EDPS Opinion 52/2023 on two Proposals for Council Decisions on the signing and conclusion of Agreement between the EU and Armenia on cooperation between Eurojust and the competent authorities for judicial cooperation in criminal matters of Armenia

11 December 2023

Opinion 52/2023

on two Proposals for Council Decisions on the signing and conclusion of Agreement between the EU and Armenia on cooperation between Eurojust and the competent authorities for judicial cooperation in criminal matters of Armenia

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The European Data Protection Supervisor (EDPS) is an independent institution of the EU, responsible under Article 52(2) of Regulation 2018/1725 ‘With respect to the processing of personal data… for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to data protection, are respected by Union institutions and bodies’, and under Article 52(3)‘… for advising Union institutions and bodies and data subjects on all matters concerning the processing of personal data’.

Wojciech Rafał Wiewiórowski was appointed as Supervisor on 5 December 2019 for a term of five years. Under Article 42(1) of Regulation 2018/1725, the Commission shall ‘following the adoption of proposals for a legislative act, of recommendations or of proposals to the Council pursuant to Article 218 TFEU or when preparing delegated acts or implementing acts, consult the EDPS where there is an impact on the protection of individuals’ rights and freedoms with regard to the processing of personal data’.

This Opinion relates to the Proposal for a Council Decision on the signing, on behalf of the Union, of an Agreement between the European Union, of the one part, and the Republic of Armenia, of the other part, on cooperation between the European Union Agency for Criminal Justice Cooperation (Eurojust) and the competent authorities for judicial cooperation in criminal matters of the Republic of Armenia , and the Proposal for a Council Decision on the conclusion of an Agreement between the European Union, of the one part, and the Republic of Armenia, of the other part, on cooperation between the European Union Agency for Criminal Justice Cooperation (Eurojust) and the competent authorities for judicial cooperation in criminal matters of the Republic of Armenia .

This Opinion does not preclude any future additional comments or recommendations by the EDPS, in particular if further issues are identified or new information becomes available. Furthermore, this Opinion is without prejudice to any future action that may be taken by the EDPS in the exercise of his powers pursuant to Regulation (EU) 2018/1725. This Opinion is limited to the provisions of the Proposals and the future Agreement that are relevant from a data protection perspective.

Executive Summary

On 14 November 2023, the European Commission issued two Proposals for Council Decisions, under Article 16(2), Article 85 and Article 218(5) of the Treaty on the Functioning of the European Union, one on the signing and other on the conclusion, on behalf of the Union, of an Agreement between the European Union, of the one part, and the Republic of Armenia, of the other part, on cooperation between the European Union Agency for Criminal Justice Cooperation (Eurojust) and the competent authorities for judicial cooperation in criminal matters of the Republic of Armenia. The proposals are accompanied by an Annex containing the agreed text of the Agreement.

The objective of the future Agreement is to enhance judicial cooperation between Eurojust and the competent authorities of Armenia by allowing the transfer of personal data between Eurojust and the competent authorities of Armenia, in order to support and strengthen their cooperation in investigating and prosecuting serious crime, in particular organised crime and terrorism, while ensuring appropriate safeguards with respect to fundamental rights and freedoms of individuals, including privacy and the protection of personal data.

The EDPS has already had the opportunity to comment on the exchange of personal data between Eurojust and the competent authorities of Armenia in his Opinion 10/2020, where the EDPS provided several recommendations in order to clarify and, where necessary, further develop the safeguards and controls with respect to protection of personal data. The EDPS notes with satisfaction that his recommendations have been taken into account and that the provisions of the Agreement are consistent with the provisions of Chapter IX of EUDPR on the processing of operational personal data by union bodies, offices and agencies. As a result, it could be concluded that the presented Agreement between the EU and Armenia adduces adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.

At the same time, in this Opinion, the EDPS provides some recommendations, in particular with regards to onward transfers of personal data, right to erasure of personal data, and the review and evaluation of the future Agreement, aimed at facilitating the practical implementation of the future Agreement by Eurojust and the competent authorities of Armenia.

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THE EUROPEAN DATA PROTECTION SUPERVISOR,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 (‘EUDPR’) , and in particular Article 42(1) thereof,

HAS ADOPTED THE FOLLOWING OPINION:

1. Introduction

1. Regulation (EU) 2018/1727 (‘Eurojust Regulation’) lays down specific rules regarding transfers of personal data by Eurojust to third countries and international organisations. Article 56(2) thereof lists a number of legal grounds, based on which Eurojust could lawfully transfer data to authorities of third countries, such as an adequacy decision of the Commission in accordance with Article 36 of Directive (EU) 2016/680 finding that the third country ensures an adequate level of protection ; a cooperation agreement allowing for the exchange of operational personal data concluded before 12 December 2019 between Eurojust and the given third country or international organisation; or an international agreement between the Union and the third country or international organisation pursuant to Article 218 TFEU that provides for adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.

