Denmark and EU Justice and Home Affairs Law: Details of the planned referendum

 

 

Steve Peers

Danish participation in cross-border criminal law measures is symbolised by 'The Bridge', the 'Nordic Noir' series about cross-border cooperation in criminal matters between Denmark and Sweden. But due to the changes in EU law in this field, that cooperation might soon be jeopardised. As a result, in the near future, Denmark will in principle be voting on whether to replace the current nearly complete opt-out on EU Justice and Home Affairs (JHA) law with a partial, selective opt-out. I have previously blogged on the implications of this plan in general terms, but it’s now clear exactly what this vote will be about.

First of all, a short recap of the overall framework (for more detail, see that previous blog post). Back in 1992, Denmark obtained an opt-out from the single currency, defence and aspects of JHA law (it’s widely believed that it also obtained an opt-out from EU citizenship, but this is a ‘Euromyth’). These opt-outs were formalised in the form of a Protocol attached to the EU Treaties as part of the Treaty of Amsterdam. The JHA opt-out was then amended by the Treaty of Lisbon.

At present, Denmark participates in: the EU policing and criminal law measures adopted before the entry into force of the Treaty of Lisbon; measures relating to the Schengen border control system (as  matter of international law, not EU law); the EU rules on visa lists (as a matter of EU law); and the EU’s Dublin rules on allocation of asylum applications, ‘Brussels’ rules on civil jurisdiction and legislation on service of documents (in the form of treaties with the EU). In contrast, Denmark does not – and cannot – participate in other EU rules on immigration and asylum law or cross-border civil law, or policing and criminal law rules adopted since the entry into force of the Treaty of Lisbon.

The Protocol on Denmark’s legal position either allows it to repeal its JHA opt-out entirely, or selectively. If it chooses to repeal the opt-out selectively, it would then be able to opt in to JHA measures on a case-by-case basis, like the UK and Ireland, although (unlike those states) it would remain fully bound by the Schengen rules. Indeed, those rules will then apply as a matter of EU law in Denmark, not as a matter of international law.

In practice, while Danish governments have promised for a while to hold a referendum on the JHA opt-out, the concrete plans to hold one in the near future were triggered in light of the planned EU legislation to replace the current rules establishing Europol, the EU police agency, with new legislation (on that proposal, see here).  This led to an agreement between the government parties and several opposition parties (excluding the far-right Danish Peoples’ Party) known as the ‘Agreement on Denmark in Europol’ (for the text, see here). This agreement states that the referendum will take place after the next general election (which must be held by September 2015), and no later than 31 March 2016. The ‘main reason’ for the referendum is to allow Denmark to opt in to the new Europol rules, but the parties also agreed to study whether Denmark should opt in to other EU civil, criminal and policing laws which currently don’t apply. However, the parties agreed that Denmark should not opt in to any EU immigration or asylum law (besides Schengen, which already applies).

This analysis has now been completed (see the text in Danish here), and the parties have agreed that Denmark would apply to opt in to 22 EU laws if the referendum is successful. Conversely, they have agreed not to opt in to 10 other EU laws.

As regards civil cooperation, the parties have agreed to opt in to large majority of EU measures, as regards: insolvency; payment orders; small claims; the European enforcement order; mediation; the Rome Regulation (on conflicts of law concerning contract); the Rome II Regulation (on conflicts of law concerning non-contractual liability); external relations; protection orders; inheritance; maintenance proceedings; parental responsibility; and account preservation orders. It should be noted that changes to the insolvency proceedings regulation are about to be formally adopted, and changes to the small claims rules will likely be agreed later this year; presumably the agreement also entails opt-ins to the existing legislation as amended.

In contrast, the parties agreed not to opt in to legislation on legal aid in cross-border proceedings, or to the Rome III Regulation on conflicts of law in divorce cases. Nor have they agreed yet on whether to opt in to the pending proposals relating to jurisdiction and choice of law over marital property, and the property of civil partnerships, in the event of relationship breakdown. In general, the recent agreement states that decisions to opt in to measures which have not yet been adopted depend on a future consensus of the relevant parties, or endorsement in a general election.

As for policing and criminal law, the parties agree to opt in to all measures concerning substantive criminal law and most measures concerning EU agencies and mutual recognition. In particular, they agree to opt into seven Directives, regarding: the European Investigation Order; protection orders; trafficking in persons; sexual abuse of children; cyber-crime; market abuse; and counterfeiting the euro. Conversely, they rule out opting in to the legislation on crime victims’ rights, the three Directives on suspects’ rights (concerning interpretation and translation, access to a lawyer and the right to information) and the rules on confiscation of criminal assets. They also rule out opting in to the legislation on EU funding in JHA matters.

They have partly agreed on future measures in this field, agreeing to opt in to the Regulations now under discussion on Europol and Eurojust (the EU prosecutors’ agency) and the Directive on passenger name records, but to opt out of the legislation establishing the European Public Prosecutor. The Commission has also proposed legislation on the European Police College, fraud against EU funds and drug trafficking, along with three more suspects’ rights measures (concerning childrens’ rights, the presumption of innocence and legal aid). Decisions on those measures will again depend upon on a future consensus of the relevant parties, or endorsement in a general election.

