Abstract
The European police office (Europol) is probably the point of greatest interest and greatest development in European police cooperation. The introduction of an ad hoc European agency in this field, in fact, has often evoked the creation of a “European police” in a technical sense and, under a different but connected profile, has posed the problem of democratic legitimacy and control over an activity however related to the exercise of individual liberties.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
Cf. Theoharis (2000).
- 2.
Cf. Fijnaut and Verbruggen (1997).
- 3.
Cf. Richardot (2002).
- 4.
Cf. Fijnaut (2013).
- 5.
Article K.1, indeed, inserts among “issues of common interest” also police cooperation, “in connection with the Union-wide organisation of an information exchange system within a European Police Office (Europol)”.
- 6.
Cf. Flynn (1997).
- 7.
In September 1992 there was an extension to the fight against terrorism and great crime, in December 1994 to the fight against the trafficking of radioactive and nuclear substances, to the crimes related to illegal immigration, to the illicit traffic of stolen vehicles and to the money laundering connected to these crimes, in 1996 to the fight against pornography and trafficking in human beings.
- 8.
Convention based on Article K.3 of the Treaty on European Union on the establishment of a European Police Office (Europol Convention), O.J. C 316/2 (1995).
- 9.
Protocol drawn up on the basis of Article K.3 of the Treaty on European Union, on the interpretation, by way of preliminary rulings, by the Court of Justice of the European Communities of the Convention on the establishment of a European Police Office done at Brussels on the 24th day of July, 1996, O.J. C 292 (1996).
- 10.
Council Decision 2009/371/JHA establishing the European Police Office (Europol), O.J. L 121 (2009).
- 11.
- 12.
- 13.
Regulation (EU) 2016/794 of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation (Europol), O.J. L 135 (2016).
- 14.
Denmark participated fully in Europol as long as it operated under Council Decision 2009/371/ JHA. Under the Protocol No. 22 on the position of Denmark, attached to the TEU and the TFEU, Denmark was not able to participate in the adoption of the new Europol regulation and is not subject to its application (which started on 1 May 2017: from that date Denmark is no longer part of Europol and can no longer participate in its activities, consult its databases or exchange data with that agency). On 3 December 2015 a referendum was held in Denmark on the conversion of the current non-flexible non-participation clause in the field of justice and home affairs, provided for in Protocol No. 22, in a more flexible selective participation clause, similar to that currently in force for Ireland and the United Kingdom. After the negative referendum, informal discussions took place between the Danish authorities and the European institutions in order to identify ways to allow Denmark to be associated as closely as possible to Europol. On this basis, a bespoke Agreement on strategic cooperation between the Kingdom of Denmark and Europol, which allows the involvement of Denmark in Europol, was reached on 29 April 2017. This is a very special operational agreement and—despite having taken the form of the “operational agreements” that Europol has entered into with third countries in the past—the agreement guarantees to Denmark a greater involvement in Europol’s activities (such as participation by invitation to the Europol Management Board).
- 15.
Cf. Genson and Buyssens (2009), p. 84.
- 16.
- 17.
Article 3 of Regulation (EU) 2016/794.
- 18.
Cf. Dorn (2009), p. 283.
- 19.
Cf. De Moor and Vermeulen (2010a), p. 64.
- 20.
According to Article 4.4 of Regulation (EU) 2016/794; Europol stands also as Central Office for fighting euro counterfeiting.
- 21.
The Article 26 of Regulation (EU) 2016/794 provides that insofar as is necessary in order for Europol to perform its tasks, Europol may process personal data obtained from private parties on condition that they are received via: (a) a national unit in accordance with national law; (b) the contact point of a third country or an international organisation with which Europol has concluded, before 1 May 2017, a cooperation agreement allowing for the exchange of personal data in accordance with Article 23 of Decision 2009/371/JHA; (c) an authority of a third country or an international organisation which is the subject of an adequacy decision or with which the Union has concluded an international agreement pursuant to Article 218 TFEU.
- 22.
According to Brexit Agreement (Article 64), by way of derogation from Article 8, UK shall be entitled to use, for no longer than 1 year after the end of the transition period, the Secure Information Exchange Network Application (SIENA) to the extent strictly necessary to complete the ongoing procedures with reference to specific issues.
- 23.
Article 18 of Regulation (EU) 2016/794.
- 24.
It should also not be forgotten that Europol has access to certain categories of SIS data, including reports related to persons wanted for arrest for extradition purposes and reports relating to persons subject to extraordinary monitoring as they represent a threat to public safety or State security, as well as the VIS database, which can be consulted for the purposes of preventing and contrasting terrorism and other serious forms of crime. Europol has also access to the SID database.
- 25.
Article 9 of Regulation (EU) 2016/794.
- 26.
