Oireachtas Joint and Select Committees
Wednesday, 17 July 2013
Joint Oireachtas Committee on Justice, Defence and Equality
Scrutiny of EU Legislative Proposals
We will commence in public session. The purpose of today’s meeting is to consider the following matters: proposal for a directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law — Council general approach; and 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. A briefing note has been circulated to members.
I welcome the Minister for Justice and Equality, Deputy Alan Shatter, and his officials. The format of today's meeting is that we will have a briefing from the Minister followed by a question and answer session. I invite the Minister to brief the committee on the proposals.
Thank you, Chairman. I thank members for attending the meeting today, especially Deputy Pádraig Mac Lochlainn. I am not sure whether he is stalking me or I am stalking him but we seem to be spending a lot of time together.
I was about to say something else, but I fear it would lower the tone. I will be serious instead.
The original proposal for a directive of the European Parliament and of the Council on the fight against fraud to the Union's financial interests by means of criminal law was communicated by the Commission to the Council on 12 July 2012. Its aim is to replace what is known as the PIF Convention of 1995 and its protocols. The proposal contained a requirement for member states to criminalise various forms of fraud and corruption which damage the financial interests of the Union along similar lines to the 1995 convention. The Commission's proposal went further in addressing procurement-related offences, encompassing VAT, requiring mandatory minimum sentences, and requiring minimum prescription, or Statute of Limitations, periods. Most controversially, the Commission's proposal was based on Article 325 of the Treaty on the Functioning of the European Union, TFEU. A majority of member states, with the support of the Council's legal service, objected to Article 325 as a legal base for criminal law measures as they are of the view that such measures must be based on an article within Title V of Part 3 of the TFEU, encompassing Articles 67 to 89, inclusive, concerning an area of freedom, security and justice.
Following lengthy negotiations at working group, counsellor and committee of permanent representatives, COREPER, level, the Justice and Home Affairs Council, on 6 June, agreed a Council general approach on the proposed directive. I will now deliberately embarrass somebody who is sitting close to me by pointing out that this agreement was the result of very substantial work undertaken to resolve what had been a very difficult issue at European Union level during the course of the Irish Presidency. I am guessing that a member of my Department who is in this room is blushing at this stage. The Government has decided that Ireland should opt in to this general approach in accordance with Protocol 21. Under Article 29.4.7, the approval of the Houses is sought to that end.
The general approach is significantly different from the Commission's original proposal in a number of areas. The scope excludes VAT and is limited to expenditure in the form of grants and subsidies or cases where intention to make an unlawful gain or cause a loss can be proven. Procurement-related offences have been removed. There are no mandatory minimum prison sentences, only minimum levels of maximum sentences. The prescription provisions are significantly modified. Most importantly, the Council agreed the general approach on the understanding that the legal basis for the measure would be Article 83(2) of the TFEU. On foot of this agreement, the Council noted that 6 June would mark the commencement of the opt-in period for Ireland and the United Kingdom in accordance with Article 3 of Protocol 21 to the treaties. The general approach will form the basis for the Council's engagement in trilogues with the European Parliament and the Commission. The three-month period in respect of the proposal will expire on 6 September. The various changes of approach were necessary to effect agreement between member states and allow the instrument to proceed. As in all such cases, it was about finding a ground upon which member states, or at least a majority thereof, could generally agree.
The purpose of the draft directive is to move the basis for criminal laws to protect the financial interests of the EU from the 1995 PIF Convention to a basis under the provisions of the Lisbon treaty. There is an added significance to the proposed directive in that Article 86 of the TFEU provides for the possible establishment of a European public prosecutor's office, EPPO, which would have responsibility for investigating and prosecuting offences against the Union's financial interests. Participation in EPPO, if a proposal is advanced, will be optional for member states.
I will now set out the key provisions in the Council's general approach to the proposed directive. Article 83(2) is the legal base for the measure and is set out in the Preamble. VAT revenues are excluded, in Article 2, from the definition of the Union's financial interests as they are matters internally for member states. The definition, in Article 3, of fraud affecting the Union's financial interests is limited to expenditure in the form of grants and subsidies or cases where intention to make an unlawful gain or cause a loss can be proven. To clarify the legal jargon, the intention here is to ensure that where funding is provided by the European Union it is used for the purposes intended and is not fraudulently misused.
Article 4 provides for fraud-related offences affecting the Union's financial interests, namely, money laundering, corruption and misappropriation. It also provides a definition of "public official", which has a particular relevance for those offences. Article 5 addresses incitement, aiding and abetting and attempt to commit offences. Article 6 addresses the liability of legal persons. Article 7 requires that offences are punishable by criminal penalties. It will be a matter for member states to define serious offences in domestic law but these must be punishable by a maximum penalty of at least four years imprisonment. That is a maximum rather than a minimum meaning that an appropriate sentence could be handed down by a judge who might bear in mind the overall circumstances relating to any alleged offence of which someone is convicted.
