Act No 29/2009 of the Joint Supervisory Body of Europol of 22 June 2009 laying down its rules of procedure (Text with EEA relevance)
Date: 2009-06-22
Institutions: Council of the European Union
Subjects: Europol, rules of procedure, supervisory power








C_2010045EN.01000201.xml










23.2.2010   


EN


Official Journal of the European Union


C 45/2





ACT No 29/2009 OF THE JOINT SUPERVISORY BODY OF EUROPOL
of 22 June 2009
laying down its rules of procedure
(Text with EEA relevance)
2010/C 45/02
THE JOINT SUPERVISORY BODY,
Having regard to Council Decision establishing the European Police Office (EUROPOL) of (hereinafter ‘the Europol Decision’) (1) and in particular Article 34(7) thereof,
Whereas it is for the Joint Supervisory Body acting by a majority of two thirds of its members, to lay down its rules of procedure,
HAS ADOPTED THESE RULES OF PROCEDURE:

CONTENTS








TITLE I



Tasks and Powers of the Joint Supervisory Body










Article 1

Tasks









Article 2

Powers









Article 3

Committees










TITLE II



Rules of Procedure for the Joint Supervisory Body










Article 4

Membership









Article 5

Chair









Article 6

Working methods









Article 7

Public access to document









Article 8

Checks on location and experts









Article 9

Procedure in the event of violations









Article 10

Minutes









Article 11

Activity report










TITLE III



Rules of Procedure of the Appeals Committee










Article 12

Tasks of the Appeals Committee









Article 13

Membership









Article 14

Independence and impartiality









Article 15

Chair









Article 16

Representation









Article 17

Languages









Article 18

Institution of the procedure









Article 19

Preliminary consideration









Article 20

Additional information









Article 21

Access to file of procedure









Article 22

Hearing









Article 23

Hearing of witnesses and experts









Article 24

Closing statements









Article 25

Minutes









Article 26

Decisions and confidentiality









Article 27

Notifications









Article 28

Costs









Article 29

Due process










TITLE IV



Final Provisions










Article 30

Secretariat









Article 31

Confidentiality









Article 32

Budget and Costs









Article 33

Amendment of the rules of procedure









Article 34

Evaluation









Article 35

Entry into force of the rules of procedure



TITLE I

TASKS AND POWERS OF THE JOINT SUPERVISORY BODY

Article 1
Tasks
1.   The Joint Supervisory Body shall have the task of reviewing and inspecting, in accordance with the Europol Decision, the activities of Europol in order to ensure that the rights of the individual are not violated by the storage, processing and use of the data held by Europol. In addition, it shall monitor the permissibility of the transmission of data originating from Europol (Article 34(1), first and second sentences of the Europol Decision).
2.   For this purpose, the Joint Supervisory Body has the following tasks, in particular:






(a)


examination of questions relating to:






—


the implementation and interpretation of the Europol Decision in connection with Europol’s activities as regards the processing and use of personal data (Article 34(3) of the Europol Decision),










—


checks carried out independently by the national supervisory bodies of the Member States (Article 34(3) of the Europol Decision),










—


the exercise of the right of access (Article 34(3) of the Europol Decision),










—


the drawing up of harmonised proposals for common solutions to existing problems (Article 34(3) of the Europol Decision).














(b)


examination of orders opening an analysis work file (Article 16(2) of the Europol Decision) and decisions for continuation of the file (Article 16(3) of the Europol Decision);










(c)


examination of provisions concerning the control mechanisms on the retrievals from any of Europol's automated data files used to process personal data (Article 18 of the Europol Decision);










(d)


examination of the lawfulness and accuracy of a possible collection, storage, processing and use of personal data by Europol at the request of an individual (Article 30(7) of the Europol Decision);










(e)


advising on:






—


the establishment of a new system processing personal data (Article 10(2) of the Europol Decision),










—


the measures necessary for the proper application of Article 25 of the Europol Decision (Article 25(7) of the Europol Decision),










—


the conditions relating to the processing of data for the purpose referred to in Article 10(4) of the Europol Decision (Article 10(4) of the Europol Decision),










—


the procedures for the design of the index function, including the conditions of access to the index function referred to in Article 15(4) of the Europol Decision (Article 15(4) of the Europol Decision),










