What balance between Eurojust and Europol from a parliamentary angle?

A comparative analysis

The Lisbon Treaty introduces the legal basis for the joint parliamentary oversight of Europol and Eurojust. Article 12 of the Treaty on the European Union states that national parliaments contribute actively to the good functioning of the Union through ‘being involved in the political monitoring of Europol and the evaluation of Eurojust’s activities in accordance with Articles 88 and 85’ of the TFEU (lett f). Articles 88 and 85 TFEU, respectively, dedicated to Europol and Eurojust, establish the application of the ordinary legislative procedure for determining the structure, operation, field of action and tasks of the two agencies. They include the following provisions on parliamentary oversight (Table 1).

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Table 1.

The relevant provisions of the TFEU.

Article 88, para 2, TFEU (EUROPOL)	Article 85, para 1, TFEU (EUROJUST)
These regulations shall also lay down the procedures for scrutiny of Europol’s activities by the European Parliament, together with national parliaments.	These regulations shall also determine arrangements for involving the European Parliament and national parliaments in the evaluation of Eurojust’s activities.

The Treaty does not define the notion of ‘evaluation’ (Eurojust’s activities) or ‘scrutiny’ (Europol’s activities). Also comparing the other linguistic versions (évaluation vs. contrôle in French; valutazione vs. controllo in Italian), the notion of ‘evaluation’ seems weaker than ‘scrutiny’. However, as noted, ‘evaluation’ means that ‘both the European Parliament and the national parliaments are called upon to actively reflect upon Eurojust activities, and not merely to hear it and take note of what has been reported to them’. ⁹

The different degree of parliamentary control over Europol and Eurojust seems confirmed by the two regulations implementing Art 88 and Art 85 TFEU, respectively, reg 2016/794 (concerning Europol) ¹⁰ and reg 2018/1727 (on Eurojust). ¹¹

Concerning Europol, Art 51, para 1, reg 2016/794, envisages a specialised Joint Parliamentary Scrutiny Group (JPSG), to be established together by the European Parliament and national parliaments, ‘which shall politically monitor Europol’s activities in fulfilling its mission, including as regards the impact of those activities on the fundamental rights and freedoms of natural persons’. The JPSG’s prerogatives and rights for information and consultation are detailed in the following paragraphs. ¹² The JPSG was established by the Conference of the Speakers of European Union Parliaments in Bratislava in 2017 ¹³ ; its constituent meeting took place the same year within the premises of the European Parliament and its rules of procedure were adopted in Sofia, in 2018. ¹⁴

Concerning Eurojust, the regulation is less detailed. The main provision is contained in Art 67, reg 2018/1727, which envisages an interparliamentary committee meeting, to discuss Eurojust’s current activities and the annual report presented by its president. Article 67 makes clear, as a general limit to interparliamentary control, that it ‘shall not refer directly or indirectly to concrete actions taken in relation to specific operational cases’. The parliamentary framework of this cooperation has not yet been defined; the parliamentary côté of the Finnish Presidency has been mandated to prepare a common understanding on the interparliamentary committee meeting for the evaluation of Eurojust, regarding aspects not regulated in reg 2018/1727, which will be discussed by the Conference of the Speakers of European Union Parliaments this spring in Helsinki.

Based on the aforementioned regulations and on the JPSG rules of procedure, the following tables compare the intensity of parliamentary oversight on Europol and Eurojust, respectively.

Table 2 refers to the general powers (legislative and budgetary) and oversight related to the governance of the two bodies:

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Table 2.

General attributes of the parliamentary oversight.

	Europol	Eurojust
Legislative power	Yes-EP co-legislator	Yes-EP co-legislator
Budgetary and discharge power	Yes-EP budgetary authority	Yes-EP budgetary authority
Appointment of the Director	Candidate may be invited to EP (Art 54, para 2)	No involvement
Management board	One JPSG representative can be invited, as a non-voting observer (Art 14, para 4)	No involvement

Firstly, as EU agencies, Europol and Eurojust are subject to the ordinary legislative procedure. ¹⁵ It implies that the EP and the Council determine the ‘structure, operation, field of action and tasks of the two agencies’, including the arrangements for interparliamentary oversight. Moreover, both agencies have an autonomous budget (with revenue coming essentially from a contribution from the general budget of the Union), but the general EU budget procedure is applicable. The budget plans are drawn up by the agencies and transmitted to the European Parliament and the Council, which decide upon appropriations (Art 58 Europol regulation and Art 61 Eurojust regulation).