Article 8 requires that the commission of offences as part of a criminal organisation shall be regarded as an aggravating circumstance. Article 9 addresses sanctions for legal persons. Article 10 relates to the freezing and confiscation of the proceeds and instrumentalities of offences. Article 11 requires member states to assert jurisdiction over offences committed wholly or partly in their territory or by their citizens. Article 12 requires a prescription - Statute of Limitations - period of at least five years for serious offences. Recital 19 clarifies that this is without prejudice to member states, such as Ireland, the UK and Cyprus, which do not set limitation periods. We do not have formal limitation periods and if someone commits an alleged offence and if evidence is available, he or she can be prosecuted in respect of that offence five, ten, 15 or 20 years later. This, of course, is subject to the views of the Supreme Court - as detailed in case law - with regard to issues of delay and prejudice.
Article 13 refers to the recovery of sums unduly paid. Article 14 is intended to ensure that the imposition of administrative sanctions provided for in Council Regulation No. 2988/95 relating to the Union's financial interests will not be prejudiced by the proposed directive. Article 15 provides for co-operation with the European Anti-Fraud Office. Article 16 provides for the replacement of the 1995 PIF convention for those member states participating in implementing the directive. Articles 17 to 20, inclusive, deal with transposition, reporting on implementation, entry into force and the usual formalities.
The following are issues which arise for this country. While the original Commission proposal contained some elements of concern to Ireland, such as mandatory minimum sentences and a legal base other than in Title V of Part 3 of the Treaty on the Functioning of the European Union, the general approach agreed by Council does not, we believe, present any significant difficulties for us. Much of the content of the proposed directive replicates the PIF directive of 1995, which was provided for in Part 6 of the Criminal Justice (Theft and Fraud offences) Act 2001. While a preliminary examination of the proposal in its current form indicates that Part 6 may need to be replaced, it is not envisaged that the replacement provisions will be substantially different to those actually contained in Part 6. When negotiations have been concluded, the final text of the instrument will be examined in conjunction with the Office of the Attorney General in order to establish the precise legislative requirements necessary to give full effect to the directive in Irish law. As already stated, because this is a directive rather than a regulation and in so far as it addresses issues for which we have not yet legislated, we will ultimately be required to introduce domestic legislation.
The proposed directive will bring the law in this area under the framework of the Lisbon treaty. It will further harmonise the approach across the EU to the criminalisation of fraud affecting the Union's financial interests. The interests of Ireland, as a member state, will be better protected by this measure and by our participation in its negotiation and implementation. Effectively, therefore, I am asking the committee to agree that we should opt-in and participate in the negotiations that will be undertaken with other member states in order to bring forward the final version of this proposed instrument. I am of the opinion that we should proceed as I have outlined and I commend the motion to the committee.
One of the issues for some of the member states is that VAT is a matter for their internal laws and that prosecutions should take place according to those laws. The states in question were concerned that the European Commission and the EU in general should not interfere in this regard, particularly as such interference is not necessary. That is one of the issues which had to be moderated upon and agreed between member states in order that progress could be made on the instrument.
The directive relates to the fraudulent misappropriation or misuse of funding provided by the European Union. The Union is unlikely to provide money for projects outside its territory. In certain circumstances, however, it could provide for aid to be given to some country or region elsewhere in the world in which difficulties are being experienced. If there was a fraudulent misappropriation of such aid, then the issue which arises is whether European Union law or domestic law in a third country would apply. An issue could arise to which there is not an immediate answer because matters would depend on the background circumstances and on where the fraud was perpetrated and to what it related.
What is envisioned here is not dependent on an offence being committed by a European citizen. Such an offence could be committed in the European Union by one of its citizens or by a non-citizen. In the context of jurisdiction, Article 11 states:
Once the directive is in place, we will enact our own domestic law. Thereafter, if one of our nationals commits an offence under the directive, either in another member state or outside the European Union, he or she can effectively be prosecuted in Ireland. It is often the case that most of our criminal law applies to offences committed in this country. We have extraterritoriality in respect of a very limited number of offences. In the context of many of continental European states, there is extraterritoriality. If a national of one of those states commits an offence elsewhere, he or she can be prosecuted in his or her home state. This is the particular approach taken in the directive.
1. Member States shall take the necessary measures to establish their jurisdiction over the criminal offences referred to in Title ll where:
(a) the offence is committed in whole or in part within their territory; or
(b) the offender is one of their nationals.
