REPORT on the draft Council implementing decision amending Decision 2009/935/JHA as regards the list of third States and organisations with which Europol shall conclude agreements

9.2.2017 - (15778/2016 – C8‑0007/2017 – 2016/0823(CNS)) - *

Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Agustín Díaz de Mera García Consuegra

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the draft Council implementing decision amending Decision 2009/935/JHA as regards the list of third States and organisations with which Europol shall conclude agreements

(15778/2016 – C8‑0007/2017 – 2016/0823(CNS))

(Special legislative procedure – consultation)

The European Parliament,

–  having regard to the Council draft (15778/2016),

–  having regard to Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol)[1], and in particular Article 26(1)(a) thereof, pursuant to which the Council consulted Parliament (C8‑0007/2017),

–  having regard to Council Decision 2009/934/JHA of 30 November 2009 adopting the implementing rules governing Europol’s relations with partners, including the exchange of personal data and classified information[2], and in particular Articles 5 and 6 thereof,

–  having regard to Council Decision 2009/935/JHA of 30 November 2009 determining the list of third States and organisations with which Europol shall conclude agreements[3], as amended by Council Decision 2014/269/EU,

–  having regard to the Declaration by the President of the European Council, the President of the Commission and the Prime Minister of Denmark of 15 December 2016, which stressed the operational needs, but also the exceptional and transitional nature, of the foreseen arrangement between Europol and Denmark,

–  having regard to the aforementioned Declaration, which stressed that the foreseen arrangement is conditional on Denmark’s continued membership of the Union and of the Schengen area, Denmark’s obligation to fully implement in Danish law Directive (EU) 2016/680/EU[4] on data protection in police matters by 1 May 2017 and Denmark’s agreement to the application of the jurisdiction of the Court of Justice of the European Union and the competence of the European Data Protection Supervisor,

–  having regard to Protocol No 22 to the Treaty on the Functioning of the European Union,

–  having regard to the outcome of the Danish referendum of 3 December 2015 in relation to Protocol No 22 to the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A8-0035/2017),

1.  Approves the Council draft;

2.  Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

3.  Asks the Council to consult Parliament again if it intends to substantially amend the text approved by Parliament;

4.  Calls on the Council to provide, within the provisions of the future arrangement between Europol and Denmark, for an expiry date of five years after the date of entry into force thereof, in order to ensure its transitional nature with a view to full membership or the conclusion of an international agreement in accordance with Article 218 TFEU;

5.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

• [1]  OJ L 121, 15.5.2009, p. 37.
• [2]  OJ L 325, 11.12.2009, p. 6.
• [3]  OJ L 325, 11.12.2009, p. 12.
• [4]  Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 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, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).

EXPLANATORY STATEMENT

Denmark is currently fully participating in Europol, which operates under the existing Council Decision (2009/371/JHA). Under the terms of Protocol No 22 to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark could not take part in the adoption of this new Europol Regulation and is not subject to its application. The new Europol Regulation will start to apply on 1 May 2017, on which date the existing Europol Council Decision will automatically be repealed. This means that by 1 May 2017, Denmark will not anymore be part of Europol and will not be able to participate in its activities, consult its databases or exchange data with it.

On 3 December 2015 Denmark held a referendum on converting its current inflexible opt-out on Justice and Home Affairs matters in Protocol No 22 into a more flexible selective opt-in, similar to that currently held by Ireland and the UK. However, the outcome of the referendum was negative (53.1 percent voting 'No', against 46.9 percent 'Yes').

Following the negative outcome of this referendum, informal discussions took place between the Danish authorities and the European Institutions in order to seek ways for Denmark to be as closely as possible associated to Europol.

These informal discussions led to a joint statement on 15 December 2016 by the President of the European Council, the President of the European Commission and the Prime Minister of Denmark. In this joint statement it is proposed, in order to minimise the negative effects of the Danish departure from Europol, that Denmark will be associated to Europol in the form of an operational cooperation agreement. In order to avoid any operational gaps, this cooperation agreement would need to be concluded between Europol and Denmark before 1 May 2017.

The legal route for this would entail 2 consecutive legislative procedures, whereby firstly Denmark will be placed on the list with which Europol shall conclude international cooperation agreements, and secondly the operational cooperation agreement between Europol and Denmark will be concluded. The European Parliament has to be consulted on both proposals.

This report concerns the first consultation, namely amending Decision 2009/935/JHA in order to place Denmark on the list of third States and organisations with which Europol shall conclude international cooperation agreements.

Your Rapporteur recommends to approve this proposal. Combatting cross-border serious and organised crime and international terrorism within the Union, necessitates close cooperation and the sharing of data between all European countries. A sudden departure of Denmark from Europol without a smooth transition regime into some form of an association between Denmark and Europol, could lead to operational gaps and reduce the EU’s capacity to effectively fight organised crime and terrorism. It is therefore important to ensure a sufficient level of operational cooperation between Denmark and Europol including the exchange of relevant personal data, subject to adequate safeguards and data protection.

At the same time, it should be clear that such a cooperation agreement with Denmark should be of a transitional nature and cannot in any way equal full membership of Europol, including by providing for direct access to Europol’s databases, allowing for full participation in Europol’s operational work or giving decision-making rights in the governing bodies of Europol. Finally, the rapporteur notes with satisfaction that according to the joint statement the proposed arrangement will be conditioned on Denmark’s continued membership of the Schengen area, on Denmark’s obligation to fully implement in Danish law the Data Protection Directive by 1 May 2017 and on Denmark’s agreement to the application of the jurisdiction of the European Court of Justice and the competence of the European Data Protection Supervisor.