The parties’ clarification of their intentions provides useful certainty for the Danish public when it has the opportunity to vote on these issues. In general, in criminal matters Denmark would be participating in the EU measures assisting the prosecution, without any counterbalance by means of recent legislation regarding the rights of victims or suspects. Similarly it would still be participating in the Schengen rules on external border controls and the abolition of internal border checks, without any of the accompanying harmonisation of immigration and asylum law that applies to other Schengen States which are EU members. On the whole, Denmark would also be participating in more JHA legislation than the UK and Ireland – not just as regards full participation in Schengen (as is already the case), but also as regards the EU legislation on inheritance, account preservation, investigation orders, market abuse, currency counterfeiting and Eurojust, all of which one or both of the UK and Ireland have opted out of. On the other hand, the UK and Ireland have opted in to the EU legislation on crime victims’ rights, some of the legislation on suspects’ rights and the first phase of EU asylum law. Given that Ireland participates in the single currency, a Danish 'yes' to selective participation in JHA law would cement the UK's position as the chief non-participant in EU laws which bind most other Member States.

 

Barnard & Peers: chapter 26

Childhood’s End: EU criminal law in 2014

 

Steve Peers

With the elections to the European Parliament, the installation of a new European Commission, and a number of important legislative and case-law developments, 2014 was an important year for the European Union. This is the first in a series of blog posts reviewing the year in selected fields of EU law.  

The most significant change to EU criminal law came on December 1^, when the five-year transitional period relating to EU criminal law measures adopted before the entry into force of the Lisbon Treaty (‘pre-Lisbon EU criminal law measures’, also known in practice as the ‘third pillar’) came to an end. From this date on, pre-Lisbon EU criminal law measures are subject to the normal rules of EU law (except that they maintain their previous limited legal effect, in particular the lack of direct effect). More specifically, this change (discussed generally here) has three main impacts.

Firstly, the UK was entitled to opt out of all pre-Lisbon EU criminal law measures, and then apply to opt back in to some of them again. The UK indeed exercised these possibilities, opting back in to 35 such measures as of 1 December 2014 (see discussion of the details here), following an unnecessarily convoluted process in the House of Commons (discussed here). In a nutshell, since the UK has opted back into a large majority of the pre-Lisbon measures which have any significant importance, the whole process has had barely reduced the UK’s actual degree of participation in EU criminal law.

Secondly, the end of the transitional period means that the EU Commission can now bring infringement actions against Member States that failed to correctly implement pre-Lisbon EU criminal law measures - or that failed to implement such measures at all. The relevance of this is obvious in light of the Commission reports issued this year, regarding: legislation on the transfer of prisoners, probation and parole and supervision orders (discussed here); hate crime and Holocaust denial (discussed here); and conflicts of jurisdiction and the recognition of prior convictions (discussed here).  

Thirdly, all courts in all Member States can now send references to the CJEU on the interpretation pre-Lisbon EU criminal law. For the EU as a whole, the impact of this change will probably be limited in practice, because (a) two-thirds of Member States allowed such references anyway, and (b) there were no such limits regarding EU criminal law adopted after the entry into force of the Lisbon Treaty. On the former point, the CJEU decided two cases this spring on the EU’s double jeopardy rules (discussed here), in which it finally developed the relationship between those rules and the double jeopardy provisions of the ECHR and the EU Charter of Fundamental Rights. A final reference to the CJEU on the basis of the old rules, sent just a month before the end of the transitional period (Kossowski), now asks the Court to clarify whether Member States’ derogations from the Schengen rules violate the EU Charter.

On the second point, the first reference from national courts on post-Lisbon EU criminal law was referred this year: the Covaci case, on the Directive on interpretation and translation in criminal law proceedings and the Directive on the ‘letter of rights’. So far, there is no sign of the predicted avalanche of cases on EU suspects’ rights legislation (the deadline to apply the letter of rights Directive passed in June). Of course, there could still be an increase of such cases in future, perhaps after the 2016 deadline to apply the third suspects’ rights Directive (on access to a lawyer). And in the meantime, Member States must apply the victims’ rights Directive towards the end of 2015. Hopefully the CJEU’s case law on that measure will be more convincing than its ruling earlier this year (criticised here) on the scope of the Directive on compensation for crime victims.

Another important CJEU judgment in the criminal law field this year (discussed here) ruled that policing information measure actually fell within the scope of EU transport law. The immediate impact of this judgment was a rush to adopt replacement legislation (the text of which is already agreed), which will apply to all Member States (the UK, Ireland and Denmark had opted out of the prior measure). More broadly, the judgment shows that the CJEU is not inclined to interpret the EU’s criminal law powers broadly – at least as compared to the EU’s other powers.

The end of the transitional period did not lead to a general review of pre-Lisbon EU criminal law measures, with the Commission proposing only a very limited repeal of some obsolete measures (I’ll blog on these proposals in the new year). In particular, the new Justice Commissioner appears to have no significant agenda to suggest criminal law proposals, whether to amend prior measures or to adopt new ones (for an argument as to what the Commission should do, see here).

However, some of the pre-Lisbon criminal law measures have been amended or replaced, or will be amended or replaced by proposed legislation now under discussion. In particular, during 2014, the EU adopted legislation concerning: the European Investigation Order (discussed here); the counterfeiting of the euro (discussed here); the confiscation of criminal assets; and the European Police College (moving its seat from the UK to Hungary). The EU also adopted legislation on criminal sanctions for market abuse (discussed here).