Yes. It will be some months before the final version of the directive is agreed by the European Parliament. Once this happens and the directive is adopted, the Office of the Attorney General and my Department will examine to decide whether there are areas of our domestic law which will require reform, amendment or addition in order to ensure that Ireland implements the directive in full. We will then either draft stand-alone legislation or include the necessary provisions in another Bill relating to the area of criminal law that is under preparation at that point.
No. There was a row among member states with regard to the envisaged legal base. Agreement must be reached by the member states on the final version of the directive. Happily, the Irish Presidency has concluded and effecting agreement with the European Parliament will be a matter for the Lithuanian Presidency - if the matter is rapidly progressed - or by the Greek Presidency. Everything depends on the rate of progress.
That is fine. Perhaps we will move on to COM (2013) 173, which relates to the proposal for a regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Co-operation and Training, Europol, and repealing Decisions 2009/371/JHA and 2005/681/JHA.
I thank the Chairman. In the context of this matter, the term "JHA" refers to justice and home affairs.
I realise we use acronyms and letters and if one is not familiar with them it can sound a little odd. I thank the committee for making time available to discuss this motion today.
The motion relates to the exercise by the State of the option which Ireland has to take part in the adoption and application of the proposed regulation and the repeal of the decisions to which I just referred.
The legal basis for the Commission proposal is to be found in Articles 88 and 87(2)(b) of the Treaty on the Functioning of the European Union. Article 88 of the treaty provides that Europol shall be governed by a regulation to be adopted by the ordinary legislative procedure. Article 87(2)(b) provides that the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning support for the training of staff, and co-operation on the exchange of staff, on equipment and on research into crime detection.
In consequence, the terms of Protocol No. 21, which we share with the United Kingdom, whereby we have three months to exercise our option to take part in the adoption and application of relevant measures, apply. I am advised that the three month period will expire by 30 July. Accordingly, if we are to exercise our option within the required timeframe in respect of this measure, it is necessary to obtain the prior approval of both Houses of the Oireachtas before that date. Members will be familiar with the procedure in relation to protocol measures - we just dealt with one - since a number of proposals which attract the provisions of the protocol have come before this committee of the House in recent years.
The proposal - as presented by the Commission - concerns two existing EU agencies, Europol and CEPOL. Europol's role is to support national law enforcement bodies in their fight against serious crime and terrorism. Europol does this by exchanging information between national services and providing analysis of data to assist national services. The European Police College, CEPOL, facilitates co-operation between national police services by organising and conducting training with a specific European and international dimension. The draft regulation is, as regards Europol, the first substantial overhaul for the organisation since its inception: the Council Decision of 2009 was an institutional and legal update but did not present a change to the core business of Europol.
Following publication of the proposal at the end of March, during the course of the Irish Presidency, many member states expressed outright opposition to the proposed merger of Europol and CEPOL. In short, there is a real concern on the part of member states that the merger of CEPOL into Europol may adversely impact on police training given the primary intelligence focus of Europol. During the Irish Presidency, we facilitated discussion of the proposal at ministerial and senior official levels. These discussions focused, in particular, on the issues arising from the proposed merger. At the meeting of the Council of Ministers in Luxembourg that I chaired in June, there was significant opposition to the merger and it was clear that no agreement would be forthcoming on this aspect of the proposal. Accordingly, the Irish Presidency asked the Commission to reflect on the outcome of the discussion and to reconsider the matter. In the meantime, the Irish Presidency decided that formal consideration of the matter at working group level would concentrate on the proposal as it relates to Europol and that the merger issue need not be considered given the clear majority of member states already opposed to it.
The first working group meeting was held in June under the Irish Presidency. The Lithuanian Presidency will continue the examination of the proposal. No consideration will be given to the merger issue. The member states expect the Commission to put forward alternative proposals in relation to CEPOL in due course.
The proposal aims to align Europol with the requirements of the Treaty of Lisbon, increasing its accountability; enhance the supply of information by member states to Europol; provide that Europol will take over and build on the tasks currently carried out by CEPOL – clearly, that will not be happening; reinforce the data protection regime applicable to Europol; and improve the governance of Europol.
I wish to briefly comment on each of these aims. The first one is making Europol more accountable. The regulation aims to ensure that Europol's activities are subject to the scrutiny of both the European Parliament and the national parliaments. This objective will be achieved by providing that the European Parliament and the national parliaments receive information and reports and that the executive director and the chairperson of the management board can meet with the parliaments to discuss Europol issues. In addition, the European Parliament will have statutory functions in relation to the agency's budget and work programme.
