S.I. No. 637/2019 - European Union (Eurojust) Regulations 2019

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 20th December, 2019.

I, CHARLES FLANAGAN, Minister for Justice and Equality, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving full effect to Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018¹ on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA, hereby make the following regulations:

1.

• (2) These Regulations shall come into operation on 12 December 2019.

2.

3.

“ ‘Eurojust’ means the European Union Agency for Criminal Justice Cooperation established by Article 1 of Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 20181 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA, which replaced and succeeded Eurojust as established by the said Council Decision 2002/187/JHA² ;”.

4.

• (a) in subsection (1) -

• (i) by the deletion of the definition of “2009 Council Decision”,

• (ii) in the definition of “international instrument” -

• (I) by the deletion of paragraph (gd), and

• (II) by the insertion of the following paragraph after paragraph (gc):

• “(ge) the 2018 Regulation;”,

and

• (iii) by the insertion of the following definition:

“ ‘2018 Regulation’ means Regulation (EU) 2018/1727 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA1;”,

and

• (b) in subsection (6) -

• (i) by the deletion of paragraph (gb), and

• (ii) by the insertion of the following paragraph after paragraph (ga):

• “(gc) Schedule 7C sets out the English text of the 2018 Regulation,”.

5.

• “(3) The Minister may, in accordance with Article 20 of the 2018 Regulation, designate an authority or authorities as the Eurojust national correspondent or correspondents and, subject to subsection (4), any authority so designated has the functions assigned under that Regulation to such a correspondent.

• (4) Where the Minister designates more than one authority as a Eurojust national correspondent pursuant to subsection (3), the Minister may specify the matter or matters for which each national correspondent being designated shall have responsibility.

• (5) Where the Minister designates more than one authority as a Eurojust national correspondent pursuant to subsection (2) or (3), the Minister shall nominate one such correspondent to act as the correspondent with responsibility for the functioning of the Eurojust national coordination system in the State in accordance with Article 20(5) of the 2018 Regulation.”.

6.

• (a) by the designation of that section as subsection (1),

• (b) in subsection (1) -

• (i) by the substitution of “2018 Regulation” for “2009 Council Decision”,

and

• (ii) by the substitution of “that Regulation” for “that Council Decision”,

and

• (c) by the insertion of the following subsections after subsection (1):

• “(2) The following persons or bodies shall, upon the request of the Eurojust national member, grant the member access to, or provide the member with the information contained in, the register or registers specified in paragraphs (a) to (k) in respect of the person or body concerned, in accordance with Article 9 of the 2018 Regulation, where such access or information is necessary for the performance by the member of the member’s functions:

  • (a) the Commissioner of the Garda Síochána, in respect of registers held by the Garda Síochána relating to investigations, arrested persons and criminal records, including the Criminal Records Database and the database commonly known as PULSE;

  • (b) Forensic Science Ireland of the Department of Justice and Equality, in respect of the DNA Database System;

  • (c) the Director of Public Prosecutions, in respect of the case management system of the Office of the Director of Public Prosecutions;

  • (d) the Courts Service, in respect of court records;

  • (e) the Revenue Commissioners, in respect of the case management system of the Commissioners;

  • (f) the Criminal Assets Bureau, in respect of the case management system of the Bureau;

  • (g) the Central Authority, in respect of the case management system of the Authority;

  • (h) the Central Authority in the State (within the meaning of section 3(1C) of the Extradition Act 1965 ), in respect of the case management system of the Authority;

  • (i) the Garda Síochána Ombudsman Commission, in respect of the case management system of the Commission;

  • (j) the Director of Corporate Enforcement, in respect of the case management system of the Office of the Director of Corporate Enforcement;

  • (k) any other public authority, in respect of a register held by the authority.

• (3) Section 31 of the Garda Síochána Act 2005 shall apply to the function of the Commissioner of the Garda Síochána under subsection (2)(a) and a reference in that section to a function under that Act or under a provision of that Act shall be construed as including a reference to the function of the Commissioner under subsection (2)(a).

• (4) Subsection (2) is without prejudice to an obligation or power to provide or request information under any other enactment or rule of law.

• (5) In this section -

‘Criminal Records Database’ means the database maintained by the Garda Síochána that contains a record of convictions;

‘public authority’ means -

- (a) a person or body established -

    - (i) by or under any enactment (other than the [Companies Act 2014](https://www.irishstatutebook.ie/2014/en/act/pub/0038/print.html) or a former enactment relating to companies within the meaning of section 5 of that Act) or charter,

    - (ii) by any scheme administered by a Minister of the Government, or

    - (iii) under the [Companies Act 2014](https://www.irishstatutebook.ie/2014/en/act/pub/0038/print.html) , or a former enactment relating to companies within the meaning of section 5 of that Act, in pursuance of powers conferred by or under another enactment, and financed wholly or partly by means of money provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of a Minister of the Government,

      or

- (b) a company (within the meaning of Companies Act 2014), a majority of the shares in which are held by or on behalf of a Minister of the Government;

  ‘register’ has the meaning it has in the 2018 Regulation.”.

