The European and national parliaments in the area of freedom, security and justice: does interparliamentary cooperation lead to joint oversight?

ABSTRACT

To what extent does the cooperation of national parliaments and the European Parliament strengthen the oversight of EU executive actors in the Area of Freedom, Security and Justice? The article provides an ideal-typical conceptualisation of individual and joint parliamentary oversight in the EU’s multi-level system. Legislative scrutiny is examined for the case of the General Data Protection Regulation and agency oversight is analysed for the case of Europol. In both cases, the article demonstrates that the interparliamentary cooperation has not led to a joint oversight. Legislative scrutiny was badly timed, characterised by diverging interests, and a high fluctuation of the participating parliamentarians. The Joint Parliamentary Scrutiny Group over Europol has turned out to become a primarily symbolic layer to the ‘individual oversight’ exercised by the European Parliament’s LIBE committee.

KEYWORDS:

• Area of freedom security and justice
• European Parliament
• Europol
• interparliamentary cooperation
• GDPR
• parliamentary oversight

Introduction

In the mid-1970s, EU member states started to cooperate on issues relating to immigration, asylum and counterterrorism. As long as the policy on justice and home affairs (JHA) was kept in the intergovernmental sphere, parliamentary institutions had no specific will to cooperate across the national and European level (Neunreither, 2005). Yet this context has changed. The European Parliament (EP) has gradually become a co-legislator in the Area of Freedom, Security and Justice (AFSJ) to the point that some authors refer to it as a ‘normal parliament’ (Ripoll Servent & Roederer-Rynning, 2018). The Lisbon Treaty has further increased the power of the EP and of its national counterparts, which have become more active in this policy area (Tacea, 2018). National parliaments (NPs) are supposed to control the respect of the principle of subsidiarity through the Early Warning Mechanism (EWM) and are involved in the oversight of home affairs agencies, notably Europol and Eurojust (Article 12 (c) TEU).

Therefore, parliamentarians have started to meet more regularly and exchange information. The multiplication of interparliamentary meetings even raises concerns about their efficiency (Lupo & Fasone, 2016). Yet, to what extent does the interparliamentary cooperation actually strengthen the parliamentary oversight of EU executive actors? The academic literature offers only partial answers to this question. On the one hand, scholars studying interparliamentary cooperation in specific EU policy fields focused on the foreign policy or economic governance (e.g. Fasone, 2014; Herranz-Surrallés, 2021), while the different AFSJ policies only received modest attention (see Cooper, 2018; Kreilinger, 2017). Second, more general studies on interparliamentary cooperation (Bengtson, 2007; Borońska-Hryniewiecka, 2021; Hefftler & Gattermann, 2015; Miklin, 2013) do not explain the specificities of the AFSJ such as the late and gradual empowerment of parliaments, the sensitivity of this area for national sovereignty or its longstanding intergovernmental mode of decision-making.

This article starts from the assumption that interparliamentary cooperation is likely to strengthen the oversight capacity of the European Parliament and national parliaments, in addition to more traditional objectives such as exchanging information and best practices (Cooper, 2015; Hefftler & Gattermann, 2015; Griglio & Lupo, 2018). It begins with a discussion of patterns of parliamentary oversight in the EU. ‘Individual’ and ‘joint oversight’ are conceptually differentiated. The concept is tested by comparing two forms of interparliamentary cooperation in the AFSJ: agency oversight and legislative scrutiny. The analysis builds upon a methodological triangulation including an analysis of primary and secondary sources as well as expert interviews. We conducted interviews with eight officials of Europol, the parliaments of member states and the European Parliament, who participated in one or several of the AFSJ interparliamentary fora. The interview questionnaire was used to test the procedural preconditions for effective oversight (see Table 2). In addition, the work builds upon participatory observation in the French Parliament, where parliamentary meetings of the Law and European Affairs (EAC) committees related to the General Data Protection Regulation (GDPR) (one of the article’s case studies) were observed and informal discussions were held with MPs and clerks between September 2017 and October 2018.