There are also proposals under discussion to replace pre-Lisbon EU criminal law measures concerning: fraud against the EU (see the state of play here); the police agency, Europol (see discussion of negotiations here); the prosecutors’ agency, Eurojust (there was a partial agreement on this proposal); and data protection in criminal law cases (see the state of play here). The latter issue is increasingly important, as indicated by the related CJEU judgment invalidating the data retention directive (discussed here), which gave rise to questions as to whether Member States could adopt or retain their own data retention laws (on this point, see generally here, and here as regards the UK in particular).

In fact, the CJEU will soon be ruling on data protection and criminal law issues as such, since the European Parliament has asked it to rule on the validity of the EU/Canada draft treaty on passenger name records (see discussion here). The pending Europe v Facebook case (discussed here) raises questions about the impact of the Snowden revelations upon the EU and US arrangements on data protection. In the meantime, the proposed Directive on passenger name records still remains on ice (having been put there by the European Parliament), with EU leaders’ attempt to set a deadline to adopt this proposal by the end of 2014 proving futile.

 

Other proposals are also under discussion: a more general overhaul of the European Police College; the creation of a European Public Prosecutors’ Office (see the state of play here); and the adoption of three more suspects’ rights measures, concerning child suspects (agreed by the Council), presumption of innocence (also agreed by the Council) and legal aid (see the state of play here). However, the Commission’s proposal for new rules relating to the EU’s anti-fraud body, OLAF, soon melted in the heat of Council opposition. 

 

Conclusion

Taken as a whole, the year 2014 showed how the European Parliament, the CJEU and the Commission are already playing a significant role in the development of EU criminal law. Following the final demise of the third pillar, the year 2015 is likely to see further important developments in this area, which will make the pre-Lisbon measures even less important: the adoption of new legislation on Europol, the European Police College and possibly Eurojust, as well as revised legislation on fraud against the EU budget. There will likely be two or three further Directives on suspects’ rights and the victims’ rights Directive will begin to apply. The rules on the new European Public Prosecutors’ Office might also be agreed, and there could be significant developments in the area of data protection. Overall, the longer-term trends toward greater parliamentary and judicial control and greater focus on individual rights in this area accelerated significantly in 2014 and could well do so again next year.

 

Barnard & Peers: chapter 25

Denmark and EU Justice and Home Affairs Law: Really Opting Back In?

Steve Peers

Yesterday, the Danish Prime Minister made an announcement that Denmark would hold another referendum on EU matters in 2015. This was widely reported as a vote on whether Denmark would opt back in to EU Justice and Home Affairs (JHA) law. In fact, the government’s intention is to hold a vote on whether to replace a complete opt out with a selective opt-out. This blog post explains the detail of the issue, including a complete list of the measures which Denmark might opt back into if the Danish public approves the referendum proposal.

The Danish opt-out effectively dates back to the Danish referendum on the Maastricht Treaty in 1992. Following the initial Danish ‘no’ vote to that treaty, the EU’s Heads of State of Government adopted a Decision, which states that Denmark fully participates in EU JHA law. This was accompanied by a declaration stating that any transfer of powers to the European Community (as it then was) would be subject to a referendum in Denmark. This is generally regarded as the basis for Denmark’s opt-out on JHA matters.

This Decision is also often described as an opt-out on EU citizenship, although it is no such thing: it simply clarifies the relationship between Danish and EU citizenship. In fact, despite a widespread belief to the contrary, Denmark has no opt-out on EU citizenship at all.

The JHA opt-out was formalised as a Protocol to the Treaties at the time of the Treaty of Amsterdam (in force 1999), and was then revised at the time of the Treaty of Lisbon (in force 2009). It currently appears as Protocol 22 to the Treaties.

In a nutshell, the legal position is as follows.

First of all, Denmark is bound by the ‘Schengen’ rules abolishing border controls between most Member States, and measures building upon them, such as the Schengen Borders Code, the EU’s visa code, the Schengen Information System and the EU’s border control agency, Frontex. However, it is bound by these measures only as a matter of international law, not EU law. It could choose to opt out of new measures in this area, but there would be some unspecified retaliation if it did. It hasn’t done so in practice.

Secondly, Denmark is not bound by any other EU measures on immigration and asylum law, or civil cooperation, except for the measures on a standardised list of countries whose nationals do and don’t need visas to enter the EU. However,  for a few of these measures,  Denmark is bound instead by means of a treaty with the EU: the Dublin rules on asylum applications; the Brussels Regulation on civil and commercial jurisdiction; and the Regulation on service of documents. It’s also bound by the initial Rome Convention on conflicts of law in contract, but not by the Regulation replacing it.

Thirdly, Denmark is bound by EU measures on policing and criminal law adopted before the entry into force of the Treaty of Lisbon. This includes (as matters stand) the EU measures establishing Europol (the EU police agency), Eurojust (the EU prosecutors’ agency) and the European Arrest Warrant.

Fourthly, Denmark is conversely not bound by EU measures on policing and criminal law adopted after the entry into force of the Treaty of Lisbon. This includes particularly EU legislation on suspects’ rights, victims’ rights, and the European Investigation Order. In the near future, it will also not be bound by legislation re-establishing Europol, which will soon be the subject of final negotiations between the European Parliament and the Council (on the details of that negotiation, see the previous blog post). According to the Prime Minister, this is a particular reason for considering whether to exercise the opt-out.

The assumption behind her argument is that the pre-Lisbon measure establishing Europol will not be applicable to Denmark any longer once a new measure is adopted. In fact, Article 2 of Protocol 22 says as follows:

…acts of the Union in the field of police cooperation and judicial cooperation in criminal matters adopted before the entry into force of the Treaty of Lisbon which are amended shall continue to be binding upon and applicable to Denmark unchanged.

