EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

In the globalised world where serious crime and terrorism are increasingly transnational and polyvalent, law enforcement authorities should be fully equipped to cooperate with external partners to ensure the security of their citizens. Europol should therefore be able to exchange personal data with law enforcement authorities of third countries to the extent necessary for the accomplishment of its tasks.

Since the entry into application of Regulation 2016/794 on 1 May 2017 1 and pursuant to the Treaty, the Commission is responsible, on behalf of the Union, for negotiating international agreements with third countries for the exchange of personal data with Europol. In so far as necessary for the performance of its tasks, Europol may establish and maintain cooperative relations with external partners through working and administrative arrangements that cannot by themselves be a legal basis for the exchange of personal data.

Taking into account the political strategy as outlined in the European Agenda on Security 2 , Council Conclusions 3 , and the Global Strategy 4 , the operational needs of law enforcement authorities across the EU, and the potential benefits of closer cooperation in this area, the Commission considers it necessary to start negotiations in the short-term with eight countries, as identified in the 11th progress report towards a genuine and effective Security Union 5 .

The Commission has made its assessment of priority countries taking into account Europol's operational needs. The Europol Strategy 2016-2020 identifies the Mediterranean region as priority for enhanced partnerships 6 . The Europol External Strategy 2017-2020 also stresses the need for closer cooperation between Europol and the Middle East/North Africa (MENA) due to the current terrorist threat and migration-related challenges 7 .

Europol does not have any agreements in place with any of the countries in this region.

This Recommendation specifically concerns negotiations with Jordan, although cooperation with any MENA country needs to be seen in the context of the region as a whole. The current instability in the region, especially the situation in Syria and Iraq, presents a significant long-term security threat to the EU that needs to be addressed urgently. This concerns both the effective fight against terrorism and related organised crime 8 , and migration-related challenges such as the facilitation of irregular migration and trafficking in human beings. Cooperation with local law enforcement is critical to addressing these challenges.

Meanwhile, on the basis of technical dialogues to define common actions to improve exchange of information and joint law enforcement operational action against firearms trafficking, the EU has already agreed with Jordan a list of actions to enhance cooperation among relevant law enforcement agencies, ensure capacity-building assistance in relevant regional and/or bilateral programmes and develop operational actions under a commonly agreed framework 9 . Jordan has demonstrated its interest in cooperating on Counter Terrorism with EU law enforcement, notably via CEPOL training and work on terrorism financing). These exchanges do not, however, cover the transfer of personal data.

Political context

Jordan is a key partner for the EU in particular for its role in promoting stability, moderation and inter-faith tolerance in the Middle East. The EU and Jordan have a strong partnership across many sectors and have been linked by an Association Agreement since 2002 (advanced status since 2010).

Jordan is facing difficult economic, social and security challenges. In particular, Jordan is hosting more than 650,000 registered Syrian refugees (around 10% of the Jordanian population before the Syria crisis), as well as other refugee populations.

The EU and Jordan adopted in December 2016 the EU-Jordan Partnership Priorities and the EU-Jordan Compact 2016-2018. Through the Partnership Priorities, the EU and Jordan have confirmed their ambition to further strengthen their engagement towards each other, setting a strategic agenda, where one of the pillar strengthening cooperation on regional stability and security, including counter-terrorism. In particular, the EU and Jordan committed to intensify concrete co-operation and information sharing to address the challenges of terrorism, violent extremism and radicalisation within the rule of law.

The EU-Jordan Compact includes mutual commitments through which both sides fulfil the pledges made in February 2016 at the London conference on supporting Syria and the region. These commitments were reinforced at the Brussels Conference on Supporting the Future of Syria and the Region on 5th April 2017, including in view of strengthening Jordan's resilience in light of the impact of the Syria's crisis.

The EU and Jordan have agreed at the EU-Jordan Counter-Terrorism/Enhanced Security workshop of 15 March 2016, referred to in the EU-Jordan Compact, to take work forward in three domains: countering violent extremism (CVE); countering the financing of terrorism; aviation and border security, including through the involvement of the EU's specialised agencies. The EU and Jordan have also agreed to intensify cooperation in order to tackle the challenges of human trafficking, foreign terrorist fighters and firearms smuggling.

The EU and Jordan are also partners of the Global Counter Terrorism Forum (GCTF) 10 and the Global Coalition against Daesh. One of the EU-funded regional CBRN Centres of Excellence is hosted in Amman.

Operational needs

Based on data in the SOCTA 2017 11 and TE-SAT 2017 12 , the above discussions, as well as, inter alia, Europol's in-house expert knowledge, cooperation with Jordan is needed in particular to counter the following crime phenomena:

Terrorism: The destabilisation of Syria and Iraq, the spread of Da'esh and other terrorist groups pose a direct security threat to Jordan and the EU, which have both been targeted by terrorist groups. European and Jordanian terrorists have notably travelled to Syria, Iraq and other conflict zones to train and fight. Closer law enforcement cooperation, including the exchange of personal data, will contribute to detect and prosecute terrorist suspects, prevent terrorism travel (including the risk of infiltration of migratory flows or relocation to other conflict areas) and terrorism financing (including the nexus with organised crime).

