Index 
Texts adopted
Thursday, 4 October 2018 - StrasbourgProvisional edition
Deterioration of media freedom in Belarus, notably the case of Charter 97
 The UAE, notably the situation of human rights defender Ahmed Mansoor
 Mass arbitrary detention of Uyghurs and Kazakhs in the Xinjiang Uyghur Autonomous Region
 Public procurement strategy package
 EU Agency for Criminal Justice Cooperation (Eurojust) ***I
 Mutual recognition of freezing and confiscation orders ***I
 Free flow of non-personal data in the European Union ***I
 The EU's input on a UN binding instrument on transnational corporations with respect to human rights
 Situation in Yemen
 Fighting customs fraud and protecting EU own resources

Deterioration of media freedom in Belarus, notably the case of Charter 97
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European Parliament resolution of 4 October 2018 on the deterioration of media freedom in Belarus, notably the case of Charter 97 (2018/2861(RSP))
P8_TA-PROV(2018)0375RC-B8-0451/2018

The European Parliament,

–  having regard to its previous resolutions on Belarus,

–  having regard to the Universal Declaration of Human Rights and to all human rights conventions to which Belarus is a party,

–  having regard to Rules 135(5) and 123(4) of its Rules of Procedure,

A.  whereas in February 2016 the EU lifted most of its restrictive measures against Belarusian officials and legal entities as a gesture of goodwill aimed at starting a policy of engagement with a view to encouraging Belarus to respect the principles of human rights, democracy and rule of law;

B.  whereas the EU has repeatedly reiterated that EU-Belarus relations can only be further advanced once they are based on trust and the values of democracy, the rule of law and fundamental freedoms;

C.  whereas current policies in Belarus undermine these values, thereby preventing the EU from offering Belarus broader participation in the Eastern Partnership and closer relations, or from signing the EU-Belarus Partnership Priorities;

D.  whereas the situation in terms of freedom of media and freedom of speech is continuing to deteriorate in Belarus, as evidenced by severe harassment of independent news portals and journalists, as in the ‘BelTA case’;

E.  whereas Belarusian authorities have recently initiated a wave of police harassment and intimidation against journalists;

F.  whereas Reporters without Borders concludes that more than 100 journalists were arrested in 2017, mostly while covering opposition protests; whereas harassment of freelance journalists working for independent media outlets based abroad has reached unprecedented levels, with these journalists unable to get accreditation;

G.  whereas the leading independent news website Charter 97.org, which focuses on human rights and opposition causes and takes its name from Charter 97, a declaration of 1997 calling for democracy in Belarus that was signed by journalists, opposition politicians and rights activists, was forced to move to Warsaw, Poland, where it has been operating from since 2011, after it was blocked multiple times by the Belarusian authorities, with its offices raided twice by the police and its equipment confiscated that same year;

H.  whereas since 24 January 2018 access to the Charter 97 website has been blocked within Belarus, for an indefinite duration, without trial and amid vague allegations of ‘threats to the national interest’; whereas according to the editor-in-chief of Charter 97, Natalya Radina, in the month following the blocking of the Charter 97 website the number of visitors to the site from within Belarus decreased by 70 %;

I.  whereas Ms Radina has received death threats;

J.  whereas on 16 April 2018 access to the Charter 97 website was also blocked by the Russian authorities within the territory of the Russian Federation;

K.  whereas the founder of Charter 97, Aleh Byabenin, was found hanged at his home near Minsk in September 2010; whereas Belarus-born Pavel Sheremet, a spokesperson for the organisation behind Charter 97, was killed in a car bombing in Kiev, the capital of Ukraine, in July 2016;

L.  whereas in early August 2018 Belarusian authorities carried out raids in the editorial offices of several independent Belarusian outlets, starting with Tut.by and followed by searches in BelaPAN, realty.by, Belaruskaya Navuka and Kultura; whereas the raids resulted in arrests and detention of journalists, including the editor-in-chief of Tut.by, over allegations that they had illegally accessed and used online information provided by the state-owned news agency BelTA;

M.  whereas on 7 August 2018 Belarus’ Investigative Committee opened a criminal case under Article 349(2) of the Criminal Code punishable by up to two years in prison (illegal access to computer information committed out of other personal interest which caused substantial harm) against journalists and editors of a number of online resources and arrested 18 journalists, seven of whom were detained as suspects for three days; whereas there have been cases of pressure being put on journalists and their relatives and of them being forced to cooperate with the intelligence service and police;

N.  whereas the latest amendments to the Law on Mass Media, adopted in June 2018, extend government control to online media outlets; whereas the changes, which will enter into force on 1 December 2018, will impose further bureaucratic hurdles for websites wishing to register as official online media outlets;

O.  whereas websites which choose not to register, despite the new legislation, or do not meet the new criteria, are denied accreditation with government institutions, thereby further censoring the press; whereas both registered and unregistered online media outlets will also be obliged to register the names of people who submit comments; whereas the owners of registered online media outlets will also be legally responsible for the content of such comments;

P.  whereas new legislation will require that authors of all posts and comments on online forums be identified and that website owners moderate such comments;

Q.  whereas the UN Special Rapporteur on the situation of human rights in Belarus, Miklós Haraszti, and the OSCE Representative on Freedom of the Media, Harlem Désir, have expressed the view that these legislative changes constitute an unacceptable restriction of freedom of speech and access to information;

R.  whereas Belarus ranks 155th in the Reporters Without Borders’ 2017 World Press Freedom Index, which evaluates the level of press freedom in 180 countries each year;

