The European Union Agency for Law Enforcement Cooperation (Europol) was established by Regulation (EU) 2016/794 of the European Parliament and of the Council (2) to support and strengthen action by the competent authorities of the Member States and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
(2)
Europe faces a security landscape in flux, with evolving and increasingly complex security threats. Terrorists and other criminals exploit the digital transformation and new technologies, in particular both the inter-connectivity and the blurring of the boundaries between the physical and the digital world, for example by concealing their crimes and their identities through the use of increasingly sophisticated techniques. Terrorists and other criminals have proven their ability to adapt their modes of operation and to develop new criminal activities in times of crisis, including by leveraging technology-enabled tools to multiply and expand the range and scale of their criminal activities. Terrorism remains a significant threat to the freedom and way of life of Union citizens.
(3)
Evolving and complex threats spread across borders, cover a variety of crimes that they facilitate, and manifest themselves in poly-criminal organised crime groups that engage in a wide range of criminal activities. As action at national level and cross-border cooperation do not suffice to address those transnational security threats, competent authorities of the Member States have increasingly made use of the support and expertise that Europol offers to prevent and counter serious crime and terrorism. Since Regulation (EU) 2016/794 became applicable, the operational importance of Europol’s tasks has increased substantially. Furthermore, the new threat environment changes the scope and type of support Member States need and expect from Europol to keep citizens safe.
(4)
Additional tasks should therefore be conferred upon Europol by this Regulation to allow Europol to better support competent authorities of the Member States while fully preserving the responsibilities of the Member States in the area of national security laid down in Article 4(2) of the Treaty on European Union (TEU). Europol’s reinforced mandate should be balanced with strengthened safeguards with regard to fundamental rights and increased accountability, liability and oversight, including parliamentary oversight and oversight through the Management Board of Europol (‘the Management Board’). To allow Europol to fulfil its reinforced mandate, it should be provided with adequate human and financial resources to support its additional tasks.
(5)
As the Union faces increasing threats from organised crime groups and terrorist attacks, an effective law enforcement response must include the availability of well-trained interoperable special intervention units specialised in the control of man-made crisis situations. In the Union, the special intervention units of the Member States cooperate on the basis of Council Decision 2008/617/JHA (3). Europol should be able to support those special intervention units by providing technical and financial support, complementing the efforts undertaken by Member States.
(6)
In recent years, large-scale cyberattacks, including attacks originating in third countries, have targeted public and private entities alike across many jurisdictions within the Union and outside it, affecting various sectors including transport, health and financial services. The prevention, detection, investigation and prosecution of such cyberattacks is supported by coordination and cooperation between relevant actors, including the European Union Agency for Cybersecurity (ENISA) established by Regulation (EU) 2019/881 of the European Parliament and of the Council (4), competent authorities on the security of network and information systems within the meaning of Directive (EU) 2016/1148 of the European Parliament and of the Council (5), competent authorities of the Member States and private parties. In order to ensure effective cooperation between all relevant actors at Union and national level on cyberattacks and cyber threats, Europol should cooperate with ENISA in particular through the exchange of information and analytical support in areas that fall within their respective competences.
(7)
High-risk criminals play a leading role in criminal networks and their criminal activities pose a high risk for the Union’s internal security. To combat high-risk organised crime groups and their leading members, Europol should be able to support Member States in focusing their investigative response on identifying the members and the leading members of those networks, their criminal activities and their financial assets.
(8)
The threats posed by serious crime require a coordinated, coherent, multi-disciplinary and multi-agency response. Europol should be able to facilitate and support intelligence-led, Member State-driven security initiatives that aim to identify, prioritise and address serious crime threats, such as the European Multidisciplinary Platform Against Criminal Threats (EMPACT). Europol should be able to provide administrative, logistical, financial and operational support to such initiatives.
(9)
The Schengen Information System (SIS), established in the field of police cooperation and judicial cooperation in criminal matters by Regulation (EU) 2018/1862 of the European Parliament and of the Council (6), is an essential tool for maintaining a high level of security within the area of freedom, security and justice. Europol, as a hub for information exchange in the Union, receives and holds valuable information from third countries and international organisations on persons suspected to be involved in crimes that fall within Europol’s objectives. Within the framework of its objectives and its task of supporting the Member States in preventing and combating serious crime and terrorism, Europol should support the Member States in processing data provided by third countries or international organisations to it by proposing the possible entry by Member States of alerts in SIS under a new category of information alerts in the interest of the Union (‘information alerts’), in order to make those information alerts available to the end-users of SIS. To that end, a periodic reporting mechanism should be put in place in order to ensure that Member States and Europol are informed about the outcome of the verification and analysis of those data and about whether the information has been entered in SIS. The modalities for Member States’ cooperation for the processing of such data and the entry of alerts in SIS, in particular as concerns the fight against terrorism, should be subject to continuous coordination among the Member States. The Management Board should specify the criteria on the basis of which it should be possible for Europol to issue proposals for the entry of such information alerts in SIS.
(10)
Europol has an important role to play in support of the evaluation and monitoring mechanism to verify the application of the Schengen acquis established by Council Regulation (EU) No 1053/2013 (7). Europol should therefore, on request of the Member States, contribute with its expertise, analyses, reports and other relevant information to the evaluation and monitoring mechanism to verify the application of the Schengen acquis.