The next aim relates to enhancing the supply of information. The regulation will strengthen the obligation of member states to provide data. It is also proposed to redesign how the agency processes data to ensure that Europol is better placed to link and analyse data in order to identify trends and patterns. All of this will be achieved with the highest data protection standards possible. I will give members an example of the type of data I am talking about. It may well be intelligence information relating to the activities of individuals engaged in international terrorism. There may be a need for information to be exchanged between Europol and police forces in Europe. That would be a classic example of information exchange that would contribute to law enforcement in individual member states.
In regard to training, as I already mentioned, the Commission has proposed that Europol will build on the work of CEPOL and assume new responsibilities in relation to police training. However, member states expect the Commission to put forward alternative proposals. Much of the discussion on this issue during the Irish Presidency was that member states were concerned that if CEPOL was subsumed into Europol the main focus would be on obtaining and exchanging information and that the training function of CEPOL would in some way receive less priority or be downgraded. I am not sure that would have occurred in reality but that was the concern expressed by member states.
The proposal reinforces Europol's data protection regime. Access by member states to personal data will be on a "hit/no-hit" basis. Accordingly, data will only be supplied in response to a separate follow-up request. Processing of data on victims and witnesses will be prohibited unless strictly necessary. Rights of access to data will be reinforced. Any person can seek compensation for unlawful data processing. The European Data Protection Supervisor will supervise the processing of data by Europol. National data protection authorities will continue to enforce the rules relating to the input and retrieval of data by member states.
In terms of improved governance, the board will be responsible for the budget and working procedures and, in order to streamline the decision-making process, the board will be empowered to establish a smaller executive board.
In the context of the text of the regulation, I do not propose to go through it in great detail but it is appropriate to present an overview. Chapter 1 contains the general provisions. Article 1 provides for the establishment of the agency, to be formally known as the European Union Agency for Law Enforcement Cooperation and Training -Europol. Article 2 provides for definitions of terms used elsewhere in the text. Article 3 sets out Europol's objectives, foremost of which is to support and strengthen action by competent authorities in the member states in preventing and combatting serious crime affecting two or more member states, terrorism and forms of crime which affect a common interest covered by a Union policy.
Chapter 2 which deals with tasks related to law enforcement co-operation contains five articles. Article 4 provides for the agency's tasks. These include collecting, storing, processing analysing and exchanging information and preparing threat assessments. The agency will also provide technical support to member states' cross-border operations and investigations. Article 5 provides that Europol may participate in joint investigation teams. Article 6 provides that Europol may request member states to initiate criminal investigations. However, the decision to initiate investigations will rest with the member states.
Article 7 provides for member states' co-operation with Europol. As is the case now, member states will establish national units to act as the liaison body between Europol and the competent authorities in the member state. Article 8 provides for liaison officers to be assigned to Europol. Currently, both An Garda Síochána and the Revenue Commissioners have liaison officers based in Europol headquarters in The Hague.
Chapter 3 concerns tasks related to training for law enforcement officers. Articles 9, 10 and 11 relate to training. Again, I have to make the point that this aspect of the proposal will not now be considered by member states.
Chapter 4 deals with the organisation of Europol. Articles 12, 13 and 14 deal with the composition and functions of the management board. Each member state shall nominate one member and the Commission will be able to nominate two. Article 15 provides that the board shall adopt an annual work programme and multi-annual work programme, both of which are to be forwarded to the European Parliament, the Council, Commission and national parliaments.
Articles 16 to 18 provide for a chairperson to be elected by the board, meetings of the board, which must be at least two per year, and voting rules, with decisions to be made by a majority of members. Article 19 provides for an executive director to be appointed by the management board. The executive director will be responsible for the day to day administration of the agency. Article 20 provides for a scientific committee for training, which will be an independent advisory body to guide the scientific quality of the agency's training work. As with other sections dealing with training, this aspect of the proposal will not be considered.
Articles 21 and 22 deal with the executive board which, if established, will prepare decisions for adoption by the management board. It will also have functions relating to the follow-up of findings and recommendations stemming from evaluation reports and assisting the executive director in the implementation of decisions of the management board. The executive board will be composed of the chairperson of the management board, one representative from the Commission, and three other members of the management board chosen by the members.
Chapter 5 deals with the processing of information. Article 23 provides that Europol can only process information that has been provided by member states, in accordance with their national law, by Union bodies, third countries and international organisations, where agreements have been entered into with them, and by private parties in accordance with Article 29, which I will come to.
Article 24 sets out what Europol can do with the information. It can process information for the purposes of cross-checking information to identify connections; analyses of a strategic or thematic nature; and operational analyses in specific cases.