7.

• (a) the deletion of Schedule 7B, and

• (b) the insertion after Schedule 7A of Schedule 7C as set out in the Schedule to these Regulations.

SCHEDULE

“SCHEDULE 7C

Text of 2018 Regulation

REGULATION (EU) 2018/1727 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 14 November 2018

on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 85 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure (³) ,

Whereas:

• (1) Eurojust was set up by Council Decision 2002/187/JHA (⁴) as a Union body with legal personality, to stimulate and to improve coordination and cooperation between competent judicial authorities of the Member States, particularly in relation to serious organised crime. Eurojust’s legal framework has been amended by Council Decisions 2003/ 659/JHA (³) and 2009/426/JHA (⁴) .

• (2) Article 85 of the Treaty on the Functioning of the European Union (TFEU) provides for Eurojust to be governed by a regulation, adopted in accordance with the ordinary legislative procedure. It also requires determining arrangements for involving the European Parliament and national parliaments in the evaluation of Eurojust’s activities.

• (3) Article 85 TFEU also provides that Eurojust’s mission is to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring prosecution on common bases, on the basis of operations conducted and information supplied by the Member States’ authorities and by the European Union Agency for Law Enforcement Cooperation (Europol).

• (4) This Regulation aims to amend and expand the provisions of Decision 2002/187/JHA. Since the amendments to be made are of substantial number and nature, Decision 2002/187/JHA should in the interests of clarity be replaced in its entirety in relation to the Member States bound by this Regulation.

• (5) As the European Public Prosecutor’s Office (EPPO) has been established by means of enhanced cooperation, Council Regulation (EU) 2017/1939 (⁵) ) is binding in its entirety and directly applicable only to Member States that participate in enhanced cooperation. Therefore, for those Member States which do not participate in the EPPO, Eurojust remains fully competent for forms of serious crime listed in Annex I to this Regulation.

• (6) Article 4(3) of the Treaty on European Union (TEU) recalls the principle of sincere cooperation by virtue of which the Union and the Member States are, in full mutual respect, to assist each other in carrying out tasks which flow from the TEU and the TFEU.

• (7) In order to facilitate cooperation between Eurojust and the EPPO, Eurojust should address issues of relevance to the EPPO whenever necessary.

• (8) In light of the establishment of the EPPO by means of enhanced cooperation, the division of competences between the EPPO and Eurojust with respect to crimes affecting the financial interests of the Union needs to be clearly established. From the date on which the EPPO assumes its tasks, Eurojust should be able to exercise its competence in cases which concern crimes for which the EPPO is competent, where those crimes involve both Member States which participate in enhanced cooperation on the establishment of the EPPO and Member States which do not participate in such enhanced cooperation. In such cases, Eurojust should act at the request of the non-participating Member States or at the request of the EPPO. Eurojust should in any case remain competent for offences affecting the financial interests of the Union whenever the EPPO is not competent or where, although the EPPO is competent, it does not exercise its competence. The Members States which do not participate in enhanced cooperation on the establishment of the EPPO may continue to request Eurojust’s support in all cases regarding offences affecting the financial interests of the Union. The EPPO and Eurojust should develop close operational cooperation in line with their respective mandates.

• (9) In order for Eurojust to fulfil its mission and develop its full potential in the fight against serious cross-border crime, its operational functions should be strengthened by reducing the administrative workload of national members, and its European dimension enhanced through the Commission’s participation in the Executive Board and the increased involvement of the European Parliament and national parliaments in the evaluation of its activities.

• (10) Therefore, this Regulation should determine the arrangements for parliamentary involvement, modernising Eurojust’s structure and simplifying its current legal framework, while maintaining those elements that have proven to be efficient in its operation.

• (11) The forms of serious crime affecting two or more Member States for which Eurojust is competent should be clearly laid down. In addition, cases which do not involve two or more Member States, but which require a prosecution on common bases, should be defined. Such cases may include investigations and prosecutions affecting only one Member State and a third country where an agreement has been concluded with that third country or where there may be a specific need for Eurojust’s involvement. Such prosecution may also refer to cases which affect one Member State and have repercussions at Union level.

• (12) When exercising its operational functions in relation to concrete criminal cases, at the request of the competent authorities of Member States or on its own initiative, Eurojust should act either through one or more of the national members or as a College. By acting on its own initiative, Eurojust may take a more proactive role in coordinating cases, such as by supporting the national authorities in their investigations and prosecutions. This may include involving Member States that might not initially have been included in the case and discovering links between cases based on the information it receives from Europol, the European Anti-Fraud Office (OLAF), the EPPO and national authorities. This also allows Eurojust to produce guidelines, policy documents and casework-related analyses as part of its strategic work.

