Parlamento Europeu e Parlamentos nacionais devem controlar Agências Comunitárias

Carlos Coelho, 06.10.2011

The European Union of today is not anymore what it used to be. We are not only the Europe of money, goods and services. We are building the Europe of citizens, creating a closer union among the peoples of Europe, establishing an Area of Freedom, Security and Justice.

When we faced for the first time the building up of the Area of Freedom, Security and Justice (after the Tampere Summit) we were mainly looking for more and better cooperation between Member States. Today, after the Lisbon Treaty we are developing European Policies, common standards, new laws and new Instruments. The European Agencies are a typical example of this evolution and their mandate and actions could be comparable to what is performed by a federal agency, but in their case without being subject to a federal democratic control.

The entry into force of the Lisbon Treaty was a significant step, in order to help develop closer links between the European Parliament and the national parliaments, leading to a clear improvement of the collaboration between these two parliamentary layers.

European Parliament's powers and the National Parliament's powers on the former 3rd pillar area and related matters of judicial, police and migration cooperation have been progressively increased, especially with the entry into force of the Lisbon Treaty that reinforced clearly the European Parliament's control powers and granted time for deliberation to national parliaments in respect of EU draft legislation.

However, in practical terms there is still a long way to go:

- The European Parliament should have the possibility to implicated more the national parliaments on the decision making process;

- The national parliaments should be more willing to make use of the new prerogatives and powers that were conferred to them by the Treaty of Lisbon;

- Solutions should be found to deal with situations created by the fact that the European Parliament has the right of consent in regard to the conclusion of international agreements; such for i.e. the PNR Agreement, but the national parliaments are even not informed;

On my opinion, the European Parliament has to take the initiative to ensure greater cooperation with national Parliaments, which should react accordingly, because that is the only way in order to take the necessary steps to reassert democratic controls and accountability.

EU Agencies

The legal mandates and competences of Agencies such as Europol, Eurojust and Frontex have been actively expanded over the past years, in many cases going beyond its original scope. It has also been granted to them some important operational tasks, which imply the possibility to intervene in the national arena of the EU Member States.

I am between the large majority of members of the European Parliament that have been supporting the increase of the mandate and operational capacities of those Agencies, in order to give them the necessary tools to perform their shared role in the implementation of the EU Internal Security Strategy, which identifies the five most urgent common threats: serious and organised crime, cybercrime, terrorism, border security and disaster management. But we cannot forget to establish, in parallel, an effective and strict monitoring of their actions.

That was the case of the recent approval on the reinforcement of the mandate of Frontex, just approved on the first plenary session of the EP in September, that seemed to be necessary in the context of establishing a more structured, comprehensive, rapid-response approach from the EU to the challenges and opportunities of migration, especially taking in account the recent developments in the Mediterranean.

As you all know, since the beginning of the year, there has been a massive displacement of people from several North African countries. These events have put the protection and reception systems of some of the EU Member States under increasing strain. In order to protect the Schengen area and to safeguard its stability urgent action was needed, requiring the mobilisation of all Member States at the EU level and the use of all operational and financial tools at EU disposal.

The strengthened of Schengen governance is essential in order to help to ensure that each Member State can control effectively its part of the EU's external borders, to reinforce mutual trust and to build trust in the effectiveness of the EU system of migration management.

The new evaluation mechanism it will be part of the answer to that, by trying to reinforce the free movement of persons and monitoring effectively any attempt to introduce illegal border controls at internal borders, reinforcing mutual trust and by ensuring an effective control of the external borders by each Member State, where the Agency Frontex will have an increasing role not only in terms of support to the reinforcement of the protection of external borders and to the fight against illegal immigration, but also in order to help the Member States facing some problems to solve their deficiencies, from an early stage.

Nevertheless, nobody can deny that this new mandate for Frontex also implies some potential risks, namely in terms of data privacy and it remains to be seen which monitoring system is put in place, as well as safeguards to ensure the full respect of the data protection principles.

