Summary of the Opinion of the European Data Protection Supervisor on the negotiating mandate to conclude an international agreement on the exchange of personal data between Europol and Bolivian law enforcement authorities

(2023/C 217/09)

(The full text of this Opinion can be found in English, French and German on the EDPS website https://edps.europa.eu)

On 9 March 2023 the European Commission issued a Recommendation for a Council decision authorising the opening of negotiations for an agreement between the European Union and the Plurinational State of Bolivia on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Bolivian authorities competent for fighting serious crime and terrorism (1) (‘the Recommendation’).

The objective of the Recommendation is to open negotiations with Bolivia with the purpose of signing and concluding an international agreement enabling the exchange of personal data between Europol and the Bolivian authorities competent for fighting serious crime and terrorism. The Annex to the Recommendation lays down the Council’s negotiating directives to the Commission, i.e. the objectives the latter should aim to achieve on behalf of the EU in the course of these negotiations.

Transfers of personal data gathered in the context of criminal investigations and further processed by Europol to produce criminal intelligence are liable to have a significant impact on the lives of the individuals concerned. For that reason, the international agreement must ensure that the limitations to the rights to privacy and data protection in relation to the fight against serious crime and terrorism apply only in so far as is strictly necessary.

The EDPS positively notes that the Commission has established by now, based also on a number of the recommendations from the previous EDPS Opinions on this matter, a well-structured set of objectives (negotiating directives), incorporating fundamental data protection principles, which the Commission aims to achieve on behalf of the EU in the course of international negotiations to conclude agreements on the exchange of personal data between Europol and third country law enforcement authorities.

In this regard, the recommendations in this Opinion are aimed at clarifying and, where necessary, further developing the safeguards and controls in the future Agreement between the EU and Bolivia with respect to the protection of personal data. In this context, the EDPS recommends that the future Agreement explicitly lays down the list of the criminal offences regarding which personal data could be exchanged; provides for a periodic review of the need for storage of the transferred personal data as well as other appropriate measures ensuring that the time limits are observed; adduces additional safeguards as regards the transfer of special categories of data; ensures that no automated decision based on the received data under the Agreement would take place without the possibility for a human being to intervene in an effective and meaningful way; lays down clear and detailed rules regarding the information that should be made available to the data subjects.

The EDPS recalls that, pursuant to Article 8(3) of the Charter, the control by an independent authority is an essential element of the right to the protection of personal data. The EDPS therefore recommends to the Commission to pay special attention, during the negotiations to the oversight by independent public bodies responsible for data protection with effective powers vis-a-vis the law enforcement and other competent authorities of Bolivia that will use the transferred personal data. In addition, in order to ensure proper implementation of the Agreement, the EDPS also suggests that the Parties exchange on a regular basis information on the exercise of rights by data subjects as well as relevant information about the use of the oversight and redress mechanisms related to the application of the Agreement.

1. INTRODUCTION

The objective of the Recommendation is to open negotiations with the Plurinational State of Bolivia (hereinafter ‘Bolivia’) with the purpose of signing and concluding an international agreement enabling the exchange of personal data between Europol and the Bolivian authorities competent for fighting serious crime and terrorism. The Annex to the Recommendation lays down the Council’s negotiating directives to the Commission, i.e. the objectives the latter should aim to achieve on behalf of the EU in the course of these negotiations.

In the Explanatory Memorandum of the Recommendation the Commission assesses that Latin America’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 (2). The 2021 EU Serious and Organised Crime Threat Assessment (‘SOCTA’) by Europol 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 (3).

Most of the drugs seized in the EU is transported by sea, primarily in maritime shipping containers (4), and shipped to the EU directly from the countries of production, as well as from neighbouring countries of departure in Latin America (5). Bolivia is the third largest coca-cultivating country globally, accounting for 12,5 % of global cultivation (6).

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. In this sense, in December 2022, Bolivia was included in Europol’s list of priority partners with which the agency may conclude Working Arrangements (7).