(11)
Risk assessments help to anticipate new trends and to address new threats posed by serious crime and terrorism. To support the Commission and the Member States in carrying out effective risk assessments, Europol should provide the Commission and the Member States with threat assessment analyses based on the information it holds on criminal phenomena and trends, without prejudice to Union law on customs risk management.
(12)
In order for Union funding for security research to achieve its aim of ensuring that that research develop its full potential and address the needs of law enforcement, Europol should assist the Commission in identifying key research themes and in drawing up and implementing the Union framework programmes for research and innovation that are relevant to Europol’s objectives. Where relevant, it should be possible for Europol to disseminate the results of its research and innovation activities as part of its contribution to creating synergies between the research and innovation activities of relevant Union bodies. When designing and conceptualising research and innovation activities relevant to Europol’s objectives, Europol should be able, where appropriate, to consult the Joint Research Centre (JRC) of the Commission. Europol should take all necessary measures to avoid conflicts of interest. Where Europol assists the Commission in identifying key research themes and in drawing up and implementing a Union framework programme, Europol should not receive funding from that programme. It is important that Europol is able to rely upon the provision of adequate funding in order to be able to assist the Member States and the Commission in the area of research and innovation.
(13)
It is possible for the Union and the Member States to adopt restrictive measures relating to foreign direct investment on the grounds of security or public order. To that end, Regulation (EU) 2019/452 of the European Parliament and of the Council (8) establishes a framework for the screening of foreign direct investments into the Union. Foreign direct investments in emerging technologies deserve particular attention as they can have significant implications for security and public order, in particular when such technologies are used by competent authorities of the Member States. Given the involvement of Europol in monitoring emerging technologies and its involvement in developing new ways of using those technologies for law enforcement purposes, in particular through its Innovation Lab and through the EU Innovation Hub for Internal Security, Europol has extensive knowledge regarding the opportunities offered by such technologies as well as the risks associated with their use. It should therefore be possible for Europol to support Member States in the screening of foreign direct investments into the Union and the related risks to security that concern undertakings that provide technologies, including software, used by Europol for the prevention and investigation of crimes that fall within Europol’s objectives or critical technologies that could be used to facilitate terrorism. In that context, Europol’s expertise should support the screening of the foreign direct investments and the related risks to security. Particular account should be taken of whether the foreign investor has already been involved in activities affecting security, whether there is a serious risk that the foreign investor engages in illegal or criminal activities and whether the foreign investor is controlled directly or indirectly by the government of a third country, including through subsidies.
(14)
Europol provides specialised expertise for combating serious crime and terrorism. Upon request by a Member State, Europol staff should be able to provide operational support to the competent authorities of that Member State in operations and investigations, in particular by facilitating cross-border information exchange and providing forensic and technical support in operations and investigations, including in the context of joint investigation teams. Upon request by a Member State, Europol staff should be entitled to be present during the execution of investigative measures in that Member State. Europol staff should not have the power to execute investigative measures.
(15)
One of Europol’s objectives is to support and strengthen action by the competent authorities of the Member States and their mutual cooperation in preventing and combating forms of crime which affect a common interest covered by a Union policy. To strengthen that support, the Executive Director of Europol (‘the Executive Director’) should be able to propose to the competent authorities of a Member State that they initiate, conduct or coordinate the investigation of a crime which concerns only that Member State but affects a common interest covered by a Union policy. Europol should inform Eurojust and, where relevant, the European Public Prosecutor’s Office (‘the EPPO’) established by Council Regulation (EU) 2017/1939 (9), of any such proposal.
(16)
Publishing the identity and certain personal data of suspects or convicted individuals who are wanted on the basis of a national judicial decision increases the chances of Member States locating and arresting such individuals. To support Member States in locating and arresting such individuals, Europol should be able to publish on its website information on Europe’s most wanted fugitives as regards criminal offences that fall within Europol’s objectives. To the same end, Europol should facilitate the provision by the public of information on those individuals to the Member States and Europol.
(17)
Once Europol ascertains that personal data that it receives fall within its objectives, it should be able to process those personal data in the following four situations. In the first situation, the personal data received relate to any of the categories of data subjects listed in Annex II of Regulation (EU) 2016/794 (‘Annex II’). In the second situation, the personal data received consist of investigative data that contain data that do not relate to any of the categories of data subjects listed in Annex II but have been provided, pursuant to a request for Europol’s support for a specific criminal investigation, by a Member State, the EPPO, Eurojust or a third country, provided that that Member State, the EPPO, Eurojust or that third country is authorised to process such investigative data in accordance with procedural requirements and safeguards applicable under Union and national law. In that situation, Europol should be able to process those investigative data for as long as it supports that specific criminal investigation. In the third situation, the personal data received might not relate to the categories of data subjects listed in Annex II and have not been provided pursuant to a request for Europol’s support for a specific criminal investigation. In that situation, it should be possible for Europol to verify whether those personal data relate to any of those categories of data subjects. In the fourth situation, the personal data received have been submitted for the purpose of research and innovation projects and do not relate to the categories of data subjects listed in Annex II.