• (13) At the request of a Member State’s competent authority or of the Commission, it should also be possible for Eurojust to assist with investigations involving only that Member State but which have repercussions at Union level. Examples of such investigations include cases where a member of a Union institution or body is involved. Such investigations also cover cases which involve a significant number of Member States and could potentially require a coordinated European response.

• (14) The written opinions of Eurojust are not binding on Member States, but should be responded to in accordance with this Regulation.

• (15) To ensure Eurojust can support and coordinate cross-border investigations appropriately, it is necessary that all national members have the necessary operational powers with respect to their Member State and in accordance with the law of that Member State in order to cooperate between themselves and with national authorities in a more coherent and effective way. National members should be granted those powers that allow Eurojust to appropriately achieve its mission. Those powers should include accessing relevant information in national public registers, directly contacting and exchanging information with competent authorities and participating in joint investigation teams. National members may, in accordance with their national law, retain the powers which are derived from their capacity as national authorities. In agreement with the competent national authority or in urgent cases, national members may also order investigative measures and controlled deliveries, and issue and execute requests for mutual legal assistance or mutual recognition. Since those powers are to be exercised in accordance with national law, the courts of Member States should be competent to review those measures, in accordance with the requirements and procedures laid down by national law.

• (16) It is necessary to provide Eurojust with an administrative and management structure that allows it to perform its tasks more effectively, complies with the principles applicable to Union agencies, and fully respects fundamental rights and freedoms, while maintaining Eurojust’s special characteristics and safeguarding its independence in the exercise of its operational functions. To that end, the functions of the national members, the College and the Administrative Director should be clarified and an Executive Board established.

• (17) Provisions should be laid down to clearly distinguish between the operational and the management functions of the College, thus reducing the administrative burden on national members to a minimum so that the focus is put on Eurojust’s operational work. The management tasks of the College should include in particular the adoption of Eurojust’s work programmes, budget, annual activity report, and working arrangements with partners. The College should exercise the power of appointing authority with respect to the Administrative Director. The College should also adopt Eurojust’s rules of procedure. Since those rules of procedure may have an impact on the judicial activities of the Member States, implementing powers should be conferred on the Council to approve those rules.

• (18) To improve Eurojust’s governance and streamline procedures, an Executive Board should be established to assist the College in its management functions and to allow for streamlined decision-making on non-operational and strategic issues.

• (19) The Commission should be represented in the College when the College exercises its management functions. The Commission’s representative in the College should be also its representative on the Executive Board, to ensure non-operational supervision of Eurojust and to provide it with strategic guidance.

• (20) In order to ensure the efficient day-to-day administration of Eurojust, the Administrative Director should be its legal representative and manager, accountable to the College. The Administrative Director should prepare and implement the decisions of the College and the Executive Board. The Administrative Director should be appointed on the basis of merit, and of his or her documented administrative and managerial skills, as well as relevant competence and experience.

• (21) A President and two Vice-Presidents of Eurojust should be elected by the College from among the national members for a term of office of four years. When a national member is elected President, the Member State concerned should be able to second another suitably qualified person to the national desk and to apply for compensation from Eurojust’s budget.

• (22) Suitably qualified persons are persons who have the necessary qualifications and experience to perform the tasks required to ensure that the national desk functions effectively. They may have the status of a deputy or Assistant to the national member who has been elected President or they may have a more administrative or technical function. Each Member State should be able to decide on its own requirements in this regard.

• (23) Quorum and voting procedures should be regulated in Eurojust’s rules of procedure. In exceptional cases, where a national member and his or her deputy are absent, the Assistant of the national member concerned should be entitled to vote in the College if the Assistant has the status of a magistrate, i.e. a prosecutor, judge or representative of a judicial authority.

• (24) Since the compensation mechanism has a budgetary impact, this Regulation should confer implementing powers to determine that mechanism on the Council.

• (25) The setting up of an on-call coordination mechanism within Eurojust is necessary to make Eurojust more efficient and enable it to be available around the clock to intervene in urgent cases. Each Member State should ensure that their representatives in the on-call coordination mechanism are available to act 24 hours a day, seven days a week.

• (26) Eurojust national coordination systems should be set up in the Member States to coordinate the work carried out by the national correspondents for Eurojust, the national correspondent for terrorism matters, any national correspondent for issues relating to the competence of the EPPO, the national correspondent for the European Judicial Network and up to three other contact points, as well as representatives in the network for joint investigation teams and representatives in the networks set up by Council Decisions 2002/494/JHA (⁸) ), 2007/845/ JHA (⁹) and 2008/852/JHA (¹⁰) . Member States may decide that one or more of those tasks are to be performed by the same national correspondent.