—


the implementing rules for analysis work files referred to in Article 14(1) of the Europol Decision (Article 14(1) of the Europol Decision),










—


the implementing rules governing the relations of Europol with the entities referred to in Articles 22(1) and 23(1) of the Europol Decision (Article 26(1)(b) of the Europol Decision),










—


the rules governing the content of and the procedure for the conclusion of memoranda of understanding referred to in Article 25(3)(c)(ii) (Article 26(2) of the Europol Decision),










—


the agreements or working arrangements with Union or Community institutions, bodies, offices and agencies referred to in Article 22(1) of the Europol Decision as far as it concerns the exchange of personal data (Article 22(2) of the Europol Decision),










—


the agreements referred to in Article 23(2) of the Europol Decision as far as it concerns the exchange of personal data (Article 23(2) of the Europol Decision),










—


memorandum of understanding referred to in Article 25(3)(c)(ii) of the Europol Decision (Article 25(3)(c)(ii) of the Europol Decision).














(f)


drawing up of activity reports at regular intervals (Article 34(6) of the Europol Decision);










(g)


cooperation, as necessary, with other supervisory authorities for the fulfilment of its tasks and to contribute to the improvement of consistency in the application of the rules and procedures for data processing (Article 34(5) of the Europol Decision).




Article 2
Powers
1.   The Joint Supervisory Body shall, for the discharge of its tasks, have the powers provided for in the Europol Decision.
2.   In particular, the Joint Supervisory Body shall be authorised to obtain information from Europol, to be given access to all documents and paper files as well as access to the data stored by Europol, and to be granted free access to all Europol premises at any time (Article 34(2) of the Europol Decision). This includes information on and access to hardware and software, whenever this is necessary for the performance of the tasks of the Joint Supervisory Body. Details may be stipulated in arrangements between the Joint Supervisory Body and the Management Board of Europol.
Article 3
Committees
1.   The Joint Supervisory Body shall set up the committee provided for under Article 34(8) of the Europol Decision.
2.   It may set up one or more other internal committees and determine their composition and terms of reference (Article 34(9) of the Europol Decision).
TITLE II