(18)
In accordance with Article 73 of Regulation (EU) 2018/1725 of the European Parliament and of the Council (10), where applicable and as far as possible, Europol is to make a clear distinction between the personal data that relate to the different categories of data subjects listed in Annex II.
(19)
Where Member States use Europol’s infrastructure for the exchange of personal data on crimes that do not fall within Europol’s objectives, Europol should not have access to those data and should be considered to be a processor pursuant to Article 87 of Regulation (EU) 2018/1725. In those cases, Europol should be able to process data that do not relate to the categories of data subjects listed in Annex II. Where Member States use Europol’s infrastructure for the exchange of personal data on crimes that fall within Europol’s objectives and where they grant Europol access to those data, the requirements linked to the categories of data subjects listed in Annex II should apply to any other processing of those data by Europol.
(20)
While respecting the principle of data minimisation, Europol should be able to verify whether personal data received in the context of preventing and combating crimes that fall within its objectives relate to one of the categories of data subjects listed in Annex II. To that end, Europol should be able to carry out a pre-analysis of personal data received with the sole purpose of determining whether such data relate to any of those categories of data subjects by checking those personal data against data it already holds, without further analysing those personal data. Such pre-analysis should take place prior to, and separate from, Europol’s data processing for cross-checking, strategic analysis, operational analysis or the exchange of information, and after Europol has established that the data in question are relevant and necessary for the performance of its tasks. Once Europol has ascertained that those personal data relate to the categories of data subjects listed in Annex II, Europol should be able to process those personal data for cross-checking, strategic analysis, operational analysis or the exchange of information. If Europol concludes that those personal data do not relate to the categories of data subjects listed in Annex II, it should delete those data.
(21)
The categorisation of personal data in a given data set may change over time as a result of new information that becomes available in the context of criminal investigations, for example regarding additional suspects. For that reason, Europol should be allowed to process personal data where it is strictly necessary and proportionate for the purpose of determining the categories of data subjects to which the data in question relate for a period of up to 18 months from the moment Europol ascertains that those data fall within its objectives. Europol should be able to extend that period up to three years in duly justified cases and provided that such an extension is necessary and proportionate. The European Data Protection Supervisor (EDPS) should be informed of the extension. Where the processing of personal data for the purpose of determining the categories of data subjects is no longer necessary and justified and, in any event, after the end of the maximum processing period, Europol should delete the personal data.
(22)
The amount of data collected in criminal investigations have been increasing in size and data sets have become more complex. Member States submit large and complex data sets to Europol, requesting Europol’s operational analysis to identify links to crimes other than that which is the subject of the investigation in the context of which they were collected and to criminals in other Member States and outside the Union. Since Europol can detect such cross-border links more effectively than the Member States through their own analysis of the data, Europol should be able to support Member States’ criminal investigations by processing large and complex data sets to identify such cross-border links provided that the strict requirements and safeguards set out in this Regulation are complied with. Where necessary to support an ongoing specific criminal investigation in a Member State effectively, Europol should be able to process investigative data that the competent authorities of the Member States are authorised to process in that specific criminal investigation in accordance with procedural requirements and safeguards applicable under their national law and subsequently submitted to Europol. That should include personal data in cases where a Member State has not been able to ascertain whether those data relate to the categories of data subjects listed in Annex II. Where a Member State, the EPPO or Eurojust provides Europol with investigative data and requests Europol’s support for an ongoing specific criminal investigation, Europol should be able to process those data for as long as it supports that specific criminal investigation, in accordance with procedural requirements and safeguards applicable under Union or national law.
(23)
To ensure that any data processing performed in the context of a criminal investigation is necessary and proportionate, Member States should ensure compliance with Union and national law when they submit investigative data to Europol. When submitting investigative data to Europol to request Europol’s support for a specific criminal investigation, Member States should consider the scale and complexity of the data processing involved and the type and importance of the investigation. Member States should inform Europol when, in accordance with procedural requirements and safeguards applicable under their national law, they are no longer authorised to process data in the ongoing specific criminal investigation in question. Europol should only process personal data that do not relate to the categories of data subjects listed in Annex II where it assesses that it is not possible to support an ongoing specific criminal investigation without processing those personal data. Europol should document that assessment. Europol should keep such data functionally separate from other data and should only process them where necessary for its support to the ongoing specific criminal investigation in question, such as in case of a new lead.
(24)
Europol should also be able to process personal data that are necessary for its support to a specific criminal investigation in one or more Member States where those data are provided by a third country, provided that: the third country is the subject of an adequacy decision in accordance with Directive (EU) 2016/680 of the European Parliament and of the Council (11) (‘adequacy decision’); an international agreement with that third country has been concluded by the Union pursuant to Article 218 of the Treaty on the Functioning of the European Union (TFEU) that includes the transfer of personal data for law enforcement purposes (‘international agreement’); a cooperation agreement allowing for the exchange of personal data has been concluded between Europol and the third country prior to the entry into force of Regulation (EU) 2016/794 (‘cooperation agreement’); or appropriate safeguards with regard to the protection of personal data are provided for in a legally binding instrument or Europol concludes, based on an assessment of all the circumstances surrounding the transfer of personal data, that those safeguards exist in that third country and provided that the third country obtained the data in the context of a criminal investigation in accordance with procedural requirements and safeguards applicable under its national criminal law. Where a third country provides investigative data to Europol, Europol should verify that the amount of personal data is not manifestly disproportionate in relation to the specific criminal investigation that Europol supports in the Member State concerned, and, as far as possible, that there are no objective indications that investigative data have been collected in the third country in obvious violation of fundamental rights. Where Europol concludes that those conditions are not met, it should not process the data and should delete them. Where a third country provides investigative data to Europol, Europol’s Data Protection Officer should be able to notify the EDPS, where appropriate.