However, in the specific case of EU agencies, it is hard to see in practice how Denmark could continue to be part of Europol as it was set up subject to a pre-Lisbon measure, while all of the other Member States (presuming that the UK and Ireland opt-in) are part of Europol as it was set up afresh by a post-Lisbon Regulation.

In fact, the same issue is likely to arise as regards Eurojust (the EU prosecutors’ agency) in the next year or so, since there is also a proposal to replace the pre-Lisbon Decision setting up that body with a post-Lisbon Regulation.

What are the consequences of the opt-in? Denmark has the power to denounce ‘all or part’ of the Protocol, which also includes an opt-out relating to EU defence policy, without a need for a Treaty amendment. (Note that Denmark’s opt-out from the obligation to adopt the EU’s single currency is set out in a separate Protocol).

However, Denmark also has another option available to it: to replace the current complete opt-out for post-Lisbon JHA measures not linked to the Schengen acquis with a selective opt-out, ie the power to opt in to JHA measures on a case-by-case basis. According to press reports, this is what the Prime Minister proposes. In light of this, it simply isn’t accurate to say that Denmark would be voting to ‘give up its JHA opt-out’.

If the public vote in favour, Denmark would have the same power that the UK and Ireland have to opt in to JHA measures on a case-by-case basis, either within three months after those measures are proposed or at any time after they are finally adopted. However, unlike the UK and Ireland, Denmark will continue to be fully bound by EU measures on visa lists (ie with no-opt-out possibility), and will also continue to participate in the Schengen rules (although those rules would then have the force of EU law, not international law, in Denmark).

It would be up to the Danish government and parliament to determine what arrangements apply to opting in, as a matter of national law. If national law permits, it is open to Denmark to provide, if it wishes, that its national parliament must approve every opt-in decision, possibly by a higher majority in some or all cases. The Danish government could also announce in advance which measures it would (and would not) seek to opt in to.

To clarify the potential impact of the decision, the Annex to this post contains a complete list of all current measures or proposals which Denmark could opt to participate in if the public chose to vote for a selective JHA opt-out in place of the current complete opt-out. Again, though, Denmark could choose to participate in only a small number of these measures if it wished.

While it is sometimes claimed that EU opt-outs are not really genuine, because Member States will face undue pressure to opt-in to EU measures regardless, the evidence of the last 15 years clearly refutes this assertion. In practice, Denmark and the UK have not been forced to adopt the single currency, and the UK and Ireland have opted out of a growing number of JHA measures.

Barnard & Peers: chapter 2, chapter 25, chapter 26

Annex

JHA measures which Denmark could opt in to after adopting a selective opt-out

1) Adopted measures

Asylum

1. Directive 2001/55 on temporary protection (OJ 2001 L 212/12)

2. Regulation 439/2010 establishing a European Asylum Support Office (OJ 2010 L 132/11)

3. Recast Directive 2011/95 on qualification and content of international protection (OJ 2011 L 337/9)

4. Directive 2013/33 on reception conditions for asylum-seekers (OJ 2013 L 180/96)

5. Regulation 604/2013 on responsibility for asylum applications (OJ 2013 L 180/31) – nb applies to Denmark by means of treaty already

6. Directive 2013/32 on international protection procedures (OJ 2013 L 180/60)

7. Regulation 603/2013 on Eurodac (OJ 2013 L 180/1) – nb applies to Denmark by means of treaty already

8. Regulation establishing the asylum and migration Fund (OJ 2014 L 150/168)

9. Regulation laying down general provisions on the Asylum and Migration Fund and on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management ((OJ 2014 L 150/112)

Irregular migration

1. Directive 2004/82 on transmitting passenger information by carriers (OJ 2004 L 261/24)

2. Decision on joint expulsion flights (OJ 2004 L 261/28)

3. Directive 2004/81 on residence permits for victims of trafficking or facilitation of irregular migration (OJ 2004 L 261/19)

4. Decision on an information and coordination network for Member States’ migration management services (OJ 2005 L 83/48)

5. Directive 2008/115 on common rules for expulsion – Returns Directive (OJ 2008 L 348/98) – nb applies to Denmark in part already

6. Directive 2009/52 on sanctions for employers of irregular migrants (OJ 2009 L 168/24)

Legal Migration

1. Directive 2003/86 on family reunion (OJ 2003 L 251/12)

2. Directive 2003/109 on the status of long-term resident third-country nationals (OJ 2004 L 16/44)

3. Directive 2004/114 on entry and residence of students, volunteers and others (OJ 2004 L 375/12)

4. Directive 2005/71 on admission of researchers (OJ 2005 L 289/15)

5. Decision on exchange of asylum and immigration information (OJ 2006 L 283/40)

6. Decision establishing Migration Network (OJ 2008 L 131/7)

7. Directive 2009/50 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment (‘Blue Card Directive’) (OJ 2009 L 155/17)

8. Regulation 1231/2010 extending Regulation 883/2004 on social security for EU citizens to third-country nationals who move within the EU (OJ 2010 L 344/1)

9. Directive 2011/51 applying long-term residents’ Directive to refugees and beneficiaries of subsidiary protection (OJ 2011 L 132/1)