RULES OF PROCEDURE FOR THE JOINT SUPERVISORY BODY

Article 4
Membership
1.   The Joint Supervisory Body shall be composed of a maximum of two members or representatives of each of the independent national supervisory bodies which shall form a delegation. Each member may have an alternate. The members of the Joint Supervisory Body and their alternates shall be appointed for five years by each Member State (Article 34(1) of the Europol Decision) which term shall be renewable.
2.   The members of the Joint Supervisory Body and their alternates shall be independent, not bound by instructions in the exercise of their duties and subject only to the law. In particular, they must not at the same time be members of another body set up under the Europol Decision or staff members of Europol.
Where a conflict of interest arises, the person concerned shall declare that interest and withdraw from taking part in the discussion and the decision on the matter. He or she may, where necessary, be excluded by a majority of the votes cast in a secret ballot by the delegations attending the meeting. The person concerned shall be heard before any exclusion, but shall not take part in the decision. If a person withdraws or is excluded, he or she may be replaced by his or her alternate.
3.   Only persons having the necessary abilities may be appointed to serve as members of the Joint Supervisory Body or their alternates (Article 34(1) of the Europol Decision). Particular regard shall be had to the requirements for the Appeals Committee.
4.   A member of the Joint Supervisory Body who is unable to attend a meeting may be represented by his or her alternate.
5.   Membership of the Joint Supervisory Body shall cease when the person concerned resigns. It shall also cease when that person ceases to serve as member or representative of the national supervisory body, unless his or her term of office is reconfirmed by the Member State concerned. Appointment as a member shall not be revoked other than in accordance with national law. This shall apply likewise to the alternates.
Article 5
Chair
1.   The Joint Supervisory Body shall elect a chairman and a deputy chairman from among its members by a majority of two thirds of the votes cast in a secret ballot by the delegations attending the meeting. The deputy chairman shall not be a member of the chairman′s delegation. If none of the candidates achieves the required majority in the first round of voting, a second round shall take place between the two candidates having received the most votes. The chairman and his or her deputy shall be elected for a term of office of two years. Election for a second term of one year shall be possible.
2.   The chairman shall represent the Joint Supervisory Body and chair its meetings. He or she shall monitor the smooth functioning of its work. He or she shall convene the meetings of the Joint Supervisory Body and determine the venue, date and time of such meetings. He or she shall open and close the meetings. He or she shall prepare the provisional agenda and ensure the execution of the decisions of the Joint Supervisory Body.
3.   The deputy chairman shall act for the chairman if he or she is unable to attend. In the absence of the deputy chairman the oldest member in terms of age shall act as deputy chairman. The first meeting of the Joint Supervisory Body shall be convened and chaired by the oldest member in terms of age until the election of the chairman.
4.   In order to prepare the work of the Joint Supervisory Body with regard to a particular issue, it may appoint from among its members, on a proposal from the chairman, one or several rapporteurs. If the matter is urgent, such an appointment may be made by the chairman by virtue of his or her office. In this case he or she shall inform the members of the Joint Supervisory Body without delay.
5.   The chairman or a majority of the delegations may request the attendance at meetings of the director of Europol and invite staff members of Europol, national experts, liaison officers and other persons to attend.
Article 6
Working methods
1.   The Joint Supervisory Body shall meet at least four times a year. Furthermore, it shall meet at the initiative of the chairman and whenever at least three delegations submit a written proposal stating reasons, or present an oral proposal in a previous meeting. The chairman of the Management Board and the director of Europol shall be entitled to propose items for inclusion on the agenda and to propose that the Joint Supervisory Body be convened.
2.   With the exception of cases which the chairman deems to be urgent, the notice convening the meeting shall be transmitted in time to arrive at least two weeks before the meeting. The notice shall include the provisional agenda and the documents needed for the meeting, unless the nature of these documents does not allow so. The final agenda shall be adopted at the beginning of each meeting.
3.   A meeting of the Joint Supervisory Body shall only be valid, if at least two thirds of the delegations attend. Decisions shall be taken by a simple majority of the delegations attending, unless provided otherwise in these rules. Each delegation shall be entitled to one vote. In case of a tied vote, the chairman shall have a casting vote.
4.   The meetings of the Joint Supervisory Body shall not be public. However, its documents shall be accessible to the public in accordance with Article 7.
5.   The Joint Supervisory Body shall meet on the basis of documents and draft papers drawn up in all official languages of the institutions of the European Union. Exceptions to this rule shall be admissible only in cases of urgency. However, each delegation shall have the right to require a translation in its own language.
6.   Decisions of the Joint Supervisory Body may be taken by written procedure insofar as all delegations have approved this procedure in a meeting. In urgent cases the chairman shall be entitled to initiate the written procedure. In both cases the chairman shall transmit a draft decision to the members of the Joint Supervisory Body. If the delegations do not object to the draft decision, translated into the respective official languages, within a period specified by the chairman of at least 14 days after receipt, the proposal shall be deemed to be adopted. If a delegation, within five working days after receipt of the draft decision, requests that it be orally discussed by the Joint Supervisory Body, the written procedure shall be discontinued.
Article 7
Public access to document
1.   Any natural or legal person has a right of access to documents of the Joint Supervisory Body, subject to the principles, conditions and limits defined in this Article.
2.   Documents relating to appeals before the committee established in accordance with Article 34(8) of the Europol Decision are exempt from this Article.
3.   Without prejudice to paragraphs 4 and 5, documents shall be made accessible to the public either following a written application or directly in electronic form.
4.   The Joint Supervisory Body shall refuse access to a document where such refusal is necessary in order:






(a)


to protect security and public order in the Member States or to prevent crime;










(b)


to protect the rights and freedoms of third parties;










(c)


to enable Europol to fulfil its tasks properly;










(d)


to enable the Joint Supervisory Body to fulfil its tasks properly;