The EP and national parliaments are not involved in the appointment of Eurojust’s Director and in the activity of the Management Board. The parliamentary oversight function appears to be limited also with regards the appointment of Europol’s Director, especially if we compare it to other decentralised agencies. ¹⁶ As for the participation as observer of one JPSG representative in the Management Board meeting, Europol formally agreed to invite the JPSG representative to attend two board meetings per year. It clarified that their attendance will concern items for which the JPSG’s opinion is deemed relevant to the board discussions (such as Europol’s programming document or budgetary aspects related to the fulfilment of Europol’s activities). ¹⁷

Table 3 summarises aspects of parliament oversight on the activity (ex ante and ex post control) and access to information.

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Table 3.

Oversight on the activity and access to information.

	Europol	Eurojust
Programming documents (ex ante control)	Transmission of programming documents to JPSG. JPSG has to be consulted on the Multiannual programming (Art 51, para 2, lett c) and Art 12, para 1)	Transmission of programming documents to EP and NPs (Art 67, para 4)
Report on activities (ex post control)	Transmission of the consolidated annual activity report to the JPSG (Art 51, para 3).	Annual Report transmitted to EP and NPs (Art 67, para 1) and presented during the annual interparliamentary meeting (Art 67, para 3).
Access to classified information	EP (Art 52, para 2)	No provision

The table shows a stronger ex ante parliamentary control on Europol, in particular through the consultation on the draft multiannual programming (Art 12). This document sets out the overall strategic programming, including the objectives, expected results and performance indicators, as well as the resource planning, including the multiannual budget and staff, and the strategy for relations with third countries and international organisations. Conversely, at level of ex post control, Europol and Eurojust oversight is comparable, and it is implemented through the transmission or the presentation, for information purposes, of activity reports.

The access to classified information held by Europol is expressly ensured for the European Parliament (Art 52, para 2) and not for the JPSG. This asymmetry triggered a negative reaction from national parliaments during the discussion on the Commission’s proposal. ¹⁸

Table 4 focuses on the tools of interparliamentary control:

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Table 4.

Tools of the interparliamentary control.

	Europol	Eurojust
Meetings	JPSG-twice per year (plus extraordinary meetings) (Rules of procedure)	Interparliamentary meeting-once per year (Art 67, para 3)
Right to ask questions	EP and NPs Oral and written questions (Rules of procedure)	Upon his or her election, the newly elected President of Eurojust shall make a statement before the competent committee or committees of the European Parliament and answer questions put by its members (Art 67, para 2)
Power to summon top EU Officials	The Director of the Management Board, the Executive Director and the European Data Protection Supervisor (EDPS) shall appear before the JPSG at its request (Art 51, para 2)	The President of Eurojust shall appear once a year in the framework of the interparliamentary committee meeting (Art 67, para 3)
Outcome of the meetings	Summary conclusions submitted to the EP and NPs and forwarded to the Council, the Commission and Europol (Art 51, para 5).	No provision

The power granted to JPSG members to ask oral and written questions directly to Europol ¹⁹ was inserted in the Rules of Procedure, following the approval of an amendment submitted by the German Bundestag and broadly debated during the first two JPSG meetings. Concerning the participation of EU top officials to meetings, Europol’s regulation states that the EDPS shall appear before the JPSG at its request, and at least once a year, to discuss general matters relating to the protection of fundamental rights and freedoms of natural persons, and in particular the protection of personal data (Art 51, para 2, lett b). This has to be read in the light of the JPSG’s specific function to monitor the impact of Europol’s activities on the fundamental rights and freedoms of natural persons. To reinforce this dimension, the JPSG has regularly invited to its meetings the Chair of the Europol Cooperation Board, composed of a representative from the national supervisory authority of each Member State and the EDPS.