(25)
To ensure that a Member State can use Europol’s analytical reports in the context of judicial proceedings following a criminal investigation, Europol should be able to store the related investigative data upon request by that Member State, the EPPO or Eurojust, for the purpose of ensuring the veracity, reliability and traceability of the criminal intelligence process. Europol should keep such data functionally separate from other data and only for as long as the judicial proceedings related to that criminal investigation are ongoing in the Member State. Moreover, there is a need to ensure access of competent judicial authorities as well as the rights of defence, in particular the right of access of suspects or accused persons or their lawyers to the materials of the case. To that end, Europol should log all evidence and the methods by which that evidence has been produced or obtained by Europol to allow for effective scrutiny of evidence by the defence.
(26)
Europol should be able to process personal data it received before the entry into force of this Regulation that do not relate to the categories of data subjects listed in Annex II, in accordance with this Regulation, in two situations. In the first situation, Europol should be able to process such personal data in support of a criminal investigation or to ensure the veracity, reliability and traceability of the criminal intelligence process, provided that the requirements set out in the transitional arrangements concerning the processing of personal data received in support of a criminal investigation are complied with. In the second situation, Europol should also be able to verify whether such personal data relate to one of the categories of data subjects listed in Annex II by carrying out a pre-analysis of those personal data within a period of up to 18 months from the date the data were first received, or in justified cases and with the prior authorisation of the EDPS, for a longer period. The maximum period of processing of personal data for the purpose of such pre-analysis should not exceed three years from the date the data were first received by Europol.
(27)
Cross-border cases of serious crime or terrorism require close cooperation between the competent authorities of the Member States concerned. Europol provides tools to support such cooperation in investigations, in particular through the exchange of information. To further enhance such cooperation in specific criminal investigations by way of joint operational analysis, Member States should be able to allow other Member States to directly access the information they provided to Europol, without prejudice to any general or specific restrictions they indicated on access to that information. Any processing of personal data by Member States in joint operational analysis should take place in accordance with this Regulation and Directive (EU) 2016/680.
(28)
Europol and the EPPO should conclude a working arrangement setting out the modalities of their cooperation, taking due account of their respective competences. Europol should work closely with the EPPO and actively support investigations of the EPPO upon request by it, including by providing analytical support and relevant information. Europol should also cooperate with the EPPO from the moment a suspected offence is reported to the EPPO until the moment the EPPO determines whether to prosecute or otherwise dispose of the case. Europol should, without undue delay, report to the EPPO any criminal conduct in respect of which the EPPO could exercise its competence. To enhance operational cooperation between Europol and the EPPO, Europol should enable the EPPO to have access to data held by Europol, on the basis of a hit/no hit system which notifies only Europol in the case of a hit, in accordance with this Regulation, including any restrictions indicated by the provider of the information to Europol. If the information is covered by a restriction indicated by a Member State, Europol should refer the matter to that Member State, in order for it to comply with its obligations under Regulation (EU) 2017/1939. The Member State concerned should subsequently inform the EPPO in accordance with its national procedure. The rules on the transmission of personal data to Union bodies set out in this Regulation should apply to Europol’s cooperation with the EPPO. Europol should also be able to support the investigations of the EPPO by way of analysis of large and complex data sets in accordance with the safeguards and data protection guarantees provided for in this Regulation.
(29)
Europol should cooperate closely with the European Anti-Fraud Office (OLAF) to detect fraud, corruption and any other illegal activity affecting the financial interests of the Union. To that end, Europol should transmit without undue delay to OLAF any information in respect of which OLAF could exercise its competence. The rules on the transmission of personal data to Union bodies set out in this Regulation should apply to Europol’s cooperation with OLAF.
(30)
Serious crime and terrorism often have links outside the Union. Europol can exchange personal data with third countries while safeguarding the protection of privacy and fundamental rights and freedoms of the data subjects. Where it is essential to the investigation into a specific crime that falls within Europol’s objectives, the Executive Director should be allowed, on a case-by-case basis, to authorise a category of transfers of personal data to third countries, where that category of transfers relates to the same specific situation, consists of the same categories of personal data and the same categories of data subjects, is necessary and proportionate for the purpose of investigating a specific crime and meets all the requirements of this Regulation. It should be possible for individual transfers covered by a category of transfers to include only some of the categories of personal data and categories of data subjects whose transfer is authorised by the Executive Director. It should also be possible to authorise a category of transfers of personal data in the following specific situations: where the transfer of personal data is necessary in order to protect the vital interests of the data subject or of another person; where the transfer of personal data is essential for the prevention of an immediate and serious threat to the public security of a Member State or a third country; where the purpose of the transfer of personal data is to safeguard the legitimate interests of the data subject; or, in individual cases, is for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal sanctions or for the establishment, exercise or defence of legal claims relating to the prevention, investigation, detection or prosecution of a specific criminal offence or the execution of a specific criminal sanction.