Conceptualising parliamentary oversight in the AFSJ

NPs and the EP perform potentially comparable legislative, oversight, and representative functions within the European political system, albeit in different places. They have developed (in)formal links to engage with common issues and exchange information necessary to oversee the actions of both national and European executives. Scholars have theorised these interactions either as a ‘multilevel parliamentary field’ (Crum & Fossum, 2009) or as ‘Euro-national parliamentary system’ (Lupo & Fasone, 2016). The two concepts differ. The first focuses on the representative function, while the second looks at the accountability function of the EU fragmented executive. However, they both conceptualise the relationship between legislatures as a multilevel one, structured along horizontal (between NPs) and vertical (between the EP and NPs) lines. It takes place in multiple arenas – national, European or both (Auel & Neuhold, 2017; Borońska-Hryniewiecka, 2021). Interparliamentary cooperation has been seen as a tool that can help the EP and NPs to strengthen their oversight capacity in their respective spheres of actions (Griglio & Lupo, 2018; Lupo & Fasone, 2016).

Inspired by these conceptualisations, we suggest that the oversight of AFSJ measures can take place in different arenas and formats (Table 1) – either in a primarily individual form (between a given national parliament vis-à-vis its government; or between the European Parliament vis-à-vis the EU institutions exercising the executive power) or in a joint form (between NPs that parallels the relationship between national executives, such as the Early Warning Mechanism) and between the European and the national parliaments (merging these institutions’ oversight tasks).

Table 1. Parliamentary oversight in the EU polity.

Individual oversight		Joint oversight
NPs vis-à-vis their respective governments	EP vis-à-vis the EU institutions exercising the executive power	Coordination among national parliaments	Coordination between the EP and NPs

Regarding individual oversight at the national level, national parliaments may use their participation rights to act both as watchdogs of their governments in Brussels (Tacea, 2020) and as autonomous players at the EU level (Auel & Christiansen, 2015). Regarding individual oversight of the European Parliament, the progressive communitarisation of JHA issues and the generalisation of the ordinary legislative procedure has empowered the EP vis-à-vis the Council (Ripoll Servent, 2018). The EP has become a co-legislator in the AFSJ and a powerful oversight institution – a standing that it may not be eager to share with NPs.

Indeed, the strengthening of NPs scrutiny rights and the empowerment of the EP may not automatically lead to joint oversight. Interparliamentary meetings can be primarily used as a source of information-sharing and add a symbolic layer to a predominantly national or a European oversight. A longstanding competition and rivalry may continue to characterise the EU and national legislatures (Costa & Latek, 2001; Miklin, 2013). However, the specificities of the AFSJ are also likely to trigger the interest of MPs and MEPs, potentially resulting in joint oversight. Not only has it undergone the highest degree of treaty change (towards full communitarisation), but it also deals with highly sensitive issues for the national sovereignty, such as criminal law, border management and counterterrorism.

The concept of ‘oversight’ begs the question whether the term stands for accountability, scrutiny, control – or even impact. We understand the term with regard to legislative scrutiny and agency oversight, two of the key objectives of interparliamentary cooperation in the AFSJ. We define the central procedural variables for achieving effective oversight (at national and/or EU level). It would go beyond the scope of this research to analyse also the ‘impact’ of interparliamentary cooperation in the AFSJ. As a matter of fact, impact can be achieved outside institutional venues such as a Joint Scrutiny Group for an agency. A full picture of impact would require to also take into account whether national parties or individual NPs mobilise befriended stakeholders to achieve impact at EU level. For instance, conservatives may use business platforms and social democrats trade unions for advancing their agenda inside the EP (for lobbying dynamics in this institution, see Dionigi, 2017). The elaboration of impact could be a focus of a follow-up research project, with this article looking more closely at patterns of oversight through institutional cooperation.

Building on the existing body of literature (Cooper, 2013; Eisele, 2017; Hefftler & Gattermann, 2015; Miklin, 2013; Mitsilegas, 2007), we infer four indicators that determine individual or joint oversight: (1) the scope and format of interparliamentary meetings; (2) the profile and agency of participating parliamentarians; (3) the timing of the meetings; and (4) their legal possibilities for outreach (see Table 2).

Table 2. Procedural preconditions for effective oversight.