According to Article 10.2 Regulation (EU) 2016/794, the members of the Management Board must be appointed taking into account their knowledge of law enforcement cooperation. Being a Union agency, participation in Europol’s main body requires specific technical expertise.
- 27.
Cf. Abazi (2014).
- 28.
Pallaro (2002), p. 353, underlines that in particular Europol’s analysis files may contain numerous and qualitatively more “valuable” data (on the police level) than those that can be included in the Schengen SIS. The possibility of entering sensitive data appears in fact much more accentuated in the Europol framework than in the Schengen framework.
- 29.
Directive (EU) 2016/680 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, O.J. L 119 (2006) para 89.
- 30.
Council of Europe Committee of Ministers Recommendation No R(87) 15 to the Member States on regulating the use of personal data in the police sector, 17 September 1987.
- 31.
- 32.
These tolls find inspiration in the principle of data protection by design (Article 33 of Regulation (EU) 2016/794).
- 33.
Regulation (EU) 2016/794, Article 28.
- 34.
Cf. Hijmans (2006), p. 1313.
- 35.
Cf., for this distinction, Brown (2010).
- 36.
Regulation (EU) 2016/794, Article 5.5.
- 37.
In these situations, Europol staff participating in a joint investigation team may provide all members of the team with necessary information processed by Europol and shall at the same time inform the national units of the MS represented in the team, as well as those of the MS which provided the information. Information obtained by Europol staff while part of the joint investigation team may, with the consent and under the responsibility of the MS which provided the information, be processed by Europol.
- 38.
- 39.
According to Article 6 of Regulation (EU) 2016/794 national authorities may fail to make explicit the reasons for the refusal to proceed in the direction indicated by Europol if providing them would: (a) be contrary to the essential interests of the security of the Member State concerned; or (b) jeopardise the success of an ongoing investigation or the safety of an individual.
- 40.
Europol and Eurojust shall also co-ordinate requests addressed to the national authorities in the Member States to conduct or co-ordinate investigations in specific cases, in accordance with their respective mandates and competence.
- 41.
Europol will inform Eurojust on the opening of an analysis work file. Eurojust may present a motivated request to Europol to take the initiative to open an analysis work file or to establish a target group, if Eurojust is associated with the analysis work file concerned. Europol may invite experts from Eurojust to be associated with the activities of a specific analysis group, subject to an association arrangement concluded between Europol and Eurojust, in particular when Eurojust initiated the opening of the respective analysis work file.
- 42.
Tampere European Council, 15–16 October 1999, Presidency conclusions, No 8.
- 43.
Strategic agreements, usually, focus on the exchange of specialist knowledge, general situation reports, results of strategic analysis, information on criminal investigation procedures, information on crime prevention methods, participation in training and exchange activities as well as providing advice and support in individual criminal investigations.
- 44.
Europol currently has 26 agreements: 18 operational agreements (17 with third countries and one with Interpol) and 8 strategic agreements (6 with third countries and the remaining two with United Nations Office on Drugs and Crime (UNODC) and World Customs Organization (WCO).
- 45.
Coman-Kund (2018), p. 13.
- 46.
European Commission, Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and repealing Decisions 2009/371/JHA and 2005/681/JHA, COM (2013) 173 final, para 4. On the “common approach” cf. Vos (2014).
- 47.
Cf. Fahey (2016).
- 48.
As far as it concerns the role of the EP, following Case C-363/14, Parliament v Council (ECJ 10 September 2015), the Council has adopted a document (Council doc. 12035/15 Judgment of the Court of 10 September 2015 in Case C-363/14, European Parliament v Council of the European Union—legality of a Council implementing Decision based on the 2009 Europol Decision concerning the list of third states with which Europol can conclude cooperation agreements) through which has interpreted in extensive manner the ECJ decision, affirming that in all cases where acts under the former third pillar confer implementing powers on the Council in accordance with the legal context of the time, the Council can still use them as a basis for legitimately adopting implementing measures, in accordance with the procedures they established, until the acts are repealed, annulled or amended. In doing so, it must in all cases—even where the provision of the basic act does not expressly so provide—consult the European Parliament, on an obligatory basis, in compliance with Article 39.1 TEU.
- 49.
Regulation (EU) 2016/794, Article 25.1 and 25.4.
- 50.
Regulation (EU) 2016/794, Article 11.2.
- 51.
Regulation (EU) 2016/794, Article 11.1 (r).
- 52.
Regulation (EU) 2016/794, Article 25.5. Derogations may not be applicable to systematic, massive or structural transfers. In the cases referred to in point (iii), however, personal data shall not be transferred if the Executive Director determines that fundamental rights and freedoms of the data subject concerned override the public interest.
- 53.