S.  whereas since the beginning of 2018, Belarusian journalists, whose right to gather, store and disseminate information is guaranteed by the Constitution, have been fined over 70 times for cooperation with foreign mass media without accreditation, the fines totalling over BYN 60 000; whereas Article 22.9 of the Code of Administrative Violations has become an efficient tool to harass independent journalists and media outlets such as Belsat TV, which has been operating from Poland since 2011;

T.  whereas Belarus remains the only country in Europe that still practises capital punishment;

U.  whereas specific categories of people in Belarus are being subjected to false imprisonment and arbitrary detention, denial of proper care and contact with family members while in detention, state-organised physical and psychological violence, prosecution and conviction on spurious and falsified charges, disproportionate financial penalties, administrative sanctions and other forms of repression by the Belarusian authorities; whereas these categories include political prisoners (notably Mikhail Zhamchuzhny and Dzmitry Paliyenka), known political opponents, human rights activists, civil society actors, activists in environmental, non-governmental and civil society organisations, independent bloggers, journalists and editors, peaceful protestors from all walks of life, and, in particular, activists of independent trade unions (notably Henadz Fiadynich and Ihar Komlik);

1.  Strongly condemns the repeated harassment and detention of journalists and independent media in Belarus; urges the authorities to end all judicial harassment, intimidation and threats against journalists and independent media and to allow all news portals to operate freely;

2.  Considers the blocking of the news website Charter 97 by the Belarusian authorities since January 2018 unacceptable; reiterates its call on the Belarusian authorities to immediately and unconditionally lift the block imposed on internet access to the news website within Belarus;

3.  Strongly condemns the amendments adopted to the media law, which are being used to tighten control over the internet; reiterates its strong concern about the worsening climate for independent and opposition websites and media outlets and journalists in Belarus;

4.  Is of the view that independent media do not constitute a threat to the authorities but rather are an important element to the checks and balances system and hence should be seen by the government as a potential critical partner and not as an enemy;

5.  Regrets the fact that Belarus is continuing to persist with a repressive and undemocratic policy against journalists, lawyers, political activists, human rights defenders, civil society actors, trade unionists and others who are seen as a threat to the political establishment; underlines that such repression hinders any closer relationship with the EU and broader participation in the Eastern Partnership;

6.  Reiterates its calls on the Belarusian authorities to strengthen respect for democratic principles, rule of law, human rights and fundamental freedoms, including respect for truthful and unbiased journalism, in accordance with the Universal Declaration of Human Rights and the international and regional human rights instruments ratified by Belarus;

7.  Calls for the EU institutions to include in the EU-Belarus Partnership Priorities strong references to the independence of the media, freedom of speech and freedom of assembly; calls on the European External Action Service (EEAS) and the Member States to ensure that EU assistance programmes and other forms of bilateral cooperation, including financial assistance, must be linked to clear and tangible steps towards democratisation and openness, including comprehensive election reform and full respect for media freedom;

8.  Calls on the EEAS and the Commission to continue their support for civil society organisations in Belarus and abroad; stresses, in this context, the need to support all independent sources of information for Belarusian society, including media broadcasting in the Belarusian language, and those abroad such as Charter 97 and Belsat TV;

9.  Calls on the Vice President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy to closely monitor the situation of media freedom in Belarus, in cooperation with the Standing United Nations Rapporteur for Belarus;

10.  Urges the Belarusian authorities to allow full and unhindered functioning of political and public organisations and to repeal Article 193/1 of the Criminal Code curtailing the freedoms of peaceful assembly and association;

11.  Calls strongly for the unconditional and immediate release of political prisoners Mikhail Zhamchuzhny and Dzmitry Paliyenka, and for all former political prisoners to be fully rehabilitated; calls on the authorities to allow all independent trade unions to play their legitimate and central role in civil society without hindrance; regrets the conviction on 24 August 2018 of Henadz Fiadynich and Ihar Komlik, activists of the independent trade union REP, to four years of restricted freedom;

12.  Commends the work carried out by the current UN Special Rapporteur on the situation of human rights in Belarus, Miklós Haraszti, and draws the attention of his successor, Anaïs Marin, to the manifold abuses of power, curtailment of individual and collective freedoms and repression of civil society, independent trade unions and media, as clearly identified in Mr Haraszti’s reports;

13.  Calls, in this regard, for the Belarusian authorities to recognise the mandate of the UN Special Rapporteur on the situation of human rights in Belarus without delay, and for the Commission, the European Investment Bank and the European Bank for Reconstruction and Development to make the provision of any further financial or technical assistance to Belarus conditional on the circumstances set out above, while preserving the EU’s ability to directly fund Belarusian civil society;

14.  Remains concerned about the construction of a nuclear power plant in Ostrovets; notes the report on stress tests and recommendations published on 3 July 2018 and demands that stress test recommendations be implemented as a condition for any further advancement in EU-Belarus cooperation, in particular for the signing of the EU-Belarus Partnership Priorities;

15.  Instructs its President to forward this resolution to the Council, the Commission, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the governments and parliaments of the Member States and the President and Government of Belarus.