As for the outcome of the meetings, the Europol regulation provides for the possibility that the JPSG adopts conclusions on the political monitoring of Europol’s activities, which are submitted to the EP and forwarded to the Council, the Commission and Europol. This provision is rather innovative in the field of cooperation among parliaments, taking into consideration that the interparliamentary meetings generally do not produce any conclusions. As for Eurojust, we can observe that, in taking into consideration Art 67’s reference to the traditional format of ‘interparliamentary meetings’, foreseeably, its implementation at the parliamentary level will not mention the possible outcome of the meetings.

The asymmetry between Europol and Eurojust

An analysis of the legal framework shows a clear asymmetry in the parliamentary control over Europol and Eurojust.

In order to try to explain this misalignment, we should bear in mind the different nature and logic of the two agencies. ²⁰ If Eurojust is a judicial body, composed of prosecutors and judges, mostly independent from the executive, ²¹ Europol is an expression of police authorities and other law enforcement services. The explicit limit on parliamentary control set out by Art 67 of Eurojust regulation (‘concrete actions taken in relation to specific operational cases’) seems to be aimed at preserving Eurojust’s judicial independence.

However, if we analyse the regulation 2018/1727 and, in particular, provisions related to governance, ²² several features of Eurojust’s activities seem not to represent its judicial nature and are common to other decentralised agencies. In this respect, the extremely weak model of parliamentary control on Eurojust seems to diverge from the current inter-institutional agreements on decentralised agencies. ²³ We can just mention the non-involvement of the European Parliament in the appointment of the director, the transmission (rather than consultation) of programming documents and the absence of a provision on the EP’s participation as observer in the new executive board. ²⁴ As recently stigmatised by the EP's Committee on Civil liberties, Justice and Home Affairs (LIBE) Committee, ²⁵ the Common Approach has not always been followed in the adoption or amendment of the founding acts of agencies.

Nevertheless, on a practical note, we notice much stronger interest from parliaments in the control over Europol than over Eurojust since the launch of the debate before Lisbon. One explanation is linked to the different impact on fundamental rights of the two agencies’ activities, which as noted, ‘have always been driven by different logics and concerns’. ²⁶ Europol’s activities in fact seem directed to action and are ‘marked by efficiency, pro-activeness and pragmatism’, while Eurojust ‘has not been designed for operational action’, with its focus ‘increasing [the] level of judicial networking’. ²⁷ It is sufficient to mention the possibility for Europol to process information, including personal data, ‘for the purpose of operational analyses’ (Art 18, reg 2016/794). This provision allows Europol to conduct data-mining operations, which can present risks for data protection. ²⁸ Furthermore, it can be observed that the information processed by Eurojust consists of judicial information, from national judicial authorities, ‘collected in a framework foreseeing procedural guarantees for suspects and accused persons, and thus less likely to infringe their fundamental rights’. ²⁹

The first meetings

So far, the JPSG has held five meetings, three at the EP (second semester 2017, 2018 and 2019) and two, respectively, in Sofia (first semester 2018) and in Bucharest (first semester 2019). The first two meetings were essentially dedicated to procedural issues.

As stated in Europol regulation (Art 51, para 2), Europol’s Executive Director, the President of the Management Board and representatives of the EDSP took part in the meetings. The multiannual programme, data protection, the cooperation between Europol and other actors (EPPO, Europol, Eurojust, Frontex), the agreement with third countries and the impact of Brexit on the agency were central topics in the debate.

Europol’s representatives have also repeatedly expressed their concerns for the level of resources allocated to the agency under the new Multiannual Financial Framework, in the light of the reinforced role of the agency following reg 2016/794. ³⁰ Although budgetary powers are in the hands of the European Parliament, national parliaments, strongly involved and bilaterally approached by Europol, shared Europol’s concerns and promoted political initiatives to increase Europol’s resources. ³¹

Concerning the outcome of the meetings, summary conclusions were produced only in the constitutive meeting in the European Parliament and addressed exclusively procedural issues.

Conversely, since the beginning of JPSG’s activity, national parliaments and the European Parliament have asked written questions to Europol. ³²

Table 5 shows which parliaments have used this parliamentary tool and on which subject:

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Table 5.

Written questions submitted by JPSG's Members.

