20.6.2023
EN
Official Journal of the European Union
C 217/21
Summary of the Opinion of the European Data Protection Supervisor on the negotiating mandate to conclude an international agreement on the exchange of personal data between Europol and Bolivian law enforcement authorities (2023/C 217/09) (The full text of this Opinion can be found in English, French and German on the EDPS website https://edps.europa.eu)
On 9 March 2023 the European Commission issued a Recommendation for a Council decision authorising the opening of negotiations for an agreement between the European Union and the Plurinational State of Bolivia on the exchange of personal data between the European Union Agency for Law Enforcement Cooperation (Europol) and the Bolivian authorities competent for fighting serious crime and terrorism (1) (‘the Recommendation’).
The objective of the Recommendation is to open negotiations with Bolivia with the purpose of signing and concluding an international agreement enabling the exchange of personal data between Europol and the Bolivian authorities competent for fighting serious crime and terrorism.
The Annex to the Recommendation lays down the Council’s negotiating directives to the Commission, i.e. the objectives the latter should aim to achieve on behalf of the EU in the course of these negotiations.
Transfers of personal data gathered in the context of criminal investigations and further processed by Europol to produce criminal intelligence are liable to have a significant impact on the lives of the individuals concerned.
For that reason, the international agreement must ensure that the limitations to the rights to privacy and data protection in relation to the fight against serious crime and terrorism apply only in so far as is strictly necessary.
The EDPS positively notes that the Commission has established by now, based also on a number of the recommendations from the previous EDPS Opinions on this matter, a well-structured set of objectives (negotiating directives), incorporating fundamental data protection principles, which the Commission aims to achieve on behalf of the EU in the course of international negotiations to conclude agreements on the exchange of personal data between Europol and third country law enforcement authorities.
In this regard, the recommendations in this Opinion are aimed at clarifying and, where necessary, further developing the safeguards and controls in the future Agreement between the EU and Bolivia with respect to the protection of personal data.
In this context, the EDPS recommends that the future Agreement explicitly lays down the list of the criminal offences regarding which personal data could be exchanged; provides for a periodic review of the need for storage of the transferred personal data as well as other appropriate measures ensuring that the time limits are observed; adduces additional safeguards as regards the transfer of special categories of data; ensures that no automated decision based on the received data under the Agreement would take place without the possibility for a human being to intervene in an effective and meaningful way; lays down clear and detailed rules regarding the information that should be made available to the data subjects.
The EDPS recalls that, pursuant to Article 8(3) of the Charter, the control by an independent authority is an essential element of the right to the protection of personal data.
The EDPS therefore recommends to the Commission to pay special attention, during the negotiations to the oversight by independent public bodies responsible for data protection with effective powers vis-a-vis the law enforcement and other competent authorities of Bolivia that will use the transferred personal data.
In addition, in order to ensure proper implementation of the Agreement, the EDPS also suggests that the Parties exchange on a regular basis information on the exercise of rights by data subjects as well as relevant information about the use of the oversight and redress mechanisms related to the application of the Agreement.
(1) COM(2023) 130 final.