10. Directive 2011/98 (single permit Directive) (OJ 2011 L 343/1)

11. Directive 2014/36 on admission of seasonal workers (OJ 2014 L 94/375)

12. Directive 2014/66 on admission of intra-corporate transferees (OJ 2014 L 157/1)

Civil Cooperation

1. Regulation 1346/2000 on jurisdiction over and enforcement of insolvency proceedings (OJ 2000 L 160/1)

2. Regulation 1347/2000 on jurisdiction over and enforcement of matrimonial and custody judgments (OJ 2000 L 160/19)

3. Regulation 1206/2001 on cross-border taking of evidence in civil and commercial matters (OJ 2001 L 174/1)

4. Decision 2001/470 on European Judicial Network on civil and commercial matters (OJ 2001 L 174/25)

5.  Directive 2003/8 on legal aid (OJ 2003 L 26/41)

6. Regulation 2201/2003 on parental responsibility (OJ 2003 L 338/1)

7. Regulation 805/2004 on European enforcement order (OJ 2004 L 143/15)

8. Regulation 1896/2006 creating a European order for payment procedure (OJ 2006 L 399/1)

9. Regulation 861/2007 establishing a European small claims procedure (OJ 2007 L 199/1)

10. Regulation 864/2007 on the law applicable to non-contractual obligations ('Rome II') (OJ 2007 L 199/40)

11. Directive 2008/52 on mediation (OJ 2008 L 136/3)

12. Regulation 593/2008 on 'Rome I' (choice of law for contractual obligations) (OJ 2008 L 177/6)

13. Decision amending Decision on judicial network (OJ 2009 L 168/35)

14. Regulation 662/2009 on Member States’ negotiation and conclusion of external treaties relating to maintenance, divorce and parental responsibility (OJ 2009 L 200/25)

15. Regulation 664/2009 on Member States’ negotiation and conclusion of external treaties relating to conflict of laws as regards contractual and non-contractual obligations (OJ 2009 L 200/46)

16. ‘Rome III’ Regulation 1259/2010 on choice of law in divorce proceedings (OJ 2010 L 343/10)

17. Regulation 650/2012 on choice of law and jurisdiction in succession proceedings (OJ 2012 L 201/107)

18. Regulation 1215/2012 on civil and commercial jurisdiction (OJ 2012 L 351/1) - – nb applies to Denmark by means of treaty already

19. Regulation 606/2013 on civil law enforcement of protection orders (OJ 2013 L 181/4)

20. Regulation 542/1014 amending civil jurisdiction Regulation (OJ 2014 L 163/1) – nb applies to Denmark by means of treaty already

21. Regulation on European account preservation orders

Criminal law and policing

Directives

1. Directive 2010/64 on the right to interpretation and translation in the framework of criminal proceedings (OJ 2010 L 280/1)

2. Directive 2011/36 on trafficking in persons (OJ 2011 L 101/1)

3. Directive 2011/82 on exchange of information on traffic offences (OJ 2011 L 288/1)

4. Directive 2011/92 on sexual exploitation of children (OJ 2011 L 335/1)

5. Directive 2011/99 on European protection order (OJ 2011 L 338/2)

6. Directive 2012/13 on the right to information on criminal proceedings (OJ 2012 L 142/1)

7. Directive 2012/29 on crime victims’ rights (OJ 2012 L 315/57)

8. Directive 2013/40 on attacks on information systems (OJ 2013 L 218/8)

9. Directive 2013/48 on access to lawyer and communication rights (OJ 2013 L 294/1)

10. Directive 2014/41 on European investigation order (OJ 2014 L 130/1)

11. Directive 2014/42 on freezing and confiscation of criminal proceeds (OJ 2014 L 127/39)

12. Directive 2014/57 on criminal sanctions against market abuse

13. Directive 2014/62 on counterfeiting currency (OJ 2014 L 151/1)

Regulations

1. Regulation establishing a Justice Programme (OJ 2013 L 354/73)

2. Regulation on the instrument for financial support for police cooperation, preventing and combating crime, and crisis management (OJ 2014 L 150/93)

3. Regulation 543/2014 amending Decision on European Police College (OJ 2014 L 163/5)

2) Proposals

Immigration and asylum

1. Directive on admission of students, researchers and others (COM (2013) 151, 25 March 2013)

2. Regulation amending the Dublin III Regulation regarding unaccompanied minors (COM (2014) 382, 26 June 2014)

Civil cooperation

1. Commission invitation to Council to apply ‘co-decision’ procedure to the issue of maintenance obligations (COM (2005) 648, 15 Dec. 2005)

2. Commission proposal for Regulation on choice of law and jurisdiction on matrimonial property (COM (2011) 126, 16 Mar. 2011)

3. Commission proposal for Regulation on choice of law and jurisdiction on registered partnerships (COM (2011) 127, 16 Mar. 2011)

4. Commission proposal for Regulation amending insolvency Regulation (COM (2012) 744, 12 Dec. 2012)

5. Proposal for Regulation amending prior legislation regarding implementing measures (COM (2013) 452, 27 June 2013)

6. Proposal for Regulation amending small claims and order for payment Regulations (COM (2013) 794, 19 Nov. 2013)

Criminal law

1. Proposal for Directive on the right to interpretation and translation in the framework of criminal proceedings (COM (2010) 82, 9 March 2010)