(31)
Transfers that are not based on an authorisation by the Executive Director, an adequacy decision, an international agreement or a cooperation agreement should be allowed only where appropriate safeguards with regard to the protection of personal data are provided for in a legally binding instrument or where Europol concludes, based on an assessment of all the circumstances surrounding the transfer of personal data, that those safeguards exist. For the purposes of that assessment, Europol should be able to take into account bilateral agreements concluded between Member States and third countries which allow for the exchange of personal data, and whether the transfer of personal data is to be subject to confidentiality obligations and to the principle of specificity, ensuring that the data are not processed for purposes other than the transfer. In addition, it is important that Europol take into account whether the personal data could be used to request, hand down or execute a death penalty or any form of cruel and inhuman treatment. Europol should be able to require additional safeguards.
(32)
To support Member States in cooperating with private parties where those private parties hold information relevant for preventing and combating serious crime and terrorism, Europol should be able to receive personal data from private parties and, in specific cases where necessary and proportionate, exchange personal data with private parties.
(33)
Criminals increasingly use services offered by private parties to communicate and carry out illegal activities. Sex offenders exploit children and share pictures and videos constituting child sexual abuse material worldwide on online platforms or with peers via number-independent interpersonal communications services. Terrorists use the services offered by online service providers to recruit volunteers, plan and coordinate attacks, and disseminate propaganda. Cyber criminals profit from the digitalisation of our societies and from the lack of digital literacy and other digital skills of the general public using phishing and social engineering to commit other types of cybercrime such as online scams, ransomware attacks or payment fraud. As a result of the increased use of online services by criminals, private parties hold increasing amounts of personal data, including subscriber, traffic and content data, that is potentially relevant for criminal investigations.
(34)
Given the borderless nature of the internet, it is possible that the online service provider and the digital infrastructure in which the personal data are stored are each subject to different national jurisdictions, either within the Union or outside it. Private parties may therefore hold data sets that are relevant for law enforcement and that contain personal data that fall within the competence of multiple jurisdictions as well as personal data that cannot easily be attributed to any specific jurisdiction. The competent authorities of the Member States can find it difficult to effectively analyse such multi-jurisdictional or non-attributable data sets through national solutions. Furthermore, there is currently no single point of contact for private parties who decide to lawfully and voluntarily share data sets with competent authorities of the Member States. Accordingly, Europol should have measures in place to facilitate cooperation with private parties, including with respect to the exchange of information.
(35)
To ensure that private parties have a point of contact at Union level to lawfully and voluntarily provide multi-jurisdictional data sets or data sets that cannot easily be attributed to one or several specific jurisdictions, Europol should be able to receive personal data directly from private parties for the purpose of providing Member States with the information necessary to establish jurisdiction and to investigate crimes under their respective jurisdictions, in accordance with this Regulation. That information could include reports relating to moderated content that can reasonably be assumed to be linked to the criminal activities that fall within Europol’s objectives.
(36)
To ensure that Member States receive the information necessary to initiate investigations to prevent and combat serious crime and terrorism without undue delay, Europol should be able to process and analyse personal data in order to identify the national units concerned and forward to those national units the personal data and any results of its analysis and verification of such data that are relevant for the purposes of establishing jurisdiction and investigating the crimes concerned under their respective jurisdictions. Europol should also be able to forward the personal data and results of its analysis and verification of such data that are relevant for the purpose of establishing jurisdiction to contact points or authorities of third countries concerned which are the subject of an adequacy decision, or with which an international agreement or a cooperation agreement has been concluded, or where appropriate safeguards with regard to the protection of personal data are provided for in a legally binding instrument or Europol concludes, based on an assessment of all the circumstances surrounding the transfer of personal data, that those safeguards exist in those third countries. Where the third country concerned is not the subject of an adequacy decision or is not party to an international agreement or to a cooperation agreement or in the absence of a legally binding instrument, or where Europol has not concluded that appropriate safeguards exist, Europol should be able to transfer the result of its analysis and verification of such data to the third country concerned in accordance with this Regulation.
(37)
In accordance with Regulation (EU) 2016/794, in certain cases and subject to conditions, it can be necessary and proportionate for Europol to transfer personal data to private parties which are not established within the Union or in a third country which is the subject of an adequacy decision or with which an international agreement or a cooperation agreement has been concluded, or where appropriate safeguards with regard to the protection of personal data are not provided for in a legally binding instrument or Europol has not concluded that appropriate safeguards exist. In such cases, the transfer should be subject to prior authorisation by the Executive Director.
