the Council on the governance of the agency is without prejudice to any 
future legislative texts. The Commission remains convinced of the benefits of establishing an 
Executive  Board  as  part  of  the  governance  structure  of  Europol  and  other  agencies.  The 
Commission  will  review  the  situation  concerning  Europol  governance  within  the  next  two 
years, in particular with a view to determining whether further proposals on this point will be 
warranted."  

2. On the Cooperation Board  

"The  European  Commission  consider  that,  following  the  adoption  of  the  proposed  General 
Data Protection Regulation and Data Protection Directive for data processing in the police and 
justice sector and in light of the announced review of Regulation (EC) No 45/2001, to ensure 
effectiveness and consistency and avoid unnecessary duplication, the functions exercised by 
Cooperation Board set up in this Regulation shall be exercised by the newly created European 
Data Protection Board." 

1 

The JPSG will also be used as the body through which consultation with national parliaments on multi-
annual  programming  is  channelled.  This  would  alleviate  the  responsibility  for  Europol  to  consult  28 
National  Parliaments  and  the  European  Parliament  on  its  multi-annual  programming  (as  foreseen  in 
Commission's original proposal. 

EN 

5 

   EN