2. Proposal for Directive on passenger name records (COM (2011) 32, 2 Feb. 2011)

3. Proposal for Directive on protection of EU financial interests (COM (2012) 363, 11 July 2012)

4. Proposal to amend Framework Decision on drug trafficking (COM (2013) 618, 17 Sep. 2013)

5. Proposal on presumption of innocence (COM (2013) 821, 27 Nov. 2013)

6. Proposal on childrens’ rights as suspects (COM (2013) 822, 27 Nov. 2013)

7. Proposal on provisional legal aid (COM (2013) 824, 27 Nov. 2013)

8. Regulation on Europol (COM (2013) 173, 27 March 2013)

9. Regulation on European Public Prosecutor’s Office (COM (2013) 534, 17 July 2013)

10. Regulation on Eurojust (COM (2013) 535, 17 July 2013)

Note: this list does not include measures which have expired or been replaced (or which will be replaced as of July 2015). It also does not include international treaties with third States, since at least in some cases, Denmark has parallel arrangements in place with the countries concerned. The most important treaties in question concern readmission, visa facilitation, the Hague Convention on maintenance and treaties on mutual assistance, extradition and exchange of police information.

The reform of Europol: modern EU agency, or intergovernmental dinosaur?

Introduction

The EU’s police cooperation agency, Europol, has played a major role in the development of Justice and Home Affairs cooperation in the EU from an early stage. Europol was originally set up informally, then on the basis of a 1995 Convention, subsequently replaced by a Council Decision in 2009. While its powers have gradually been expanded, so has the controversy about its accountability and the adequacy of its data protection rules. Since it is a creature of the former 'third pillar' (the previous special rules on policing and criminal law) it is something of a 'dinosaur' in institutional terms, being an essentially intergovernmental body.

With the entry into force of the Treaty of Lisbon, the European Parliament (EP) now has joint powers with the Council as regards the adoption of a Regulation governing Europol, and the Treaty now refers expressly to the importance of ensuring accountability to both national parliaments and the EP. Furthermore, the EU institutions agreed in 2012 a ‘Common Understanding’ on standard rules which would apply to the governance of EU agencies. To expand Europol’s powers further, while addressing the issues of governance, accountability and data protection, the Commission proposed a new Regulation reconstituting Europol in 2013.

At the most recent Justice and Home Affairs Council, ministers agreed the Council’s position on the Commission’s proposal.  Since the European Parliament also recently agreed its own position, this clears the way for negotiations to take place between the two institutions for a final deal, once the EP is fully operational again following the recent elections. This is therefore a good time to examine the progress of discussions on the proposed Regulation so far.

It should be noted that Ireland has opted in to this proposed Regulation, while the UK and Denmark have opted out. The UK’s objections are due to the proposals to place national law enforcement bodies to comply with Europol’s requests to start investigations, and to supply information to Europol without a national security exception. However, as discussed further below, the Council’s and EP’s positions on the proposal address these issues, raising the possibility that the UK will opt in after adoption of the Regulation.

Europol’s powers

First and foremost, the Commission failed in its attempt to merge together Europol with the European Police College. The Commission thought it was a good idea to merge the two, given the overlap of their subject-matter. There has never been a merger of EU agencies before, for essentially political reasons: Member States fight bitter battles to host EU agencies, and so are reluctant to let one go once they have one. However, unusually, in this case the original host of the European Police College, the UK, was rather keen to kick the agency out, as it was planning to sell the space where the College was located and declared itself unable to find a new one.

So there was a golden opportunity to merge these two agencies, but neither the European Parliament nor the Council wanted to take it. In light of the Commission’s inflexible insistence on its proposal, an unprecedented group of 25 Member States tabled an initiative to amend the previous Decision establishing the European Police College, which was subsequently adopted. This new Regulation simply moves the College to Budapest. The Council has requested the Commission to make a separate proposal making further changes to the Police College, but it remains to be seen whether the Commission will do so, or whether it will continue to sulk about the failure of its original suggestion for a merger.

The Commission’s second main objective related to Europol itself. It cannot carry out ‘coercive powers’, according to the Treaties, and all three institutions agree that a clause to this effect should appear in the new Regulation.  So it is destined to remain an agency which gathers and analyses information, and it is only able to do the latter to the extent that it does the former. As dinosaurs go, Europol is clearly a herbivore, not a carnivore.

But the Commission nonetheless hoped to give Europol some sharper teeth. So it proposed two key amendments: a clarification of Member States’ obligation to give information to Europol, and an enlargement of Europol’s access to national databases. In parallel to this, the Commission’s proposal removed the detailed rules on the structure of data processing that existed in the Europol Decision (and before that, in the Europol Convention). In place of these very specific rules on analysis files and the Europol Information System, et al, there would instead be general provisions on data processing, which would be centred upon an obligation to ensure ‘privacy by design’.

The Council weakened the proposed rules which required national authorities in principle to act upon Europol’s request to initiate investigations. However, this issue is mainly symbolic, since there was no absolute obligation to act, under the Commission’s proposals (authorities could ‘decide not to comply’ with a request, on any grounds).

Furthermore, the Council did not accept the Commission’s proposal to allow Europol to contact national authorities directly in all cases, without going through the ‘Europol national units’ (the official points of contact between Europol and national forces). Instead, it simply provided (as at present) for the possibility for Member States to allow this. It also reinserted the current provisions which allow national authorities to refuse requests for information from Europol on grounds of national security, current investigations or intelligence activities.

