authorising the opening of negotiations to amend the Agreement between the European Union and Japan on mutual legal assistance in criminal matters

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

The Agreement between the European Union and Japan on mutual legal assistance in criminal matters aims to establish more effective cooperation between the European Union and Japan in that area. Under the Agreement, the requested state shall, upon the request by the requesting state, provide legal assistance in connection with investigations, prosecutions and other proceedings (including judicial proceedings) in criminal matters. The scope of the Agreement includes modern cooperation tools such as videoconferencing and the exchange of bank information. It is the EU’s first such ‘self‑standing’ agreement with another country. No individual Member State had previously concluded a separate similar agreement with Japan.

The Data Protection Law Enforcement Directive (LED) entered into force on 6 May 2016 and Member States were to transpose it into national law by 6 May 2018 (Article 63(1) LED). Compared with the Framework Decision that it repealed and replaced, the LED is a much more comprehensive and complete horizontal data protection instrument. It applies to the domestic and cross-border processing of personal data by competent authorities for the purposes of preventing, investigating, detecting or prosecuting criminal offences and executing criminal penalties, including safeguarding against and preventing threats to public security (Article 1(1) LED).

Article 62(6) LED requires the Commission, by 6 May 2019, to review other EU legal acts that regulate the processing of personal data for law enforcement purposes, in order to assess the need for alignment with the LED and, where appropriate, propose amendments so as to ensure a consistent approach to the protection of personal data.

On 24 June 2020, the Commission fulfilled that obligation by adopting a Communication, Way forward on aligning the former third pillar acquis with data protection rules. It listed 10 legal acts that should be aligned with the LED and set out a timetable for doing so. It identified the Agreement with Japan as one of the acts that require targeted amendment to ensure full alignment with the LED and indicated that it would make a recommendation to the Council in the first quarter of 2021. This is the recommendation.

•Consistency with existing policy provisions in the policy area

The purpose of this initiative is to align the data protection rules in the Agreement with the principles and rules laid down in the LED, in order to provide a strong and coherent data protection framework for the purposes of the Agreement.

•Consistency with other Union policies

n/a

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis

This proposal is based on Article 218(3) and (4) of the Treaty on the Functioning of the European Union (TFEU).

Article 218(3) TFEU requires the Commission to submit recommendations to the Council, which then adopts a decision authorising the opening of negotiations and, depending on the subject of the envisaged agreement, nominating the Union negotiator or the head of the Union’s negotiating team. Article 218(4) TFEU provides that the Council may set out negotiating directives and designate a special committee in consultation with which the negotiations must be conducted.

•Subsidiarity (for non-exclusive competence)

Only the Union can conduct negotiations to amend the Agreement.

•Proportionality