Abstract
This Chapter aims at outlining and discussing the elements of the new Eurojust Decision which are relevant from the data protection viewpoint or which have consequences for the activities of the independent data protection supervisory authority to Eurojust, its Joint Supervisory Body.
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- 1.
Council Decision of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime, Official Journal L63, (6 March 2002): 1.
- 2.
Eurojust dealt with 202 cases in 2002 and with 1193 in 2008. 723 cases had been registered until 30 June 2009.
- 3.
See statement of Michael Kennedy, president of the College of Eurojust, in the preamble to the annual report 2004, available at www.eurojust.europa.eu under Press&PR.
- 4.
See the preamble of Jose Luis Lopes da Mota, president of the College of Eurojust, to the annual report 2007.
- 5.
Communication from the Commission to the Council and the European Parliament of 23 October 2007 on the role of Eurojust and the European Judicial Network in the fight against organised crime and terrorism in the European Union, COM(2007) 644 final—Not published in the Official Journal.
- 6.
The outcome of the seminar can be found in the general report on the seminar, Council document 15542/07. The Eurojust annual report 2007 also contains a whole section on the Lisbon seminar.
- 7.
Eurojust can act through its College, composed of 27 National Members, one seconded from each member state in accordance with its legal system being a prosecutor, judge or police officer of equivalent competence, or through the individual National Members. National Members are subject to the national law as their status and are also paid by the Member States, not being EU officials but linked to their national authorities. The nature and extent of the judicial powers of the National Members is, as stated in Article 9 of the Eurojust Decision of 2002, defined by each Member State, leading in practice to serious differences of powers within the various Member States.
- 8.
The fourteen countries in question were Belgium, Czech Republic, Estonia, Spain, France, Italy, Luxembourg, Netherlands, Austria, Poland, Portugal, Slovenia, Slovakia and Sweden, see Council document DS 1092/07.
- 9.
Council Decision 2009/426/JHA of 16 December 2008, published on the Official Journal L138 (4 June 2009): 14.
- 10.
Council Framework Decision 2008/977/JHA of 27 November 2008, Official Journal 350 (30 December 2008): 60.
- 11.
See for further information on the discussions regarding the Framework Decision the opinions of 19 December 2005, 29 November 2006 and 27 April 2007 of the European Data Protection Supervisor on this instrument (the third opinion is published in the Official Journal C139 (23 June 2007): 1; the first Opinion can be found in the Official Journal C47 (25 February 2006): 27; the second Opinion is available on EDPS website: www.edps.europa.eu) as well as the article by Alonso Blas, D.2009. First pillar and third pillar: Need for a common approach on data protection? In Reinventing data protection? eds. S. Gutwirth et al., 225–237. Dordrecht: Springer.
- 12.
Rules of procedure on the processing and protection of personal data at Eurojust, adopted by the College of Eurojust unanimously in October 2004 and by the Council in Brussels in February 2005, Official Journal C68 (19 March 2005): 1. These rules are often referred to as the “Eurojust data protection rules”.
- 13.
Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences, Official Journal L253/22 (29 September 2005).
- 14.
Council framework decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA), Official Journal L190/1, (18 July 2002).
- 15.
Article 17.7 of the EAW Decision.
- 16.
The text of the EAW form in all languages can be found at: http://www.consilium.europa.eu/cms3_Applications/applications/PolJu/details.asp?lang=EN&cmsid=545&id=134.
- 17.
Opinion delivered on 2 September 2008 (Rapporteur Madame Weber).
- 18.
Opinion of the European Data Protection Supervisor of 25 April 2008 on the review of the Eurojust Decision.
- 19.
See the Eurojust annual report 2007 for a summary of the deliberations during the Lisbon seminar.
- 20.
Article 13.2 prescribes that the transmission of information to Eurojust shall be interpreted as a request for the assistance of Eurojust in the case concerned only if so specified by a competent authority.
- 21.
The CMS regularly checks for possibly identical entities. If, for instance, two persons with the same name, surname, date of birth and place of birth are detected, while belonging to different temporary work files, a possible link between cases is suggested. The working groups owning the entities will be notified and informed about the entities and the respective temporary work file. The notification will reveal no personal data. Working groups involved are free to decide which information they disclose to the other working group to confirm or deny the existence of a link. The confirmation or rejection of a link is stored in the system. In addition to connecting cases through a link discovery, the CMS also allows users to manually connect two cases.
- 22.
Official Journal L253/22 (29 September 2005).
- 23.
Working groups and the DPO are automatically notified about temporary work files that contain data that is about to expire. The data owner then takes a reasoned decision (to be recorded in the system) to retain, where needed, or delete the data.
- 24.
See Article 16 of the Eurojust Decision of 2002.
- 25.
Official Journal C68, (19 March 2005): 1.
- 26.
Articles 23–27.
- 27.
The concept of the national coordination system is introduced in the new Article 12 of the Decision. Its objective is ensure coordination of the work done by the national correspondents for Eurojust, the national correspondents for Eurojust for terrorism matters, the national correspondents and contact points of the EJN, the national members or contact points of the Network for Joint Investigation Teams and other networks such as the ones on genocide and war crimes created by other Council Decisions.
- 28.
The same principle is also included in Article 12.5(a) of the Decision.
- 29.
A revised Council Decision on the European Judicial Network has been negotiated and adopted at the same time than the new Eurojust Decision: Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network, Official Journal L348 (24 December 2008): 130. See for more details: http://www.ejn-crimjust.europa.eu/.
- 30.