Article 25 provides that a member state, EU body, a third country or international organisation providing information determines the purpose for which it shall be processed. Article 26 provides that member states shall have access to and be able to search all information which has been provided in accordance with Article 24 for the purposes of cross-checking and strategic and thematic analysis. Regarding information provided for operational analyses in specific cases, member states shall have indirect access on a hit/no hit basis. Article 27 provides that Eurojust and OLAF should have access to Europol information on the same basis.
Article 28 provides that Europol has a duty, in certain circumstances, to share information irrespective of any access restrictions. For instance, Europol will supply information in the interest of preventing an imminent terrorist attack. That is something I mentioned earlier.
Chapter 6 deals with relations with partners. Article 29 sets out the procedures whereby Europol may establish relations with other Union bodies, third countries and so on. Articles 30 to 33 provide for the transfer and exchange of data.
Chapter 7 deals with data protection safeguards. Articles 34 to 48 set out in some detail the data protection safeguards to be put in place. These are comprehensive and are designed to ensure the best possible regime of data protection consistent with Europol's mission. Provisions cover processing of data, time limits, security, rights of access and rights to rectification, etc.
Europol will have a data protection officer who, in the performance of his or her duties, is obliged to act independently. Each member state will designate a national supervisory authority with the task of independently monitoring the transmission and exchange of data between the member state and Europol. In addition, the European Data Protection Supervisor will monitor and ensure the application of the safeguards contained in the regulation. Article 46 sets out the duties and powers of the supervisor.
Chapter 8 deals with remedies and liabilities. Article 49 provides for a right to lodge a complaint with the European Data Protection Supervisor. Article 50 provides for a right to bring an appeal against a decision of the supervisor to the Court of Justice. Articles 51 and 52 deal with liability.
Chapter 9 deals with parliamentary scrutiny. Articles 53 and 54 deal with parliamentary scrutiny. The chairperson of the management board and the executive director will appear before the European Parliament to discuss matters relating to Europol. It also provides that Europol will be obliged to provide the European and national parliaments information relating to threat assessments, strategic analyses and general situation reports.
Chapter 10 deals with staffing issues. Articles 55 to 58 deal with financial provisions. Articles 59 to 63 deal with implementation of the budget, presentation of accounts and so on.
Chapter 12 deals with various miscellaneous provisions. Articles 64 to 72 cover a number of miscellaneous matters: Europol's legal status, the location of Europol, which is in The Hague, privileges and immunity, evaluation of Europol every five years, and the conclusion of a headquarters agreement between Europol and the Netherlands, the country in which the agency is based.
Chapter 13 deals with transitional provisions. Articles 73 to 76 set out transitional arrangements concerning the board, senior office holders and the budget.
Chapter 14 deals with final provisions. Articles 77 and 78 replace and repeal various measures, and Article 79 provides for entry into force. Essentially, the proposal seeks to create a Europol that is fit to address the challenges of supporting and enhancing EU law enforcement co-operation for the next ten to 15 years, similar to the original Europol Convention that provided the functional framework for its first 15 years.
Ireland is broadly supportive of the proposal. Our participation in Europol is vital to our national interest, and we look forward to continuing to play an active role with the agency.
I hope the committee will support the motion to exercise Ireland's opt-in to the negotiation of this proposal. It is essential that we continue to actively participate in Europol. I need hardly add that any points raised by members of the committee on the European Commission proposal will be noted and will be taken into account during the negotiation process. I thank members of the committee for hanging in there for what was a very long presentation about an agency that does some interesting work in respect of whose structure is being updated and in respect of which I hope a very good regulation will be put in place when the deliberative phase of this process is complete at European Union level.
The Europol Joint Supervisory Body has some concerns about this in terms of data protection. It argues that the existing data protection system within Europol is very strong and it believes what is proposed in the regulation is weaker than what is already in place. The definition of the types of crimes Europol can examine has changed to a more broader definition. The concern would be that we have regular data protection in Ireland but can we ensure that whatever information we pass on to Europol with regard to Irish citizens is protected? It greatly concerns me that this supervisory body, whose function is to examine all of this, has its own concerns.
Apart from criticisms the body has a number of practical proposals. It speaks about the need for joint supervision of this entire area, including the national data protection agencies. It does not support the idea of the Commission making the European data protection service solely responsible for the supervision of Europol; it believes there must be joint supervision. On the basis of its criticism and also of advice from my colleagues in the European Parliament, our party could not support the current proposal and we will push for a vote on it tomorrow unless the Minister can convince us otherwise.
In fact the exact opposite is happening. First, the data protection issue will be subject to the jurisdiction of the European Data Protection Supervisor'
In practical terms, that would be - in the context of our own data - the equivalent of our domestic Data Protection Commissioner. That would be a normal way of ensuring data protection, to have the main body which deals with that ensuring data protection.
