The EU Council should soon be ready to authorise the opening of negotiations for cooperation agreements between Eurojust and 13 third countries, according to several recent internal EU Council documents seen by EUROPE.
The draft EU Council Decision authorising the opening of negotiations and the negotiating directives should indeed be submitted to the Member States’ ambassadors to the EU (Coreper) in the coming weeks.
In November 2020, the European Commission had recommended to the EU Council that it be given a mandate to negotiate agreements between the EU and 10 third countries — Algeria, Armenia, Bosnia and Herzegovina, Egypt, Israel, Jordan, Lebanon, Morocco, Tunisia and Turkey — on cooperation between Eurojust and the competent judicial authorities of those countries (see EUROPE 12606/13).
However, in December, Eurojust and the EU Council considered that it would be appropriate, for operational purposes, to also include Argentina, Colombia and Brazil in the list (see EUROPE 12637/15). The Commission has given its agreement, and the draft EU Council Decision therefore authorises the opening of negotiations for these 13 countries.
Negotiation guidelines and legal basis
The objective of the agreements is to provide a legal basis for cooperation between Eurojust and the competent authorities of these third countries, including the exchange of operational personal data, in order to strengthen their mutual cooperation in investigations concerning the forms of crime for which Eurojust is competent, the EU Council emphasises.
The draft negotiating directives focus on the necessary safeguards and controls for the protection of personal data. In particular, it stipulates that personal data transferred by Eurojust in accordance with these agreements must be processed “fairly, on a legitimate basis and only for the purposes for which they were transferred”.
Furthermore, the transfer by Eurojust of personal data revealing the racial background, political opinions, religious beliefs, genetic data or data concerning the health and sexual life of a person shall be authorised only if it is strictly necessary and proportionate for the purpose of preventing or combating the criminal offences referred to in these agreements and subject to appropriate safeguards.
According to the text, the agreements must also provide for a notification obligation in case of a personal data breach affecting the data transferred under the agreement.
In any case, the EU Council wants to be closely involved in the negotiations. It requests that the Commission report to it on the results of the negotiations after each negotiating session and to consult it on any important matter.
In its preamble, the draft EU Council Decision also adds as a legal basis Article 16(2) of the TFEU on the processing of personal data by EU bodies and Article 85 of the TFEU on Eurojust.
In a separate statement, the Commission contests these additions. “The Commission considers it legally incorrect that a Council Decision authorising the opening of negotiations indicates a substantive legal basis”, it writes.
It considers that the freedom of the parties with regard to the scope of the negotiations cannot be limited by the EU Council Decision authorising the opening of negotiations. The precise legal basis of the future agreement can only be determined once the content of the agreement is known and the Commission reserves all its rights in this regard, it says.
Cyprus says ‘no’ to negotiations with Turkey
The draft EU Council Decision and the negotiating directives would be acceptable, as they stand, to all Member States except Cyprus.
“Cyprus strongly disagrees with the inclusion of Turkey in the list of third States with which negotiations will be conducted. Despite the EU’s repeated calls to abide by its obligations, Turkey continues its discriminatory policy towards the Republic of Cyprus and refuse to cooperate with the latter’s authorities in all areas”, states the country in a separate statement.
However, the country’s opposition should not block the adoption of the texts, since the EU Council acts by qualified majority. (Original version in French by Marion Fontana)