Indicators	Legislative scrutiny		Agency oversight
	National or European oversight ‘plus’	Joint oversight	National or European oversight ‘plus’	Joint oversight
Scope and format	General focus and ad-hoc	Targeted focus and permanent	General and no scrutiny rights	Targeted focus and explicit scrutiny mandate
Profile and agency of parliamentarians	Generalist parliamentarians and fluctuation of membership	Specialised parliamentarians and continuity of membership	Generalist parliamentarians and fluctuation of membership	Specialised parliamentarians and stability of membership
Timing	Not aligned to legislative process	At key stages of the legislative process	Ad-hoc and irregular	Frequent and regular
Legal possibilities for outreach	No or very general non-binding contributions	Policy specific (non)binding conclusions	No or very general non-binding contributions	Policy specific (non)binding conclusions

The scope and format of the meetings: When interparliamentary formats have a clear-cut focus and an explicit scrutiny mandate, they may allow joint oversight. Some interparliamentary fora, such as COSAC, focus on general political topics and ‘some kind of introspection with regard to the role of national parliaments in the EC/EU system’ (Maurer & Wessels, 2001). In contrast, Interparliamentary Committee Meetings can get more specific and policy oriented. They may focus on proposals currently discussed or provide MPs with an overview of the priorities of the presidency. Hence, they attract more interest of parliamentarians (Miklin, 2013) and may trigger coordination of joint positions.

The profile and agency of participating MPs (their representativeness and their skills): The potential to network and exchange information – and to coordinate positions – depends crucially on the expertise of participating parliamentarians (Hefftler & Gattermann, 2015). Expertise and skills will be built up by continuous engagement. If participation in the meetings fluctuates, personal knowledge and institutional memory may be more difficult to acquire. Moreover, opposition parliamentarians tend to be more interested in interparliamentary meetings than members of the governing parties because they have limited access to information (Gattermann, 2014; Miklin, 2013). However, opposition parliamentarians tend to have fewer influence in their respective national parliaments.

The timing of interparliamentary meetings: According to Mitsilegas (2007), a continuous scrutiny throughout the legislative process is essential. The content of legislative proposals can change considerably during the negotiations. However, the eight weeks scrutiny period established for the Early Warning Mechanism is a short period. Moreover, institutionally, NPs may fail to jointly define a ‘European interest’ – as they are expected to defend the interests of their own nations and constituencies. With regard to agency oversight, the timing of interparliamentary meetings can also be of high relevance, for instance with regard to budgetary issues or to discuss an activity/operation of an agency that has been publicly criticised.

Legal possibilities for outreach: This aspect concerns the ways in which interparliamentary meetings communicate the results of their deliberations. Some MPs face legal constraints for engaging at EU level as they are not entitled to speak and take decisions on behalf of their parliaments (Costa & Latek, 2001; Maurer & Wessels, 2001). In this sense, cooperation at the European level may only take place in a non-binding manner (Bengtson, 2007).

In brief, interparliamentary cooperation can lead to forms of individual oversight ‘plus’ or a joint oversight. With regard to legislative scrutiny, a joint oversight will be reached if there is a clear thematic focus, the parliamentarians are well-informed and engaged, their meetings are aligned with the EU policy-cycle and their conclusions are specific with regard to legislative or policy aspects. The form of joint oversight with regard to agencies will be reached if the interparliamentary cooperation has a specific target, involves expert parliamentarians, which are nominated for the duration of their parliamentary mandate, and adopts binding conclusions.

Case selection – legislative scrutiny and agency oversight

We conduct a qualitative case study of two main forms of interparliamentary cooperation: legislative scrutiny and agency oversight. With regard to legislative scrutiny, we rely on a key proposal, i.e. the General Data Protection Regulation (GDPR) (COM/2012/11 final). The legal framework for a new EU data protection package was published by the European Commission on 27 January 2012 and adopted four year later (Regulation (EU) 2016/679). The aim of the Regulation was to establish common rules regarding the processing and free movement of personal data. The regulation was one of the most scrutinised and contentious legislative proposals ever decided in the AFSJ. The high salience of the proposal, the sensitivity of the proposal for member states with high levels of data protection, as well as the (back then) recent empowerment of the EP in the field of criminal law are assumed to constitute an incentive for exercising joint oversight.

Agency oversight has become another priority. The Lisbon Treaty explicitly foresaw more parliamentary control over Europol (Art 88 TFEU), which led to the creation of a specialised ‘Joint Parliamentary Scrutiny Group’ (JPSG) over Europol in 2016 (Article 51 of Regulation (EU) 2016/794). It was the first of its kind, with Eurojust and Frontex now also having an interparliamentary committee or at least cooperation – the interparliamentary cooperation for Frontex has a ‘different, narrower scope’ (European Parliament, 2020, p. 29) compared to Europol and Eurojust.