• (27) For the purposes of stimulating and strengthening coordination and cooperation between national investigating and prosecuting authorities, it is crucial that Eurojust receive information from national authorities that is necessary for the performance of its tasks. To that end, competent national authorities should inform their national members of the setting up and results of joint investigation teams without undue delay. Competent national authorities should also inform national members without undue delay of cases falling under the competence of Eurojust that directly involve at least three Member States and for which requests or decisions on judicial cooperation have been transmitted to at least two Member States. Under certain circumstances, they should also inform national members of conflicts of jurisdiction, controlled deliveries and repeated difficulties in judicial cooperation.

• (28) Directive (EU) 2016/680 of the European Parliament and of the Council (¹¹) sets out harmonised rules for the protection and the free movement of personal data processed for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security. In order to ensure the same level of protection for natural persons through legally enforceable rights throughout the Union and to prevent divergences hampering the exchange of personal data between Eurojust and competent authorities in Member States, the rules for the protection and the free movement of operational personal data processed by Eurojust should be consistent with Directive (EU) 2016/680.

• (29) The general rules of the distinct Chapter of Regulation (EU) 2018/1725 of the European Parliament and of the Council (¹²) on the processing of operational personal data should apply without prejudice to the specific data protection rules of this Regulation. Such specific rules should be regarded as lex specialis to the provisions in that Chapter of Regulation (EU) 2018/1725 (lex specialis derogat legi generali). In order to reduce legal fragmentation, specific data protection rules in this Regulation should be consistent with the principles underpinning that Chapter of Regulation (EU) 2018/1725, as well as with the provisions of that Regulation relating to independent supervision, remedies, liability and penalties.

• (30) The protection of the rights and freedoms of data subjects requires a clear attribution of responsibilities for data protection under this Regulation. Member States should be responsible for the accuracy of data they have transmitted to Eurojust and which have been processed unaltered by Eurojust, for keeping such data up to date and for the legality of transmitting those data to Eurojust. Eurojust should be responsible for the accuracy of data provided by other data suppliers or resulting from Eurojust’s own analyses or data collection and for keeping such data up to date. Eurojust should ensure that data are processed fairly and lawfully, and are collected and processed for a specific purpose. Eurojust should also ensure that the data are adequate, relevant, not excessive in relation to the purpose for which they are processed, stored no longer than is necessary for that purpose, and processed in a manner that ensures appropriate security of personal data and confidentiality of data processing.

• (31) Appropriate safeguards for the storage of operational personal data for archiving purposes in the public interest or statistical purposes should be included in Eurojust’s rules of procedure.

• (32) A data subject should be able to exercise the right of access referred to in Regulation (EU) 2018/1725 to operational personal data relating to him or her which are processed by Eurojust. The data subject may make such a request at reasonable intervals, free of charge, to Eurojust or to the national supervisory authority in the Member State of the data subject’s choice.

• (33) The data protection provisions of this Regulation are without prejudice to the applicable rules on the admissibility of personal data as evidence in criminal pre-trial and court proceedings.

• (34) All processing of personal data by Eurojust, within the framework of its competence, for the fulfilment of its tasks should be considered as processing of operational personal data.

• (35) As Eurojust also processes administrative personal data unrelated to criminal investigations, the processing of such data should be subject to the general rules of Regulation (EU) 2018/1725.

• (36) Where operational personal data are transmitted or supplied to Eurojust by the Member State, the competent authority, the national member or the national correspondent for Eurojust should have the right to request rectification or erasure of those operational personal data.

• (37) In order to demonstrate compliance with this Regulation, Eurojust or the authorised processor should maintain records regarding all categories of processing activities under its responsibility. Eurojust and each authorised processor should be obliged to cooperate with the European Data Protection Supervisor (the ‘EDPS’) and to make those records available to it on request, so that they might serve for monitoring those processing operations. Eurojust or its authorised processor, when processing personal data in non-automated processing systems, should have in place effective methods of demonstrating the lawfulness of the processing, of enabling self-monitoring and of ensuring data integrity and data security, such as logs or other forms of records.

• (38) The Executive Board of Eurojust should designate a Data Protection Officer who should be a member of the existing staff. The person designated as Data Protection Officer of Eurojust should have received specialised training in data protection law and practice for acquiring expert knowledge in that field. The necessary level of expert knowledge should be determined in relation to the data processing carried out and the protection required for the personal data processed by Eurojust.