Among the first acts of the EP concerning Europol it is worth to mention Resolutions 22 January 1993 on the setting up of Europol, O.J. C 42, (1993), p. 250, 19 May 1995 on the Europol Convention, O.J. C 151 (1995), p. 376 and 14 March 1996 on Europol, O.J. C 96 (1996), p. 228.
- 54.
Recommendation to the Council on Europol: reinforcing parliamentary controls and extending powers (A4-0064/1999).
- 55.
Cf. Bruggeman (1995), p. 245.
- 56.
Commission communication to the European Parliament and the Council—Democratic Control over Europol, COM(2002) 95.
- 57.
The Communication describes as existing controls the provisions on data protection, the rules relating to the composition and functioning of the Board of Directors and parliamentary control.
- 58.
In the Commission’s perspective this purpose could have been achieved by setting up a mixed commission, composed of the members of the national parliamentary committees and the EP competent on police matters. This mixed commission could meet twice a year to exchange information and experiences, and could hold direct relations with Europol through an ad hoc committee.
- 59.
Cf. Coduti (2015), who highlights how the control by means of the approval of the budget and the discharge have a modest purpose of guiding Europol’s activity, resolving itself only in the possibility of contesting the financial attribution of the agency or the ways in which it has employed its resources.
- 60.
Cf. Tacea (2018).
- 61.
Regulation (EU) 2016/794, Article 51.
- 62.
The JPSG may request other relevant documents necessary for the fulfilment of its tasks relating to the political monitoring of Europol’s activities, subject to Regulation (EC) No 1049/2001 of the European Parliament and of the Council. For the purpose of enabling it to exercise parliamentary scrutiny of Europol’s activities, access by the EP to sensitive non-classified information processed by or through Europol, upon the European Parliament’s request, shall comply with the rules provided for by Europol pursuant Article 67.1 of Regulation (EU) 2016/794. Access by the EP to EU classified information processed by or through Europol shall be consistent with the Interinstitutional Agreement of 12 March 2014 between the EP and the Council concerning the forwarding to and the handling by the EP of classified information held by the Council on matters other than those in the area of the common foreign and security policy. The Article 5 Rules of procedure provides also that the JPSG shall appoint, from its full members, a representative who will be entitled to attend meetings of the Management Board of Europol as a non-voting observer (according to Article 14 of the Regulation (EU) 2016/794, however, this parliamentary observer can only participate in Management Board meetings by invitation).
- 63.
Rules of procedure of the Joint Parliamentary Scrutiny Group on Europol, in accordance with the Conclusions of the Conference of Speakers of the European Union Parliaments at its meetings of 22–24 May 2016 in Luxembourg and of 23-24 April 2017 in Bratislava, adopted on 19 March 2018 in Sofia, Bulgaria.
- 64.
The JPSG shall invite, to all its meetings, observers from the list of EU Member States that have concluded an Agreement on Operational and Strategic Cooperation with Europol. The JPSG may also decide to invite, on an ad hoc basis and for specific points on the agenda, observers from the list of international organisations or third countries with which Europol has concluded agreements. The Chairperson of the Management Board, the Executive Director or their Deputies, and the EDPS shall appear before the JPSG at its request. The JPSG may decide, where appropriate, to invite to its meetings guests and experts with experience relevant to its competence and tasks.
- 65.
If necessary, extraordinary meetings can be convened upon agreement of the Parliament of the Member State holding the rotating presidency of the Council of the European Union and the European Parliament, or upon agreement by at least one third of the Parliaments/Chambers, to address matters of urgency or matters that cannot be reasonably included in the agenda of the ordinary meetings. The date and venue of extraordinary meetings shall be decided jointly by the JPSG Co-Chairs.
- 66.
According to Article 4.2 of the JPSG Rule of Procedure, members of the JPSG may address both oral and written questions to Europol. Written questions may also be asked outside the meeting framework and independently of items listed on the agenda and shall be answered within an appropriate timeframe. The questions shall reflect the mandate of the JPSG as defined in Regulation (EU) 2016/794. These questions shall be relayed to Europol after their admissibility has been checked by the Co-Chairs and the question is deemed to be in line with the Europol regulation. A further written reply can be requested in case the answer to an oral question is deemed insufficient.
References
Abazi, V. (2014). The future of Europol’s parliamentary oversight: A great leap forward? German Law Journal, 15(6), 1121–1143.
Brown, D. (2010). The European Union, counter terrorism and police co-operation, 1997–2007. Unsteady foundations? Manchester: Manchester University.
Bruggeman, W. (1995). Democratic control of justice and home affairs: The European Parliament and national Parliaments. In R. Bieber & J. Monar (Eds.), Justice and home affairs in the European Union: The development of the third pillar. Bruxelles: European Interuniversitary Press.
Chiti, E. (2013). European Agencies’ rulemaking: Powers, procedures and assessment. European Law Journal, 19(1), 93–110.