Interparliamentary cooperation regarding subsidiarity control and legislative scrutiny

Although the proposals for an EU data protection package triggered the interest of almost all NPs, their activities varied across the chambers and throughout the legislative procedure. 30 out of 40 chambers engaged in the scrutiny of the legislative proposal. Most chambers ended their scrutiny activities before 10 April 2012, the eight-weeks deadline defined in the Early Warning Mechanism. Five national chambers sent reasoned opinions suggesting that the proposal would not comply with the subsidiarity principle: the Swedish Parliament, the Italian Chamber of deputies, the German Bundesrat, the French Senate and the Belgian House of Representatives. The rest of the chambers sent their opinions to the EU institutions in the framework of the political dialogue. In the EP, the committee referral was announced on 16 February 2012. However, the rapporteurs were not appointed before April 2012, when the EWM scrutiny procedure was concluded.

The timing: Only two interparliamentary meetings were organised during the subsequent four years of legislative negotiations (Assemblée Nationale, 2014; European Parliament, 2012). A third interparliamentary meeting was organised on 15 May 2018 – ten days before the implementation deadline of the data protection package. While the first two meetings were directly focused on the scrutiny of the GDPR, the third one related to implementation challenges. The timing of these meetings suggests that neither NPs nor the EP used them to coordinate their positions with respect to the subsidiarity principle. The subsidiarity control by national parliaments was established in the ASFJ as an addition check that the EU proposals respect member states’ competences (Tacea, 2021). The NPs’ reasoned opinions can go against the EP’s position that is often in favour of more European integration. Indeed, the EP strongly supported the choice of a regulation as the appropriate instrument to legislate on the protection of personal data (European Parliament, 2012). By contrast, several NPs, such as the French, the German and the Swedish ones, expressed a negative view on the legal instrument of a ‘regulation’ chosen by the European Commission. Those parliaments considered that a regulation could undermine higher national standards of data protection because of its uniformly binding nature.

Yet, institutionally, the EP’s General Secretariat established several instruments and procedures to inform MEPs about NPs’ opinions and positions. The EP standing committee responsible for the proposal – in this case the LIBE committee – is not allowed to proceed with a final vote before the deadline of eight weeks has expired and while discussions can still take place. Moreover, the Italian Chamber of Deputies’ reasoned opinion makes specific reference to EP’s Resolution of 6 July 2011 (European Parliament, 2011) to criticise the lack of legal precision of the ‘right to be forgotten’ (Camera dei deputati, 2011). However, no interparliamentary meeting, neither between NPs themselves, nor between NPs and the EP, was organised during the eight weeks’ time span. Moreover, by the time that the NPs completed the scrutiny of the legislative package, the LIBE committee did not even appoint the rapporteurs.

A content analysis of the opinions sent by NPs in the framework of the EWM and of the political dialogue shows that NPs expressed similar concerns regarding data protection. Several issues were raised such as the respect of member states’ traditions and, subsequently, the choice of a regulation instead of a directive (AT, BE, IT, DE, SE); the mandatory employment of a data protection officer for businesses (AT, RO); the establishment of a one-stop-shop (FR, AT, IT); and the high number of empowerments to adopt delegated acts (AT, DE, FR, RO, IT). Very few chambers (FR, PT) welcomed the GDPR in positive terms. However, the tight deadline of the EWM and the timing of scrutiny constituted an obstacle to a coordination between the NPs to actually reach a ‘yellow card’. For example, the Austrian Nationalrat and the Bundesrat expressed the same concerns as those parliaments that contested the respect of the subsidiarity principle. However, the scrutiny of the GDPR took place in the Austrian parliament 3 years after the subsidiarity deadline.

The timing of the meetings was also inadequate to ensure an effective scrutiny. For most legislative chambers, the scrutiny and involvement in the EU legislative procedure stopped at the end of the EWM. However, the legislative content substantially evolved during the four years of negotiations. Only ‘Westminster’, the ‘Eerste Kamer’, the ‘Riksdag’ and to a lesser extent the ‘Assemblée nationale’ and the Austrian Bundesrat continued to follow the negotiations in the Council and the position of the EP. For example, the European Scrutiny Committee of the UK House of Commons considered the report ten times during their meetings. The Dutch ‘Eerste Kamer’ held nine written consultations with the Dutch government about the proposals.¹

The scope and format of the meetings: The objective of the first meeting was ‘to engage members of the EP and NPs in an exchange of views and a constructive dialogue’ (European Parliament, 2012). Questions that were discussed included: ‘Do you see a necessity and added value in the proposed EU Data Protection reform (questions on subsidiarity and the chosen legal form – two instruments – regulation and directive)’ or ‘How do you see the relation between Union and national legislation?’ (European Parliament, 2012).