In the context of the proposal, there is a range of things worth referring to. The proposal basically reinforces the autonomous data protection regime applicable to Europol's activities. It strengthens rather than weakening it. For instance, the individual's right of access to personal data is reinforced. Any individual can turn to Europol for compensation for unlawful data processing or an action incompatible with the provisions of the relevant regulation.
The role of Europol's data protection supervisory authority is in fact enhanced and strengthened, it is not weakened. The European Data Protection Service, EDPS, would be competent for the supervision of processing of personal data by Europol. Contrary to the previous data protection supervisor, the EDPS meets all the criteria on independence laid down in the case law of the European Court of Justice. It is important that data protection does have oversight from an entirely independent individual or body.
In addition, there are full enforcement powers vested in the EDPS, which ensure the effectiveness of data protection supervision. The processing of personal data on victims, witnesses, persons different from suspects, and minors is prohibited unless strictly necessary within the terms of the regulation. This also applies to data revealing racial and ethnic origin, political opinions, religion or beliefs, and trade union membership.
Access by member states to personal data held by Europol for operational analysis is based on a "hit-no hit" system. An automated query of the member states produces an anonymous hit - that is, information on a match with the data stored at Europol. The related personal or case data is only provided in response to a separate follow-up request subject to appropriate safeguards. As I understand it, this measure will not weaken data protection. In fact, it will strengthen it for citizens and will provide a better regime than is currently provided for. I can assure the Deputy that is something we would want in representing Ireland's interests in the context of the negotiations that will take place at EU level on the final form of this measure. If we identify any frailty concerning data protection, we will do what we can to have it addressed.
The joint supervisory body will have an important function in overseeing all of this. The proposal refers to the fact that the existing regulations are strong and robust. It was stated that the level of data protection introduced by the proposed regulation, in view of the new competences of Europol, is a clear retrograde step compared to the existing level of data protection set out in the Europol Council decision. This is also the assessment of all national data protection authorities. That is strong criticism. It is not like some left-wing conspiracy. These are people who want to protect the integrity of the institutions. I have concerns about the proposal. Has the Minister engaged with this assessment? Has he considered the suggested amendments? My colleagues in the European Parliament wish to table amendments to this proposal in order to strengthen it. I am not convinced, however, that we can support this as it stands.
Let me explain to Deputy Mac Lochlainn what we are doing, because I think there is some confusion between us. I am not asking the committee to support this regulation in its present form. I deliberately went through what it contains and I have already sign-posted some of the matters contained in it that will not be accepted. One of the focuses of the Irish EU Presidency was whether or not CEPOL would be integrated within Europol. That will not happen. We still have a measure that provides for that, although it will not be progressed. We have two choices as a State. We either opt in at this stage to the deliberations that are taking place, so that we can make our contribution to remedy any frailties in the proposed regulation by proposing any necessary amendments and engaging in that process, or we do not opt in. If we do not opt in, we are officially excluded from the development and improvement of the measure. The opt-in is to allow us to engage. At the end of the process we have an option to stand aside. We can see what happens at the end of it and then simply opt in to adopt it at a later stage. Then, however, we will not have had any opportunity to make our views known or to influence the outcome.
We are already part and parcel of Europol and are engaged with it. Europol does very important work and the Garda Síochána can access Europol's database, particularly in dealing with international crime issues. Apart from terrorist issues, I am referring to drug crime. International drug gangs are bringing drugs from one part of Europe to another. Some bring drugs into Ireland, while others use Ireland as an access point for other parts of Europe. On occasion, one sees newspaper reports of co-ordinated police action in three or four EU states to bust a drugs gang. Such busts often take place as a consequence of co-ordinated exchanges of information, not only directly between police forces but also using Europol's facilities. It is very important that we should remain part of that.
It is not my view that the directive, in its current form, is perfect and should remain unchanged. During the Irish EU Presidency the two big issues were, first, whether this measure would proceed and, second, if it did, would the CEPOL proposal be a part of it? There was a lot of controversy about that and it was the focus of attention.
I would urge members of the committee, including Deputy Mac Lochlainn's party, to support it. We are seeking support to opt in to the negotiation process so that we can contribute directly to any discussions necessary to improve the provisions. It is our reading of this that in a number of ways it reinforces and improves data protection, but if there are frailties in the data protection area we will obviously have regard to the submission that the Deputy referred to. We will also have regard to our own internal assessments. We will bring that discussion into the negotiations which will take place under the Lithuanian EU Presidency for the instrument to be agreed in a final form. If we opt out, however, we cannot participate in that discussion. Therefore we would be a part of the current Europol but not engaged in discussions as to how we can make things better.
