COUNCIL DECISION (EU) 2022/895

of 24 May 2022

authorising the opening of negotiations on behalf of the European Union for a comprehensive international convention on countering the use of information and communications technologies for criminal purposes

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1) and (2), and Article 83(1), in conjunction with Article 218(3) and (4) thereof,

Having regard to the recommendation from the European Commission,

Whereas:

(1) On 27 December 2019, the United Nations General Assembly adopted Resolution 74/247 on countering the use of information and communications technologies for criminal purposes, deciding to establish an open-ended ad hoc intergovernmental committee of experts, representative of all regions, to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes.

(2) The Union has already adopted rules that cover some, but not all, of the elements that are likely to be considered for inclusion in the comprehensive international convention on countering the use of information and communications technologies for criminal purposes. Those rules include in particular instruments on substantive criminal law (1), on police and judicial cooperation in criminal matters (2) and on minimum standards of procedural rights (3), as well as data protection and privacy safeguards (4). In addition, as legislative proposals have already been made and discussed in additional associated domains, those proposals should also be taken into account to the extent that they aim to reinforce the effectiveness of the Union legal framework.

(3) Therefore, a comprehensive international convention on countering the use of information and communications technologies for criminal purposes may affect certain Union rules or alter their scope.

(4) In order to protect the integrity of Union law and to ensure that the rules of international law and Union law remain consistent, it is necessary that the Commission participate, alongside Member States, for matters falling within the Union competence, as defined by the Treaties, and in respect of which the Union has adopted rules, in the negotiations on a comprehensive international convention on countering the use of information and communications technologies for criminal purposes.

(5) On 22 March 2021, the Council adopted conclusions on the EU cybersecurity strategy for the digital decade. Therein, the Council recalled that several aspects of the negotiations on a comprehensive international convention on countering the use of information and communications technologies for criminal purposes could relate to the Common Foreign and Security Policy, by stressing that it ‘supports and promotes the Budapest Convention on Cybercrime and the ongoing work on the Second Additional Protocol to this Convention. Furthermore, it continues to engage in multilateral exchanges on cybercrime, including in processes related to the Council of Europe, the United Nations Office on Drugs and Crime (UNODC) and the Commission on Crime Prevention and Criminal Justice (CCPCJ), to ensure an enhanced international cooperation to counter cybercrime, including the exchange of best practices and technical knowledge and support for capacity building, while respecting, promoting and protecting human rights and fundamental freedoms’.

(6) This Decision should be without prejudice to the division of competences between the Union and its Member States as defined by the Treaties, to the participation of Member States in the negotiations for a comprehensive international convention on countering the use of information and communications technologies for criminal purposes and to any subsequent decision to conclude, sign or ratify such a convention.

(7) The negotiating directives set out in the addendum to this Decision are addressed to the Commission and may be revised and further developed if appropriate depending on the evolution of the negotiations.

(8) In accordance with the principle of sincere cooperation, the Commission and the Member States should cooperate closely during the negotiation process, including through regular contacts with the Member States’ experts and representatives in New York and Vienna.

(9) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council and delivered an opinion on 18 May 2022 (5).

(10) In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union (TEU) and to the Treaty on the Functioning of the European Union (TFEU), and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(11) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,

HAS ADOPTED THIS DECISION:

Article 1 1. The Commission is hereby authorised to open negotiations, on behalf of the Union, as regards matters falling within the Union’s competence, as defined by the Treaties, and in respect of which the Union has adopted rules, for a comprehensive international convention on countering the use of information and communications technologies for criminal purposes. 2. The negotiations shall be conducted on the basis of the negotiating directives of the Council set out in the addendum to this Decision which may be revised and further developed as appropriate depending on the evolution of the negotiations.

Article 2 The negotiations shall be conducted in consultation with the Working Party on Judicial Cooperation in Criminal Matters, which is hereby designated as the special committee within the meaning of Article 218(4) TFEU. The Commission shall regularly report to the special committee referred to in the first subparagraph on the steps undertaken pursuant to this Decision and consult it on a regular basis. Whenever so requested by the Council, the Commission shall report to it on the conduct and the outcome of the negotiations, including in writing. To the extent that the subject matter of the negotiations falls within the competences of both the Union and its Member States, the Commission and the Member States shall cooperate closely during the negotiating process, with a view to ensuring unity in the international representation of the Union and its Member States.

Article 3 This Decision and its addendum shall be made public immediately after their adoption.

Article 4 This Decision is addressed to the Commission.

Done at Brussels, 24 May 2022. For the Council The President B. LE MAIRE

(1) Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1); Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA (OJ L 218, 14.8.2013, p. 8); Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA (OJ L 123, 10.5.2019, p. 18).

(2) Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (OJ C 197, 12.7.2000, p. 1); Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA (OJ L 295, 21.11.2018, p. 138); Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53); Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams (OJ L 162, 20.6.2002, p. 1); Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328, 15.12.2009, p. 42); Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ L 130, 1.5.2014, p. 1).

(3) Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1); Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1); Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1); Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4.11.2016, p. 1); Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, p. 1); Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ L 65, 11.3.2016, p. 1).

(4) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1); Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89); Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (OJ L 337, 18.12.2009, p. 11).

(5) Opinion of 18 May 2022 (not yet published in the Official Journal).