2. On 19 November 2020, the Commission adopted a Recommendation for a Council Decision authorising the opening of negotiations for Agreements between the European Union (EU) and Algeria, Armenia, Bosnia and Herzegovina, Egypt, Israel, Jordan, Lebanon, Morocco, Tunisia and Turkey on cooperation between the European Union Agency for Criminal Justice Cooperation (Eurojust) and the competent authorities for judicial cooperation in criminal matters of those third States .

3. The European Data Protection Supervisor issued an Opinion regarding the Recommendation on 17 December 2020. The Council granted the authorisation for the opening of the negotiations on 1 March 2021, adding also Argentina, Brazil and Colombia to the list, and adopted a set of negotiating directives .

4. The negotiations with Armenia began in April 2022 and a preliminary agreement was reached in October 2022 . Consequently, on 14 November 2023, the Commission issued the Proposal for a Council Decision on the signing, on behalf of the Union, of an Agreement between the European Union, of the one part, and the Republic of Armenia, of the other part, on cooperation between the European Union Agency for Criminal Justice Cooperation (Eurojust) and the competent authorities for judicial cooperation in criminal matters of the Republic of Armenia and the Proposal for a Council Decision on the conclusion of an Agreement between the European Union, of the one part, and the Republic of Armenia, of the other part, on cooperation between the European Union Agency for Criminal Justice Cooperation (Eurojust) and the competent authorities for judicial cooperation in criminal matters of the Republic of Armenia (‘the Proposals’), both accompanied by its respective Annexes containing the final negotiated text of the Agreement.

5. The objective of the future Agreement is to enhance judicial cooperation between Eurojust and the competent authorities of Armenia by allowing the transfer of personal data between Eurojust and the competent authorities of Armenia, in order to support and strengthen the action by the competent authorities of the Member States of the Union and those of Armenia, as well as their cooperation in investigating and prosecuting serious crime, in particular organised crime and terrorism, while ensuring appropriate safeguards with respect to fundamental rights and freedoms of individuals, including privacy and the protection of personal data .

6. The envisaged Agreement builds upon the EU-Armenia Comprehensive and Enhanced Partnership Agreement (CEPA), which entered into force on 31 March 2021. One of the objectives of CEPA is to enhance cooperation in the area of freedom, security and justice, with the aim of reinforcing the rule of law and respect for human rights and fundamental freedoms, including through closer cooperation between Eurojust and the competent authorities of the Republic of Armenia .

7. The present Opinion of the EDPS is issued in response to a consultation by the European Commission of 14 November 2023, pursuant to Article 42(1) of EUDPR. The EDPS welcomes the reference to this consultation in Recital 9 of the Proposals.

2. General remarks

8. The EDPS does not dispute the need for cooperation between Eurojust and judicial authorities of third countries involved in the investigation and prosecution of serious crimes, which does not stop at Union borders. In this regard, Eurojust should be able to cooperate and exchange personal data with them to the extent necessary for the accomplishment of its tasks .

9. However, it must be borne in mind that transfers of personal data gathered in the context of criminal investigations envisaged under the future Agreement are liable to have a significant impact on the lives of the individuals concerned, as they will be used in prosecution cases in the receiving country under its national law. Consequently, the necessity and proportionality of the envisaged processing need to be assessed in accordance with Article 52(1) of the Charter .

10. In particular, transfers of personal data between Eurojust and the authorities competent for judicial cooperation in criminal matters of Armenia constitute an interference with individuals’ rights to privacy and data protection guaranteed by Articles 7 and 8 of the Charter. Therefore, the future Agreement must ensure that the derogations and limitations to rights to privacy and data protection, including in relation to fighting crime, apply only in so far as is strictly necessary . In that regard, the EDPS welcomes Article 10(5) of the future Agreement, obliging the Parties to comply with the safeguards provided for in the Agreement regardless of the nationality of the data subject concerned and without discrimination.

11. As mentioned above, the EDPS has already had the opportunity to comment on the exchange of personal data between Eurojust and the competent authorities of Armenia in his Opinion 10/2020, where the EDPS provided several recommendations in order to clarify and, where necessary, further develop the safeguards and controls with respect to protection of personal data. The EDPS notes with satisfaction that his recommendations have been taken into account and that the future Agreement provides for similar data protection safeguards as provided for in Chapter IX of EUDPR with regard to processing of operational personal data by Union bodies, offices and agencies when carrying out activities which fall within the scope of Chapter 4 or Chapter 5 of Title V of Part three TFEU .

