FECL 34 (May 1995):
While strongly supporting the development of closer cooperation in law enforcement within the EU, the SC emphasises that "[the] powers to develop and share information and intelligence among the police authorities of fifteen Member States do... present great dangers for individuals".
In the opinion of the SC "it is essential that Europol should be established on a firm legal basis and made publicly accountable for its policies and actions".
The fact that in the absence of agreement on a Europol Convention the EDU, which forms the nucleus of Europol, has been set to work and the scope of its activities been "greatly extended" on the mere basis of legally non-binding agreements among ministers has led to an "unsatisfactory situation [that] will inevitably continue for some time", the Lords note; and they emphasise that EDU/Europol's current activities "are not subject to any common rules on data protection" and that "it is uncertain whether an individual who suffered damage would have any remedy".
The SC stresses that its enquiry has "shown once again how important it is that national parliaments if they are to be responsible for the democratic supervision of measures adopted under the Justice and Home Affairs pillar [Third pillar of the Maastricht Treaty] should be able to consider drafts at a time when they can make a constructive input. To do so at the stage of ratification is not an adequate substitute since they then only can reject or endorse the measure".
The SC welcomes the fact that the draft Convention does not give Europol its own operational powers and stresses that such powers for Europol "may never be appropriate, at least in the absence of substantive European criminal law". The SC implicitly rebuffs German drives towards a "European FBI": "It is not valid to make a comparison with the United States of America. There the existence of federal offences makes it necessary to have a Federal Bureau of Investigation with direct powers to enforce federal laws".
The SC also rejects suggestions that Europol could assist in securing attendance of witnesses or provision of evidence in criminal proceedings in other member states. "It seems undesirable to use Europol in this way since it would confuse exchange of police information with exchange of information in the context of criminal proceedings", the Committee stresses.
Regarding the remit of Europol, the SC notes that "the crimes within the initial competence [such as car theft and "nuclear trafficking"] reflect preoccupations of several member states and appear on the list not because they are the most serious offenses but because they are particularly transnational in character". However, the Lords see no reason to object to the list of crimes and of their description in the draft Convention, provided that the remit of Europol is extended "in a controlled way" with "adequate safeguards in place".
With respect to data protection the SC notes that the draft Convention only requires member states' national legislation to "take account" of the Council of Europe Recommendation (No. R(87)15) on the Use of Personal data in the Police Sector.
Europol itself is required only to "take account of the principles of the Council of Europe Convention" [for the Protection of Individuals with regard to Automatic Processing of personal Data of 28 January 1981]. "We believe that such a provision is inadequate and that Europol should be made subject to a requirement under the terms of its own Convention to comply with all appropriate obligations in the Council of Europe Convention", the report says.
The draft Convention requires Europol to grant data subjects access to information concerning them "only if the effort in providing this is not disproportionate to the interest in the information stated by the data subject". The Lords' comment on this very elastic provision is not without humour: "We find this exception surprising given what we were told on the facility for instant response which Europol is to provide, and it allows too much discretion". Consequently, the SC demands "some clarification of this power to withhold". The SC also finds the three month period within which Europol must take a decision on data subjects' applications for information "unnecessarily long given that speed of response is to be a key feature of Europol".
As for the exception in the draft Convention to the principle of data subjects' access to information "for the proper performance of Europol's tasks", the Lords find it "unnecessarily wide".
The SC is of the opinion that the draft Convention places "reasonable limits on exchange of data by Europol with third parties such as non-Member States and Interpol". This view is, however, not shared by several of the witnesses heard by the Committee.
The SC is of the opinion "that general accountability of Europol for its policies and methods of operation will be important in building public confidence in a body which is to be given formidable powers to acquire and manipulate secret and highly sensitive information" and therefore demands to "see in draft the important provisions which the Council must adopt following the entry into force of the Convention before Europol can become fully operational". However, the SC is satisfied with the provisions having respect to informing and consulting the European Parliament.
As opposed to the British government, who has so far opposed any role of EU-bodies within the framework of Europol, the SC is "not convinced that there are sound arguments for excluding the Court of Auditors".
The SC finds that the draft Convention does not provide sufficiently for individuals to secure redress for damage suffered as a result of unauthorised or incorrect processing of their personal data. In the view of the Committee, the best solution would be for the individual to be entitled to bring action in national courts against his or any other appropriate national authority. The national authority should be entitled to join Europol as a defendant in the proceedings, since the individual will often not be in a position to determine whether fault lay with the national authority or with Europol. Citizens of member states should be entitled to sue Europol directly in national courts. The SC fails to make proposals on remedies available to non-EU nationals.
The SC rejects the arguments of the British government against a jurisdiction for the European Court of Justice on the grounds that "the European Court has sufficient experience of cases involving external agreements of the Communities to be sensitive to the differences of approach and interpretation between European Community law and public international law". While the Lords are "not persuaded that there should be direct access by the citizen to the European Court of Justice" they take the view that reference should be possible to the European Court where disputes arise as to the interpretation and application of the Convention and that it should be possible for proceedings to be brought against a member state by another member state if it is alleged that the Convention is being breached.
"It is... important that the Convention should be applied on a uniform basis by all Member States", the report says, and the Lords make it clear that they would "not support a compromise which left the European Court with uneven jurisdiction in regard to the Member States, whether by an optional protocol under which some member States could decide that the European Court would have jurisdiction involving themselves or referred by their national courts, or by permitting reservations [by certain member states]". This statement amounts to a rejection by the SC of any compromise formula (as proposed among others by the Dutch Standing Committee of Experts; see FECL No.33: "Dutch experts make proposals to amend Maastricht Treaty") seeking to overcome the current deadlock regarding the issue of jurisdiction.
The report concludes that the Europol Convention raises "important matters of policy and principle" that require public debate in parliament.
Source: House of Lords Session 1994-95, 10th Report, select Committee on the European Communities: Europol, HL Paper 51-I (Summary), 25.4.95. See also OPINION in this FECL.