(38)
To ensure that Europol can identify all relevant national units concerned, it should be able to inform private parties if the information they provided is insufficient to enable Europol to identify the national units concerned. This would enable those private parties to decide whether it is in their interest to share additional information with Europol and whether they can lawfully do so. To that end, Europol should be able to inform private parties of missing information, as far as this is strictly necessary for the sole purpose of identifying the national units concerned. Special safeguards should apply to transfers of information from Europol to private parties where the private party concerned is not established within the Union or in a third country which is the subject of an adequacy decision or with which an international agreement or a cooperation agreement has been concluded, or where appropriate safeguards with regard to the protection of personal data are not provided for in a legally binding instrument or Europol has not concluded that appropriate safeguards exist.
(39)
Where Member States, third countries, international organisations or private parties share with Europol multi-jurisdictional data sets or data sets that cannot be attributed to one or more specific jurisdictions, it is possible that those data sets are linked to personal data held by private parties. In such situations, it should be possible for Europol to send a request to Member States, via their national units, to obtain the personal data held by private parties which are established or have a legal representative in the territory of those Member States. Such a request should only be made where obtaining additional information from such private parties is necessary to identify the national units concerned. The request should be reasoned and as precise as possible. The relevant personal data, which should be the least sensitive possible and strictly limited to what is necessary and proportionate for the purpose of identifying the national units concerned, should be provided to Europol in accordance with the applicable law of the Member States concerned. The competent authorities of the Member States concerned should assess Europol’s request and decide in accordance with their national law whether to accede to it. Any data processing by private parties carried out when processing such requests from the competent authorities of the Member States should remain subject to the applicable law, in particular with regard to data protection. Private parties should provide the competent authorities of the Member States with the requested data for their further transmission to Europol. In many cases, it is possible that the Member States concerned are not able to establish a link to their jurisdiction other than by virtue of the fact that the private party holding the relevant data is established or legally represented in their jurisdiction. Notwithstanding whether they have jurisdiction as regards the specific crime, Member States should in any event ensure that their competent authorities can obtain personal data from private parties for the purpose of supplying Europol with the information necessary for it to achieve its objectives, in full compliance with procedural guarantees under their national law.
(40)
To ensure that Europol does not keep the personal data received directly from private parties longer than necessary to identify the national units concerned, time limits for the storage of personal data by Europol should apply. Once Europol has exhausted all means at its disposal to identify the national units concerned, and cannot reasonably expect to identify any further national units concerned, the storage of those personal data is no longer necessary and proportionate for the purpose of identifying the national units concerned. Europol should erase the personal data within four months after their last transmission, transfer to a national unit or transfer to the contact point of a third country or an authority of a third country has taken place, unless, in compliance with Union and national law, a national unit, contact point or authority concerned resubmits the personal data as their data to Europol within that period. If the resubmitted personal data were part of a larger set of personal data, Europol should keep only those personal data which have been resubmitted by a national unit, contact point or authority concerned.
(41)
Cooperation by Europol with private parties should neither duplicate nor interfere with the activities of the Financial Intelligence Units (FIUs) established pursuant to Directive (EU) 2015/849 of the European Parliament and of the Council (12), and should only concern information that is not already to be provided to FIUs in accordance with that Directive. Europol should continue to cooperate with FIUs, in particular via the national units.
(42)
Europol should be able to provide the support necessary for competent authorities of the Member States to interact with private parties, in particular by providing the necessary infrastructure for such interaction, for example, when competent authorities of the Member States refer terrorist content online, send removal orders concerning such content to online service providers pursuant to Regulation (EU) 2021/784 of the European Parliament and of the Council (13) or exchange information with private parties in the context of cyberattacks. Where Member States use Europol infrastructure for exchanges of personal data on crimes that do not fall within Europol’s objectives, Europol should not have access to those data. Europol should ensure by technical means that its infrastructure is strictly limited to providing a channel for such interactions between the competent authorities of the Member States and a private party, and that Europol provides for all necessary safeguards against access by a private party to any other information in Europol’s systems which is not related to the exchange with that private party.
(43)
Terrorist attacks trigger the large scale dissemination of terrorist content via online platforms depicting harm to life or physical integrity, or calling for imminent harm to life or physical integrity, thereby enabling the glorification and provision of training for terrorism, and eventually the radicalisation and recruitment of other individuals. Moreover, the increased use of the internet to record or share child sexual abuse material perpetuates the harm for the victims, as the material can easily be multiplied and circulated. In order to prevent and combat the crimes that fall within Europol’s objectives, Europol should be able to support Member States’ actions in effectively addressing the dissemination of terrorist content in the context of online crisis situations stemming from ongoing or recent real-world events, the online dissemination of online child sexual abuse material, and to support the actions of online service providers in compliance with their obligations under Union law as well as in their voluntary actions. To that end, Europol should be able to exchange relevant personal data, including unique, non-reconvertible digital signatures (‘hashes’), IP addresses or URLs related to such content, with private parties established within the Union or in a third country which is the subject of an adequacy decision, or, in the absence of such a decision, with which an international agreement or a cooperation agreement has been concluded or where appropriate safeguards with regard to the protection of personal data are provided for in a legally binding instrument or Europol concludes, based on an assessment of all the circumstances surrounding the transfer of personal data, that those safeguards exist in that third country. Such exchanges of personal data should only take place for the purposes of removing terrorist content and online child sexual abuse material, in particular where the exponential multiplication and virality of that content and material across multiple online service providers are anticipated. Nothing in this Regulation should be understood as precluding a Member State from using removal orders provided for in Regulation (EU) 2021/784 as an instrument to address terrorist content online.
