Recommendation for a Council Decision authorising the opening of negotiations to amend the Agreement between the European Union and Japan on mutual legal assistance in criminal matters
Date: 2021-01-14
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: fundamental rights



IMMC.Ares%282021%29302499.ENG.xhtml.PART-2021-18087V1.docx












ROADMAP  






Roadmaps aim to inform citizens and stakeholders about the Commission's work in order to allow them to provide feedback and to participate effectively in future consultation activities. Citizens and stakeholders are in particular invited to provide views on the Commission's understanding of the problem and possible solutions and to make available any relevant information that they may have. 






Title of the initiative




EU-Japan Agreement on mutual legal assistance in criminal matters – proposed alignment with EU data protection rules






Lead DG – responsible unit 




DG JUST B.2






Likely Type of initiative




Recommendation for a Council Decision






Indicative Planning




Q1 2021






Additional Information




This initiative is one of the deliverables of the Communication on the way forward on aligning the former third pillar acquis with data protection rules COM(2020)262. 






This Roadmap is provided for information purposes only and its content might change. It does not prejudge the final decision of the Commission on whether this initiative will be pursued or on its final content. All elements of the initiative described by the Roadmap, including its timing, are subject to change.









A. Context, Problem definition and Subsidiarity Check






Context 






The Agreement between the European Union and Japan on mutual legal assistance in criminal matters (OJ L 39, 12.2.2010, p. 20–35) was signed on 30 November 2009 and entered into force on 2 January 2011. This agreement aims to establish more effective cooperation between the EU and Japan in the field of mutual legal assistance in criminal matters. It covers the stages of investigation and prosecution of crimes and other proceedings in criminal matters and includes modern cooperation tools such as videoconferencing or the exchange of bank information. It is the first such ‘self-standing’ agreement between the EU and a non-EU country. Before the conclusion of this agreement, no individual EU country had concluded such a separate agreement with Japan. The agreement is a mixed agreement, signed by the EU and all the Member States. The Communication on the way forward on aligning the former third pillar acquis with data protection rules COM(2020)262 notes that the EU Japan mutual legal assistance agreement should be aligned with the requirements of the Law Enforcement Data Protection Directive. The Communication sets out the way in which this alignment should take place, namely that data protection safeguards currently included in the Agreement need to be improved. In this context, the Commission announces in the Communication that it will address the Council with a recommendation for a Council decision authorising the opening of negotiations in the first quarter of 2021. 






Problem the initiative aims to tackle 






Since the entry into force of the EU-Japan mutual legal assistance agreement, the EU has revised and increased its data protection standards through the adoption of the Law Enforcement Data Protection Directive (LED). This Directive sets out the rules regarding the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data. LED has entered into force on 6 May 2016 and Member States had until 6 May 2018 to transpose it into national law. It repealed and replaced Council Framework Decision 2008/977/JHA, but is a much more comprehensive and general data protection instrument. Article 62(6) LED requires the Commission to review, by 6 May 2019, other EU legal acts that regulate competent authorities’ personal data processing for law enforcement purposes, in order to assess the need to align them with the LED and, where appropriate, to make proposals for amending them to ensure consistency in the protection of personal data within the scope of the LED.


The Commission set out the results of its review in a Communication on Way forward on aligning the former third pillar acquis with data protection rules (24 June 2020), which specifies ten legal acts that should be aligned with the LED and a timetable for doing so. The EU-Japan mutual legal assistance agreement is one of these acts and the Commission committed to address the Council with a recommendation in the first quarter of 2021. That is the purpose of this initiative. 


Currently, the EU Japan mutual legal assistance agreement includes Article 13 concerning limitations on use of testimony, statements, items or information. Areas requiring further consideration in order to align the Agreement with the LED include: a) provisions on data quality and security issues; b) safeguards applicable to the processing of special categories of personal data; c) remedies available to data subjects and rules on oversight; d) restrictions on onward transfers; e) rules on retention and record keeping. The most appropriate way to ensure compatibility of the EU Japan mutual legal assistance agreement with the existing EU acquis on data protection is for the Union to open negotiations on an amendment to that Agreement.  






Basis for EU intervention (legal basis and subsidiarity check) 






The initiative is based on Art. 218(3) and (4) (TFEU) on international agreements and Art. 16(2) and 82(1) (TFEU) on judicial cooperation in criminal matters. Member States would not be well-placed to negotiate the same terms in a consistent fashion with the third country at hand. Therefore, providing the Commission with another mandate to negotiate with Japan on behalf of the EU would result in the added value of consistency and a lesser risk of legal uncertainty and fragmentation. 






B. What does the initiative aim to achieve and how 






The overall objective of the initiative is to align the data protection standards of the EU-Japan mutual legal assistance agreement to the standards set out in the Law Enforcement Data Protection Directive as per the Commission’s Communication on the way forward on aligning the former third pillar acquis with data protection rules. To achieve this, the Commission must open negotiations with Japan, for which it needs a mandate from the Council, in the form of a Commission’s Recommendation for a Council Decision authorising the opening of these negotiations. The Commission intends to present such a recommendation for a Council decision authorising the opening of negotiations, appointing the Commission as negotiator and adopting negotiating directives. The negotiator would consult with the special committee in the Council and coordination of Member States’ positions would be ensured. The European Parliament would be informed at all stages of the procedure. 






C. Better regulation






Consultation of citizens and stakeholders 






When conducting the review on the alignment with data protection rules, the Commission took into account the study which was carried out as part of the European Parliament Pilot Project ‘Fundamental Rights Review of EU data collection instruments and programmes’. No further public consultation is envisaged. Nonetheless, the European Data Protection Supervisor will be consulted on the Recommendation in accordance with Article 42(1) of Regulation 2018/1725. 






 Evidence base and data collection 






This initiative is one of the deliverables of the Communication on the way forward on aligning the former third pillar acquis with data protection rules COM(2020)262. When conducting the review on the alignment with data protection rules, the Commission took into account the study which was carried out as part of the European Parliament Pilot Project ‘Fundamental Rights Review of EU data collection instruments and programmes’. 


No impact assessment would be necessary for this initiative for the following reasons: i) the clearly defined scope of amendments which will focus on one specific issue - the alignment of an agreement with the existing EU data protection standards as already set out by the Law Enforcement Data Protection Directive; ii) there is an absence of policy choices, due to the specific safeguards that need to be improved as identified during the review; iii) the impact of the new data protection standards set out by the Law Enforcement Data Protection Directive has been already assessed in the context of the preparatory works for the Communication on the way forward on aligning the former third pillar acquis with data protection rules.