The UAE, notably the situation of human rights defender Ahmed Mansoor
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European Parliament resolution of 4 October 2018 on the UAE, notably the situation of human rights defender Ahmed Mansoor (2018/2862(RSP))
P8_TA-PROV(2018)0376RC-B8-0456/2018

The European Parliament,

–  having regard to its previous resolutions, including that of 26 October 2012 on the human rights situation in the United Arab Emirates(1),

–  having regard to the statement of 4 June 2018 by the chair of the Subcommittee on Human Rights condemning the 10‑year prison sentence issued against Ahmed Mansoor,

–  having regard to Article 30 of the Constitution of the United Arab Emirates (UAE),

–  having regard to the Arab Charter on Human Rights, to which the UAE is a party,

–  having regard to the EU Strategic Framework and the Action Plan on Human Rights and Democracy 2015-2019,

–  having regard to the Council conclusions of 16 October 2017 on the Mid-Term Review of the Action Plan on Human Rights and Democracy,

–  having regard to the EU Guidelines on Human Rights Defenders of 2004, as updated in 2008,

–  having regard to the statement by the UN Human Rights Experts of 12 June 2018 calling for the immediate release of jailed human rights defender Ahmed Mansoor,

–  having regard to the Co-Chairs’ statement of 18 July 2016 at the 25th Joint Council and Ministerial Meeting of the European Union and of the Cooperation Council for the Arab States of the Gulf in Brussels,

–  having regard to the Universal Declaration of Human Rights of 1948,

–  having regard to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and to the International Covenant on Civil and Political Rights (ICCPR), to which the UAE is party,

–  having regard to Rules 135(5) and 123(4) of its Rules of Procedure,

A.  whereas Ahmed Mansoor was arrested by UAE security officers in March 2017; whereas he is a prominent human rights activist and the 2015 laureate of the Martin Ennals Award for Human Rights Defenders; whereas Mr Mansoor may have been the last remaining human rights defender in the UAE who had been able to criticise the authorities publicly;

B.  whereas the UAE’s Ministry of Foreign Affairs and International Cooperation explained in a statement on 29 March 2017 that ‘the Office of Public Prosecution for Electronic Crimes ordered the detention of Mr Ahmed Mansoor on a charge of spreading false and misleading information over the Internet, through agendas aimed at disseminating antipathy and sectarianism’; whereas this and other official statements of the UAE authorities indicated that the sole reason for his detention, trial, and conviction was the content of his expression online, and the charges against him are based on alleged violations of the UAE’s repressive 2012 Cybercrime Law, which has allowed UAE authorities to silence human rights defenders and provided for long prison sentences and severe financial penalties for individuals who criticise the country’s rulers;

C.  whereas the Office of the UN High Commissioner on Human Rights has assessed that the arrest and secret detention of Ahmed Mansoor may constitute an act of reprisal for his engagement with UN human rights mechanisms and for the views he has expressed on social media, including Twitter, as well as for being an active member of organisations such as the Gulf Centre for Human Rights;

D.  whereas a group of UN human rights experts has called on the UAE Government to release Mr Mansoor, describing his arrest as a direct attack on the legitimate work of human rights defenders in the UAE;

E.  whereas on 29 May 2018, Ahmed Mansoor was sentenced to 10 years in prison for exercising his right to freedom of speech in Twitter posts following a grossly unfair trial in Abu Dhabi; whereas he was also fined one million UAE dirhams (EUR 232 475) and was to be placed under surveillance for three years on his release; whereas Mr Mansoor has appealed against the sentence, but the timing of the appeal process remains unclear;

F.  whereas subsequently to his arrest in March 2017, Mr Mansoor has reportedly been prohibited from making any form of contact with his family, and has only been granted four visits by his wife since that date; whereas he has reportedly remained in solitary confinement since his arrest and allegedly subjected to torture; whereas according to the UAE authorities he is being detained in Al Sadr prison in Abu Dhabi;

G.  whereas it appears that Mr Mansoor has not been able to appoint an independent lawyer of his own choosing in spite of government assertions that he may do so; whereas the right to see a lawyer is a basic right of any detained person, as outlined in Article 16 of the Arab Charter on Human Rights, which the UAE has ratified;

H.  whereas Ahmed Mansoor has been harassed and persecuted by the UAE authorities for more than six years and has repeatedly faced physical assault, death threats, and physical and electronic surveillance; whereas after seven months of pre-trial detention, he was sentenced to three years in prison for ‘insulting officials’ in 2011 in a trial deemed unfair; whereas he was released after eight months on a presidential pardon, but the authorities never returned his passport, subjecting him to a de facto travel ban;

I.  whereas before his arrest Mr Mansoor was one of 133 signatories to a petition for universal and direct elections in the UAE and for the Federal National Council, a government advisory board, to be granted legislative powers; whereas Mr Mansoor also administered an online forum called Al-Hiwar al-Emarati that criticised UAE government policy and leaders; whereas he is a member of the Middle East and North Africa Advisory Committee at Human Rights Watch and an engaged actor with the UN Human Rights mechanisms;

J.  whereas UAE residents who have spoken up on human rights issues are at serious risk of arbitrary detention, imprisonment, and torture; whereas the crackdown on peaceful activism calling for constitutional reform and reform in relation to human rights issues is still ongoing; whereas attacks on members of civil society, including efforts to silence, imprison or harass human rights activists, journalists, lawyers, and others have become increasingly common in recent years;

K.  whereas the UN Special Rapporteur on the Independence of Judges and Lawyers stated after her visit to the UAE in 2014 that lawyers who take up cases related to state security ‘have been harassed, threatened and had pressure exerted on them’; whereas she denounced the fact that the ‘judicial system remains under the de facto control of the executive branch of the government’;

L.  whereas evidence has emerged that EU Member States have approved exports of various cybersurveillance technologies to countries with appalling human rights records, including the UAE;

M.  whereas the death penalty continues to be applied in the UAE; whereas at least 19 people are currently on death row and there was one execution in 2017;