Coduti, D. (2015). Europol e ruolo dei Parlamenti (nazionali ed europeo). Quali prospettive dopo il Trattato di Lisbona? Diritto Pubblico Europeo Rassegna Online, 1–23.
Coman-Kund, F. (2018). Europol’s international cooperation between “past present” and “present future”: Reshaping the external dimension of EU police cooperation. Europe and the World, 2(1), 1–37.
De Buck, B. (2007). Joint investigation teams: The participation of Europol officials. ERA Forum, 8, 253–267.
De Moor, A., & Vermeulen, G. (2010a). Shaping the competence of Europol. A FBI perspective. In M. Cools, B. De Ruyver, M. Easton, L. Pauwels, P. Ponsaers, G. Vande Walle, T. Vander Beken, F. Vander Laenen, G. Vermeulen, & G. Vynckier (Eds.), EU and international crime control: Topical issues. Antwerpen: Maku.
De Moor, A., & Vermeulen, G. (2010b). The Europol council decision: Transforming Europol into an agency of the European union. Common Market Law Review, 47(4), 1089–1121.
De Moor, A., & Vermeulen, G. (2010c). The Europol council decision: A new legal basis for Europol. New Journal of European Criminal Law, 1(2), 178–199.
Dorn, N. (2009). The end of the organised crime in the European Union. Crime, Law & Social Change, 51, 283–294.
Fahey, E. (2016). Treading on whose toes? Europol, the European Parliament and the limits of parliamentary control and accountability. European Papers, 1(1), 339–341.
Fijnaut, C. (2013). Action de police internationale en Europe: état des lieux et perspectives. Cahiers de la sécurité interieure, p. 153.
Fijnaut, C., & Verbruggen, F. (1997). The eagle has not landed yet. The federalization of criminal investigation: Precedents and comparisons. In M. Den Boer (Ed.), Undercover policing and accountability from an international perspective. Bruxelles: EIPA.
Flynn, V. (1997). Europol – A watershed in EU law enforcement. In B. Garrett (Ed.), Justice Cooperation in the EU. The creation of a European legal space. Dublin: Institute of European Affairs.
Genson, R., & Buyssens, E. (2009). La transformation d’Europol ed Agence de l’Union- Regards sur un nouveau cadre juridique. Revue du Marché commun et de l’Union européenne, 525, 83–87.
Groenler, M. (2009). The autonomy of European Union agencies. A comparative study of institutional development. Delft: Eburon.
Hijmans, H. (2006). The European data protector supervisor: The institutions of the EC controlled by an independent authority. Common Market Law Review, 43(5), 1313–1342.
Hijmans, H., & Scirocco, A. (2009). Shortcomings in EU data protection in the third and the second pillars. Can the Lisbon Treaty be expected to help? Common Market Law Review, 46(5), 1485–1525.
Pallaro, P. (2002). Libertà della persona e trattamento dei dati personali nell’Unione europea. Milano: Giuffré.
Peers, S. (2011). EU justice and home affairs law (4th ed.). Oxford: Oxford University Press.
Richardot, M. (2002). Interpol, Europol. Pouvoirs, 102(3), 77–85.
Rijken, C. (2006). Joint investigation teams: Principles, practice, and problems. Lessons learnt from the first efforts to establish a JIT. Utrecht Law Review, 2, 99–109.
Tacea, A. (2018). Quand la JAI fait dissidence. Expliquer l’activité des parlaments nationaux dans le domaine européen de liberté, de sécurité et de justice. Politique Européenne, 59(1), 58–93.
Theoharis, A. G. (2000). The FBI. A comprehensive reference guide. New York: Checkmark.
Vos, E. (2014). European agencies and the composite EU executive. In M. Everson, C. Monda, & E. Vos (Eds.), European agencies in between institutions and member states (pp. 87–122). Alphen aan den Rijn: Kluwer Law International. (European Monographs; No. 85).
Author information
Authors and Affiliations
Editor information
Editors and Affiliations
List of Cases
List of Cases
1.1 ECJ
-
ECJ 10.09.2015, C-363/14, Parliament v Council, ECLI:EU:C:2015:579 [cit. in para 28]
Rights and permissions
Copyright information
© 2021 Springer Nature Switzerland AG
About this chapter
Cite this chapter
Milazzo, P. (2021). Article 88 [Europol]. In: Blanke, HJ., Mangiameli, S. (eds) Treaty on the Functioning of the European Union – A Commentary. Springer Commentaries on International and European Law. Springer, Cham. https://doi.org/10.1007/978-3-030-43511-0_89
Download citation
DOI: https://doi.org/10.1007/978-3-030-43511-0_89
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-43509-7
Online ISBN: 978-3-030-43511-0
eBook Packages: Law and CriminologyLaw and Criminology (R0)