merrion street

A Cathaoirleach,

I am pleased to present this Bill to the House which will enable Ireland to

implement an EU Council Decision establishing the European Police Office or

Europol. While Europol has existed since 1995, it did so on the basis of

an EU Convention. That Convention has been subject to a number of

amendments introduced through subsequent Protocols. However, such legal

instruments are subject to lengthy ratification procedures by Member States

and therefore it was agreed to replace those instruments with a Council

Decision which will ease any future amendments. In 2008, the Houses of the

Oireachtas approved the adoption by the State of the Council Decision which

ultimately entered into force in 2010.

The Convention and Protocols, to which I have referred, were given force of

law in the State by way of the Europol Act 1997 as amended. Section 2(1)

of that Act states that the Convention and the Protocols “shall have the

force of law in the State and judicial notice shall be taken of them.”.

Such wording, which is usual for the implementation of international

agreements such as Conventions, effectively precludes the need to legislate

for each and every article of the instrument. In effect, the 1997 Act as

amended is relatively minimalist.

However, a Council Decision must be implemented in a manner whereby each

and every aspect of the instrument which has domestic effect must be

provided for in legislation. For that reason, this Bill is significantly

more detailed than the existing Europol Act.

Nonetheless, this Act will, in effect, maintain the status quo. Although

the Council Decision does introduce a small number of changes to Europol,

to which I will shortly refer, it replicates, to a very large extent, the

provisions of the Convention and the Protocols thereto.

Turning to Europol itself. I would like to briefly mention one change

which the Council Decision introduced. Under the Convention, Europol had

the status of an intergovernmental organisation funded by contributions

from Member States. However, establishing Europol under a Council Decision

gives it the status of an agency of the European Union. As an agency in

the area of police and judicial cooperation in criminal matters, Europol

joins CEPOL – the European Police College, and Eurojust – the EU’s judicial

cooperation unit. Establishing Europol as an entity of the EU ensures that

it is funded from the general budget of the European Union and also

enhances the role of the European Parliament in the control of Europol.

The objective of Europol, under the Council Decision, is to improve the

effectiveness and co-operation of the law enforcement authorities of Member

States in preventing and combating organised crime, terrorism and other

forms of serious crime affecting two or more Member States. This is

another difference between the Council Decision and the Convention and

probably the most significant change from an operational point of view.

The Council Decision extends the mandate of Europol from that under the

Convention. Organised crime was originally the sole focus of Europol’s

activities. The Council Decision removes the requirement that an organised

criminal structure must be involved before Europol can act. It will be

sufficient for the crime concerned to involve organised crime, terrorism or

another serious offence affecting two or more Member States. The Annex to

the Council Decision lists those other serious offences for which Europol

is competent and includes the main transnational crimes such as drug

trafficking, terrorism, money laundering, human trafficking, counterfeiting

or arms smuggling. Also included are other more serious crimes such as

murder, organised robbery and kidnapping. Europol’s role in supporting and

strengthening action by the Member States in combating such crime is

clearly set out in Article 3 of the Council Decision.

It is the reality that no member state, including Ireland, despite our

island status, can avoid the impact of international crime. The very

nature of this crime requires the cooperation of several states to ensure

an effective response. Europol self-describes its role as that of making

Europe safer and it does so by providing the necessary coordination of and

support for national law enforcement authorities.

The support and assistance which Europol can offer to any investigation can

be broadly categorised as information management and, to a lesser degree,

semi-operational tasks. The latter tasks include the option for Europol to

participate in joint investigation teams. Primarily, however, Europol

coordinates and supports Europe-wide operations investigating serious

criminal activity. All arrests and policing functions are carried out by

the competent law enforcement authority in the Member State in question.

Europol assists Member States in combating crime on a daily basis and, in

the case of Ireland, this assistance is achieved through the secure

intelligence exchange between the Irish Europol National Unit based in

Garda Headquarters and the Irish Liaison Bureau located in Europol HQ in

The Hague. Europol has established a number of crime priority areas which

are assigned a team of analysts and which Ireland contributes to on a daily

basis. The information gathered has assisted in identifying links between

international organised crime groups operating in Ireland and in other

jurisdictions.

In terms of operations, in 2011 Ireland assisted Europol in the provision

of intelligence and information about a mobile organised crime gang which

was involved in the organised thefts of Rhino Horn throughout continental

Europe. That work continues with ongoing intelligence exchange between

Ireland and other member states in relation to this gang who are also

involved in the commission of crimes including burglaries, aggravated

robberies, fraud, money laundering and drug trafficking.

Europol has also assisted Ireland in the area of illegal immigration.

Ireland has taken part in operational meetings involving the exchange of

information and intelligence concerning an organised crime gang operating

in France that assists illegal immigration into Ireland. This operation

which is continuing has already resulted in a number of arrests in France.

More recently, An Garda Síochána took part in a joint operation with the

PSNI targeting prostitution on the island of Ireland. Europol again

assisted this operation through the deployment of analysts who worked

alongside the Gardaí and PSNI personnel.

Europol continues to be of major assistance in combating and preventing

crime. It is an essential means of exchanging and analysing information

and intelligence and ensuring that European law enforcement agencies are

alerted to new threats.