1.  Strongly condemns the harassment, persecution and detention of Ahmed Mansoor as well as of all other human rights defenders solely on the basis of their human rights work and their use of their right to freedom of expression both online and offline; urges the UAE authorities to conduct thorough and impartial investigations into the attacks against civil society actors in order to bring the perpetrators to justice;

2.  Calls on the authorities to release Mr Mansoor immediately and unconditionally, and to drop all charges against him, as he is a prisoner of conscience detained solely for peacefully exercising his right to freedom of expression, including through his human rights work; also calls for the immediate and unconditional release of all prisoners of conscience in the UAE and for all charges against them to be dropped;

3.  Expresses its grave concern at the reports that Ahmed Mansoor has been subjected to forms of torture or ill-treatment while in detention, and that he is being held in solitary confinement; urges the authorities to investigate these allegations and grant him immediate and regular access to a lawyer, to his family, and to any medical care he may require; reminds the UAE authorities that prolonged and indefinite solitary confinement can amount to a form of torture or other cruel, inhuman or degrading treatment under international human rights law, and that the lack of an arrest warrant or any judicial oversight in his arrest and detention represents a breach of the fundamental principles of due process under international human rights law;

4.  Calls on the UAE authorities to ensure that detainees deemed to have broken the law undergo due process and are given a free and fair trial according to international standards;

5.  Calls on the UAE to review the Federal Law on combating cybercrimes in order to make it conform to international standards relating to the right of everyone to seek, receive, disseminate and impart information and ideas to others, the right to freedom of opinion, expression, and information, access to the internet and the right to privacy; urges the UAE authorities to amend the Counter-Terrorism Law, the 2012 Cybercrimes Law and Federal Law No 2/2008, which are repeatedly used to prosecute human rights defenders;

6.  Calls on the UAE authorities to stop all forms of harassment against individuals and immediately to lift the travel ban against human rights defenders, and insists that they guarantee, in all circumstances, that human rights defenders in the UAE are able to carry out their legitimate human rights activities, both inside and outside the country, without fear of reprisals;

7.  Calls for an EU-wide ban on the export, sale, update and maintenance of any form of security equipment to the UAE which can be or is used for internal repression, including internet surveillance technology; expresses its concern at the ever-increasing use of certain cybersurveillance dual-use technologies against activists and journalists; welcomes, in this regard, the EU institutions’ ongoing efforts to update the dual-use export control regulation;

8.  Is concerned at the increasing number of individuals who are being punished for collaborating with the UN and its different bodies; urges the UAE authorities to cease the obstruction and harassment of individuals engaged with various UN human rights mechanisms; urges the authorities, furthermore, to allow UN experts, international NGOs or EU officials access to visit Mr Mansoor;

9.  Calls for greater freedoms in the UAE; underlines that it is important that the UAE respect its international obligations under human rights law, and urges the authorities to ensure the protection of freedom of speech, thought and expression both online and offline for all UAE citizens, and to comply with all provisions of the United Nations Declaration on Human Rights Defenders, in particular Articles 1, 6(a), and 12(2); stresses that these freedoms are guaranteed not only by universal human rights instruments, but also by the Arab Charter on Human Rights, to which the UAE is a party;

10.  Calls on the UAE to confirm its intention to ‘uphold the highest standards in the promotion and protection of human rights’ by ratifying the ICCPR and its optional protocols and by issuing a standing invitation to visit to all UN special procedure mandate holders;

11.  Calls on the VP/HR, the EU and its Member States to take a strong public stand towards this flagrant violation of human rights, including by demanding Mr Mansoor’s release in all contacts they have with the UAE authorities; urges the EU Delegation in Abu Dhabi to provide all appropriate support to Ahmed Mansoor, including prison visits, trial monitoring and the provision of legal or any other form of assistance that he might require; calls on the European External Action Service (EEAS) to report to the European Parliament on the actions undertaken so far by the EU Delegation in support of Mr Mansoor;

12.  Calls on the EEAS to propose, and for the Member States to adopt, EU targeted measures related to serious human rights violations;

13.  Reiterates its opposition to the death penalty in all circumstances and calls for a moratorium with a view to its abolition ;

14.  Encourages continued dialogue between the EU, its Member States, and the UAE; considers that regular interparliamentary meetings between Parliament and its partners in the Gulf region are an important forum for developing a constructive and frank dialogue on issues of common concern; stresses that interparliamentary discussions should not focus only on security and trade issues, but should also include respect for human rights as a crucial topic in their discussions;

15.  Instructs its President to forward this resolution to the Government and Parliament of the United Arab Emirates, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the Commission, the EU Special Representative for Human Rights, the parliaments and governments of the Member States, the United Nations High Commissioner for Human Rights and the governments of the Member States of the Gulf Cooperation Council; calls for the translation of this resolution into Arabic.

(1) OJ C 72 E, 11.3.2014, p. 40.