• (39) The EDPS should be responsible for monitoring and ensuring the complete application of the data protection provisions of this Regulation with regard to processing of operational personal data by Eurojust. The EDPS should be granted powers allowing him or her to fulfil this duty effectively. The EDPS should have the right to consult Eurojust regarding submitted requests, to refer matters to Eurojust for the purpose of addressing concerns that have emerged regarding its processing of operational personal data, to make proposals for improving the protection of the data subjects, and to order Eurojust to carry out specific operations with regard to processing of operational personal data. As a result, the EDPS requires the means to have the orders complied with and executed. He or she should therefore also have the power to warn Eurojust. To warn means to issue an oral or written reminder of Eurojust’s obligation to execute the EDPS’ orders or to comply with the proposals of the EDPS and a reminder of the measures to be applied upon any non-compliance or refusal by Eurojust.

• (40) The duties and powers of the EDPS, including the power to order Eurojust to carry out the rectification, restriction of processing or erasure of operational personal data which have been processed in breach of the data protection provisions contained in this Regulation, should not extend to the personal data contained in national case files.

• (41) In order to facilitate cooperation between the EDPS and the national supervisory authorities, but without prejudice to the independence of the EDPS or to his or her responsibility for supervision of Eurojust with regard to data protection, the EDPS and national supervisory authorities should regularly meet within the European Data Protection Board, in line with the rules on coordinated supervision laid down in Regulation (EU) 2018/1725.

• (42) As the first recipient on the territory of the Union of data provided by or retrieved from third countries or international organisations, Eurojust should be responsible for the accuracy of such data. Eurojust should take measures to verify as far as possible the accuracy of the data upon receiving the data or when making data available to other authorities.

• (43) Eurojust should be subject to the general rules on contractual and non-contractual liability applicable to Union institutions, bodies, offices and agencies.

• (44) Eurojust should be able to exchange relevant personal data and maintain cooperative relations with other Union institutions, bodies, offices or agencies to the extent necessary for the fulfilment of its or their tasks.

• (45) To guarantee purpose limitation, it is important to ensure that personal data can be transferred by Eurojust to third countries and international organisations only if necessary for preventing and combating crime that falls within Eurojust’s tasks. To this end, it is necessary to ensure that, when personal data are transferred, the recipient gives an undertaking that the data will be used by the recipient or transferred onward to a competent authority of a third country solely for the purpose for which they were originally transferred. Further onward transfer of the data should take place in compliance with this Regulation.

• (46) All Member States are affiliated to the International Criminal Police Organisation (Interpol). To fulfil its mission, Interpol receives, stores and circulates personal data to assist competent authorities in preventing and combating international crime. It is therefore appropriate to strengthen cooperation between the Union and Interpol by promoting an efficient exchange of personal data while ensuring respect for fundamental rights and freedoms regarding the automatic processing of personal data. Where operational personal data are transferred from Eurojust to Interpol, and to countries which have delegated members to Interpol, this Regulation, in particular the provisions on international transfers, should apply. This Regulation should be without prejudice to the specific rules laid down in Council Common Position 2005/69/JHA (¹³) and Council Decision 2007/533/JHA (¹⁴) .

• (47) When Eurojust transfers operational personal data to an authority of a third country or to an international organisation by virtue of an international agreement concluded pursuant to Article 218 TFEU, adequate safeguards should be provided for with respect to the protection of privacy and fundamental rights and freedoms of individuals to ensure that the applicable data protection rules are complied with.

• (48) Eurojust should ensure that a transfer to a third country or to an international organisation takes place only if necessary for the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security, and that the controller in the third country or international organisation is an authority competent within the meaning of this Regulation. A transfer should be carried out only by Eurojust acting as controller. Such a transfer may take place in cases where the Commission has decided that the third country or international organisation in question ensures an adequate level of protection, where appropriate safeguards have been provided, or where derogations for specific situations apply.

• (49) Eurojust should be able to transfer personal data to an authority of a third country or an international organisation on the basis of a Commission decision finding that the country or international organisation in question ensures an adequate level of data protection (‘adequacy decision’), or, in the absence of an adequacy decision, an international agreement concluded by the Union pursuant to Article 218 TFEU, or a cooperation agreement allowing for the exchange of personal data concluded between Eurojust and the third country prior to the date of application of this Regulation.

• (50) Where the College identifies an operational need for cooperation with a third country or an international organisation, it should be able to suggest that the Council draw the attention of the Commission to the need for an adequacy decision or for a recommendation for the opening of negotiations on an international agreement pursuant to Article 218 TFEU.