Turning now to the Bill, I would like to highlight some of its main

provisions.

Section 2 confirms that the competent authorities for the purpose of the

Act and the Council Decision are the Commissioner of the Garda Síochána or,

in relation to a revenue offence, the Revenue Commissioners. “Competent

authorities” are defined in article 3 of the Council Decision as “all

public bodies existing in the Member States which are responsible under

national law for preventing and combating criminal offences.”.

Sections 4 and 5 provide for the Europol National Unit including the

functions of that Unit. Those functions are set out in article 8 of the

Council Decision and include liaising with Europol and the competent

authorities of other member states, responding to requests for information

and intelligence and performing such other tasks as are required by the

Council Decision. The provision allows the national unit to refuse a

request for information where to provide such information would prejudice

the security or other essential interests of the State, prejudice a

criminal investigation or criminal proceedings in the State, or would

jeopardise the safety of a person or persons. Section 5 also clarifies

that the national unit may access the Europol Information System as

permitted under the Council Decision.

Section 6 provides for the role and functions of liaison officers. This

provision replicates the existing section 4 of the Europol Act 1997. Under

this provision, a liaison officer may be sent from the national unit to

Europol to serve in the Irish Liaison Bureau. A liaison officer may not

necessarily be a member of the Garda Síochána and could, for instance, be

an officer of the Revenue Commissioners. Currently, Ireland has two

liaison officers based in Europol – one from An Garda Síochána and one who

is an officer of the Revenue Commissioners. These officers provide

coordination between Europol and the national unit in the transmission of

information and otherwise cooperate with Europol in accordance with the

Council Decision.

Section 7 gives effect to Article 7 of the Council Decision which permits

Europol to request member states to initiate criminal investigations. A

request shall be made to the national unit who will transmit the request to

the competent authority of the State, that is An Garda Síochána and/or the

Revenue Commissioners. The competent authority will consider and decide

whether to comply with the request. The national unit will notify Europol

of the decision as to whether or not to conduct the investigation. Where

it is decided to refuse the request, the national unit will inform Europol

of the reasons for refusing, unless to do so would harm essential national

security interests, prejudice an ongoing criminal investigation or

proceedings or would jeopardise the safety of any person or persons. This

provision which was initially introduced into the Convention in 2002

responds to previous difficulties with regard to Member States acting upon

information provided by Europol. However, it must be emphasised that An

Garda Síochána, the Revenue Commissioners and the law enforcement

authorities in other Member States have absolute discretion in relation to

the prioritisation and deployment of resources.

Section 8 provides for the transmission of data to the Europol Information

System. This System is used to store personal information about people who

are suspected or convicted of having committed a crime for which Europol

has competence or where there are reasonable grounds to believe that they

will commit such an offence. Subsections (2) and (3) set out the types of

data which may be input and which are also set out in the Council Decision.

As can be expected, this data includes information concerning a person’s

identity including names, date and place of birth, address and driving

licence or passport information. Also included is the possibility of

providing DNA data which owing to the lack of the appropriate technologies

was not in the previous Europol instruments. Now, because of modern

technologies, the use and sharing of DNA information is a key element of

criminal justice systems across Europe. However, it should be pointed out

that neither the Council Decision nor the Bill require the obtaining of

such DNA data and it will only be provided where it is available.

Section 9 concerns the transmission of data to Europol for purposes other

than under section 8, that is for input in the Europol Information System.

For instance, Europol may include information in a system known as analysis

work files. This system offers broader information than the Europol

Information System although with much more limited access. These files

allow Europol to provide operational analysis with the aim of assisting

criminal investigations. Information may also be used by Europol and

transmitted to third States or other entities. However, the prior consent

of the national unit is required before any onward transmission of the data

by another party may take place.

Sections 10 to 14 concern the use of, access to and protection of personal

data to which the Bill applies.

On a general point, it must be noted that data under the Act is subject to

the provisions and protections of the Data Protection Acts. There is a

very strong data protection regime in place in Europol. It is generally

highly regarded, most recently in a 2012 Report following an evaluation of

the implementation of the Council Decision and of Europol’s activities.

While not making any changes to Europol’s systems of data protection, the

Council Decision does establish a Data Protection Officer at Europol.

Although such an officer has always been a part of Europol, the Council

Decision makes it a formal and independent role. The functions of the Data

Protection Officer are set out in article 28 of the Council Decision and

include ensuring compliance with the provisions of the Council Decision

concerning the processing of personal data. Where there are concerns

regarding compliance, the Data Protection Officer may raise these directly

with the Director of Europol.

In addition to these safeguards, section 10 addresses the modification,

correction and deletion of data, giving effect in the main to articles 12

and 13 of the Council Decision. These functions are the responsibility of

the inputting party. Data must be deleted, without delay, where it relates

to a case where proceedings are definitively dropped or a person is

acquitted. This section also creates an obligation on the national unit or

liaison officer, as the case may be, to notify an inputting party of their

belief that data input by that party is incorrect or should be

supplemented.

