EXPLANATORY MEMORANDUM

1.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. 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 Algeria, 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 protracted conflicts in Libya and the Sahel, 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.

Political context

Algeria is a partner of strategic importance to the EU, due to both its position in the Maghreb area and the role it plays at regional level and in the African Union. From a strategic point of view, Algeria is a focal point in the Mediterranean and a key actor for the stabilisation of the Sahara-Sahel region. The country is very active in the fight against terrorism within its territory.

In March 2017, the EU-Algeria Association Council adopted partnership priorities which include the reinforcement of a security dialogue. Migration and security are among the identified priorities 9 . In October 2017, the EU and Algeria held their first high level informal dialogue on counter-terrorism and regional security 10 . On this occasion the participants expressed their willingness to follow further the possibilities of strengthening their bilateral cooperation in the field of security and the fight against terrorism. In particular, participants identified critical areas where cooperation would be particularly beneficial. These are de-radicalisation; cooperation between Europol and Algeria; the fight against organised crime, including illicit trafficking of firearms and cybercrime; counter-terrorist financing; and forensic investigations.

Algeria and the EU are members of the Global Counter Terrorism Forum. One of the EU-funded regional CBRN Centres of Excellence is hosted in Algiers.

Operational needs

Based on data available for 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 Algeria is needed in particular to counter the following crime phenomena:

Terrorism: Terrorist groups operating in the region (including in Libya and the Sahel) pose a threat to both Algeria and the EU. In addition to improving the threat picture and the identification of new trends, closer cooperation including the exchange of personal data is needed to address the phenomenon of foreign terrorist fighters (including on suspects holding dual citizenship or legal residence) and effectively detect, prevent and prosecute terrorism travel, terrorist misuse of the Internet, terrorism financing as well as the nexus with organised crime.

Migrant smuggling: Organised migrant smuggling activity is present in Algeria and irregular migrants continue to be recorded as using it as a transit point to the EU, and there remains a risk too that Southern Algeria is utilised for irregular travel towards Libya. Cooperation with Algerian authorities would also be relevant to address document fraud, a crime area linked to migrant smuggling.

Illicit trafficking of firearms: The ongoing instability in the MENA region, and in particular the conflicts in Libya and Syria, considerably increased firearms trafficking in the region. This creates a threat for the security both in the short and the long term. Algeria is also on the natural route to and from the Sahel region. The controls of Algeria's borders therefore constitute a strategic priority, both to slow the flow of illicit firearms to its neighbours and prevent trafficking into the EU through container ships, ferries and smaller boats crossing the Mediterranean.

Drug trafficking: The Middle East and North Africa (MENA) is a major source, transit point, and consumer of illicit drugs. With a steady clientele base to the north, the Sahelian smuggling route to the south and the heroin route traversing it from east to west, the region both influences and is negatively influenced by illicit substance abuse and production.

Since 2000, there have been a large number of seizures of cannabis resin in Algeria. In 2016, the EU-funded Cocaine Route Programme (component AIRCOP) launched a Joint Airport Interdiction Task Force Legal Authority (JAITFs) in Algeria.

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 People's Democratic Republic of Algeria on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Algerian 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 People's Democratic Republic of Algeria on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Algerian 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 People's Democratic Republic of Algeria.

(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,

HAS ADOPTED THIS DECISION:

Article 1

ANNEX

Directives for the negotiation of an agreement between the European Union and the People's Democratic Republic of Algeria on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Algerian 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 Algeria 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 migrant smuggling, illicit trafficking of firearms 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 Algerian 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 Algeria to other authorities in Algeria 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 Algeria 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 Algeria 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.