• (51) Transfers not based on an adequacy decision should be allowed only where appropriate safeguards have been provided in a legally binding instrument which ensures the protection of personal data or where Eurojust has assessed all the circumstances surrounding the data transfer and, on the basis of that assessment, considers that appropriate safeguards with regard to the protection of personal data exist. Such legally binding instruments could, for example, be legally binding bilateral agreements which have been concluded by the Member States and implemented in their legal order and which could be enforced by their data subjects, ensuring compliance with data protection requirements and the rights of the data subjects, including the right to obtain effective administrative or judicial redress. Eurojust should be able to take into account cooperation agreements concluded between Eurojust and third countries which allow for the exchange of personal data when carrying out the assessment of all the circumstances surrounding the data transfer. Eurojust should be able to also take into account the fact that the transfer of personal data will be subject to confidentiality obligations and the principle of specificity, ensuring that the data will not be processed for other purposes than for the purposes of the transfer. In addition, Eurojust should take into account that the personal data will not be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment. While those conditions could be considered to be appropriate safeguards allowing the transfer of data, Eurojust should be able to require additional safeguards.

• (52) Where no adequacy decision or appropriate safeguards exist, a transfer or a category of transfers could take place only in specific situations, if necessary to protect the vital interests of the data subject or another person, or to safeguard legitimate interests of the data subject where the law of the Member State transferring the personal data so provides; for the prevention of an immediate and serious threat to the public security of a Member State or a third country; in an individual case for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security; or in an individual case for the establishment, exercise or defence of legal claims. Those derogations should be interpreted restrictively and should not allow frequent, massive and structural transfers of personal data, or large-scale transfers of data, but should be limited to data strictly necessary. Such transfers should be documented and should be made available to the EDPS on request in order to monitor the lawfulness of the transfer.

• (53) In exceptional cases, Eurojust should be able to extend the deadlines for the storage of operational personal data in order to achieve its objectives, subject to observance of the purpose limitation principle applicable to processing of personal data in the context of all its activities. Such decisions should be taken following careful consideration of all interests at stake, including those of the data subjects. Any extension of a deadline for processing personal data in cases where prosecution is time-barred in all Member States concerned should be decided only where there is a specific need to provide assistance under this Regulation.

• (54) Eurojust should maintain privileged relations with the European Judicial Network based on consultation and complementarity. This Regulation should help clarify the respective roles of Eurojust and the European Judicial Network and their mutual relations, while maintaining the specificity of the European Judicial Network.

• (55) Eurojust should maintain cooperative relations with other Union institutions, bodies, offices and agencies, with the EPPO, with the competent authorities of third countries and with international organisations, to the extent required for the fulfilment of its tasks.

• (56) To enhance operational cooperation between Eurojust and Europol, and particularly to establish links between data already in the possession of either agency, Eurojust should enable Europol to have access, on the basis of a hit/no-hit system, to data held by Eurojust. Eurojust and Europol should ensure that the necessary arrangements are established to optimise their operational cooperation, taking due account of their respective mandates and any restrictions provided by the Member States. These working arrangements should ensure access to, and the possibility of searching, all information that has been provided to Europol for the purpose of cross-checking in accordance with the specific safeguards and data protection guarantees provided for in this Regulation. Any access by Europol to data held by Eurojust should be limited by technical means to information falling within the respective mandates of those Union agencies.

• (57) Eurojust and Europol should keep each other informed of any activity involving the financing of joint investigation teams.

• (58) Eurojust should be able to exchange personal data with Union institutions, bodies, offices and agencies to the extent necessary for the fulfilment of its tasks, with full respect for the protection of privacy and other fundamental rights and freedoms.

• (59) Eurojust should enhance its cooperation with competent authorities of third countries and international organisations on the basis of a strategy drawn up in consultation with the Commission. For that purpose, provision should be made for Eurojust to post liaison magistrates to third countries in order to achieve objectives similar to those assigned to liaison magistrates seconded by the Member States on the basis of Council Joint Action 96/277/ JHA (¹⁵) .

• (60) Provision should be made for Eurojust to coordinate the execution of requests for judicial cooperation issued by a third country, where those requests require execution in at least two Member States as part of the same investigation. Eurojust should only undertake such coordination with the agreement of the Member States concerned.

• (61) To guarantee the full autonomy and independence of Eurojust, it should be granted an autonomous budget sufficient to properly carry out its work, with revenue coming essentially from a contribution from the budget of the Union, except as regards the salaries and emoluments of the national members, deputies and Assistants, which are borne by their Member State. The Union budgetary procedure should be applicable as far as the Union contribution and other subsidies chargeable to the general budget of the Union are concerned. The auditing of accounts should be undertaken by the Court of Auditors and approved by the Committee on Budgetary Control of the European Parliament.

• (62) In order to increase the transparency and democratic oversight of Eurojust, it is necessary to provide a mechanism pursuant to Article 85(1) TFEU for the joint evaluation of Eurojust’s activities by the European Parliament and national parliaments. The evaluation should take place in the framework of an inter-parliamentary committee meeting in the premises of the European Parliament in Brussels, with the participation of members of the competent committees of the European Parliament and of the national parliaments. The interparliamentary committee meeting should fully respect Eurojust’s independence as regards actions to be taken in specific operational cases and as regards the obligation of discretion and confidentiality.