These questions show that the interparliamentary meeting was conceived as a means to inform the two LIBE rapporteurs and the members of the LIBE committee about the concerns of national parliaments. The dialogue between NPs and the EP was important in the context of the rivalry of the EP vis-à-vis the NPs, generated by the different views regarding the appropriate legal instrument to legislate on the protection of personal data. In that light, it was clear that the meeting was oriented towards an exchange of information and not towards the possibility of reaching a joint position between NPs and the EP.

The second interparliamentary meeting was organised by the French ‘Assemblée nationale’, one of the strongest supporters of the GDPR, on 17 September 2014. The objective was to relaunch the discussions on the package. They had been abandoned because of the opposition of some member states in the Council and due to the EP elections. Compared to the first meeting organised by the EP, which did not have a targeted aim, the second meeting specifically aimed to adopt a joint position. This was possible because MPs signed in their personal capacity without legally binding their respective parliaments. The fact that the meeting took place in the French parliament and not in the EP was not relevant. The format of the meeting and the participants were the same. Symbolically, it also proved that interparliamentary cooperation was not the sole responsibility of the EP.

The objective of the last meeting organised three and half years later, in May 2018, by the LIBE committee was ‘to take stock of views of national parliaments and stakeholders on different issues posed by the new data protection framework at the eve of its application’ (LIBE Committee, 2018). Indeed, the discussions turned around the difficulties that NPs experienced when transposing the directive and adapting the regulation to their context. At the date of the meeting, half of the member states had not implemented the data protection package. The meeting thus aimed at pushing NPs to speed up the transposition.

The profile and agency of participating MPs: 85 parliamentarians participated at the meeting organised by the LIBE committee in October 2012 (LIBE Committee, 2012). The meeting did not only raise the interest of many parliamentarians. Some of the participating politicians such a Marietta Karamanli, Vice-Chairwoman of the European Affairs Committee of the French ‘Assemblée nationale’, also had a recognised expertise regarding AFSJ-related issues. The meeting had an intense agenda. Fifteen speakers, researchers, commissioners and public servants exchanged with the parliamentarians during the two full days.

The second meeting, organised by the French ‘Assemblée nationale’ on 17 September 2014, was smaller: 30 members of the European Affairs and of the legal committees of 18 chambers, representing 16 parliaments participated (Assemblée Nationale, 2014).² Although the MEPs did not participate because of a plenary session held the same day in Strasbourg, Mr. Claude Moraes, president of the LIBE committee, made a short intervention by videoconference. The profile of MPs and their experience with JHA issues was heterogenous. Some MPs, such as Renate Künast, Vannino Chiti or Bogdan Niculescu Duvăz, had long parliamentary experience and a certain familiarity with European affairs. Others, such as Cecília Honório or Veli Yüksel were new to the field. Moreover, while some parliaments, such as the German and the French ones, were represented by four MPs, others, such as the Greek, the Belgian or the Italian sent only one MP. Despite the heterogeneity of the participating MPs, the adoption of a joint position was fostered by the existing network among some MPs. The French and the German MPs, who have been following the data protection reform since 2012, pushed the newcomers towards the approval of a joint position (interview 4).

The last meeting raised less interest among MPs. 30 MPs representing 15 member states,³ plus Norway, participated at this event organised on 15 May 2018. Other member states only sent officials to the meeting (LIBE Committee, 2018).

Possibilities for outreach: The only meeting which adopted a common document, was the one of the ‘Assembléee nationale’. The potential outreach of the document was rather limited as the joint position is vague. In six paragraphs, it stated the need to adopt a general framework on data protection by the end of 2015. The importance of adopting legislation that would not lower national standards was highlighted. Despite those precautions, the Swedish MP did not sign the declaration, arguing that he did not have any mandate from his colleagues (Assemblée Nationale, 2014). The joint position may primarily set a political signal in the decision-making process. The coordination of the positions of national parliaments and of the EP established a parliamentary presence in the policy area.

In the same vein, the first interparliamentary meeting took place before the discussions in the Council. In this sense, it is interesting to compare the position adopted by national parliaments during the scrutiny procedure and the written comments that national ministerial delegations sent to the Working Group on Information Exchange and Data Protection (DAPIX) on 5 November 2012. Typically, the French Senate adopted a reasoned opinion contesting mainly the large number of delegated acts and the ‘one-stop-shop’ (Sénat, 2012). The French delegation did not raise exactly the same concerns as the French Senate. It did however point out its ‘considerable reservations on the use of delegated acts and implementing acts’ and highlighted the potential harm of the lower standards imposed by the European Regulation compared to the French legislation (Council of the EU, 2012, p. 103).

