At the end of January, the Bulgarian Presidency of the Council of the EU unveiled a new draft compromise to resolve the deadlock in the trialogue negotiations on the draft regulation on how the EU bodies and institutions deal with personal data (see EUROPE 11700).
In terms of administrative data, the co-legislators agree on virtually all the measures, but the processing of ‘operational’ data by Europol, Eurojust and the future European Prosecutor’s Office has become the major sticking point (see EUROPE 11941).
On the one hand, the European Parliament wants the processing of operational data to be subject to harmonised legislation, but on the other hand, the Council is calling for these agencies to keep their own system as set out in their founding legislation.
In the compromise, seen by this newsletter, the Bulgarian Presidency has made a step towards the Parliament by suggesting the introduction of a ‘brief Chapter VIIIa’ with general measures on personal operational data processing by the EU agencies in the legal cooperation domain for criminal cases and police cooperation. This new chapter only covers Eurojust thus far.
Unlike Parliament's proposal, a similar chapter but for which no exceptions would be allowed, the presidency’s proposal states that the new chapter would be lex generalis, whereas the founding legislation for the agencies is lex specialis. In practice, this means that the special rules in the Eurojust regulation would apply in addition to the rules in the new chapter and would be able to be exempt from the new chapter and spell it out in greater detail.
The presidency suggests introducing a review clause foreseeing that by 2022, the European Commission would assess the need to add further general measures to the new chapter that would apply to all other EU bodies in the domain of legal cooperation in criminal cases and police cooperation, including Europol and the European Prosecutor’s Office.
After the last trialogue, Parliament continued to stress the need for Eurojust to be subject to the new rules since the draft reform of Eurojust’s governance model is currently the subject of other trialogue talks (see EUROPE 11929), but Parliament is reported to be more open to the idea of introducing a transition period after which the regulation would also apply to Europol and the European Prosecutor’s Office.
Eurojust says the compromise is acceptable
In a letter dated 13 February, which this newsletter has seen, the president of Eurojust, Ladislav Hamran, is in favour of the new compromise unveiled by the Bulgarian Presidency.
Parliament’s proposal, he said, would lead to a highly problematic situation for the functioning of Eurojust and the Bulgarian Presidency’s proposal was a ‘better solution’.
A final technical issue needs to be settled, which is the timeline for application of the new measures. He says it would be desirable to state in the text that as far as Eurojust is concerned, the regulation would come into force at the same time as the regulation on reform of Eurojust’s governance model, probably in 2019 rather than 25 May 2018 as foreseen. He warned that if not, there was the danger of having two separate bodies of rules operating in parallel.
The next trialogue talks on the new draft compromise will take place on 20 February. (Original version in French Marion Fontana)