However, the Council agreed with the proposal to give Europol a list of other new powers, and added new provisions giving Europol the power to assist with Schengen evaluations, as well as the evaluation of candidate Member States. It also specified that Member States have to allow their Financial Intelligence Units (special units dealing with money laundering) to collaborate with Europol. Finally, it wants to extend the fields of crime which Europol deals with to include war crimes and genocide as well as insider trading.

For its part, the EP, like the Council, voted against strengthening the provisions relating to Europol requests to Member States, although it did agree to Europol’s direct contact with national authorities (under certain conditions). It also agreed to retain the provisions allowing authorities to refuse requests from information from Europol.

Furthermore, the EP wants to reinsert the existing conditions relating to Europol’s participation in joint investigation teams, whereas the Commission (and the Council) want to provide only for general rules in this respect.

Data processing and data protection

Europol’s powers are inevitably closely linked with the data processing and data protection rules that apply to its processing of personal data. On this point, the Commission’s main objective with its proposal was to enhance the data protection framework of Europol by ensuring that its data protection supervisor was fully independent and had effective powers.

To this end, the Commission suggested more detailed rules on data processing and more data protection rights for individuals. The rules on external transfers of data outside the EU, which currently allow Europol itself to sign treaties with the Council’s approval, would be replaced by the general external relations rules of EU law (treaty negotiations carried out by the Commission, treaties concluded by the Council after consent by the EP). In general, the rules on transferring data to third States would be modelled on the rules in the EU data protection directive (see the recent post on this blog), allowing for transfers in principle only where a third State’s data protection has been judged ‘adequate’, with limited derogations from this rule. The supervisory powers currently held by a Joint Supervisory Board would be transferred to existing European Data Protection Supervisor (EDPS), which has data protection supervisory power as regards most EU agencies.   

The Council would amend the proposal to add a general power to process personal data in order to facilitate information exchange between Europol, other EU bodies, third countries, Member States and international organisations. Also, the Council would impose an absolute obligation for Europol to inform Member States about information concerning them. The Council would also allow for broader derogations from the normal rules as regards the transfers of data to third countries, adding grounds relating to legal claims and the combating of criminal offences.

As for data protection rules, the Council would strengthen the proposal by banning the selection of a group persons purely on the basis of a ‘sensitive’ ground, such as racial origin. It would also add a requirement for Europol to notify its data protection officer and the EDPS in the event of a security breach. Europol would also have to inform data subjects of the time period for the processing of their data, and the right to make requests to Europol for erasure, et al of that data.

However, the Council would drop the requirement for Europol to report on its processing of sensitive data every six months to the EDPS. Also, Europol would have to comply with any Member State’s objection to the release of data which it provided to Europol. A data subject’s request for correction et al of personal data would have to be funnelled through a national authority, rather than addressed directly to Europol, and the Council would include very broad grounds for Europol to refuse such requests.

The Council is also keen to amend the institutional ‘architecture’ regarding data protection in the Commission’s proposal. It would cut back a little on the proposed powers of the EDPS, and impose the condition that it considers law enforcement concerns when it communicates with data subjects. National data protection bodies would have the power to comment on the draft annual report of the EDPS before its conclusion. More generally, the EDPS would have further obligations to consult national data protection bodies, and the Council wants to establish a Cooperation Board that would have a large number of advisory powers.

For its part, the EP would subject all access to personal data by Europol to general rules of necessity and proportionality and the adoption of specific rules setting out data protection principles.  The categories of personal data which could be processed would be more tightly restricted, and the EP does not support anything similar to a general power to process personal data to facilitate relations with the Member States, et al. There would be a requirement to carry out an impact assessment before data processing operations.

The EP would ban access to Europol data by OLAF, the EU’s anti-fraud body, and also would impose a ban on processing of data obtained by means which breach human rights. Pre-existing treaties with third states relating to the processing of personal data would have to be renegotiated within five years. The EDPS would have to be consulted before treaties with third States are negotiated. 

While the EP broadly agrees with the Council regarding the derogations from the external transfer rules, it wants to require Europol’s Executive Director to consider the record of the third country concerned before authorising the use of these derogations. The EP also agrees with the Council on a clause regarding notification of a data breach to the EDPS, although its version is more detailed, and the EP also wants a clause on notification of such breaches to the data subject. Finally, the EP wants more detail in the annual report by the EDPS, and proposes more cooperation between the EDPS and national authorities, although it does not support the Council’s idea of creating a Board.

Governance

First of all, as regards Europol’s management board, in accordance with the Common Understanding on EU Agencies, the Commission proposed that it have two representatives, alongside one from each Member State. However, both the EP and Council want to cut this back to one representative (as at present). Moreover, the EP (based on the Common Understanding, which refers to full EP members on agencies’ management boards) proposes to let an observer from its Joint Parliamentary Scrutiny Group (see below) attend meetings of the Management Board. Both the EP and the Council want to drop the proposed clause (based on the Common Understanding) which would require Member States to limit turnover in the Board. 

The EP supports the Commission’s proposal to ‘aim to achieve a balanced representation between men and women’ on the board, but the Council does not. 

Next, the Council and Commission agree that (in accordance with the Common Understanding) members of the Management Board should have standard terms of four years. However, the EP wants their term of office to be set by each Member State.

Furthermore, the Council wants the chair of the Management Board to come (as at present) from one of the three Member States which is jointly holding the Council Presidency, whereas the Commission and the EP reject this. Finally, the EP wants all members of the Management Board to sign a declaration of interests, for such declarations to be published, and for the Commission to have the power to object to draft Management Board decisions on fundamental legal or policy grounds. These proposals are based on the Common Understanding.