Mass arbitrary detention of Uyghurs and Kazakhs in the Xinjiang Uyghur Autonomous Region
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European Parliament resolution of 4 October 2018 on mass arbitrary detention of Uyghurs and Kazakhs in the Xinjiang Uyghur Autonomous Region (2018/2863(RSP))
P8_TA-PROV(2018)0377RC-B8-0460/2018

The European Parliament,

–  having regard to its previous resolutions on the situation in China, in particular those of 26 November 2009 on China: minority rights and application of the death penalty(1), of 10 March 2011 on the situation and cultural heritage in Kashgar (Xinjiang Uyghur Autonomous Region)(2), of 6 July 2017 on the cases of Nobel Laureate Liu Xiaobo and Lee Ming-che(3), of 15 December 2016 on the cases of the Larung Gar Tibetan Buddhist Academy and Ilham Tohti(4), and of 12 September 2018 on the State of EU-China relations(5),

–  having regard to Article 36 of the Constitution of the People’s Republic of China, which guarantees all citizens the right to freedom of religious belief, and to Article 4 thereof, which upholds the rights of ‘minority nationalities’,

–  having regard to the EU-China Strategic Partnership which was launched in 2003 and to the joint communication of 22 June 2016 from the Commission and the EEAS to Parliament and the Council entitled ‘Elements for a new EU strategy on China’ (JOIN(2016)0030),

–  having regard to the 36th round of EU-China dialogue on human rights held in Beijing on 9-10 July 2018,

–  having regard to remarks in the address made by Michelle Bachelet, the UN High Commissioner for Human Rights, to the 39th session of the UN Human Rights Council on 10 September 2018, in which she expressed deep concern over ‘re-education camps’ and asked the Chinese Government to admit independent investigators,

–  having regard to the recent general allegation letter sent in May 2018 by the UN Working Group on Enforced or Involuntary Disappearances (WGEID) to the Chinese Government, expressing concern about the continued deterioration of the situation and increase in the number of Uyghurs being arbitrarily detained,

–  having regard to the International Covenant on Civil and Political Rights of 16 December 1966,

–  having regard to the Universal Declaration of Human Rights of 1948,

–  having regard to Rules 135(5) and 123(4) of its Rules of Procedure,

A.  whereas the promotion of and respect for universal human rights, democracy and the rule of law should remain at the centre of the long-standing relationship between the EU and China, in accordance with the EU’s commitment to uphold these very same values in its external action and China’s expressed interest in adhering to them in its own development and international cooperation;

B.  whereas since President Xi Jinping assumed power, the human rights situation in China has deteriorated further, with the government stepping up its hostility toward peaceful dissent, the freedoms of expression and religion, and the rule of law;

C.  whereas the situation in Xinjiang, which is home to around 11 million Uyghurs and ethnic Kazakhs, has rapidly deteriorated in recent years, as absolute control of Xinjiang has been elevated to a top priority, while further challenges are posed by periodic terrorist attacks in or allegedly connected to Xinjiang, by Uyghurs;

D.  whereas the UN Committee on the Elimination of Racial Discrimination has cited estimates that ‘from tens of thousands to upwards of a million Uighurs’ may be being detained in the Xinjiang Uyghur Autonomous Region (XUAR), without being charged or tried, under the pretext of countering terrorism and religious extremism; whereas this would represent the largest mass incarceration of an ethnic minority population in the world today;

E.  whereas the US Congressional-Executive Commission on China has also stated that there is solid information that Uyghurs, Kazakhs and other primarily Muslim ethnic minorities in the XUAR have been subjected to arbitrary detention, torture, egregious restrictions on religious practice and culture, and a digital surveillance system so pervasive that every aspect of daily life is monitored – through facial recognition cameras, mobile phone scans, DNA collection and an extensive and intrusive police presence;

F.  whereas detainees are reportedly being held in poor conditions, subjected to political indoctrination, including mandatory courses in patriotism, and forced to denounce their ethnic and religious identity; whereas there are recent reports of deaths in custody including suicides;

G.  whereas thousands of children have reportedly been separated from their parents, who are arbitrarily detained in internment camps, and are being held in overcrowded orphanages, even if only one of their parents is detained in a camp;

H.  whereas at the UN hearing of 13 August 2018 in Geneva, the Chinese delegation denied the accusations made by UN experts of having detained ethnic Uyghur Muslims in ‘re-education’ camps in the western region of Xinjiang; whereas comprehensive evidence exists of the construction and upgrading of these facilities;

I.  whereas some foreign journalists have been pressured into refraining from reporting on sensitive issues such as Uyghur human rights and the use of internment camps, including in some cases through the refusal to renew press credentials;

J.  whereas nowhere in the world is the population monitored as strictly as in the XUAR; whereas the provincial government has recruited tens of thousands of additional security personnel;

K.  whereas data is collected by an ‘integrated joint operations platform’ that also stores further data on the population, including consumer habits, banking activity, health status and the DNA profile of every single inhabitant of the XUAR; whereas Muslims in the region are required to have a spyware app on their mobile phones and failure to install the app is an offence;

L.  whereas first-hand testimony and credible academic research have indicated that there is intentional targeting of Uyghurs with ties to people abroad and of those with religious beliefs;

M.  whereas Uyghurs overseas have been pressured to return to China, often with the support of host states; whereas Chinese embassies abroad have refused to renew many Uyghur passports, leading to insecurity in terms of work and study;

N.  whereas requests from the WGEID and the UN High Commissioner for Human Rights, and other UN Special Procedures mandates to send independent investigators to Xinjiang have been routinely denied by the Chinese Government;

O.  whereas the Uyghur economics professor Ilham Tohti was sentenced to life imprisonment on 23 September 2014 on the charge of alleged separatism, after being detained in January of the same year; whereas seven of his former students were also detained and sentenced to imprisonment of between three and eight years for alleged collaboration with Mr Tohti; whereas Ilham Tohti has always rejected separatism and violence and has sought reconciliation based on respect for Uyghur culture;

1.  Is deeply concerned about the increasingly suppressive regime imposed on different minorities, in particular Uyghurs and Kazakhs, with additional restrictions being placed on the constitutional guarantees of their rights to freedom of cultural expression and religious belief, speech and expression, and peaceful assembly and association; demands that the authorities respect these fundamental freedoms;

