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Document 52023PC0132
Recommendation for a COUNCIL DECISION authorising the opening of negotiations for an agreement between the European Union and the Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent 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 Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent 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 Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent for fighting serious crime and terrorism
COM/2023/132 final
EUROPEAN COMMISSION
Brussels, 9.3.2023
COM(2023) 132 final
Recommendation for a
COUNCIL DECISION
authorising the opening of negotiations for an agreement between the European Union and the Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent for fighting serious crime and terrorism
EXPLANATORY MEMORANDUM
1.PURPOSE
The EU should open negotiations with the Federative Republic of Brazil with the purpose of signing and concluding an Agreement enabling the exchange of personal data between Europol and the Brazilian authorities competent for fighting serious crime and terrorism.
2.CONTEXT OF THE RECOMMENDATION
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. In line with the EU Security Union Strategy 1 , Europol can play a key role in expanding cooperation with third countries to counter crime and terrorism in coherence with other EU external policies and tools. The April 2021 EU Strategy to tackle Organised Crime highlights an urgent need to further develop Europol’s serious and organised crime intelligence and to enhance information exchange and investigative actions with (additional) third countries and regions constituting major hubs for high-risk organised crime affecting EU Member States 2 .
For Europol, cooperation with third countries and international organisations is essential to support Member States in countering serious crime and terrorism. The need to strengthen the cooperation with third countries is even more important in light of the Serious and Organised Threat Assessment 2021 prepared by Europol. As an example, the main findings of this threat assessment recognises that Latin America criminal networks will continue to cooperate with organised criminal groups based in the European Union to traffic drugs.
In so far as necessary for the performance of its tasks, Europol may establish and maintain cooperative relations with international partners through working and administrative arrangements, which however do not by themselves provide a legal basis for the exchange of personal data. Unlike an international agreement, those arrangements are concluded by Europol and they do not bind the EU or its Member States 3 .
Regulation 2016/794 4 of the European Parliament and of the Council of 11 May 2016 changed the legal framework for the exchange of personal data between Europol and third countries. Since the entry into force of this Regulation on 1 May 2017, the competence to conclude international agreements between Europol and third countries has been transferred to the Union acting pursuant to Article 218 of the Treaty on the Functioning of the European Union (TFEU) 5 . Following a proposal from the Commission, the Council has already adopted nine negotiation authorisations with third countries 6 and an authorisation to negotiate a comprehensive agreement with Interpol that also covers the exchange of personal data with Europol 7 . The first Agreement was recently signed with New Zealand 8 .
While this Recommendation specifically concerns negotiations with Brazil, it should be seen as part of a broader effort to enhance law enforcement cooperation between the EU and Latin American countries of interest. In that regard, the European Commission is recommending in parallel to open negotiations for similar international agreements with Bolivia, Ecuador, Mexico and Peru, with the ultimate aim to enhance the fight against terrorism and serious crime.
3.OBJECTIVES OF THE RECOMMENDATION
Latin American’s organised crime groups pose a serious threat to the EU internal security as their actions are increasingly linked to a series of crimes within the Union, particularly in the realm of drug trafficking. The 2021 EU Serious and Organised Crime Threat Assessment (SOCTA) highlights that unprecedented quantities of illicit drugs are trafficked to the EU from Latin America, generating multi-billion-euro profits, which are used to finance a diverse range of criminal organisations (international and EU-based) and to weaken the rule of law in the EU 9 .
Recent reports confirm that cocaine availability in Europe is at an all-time high and the drug is more affordable and accessible for consumers than in the past 10 . Most of the product seized in the EU is transported by sea, primarily in maritime shipping containers 11 , and shipped to the EU directly from the countries of production as well as from neighbouring countries of departure in Latin America, including the Federative Republic of Brazil 12 . Brazilian organised crime organisations have become partners of Colombian criminal networks and also purchase cocaine produced in Bolivia and Peru. In addition to their trafficking activities, these networks are service providers for globally operating criminal networks that use Brazilian ports to traffic cocaine 13 . Based on quantities of cocaine seized in European ports and in ports elsewhere destined for Europe, Brazil (with a cocaine seizure of about 71 tonnes) was one of the main departure points in 2020, as it has been for some years. 14 Official data from the Federative Republic from Brazil confirm that Europe is the largest destination for cocaine shipped from Brazil 15 .