• (63) It is appropriate to evaluate the application of this Regulation regularly.

• (64) Eurojust’s functioning should be transparent in accordance with Article 15(3) TFEU. Specific provisions on how the right of public access to documents is ensured should be adopted by the College. Nothing in this Regulation is intended to restrict the right of public access to documents in so far as it is guaranteed in the Union and in the Member States, in particular under Article 42 of the Charter of Fundamental Rights of the European Union (the ‘Charter’). The general rules on transparency that apply to Union agencies should also apply to Eurojust in a way that does not jeopardise in any manner the obligation of confidentiality in its operational work. Administrative inquiries conducted by the European Ombudsman should respect the obligation of confidentiality of Eurojust.

• (65) In order to increase Eurojust’s transparency vis-à-vis Union citizens and its accountability, Eurojust should publish a list of its Executive Board members on its website and, where appropriate, summaries of the outcome of the meetings of the Executive Board, while respecting data protection requirements.

• (66) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (¹⁶) should apply to Eurojust.

• (67) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (¹⁷) should apply to Eurojust.

• (68) The necessary provisions regarding accommodation for Eurojust in the Member State in which it has its headquarters, that is to say in the Netherlands, and the specific rules applicable to all Eurojust’s staff and members of their families should be laid down in a headquarters agreement. The host Member State should provide the best possible conditions to ensure the functioning of Eurojust, including multilingual, European-oriented schooling and appropriate transport connections, so as to attract high-quality human resources from as wide a geographical area as possible.

• (69) Eurojust as established by this Regulation should be the legal successor of Eurojust as established by Decision 2002/ 187/JHA with respect to all its contractual obligations, including employment contracts, liabilities and properties acquired. International agreements concluded by Eurojust as established by that Decision should remain in force.

• (70) Since the objective of this Regulation, namely the setting up of an entity responsible for supporting and strengthening coordination and cooperation between judicial authorities of the Member States in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

• (71) In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Regulation and are not bound by it or subject to its application.

• (72) In accordance with Articles 1 and 2 of the Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

• (73) The EDPS was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (¹⁸) and delivered an opinion on 5 March 2014.

• (74) This Regulation fully respects the fundamental rights and safeguards and observes the principles recognised in particular by the Charter,

HAVE ADOPTED THIS REGULATION:

CHAPTER I ESTABLISHMENT, OBJECTIVES AND TASKS OF EUROJUST

Article 1

Establishment of the European Union Agency for Criminal Justice Cooperation

Article 2

Tasks

• (a) take into account any request emanating from a competent authority of a Member State, any information provided by Union authorities, institutions, bodies, offices and agencies competent by virtue of provisions adopted within the framework of the Treaties and any information collected by Eurojust itself;

• (b) facilitate the execution of requests for, and decisions on, judicial cooperation, including requests and decisions based on instruments that give effect to the principle of mutual recognition.

Article 3

Competence of Eurojust

Eurojust, the EPPO and the Member States concerned shall consult and cooperate with each other to facilitate Eurojust’s exercise of competence under this paragraph. The practical details of its exercise of competence under this paragraph shall be governed by a working arrangement as referred to in Article 47(3).

• (a) criminal offences committed in order to procure the means of committing the serious crimes listed in Annex I;

• (b) criminal offences committed in order to facilitate or commit the serious crimes listed in Annex I;

• (c) criminal offences committed in order to ensure the impunity of those committing the serious crimes listed in Annex I.

Article 4

Operational functions of Eurojust

• (a) inform the competent authorities of the Member States of investigations and prosecutions of which it has been informed which have repercussions at Union level or which might affect Member States other than those directly concerned;

• (b) assist the competent authorities of the Member States in ensuring the best possible coordination of investigations and prosecutions;

• (c) assist in improving cooperation between the competent authorities of the Member States, in particular on the basis of Europol’s analyses;

• (d) cooperate and consult with the European Judicial Network in criminal matters, including by making use of and contributing to the improvement of the documentary database of the European Judicial Network;

• (e) cooperate closely with the EPPO on matters relating to its competence;

• (f) provide operational, technical and financial support to Member States’ cross-border operations and investigations, including to joint investigation teams;

• (g) support, and where appropriate participate in, the Union centres of specialised expertise developed by Europol and other Union institutions, bodies, offices and agencies;

• (h) cooperate with Union institutions, bodies, offices and agencies, as well as networks established in the area of freedom, security and justice regulated under Title V of the TFEU;

• (i) support Member States’ action in combating forms of serious crime listed in Annex I.