Oversight of EU Agencies

Even if, with Treaty of Lisbon, the third pillar framework of Justice and Home Affairs cooperation has been abolished, we still have to fight against the ongoing tendency to maintain that former 3rd pillar spirit, revealed on the increasing role performed by Frontex on the context of the EU Internal Security Strategy, linking border controls with police law enforcement, including its cooperation and information sharing with Europol and Eurojust in the area of internal security and we cannot forget that internal security is a concept much wider than just policing, judicial cooperation and immigration, it also comprises matters related to the maintenance of law and public order and the civil-military capabilities.

On the other hand, they are frequently engaged in soft law and policy arrangements and tools, which used to be part of the second pillar, foreign affairs, that remained intergovernmental.

The Council, in its conclusions, has clearly given a further impetus for Inter-Agency cooperation and to link more closely the agencies' activities, for i.e. to connect Frontex to SIENA (Europol's Secure Information Exchange Network Application) and its involvement in Joint Investigations Teams. In practice, this cooperation mainly takes the form of operational cooperation and information exchange.

Even if the Lisbon Treaty clearly provides for parliamentary oversight and evaluation, in practice the evolution of EU security policies and European agencies operating in this area has been taking place, but it looks like that the Parliamentary intervention is mainly reduced to the establishment of legislative measures.

The problems of ensuring parliamentary control at any level, whether local, regional, national or European are extremely difficult if it is limited by the exemptions to rules on transparency and access to official documents, as well as by national practices on exceptions, notably regarding state security, secrecy and related issues.

The report presented by the Policy Department C "on the EU Internal Security Strategy, the EU Policy Cycle and the Role of (AFSJ) Agencies" clearly indicates that there is a severe lack of information and monitoring of the actions of these Agencies, especially those of an operational nature. For i.e. the Joint Operation HERMES, in which Europol is participating, is dominated by unclear ways of working and blurring of tasks and responsibilities, where is not entirely clear what Europol is doing and what value their presence adds to the operation. In the same way, that the nature and reach of Frontex actions is also not very clear, because no details were disclosed on where exactly the involved border guards and equipment operate, in which specific activities they engage, which detailed procedures have been followed in the reception of the immigrants, etc.

We are all aware that these policy areas of migration, borders and asylum still touch deep on the heart of national sovereignty of the EU Member States, which are still responsible for the management of their own external borders. Nevertheless, we cannot close our eyes to the EU legal and policy framework in these fields that has been emerging over the last years and it's time that not only the European Parliament, but also the national Parliaments realise that important changes took place and these EU Agencies are, in fact, now the most visible faces of the EU policies on external borders, immigration and asylum inside and outside Europe.

At this moment, the number of EU Agencies has already increased to 10. Should be enough for the Parliament to keep the actual budgetary control? Or should be envisaged new ways of control, perhaps through the annual program of activities of the agency? I heard yesterday several opinions stating that there is no need to increase Parliamentary control. I fully disagree!

It is essential to have a proper democratic scrutiny over the nature and impact of their activities, with special relevance for questions of accountability, responsibility and liability in cases of unlawful actions, including potential fundamental rights breaches and risks.

The inter-institutional game is not enough, we have to improve the possibilities for sharing information at other levels, for i.e. through the reinforcement of a relations network between the political parties at national level and at European level and at informal level, between rapporteurs working on the same files at the European Parliament and on the national Parliaments.

On my opinion, it will be useful if you could invite your national representatives in the different EU Agencies to come, regularly, to your Parliaments.

It took 50 years to accomplish the internal market. But we are only working for 12 years in order to create an Area of Freedom, Security and Justice. We are giving steps in the good direction, through the creation of the Charter of Fundamental Rights and its integration into the Treaties. But in the actual phase of transition, it would be a mistake, or even dangerous if we would build the Europe of security, without transparency and democratic accountability. It depends of all of us, through a fruitful cooperation, to make sure that this will not happen!