On the assessment of the Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and the European Police Office

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL

On the assessment of the Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and the European Police Office

Introduction

The Agreement on Operational and Strategic Cooperation between the Kingdom of Denmark and the European Police Office (hereafter “the Agreement”) establishes the legal framework for Denmark’s cooperation with Europol. Under Article 25 of the Agreement, the Commission is invited to assess the provisions of this Agreement, and in particular the operational effectiveness of the Agreement and Denmark’s compliance with the data protection provisions thereof.

Until 1 May 2017, Denmark participated fully in the Council Decision establishing the European Police Office (Europol) . Under Protocol (No 22) on the position of Denmark , it has an opt-out of all EU Justice and Home Affairs legislation adopted after the Lisbon Treaty entered into force on 1 December 2009 . Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement Cooperation (Europol) adopted in 2016 replaces the Council Decision. It became fully applicable on 1 May 2017. Because of the opt-out and due to a negative result of a national referendum held on 3 December 2015 on the question whether Denmark’s opt-out on Justice and Home Affairs matters should be changed, Denmark is unable to participate in the Regulation.

Following the referendum in Denmark on 3 December 2015, the President of the Commission, the President of the European Council and the Prime Minister of Denmark issued a Declaration on 15 December 2016, stating their agreement “on the need for operational arrangements, minimising the negative impact of Denmark’s departure from Europol on 1 May 2017, for the mutual benefit of Denmark and the rest of the European Union in the combatting of cross border serious and organised crime and international terrorism. Such arrangements must be Denmark specific, and not in any way equal full membership of Europol, i.e. provide access to Europol’s data repositories, or for full participation in Europol’s operational work and database, or give decision-making rights in the governing bodies of Europol. However, it should ensure a sufficient level of operational cooperation including exchange of relevant data, subject to adequate safeguards”.

The Agreement establishes the legal framework for Denmark’s cooperation with Europol called upon in the Declaration of 15 December 2016. It entered into force on 30 April 2017, thus avoiding a gap as a result of the change on 1 May 2017 of Denmark’s status from a Member State to a third country in its relation with Europol. On 27 April 2017, the Danish Parliament (Folketing) adopted Law No 411 on the European Union Agency for Law Enforcement Cooperation (Europol) allowing the Danish Government to conclude the Agreement. The European Parliament adopted a resolution on 27 April 2017. The Council gave Europol its authorisation to agree to the Agreement on 28 April 2017.

The recitals to the Agreement make clear that it is intended to “minimise the negative effects of the Danish departure from Europol” by establishing cooperation at “a level at least equivalent” to that of other third countries that have concluded similar agreements with Europol (recital 3).

A particular feature of the Agreement is Denmark’s specific position as an EU and Schengen Member State. Denmark’s specific position as an EU Member State is reflected in recital 4 of the Agreement. Recital 5 states that Denmark is part of the Schengen area and has implemented fully in its national law the Schengen acquis. Furthermore, recital 6 outlines that Denmark is part of the so-called Nordic passport union together with other Nordic States, two of which are EU Member States and two of which are associated with the implementation of the Schengen acquis and its further development.

Preparation process for the assessment and the Report

·The Commission sent a questionnaire to the Danish Ministry of Justice and the Danish Data Protection Agency. The Danish Ministry of Justice, together with the Danish National Police, provided written draft replies to the questionnaire. The Danish Data Protection Agency thanked the Commission for having been given the opportunity to provide feedback to the questionnaire and informed the Commission that it had not looked into the way in which the Agreement had been implemented by the Danish National Police. It therefore took the view that at this point the Danish Ministry of Justice and Danish National Police were better placed to answer it.

·The Commission had exchanges with representatives from the Danish Ministry of Justice, the Danish National Police including its Data Protection Officer, the Danish Data Protection Agency, as well as with representatives from Europol, responsible for the application of the Agreement, including analysts who use and have access to the information exchanged under the Agreement, and from the European Data Protection Supervisor who oversees the processing of personal data at Europol.

·The Danish Ministry of Justice provided access to reports from the Ministry to the Danish Parliament (Folketing) on the status of the situation of the Danish Police in relation to Europol (covering the period of 1 May 2017 to December 2019).

·The findings of the Commission were laid down in the accompanying Staff Working Document which was also shared with the Danish Ministry of Justice and Europol, providing them with the opportunity to comment on inaccuracies and identify information which cannot be disclosed to public audiences.

Conclusions

The Agreement states in Article 25 that the assessment should in particular concern its operational effectiveness as well as Denmark’s compliance with the data protection provisions thereof.

The assessment showed that the Agreement, which gives Denmark a special status, provides for a cooperation between Denmark and Europol that has met the overall objective of establishing cooperative relations between Denmark and Europol in the fight against terrorism and serious cross-border crime and has minimised the negative effects of the Danish departure from Europol as of 1 May 2017.

This is in particularly due to the enhanced service that Denmark receives through dedicated Danish speaking seconded national experts for treating, under the authority of Europol, Danish requests to input, retrieve and cross-check data on a 24/7 basis. Both Denmark and Europol explicitly recognised that the secondment of Danish speaking national experts to Europol has proven to be a successful instrument in this respect. At the same time both parties also recognised that due to the limitations imposed by Article 10 (6) of the Agreement as regards the tasks of the Danish speaking seconded national experts in The Hague and in Denmark, there is room to improve the effectiveness of the cooperation.

The Agreement requires that Denmark applies the data protection safeguards set out in the Agreement, as well as the rules implementing the EU Law Enforcement Directive. The Danish Law Enforcement Act is the instrument that intends to transpose the EU Law Enforcement Directive. It entered into force on 30 April 2017. The Danish National Police has designated a data protection officer for the processing of personal data by the Danish police within the scope of the Act. The Data Protection Officer has, inter alia, been entrusted with the task of monitoring compliance with the EU Law Enforcement Directive.