considerations which cannot be overridden by the interests of the applicant.
5.   Where the Joint Supervisory Body holds a document received from a third party, or which contains information on a third party, the Joint Supervisory Body shall consult that third party with a view to assessing whether an exception under paragraph 4 is applicable, unless it is clear that the document shall or shall not be disclosed. Access to documents received from Europol shall also be subject to the confidentiality rules referred to in Article 40(1) of the Europol Decision.
6.   If exceptions apply only to parts of the requested document, the rest of the document shall be disclosed.
7.   Applications for access to a document shall be made in any written form, including electronic form, in one of the official languages of the institutions of the European Union and in a sufficiently precise manner to enable the Joint Supervisory Body to identify the document. The applicant shall not be obliged to state reasons for the application.
8.   If an application is not sufficiently precise, the Joint Supervisory Body shall ask the applicant to clarify the application and shall assist the applicant in doing so.
9.   If an application relates to a very long document or to a very large number of documents, the Joint Supervisory Body may confer with the applicant informally, with a view to finding a fair solution.
10.   The Joint Supervisory Body shall provide information and assistance to citizens on how and where applications for access to documents can be made.
11.   The Joint Supervisory Body shall promptly register an application for access to a document and shall send the applicant an acknowledgement. Within 20 working days from registration of the application, the chairman of the Joint Supervisory Body shall either grant access to the document requested and provide access in accordance with paragraph 14 within that period or, in a written reply, state the reasons for total or partial refusal and inform the applicant of his or her right to make a follow-up application in accordance with paragraph 13.
12.   In exceptional cases, for example in the event of an application relating to a very long document or in case a third party must be consulted, the time limit provided for in paragraph 11 may be extended by 20 working days, provided that the applicant is notified in advance and that detailed reasons are given.
13.   Within 20 working days of receiving a total or partial refusal from the Joint Supervisory Body, the applicant may make a follow-up application asking the Joint Supervisory Body to reconsider.
14.   The applicant shall have access to documents either by consulting them on the spot or by receiving a copy, including, where available, an electronic copy, according to the applicant's preference. The cost of producing and sending copies of 20 or more A4 pages may be charged to the applicant, but the charge may not exceed the real cost of producing and sending the copies. Consultation on the spot, copies of fewer than 20 A4 pages and direct access in electronic form shall be free of charge.
15.   If a document has already been disclosed by the Joint Supervisory Body or other institutions and is easily accessible to the applicant, the Joint Supervisory Body may fulfil its obligations by informing the applicant how to obtain the document.
Article 8
Checks on location and experts
1.   In the framework of its powers in accordance with Article 34 of the Europol Decision, the Joint Supervisory Body may carry out data protection checks at Europol.
2.   The Joint Supervisory Body may appoint one or more members for carrying out these checks. Such members may be assisted by experts as deemed appropriate by the Joint Supervisory Body, drawn only from a list of experts established by the Joint Supervisory Body in advance and communicated to Europol. Experts on this list shall come from within national supervisory bodies and government agencies, unless such experts are not available. All experts must meet the security requirements applying under their national law.
3.   Where the chairman deems a case to be urgent, he or she may appoint such members and experts by virtue of his or her office. In this case he or she shall inform the members of the Joint Supervisory Body without delay.
4.   The members of the Joint Supervisory Body entrusted with carrying out a check shall report to the Joint Supervisory Body on the results of their work.
Article 9
Procedure in the event of violations
If the Joint Supervisory Body identifies violations of the provisions of the Europol Decision with regard to the storage, processing or use of personal data, it shall inform the director of Europol accordingly and shall request him or her in writing to reply within a specified time limit. If the Joint Supervisory Body considers the reply to be insufficient or not submitted in time, or if any other difficulty arises, the Joint Supervisory Body shall refer the matter in writing to the Management Board (Article 34(4) of the Europol Convention). Failure to comply with a final decision of the Appeals Committee shall be regarded as a violation of the Europol Decision.
Article 10
Minutes
Minutes shall be made of all meetings of the Joint Supervisory Body. The draft minutes shall be prepared by the Secretariat under the direction of the chairman and submitted to the Joint Supervisory Body for adoption at its next meeting. Each member shall have the right to have the draft minutes amended to reflect comments made by that member at the meeting.
Article 11
Activity report
1.   The Joint Supervisory Body shall draw up an activity report at least once every two years. At least one month before the activity report is forwarded to the European Parliament and the Council, the Management Board shall have the opportunity to make comments, which shall be attached to the report (Article 34(6) of the Europol Decision).
2.   The Joint Supervisory Body's activity report shall be submitted to the relevant committee in the European Parliament at the same time as it is sent to the Council.
3.   The Joint Supervisory Body shall publish its activity report.
TITLE III