ANNEX: LETTER FROM THE COMMITTEE ON CONSTITUTIONAL AFFAIRS

Ref.: D(2017)5673

Mr Claude Moraes

Chair of the Committee on Civil Liberties,

Justice and Home Affairs

ASP 13G205

Brussels

Subject:  AFCO opinion in the form of a letter on the request for Parliament’s consultation on the draft Council Implementing Decision (EU) 2016/... amending Decision 2009/935/JHA as regards the list of third States and organisations with which Europol shall conclude agreements

Dear Chair,

On behalf of the Committee on Constitutional Affairs, I am pleased to submit to the Committee that you chair the AFCO opinion on the request under subject in the form of a letter.

This format is justified on the grounds of urgency. In fact, the request for Parliament’s consultation has a very strict time limit that the Council has set to three months, but in view of the upcoming application of the new Regulation on Europol on 1 May 2017, the Council has asked Parliament to submit its opinion to it preferably within one month

The European Parliament is being consulted by the Council, which by letter dated 5 January 2017 submitted to it a draft Council Implementing Decision amending Decision 2009/935 JHA determining the list of third States and organisations with which Europol (the “European Police Office” until 1 May 2017) shall conclude agreements.

The present Council Decision 2009/371/JHA establishing the European Police Office (Europol) will be repealed as of 1 May 2017 by the new Regulation 2016/794 of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation (Europol) with its entry into application on that day. The same Regulation will also replace and repeal the so-called implementing Council Decisions 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA, on implementing rules, the list of third States and the exchange of personal data.

Denmark currently participates in Europol like all the other Member States under the Council Decision of 2009. However, as Denmark has an opt-out on Title V of the Treaty of Lisbon and in particular, on police and judicial cooperation in criminal matters, which establishes that any measure adopted in this field by the Union will not be applicable to it, Denmark will be excluded from its participation in Europol as the new Regulation will be of application. Denmark will therefore become a third State vis-à-vis Europol. Hence, the need for Denmark to be added to the list of third States to continue cooperating with the Agency.

The Committee on Constitutional Affairs expresses no objections to the addition of Denmark to the list of third States and organisations with which Europol shall conclude agreements, given the need for the European Union and its partners to Europol to cooperate and exchange information in the framework of the fight against serious international crime and terrorism.

It is at the same time vital to elude the possibility of unwanted fragmentation within the European Union and to provide a legal framework that safeguards Denmark’s participation in Europol alongside the other Member States, notwithstanding the rising number of opt-outs that endangers the Union cohesion.

Yours sincerely,

Prof. Danuta Hübner

PROCEDURE – COMMITTEE RESPONSIBLE

Title	List of third States and organisations with which Europol shall conclude agreements
References	15778/2016 – C8-0007/2017 – 2016/0823(CNS)
Date of consulting Parliament	5.1.2017
Committee responsible        Date announced in plenary	LIBE 16.1.2017
Committees asked for opinions        Date announced in plenary	BUDG 16.1.2017	CONT 16.1.2017	AFCO 16.1.2017
Not delivering opinions        Date of decision	BUDG 26.1.2017	CONT 24.1.2017	AFCO 30.1.2017
Rapporteurs        Date appointed	Agustín Díaz de Mera García Consuegra 30.1.2017
Discussed in committee	24.1.2017	30.1.2017	9.2.2017
Date adopted	9.2.2017
Result of final vote	+: –: 0:	42 0 0
Members present for the final vote	Heinz K. Becker, Michał Boni, Caterina Chinnici, Agustín Díaz de Mera García Consuegra, Tanja Fajon, Kinga Gál, Ana Gomes, Nathalie Griesbeck, Monika Hohlmeier, Eva Joly, Dietmar Köster, Barbara Kudrycka, Cécile Kashetu Kyenge, Marju Lauristin, Juan Fernando López Aguilar, Monica Macovei, Roberta Metsola, Péter Niedermüller, Soraya Post, Judith Sargentini, Birgit Sippel, Branislav Škripek, Csaba Sógor, Sergei Stanishev, Helga Stevens, Traian Ungureanu, Bodil Valero, Marie-Christine Vergiat, Udo Voigt, Josef Weidenholzer, Kristina Winberg, Tomáš Zdechovský
Substitutes present for the final vote	Petr Ježek, Jeroen Lenaers, Nadine Morano, Morten Helveg Petersen, Emil Radev, Barbara Spinelli, Anders Primdahl Vistisen, Axel Voss
Substitutes under Rule 200(2) present for the final vote	Josu Juaristi Abaunz, Georg Mayer
Date tabled	9.2.2017

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

42	+
ALDE	Nathalie Griesbeck, Petr Ježek, Morten Helveg Petersen
ECR	Monica Macovei, Helga Stevens, Anders Primdahl Vistisen, Branislav Škripek
EFDD	Kristina Winberg
ENF	Georg Mayer
GUE/NGL	Josu Juaristi Abaunz, Barbara Spinelli, Marie-Christine Vergiat
NI	Udo Voigt
PPE	Heinz K. Becker, Michał Boni, Agustín Díaz de Mera García Consuegra, Kinga Gál, Monika Hohlmeier, Barbara Kudrycka, Jeroen Lenaers, Roberta Metsola, Nadine Morano, Emil Radev, Csaba Sógor, Traian Ungureanu, Axel Voss, Tomáš Zdechovský
S&D	Caterina Chinnici, Tanja Fajon, Ana Gomes, Cécile Kashetu Kyenge, Dietmar Köster, Marju Lauristin, Juan Fernando López Aguilar, Péter Niedermüller, Soraya Post, Birgit Sippel, Sergei Stanishev, Josef Weidenholzer
Verts/ALE	Eva Joly, Judith Sargentini, Bodil Valero

0	-

0	0

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention