EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

Cybercrime continues to be a growing threat to the security of citizens and businesses in the European Union (EU) according to the Europol Internet Organised Crime Threat Assessment. Cybercrime is a global and borderless phenomenon, and stepping up international cooperation to fight cybercrime has been a priority for countries around the world for a number of years.

The 2001 Council of Europe Convention on Cybercrime (the ‘Budapest Convention’) is the first international treaty on cybercrime, defining cybercrime-related offences, providing for a series of powers and procedures to investigate cybercrime, such as the search of computer networks and interception, and secure electronic evidence in relation to any crime, and establishing a framework for international cooperation. The Budapest Convention is open to non-Council of Europe members, and countries from all geographical regions have acceded to it. To date, there are 66 State Parties and fourteen additional countries have been invited to accede to it. It is the foundation for anti-cybercrime legislation in 80% of countries worldwide. The adoption of a Second Additional Protocol to the Budapest Convention by the Council of Europe’s Committee of Ministers on 17 November 2021 demonstrates the continued relevance of the Convention as a framework for international cooperation on cybercrime.

The rise of information technology and the rapid development of new telecommunication and computer network systems and the use and abuse of technologies for criminal purposes have also featured on the agenda of the United Nations (UN). On 21 December 2010, the UN General Assembly adopted Resolution 65/230 requesting the Commission on Crime Prevention and Criminal Justice (CCPCJ) to establish an open-ended intergovernmental expert group (‘the IEG’) to conduct a comprehensive study of the problem of cybercrime. At its seventh (and last) meeting from 6-8 April 2021, the IEG took stock of all preliminary conclusions and recommendations suggested by UN Member States and agreed to transmit to the CCPCJ the 63 agreed conclusions and recommendations. In its study, the IEG did not come to a consensus about the need for a new international cybercrime treaty.

In parallel, some UN Member States stepped up their efforts to work towards such a treaty in the Third Committee deliberations of the UN General Assembly. The UN General Assembly consequently adopted resolution 73/187 of 17 December 2018 on ‘Countering the use of information and communications technologies for criminal purposes’. Subsequently, on 27 December 2019, the UN General Assembly adopted a second Resolution, 74/247, on the same topic, establishing an open-ended ad hoc intergovernmental committee of experts (‘the ad hoc Committee’) to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes. The Resolution specified that the ad hoc Committee was to take into full consideration existing international instruments and efforts at the national, regional and international levels on combating the use of information and communications technologies for criminal purposes, in particular the work and outcomes of the IEG. On 26 May 2021, the UN General Assembly adopted resolution 75/282 that determined the modalities for the negotiations. The UN General Assembly decided, inter alia, that the ad hoc Committee should convene at least six sessions, of 10 days each, to commence in January 2022, and a concluding session to provide a draft convention to the UN General Assembly at its seventy-eighth session in 2024. It further decided that the ad hoc Committee shall hold the first, third and sixth negotiating sessions in New York and the second, fourth and fifth sessions in Vienna. On 20 January 2022, the General Assembly decided to postpone the first session to a later date due to the Covid-19 pandemic situation in New York.

This proposal aims to ensure the appropriate participation of the European Union in these negotiations since the negotiations are expected to touch upon elements that relate to EU legislation and competence, notably in the area of cybercrime. Article 3(2) of the Treaty on the Functioning of the European Union (TFEU) provides that the Union has exclusive competence ‘for the conclusion of an international agreement (...) in so far as its conclusion may affect common rules or alter their scope.’ An international agreement may affect common rules or alter their scope where the area covered by the agreement overlaps with Union legislation or is covered to a large extent by Union law.

Given that the negotiations relate to matters of Union competence other than CFSP, which are expected to be the main components of the envisaged agreement, the Commission should be appointed as head of the negotiating team. In matters that relate to Common Foreign and Security Policy, the High Representative of the Union for Foreign Affairs and Security Policy conducts the negotiations as part of the team. The Chief Negotiator from the Commission will ensure the overall consistency of the agreement. Under the authority of the Chief Negotiator, the Commission services will be in the lead for the non-CFSP parts of the envisaged agreement and the EEAS will be in the lead for those parts of the envisaged agreements that fall under the CFSP.

This recommendation is submitted to the Council pursuant to Article 218 TFEU in order to receive authorisation to negotiate the future UN convention on behalf of the European Union, to provide negotiating directives, and to appoint the Commission as negotiator.