Strengthening Europol's Mandate a Legal Assessment of The
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STUDY Requested by the LIBE committee Strengthening Europol’s mandate A legal assessment of the Commission’s proposal to amend the Europol Regulation Policy Department for Citizens’ Rights and Constitutional Affairs Directorate-General for Internal Policies PE 694.200 - May 2021 EN Strengthening Europol’s mandate A legal assessment of the Commission’s proposal to amend the Europol Regulation Abstract This study, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the LIBE Committee, aims to provide background information on the current legal framework of Europol and a legal assessment of the European Commission’s proposal of 9 December 2020 to strengthen Europol’s mandate, divided in thematic blocks. The legal assessment is accompanied by policy recommendations. This document was requested by the European Parliament's Committee on Civil Liberties, Justice and Home Affairs. AUTHORS Dr Niovi VAVOULA, Lecturer in Migration and Security, Queen Mary University of London Prof. Valsamis MITSILEGAS, Professor of European Criminal Law and Global Security, Queen Mary University of London ADMINISTRATOR RESPONSIBLE Alessandro DAVOLI EDITORIAL ASSISTANT Christina KATSARA LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies. To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Citizens’ Rights and Constitutional Affairs European Parliament B-1047 Brussels Email: [email protected] Manuscript completed in May 2021 © European Union, 2021 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. Strengthening Europol’s mandate CONTENTS LIST OF ABBREVIATIONS 5 EXECUTIVE SUMMARY 8 1. INTRODUCTION 12 1.1. Background information 12 1.2. Objective of the study 14 1.3. Methodology 14 1.4. Structure 14 2. THE EUROPOL LEGAL FRAMEWORK 15 2.1. Organisation and structure 15 2.2. Objectives and mandate 16 2.3. Tasks 17 2.3.1. Information-related tasks: Producing criminal intelligence 17 2.3.2. Operational tasks 19 2.3.3. Training, knowledge and expertise 20 2.4. Processing of personal data and data protection 20 2.5. Exchanges of personal data with partners 22 2.6. Judicial control 24 2.7. Democratic accountability and parliamentary scrutiny 24 2.8. Europol’s effectiveness 25 3. THE REFORM OF THE EUROPOL REGULATION 26 3.1. Widespread reforms without prior evaluation 26 3.2. Enhancing cooperation with third parties 26 3.2.1. Existing cooperation between Europol and third parties 27 3.2.2. Exchanges of personal data with private parties under scrutiny 27 3.2.3. Direct exchanges of personal data with private parties and exchanges of personal data in crisis situations 28 3.2.4. A paradigm shift with significant fundamental rights implications and insufficient safeguards 30 3.3. Addressing the ‘big data challenge’ 34 3.3.1. Europol’s ‘big data challenge’ and the admonishment by the EDPS 34 3.3.2. Enabling Europol to process large and complex datasets 35 3.3.3. Ensuring that an exception does not become the rule 36 3.4. Strengthening Europol’s role on fostering research and innovation 39 3.4.1. Calls for an increased role of Europol in research and innovation 39 PE 694.200 3 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs 3.4.2. Expansion of Europol’s tasks on research and innovation 39 3.4.3. Lack of clarity and insufficient data protection safeguards 41 3.5. Enabling Europol to register alerts into SIS 44 3.5.1. The relationship between SIS and Europol 44 3.5.2. Limits in information exchanges via SIS 45 3.5.3. Entry of SIS alerts by Europol 46 3.5.4. Significant fundamental rights and operational challenges 48 3.5.5. Alternative options 51 3.5.6. The compromise solution: Europol alerts related to counter-terrorism from ‘trusted’ countries 53 3.6. Enhancing cooperation with third countries 54 3.6.1. Exchange of personal data between Europol and third countries 54 3.6.2. ‘Transfers or categories of transfers of personal data’ 55 3.6.3. A small change with far reaching consequences? 