Organised crime organisations based in that continent are well established and also active in other crime areas that fall within Europol’s mandate, such as cybercrimes, money laundering, and environmental crimes.
In its Programming Document 2022-2024, Europol has flagged that, among others, the growing demand for drugs and increased drug trafficking routes into the EU justify the need for enhanced cooperation with Latin American countries 16 .
Cooperation between Europol and the Federative Republic of Brazil began with the signing of an Agreement on Strategic Cooperation in April 2017 17 . The results achieved following the implementation of this Agreement and the establishment of the Brazilian Liaison Bureau at Europol, including the subsequent deployment of the Brazilian Liaison Officers to Europol in September 2020, have led to the enhancement of cooperation at a strategic operational level with Member States and third parties that are represented at Europol.
Since then, the Federal Police of Brazil has effectively cooperated and engaged with the EU Member States and with Europol to fight transnational organized crime and terrorism, making Europe and the rest of the world safer. Many positive results have already been achieved 18 , from the daily exchange of information through Europol’s Secure Information Exchange Network Application (SIENA) to the participation in European Multidisciplinary Platform Against Criminal Threats (EMPACT) meetings, and joint investigations with Member States 19 .
Brazil is participating in the Community of Latin American and Caribbean States (CELAC) Coordination and Cooperation Mechanism on Drugs. Moreover, the Federative Republic of Brazil is member of the Police Community of the Americas (Ameripol) and has been committed to contributing to the dismantling of organised crime groups involved in drug production and trafficking. In fact, Brazil has been identified as a key international partner to reduce the global supply of cocaine by the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) 20 .
Increased operational cooperation and the sharing of relevant information between Europol and the Federative Republic of Brazil would be important in countering serious offences in many crime areas of common interest, such as drug trafficking and environmental crimes, particularly taking into consideration the prominent role of Brazilian criminal networks in the global drug market.
Due to the lack of a valid legal basis under Union law, however, Brazilian law enforcement authorities competent for fighting serious crime and terrorism cannot receive any personal data from Europol. This represents thus a hindrance for further developing the cooperation between both parties.
For these reasons and taking into account the EU’s political strategy as outlined in the EU Security Union Strategy 21 , the EU Drugs Strategy 2021-2025 22 , and the EU Drugs Action Plan 2021-2025 23 , the Commission considers it necessary to add Brazil as a priority country to start negotiations on an agreement enabling the exchange of personal data between Europol and the Brazilian competent authorities in the short term.
4.LEGAL ELEMENTS
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 an international 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 TFEU, the Commission shall be authorised to negotiate on behalf of the EU an Agreement with the Federative Republic of Brazil on the exchange of personal data between the Europol and the Brazilian competent authorities competent for fighting serious crime and terrorism.
The Union has already exercised its competence in this field and has established rules in this respect by adopting a framework of rules regulating Europol activities, including on processing personal data.
Recommendation for a
COUNCIL DECISION
authorising the opening of negotiations for an agreement between the European Union and the Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent 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 was adopted on 11 May 2016 and is applicable as of 1 May 2017 24 . It was amended by Regulation 2022/991 of 27 June 2022 25 .
(2)The provisions of Regulation (EU) 2016/794, in particular those concerning the transfer of personal data from the European Union Agency for Law Enforcement Cooperation (Europol) to third countries and international organisations, provide that 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 an agreement between the European Union and the Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent for fighting serious crime and terrorism (the ‘Agreement’).
(4)As also recalled in Recital 35 of Regulation (EU) 2016/794, the Commission should be able to consult the European Data Protection Supervisor (EDPS) also during the negotiations of the Agreement and, in any event, before the Agreement is concluded.
(5)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.
(6)The Agreement should not affect, and should be without prejudice to, the transfer of personal data or other forms of cooperation between the authorities responsible for safeguarding national security.
HAS ADOPTED THIS DECISION:
Article 1
The Commission is hereby authorized to negotiate, on behalf of the Union, an agreement between the European Union and the Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent for fighting serious crime and terrorism.
The negotiating directives are set out in the Annex.
Article 2
The negotiations shall be conducted in consultation with the relevant [name of the special committee to be inserted by the Council].
