Summary of the Opinion of the European Data Protection Supervisor on the Proposal for a Directive of the European Parliament and of the Council on asset recovery and confiscation

(2022/C 425/02)

(The full text of this Opinion can be found in English, French and German on the EDPS website https://edps.europa.eu)

On 25 May 2022, the European Commission issued the Proposal for a Directive of the European Parliament and of the Council on asset recovery and confiscation (‘the Proposal’).

The objective of the Proposal is to strengthen the capabilities of the competent authorities of the Member States to identify, freeze and manage assets; to reinforce and extend confiscation capabilities so as to cover all relevant criminal activities carried out by organised crime groups, thereby enabling confiscation for all relevant assets; and to improve the cooperation between the authorities involved in asset recovery.

The EDPS notes that processing of personal data in the context of asset recovery and confiscation, envisaged under the Proposal, is liable to have a significant impact on the individuals concerned and constitute an interference with individuals’ rights guaranteed by the EU Charter of Fundamental Rights, including the right to data protection. He therefore welcomes the fact that the Proposal explicitly underlines the particular importance that the protection of personal data, in accordance with Union law, is ensured in connection to processing of data under the Proposal.

The EDPS, however, has doubts whether special categories of personal data listed under Annex II.B.(2)(c) (v) of Regulation (EU) 2016/794 of the European Parliament and of the Council (1) (e.g. forensic identification information such as fingerprints, DNA profile established from the non-coding part of DNA, voice profile, blood group, dental information or behavioural data), to which the Proposal refers to, may actually be relevant in the specific context of assets recovery and whether they should be available for the cross-border exchange between asset recovery offices.

Moreover, the EDPS considers that the national legislation transposing the proposed Directive should designate the competent authority (or authorities) which will be responsible for the management of the registry of frozen and confiscated property and thus will take the role of data controller in accordance with Article 3(8) of the LED. The Proposal should also lay down clearly the purposes for which centralised registries may be accessed and searched, directly and immediately.

As regards the cooperation with EU bodies and agencies, the EDPS recalls that any exchange and further processing of personal data in the context of the envisaged cooperation must take place in strict compliance with the provisions of Chapter IX of the EUDPR (2) and the specific data protection rules in the legal acts establishing the Union agencies.

1. INTRODUCTION

1. On 25 May 2022, the European Commission issued the Proposal for a Directive of the European Parliament and of the Council on asset recovery and confiscation ( 3 ) (‘the Proposal’).

2. The objectives of the Proposal, according to the Explanatory Memorandum ( 4 ) , are the following: — to strengthen the capabilities of competent authorities to identify, freeze and manage assets; — to reinforce and extend confiscation capabilities so as to cover all relevant criminal activities carried out by organised crime groups, thereby enabling confiscation for all relevant assets; — to improve the cooperation between all actors involved in asset recovery and promote a more strategic approach to asset recovery.

3. The present Opinion of the EDPS is issued in response to a consultation by the European Commission of 25 May 2022, pursuant to Article 42(1) of EUDPR. The EDPS welcomes the reference to this consultation in Recital 51 of the Proposal. In this regard, the EDPS also positively notes that he was already previously informally consulted pursuant to recital 60 EUDPR.

7. CONCLUSIONS

22. In light of the above, the EDPS makes the following recommendations: (1) with regard to Article 9(1), to exclude from the Proposal the EDPS the possibility to exchange the special categories of personal data listed under Annex II.B.(2)(c) (v) (forensic identification information such as fingerprints, DNA profile established from the non-coding part of DNA, voice profile, blood group, dental information or behavioural data), unless there are convincing objective arguments in support of their necessity and proportionality; (2) with regard to Article 26, to require Member States to designate which competent authority (or authorities) are responsible for the management of the registry; and to clearly lay down the purposes, for which centralised registries may be accessed and searched, directly and immediately.

Brussels, 19 July 2022. Wojciech Rafał WIEWIÓROWSKI

(1) 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).

(2) Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

(3) COM (2022) 245 final.

(4) COM (2022) 245 final, p. 2.