April 20, 2018
By Charikleia Vlachou
- An institutional innovation in its conception
Associating national parliaments to the democratic accountability of European agencies is not easy to conceptualize: the relationship between the two seems to be a primarily indirect one based on the control of national executives for the actions of national representatives in the Management Boards of European agencies. However, article 88(2) TFEU constructs a further direct link between national parliaments and Europol by foreseeing the “scrutiny of Europol’s activities by the European Parliament, together with national Parliaments”. This provision served as the basis for the establishment by the Europol regulation of a new interparliamentary conference, entitled the Joint Parliamentary Scrutiny Group (JPSG).
The mission of the JPSG is striking in its originality: national parliaments participate in the direct and structured political scrutiny of an EU agency’s activities alongside the expert LIBE committee of the European Parliament. This form of scrutiny has the potential of filling the gap in the accountability of a European agency that lies “in between” the EU and national sphere, since Europol coordinates the actions of national police services. Although much will depend from actual practice, preliminary conclusions on the potential of this innovative interparliamentary conference can be drawn from its recently adopted rules of procedure (RoP).
- An accountability forum whose instruments are progressively refined
While it remains to be seen whether the particularly cumbersome composition of the JPSG – that could amount to a maximum of 128 members – will affect the exercise of its political scrutiny mission in practice, the JPSG’s RoP are set to refine the instruments foreseen in the Europol Regulation. Firstly, since access to information is crucial for the exercise of its mission, the JPSG has a right to information not only through the transmission of a – rather unproblematic – series of documents but also through the possibility to request “other relevant documents necessary for the fulfilment of its tasks relating to the political monitoring of Europol’s activities”. According to the RoP, these documents will be addressed to the European Parliament and to national parliaments that will themselves forward them to the appointed JPSG members. This seems to exclude the possibility of “cross-overs”, namely of national parliaments obtaining documents through the European Parliament, that was wished for by several national parliaments.
Furthermore, the JPSG can proceed, at its own request, to the audition of the Chairperson of the Management Board and of the Executive Director of Europol or of their Deputies as well as of the European Data Protection Supervisor. Following pressure exercised especially by the German Bundestag, the RoP include a – rather minimalistic – provision on the right to submit both oral and written questions to Europol on issues related to the latter’s mandate. The use of this instrument will be further outlined in guidelines drafted in the near future.
The RoP finally also shed some light on the participation of a representative of the JPSG with no voting rights in the meetings of Europol’s Management Board. They indeed clarify that the JPSG’s representative will be appointed from the full members of the JPSG and will report back to it on his/her main findings in writing after each meeting of the Management Board. While these initial precisions are welcome, the potential of such a participation seems to be compromised ab initio given the fact that it will take place upon invitation by the Management Board.
The outcome of the political scrutiny exercised on Europol’s activities by the JPSG will feed into summary conclusions which will be submitted, first of all, from the JPSG to the European Parliament and to national parliaments and, subsequently, from the European Parliament to the Council, the Commission and to Europol for information. In this respect, the RoP clearly state the right of national parliaments to propose amendments, including annotations, to the initial proposal of summary conclusions that is drafted by a Presidential Troika, composed of the heads of delegations of the current, preceding and following Presidency Parliaments and of the European Parliament. The RoP remain, however, rather ambiguous on the actual adoption of the summary conclusions, stating that decisions of the JPSG will be adopted “in principle” by consensus. Despite not being legally binding, the JPSG’s summary conclusions seem to go further than a mere means of exercising political pressure through “naming and shaming”: they could in reality give more “teeth” to existing accountability mechanisms on a national and EU level. In that sense, the summary conclusions can, in particular, enhance the access of national parliaments to information on Europol’s activities and, thus, reinforce the above-mentioned indirect control exercised on national executives. They will, additionally, further facilitate the political and budgetary control already exercised by the European Parliament and could even contribute to informing the views of the institutions in the perspective of a future revision of Europol Regulation.
- A blueprint for the accountability of JHA agencies?
The establishment of the JPSG as an interparliamentary conference endowed with the innovative mission of politically scrutinizing Europol’s activity begs the question of its role as a model for enhancing the democratic accountability of other European agencies. This is especially the case in the area of Justice and Home Affairs (JHA) where, first of all, national parliaments already enjoy a privileged role under the Treaty of Lisbon and, secondly, EU agencies’ activities have a major impact on fundamental rights. It is, however, interesting to note that such a scenario seems to be rather unrealistic, at least in the near future: in the absence of a full-blown functionally specific interparliamentary conference in this field, accountability obligations before national parliaments -such as reporting obligations and hearings- have indeed been recently introduced in the founding regulation of the EPPO and are currently being negotiated with regard to Eurojust. Such obligations are, however, unrelated to the JPSG and set before each national parliament individually. Their consequences will at best be indirect or “soft” due to the effect on the European agencies’ reputation. Interestingly – and potentially due to drafting imperfections – even the Europol regulation itself refers to reporting obligations to individual national parliaments, as is for example the case for Europol’s annual report on high-priority forms of crime, without clarifying whether these obligations could be satisfied through the JPSG.
While certainly facilitating transparency and access to information, both the JPSG and the recently established “uncoordinated” accountability arrangements before national parliaments need to be put to the test: their effectiveness will be conditional upon variables such as the interest indeed shown by national parliaments with regard to the activities of European agencies, their level of expertise and the resources and personnel dedicated to the exercise of their role.
The anarchic proliferation of accountability arrangements before national parliaments is reminiscent of the anarchic proliferation of European agencies themselves in the last decades. While it will certainly lead to a further Europeanization of national parliaments, the risks of accountability overload for the European agencies concerned and of creating a cluttered institutional framework are not negligible. A rationalization of the role of national parliaments vis à vis the JHA agencies in the more or less distant future – possibly organized around the JPSG – will largely depend on the dynamics developed between the European Parliament and national parliaments and the success of these mechanisms in practice, the interinstitutional battles that have characterized the agencification process as a whole, and, more generally, the bras de fer between the competing views of “supranational” or “intergovernmental” integration as to the future of the European Union.
Charikleia Vlachou is an Assistant Professor in Public Law at the Université d’Orléans (France).
Author : TARN