55 3.6.4. Further amendments by the Council: Undoing data protection standards 56 3.7. Strengthening cooperation with the EPPO 58 3.7.1. Background information 58 3.7.2. Regulating Europol-EPPO cooperation 58 3.7.3. Alignment with the EPPO Regulation 59 3.8. Enhancing capacity to request the initiation of criminal investigations 59 3.8.1. Requesting the initiation of an investigation of cross-border crimes 59 3.8.2. Requesting the initiation of an investigation of a crime affecting a common interest covered by an EU policy 60 3.8.3. Necessity of the reform not demonstrated 60 3.9. Enhancing the data protection framework 61 3.9.1. Europol’s sui generis data protection framework 61 3.9.2. Progressive alignment with Regulation (EU) 2018/1725 61 3.9.3. Need for further alignment: Enhancing the role of the EDPS and clarifying the scope of the right to restriction 62 3.10. Other proposed reforms 63 3.11. Enhancing political accountability, parliamentary scrutiny and judicial control 64 4. POLICY RECOMMENDATIONS 70 REFERENCES 76 4 PE 694.200 Strengthening Europol’s mandate LIST OF ABBREVIATIONS ACER European Agency for the Cooperation of Energy Regulators AFSJ Area of Freedom, Security and Justice AI Artificial Intelligence AWF Analysis Work File CEPOL European Union Agency for Law Enforcement Training CJEU Court of Justice of the European Union COSI Standing Committee on Operational Cooperation on Internal Security DPA Data Protection Authority DPO Data Protection Officer EBCGA/FRONTEX European Border and Coast Guard Agency EC3 European Cybercrime Centre ECHR European Convention on Human Rights EDPS European Data Protection Supervisor EFECC European Financial and Economic Crime Centre EIS European Information System EMPACT European Multidisciplinary Platform Against Criminal Threats EMSC European Migrant Smuggling Centre ENISA European Union Agency for Cybersecurity ENLETS European Network of Law Enforcement Technology Services ENU Europol National Unit EPPO European Public Prosecutor’s Office EUIPO European Union Intellectual Property Office PE 694.200 5 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs Eu-LISA European Union Agency for the Operational Management of Large-Scale IT Systems Eurojust European Union Agency for the Criminal Justice Cooperation Europol European Union Agency for Law Enforcement Cooperation EU European Union FIU Financial Information Unit FRA European Union Agency for Fundamental Rights IOCTA Internet Organised Crime Threat Assessment IRU Internet Referral Unit JHA Justice and Home Affairs JIT Joint Investigation Team JPSG Joint Parliamentary Scrutiny Group LIBE Committee on Civil Liberties, Justice and Home Affairs MASP Multi-Annual Strategic Plans NGO Non-Governmental Organisation OAPs Operational Action Plans OLAF European Anti-Fraud Office OSP Online Service Provider PNR Passenger Name Record QUEST Querying Europol’s systems SIENA Secure Information Exchange Network Application SIRENE Supplementary Information Request at the National Entries SIS Schengen Information System SOCTA Serious and Organised Crime Threat Assessment 6 PE 694.200 Strengthening Europol’s mandate TEU Treaty on the European Union TFEU Treaty on the Functioning of the European Union UNODC United Nations Office on Drugs and Crime US United States PE 694.200 7 IPOL | Policy Department for Citizens’ Rights and Constitutional Affairs EXECUTIVE SUMMARY Background In the field of police cooperation, the European Union Agency for Law Enforcement Cooperation (Europol), the legal basis of which is Regulation (EU) 2016/794 (Europol Regulation), has a key role in supporting cooperation among the EU Member States in the area of cross-border law enforcement. On 9 December 2020, the Commission presented a proposal for a Regulation amending the Europol Regulation, aiming at enhancing Europol’s mandate. The proposal encompasses a wide-ranging revision of Europol’s tasks, which can be divided in nine themes as follows: (1) Enabling Europol to cooperate effectively with private parties; (2) Enabling Europol to process large and complex datasets; (3) Strengthening Europol’s role on research and innovation; (4) Enabling Europol to enter data into the Schengen Information System (SIS); (5) Strengthening Europol’s cooperation with third countries; (6) Strengthening Europol’s cooperation with the European Public Prosecutor’s Office (EPPO); (7) Enabling Europol to request the initiation of an investigation of a crime affecting a common interest covered by an EU policy; (8) Strengthening the data protection framework applicable to Europol; and (9) Other provisions, including enhancing political accountability and parliamentary scrutiny. Aim This study aims to provide the European Parliament with background information on Europol’s legal framework, a legal analysis of the proposal to revise the Europol Regulation and policy recommendations