2.  Calls on the Chinese Government to immediately end the mass arbitrary detention of members of the Uyghur and Kazakh minorities, to close all camps and detention centres and to release detained persons immediately and unconditionally; is deeply concerned by the numerous allegations of poor conditions, torture and deaths inside the camps; reminds the Chinese authorities that re-education facilities have no legal basis;

3.  Is alarmed by the reported deaths of Muhammad Salih Hajim, Abdulnehed Mehsum, Ayhan Memet and others, all elderly Uyghurs, academics and community leaders, in internment camps;

4.  Expresses its deep concern at the state’s implementation of measures to ensure the ‘comprehensive supervision’ of the region through the installation of China’s ‘Skynet’ electronic surveillance system in major urban areas, the installation of GPS trackers in motor vehicles, the use of facial recognition scanners at checkpoints and at train and petrol stations, and the blood-collecting activities of Xinjiang’s police force to further expand China’s DNA database;

5.  Emphasises that government control and the compulsory mass collection of citizens’ data primarily targets and affects Uyghurs, Kazakhs and other ethnic minorities, in violation of the prohibition of discrimination under international law;

6.  Urges the Chinese Government to release to the families concerned the full details of those forcibly disappeared in Xinjiang, including their names, whereabouts and current status;

7.  Is deeply concerned about China’s Counterterrorism Law (2015) and the Regulation on De-Extremification, which have an overly broad definition of what constitutes a terrorist act; calls, therefore, on China to clearly differentiate between peaceful dissent and violent extremism;

8.  Reiterates its call on the Chinese Government to immediately and unconditionally release Uyghur scholar Ilham Tohti and all others detained solely for the peaceful exercise of their freedom of expression and, pending their release, calls on China to ensure that they have regular, unrestricted access to their families and lawyers of their choice; calls, furthermore, for the release of Eli Mamut, Hailaite Niyazi, Memetjan Abdulla, Abduhelil Zunun and Abdukerim Abduweli, as requested by the EU during the 36th round of the EU-China Human Rights dialogue held in Beijing on 9-10 July 2018;

9.  Urges the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy (VP/HR), the European External Action Service (EEAS) and the Member States to monitor intensely the changing human rights developments in Xinjiang, including the increased government repression of Uyghurs, Kazakhs and other ethnic minorities, and to send a strong message to the highest level of the Chinese Government to end the grotesque human rights violations;

10.  Calls on the Chinese authorities to allow free, unhindered access for journalists and international observers to Xinjiang province;

11.  Recalls the importance for the EU and the Member States of raising the issue of human rights violations in Xinjiang with the Chinese authorities, including at leadership level, in line with the EU’s commitment to project a strong, clear and unified voice in its approach to the country, including at the yearly Human Rights Dialogue and the upcoming Euro-Asia Summit;

12.  Expresses its deep concern regarding the reports of harassment of Uyghurs abroad by the Chinese authorities aiming to compel them to act as informants against other Uyghurs, return to Xinjiang or remain silent about the situation there, sometimes by detaining their family members;

13.  Welcomes the decision taken by Germany and Sweden to suspend the return of all ethnic Uyghurs, Kazakhs or other Turkic Muslims to China in consideration of the risk of arbitrary detention, torture or other ill-treatment they would face in the country, and calls on all other Member States to follow suit and to expedite asylum claims by Turkic Muslims at risk of being forcibly returned to China; further calls on EU Member States to invoke domestic law, as appropriate, to investigate the Chinese Government’s intimidation of Turkic Muslim diaspora communities in Europe;

14.  Reminds China of its human rights obligations following its signing of a wide range of international human rights treaties and therefore recalls that China is expected to live up to these commitments;

15.  Instructs its President to forward this resolution to the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the Council, the Commission, the governments and parliaments of the Member States, and the Government and the Parliament of the People’s Republic of China.

(1) OJ C 285 E, 21.10.2010, p. 80.
(2) OJ C 199 E, 7.7.2012, p. 185.
(3) OJ C 334, 19.9.2018, p. 137.
(4) OJ C 238, 6.7.2018, p. 108.
(5) Texts adopted, P8_TA(2018)0343.


Public procurement strategy package
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European Parliament resolution of 4 October 2018 on the public procurement strategy package (2017/2278(INI))
P8_TA-PROV(2018)0378A8-0229/2018

The European Parliament,

–  having regard to the Commission communication of 3 October 2017 on Making Public Procurement work in and for Europe (COM(2017)0572),

–  having regard to the Commission communication of 3 October 2017 on Helping investment through a voluntary ex-ante assessment of the procurement aspects for large infrastructure projects (COM(2017)0573),

–  having regard to Commission Recommendation (EU) 2017/1805 of 3 October 2017 on the professionalisation of public procurement – Building an architecture for the professionalisation of public procurement (C(2017)6654)(1),

–  having regard to Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC(2),

–  having regard to Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC(3),

–  having regard to Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts(4),

–  having regard to the Commission report of 17 May 2017 on the review of the practical application of the European Single Procurement Document (ESPD) (COM(2017)0242),

–  having regard to Directive 2014/55/EU of the European Parliament and of the Council of 16 April 2014 on electronic invoicing in public procurement(5),

–  having regard to the Commission report of 11 October 2017 on the Assessment of the European Standard on electronic invoicing, according to Directive 2014/55/EU (COM(2017)0590),

–  having regard to the European Economic and Social Committee opinion of 14 February 2018,

–  having regard to Rule 52 of its Rules of Procedure,

–  having regard to the report of the Committee on the Internal Market and Consumer Protection, the opinion of the Committee on International Trade and the position in the form of amendments of the Committee on the Environment, Public Health and Food Safety (A8-0229/2018),