	German Bundestag	Dutch Staten-Generaal	French Assemblée Nationale	EP 33
Human rights and data protection	3 (2 referred to agreements with third countries)	2 (1 referred to agreements with third countries)
Multiannual programme		4 (2 generally approaching the Europol operational role)
Cooperation with other actors	1 (Eurojust)		1 (Eurojust, EASO, Frontex, CSDP missions)
Specific investigations				1 (role of Europol in the case of two recent murders in Slovakia)
Other			1 (role of Europol in field of the contrast to illegal migration)

CSDP: Common Security and Defence Policy; EASO: European Asylum Support Office.

General constraints to the parliamentary oversight on Europol

Preliminarily, we have to note that the amplitude of parliamentary oversight is rather controversial, in particular as regards the extension of parliamentary control over Europol’s operational activities. In fact, as distinct from the Eurojust Regulation, the Europol Regulation does not contain an express exclusion from parliamentary oversight of the ‘concrete actions taken in relation to specific operational cases’. However, as noted by scholars, the notion of ‘politically monitoring’ is already sufficient to exclude Europol’s day-to-day work and its operational dimension. 34 Conversely, according to others, scrutiny over the programming documents does not a priori exclude operational activities and, in particular, Europol activity in the EU external context. ³⁵ As shown in the last table, this interpretation appears to be adopted by the Dutch Parliament, which, through questions on the multiannual programme, addressed also Europol’s operational work (for instance, in the field of cooperation between Europol and the private sector). Furthermore, the EP’s written question tackled a specific operational case (the assassination of an investigative journalist Ján Kuciak and his fianceé Martina Kušnirová in Slovakia), asking Europol to ‘describe and assess its role in this investigation and comment on cooperation with Slovak authorities’.

Another limit could be connected to the rules concerning access to classified information. The first criticality is related to the already mentioned asymmetry between the EP and national parliaments in accessing classified information. The second one, more general, can be referred to EU’s rules on classified information. As noted, Europol mainly relies on information provided by national authorities, over which Member States have absolute control, through the ‘principle of originator control’. The application of this general principle implies that the EP cannot have access to classified information, if the originator denies its consent for disclosure, in spite of the fact that the information is available for the agency or it has an impact on fundamental rights. ³⁶ It has been observed that ‘the principle of originator control is both necessary and antithetical: necessary for ensuring information exchange in the intelligence community; antithetical to parliamentary access to classified information’. ³⁷

Limits connected to JPSG’s structure and organisation

Specific constraints to the effectiveness of the JPSG’s control functions can be found in its structure and operation.

Preliminarily, the Group has still not resolved several procedural issues. In a meeting held in Brussels last September for the revision of the JPSG’s Rules of Procedure, the delegations were able to reach an agreement only on the Danish question (the possibility for the Danish Parliament to participate in the Group, in spite of the fact that Denmark does not participate in Europol, but signed an Agreement on Operational and Strategic Cooperation). The JPSG adopted a specific Protocol, which upgrades the status of Danish Folketinget from observer to member with limited rights. However, highly controversial questions are still pending and, foreseeably, they will continue to attract attention of the Group in future meetings. Among the most debated issues, we can mention the procedure for appointing the JPSG Member participating in the Management Board meetings, the duration of his/her mandate and the modalities of reporting to the Group.

As for the structural deficiencies of the Group, its large size can be seen as an obstacle to its effectivness. ³⁸ Excluding Denmark, it is composed of 124 members (4 members per national parliament and 16 Members of the EP). Although the Rules of Procedure provide for the possibility of setting-up subgroups (as a result of the German Bundestag’s amendment and as recommended by experts ³⁹ ), the provision has not yet been implemented. Another limit is related to the rules concerning JPSG membership, which are not sufficient to ensure expertise and long-term continuity. Reflecting a general principle of interparliamentary cooperation, by which each parliament decides autonomously the composition of its delegation to interparliamentary fora, the Rules of Procedure can only encourage parliaments to take into account competence and continuity in the appointment of their delegation.

Finally, the decision-making mechanism based on ‘consensus’ makes the adoption of substantial summary conclusions complicated ⁴⁰ and, in the last meeting, prevented substantial revisions to the Rules of Procedure.