• (a) undertake an investigation or prosecution of specific acts;

• (b) accept that one of them may be in a better position to undertake an investigation or to prosecute specific acts;

• (c) coordinate between the competent authorities of the Member States concerned;

• (d) set up a joint investigation team in accordance with the relevant cooperation instruments;

• (e) provide it with any information that is necessary for carrying out its tasks;

• (f) take special investigative measures;

• (g) take any other measure justified for the investigation or prosecution.

• (a) provide Europol with opinions based on analyses carried out by Europol;

• (b) supply logistical support, including translation, interpretation and the organisation of coordination meetings.

Article 5

Exercise of operational and other functions

• (a) when taking any of the actions referred to in Article 4(1) or (2):

• (i) at the request of one or more of the national members concerned by a case dealt with by Eurojust;

• (ii) where the case involves investigations or prosecutions which have repercussions at Union level or which might affect Member States other than those directly concerned;

• (b) when taking any of the actions referred to in Article 4(3), (4) or (5);

• (c) where a general question relating to the achievement of its operational objectives is involved;

• (d) when adopting Eurojust’s annual budget, in which case the decision shall be taken by a majority of two thirds of its members;

• (e) when adopting the programming document referred to in Article 15 or the annual report on Eurojust’s activities, in which cases the decision shall be taken by a majority of two thirds of its members;

• (f) when electing or dismissing the President and Vice-Presidents under Article 11;

• (g) when appointing the Administrative Director or, where relevant, extending his or her term of office or removing him or her from office under Article 17;

• (h) when adopting working arrangements under Articles 47(3) and 52;

• (i) when adopting rules for the prevention and management of conflicts of interest in respect of its members, including in relation to their declaration of interests;

• (j) when adopting reports, policy papers, guidelines for the benefit of national authorities and opinions pertaining to the operational work of Eurojust, whenever those documents are of a strategic nature;

• (k) when appointing liaison magistrates in accordance with Article 53;

• (l) when taking any decision which is not expressly attributed to the Executive Board by this Regulation or which is not under the responsibility of the Administrative Director in accordance with Article 18;

• (m) when otherwise provided for in this Regulation.

Where exceptional circumstances so require, the College may decide to suspend temporarily the delegation of the appointing authority powers to the Administrative Director and of those powers that have been sub-delegated by the latter, and to exercise them itself or to delegate them to one of its members or to a staff member other than the Administrative Director.

CHAPTER II STRUCTURE AND ORGANISATION OF EUROJUST

SECTION I

Structure

Article 6

Structure of Eurojust

Eurojust shall comprise:

• (a) the national members;

• (b) the College;

• (c) the Executive Board;

• (d) the Administrative Director.

SECTION II

National members

Article 7

Status of national members

Article 8

Powers of national members

• (a) facilitate or otherwise support the issuing or execution of any request for mutual legal assistance or mutual recognition;

• (b) directly contact and exchange information with any competent national authority of the Member State or any other competent Union body, office or agency, including the EPPO;

• (c) directly contact and exchange information with any competent international authority, in accordance with the international commitments of their Member State;

• (d) participate in joint investigation teams including in setting them up.

• (a) issue or execute any request for mutual legal assistance or mutual recognition;

• (b) order, request or execute investigative measures, as provided for in Directive 2014/41/EU of the European Parliament and of the Council (¹⁹) .

• (a) a Member State’s constitutional rules; or

• (b) fundamental aspects of that Member State’s national criminal justice system regarding:

• (i) the division of powers between the police, prosecutors and judges;

• (ii) the functional division of tasks between prosecution authorities; or

• (iii) the federal structure of the Member State concerned.

Article 9

Access to national registers

National members shall have access to, or at least be able to obtain the information contained in, the following types of registers of their Member State, in accordance with their national law:

• (a) criminal records;

• (b) registers of arrested persons;

• (c) investigation registers;

• (d) DNA registers;

• (e) other registers of public authorities of their Member State where such information is necessary to fulfil their tasks.

SECTION III

The College

Article 10

Composition of the College

• (a) all the national members; and

• (b) one representative of the Commission when the College exercises its management functions.

The representative of the Commission nominated under point (b) of the first subparagraph should be the same person as the Commission’s representative on the Executive Board under Article 16(4).

Article 11

The President and Vice-President of Eurojust

• (a) represent Eurojust;

• (b) call and preside over the meetings of the College and the Executive Board and keep the College informed of any matters that are of interest to it;

• (c) direct the work of the College and monitor Eurojust’s daily management by the Administrative Director;

• (d) exercise any other functions set out in Eurojust’s rules of procedure.

A Member State which decides to second such a person shall be entitled to apply for compensation in accordance with Article 12.

Article 12

Compensation mechanism for the election to the position of President

• (a) its national member has been elected President; and

• (b) it requests compensation from the College and provides justification for the need to reinforce its national desk on grounds of an increased workload.

Article 13

Meetings of the College

Article 14

Voting rules of the College

Article 15

Annual and multi-annual programming