12. As a result, it could be concluded that the presented Agreement between the Union and Armenia adduces adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.

13. At the same time, the EDPS considers that certain safeguards with respect to the protection of personal data, while already provided for in the future Agreement, may still benefit from additional precision and clarity. In this regard, the subsequent comments by the EDPS aim at facilitating the practical implementation of the Agreement by Eurojust and the competent authorities of Armenia.

3. Onward transfers of personal data received

14. The EDPS recalls that, in accordance with Article 56(6) and recital 45 of the Eurojust Regulation, when personal data are transferred from Eurojust to a third country, the level of protection of natural persons ensured by the Eurojust Regulation and by Union law must not be undermined. This requirement is fully valid also in case of a potential onward transfer of personal data received from Eurojust by the competent authorities of Armenia to other Armenian authorities or to the authorities of a third country or to an international organisation .

15. The EDPS therefore welcomes Article 13 of the future Agreement, which prohibits further transferring the personal data received from Eurojust to other Armenian authorities or to the authorities of a third country or to an international organisation, unless such onward transfer is carried out under certain strictly limited conditions.

16. The EDPS welcomes paragraph 1(c) of Article 13, which lays down that the possible onward transfer to other Armenian authorities is subject to the same conditions and safeguards as those applying to the original transfer.

17. In that regard, although this is not explicitly mentioned in paragraph 2 of the same Article, regulating onward transfers to the authorities of a third country or to an international organisation, the EDPS expects that, when giving its explicit prior authorisation pursuant to paragraph 2(b), Eurojust will assess and clearly indicate whether the conditions and safeguards applying to the original transfer should also apply to the onward transfer, similarly to the explicit obligation in paragraph 1(c) of Article 13.

4. Right to access, rectification, erasure or restriction

18. The EDPS recalls that the right of access and the right to rectification are essential elements of the right to data protection under Article 8(2) of the Charter. Furthermore, as regards Article 7 of the Charter, the European Court of Justice has held that “the fundamental right to respect for private life, enshrined in that article, means that the person concerned may be certain that his personal data are processed in a correct and lawful manner. In order to carry out the necessary checks, that person must have a right of access to the data relating to him which is being processed” .

19. The EDPS therefore welcomes the inclusion, under Articles 14 and 15 of the future Agreement, of a right to access as well as rectification, erasure or restriction. With regards specifically to the right to erasure, the EDPS positively notes that paragraph 2 of Article 15 prescribes that the Parties must provide for any data subject to have the right to obtain from the authorities processing personal data transferred under the Agreement the erasure of personal data concerning the data subject where the processing of the personal data infringes data protection principles (Article 10(1) of the Agreement) or rules on automated processing of personal data (Article 12 thereof), or where the personal data must be erased in order to comply with a legal obligation to which the authorities are subject.

20. The EDPS considers that even though the provision of Article 15(2) refers explicitly only to infringements of Articles 10(1) or Article 12 of the Agreement as grounds enabling the data subject to obtain erasure of personal data, this list is not exhaustive. In particular, it is the understanding of the EDPS that the infringement of Article 10(1)(a) - lawfulness of processing of personal data - should be interpreted broadly, thus covering possible infringements of other provisions of the future Agreement, such as Article 10(6) and Article 11.

5. Review and evaluation of the Agreement

21. The EDPS welcomes Article 31 of the future Agreement that provides for the regular review and evaluation of the Agreement and specifically envisages the participation of “relevant experts on data protection” in the respective review teams. To this context, the EDPS recommends the involvement in the review and evaluation of the Agreement of representatives of the independent data protection authorities of the EU and of Armenia.

6. Conclusions

22. In light of the above, the EDPS makes the following recommendations: (1) in case of onward transfers to the authorities of a third country or an international organisation, when giving its prior explicit authorisation, Eurojust to assess and clearly indicate whether the conditions and safeguards applying to the original transfer should also apply to the onward transfer, similarly to the explicit obligation from paragraph 1(c) of Article 13 of the future Agreement. (2) the infringement of Article 10(1)(a) - lawfulness of processing of personal data - to be interpreted broadly, thus providing the data subjects with the right to obtain from the authorities processing personal data transferred under the Agreement the erasure of their personal data in case of infringements of other provisions of the future Agreement as well, such as Article 10(6) and Article 11. (3) to involve the independent data protection authorities of the EU and of Armenia in the future reviews and evaluations of the Agreement. Brussels, 11 December 2023 (e-signed) Wojciech Rafał WIEWIÓROWSKI 8