Firearms trafficking: The EU and Jordan have established cooperation on firearms and agreed a work programme including exchange of best practices, training and capacity-building. As cooperation increases, the need for improved information sharing and subsequent investigations becomes even more pressing. Bordering Syria, Jordan can play a major role in preventing the entry of firearms into theatres of armed conflict, and making sure illicit shipments are intercepted, in particular on their way back to the EU.

Migration-related challenges: There are a number of migration-related challenges related to the ongoing conflict in Syria. Areas surrounding refugee camps and close to the Syrian border are susceptible to weapons, human and sex trafficking. There are concerns that significant numbers of Syrian children are at risk, and thus vulnerable to exploitation by organised crime, as their access to basic facilities such as schools is very poor.

Drug trafficking: The Middle East and North Africa (MENA) is a major source, transit point, and consumer of illicit drugs. With a steady base of clientele to the north, and the heroin route traversing it from east to west, the region both influences and is negatively influenced by illicit substance abuse and production. In 2016, the EU-funded Cocaine Route Programme (component AIRCOP) launched a Joint Airport Interdiction Task Force Legal Authority (JAITFs) in Jordan.

2.LEGAL ELEMENTS OF THE RECOMMENDATION

Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol) sets out a legal framework for Europol, in particular its objectives, tasks, scope of competence, data protection safeguards and ways to cooperate with external partners.

This Recommendation is consistent with the provisions of the Europol Regulation.

The objective of this recommendation is to obtain from the Council the authorisation for the Commission to negotiate the future agreement on behalf of the EU. The legal basis for the Council to authorise the opening of negotiations is Article 218(3) and (4) TFEU.

In line with Article 218 of Treaty on the Functioning of the European Union, the Commission shall be nominated as the Union negotiator for the agreement between the European Union and Jordan on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Jordanian competent authorities for fighting serious crime and terrorism.

Recommendation for a

COUNCIL DECISION

authorising the opening of negotiations for an agreement between the European Union and the Hashemite Kingdom of Jordan on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Jordanian competent authorities for fighting serious crime and terrorism

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union (TFEU), and in particular Article 218(3) and (4) thereof,

Having regard to the recommendation from the European Commission,

Whereas:

(1)Regulation (EU) 2016/794 of the European Parliament and of the Council 13 was adopted on 11 May 2016 and is applicable as of 1 May 2017.

(2)This Regulation, in particular its Article 25, sets out the rules for the transfer of personal data from the European Union Agency for Law Enforcement Cooperation (Europol) to third countries and international organisations. Europol may transfer personal data to an authority of a third country on the basis of an international agreement concluded between the Union and that third country pursuant to Article 218 TFEU adducing adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.

(3)Negotiations should be opened with a view to concluding such an Agreement between the European Union and the Hashemite Kingdom of Jordan.

(4)The Agreement should respect the fundamental rights and observe the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to private and family life, recognised in Article 7 of the Charter, the right to the protection of personal data, recognised in Article 8 of the Charter and the right to effective remedy and fair trial recognised by Article 47 of the Charter. The Agreement should be applied in accordance with those rights and principles.

(5)

HAS ADOPTED THIS DECISION:

Article 1

The Commission is hereby authorised to negotiate, on behalf of the Union, an agreement between the European Union and the Hashemite Kingdom of Jordan on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Jordanian competent authorities for fighting serious crime and terrorism.

Article 2

The negotiating directives are set out in the Annex.

Article 3

The negotiations shall be conducted in consultation with [name of the special committee to be inserted by the Council].

Article 4

This Decision is addressed to the Commission.

Done at Brussels,

For the Council

The President

(1) Regulation (EU) 2016/794 of 11 May 2016, OJ L 135, 24.5.2016, p. 53.

(2) COM(2015) 185 final.

(3) Council Document 10384/17, 19 June 2017.

(4) Shared Vision, Common Action: A Stronger Europe - A Global Strategy for the European Union’s Foreign And Security Policy http://europa.eu/globalstrategy/en

(5) COM(2017) 608 final.

(6) Europol Strategy 2016-2020, Adopted by Europol's Management Board on 1 December 2015, https://www.europol.europa.eu/publications-documents/europol-strategy-2016-2020

(7) Europol External Strategy 2017-2020, Adopted by Europol Management Board on 13 December 2016, EDOC#865852v3.

(8) According to Europol, relevant organised crime offences in the region include illicit trafficking of firearms, drug trafficking, financial crimes including money laundering, and cybercrime.