RULES OF PROCEDURE OF THE APPEALS COMMITTEE

Article 12
Tasks of the Appeals Committee
1.   The Appeals Committee (hereinafter called ‘The Committee’) shall examine the appeals provided for in Article 32 of the Europol Decision.
2.   The Committee shall take final decisions in respect of the matters referred to in paragraph 1.
3.   In addition to the powers referred to in Article 2(2), the Committee shall have the powers provided for in this chapter.
Article 13
Membership
1.   The Committee shall be composed of one qualified member of each delegation in the Joint Supervisory Body. Each member may have an alternate. The members of the Committee and their alternates shall be appointed for five years by the Joint Supervisory Body, on the nomination of the delegation concerned, which term shall be renewable.
2.   The members of the Committee and their alternates shall have the necessary qualifications for examining and deciding the appeals referred to in Article 12(1), involving inter alia legal expertise, experience in conflict resolution and experience in data protection matters.
3.   A member of the Committee who is unable to attend a meeting may be represented by his or her alternate.
4.   Membership of the Committee shall cease when the person concerned resigns or ceases to be a member of the Joint Supervisory Body. This shall apply also to the alternates.
Article 14
Independence and impartiality
1.   The members of the Committee shall be independent and impartial, not bound by directions of the Joint Supervisory Body or anyone else in the exercise of their duties and subject only to the law. They may not engage in any activity during their term of office which is incompatible with their independence and impartiality as members of the Committee or with the required availability for service on the Committee. Activities which are being carried out or have been carried out on behalf of the national supervisory body shall not be regarded as incompatible with work on the Committee. The provisions of this paragraph shall apply also to the alternates.
2.   Where a member of the Committee or an alternate has been involved in the case in such a manner as to give rise to serious doubts as to his or her impartiality, or any other circumstance arises which might prejudice the proper determination of an appeal, he or she shall declare this and withdraw from the case.
3.   If a member or alternate is challenged by a party on grounds relating to paragraphs 1 and 2, the Committee shall hear the person concerned and the other parties and subsequently decide on the challenge in the absence of the person concerned by means of a secret ballot.
4.   If a person withdraws or is excluded from the case pursuant to paragraph 3, he or she shall be replaced by his alternate.
Article 15
Chair
1.   The Committee shall elect a chairman and a deputy chairman from among its members by a majority of two thirds of the votes cast in a secret ballot by the members attending the meeting. If none of the candidates achieves the required majority in the first round of voting, a second round shall take place between the two candidates having received most votes. The chairman or deputy chairman of the Joint Supervisory Body may not be elected chairman or deputy chairman of the Committee nor be a member of the same delegation. The chairman and his or her deputy shall be elected for a term of two years. Election for a second term of one year shall be possible.
2.   The chairman shall preside over the meetings of the Committee. He or she shall monitor the smooth and proper functioning of its work. He or she shall convene the meetings of the Committee and determine the venue, date and time of such meetings. He or she shall prepare the provisional agenda.
3.   The deputy chairman shall act for the chairman if he or she is unable to attend. In the absence of the deputy chairman the oldest member in terms of age shall act as deputy chairman. The first meeting of the Committee shall be convened and chaired by the oldest member in terms of age until the election of the chairman.
4.   In order to prepare its deliberations, the Committee may appoint from among its members, on a proposal from the chairman, one or several rapporteurs. In such cases in principle, the member appointed as rapporteur shall be from the Member State from which the applicant comes or, if the applicant comes from a non-Member State, from the Member State to which the case is most closely connected. If the matter is urgent, such an appointment may be made by the chairman by virtue of his or her office. In this case he or she shall inform the members of the Committee without delay. The rapporteur shall examine the appeal and submit a report to the Committee on its admissibility and a proposal for further proceedings, in particular with regard to what preparatory measures are needed.
Article 16
Representation
The applicant may be assisted or represented by a lawyer or another adviser. A lawyer or an adviser may be excluded from the proceedings by the Committee in cases of serious misconduct. If a lawyer or an adviser is excluded, the chairman shall stipulate a deadline for the party concerned to enable him or her to appoint another lawyer or adviser; the proceedings shall be suspended until the expiration of this deadline. A lawyer or an adviser shall produce proper authorisation from the applicant, if so requested by the Committee.