Article 3
This Decision is addressed to the Commission.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 9.3.2023
COM(2023) 132 final
ANNEX
to the
Recommendation for a COUNCIL DECISION
authorising the opening of negotiations for an agreement between the European Union and the Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent for fighting serious crime and terrorism
ANNEX
Directives for the negotiation of an agreement between the European Union and the Federative Republic of Brazil on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Brazilian authorities competent 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 will be to provide the legal basis for the transfer of personal data between Europol and the competent authorities of the Federative Republic of Brazil 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 and exchange of data under the Agreement will 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 preventing and combatting terrorism and , disrupting organised crime and fighting drug trafficking and cybercrime. The Agreement will specify its scope and the pruposes for which Europol may transfer data to the competent authorities of the Federative Republic of Brazil.
(3)The Agreement will 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 Brazilian competent authorities. In addition to the safeguards set out below, these will include requiring that the transfer of personal data will be subject to confidentiality obligations and that the personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment, without prejudice to additional safeguards that may be required.
In particular:
(a)The Agreement will contain definitions of key terms compliant with Article 3(1) of Directive (EU) 2016/680.
(b)The Agreement will respect the principle of specificity, ensuring that the data will not be processed for other purposes than for the purposes of the transfer. To this end, the purposes of the processing of personal data by the Parties in the context of the Agreement will be spelt out clearly and precisely, and will 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.
(c)Personal data transferred by Europol in accordance with the Agreement will be processed fairly, on a legitimate basis and only for the purposes for which they have been transferred. The Agreement will provide the obligation 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 or the further processing of it. The Agreement will oblige competent authorities of the Federative Republic of Brazil to respect these restrictions and specify how compliance with these restrictions will be enforced in practice. Personal data will be adequate, relevant and limited to what is necessary in relation to that purpose. It will be accurate and kept up to date. It will not be retained for longer than is necessary for the purposes for which they have been transferred. The Agreement will be accompanied by an annex containing an exhaustive list of the competent authorities in the Federative Republic of Brazil to which Europol may transfer personal data as well as a short description of their competences.
(d)The transfer of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, genetic data, biometric data for the purpose of uniquely identifying a natural person, and data concerning a person's health or data concerning a natural person’s sex life or sexual orientation by Europol will be allowed only where strictly necessary as well as reasonable and proportionate in individual cases for preventing or fighting a criminal offence, and if those data, except biometric data, supplement other personal data. The Agreement should also contain specific safeguards relating to the transfer of personal data in respect of victims of criminal offence, witnesses or other persons who can provide information concerning criminal offences, as well as minors.
(e)The Agreement will 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 will also ensure enforceable rights of administrative and judicial redress for any person whose data are processed under the agreement and guaranteeing effective remedies.
(f)The Agreement will 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.
(g)The Agreement will specify the criteria on the basis of which the reliability of the source and accuracy of the data will be indicated.
(h)The Agreement will 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 will also include the obligation of notification in the event of a personal data breach affecting data transferred under the Agreement.
(i)Onward transfers of information from competent authorities of the Federative Republic of Brazil to other authorities in Brazil, including for use in judicial proceedings, will only be allowed subject to appropriate conditions and safeguards, including prior authorisation by Europol.
(j)The same conditions as under (i) will apply to onward transfers of information from competent authorities of the Federative Republic of Brazil to authorities in a third country, with the additional requirement that such onward transfers will 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.
(k)The Agreement will 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 the Federative Republic of Brazil that use personal data/exchanged information, and to engage in legal proceedings. In particular, the independent authorities will have powers to hear complaints from individuals about the use of their personal data. Public authorities that use personal data will be accountable for complying with the rules on the protection of personal data under the Agreement.
(4)The Agreement will 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 will include provisions on the monitoring and periodic evaluation of the Agreement.
(6)The Agreement will include a provision on the entry into force and application and a provision whereby a Party may terminate or suspend it, in particular where the third country no longer effectively ensures the level of protection of fundamental rights and freedoms required under this Agreement. The Agreement will also specify whether personal data falling within its scope and transferred prior to its suspension or termination may continue to be processed. Continued processing of personal data, if permitted, will in any case be in accordance with the provisions of the Agreement at the time of suspension or termination.
(7)The Agreement will be equally authentic in the Bulgarian, Czech, Croatian, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish, and Swedish languages and will include a language clause to that effect.