Secondly, the Council wants to retain its current powers to appoint Europol’s Executive Director and the Deputy Executive Directors, instead of shifting this power to the Management Board as the Commission proposes, in accordance with the Common Understanding on agencies (the EP agrees with the Commission). But the Council does not want to share this power with the EP.

Thirdly, the Commission proposed the creation of a new Executive Board as part of the management structure. The EP rejects this idea completely, whereas the Council can accept it on condition that the Management Board agrees unanimously to create it, leaving it to the Board (rather than the Regulation) to set out the details.

Finally, the Council wants to curtail the scope of the future reviews of the Regulation, while the EP wants to enhance them to include the provisions on parliamentary accountability. The Commission and EP support the possibility of a future amendment or repeal of the Regulation, while the Council wants to drop this possibility. It should be noted that the Common Understanding refers to the possibility of disbanding an agency.

Parliamentary accountability

Currently, the EP can receive reports on Europol, plays a role as regards the budget, is consulted upon implementing measures and can hold hearings with the Director. Due to concerns about ensuring more effective parliamentary accountability for Europol’s actions, the Commission proposed a number of reforms, in particular sending the EP and national parliaments more reports, and involving the EP more in the process of choosing the (Executive) Director.

In response, the Council insists upon separate references to the EP and national parliaments. It would also delete many of the proposed powers for the EP, in particular dropping the proposed obligation for the Executive Director to report to the EP and the obligation for the candidate to be Executive Director to make a statement before the EP.

Conversely, the EP would enhance the parliamentary role in the Regulation, in particular by creating a Joint Parliamentary Scrutiny Group, which would comprise members of both the EP and national parliaments. In its view, references to the EP in the proposal should be replaced by references to this group. There would also be greater powers for the Joint Parliamentary Scrutiny Group as regards the process of appointing the Executive Director. 

Comments

The EP and the Council agree broadly on the modest extension of Europol powers, including in particular the removal of provisions relating to the European Police College and retaining the current limits on Europol’s powers as regards national authorities, so these will likely be the least controversial issues to negotiate. It is striking that these institutions did not take the opportunity either to reduce the agencies’ costs by means of a merger, or at least to increase their efficiency by means of co-location.

As regards data protection, there are significant differences between the EP and the Council as regards: the broadening or tightening of the grounds for data processing; the details as regards notification of security breaches; the rights of data subjects; the architecture of data protection authorities; and the grounds to refuse a data subject’s requests. Both support some further powers for national authorities.

Two specific points should be highlighted here. First of all, the Council’s suggestion of a general power for Europol to process personal data in order to facilitate information exchange has to be rejected on legal grounds, since this is far too broad and imprecise a legal basis on which to justify the exchange of personal data. The EP has the better approach: if (as all the institutions agree) EU legislation should no longer regulate the details of Europol’s databases and analysis files, there need to be strong and specific data protection principles in the Regulation instead.

Secondly, while both the EP and the Council agree on a general derogation from the external transfer rules for the combating of criminal offences, this exception is likely to become the rule, since combating criminal offences is Europol’s whole raison d’etre.

As for governance and accountability, the main issues are the extent of parliamentary powers, and also the nature of those powers (ie, whether there should be separate or joint roles for the EP and national parliaments). It is striking that the Council is keen to have a joint data protection supervisory body, but not a joint parliamentary body, whereas the EP’s preferences are the other way around.  Remarkably, the Council’s removal of the (Executive) Director’s obligation to report to the EP would actually mean less parliamentary accountability on this point than under the current Decision.

Also, the EP and the Council differ as regards: whether there should be an executive board; the role of Council as compared to the Management Board in appointing the executive director; retaining a special status for the Council Presidency chairing the Management Board; rules on conflict of interest; other aspects of the composition and functioning of the Management Board (term, turnover, gender equality, Commission control, conflict of interests); and the review and possible disbanding of Europol.

On these issues, the Council’s suggestion to go backwards, by eliminating any role for the EP questioning the Executive Director, is simply antedivulian. It flies in the face of the specific reference to parliamentary accountability in the Treaties, given the obvious importance that parliamentary questioning of an agency director can play in ensuring that body’s accountability.

The Council’s attempts to defend the status quo can also be seen in its approach to the appointment of the (Executive) Director and the composition and chairing of the Management Board. The more modern approach of the EP as regards gender equality, declarations of interests, scrutiny by the Commission, and review or disbanding of Europol, should be preferred. Furthermore, accountability surely demands a single parliamentary observer on the Management Board, given that 28 Member States will each have a voting member to advocate their interests.

It is striking that two years after agreeing standard rules on EU agencies, in a bid to forestall future conflicts and difficult negotiations, all three agencies have taken a ‘pick and mix’ approach to the Common Understanding, each selecting certain points that they like from these common principles and rejecting those which they dislike.

Overall, it is clear that the Council’s preference is for Europol to remain an essentially intergovernmental body, with merely another incremental increase in its powers, a modest enhancement of the data protection rules, and no significant change in either its governance or parliamentary accountability. The EP agrees that the increase in its powers should be limited, but is pushing instead for a modernisation of the agency in light of the Treaty of Lisbon and the Common Understanding, as regards stricter data protection rules, reforming its governance, and greater accountability. Time will tell whether the Council will succeed in preserving this intergovernmental dinosaur.