That is an entirely reasonable point, but I wish to clarify something. When the Minister has completed his negotiations, will the finalised proposal also come before the Houses for a vote?
No. It will go to the European Parliament. What we must decide here is whether to opt in. It should not be forgotten, however, that ultimately, it is not simply a question of what member states agree to, or agree with the European Commission - it is what the relevant committee of the European Parliament agrees to. Depending on different instruments, it is either the JURE committee or the LIBE committee. There is a detailed engagement, so if there are reservations within the European Parliament on aspects of this proposal they are often factored into the discussions between member states. There is no point in member states agreeing to something knowing that the European Parliament is adamantly opposed to it.
This is a bizarre process. As parliamentarians, we are being asked to support a proposal that we do not agree with right now. We are also being asked to give the Government the green light to go ahead and see if it wants to negotiate and improve it. We are therefore being asked to vote for and support something that we have not seen in a final format. I do not think that is acceptable. This is a rubber-stamping process. It is not just Sinn Fein's concern because the joint supervisory body on Europol should also have serious concerns.
I would like to intervene for a moment. I have been listening to the discussion and my understanding is that we are being asked to opt in to the negotiating process now.
I am sure the Minister will accept further comments and observations from the committee at a later time. Will these proposals come back to the national parliaments before they are finally ratified?
No, we have to opt in by 30 July. This is a unique procedure to Ireland and the UK. No other EU member state has this. An instrument like this would normally be negotiated at Council level and at official level for agreement to be reached between Ministers on the form of the proposal as agreed by member states at government level. The democratic check on that is twofold. If a Minister does something quite daft, they are accountable to their parliament. The accountability issue is the European Parliament. It is now a co-decision maker which is why we have specialist committees in the European Parliament to deal with justice issues.
Instead of Ireland being automatically part and parcel of the justice area, we have an opt-in and opt-out position. Some of the justice matters dealt with by continental European Union member states are incompatible with certain constitutional safeguards. These are all areas of co-operation between member states. We preserved the opt-in to ensure we would not find ourselves compelled to be party to something we could not be. For example, there is an EU measure regarding matrimonial property after a divorce. We have a specific provision in our Constitution relating to divorce. Accordingly, we cannot automatically be a party to matrimonial property arrangements agreed at European level if they are incompatible with our constitutional article on divorce. Another reason is our judges do not have investigative functions such as those in France or Italy. There are areas of criminal law that are simply incompatible between a common law jurisdiction and a continental one.
The decision is not about the committee endorsing the specific directive and its provisions. It is about agreeing in principle we should opt in because Ireland should continue to be part of Europol. The Government has the responsibility to negotiate. Then there is the accountability to European Parliament. No instrument can be adopted without the European Parliament’s agreement. We have been doing this for some years. With every such instrument that I have presented to the committee, when there is an opt-in, I have not asked the committee to adopt it in its final form. There has not been an instrument that we have opted into which has not been amended and improved through the negotiation process at European level.
Europol, a joint supervisory body, has responsibilities for data protection. To whom will the data protection officer be answerable? Will the officer be appointed by the data protection supervisor or has this to be determined in the negotiations?
I thank the Minister for his presentation. Will he give us more information as to why there was such vehement opposition to the merger? The proposal has five components. Ireland will opt out of one of them, the merger. If, later in the negotiations, there is an agreement about the merger, will that influence the other components?
We have spent much time on this with European Ministers, as well as my officials at working group level. It is all very straightforward. The provisions regarding CEPOL, the European Police College, can be separately and discreetly removed from this and it does not create any subsequent problems with the other provisions.
The majority of member states were opposed to the proposed merger of the two agencies. Their concern was that training would suffer if CEPOL were merged into what is a criminal intelligence agency. In other words, the criminal intelligence aspect of it would be prioritised while the training side would be downgraded. Personally, I do not believe that would have happened. However, this is the European Union. We had detailed engagement with member states on this issue at the June Council meeting that I chaired. There were a small number of member states which supported the merger. If I had not been in the chair, I would have equally been supportive of it.
The Commission argued that a merger into a single agency, headquartered in The Hague, would create synergy and efficiencies. The overriding concern of member states was that Europol has a particular and important function. It is not involved in training which CEPOL does. It was believed that in merging the two, priority would be given to the research and data exchange side. There was a suggestion to co-locate the two agencies in the one building. I believe they will operate separately, however.
The Minister is missing an important point from Deputy Mac Lochlainn. I also have concerns about this process. In his presentation, the Minister said the aim of the proposals is to increase accountability.
That is essentially what we are talking about in respect of the Minister going ahead and not coming back to the Dáil through the Members of the Oireachtas. I say this from a position where I would support the Europol principle, particularly in dealing with the points the Minister made about international drugs and sex trafficking. People have concerns.
