EUU, Alm.del - 2019-20 - Bilag 897: Europols svar på spm. stillet af medlemmer af Europa Parlamentet og nationale parlamenter i JPSG

Europaudvalget 2019-20, Retsudvalget 2019-20
EUU Alm.del Bilag 897, REU Alm.del Bilag 520
Offentligt

meeting of the Joint Parliamentary Scrutiny Group on Europol

Exchange of Information by Electronic Means

Requests for clarifications

Data Processing in Europol, with an emphasis on data flows pertaining to the

Europol External Strategy and Operational Agreements with Third

Countries

EUROPEAN PARLIAMENT DELEGATION TO THE JPSG

Requests for clarification by MEP Clare DALY

Paragraph:

‘We closed our inquiry into the model working arrangement used by Europol to establish

cooperative relations with the authorities of third countries, under Article 23(4) ER. We were

concerned that the definition of “information” as comprising both personal and non personal

data would create misunderstandings and lead to unlawful transfers of personal data to these

countries. After a series of meetings with Europol staff, we agreed on a wording that would

ensure that such working arrangements are not used to transfer personal data outside of the

cases defined under Article 25 ER.’

Questions:

1. Could you please clarify

whether such a broad definition of ‘information’ used in the

existing working arrangements has actually led to unlawful transfer of personal data to

third countries?

The model working arrangement under scrutiny was only used with Israel, Japan and

New Zealand. Transfers to these countries fall under the provisions of Chapter V of the

Europol Regulation (ER), irrespective of the content of the working arrangement. In

2019, the EDPS inspected the cases where Europol used the derogations under Article

25(5) ER. This inspection has shown that, even if the procedure in place could be

improved in some aspects, Europol is very well aware of the applicable regime. As the

inquiry was still ongoing, we decided to focus the inspection on transfers notified to the

EDPS.

2. Could you please provide us with the new wording agreed between the EDPS and

Europol staff? In that regard, could you please clarify the legal value of the new wording

and to which instruments it applies? Shall it be included in future working arrangements,

or does it aim to amend existing arrangements, too?

The EDPS decided to open an inquiry because on the one hand the Working

Arrangement contained a definition of information covering both personal and non-

personal data and on the other hand it provided that in some cases exchange of persona l

data might be allowed under the conditions of Article 25(5) and (6) ER.

EUU, Alm.del - 2019-20 - Bilag 897: Europols svar på spm. stillet af medlemmer af Europa Parlamentet og nationale parlamenter i JPSG

The new version of the model Working Arrangement still contain these two provisions

but adds a specific Chapter that regulates the exchange of information. This Chapter

specifies the safeguards that apply whenever the parties exchange information and the

additional minimum safeguards when they exchange personal data, provided it is duly

authorised under the applicable legal frameworks. These provisions are meant to enable

Europol to use secure communication channels in use to transfer personal data if

necessary under the exceptional cases regulated by Article 25(5) and (6) ER and to

define ex-ante the minimum data protection safeguards that should surround these

transfers.

This should not be read as a blanket authorisation for transferring personal data to these

countries and the wording of the Working Arrangement is clear on this aspect. Europol

must assess on a case-by-case basis, when the authorisation to transfer personal data is

granted, whether the data protection safeguards contained in the working arrangement

are sufficient or whether they should be supplemented by additional safeguards.

The new wording will be used only in future working arrangements. We were not

informed of any intention of Europol to reopen the negotiations with Israel, Japan or

New Zealand to modify the content of the Working Arrangements.

For the precise wording of the new model working arrangement, we invite you to

formulate your request to Europol according to the rules established by the Working

Arrangement of the European Parliament and Europol established under Article 52 of

the Europol Regulation. The EDPS is not allowed to share this document on behalf of

Europol as the document is classified.

3. Can you provide more information on the number of exceptional transfers of personal

data pursuant to Article 25, Paragraphs 5 and 6, ER?

Since the entry into force of the Europol Regulation on 1st May 2017, the EDPS was

informed that Europol made use twice of the derogations contained in Article 25(5) ER to

transfer data to third countries (both in the course of 2019). So far we have not been

informed of any use of Article 25(6) ER to base such transfers.

Paragraph:

‘We inspected specific transfers authorised on a case-by-case basis by Europol’s Executive

Director to ensure that the process in place and the safeguards devised complied with the

Article 25(5) ER.’

Question:

4. Could you please outline briefly the specific steps involved in such an inspection and

the main findings?

The 2019 Europol inspection report details the steps, findings and recommendations of the

inspection. This document is EU-restricted, meaning that the EDPS is not allowed to publicly

discuss its content. We will however share with Mrs. Clare Daly the relevant parts of the report,

in accordance with the applicable security rules.

EUU, Alm.del - 2019-20 - Bilag 897: Europols svar på spm. stillet af medlemmer af Europa Parlamentet og nationale parlamenter i JPSG

Paragraph:

‘EU

large-scale IT systems...include personal data on particularly vulnerable persons, such as

witnesses, missing or at-risk persons in the SIS. Data subjects and their family members may

face prejudice or danger in their country of o rigin or another third country based on

information kept in these systems… Utmost caution should remain regarding any

communication of data from EU large-scale IT systems to third countries, including where it is

further processed and exchanged as intelligence.’

Questions:

5. Does the EDPS have particular and specific concerns about the use of data from large-

scale IT systems by Europol last year that have given rise to this comment? Or is the

EDPS simply flagging it as an area requiring caution going forward? Is the current

framework governing the communication of data from large-scale IT systems by

Europol to third countries sufficiently robust, in the view of the EDPS, to ensure that

vulnerable persons will not be put at risk by the transfer of their data (including

unnecessary or extraneous information about them) to third countries?

The topic was indeed flagged to mark the overall sensitivity of the use of personal data from

large-scale IT databases. Europol has a unique position and status in relation to these systems,

which remains one of the focal points of the EDPS.

While the EDPS has expressed its concerns in the past around the myriad of legal instruments

applicable in this field, which renders it opaque to data subjects, the individual instruments do

share strict limits on any communication of their data to third countries. Together with the

Europol Regulation, the framework appears adequate to mitigate related risks for vulnerable

persons. However, this is to be reassessed continuously in light of their use in practice.

Paragraph:

Without a holistic view including of the intake of personal data from within the EU, the full

scope of risks for data subjects might be overlooked. The interplay between internal access to

EU large-scale IT systems and external exchanges with third countries should always be kept

in mind, not in the least for any future project in the framework of interoperability,’

Questions:

6. Does the EDPS have specific recommendations in this regard, in addition to the

previously published opinions? Is the EDPS satisfied that their recommendations in this

regard are being kept in mind and followed in this context?

This point was flagged as well by the EDPS in response to the recent adoption of legal

instruments creating new large scale information systems, revising existing ones or establishing

their interconnection, which impact Europol’s

personal data

processing activities. Considering

that these instruments are quite recent and were to some extent negotiated in parallel, close

scrutiny also as regards their future implementation will be needed to ensure that there are no

gaps, including on potential transfers of the data accessed by Europol to third countries.