(44)
In order to avoid duplication of effort and possible interference with investigations and to minimise the burden on the hosting service providers affected, Europol should assist, exchange information and cooperate with competent authorities of the Member States with regard to transmissions and transfers of personal data to private parties to address online crisis situations and the online dissemination of online child sexual abuse material.
(45)
Regulation (EU) 2018/1725 sets out rules on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies. While Regulation (EU) 2018/1725 applies to the processing of administrative personal data by Europol that are unrelated to criminal investigations, such as staff data, Article 3, point (2), and Chapter IX of that Regulation, which regulate the processing of personal data, do not currently apply to Europol. To ensure the uniform and consistent protection of natural persons with regard to the processing of personal data, Chapter IX of Regulation (EU) 2018/1725 should apply to Europol in accordance with Article 2(2) of that Regulation, and should be complemented by specific provisions for the specific processing operations that Europol should perform to accomplish its tasks. Therefore, the supervisory powers of the EDPS over Europol’s processing operations should be reinforced, in line with the relevant powers applicable to the processing of administrative personal data that apply to all Union institutions, bodies, offices and agencies under Chapter VI of Regulation (EU) 2018/1725. To that end, where Europol processes personal data for operational purposes, the EDPS should be able to order Europol to bring processing operations into compliance with this Regulation and to order the suspension of data flows to a recipient in a Member State, a third country or an international organisation, and should be able to impose an administrative fine in the case of non-compliance by Europol.
(46)
Processing of data for the purposes of this Regulation could entail the processing of special categories of personal data as set out in Regulation (EU) 2016/679 of the European Parliament and of the Council (14). The processing of photographs should not be systematically considered as processing of special categories of personal data, since photographs are covered by the definition of biometric data under Article 3, point (18), of Regulation (EU) 2018/1725 only when processed through a specific technical means allowing the unique identification or authentication of a natural person.
(47)
The prior consultation mechanism involving the EDPS provided for by Regulation (EU) 2018/1725 is an important safeguard for new types of processing operations. However, that mechanism should not apply to specific individual operational activities, such as operational analysis projects, but to the use of new information technology (IT) systems for the processing of personal data and any substantial changes to those systems that would involve a high risk to the rights and freedoms of data subjects. The period within which the EDPS should be required to provide written advice on such consultations should not be capable of being suspended. In the case of processing activities of substantial significance for the performance of Europol’s tasks, which are particularly urgent, it should be possible for Europol, on an exceptional basis, to already begin processing after the prior consultation has been launched, even if the time limit for providing written advice by the EDPS has not yet expired. Such urgency may arise in situations of substantial significance for the performance of Europol’s tasks, when processing is necessary to prevent and fight an immediate threat of a crime that falls within Europol’s objectives and to protect the vital interests of the data subject or another person. Europol’s Data Protection Officer should be involved in assessing the urgency and necessity of such processing before the time limit for the EDPS to respond to prior consultation expires. Europol’s Data Protection Officer should oversee such processing. The EDPS should be able to exercise its powers with respect to such processing.
(48)
Given the challenges posed by the rapid technological development and the exploitation of new technologies by terrorists and other criminals to the security of the Union, the competent authorities of the Member States need to strengthen their technological capabilities to identify, secure and analyse the data needed to investigate criminal offences. Europol should be able to support Member States in the use of emerging technologies, in exploring new approaches and in developing common technological solutions for Member States to better prevent and counter crimes that fall within Europol’s objectives. At the same time, Europol should ensure that the development, use and deployment of new technologies are guided by the principles of transparency, explainability, fairness and accountability, do not undermine fundamental rights and freedoms and are in compliance with Union law. To that end, Europol should be able to conduct research and innovation projects regarding matters covered by this Regulation within the general scope for the research and innovation projects established by the Management Board in a binding document. Such document should be updated where appropriate and made available to the EDPS. It should be possible for those projects to include the processing of personal data only where certain conditions are met, namely that the processing of personal data is strictly necessary, the objective of the relevant project cannot be achieved through the use of non-personal data, such as synthetic or anonymous data, and that full respect for fundamental rights, in particular non-discrimination, is ensured.
The processing of special categories of personal data for research and innovation purposes should only be allowed where it is strictly necessary. Given the sensitivity of such processing, appropriate additional safeguards, including pseudonymisation, should apply. To prevent bias in algorithmic decision-making, Europol should be allowed to process personal data that do not relate to the categories of data subjects listed in Annex II. Europol should keep logs of all personal data processing carried out in the context of its research and innovation projects only for the purpose of verifying the accuracy of the outcome of the data processing and only for as long as necessary for that verification. The provisions on the development of new tools by Europol should not constitute a legal basis for their deployment at Union or national level. To drive innovation and reinforce synergies in research and innovation projects, it is important that Europol step up its cooperation with relevant networks of Member States’ practitioners and other Union agencies within their respective competences in that area, and support other related forms of cooperation such as secretarial support to the EU Innovation Hub for Internal Security as a collaborative network of innovation labs.