A.  whereas the full potential of public procurement in helping to build a competitive social market economy is yet to be unlocked, and whereas over 250 000 public authorities in the Union spend around 14 % of GDP, or nearly EUR 2 000 billion, each year on the purchase of services, works and supplies;

B.  whereas public procurement involves the spending of a considerable amount of taxpayers’ money, meaning that it should be carried out in an ethical manner, with transparency and integrity and in the most efficient way, in terms of both costs and quality delivered, in order to provide quality goods and services to citizens;

C.  whereas correctly implemented public procurement rules are a crucial tool in the service of a stronger single market and for the growth of EU companies and jobs in the Union and whereas the intelligent use of public procurement can be a strategic tool to achieve the EU’s goals of smart, sustainable and inclusive growth, accelerating the transition to more sustainable supply chains and business models;

D.  whereas, when it comes to the transposition of EU rules on public procurement and concessions, the full transposition and implementation of EU law is essential to make it easier and cheaper for small and medium-sized enterprises to bid for public contracts, with full respect for the EU’s principles of transparency and competition;

E.  whereas the Commission launched a targeted consultation on the draft Guidance on Public Procurement of Innovation on 3 October 2017, and a targeted consultation on the scope and structure of a Commission guide on socially responsible public procurement on 7 December 2017;

F.  whereas according to a 2016 survey, as mentioned in Commission communication COM(2017)0572, only four Member States relied on digital technologies for all major steps in public procurement, such as e-notification, e-access to tender documents, e-submission, e-evaluation, e-award, e-ordering, e-invoicing and e-payment;

G.  whereas according to the European Semester thematic fact sheet on public procurement of November 2017, the number of tender procedures with only one bid increased from 14 % to 29 % for the period 2006­2016, and whereas, according to Commission communication COM(2017)0572, ‘SMEs win only 45 % of the value of public contracts above EU thresholds, clearly below their weight in the economy’;

H.  whereas the new rules introduced by the 2014 directives, by facilitating public procurement and imposing more controls, should contribute to the implementation of the Europe 2020 Strategy for a sustainable, more social, innovative and inclusive economy;

I.  whereas according to Commission communication COM(2017)0572, 55 % of public procurement procedures still use the lowest price as the only award criterion, instead of, for instance, strategic social and environmental criteria;

J.  whereas the European Union is committed to the United Nations Sustainable Development Goals (SDGs);

K.  whereas it is of crucial importance that suppliers trust that the Union’s public procurement systems offer simple and accessible digital procedures, full transparency, integrity and security of data;

Legislative framework and implementation

1.  Welcomes, almost four years after the extensive revision of the Union public procurement legislative framework was concluded, the set of non-legislative measures proposed by the Commission and expects that this will create impetus for better implementation;

2.  Is deeply disappointed by the pace at which many Member States have transposed the 2014 directives in the area of public procurement, and by the many delays, and deplores the fact that the Commission had to initiate infringement procedures against some Member States; urges the swift completion of transposition in all Member States without any further delay;

3.  Is concerned about the next round of deadlines provided by the directives regarding electronic procurement and the transition of Member States to full e-procurement, including e-invoicing; stresses the need for the Member States’ digital agendas to include the promotion of full e-procurement;

4.  Calls on the Commission to finalise swiftly the Guidance on Public Procurement of Innovation and the Guide on socially responsible public procurement, in order to facilitate the implementation of the respective legal provisions in the Member States;

5.  Asks the Commission to better and more clearly organise the guides and other tools developed to help Member States with the implementation of the public procurement framework, in a more accessible and user-friendly way that offers a good overview to all practitioners, while also paying attention to the languages available;

6.  Welcomes the new public procurement guidance for practitioners of February 2018, designed to help national, regional and local public officials ensure efficient and transparent public procurement procedures for EU-funded projects;

Strategic and coordinated procurement

7.  Points out that the current Union legislation, more than ever, allows for public procurement to be used as a strategic instrument to promote EU policy goals, and encourages the Member States to get the most that they can out of it; recalls that public procurement is also an important tool at a regional and local level to complement local and regional strategies and encourages public hearings and consultations with the end users of products and services;

8.   Calls for the extensive use of innovative procurement to achieve smart, green and inclusive growth and to strengthen the circular economy; underlines the importance of the circular economy and, in this regard, the new possibilities offered by the new public procurement directives as regards goods and services reused, repaired, remanufactured, refurbished and other sustainable and resource-efficient products and solutions;

9.  Calls on the Member States to use public procurement strategically in order to promote smart, sustainable and inclusive growth, including for SMEs and social enterprises; underlines that this requires Member States to systematically signal such policies at the highest level and support, to this end, procurers and practitioners in the public administration;

10.  Points out the importance of tendering conditions which are not overly burdensome, so that access to public contracts remains possible for all companies, including SMEs;

11.  Welcomes the example of adopting National Public Procurement Strategies and encourages more Member States to follow this example as a means of modernising and streamlining their public procurement systems and hence enhancing their efficiency; stresses that public procurement is a cross-cutting area for the various sectors of public administration, and that it is thus essential to have, in addition to coordination, a governance structure that involves the main stakeholders so that the fundamental decisions can be taken in a more collaborative manner and accepted by all those involved;

12.  Welcomes the fact that many Member States have made provisions for the use of quality criteria (including the best price-quality ratio) and encourages their systematic application; encourages contracting authorities to apply criteria other than simply the lowest price or cost effectiveness, taking into account qualitative, environmental and/or social aspects;