Article 17
Languages
1.   The procedure shall be conducted in one of the official languages of the Institutions of the European Union. The applicant shall choose the official language in which the procedure shall be conducted. The language of the procedure shall be used in the oral statements and in the written documentation of the parties and in the minutes and decisions of the Committee.
2.   Documents in a language other than the procedural language shall be accompanied by a translation into the procedural language. Where documents are lengthy, the translation submitted may be restricted to excerpts or summaries. The Committee may by virtue of its office or upon application from a party require a full translation at any time.
3.   Where necessary, interpretation services and translations shall be provided for each member of the Committee and for the parties free of charge. The decisions of the Committee shall be translated into all official languages of the institutions of the European Union.
4.   In cases where none of the official languages of the institutions of the European Union is accessible to the applicant, the complaint may be lodged in another language. The applicant is obliged to submit a summary in one of the official languages. The chairman or rapporteur shall have the complaint translated into the chosen language.
Article 18
Institution of the procedure
1.   The appeal shall be lodged by submission of a written complaint at the Secretariat of the Joint Supervisory Body within three months of the decision of Europol being received by the applicant. When there is no decision, the appeal shall be lodged within three months after the expiration of the relevant time limits referred to in Article 30(3), Article 31(5) of the Europol Decision. Any doubt about compliance with time limits shall be determined in favour of the applicant.
2.   The applicant shall outline the basis of the complaint. It must be clear who is complaining, what he or she is complaining about and on what grounds. The complaint shall be accompanied by any supporting documentation available. The applicant may withdraw his or her appeal at any time.
3.   The Secretariat shall acknowledge the receipt of the complaint within four weeks and give general information on the course of the procedure.
4.   If the complaint does not meet the requirements set out in paragraph 2, first and second sentences and in Article 17(4), second sentence, the Secretariat shall invite the applicant to rectify any omissions within four weeks.
5.   Appeals which do not meet the requirements shall be refused by the Committee on the proposal of the chairman or of the rapporteur. An appeal which does not comply with the time limits mentioned in paragraph 1 may be accepted, if special circumstances can justify the delay.
Article 19
Preliminary consideration
1.   If the complaint meets the requirements, it shall be considered by the Committee on the basis of the following provisions taking into account the Europol Decision especially Articles 30, 31 and 32.
2.   A copy of the complaint shall be forwarded to Europol for its observations, which shall be submitted within four weeks, extension for two further weeks being possible.
3.   Where an appeal relates to a decision as referred to in Articles 30 or 31 of the Europol Decision, the Committee shall consult the national supervisory bodies or the competent judicial body in the Member State which was the source of the data or the Member State directly concerned.
4.   The Committee may decide on a case-by-case basis additionally to involve in the appeals procedure one or more national units. The applicant and Europol shall be informed of this decision. The relevant national units shall be sent a copy of the observations from Europol and the applicant in order to enable them to submit their own observations, to be submitted within four weeks, extension for two further weeks being possible.
5.   After the observations have been received or the deadlines have expired, and after receiving the information referred to in Articles 20, 22, 23 and 24, the complaint shall be dealt with by the Committee within the ensuing three months.
Article 20
Additional information
1.   The Committee may ask the applicant, Europol, the national units, the national supervisory bodies or any other body to provide information, evidence or comments to the Committee. The parties are entitled to make suggestions to the Committee regarding the taking of evidence or to call for the admission of evidence. The Committee shall follow up these suggestions and calls for admission to the extent necessary for the examination of the case.
2.   The Committee may also decide to investigate on location at Europol. Article 8 applies likewise.
Article 21
Access to file of procedure
1.   All parties shall, if they wish, have access to the file of the procedure, and require the Secretariat of the Joint Supervisory Body to provide them with excerpts or photocopies at their own expense. Access shall be refused where such refusal is necessary in order to:






—


enable Europol to fulfil its tasks properly,










—


protect security and public order in the Member States or to prevent crime,










—


guarantee that any national investigation will not be jeopardised,










—


protect the rights and freedoms of third parties,




the interests of the person concerned shall be taken into account.
2.   Europol, national units and national supervisory bodies may indicate to what extent the information they provide should not be made available to the applicant, stating the reasons for such a restriction. The Committee may ask for further reasons. To the extent that the Committee finds such reasons acceptable, the information concerned shall be withheld. The Committee may decide otherwise only in the absence of acceptable reasons and only unanimously. In this case, the Committee may require a summary to be made available to the applicant or require that certain information shall be provided to the applicant.
Article 22
Hearing
1.   The parties shall be heard by the Committee should they so request. The Committee shall duly inform the parties of their right to be heard. This right shall be exercised in writing. The Committee shall decide to hold an oral hearing on request from one of the parties involved in the proceeding to the extent deemed necessary for the examination of the case. The Committee shall duly inform the parties of their right to request an oral hearing. All parties shall be notified in due time of the oral hearing and have the right to be present.
2.   An oral hearing shall be held in public unless the Committee decides by virtue of its office or on application from one of the parties to exclude the public wholly or partly where the interests of public security, especially on the grounds referred to in Article 30(5) of the Europol Decision, or the protection of the privacy of an individual so require, or to the extent strictly necessary in the opinion of the Committee in special circumstances where publicity would prejudice the proper determination of the appeal. If a Member State that is a party to the proceedings, or Europol, requests that the public be excluded from the proceedings, the Committee may decide otherwise only on the grounds that no reasons as referred to in the first sentence obtain, and only unanimously.
3.   The Committee may decide, at the request of a party or at its own initiative, to hear a party without other parties being present, where this is required in order to ensure the proper functioning of Europol, to safeguard the security of a Member State or to protect the interests of the applicant or a third party. The absent parties shall be informed of proceedings taking place in their absence.
Article 23
Hearing of witnesses and experts
1.   The Committee may decide, at the request of a party or at its own initiative, to hear witnesses. All parties and the witnesses concerned shall be notified in due course of the hearing. Article 22(2) and (3) shall also apply.
2.   Witnesses notified by the Committee shall be entitled to reimbursement of their travel and accommodation expenses and to compensation for loss of earnings, to the extent the Committee finds equitable. They may receive the necessary advance payments. All payments shall be made from the budget of the Joint Supervisory Body.
3.   The witnesses shall be heard by the Committee. The members of the Committee may address questions to the witnesses. With the permission of the chairman, the parties may address questions to the witnesses. Before the hearing begins, the chairman shall remind the witnesses that they should speak the truth.
4.   The Committee may appoint an expert and define his mandate. The expert is entitled to remuneration for his work. The Committee may decide to hear the expert. The rules regarding the hearing of witnesses shall also apply.
Article 24
Closing statements
Before reaching a final decision, the Committee shall invite all parties to submit final comments.
Article 25
Minutes
1.   The Committee shall keep minutes of its proceedings which shall reflect the course of each hearing and the statements made in it. The parties may request that certain documents or statements be included wholly or partly in the minutes. The minutes shall be signed by the chairman, forwarded to the parties and added to the file of the case. In cases referred to in Article 22(2) or Article 23(1), the Committee shall impose restrictions.
2.   Article 9 shall also apply to all meetings of the Committee which are not attended by the Parties.
Article 26
Decisions and confidentiality
1.   Any meeting of the Committee shall only be valid if four fifths of the members or their alternates attend.
2.   Decisions shall be taken by a simple majority of the members or alternates attending the meeting, unless provided otherwise either in these rules or in the Europol Decision. In case of a tied vote, the chairman shall have a casting vote. All persons taking part in the final decision must have attended an oral hearing.
3.   The deliberations of the Committee shall remain confidential.
4.   The final decision of the Committee shall contain the names of the parties and their representatives, the names of the members of the Committee taking part in the decision, the date on which the decision is announced, the operative part of the decision, a brief presentation of the facts of the case and the reasons for the decision. It shall be announced at a public meeting and conveyed to the parties. A copy of the decision shall be forwarded to the Joint Supervisory Body.
Article 27
Notifications
Notifications and other communications to parties, witnesses and experts shall be made by means that reasonably ensure that they are duly informed and can be verified when necessary.
Article 28
Costs
1.   The Committee shall decide on the costs of the procedure in its final decision. The procedure before the Committee shall be free of charge. If the appeal is upheld, wholly or partially, the necessary costs incurred by the applicant for lodging and processing the complaint shall be borne by Europol to the extent that the Committee considers this equitable.
2.   If an applicant is unable to bear all or part of the costs of the procedure, he or she may at any time on request be granted assistance for the costs. When he or she submits the application, he or she shall enclose documentation demonstrating that he or she is in need. The Committee may withdraw the assistance at any time if the preconditions under which it was granted change in the course of the proceedings. If assistance is approved, the costs will be disbursed from the budget of the Joint Supervisory Body. Where this is fair, the final decision may require a party to reimburse to the budget of the Joint Supervisory Body the advance payments granted. In submitting his or her application, the applicant shall declare his or her agreement to reimburse the costs if required by the final decision.
Article 29
Due process
In cases not provided for in these rules, the Committee shall conduct its procedures in accordance with the general principles of Community law referred to in Article 6(2) of the Treaty on European Union.
TITLE IV