Bolivia has also been identified as a key international partner to reduce the global supply of cocaine by the EMCDDA.

The present Opinion of the EDPS is issued in response to a consultation by the European Commission of 9 March 2023, pursuant to Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council (8) (EUDPR). The EDPS welcomes that he has been consulted on the Recommendation and expects a reference to this Opinion to be included in the preamble of the Council Decision. In addition, the EDPS welcomes the reference, in Recital 4 of the Recommendation, to Recital 35 of the Regulation (EU) 2016/794 of the European Parliament and of the Council (9) (‘Europol Regulation’), which provides that the Commission should be able to consult the EDPS also during the negotiations of the Agreement and, in any event, before the Agreement is concluded.

The EDPS recalls that he has already had the opportunity to comment in 2018 and in 2020 on the exchange of personal data between Europol and the law enforcement authorities of third countries on the basis of Europol Regulation (10).

10.

In this context, the recommendations in this Opinion are aimed at clarifying and, where necessary, further developing the safeguards and controls in the future Agreement between the EU and Bolivia with respect to the protection of personal data. They are without prejudice to any additional recommendations that the EDPS could make on the basis of further available information and the provisions of the draft agreement during the negotiations.

11. CONCLUSIONS

38.

In light of the above, the EDPS recommends:

(1)	that the future Agreement excludes explicitly transfers of personal data obtained in a manifest violation of human rights,

(2)	that the future Agreement explicitly lay down the list of the criminal offences regarding which personal data could be exchanged and that the transferred personal data must be related to individual cases,

(3)	that the future Agreement provide for a periodic review of the need for storage of the transferred personal data as well as other appropriate measures ensuring that the time limits are observed,

(4)	to ensure the future Agreement adduce the safeguards provided for in Article 30 of the Europol Regulation,

(5)	to ensure that security measures cover data processed in the place of destination, as well as in transit,

(6)	to ensure that no automated decision based on the received data under the Agreement would take place without the possibility for a human being to intervene in an effective and meaningful way,

(7)	that the future Agreement lays down clear and detailed rules regarding the information that should be made available to the data subjects,

(8)

the Commission to pay special attention during the negotiations to draft directive 3(k) concerning the oversight by independent public bodies responsible for data protection with effective powers vis-a-vis the law enforcement and other competent authorities of Bolivia that will use the transferred personal data,

(9)	for the purposes of this review of the Agreement, that the Parties exchange on a regular basis information on the exercise of rights by data subjects and relevant information about the use of the oversight and redress mechanisms related to the application of the Agreement.

Brussels, 3 May 2023.

Wojciech Rafał WIEWIÓROWSKI

(1) COM(2023) 130 final.

(2) See page 2 of the Explanatory memorandum of the Proposal.

(3) European Union Serious and Organised Crime Threat Assessment: A corrupt Influence: The infiltration and undermining of Europe’s economy and society by organised crime, page 12.

(4) Europol and the global cocaine trade, available at https://www.emcdda.europa.eu/publications/eu-drug-markets/cocaine/europe-and-global-cocaine-trade_en.

(5) Europol and the global cocaine trade, available at https://www.emcdda.europa.eu/publications/eu-drug-markets/cocaine/europe-and-global-cocaine-trade_en.

(6) EU Drug Market: Cocaine p.10, available at EU Drug Market: Cocaine | www.emcdda.europa.eu.

(7) Explanatory memorandum, p. 2.

(8) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

(9) Regulation (EU) 2016/794 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).

(10) See EDPS Opinion 2/2018 on eight negotiating mandates to conclude international agreements allowing the exchange of data between Europol and third countries, adopted on 14 March 2018, https://edps.europa.eu/sites/edp/files/publication/18-03-19_opinion_international_agreements_europol_en.pdf and EDPS Opinion 1/2020 on the negotiating mandate to conclude an international agreement on the exchange of personal data between Europol and New Zealand law enforcement authorities, issued on 31 January 2020 https://edps.europa.eu/sites/default/files/publication/20-01-31_opinion_recommendation_europol_en.docx.pdf