Article 26.3 of the data protection rules reads as follows: Each National Member of Eurojust shall document and inform the Data Protection Officer regarding the access policy he or she has authorised within his or her national desk regarding case-related files. In particular, National Members shall ensure that appropriate organisational arrangements are made and complied with and that proper use is made of the technical and organisational measures put at their disposal by Eurojust.
- 31.
Limitations could be included however by allowing only “read-only” access, but still to the whole set of data accessible to the desk.
- 32.
Article 27(a) of the new Decision introduces the possibility for the College of Eurojust to post liaison magistrates to a third State, subject to an agreement as referred to in Article 26(a) with that third State, for the purpose of facilitating judicial cooperation with third States in the cases in which Eurojust is providing assistance in accordance with the Decision.
- 33.
See Article 26.4 of the data protection rules.
- 34.
The European Anti Fraud Office. See for more information: http://ec.europa.eu/anti_fraud/index_en.html.
- 35.
Frontex is an EU agency based in Warsaw, created as a specialised and independent body tasked to coordinate the operational cooperation between Member States in the field of border security. The activities of Frontex are intelligence driven. Frontex complements and provides particular added value to the national border management systems of the Member State. See for more information: http://www.frontex.europa.eu/.
- 36.
Eurojust has in place a cooperation agreement with Europol, signed on 9 June 2004, as well as a Practical Agreement on Arrangements for Cooperation with OLAF, the European Anti-Fraud Office, signed on 24 September 2008.
- 37.
So far Eurojust has agreements in place with Norway (2005), Iceland (2005), the United States of America (2006), the Republic of Croatia (2007), Switzerland and the former Yugoslav Republic of Macedonia (both concluded in 2008). Eurojust has Memoranda of Understanding in place, not implying any exchange of personal data, with the European Judicial Training Network (2008) and IberRed (2009).
- 38.
The Model Agreement, used by Eurojust as a starting point of every negotiation, includes already two provisions of relevance in that respect:
Article 17: Regular consultations
The Parties shall consult each other regularly, and at least once a year, on the implementation of the provisions of this Agreement. In particular, regular exchanges of views shall take place with regard to the implementation and further developments in the field of data protection and data security.
To that end the Data Protection Officer of Eurojust and the Data Protection Authority of (…) will report to each other at least once a year on the state of implementation of the data protection provisions of the Agreement.
Article 18: Oversight of implementation
The execution and implementation of this Agreement by the Parties shall be subject to oversight in accordance with their applicable law and procedures. The Parties shall utilise their respective administrative, judicial or supervisory bodies that will ensure an appropriate level of independence of the oversight process.
- 39.
Opinion delivered on 2 September 2008 (Rapporteur Madame Weber).
- 40.
See in that regard Article 28.4 of the Eurojust data protection rules. Official Journal C68 (19 March 2005): 1.
- 41.
Article 8.5 of the Eurojust Model Agreement contains the following clause: The Parties shall keep a record of the transmission and receipt of data communicated under this Agreement.
- 42.
Regulation 2001/264/EC of 19 March 200, Official Journal L101 (11 April 2001): 1.
- 43.
College Decision 2007–2010 adopting the security rules of Eurojust.
- 44.
In practice a good part of the Member States have appointed Data Protection Commissioners, as people with a clear independent status. The combination of judges, with expertise in the judicial field, with data protection experts has shown to be fruitful and efficient in this body.
- 45.
See Article 23.1 of the Eurojust Decision.
- 46.
See Article 23.3 of the Eurojust Decision of 2002.
- 47.
Opinion of the Joint Supervisory Body of Eurojust on the opportunity to amend Article 23 of the Eurojust Decision regarding the composition of this body, of 3 March 2008.
- 48.
The length of the appointment to the JSB has been modified accordingly in paragraph 1 of the article from the initial 18 months of participation to the troika to three years.
- 49.
In accordance with the last sentence of the new Article 23.3, appointees wishing to be elected shall present their candidacy in writing to the Secretariat of the Joint Supervisory Body ten days before the meeting in which the election is to take place.
- 50.
Act of the Joint Supervisory Body of 2 March 2004 laying down its rules of procedure, Official Journal C86 (6 April 2004): 1.
- 51.
The need to amend the rules of procedure of the JSB is implied in the new Recital 16 of the preamble which indicates that the rules on the JSB should facilitate its functioning.
- 52.
Not yet published at the time of writing this article.
- 53.
As a result of this first election, the new troika is composed as follows: Ms Lotty Prussen, appointee from Luxembourg, will be member of the JSB troika for one year and is chair during this one year mandate; Mr Hans Frennered, appointee from Sweden, will be member of the JSB troika for two years and will be chair during his second year of mandate and Mr Carlos Campos Lobo, appointee from Portugal, will be member of the JSB troika for three years and will be chair during his third year of mandate.
- 54.
The Secretariat established by Council Decision 2000/641/JHA of 17 October 2000 establishing a secretariat for the joint supervisory data protection bodies set up by the Convention on the establishment of the European Police Office (Europol Convention), the Convention on the Use of Information Technology for Customs Purposes and the Convention implementing the Schengen Agreement on the gradual abolition of checks at the common borders (Schengen Convention), Official Journal L271 (24 October 2000): 1.
- 55.
Opinion of the European Data Protection Supervisor of 25 April 2008 on the review of the Eurojust Decision.
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Alonso Blas, D. (2010). The New Council Decision Strengthening the Role of Eurojust: Does It also Strengthen Data Protection at Eurojust?. In: Gutwirth, S., Poullet, Y., De Hert, P. (eds) Data Protection in a Profiled World. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-8865-9_11
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