Similar concerns were raised by the German Bundesrat, which pointed out ‘a very high number of empowerments to adopt delegated acts’ and the ‘higher degree of legal security’ offered by the existing German national legislation compared to ‘the highly abstract individual provisions of the draft Regulation’ (Bundesrat, 30 March 2012). Although the Bundestag did not send a reasoned opinion, it emphasised that the proposal raised many questions such as the need to draw a clear distinction between data protection in the public and private sphere. Some of those issues were also raised in the written comments that the German government delegation sent to DAPIX (Council of the EU, 2012, p. 30).

The Swedish Riksdag also issued a reasoned opinion, questioning the Commission’s choice of legislative instrument. Moreover, the Riksdag was very critical of the number of delegated acts and questioned the beneficial effect of ‘such an exhaustive, detailed and complicated regulation’ (Riksdag, 2012). The same position was expressed by the Swedish delegation, who maintained ‘a general scrutiny reservation and a reservation regarding the legal form of the instrument’ and stated that Sweden was ‘not convinced that the Commission should be empowered to adopt delegated acts in the extent proposed in the Regulation’ (Council of the EU, 2012, p. 191).

Despite the similarities between the parliamentary opinions and the position of national delegations in the Council, we cannot claim that NPs influenced the position of their governments or that the position of NPs comes as a legitimation of the governmental positions. Nonetheless, the actions of NPs were closely interlinked with their governments. This shows that the scrutiny of European legislation is strongly embedded in the political practices of member states and that parliamentary oversight takes mainly an individual form. Some parliamentary opinions were closer to the position of national governments compared to the position of the EP, in particular with regard to the increased harmonisation to be achieved by the regulation.

Agency oversight in the AFSJ

The ‘Joint Parliamentary Scrutiny Group’ (JPSG) over Europol will be the second case study.

The timing: The JPSG for Europol meets twice a year – once in the member state holding the EU Presidency and once at the EP’s premises in Brussels. After the Covid-19 pandemic broke out in 2020, the meetings moved to remote participation. The schedule is hence pre-defined and regular, which sometimes prevents a quick reaction to salient public debates. For instance, when reports were leaked to the media that Europol would plan a database potentially impacting data protection rights, the JPSG could discuss the issue only with a delay, thereby struggling for public interest (interview 7). The meetings tend to start with an exchange between the parliamentarians and the Executive Director of Europol, notably on Europol’s multiannual work program, to be followed by inputs of the Chairperson of the Europol Management Board and the JPSG representative to the Management Board meetings (European Parliament, 2020, p. 26, also interview 22). The other parts of the meetings are usually devoted to particular thematic debates such as the state of play of Europol’s Cybercrime Centre or the agency’s information management priorities. Brexit-related challenges, the fight against criminal activities during the Covid-19 crisis and right-wing extremism were other salient topics in the first years of JPSG’s existence.

Scope and format: The JPSG consists of members from NPs and the EP’s LIBE committee. The Europol management is expected to consult the JPSG prior to a decision of the multiannual programme and transmit requested documents. The JPSG hence does the ‘political monitoring of Europol’s activities’ (Art. 51, par. 5). Its conclusions shall be submitted to the European and national parliaments as well as to the Council, Commission and Europol. The JPSG is also entitled to invite the European Data Protection Supervisor (EDPS) once a year. A representative of the JPSG may also participate as a non-voting observer at Europol Management Board meetings. Compared to other interparliamentary conferences, the JPSG has a well-specified object of scrutiny, Europol, and not a whole policy field (Cooper, 2018, p. 185).

However, the JPSG has, in some respect, less oversight rights compared to the LIBE committee (alone). Specifically, this concerns the appointment of a new Europol director and the approval of the budget. When appointing a new Europol director, the candidates may appear before the LIBE committee. The EP is also allowed to invite the management to report on their duties whenever deemed necessary (Article 60), and demand access to sensitive non-classified information processed by or through Europol (Article 52 of Regulation 2016/794). Importantly, the EP has budgetary control of Europol whereas the JPSG is in charge of political monitoring. In practice, the Europol executive director has used both fora to make similar budget-related claims (interview 1).