(49)
Europol should play a key role in assisting Member States in developing new technological solutions based on artificial intelligence that are relevant to the achievement of Europol’s objectives and that benefit competent authorities of the Member States throughout the Union. That assistance should be provided while fully respecting fundamental rights and freedoms, including non-discrimination. Europol should play a key role in promoting the development and deployment of ethical, trustworthy and human-centric artificial intelligence that is subject to robust safeguards in terms of security, safety, transparency, explainability and fundamental rights.
(50)
Europol should inform the EDPS prior to the launch of its research and innovation projects that involve the processing of personal data. Europol should either inform or consult its Management Board, in accordance with certain criteria that should be set out in relevant guidelines. Europol should not process data for the purpose of research and innovation projects without the consent of the Member State, Union body, third country or international organisation that submitted the data to Europol, unless that Member State, Union body, third country or international organisation has granted its prior authorisation for such processing for that purpose. For each project, Europol should carry out, prior to the processing, a data protection impact assessment to ensure full respect with the right to data protection and all other fundamental rights and freedoms of data subjects. The data protection impact assessment should include an assessment of the appropriateness, necessity and proportionality of the personal data to be processed for the specific purpose of the project, including the requirement of data minimisation and an assessment of any potential bias in the outcome and in the personal data to be processed for the specific purpose of the project as well as the measures envisaged to address those risks. The development of new tools by Europol should be without prejudice to the legal basis, including grounds for processing the personal data concerned, that would subsequently be required for their deployment at Union or national level.
(51)
Providing Europol with additional tools and capabilities requires reinforcing the democratic oversight and accountability of Europol. Joint parliamentary scrutiny constitutes an important element of political monitoring of Europol’s activities. To enable effective political monitoring of the manner in which Europol uses additional tools and capabilities provided to it under this Regulation, Europol should provide the Joint Parliamentary Scrutiny Group (JPSG) and the Member States with detailed annual information on the development, use and effectiveness of those tools and capabilities and the result of their use, in particular about research and innovation projects as well as new activities or the establishment of any new specialised centres within Europol. Moreover, two representatives of the JPSG, one for the European Parliament and one for the national parliaments, to reflect the dual constituency of the JPSG, should be invited to at least two ordinary Management Board meetings per year to address the Management Board on behalf of the JPSG and to discuss the consolidated annual activity report, the single programming document and the annual budget, JPSG written questions and answers, as well as external relations and partnerships, while respecting the different roles and responsibilities of the Management Board and the JPSG in accordance with this Regulation. The Management Board, together with the representatives of the JPSG, should be able to determine other matters of political interest to be discussed. In line with the oversight role of the JPSG, the two JPSG representatives should not have voting rights in the Management Board. Planned research and innovation activities should be set out in the single programming document containing Europol’s multiannual programming and annual work programme and transmitted to the JPSG.
(52)
Following a proposal from the Executive Director, the Management Board should designate a Fundamental Rights Officer who should be responsible for supporting Europol in safeguarding the respect for fundamental rights in all its activities and tasks, in particular Europol’s research and innovation projects and the exchange of personal data with private parties. It should be possible to designate a member of Europol’s existing staff who has received special training in fundamental rights law and practice as the Fundamental Rights Officer. The Fundamental Rights Officer should cooperate closely with the Data Protection Officer within the scope of their respective competences. To the extent that data protection matters are concerned, full responsibility should lie with the Data Protection Officer.
(53)
Since the objective of this Regulation, namely to support and strengthen action by the competent authorities of the Member States and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy, cannot be sufficiently achieved by the Member States but can rather, by reason of the cross-border nature of serious crime and terrorism and the need for a coordinated response to related security threats, 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.
(54)
In accordance with Article 3 of the 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 the TFEU, Ireland has notified its wish to take part in the adoption and application of this Regulation.
(55)
In accordance with Articles 1 and 2 of 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.
(56)
The EDPS was consulted, in accordance with Article 42(1) of Regulation (EU) 2018/1725, and has delivered an opinion on 8 March 2021 (15).
(57)
This Regulation fully respects the fundamental rights and safeguards, and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’), in particular the right to respect for private and family life and the right to the protection of personal data as provided for by Articles 7 and 8 of the Charter, as well as by Article 16 TFEU. Given the importance of the processing of personal data for the work of law enforcement in general, and for the support provided by Europol in particular, this Regulation should include enhanced safeguards, democratic oversight and accountability mechanisms, to ensure that the activities and tasks of Europol are carried out in full compliance with fundamental rights as enshrined in the Charter, in particular the rights to equality before the law, to non-discrimination, and to an effective remedy before the competent national court against any of the measures taken pursuant to this Regulation. Any processing of personal data under this Regulation should be limited to that which is strictly necessary and proportionate, and subject to clear conditions, strict requirements and effective supervision by the EDPS.
(58)
Regulation (EU) 2016/794 should therefore be amended accordingly.
(59)
In order to allow for the prompt application of the measures provided for in this Regulation, it should enter into force on the day following that of its publication in the Official Journal of the European Union,