(9) Several initiatives in this context have been included in the firearms priority as part of the EU Policy Cycle on serious and organised crime, as well as in the Communication "Implementing the European Agenda on Security: EU action plan against illicit trafficking in and use of firearms and explosives", of 2.12.2015, COM(2015) 624 final.

(10) Jordan is the co-chair of its Foreign Terrorist Fighters working group.

(11) https://www.europol.europa.eu/socta/2017

(12) https://www.europol.europa.eu/sites/default/files/documents/tesat2017.pdf

(13) Regulation (EU) 2016/794 794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).

ANNEX

Directives for the negotiation of an agreement between the European Union and the Hashemite Kingdom of Jordan on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Jordanian competent authorities for fighting serious crime and terrorism

In the course of the negotiations the Commission should aim to achieve the objectives set out in detail below.

(1)The objective of the Agreement shall be to provide the legal basis for the transfer of personal data between Europol and the competent authorities of Jordan respectively, in order to support and strengthen the action by the competent authorities of this country and Member States as well as their mutual cooperation in preventing and combatting serious transnational crime and terrorism, while ensuring appropriate safeguards with respect to the protection of privacy, personal data and fundamental rights and freedoms of individuals.

(2)To guarantee purpose limitation, cooperation under the Agreement shall only relate to crimes and related criminal offences falling within Europol's competence in accordance with Article 3 of Regulation 2016/794 (together "criminal offences"). In particular, cooperation should be aimed at tackling terrorism and preventing radicalisation, disrupting organised crime notably illicit trafficking of firearms, migrant smuggling and drug trafficking, and fighting cybercrime.

(3)The Agreement shall spell out clearly and precisely the necessary safeguards and controls with respect to the protection of personal data, fundamental rights and freedoms of individuals, irrespective of nationality and place of residence, in the exchange of personal data between Europol and the Jordanian competent authorities.

In particular:

(a)The purposes of the processing of personal data by the Parties in the context of the Agreement shall be spelt out clearly and precisely, and shall be no wider than what is necessary in individual cases for the purpose of preventing and combating terrorism and criminal offences referred to in the Agreement.

(b)Personal data transferred by Europol in accordance with the Agreement shall be processed fairly, on a legitimate basis and only for the purposes for which they have been transferred. The Agreement shall provide the possibility for Europol to indicate, at the moment of transferring the data, any restriction on access or use, including as regards its transfer, erasure or destruction. Personal data shall be adequate, relevant and limited to what is necessary in relation to that purpose. It shall be accurate and kept up to date. It shall not be retained for longer than is necessary for the purposes for which they have been transferred.

(c)The transfer of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data and data concerning a person's health and sex life by Europol shall be prohibited, unless it is strictly necessary and proportionate in individual cases for preventing or combating criminal offences as referred to in the Agreement and subject to appropriate safeguards. The Agreement should also contain specific safeguards relating to the transfer of personal data on victims of criminal offence, witnesses or other persons who can provide information concerning criminal offences, as well as minors.

(d)The Agreement shall ensure enforceable rights of individuals whose personal data are processed by laying down rules on the right of access, rectification and erasure, including the specific grounds which may allow any necessary and proportionate restrictions. The Agreement shall also ensure enforceable rights of administrative and judicial redress for any person whose data are processed under the agreement and guaranteeing effective remedies.

(e)The Agreement shall lay down the rules on storage, review, correction and deletion of personal data as well as on keeping records for the purposes of logging and documentation as well as on information to be made available to individuals. It should also provide for safeguards in respect to automated processing of personal data.

(f)The Agreement shall specify the criteria on the basis of which the reliability of the source and accuracy of the data shall be indicated.

(g)The Agreement shall include the obligation to ensure security of personal data through appropriate technical and organisational measures, including by allowing only authorised persons to have access to personal data. The Agreement shall also include the obligation of notification in the event of a personal data breach affecting data transferred under the Agreement.

(h)Onward transfers of information from competent authorities of Jordan to other authorities in Jordan shall only be allowed for the purposes of the Agreement and shall be made subject to appropriate conditions and safeguards.

(i)The same conditions as under (h) shall apply to onward transfers of information from competent authorities of Jordan to authorities in a third country, with the additional requirement that such onward transfers shall be allowed only with respect to third countries to which Europol is entitled to transfer personal data on the basis of Article 25(1) of Regulation (EU) 2016/794.

(j)The Agreement shall ensure a system of oversight by one or more independent public authorities responsible for data protection with effective powers of investigation and intervention to exercise oversight over those public authorities of Jordan that use personal data/exchanged information, and to engage in legal proceedings. In particular, the independent authorities shall have powers to hear complaints from individuals about the use of their personal data. Public authorities that use personal data shall be accountable for complying with the rules on the protection of personal data under the Agreement.

(4)The Agreement shall provide for an effective dispute settlement mechanism with respect to its interpretation and application to ensure that the parties observe mutually agreed rules.

(5)The Agreement shall include a provision on the entry into force and validity and a provision whereby a Party may terminate or suspend it.