Our interviewees highlighted the close relationship between Europol and the LIBE committee. According to a Europol official, ‘our counterpart is LIBE. … . If you are a LIBE member, you know how to find Europol’ (interview 3). For instance, when Catherine de Bolle, the new director of Europol, was appointed in spring 2018, one of her first tasks was to go to the LIBE committee. The JPSG is one out of several possibilities for European-level politicians to engage with Europol, while it tends to be the only one for national parliamentarians (ibid). They are usually less familiar with the work of Europol. The agency therefore sees the JPSG as an opportunity to present its work and to seek for enhanced support at national level. In the words of a Europol official, national parliamentarians are often Europol-friendly, yet they do not know exactly how to translate this support into action. ‘To a certain extent you need to be pedagogical. You raise awareness, you show the work that we do’ (interview 3). The actual effect of JPSG is therefore not only parliamentary oversight of the agency. It also offers a platform for Europol to raise awareness for its standing in the competitive European institutional landscape and do networking with, particularly, national parliamentarians.

Profile and agency of parliamentarians: The EP and national parliaments have different selection procedures. The chair of the LIBE committee invites the EP political groups to nominate 16 full members and substitutes. Each NP may be represented by a maximum of four members. The selection process is up to each national parliament, even if they should keep in mind ‘the necessity to ensure substance matter expertise as well as long-term continuity’ (European Parliament, 2018a). Based on an analysis of the ‘List of Participants’ of all JPSG meetings between the start in 2017 until the EP election of May 2019, it can be substantiated that the members of national parliaments have a higher level of rotation than the EP, even if considerable differences exist at member state level. Austria and Finland always sent different members to the JPSG meetings, whereas Bulgarian politicians never took turns. Most national parliaments had 1–2 members who steadily participated, while the others rotated. At EP level, 56 per cent of the slots were occupied by the same members (own calculation based on ‘JPSG Lists of Participants’). A higher level of rotation disadvantages NPs in terms of exerting influence compared to Members of the EP (interview 2, 6 and 7).

However, according to our interviews, JPSG meetings tend to be taken more seriously by members of NPs compared to the EP. The national parliamentarians come specifically for this meeting and are likely to spend more time in them. In contrast, in the Brussels-based gatherings (once a year), a JPSG meeting has been likely to be only one out of several daily agenda items of a Member of the EP. As a matter of fact, they often come only for a short time-period, pose a question and leave again (interview 2 and 3). The problem for national parliamentarians is that they often do not come as a ‘delegation’ but more in an individual capacity and due to a personal interest. There is no real follow-up to the JPSG in many national parliaments (interview 7).

Outreach: The first meetings were dedicated to defining the rules of procedures. Not all discussions on these (internal) rules were uncontroversial. The LIBE committee was opposed to qualified majority voting (as they are in minority), insisting on a consensus procedure (European Parliament, 2018b, p. Article 4 (e)).

The first four ‘written questions’ to Europol were sent at the third meeting in September 2018 and have now become a more frequent tool (e.g. five written questions were posed for the first five meeting of 2021). These questions may touch upon any aspect of Europol’s work; some were found inadmissible (in case, for instance, that they related to a specific national criminal investigation) but most were responded in an elaborated manner by Europol staff (European Parliament & Romanian Presidency of the Council of the EU, 2019, p. 2). Three types of written questions can be distinguished. A first group are genuine inquiries about Europol’s work (e.g. the German Bundestag at the JPSG meeting of 24th February 2019: ‘What form will Europol’s cooperation with the future European Public Prosecutor’s Office take, also with respect to Eurojust, and are sufficient resources available in this regard?’). A second type seeks to extract information that may be used against the agency (e.g. the MEP Patrick Breyer at the JPSG meeting of 25th October 2021: ‘Please list all meetings of Europol officials with industry (i.e. companies and business associations) since 2019 including whom they met and on which subject(s)’). Finally, some written questions concern salient political issues (of a particular member state) and ask as to what Europol may do about them (e.g. Romanian MP Oana-Consuela Florea at the JPSG meeting of 15th September 2021: ‘ … Security experts argue that this [Afghan] refugee wave might also bring terrorists to the EU … . I would like to know what measures are or will be taken by Europol in order to preserve the European security’).

JPSG members can also get access to a range of Europol documents although Europol does not disclose any data on ongoing investigations (interview 3). The ‘summary conclusions by the co-chairs’ (the EP and the parliament of the member state holding the presidency of the Council of the EU) are another outreach instrument, reflecting the debates and recapitulating the speeches of the meetings.