My second point concerns accountability and regulation. Does this have any impact on the intelligence services of the different European countries as well or are we specifically talking about police forces?
We are talking about the exchange of information between the police forces across the EU. However, we should not forget that An Garda Síochána deals with what I describe as State intelligence issues. There is a crossover. If our gardaí are dealing with subversives in this country, they would have intelligence on subversives. People who engage in international terrorism are effectively committing crimes. They might murder someone or blow individuals up so intelligence or data in these areas is a relevant issue. In the context of Europol, this proposal does a number of things. It modernises Europol's data processing structure. The goal is to enable Europol's analysts to swiftly identify all the links between sensitive data and patterns in criminal activities. If those criminal activities are terrorist activities, that is intelligence, if one wants to put it another way. If, as a result of examining sets of data, it can be predicted that someone might blow a dozen people up on the streets of London or that somebody in this country might be assassinated, this is intelligence. There is no dividing line between police work and intelligence. Modern police work in this State is based on good intelligence. Having targeted operations is based on having the intelligence regarding who to target and knowing what they are going to do so one cannot easily divide those things.
It is important that Europol operates in a manner that is appropriate. That is why there are data protection provisions in place. I come back to what Deputy Mac Lochlainn said. I understand his frustration about this but this is the structure on which the EU is based and on which our engagement is based on the justice side. It is not within my power to change that structure. As the Chairman said, the negotiation on this instrument will go on for some time. On the basis that we opt into it and will be engaged, I am happy if members of the committee came back to us some time in September having further examined this instrument and made suggestions as to improvements that could be made to it. Obviously, they can be assessed by us in the context of the work we will do in the negotiation process on the instrument. I have no difficulty with that and am happy to encourage members to do that. It will be added value to the work we are doing.
I do not disagree with the Minister's points about the interaction between the Garda and the intelligence services. My problem is that intelligence services in some countries are selective in their co-operation. This committee has been asking the British Government and its intelligence service to assist us in respect of the Dublin-Monaghan bombings but there has been a complete lack of co-operation. If that was some other organisation, everybody would be jumping up and down. I need to have confidence that we are working together and that co-operation is not selective.
If one is talking about today's policing on this island, there is very substantial and important co-operation between the Garda and the PSNI on a daily basis. That is outside and does not need to be within the Europol format. Is there co-operation between the PSNI and An Garda Síochána on this island? There is very substantial co-operation and lives have been saved on different parts of this island over the years as a consequence of that co-operation and the exchange of intelligence information between them.
I understand that Article 7 says that member states shall supply Europol with information and intelligence necessary for it to fulfil its obligations. Is Article 7 binding? Can member states refuse to give information for stated reasons?
Essentially, the instrument strengthens the obligations of member states to provide information to Europol. This is done by setting clear legal rules and focusing the member states' supply of information on areas which I would describe as constituting EU priorities in the fight against crime. There is minor crime where one will not be exchanging data.
The regulation also gives incentives to member states to share information by providing targeted financial support for cross-border investigations. There is also yearly reporting by Europol to EU institutions on the quantity and quality of data information exchange. Deputy McGrath made a very reasonable point. If a member state is not co-operating and is not providing information, there will be fairly rapid transparency regarding that in the context of the reports that will be published on a yearly basis and which will be furnished to the Commission, the Council of Ministers and the European Parliament. A member state that does not co-operate will find itself in difficulties in the context of the intent of the provision. It is important that relevant information is available, exchanged and utilised. At the end of the day, what is this really about? It is about protecting our citizens from those engaged in serious criminality and from individuals who pose a risk to life, protecting the citizens of this State and where we have information, our police force assisting in protecting other European citizens in other member states.
Europol's main function would to provide information that the police force in an EU member state would use. However, Europol can also jointly investigate with a member state's force. Europol would not land in a state on its own and start an investigation. There would be certain sovereignty issues in respect of that. This instrument envisages a joint investigation by Europol and a member state's police force. Of course, one could have a co-operative investigation across a number of member states where there is a particular issue under investigation.
It means that one has information and wants to find out whether there is a match for this. There is a computerised programme that allows one to find out whether information is held in Europol and if one gets the match, one then apply for the additional information. One cannot simply access the data and do some sort of trawl which involves accessing information about a range of individuals who are entitled to their privacy and who are not connected with the matter under investigation.
The negotiations will go ahead without our participation and, ultimately, an instrument would be adopted by the member states. We might be allowed some tangential engagement even when we have not opted in but, effectively, we would not be officially negotiating the instrument. If we did not like it, nobody would care greatly. When it came out in final form, we could decide to opt in but we would have had minimal influence on how it was finally framed.