Section 11 confirms that the national unit or liaison officers may input,

access and retrieve data from the Europol Information System for the

purpose of preventing and combating those crimes which fall within the

competence of Europol. There is also provision for limited access to the

System by the competent authorities who may directly query it although any

data that is located can only be obtained via the national unit.

Section 12 concerns the use of data in the State and confirms that data

obtained from any of Europol’s processing files shall only be used to

prevent and combat criminal offences and other forms of serious crime. The

State is also obliged to abide by any restrictions placed on the use of

data although there are some limited circumstances in which restrictions

may be waived. Subsection (3) of section 12 permits the waiving of

restrictions in circumstances where a court, legislative body or other body

is acting in a supervisory role over the competent authorities. However,

such waiving of restrictions requires the prior consultation of the

communicating state or body. It should also be noted that by virtue of the

definition of ‘criminal offence’ in section 1 of the Bill, the use of data

is limited to offences for which Europol is competent.

Section 13 provides for access by individuals to personal data. This

provision allows persons to request information as to whether data relating

to him or her has been processed by Europol and to have such information

communicated to him or her. Grounds for objecting to a disclosure of data

are set out under subsection (5) which permits the State to object where it

considers that providing the information would likely prejudice the

sovereignty, security or other essential interests of the State, prejudice

a criminal investigation or criminal proceeding in the State or would

prejudice the rights and freedoms of any person. This section replicates,

in part, section 6 of the Europol Act 1997.

Section 14 designates the Data Protection Commissioner as the national

supervisory body for the purpose of the Act and the Council Decision. This

provision gives effect to Article 33 of the Council Decision and replicates

section 7 of the Europol Act 1997.

The national supervisory body is responsible for monitoring the management

and processing of personal data by the State in the context of its

relationship with Europol.

This section also confirms the authority of the Data Protection

Commissioner to access data provided to the Europol Information System and

the requirement on the Data Protection Commissioner to inform the Joint

Supervisory Body of any action taken with respect to the Europol

Information System. The ‘Joint Supervisory Body’ is an independent body

with the task of ensuring compliance by Europol with data protection

principles. The Body is made up of representatives of national data

protection authorities, including the Irish Data Protection Commissioner.

It should be further noted that, by virtue of section 15, the Official

Secrets Act 1963 applies to facts or information which come to the

knowledge of any Director, member, employee or other person connected with

Europol. This provision replicates section 9 of the Europol Act 1997.

Section 17 confirms the validity of acts done in accordance with the

Europol Act 1997 or the Council Decision, prior to the passing of this

Bill. The Council Decision establishing Europol applies from 1 January

2010. As has been mentioned, it repealed and replaced the Europol

Convention and its Protocols. However, existing Irish law gave force of

law to the Convention and its Protocols and it is arguable that, as these

instruments have now been repealed, the status of the Europol national unit

and its powers as set out in the existing legislation is unclear.

Following legal advice, this transitional provision seeks to put beyond

doubt the status of the national unit by providing that the acts done by

the national unit and liaison officers during the intervening period are

valid. The Attorney General has indicated that “there is no difficulty in

providing retrospective validation of anything done by the existing

national unit.”

The remaining provisions are of a standard or technical nature.

Before concluding, I would like to draw the attention of the House to the

future of Europol. Europol has been given responsibility for the

establishment of the European Cybercrime Centre which will place it at the

forefront in the continuing fight against high tech organised crime.

Ireland, through An Garda Síochána Computer Crime Investigation Unit and

the staff at the Liaison Bureau in The Hague will continue to offer advice

and expertise to assist the Cybercrime Centre when it becomes operational.

In 2013, Europol will publish the Serious Organised Crime Threat Assessment

or SOCTA. On the basis of this document, the Council of the European Union

will determine its priorities and recommendations for the fight against

organised crime in Europe.

Also, in 2013, Ireland will take up the Chairmanship of the Europol

Management Board which is Europol’s governing board. This Board gives

strategic guidance and oversees the implementation of Europol’s tasks.

Each year the Management Board adopts Europol’s final budget, the work

programme of future activities and a general report on activities carried

out during the previous year. These will be submitted to the Council for

endorsement and to the European Parliament for information.

I would also like to comment on the future regulation of Europol. Article

88 of the Treaty on the Functioning of the European Union provides for a

new legal regime for Europol stipulating that Europol shall be governed by

a regulation or regulations. While the main policy objective of the new

Regulation will be to align Europol’s legal base with that Treaty, it will,

undoubtedly, also seek to address any recommendations arising from the

recent evaluation of Europol’s activities.

The implementation of the Council Decision is an important step in ensuring

that Europol can adapt in a flexible manner without the need for

complicated ratification processes by member states. The extension of its

mandate reflects the very significant contribution which Europol has made

to combating serious and organised crime across borders. Since its

establishment in 1995, Europol has evolved to become an essential tool for

national law enforcement agencies in their efforts to combat this form of

crime. Such crime is increasingly cross border and without the overall

strategic analysis of an agency such as Europol, combating that crime would

be a more difficult task.

I would like to thank the members of this House for their attention and I

look forward to the discussions on the Bill. I commend this Bill to the

House.