FINAL PROVISIONS

Article 30
Secretariat
1.   The Joint Supervisory Body shall have a Secretariat based at its headquarters to assist it in the performance of its tasks. The Secretariat shall be a permanent body and its members recruited only on the basis of competence. The members of the Secretariat shall act solely in the best interests of the Joint Supervisory Body, shall be fully independent from Europol and shall not accept instructions from any other authority. Recruitment or secondment to the Secretariat shall take place on a proposal from the Joint Supervisory Body. Staff members of the Secretariat shall not undertake other work without permission of the chairman of the Joint Supervisory Body.
2.   The Secretariat shall operate under the direction of the chairman of the Joint Supervisory Body in accordance with the rules established by the Joint Supervisory Body. The Secretariat shall also provide services to the Appeals Committee. In the performance of these functions it shall operate under the direction of the chairman of that Committee. The Secretariat shall keep a register of appeals and all other documents.
3.   The Secretariat shall ensure that the obligations under Article 41 of the Europol Decision shall also be respected in the work of the Joint Supervisory Body.
Article 31
Confidentiality
1.   Members of the Joint Supervisory Body, alternates, experts and members of the Secretariat shall be obliged to treat in a confidential manner any information which come to their knowledge in the context of their activity, unless the proper discharge of their task requires otherwise. This obligation shall continue to apply also when they cease to be active in that capacity.
2.   Upon appointment, members of the Joint Supervisory Body, alternates, experts and members of the Secretariat shall declare their acceptance of these obligations.
3.   In the case of a breach of confidentiality, a member of the Joint Supervisory Body or his or her alternate may be suspended by a majority of two thirds of the votes cast in a secret ballot by the delegations attending a meeting of the Joint Supervisory Body. The person concerned shall be heard before, but shall not take part in the decision. This provision shall apply equally to the Appeals Committee, where the breach of confidentiality relates to the work of that Committee. In the latter case, the Joint Supervisory Body shall be informed without delay.
In the case of a suspension, the place of the suspended member shall be taken by his or her alternate. A suspension shall be communicated to the national supervisory body responsible for the appointment of the suspended member.
Article 32
Budget and costs
1.   The Secretariat shall prepare proposals for an annual budget for the Joint Supervisory Body, which on approval shall be forwarded to the Management Board prior to the consultation, required in Article 34(10) of the Europol Decision.
2.   The Joint Supervisory Body shall decide on the disbursement of the budget allocated to it which shall be administered by the Secretariat.
3.   The costs of the Joint Supervisory Body and the Appeals Committee, including the expenses for the members of the Appeals Committee and their alternates, which are necessary for the proper exercise of their duties, shall be borne by the budget of the Joint Supervisory Body in accordance with rules established by it.
Article 33
Amendment of the rules of procedure
Amendments to these rules of procedure shall be adopted by the Joint Supervisory Body by a majority of two thirds of its members and shall be submitted to the Council for approval acting by qualified majority (Article 34(7) of the Europol Decision).
Article 34
Evaluation
These rules of procedure shall be evaluated by the Joint Supervisory Body between one and three years after their entry into force.
Article 35
Entry into force of the rules of procedure
These rules of procedure shall enter into force on the day following that of their approval by the Council in accordance with Article 34(7) of the Europol Decision.

Done at Brussels, 22 June 2009.


For the Joint Supervisory Body


The Chairman

David SMITH

The Member States agreed that membership of the Joint Supervisory Body (of a member or an alternate) in particular may not cease before the end of the term of office on grounds connected with the exercise of a function in the Appeals Committee.




(1)  OJ L 121, 15.5.2009, p. 37.