Conclusions

This article has assessed which form of oversight has been triggered by the interparliamentary cooperation in the AFSJ. Interparliamentary cooperation was once contested in the AFSJ but has now become the norm and institutionalised.

By conceptually differing between forms of individual (either at national or European level) and joint parliamentary oversight, the article looks at two crucial cases – agency oversight as exemplified by the EU’s Police Office Europol and legislative scrutiny in process of adopting the General Data Protection Regulation (GDPR). With regard to legislative scrutiny, the article demonstrates that the national parliaments and the European Parliament met to exchange information regarding the AFSJ legislative process. However, the timing of the meetings and the fluctuating participation of MPs limited the possibility of joint oversight. Even when the meetings were organised with the aim of adopting a joint position, their outreach remained low. We can see a prevailing pattern of individual parliamentary oversight (NPs vis-à-vis their national governments and the EP at European level). This is not to say that interparliamentary meetings did not serve any purpose. They were a good source of extracting information necessary to better oversee the executives. In this sense, interparliamentary cooperation may have had an indirect effect on parliamentary scrutiny at the national level (a kind of ‘individual oversight plus’).

The JPSG over Europol has created regular meetings between the NPs and the EP. They have a precise focus, i.e. to politically monitor Europol’s activities. Still, the cooperation of NPs and the EP has not evolved among equals. The LIBE committee retains more rights (notably regarding the budget and the appointment of Europol’s management). The EP has been in an advantageous position not only due to these legal competences but also because of its more intimate knowledge of EU- and agency-related developments. The national parliaments have had a higher level of fluctuation of their participating members, with little follow-up and coordination among themselves. A main benefit of the JPSG has been to improve the institutional knowledge of and about Europol in national capitals – but not to exercise joint oversight. The JPSG can be seen to provide a primarily symbolic layer to the individual oversight of the EP (through its LIBE committee).

How do these findings relate to the literature on interparliamentary cooperation in the EU? Our article shows that procedural and organisational constraints undermine joint parliamentary oversight and that the level of engagement depends on parliamentary actors (a similar finding was made by Borońska-Hryniewiecka, 2021). In this sense, the AFSJ does not yet differ much from what has been observed in other EU policy areas (such as foreign policy, see Herranz-Surrallés, 2021) even if the legal possibilities for having joint oversight are bigger. In the field, the national and European level do not – or no longer – compete with regard to agency oversight and legislative scrutiny. However, the two levels are still far from jointly overseeing the executive branch.

Acknowledgements

We would like to thank Ben Crum, Katharina Meissner, Ian Cooper and the anonymous reviewers for their constructive comments on an earlier version of the article.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by VUB Strategic Research Programme: Evaluating Democratic Governance in Europe (EDGE): [grant number SRP43].

Notes on contributors

Angela Tacea

Angela Tacea is a research fellow at the Institute for European Studies of the Vrije Universiteit Brussel (VUB). She is also an associated researcher at the Center for Europeans studies and comparative politics (CEE), Sciences Po Paris. Her research and teaching interests are broadly in European decision-making process and constitutional law, with special focus on institutional actors and procedures, fundamental rights and justice and home affairs policies, e-government, civic techs and artificial intelligence. Her work has appeared in prominent journals such as West European Politics, the Journal of Common Market Studies, and Politics and Governance.

Florian Trauner

Florian Trauner holds a Jean Monnet Chair at the Brussels School of Governance of the Vrije Universiteit Brussel (VUB). He also co-directs the Brussels Interdisciplinary Research Centre on Migration and Minorities (BIRMM), a VUB Centre of Expertise gathering 110 researchers from 11 disciplines. His research concerns the European integration process with a focus on EU asylum, migration, border control, counter-terrorism policies and linkages between EU internal security issues and foreign policy. He regularly teaches at the College of Europe and held permanent or visiting positions at the University of Vienna, the University of Renmin in China, Science Po Paris, and the EU Institute for Security Studies.

Notes

1 Information retrieved from IPEX and double checked with the European Commission’s Political dialogue website.

2 The Romanian, Lithuanian, Luxembourgish, French, Italian, German, Austrian, Croatian, Belgium, UK, Greek. Portuguese, Dutch, Hungarian, Czech, Swedish parliaments.

3 Belgium, Czech Republic, Germany, Greece, Spain, France, Croatia, Latvia, Lithuania, Malta, The Netherlands, Poland, Portugal, Romania, Slovenia.