13.  While acknowledging that in some cases the low price can reflect innovative solutions and efficient management, is concerned about the excessive use of the lowest price as the primary award criterion in a number of Member States with disregard for quality, sustainability and social inclusion, and therefore calls on the Commission and the Member States to analyse and report on the reasons behind this situation and to propose suitable solutions where necessary;

14.  Calls on the Member States to ensure that public procurement practices are in line with the Convention on the Rights of Persons with Disabilities; calls on the Member States to encourage consultation with persons with disabilities and their representative organisations in this respect;

15.  Calls for the adoption of a European code of ethics for public procurement for the various actors in the procurement process;

16.  Stresses that it is important for contracting authorities to consider the full life-cycle of products, including their impact on the environment, in their purchasing decisions, when appropriate, and calls on the Commission to assist in the development of methodologies to implement the concept of ‘life-cycle costing’;

17.  Notes that innovative, social and environmental considerations are legitimate and essential award criteria in public procurement, and that contracting authorities can also pursue green, innovative or social goals through well-thought-out specifications and by allowing variant offers in a non-discriminatory way, provided that these characteristics are linked to the subject matter of the contract and are proportionate to its value and objectives;

18.  Recalls that the Union’s legislative framework on public procurement obliges Member States to ensure that contractors and subcontractors fully comply with the environmental, social and labour law provisions which apply at the place where the works are executed, services are provided or goods are produced or supplied, as set out in the applicable international conventions, in Union and national law as well as in collective agreements concluded in accordance with national law and practices; calls on the Commission to guarantee that this obligation is fulfilled by Member States in the transposition and application of the 2014 directives and to facilitate the exchange of best practices in this area;

19.  Acknowledges that a qualitative assessment of bids requires skilled procurers, and calls on the Commission to assist Member States with the dissemination of evaluation methodologies and practices, particularly through the organisation of workshops and training courses; underlines that such assistance should be available at all administrative levels where procurement is carried out;

20.  Points out that that socially responsible public procurement must take into account supply chains and the risks associated with modern-day slavery, social dumping and human rights violations; notes that efforts must be made to ensure that goods and services acquired through public procurement are not produced in a manner that violates human rights; calls on the Commission to include substantive provisions on ethics in supply chains in its new guide on social considerations in public procurement;

21.  Welcomes the efforts of several Member States to set up authorities that are responsible for coordinating procurement, and acknowledges that this contributes to conducting strategic and efficient procurement;

22.  Calls for more Member States to use the advantages of central purchasing and aggregation of public purchasing, and notes that Central Purchasing Bodies could and should speed up dissemination of expertise, of best practices and of innovation;

23.  Stresses that, especially with the aim of fostering innovation, it is important that contracting authorities engage with the market and make sufficient use of the pre-procurement phase as preparation for the next steps; believes that pre-procurement is also an essential phase for supporting SME involvement;

24.  Considers that the new partnership procedure will help to foster innovation, and encourages contracting authorities to cooperate with the market in order to develop innovative methodologies, products, works or services which do not yet exist; welcomes in this regard the fact that 17 innovation partnership procedures have been initiated to date;

25.  Welcomes the voluntary ex-ante assessment of procurement aspects for large infrastructure projects, as proposed by the Commission, and calls on the Commission to swiftly implement the helpdesk, the notification mechanism and the information exchange mechanism, while fully respecting confidentiality;

Digitalisation and sound management of the procurement procedures

26.  Regrets the slow uptake of digital technologies in public procurement in the Union, and calls on the Member States to strive for a rapid digital transformation of the procedures and for the introduction of e-processes for all major stages, namely from notification, access to tenders and submission to evaluation, contract award, ordering, invoicing and payment;

27.  Calls on the Commission and the Member States to put in place the eForms by the end of 2018 at the latest;

28.  Recalls that e-procurement offers a range of important benefits such as significant savings for all parties, simplified and shortened processes, reductions in red tape and administrative burdens, increased transparency and greater innovation as well as improved access of SMEs to public procurement markets;

29.  Agrees with the Commission that contract registers can be a cost-efficient tool for managing contracts, for improving transparency, integrity and data, and for better governance of public procurement;

30.  Calls on the Commission to look into the possibility of interlinking national contract registers with Tenders Electronic Daily (TED) to remove the obligation on contracting authorities to publish the same information in two systems;

31.  Draws attention to the difficulties that may arise for bidders, and especially SMEs, regarding requirements for certificates and signatures and encourages a light requirements regime in this respect, together with full application of the once-only principle in order to minimise the burden for bidders;

32.  Emphasises that all Member States should be in a position to provide all necessary data on public procurement implementation, including data on tenders, procedures and contracts and statistical information, also in order to enable the Commission to assess the single market on procurement;

33.  Calls on the Member States to promote the innovative use of open-format data, as such data are essential for any government to manage its public administration, and at the same time, to enable the economic potential of such data to be harnessed by companies, while also encouraging transparency and responsibility within institutions and bodies dealing with public procurement; points out that such data must always be published with due regard for the principle of proportionality and in accordance with the EU acquis on data protection and business secrecy;

Single market and improved access to procurement

34.  Points out that competitive bidding is vital in public procurement, and notes with regret a decrease in the intensity of competition in public procurement in the Union in recent years; urges the Member States recording a high percentage of notices with only one bidder to address the problem;

35.  Urges the Member States to increase joint procurement procedures, including cross-border, as facilitated by the revised EU rules, and calls on the Commission to provide in-depth support in this field; considers that such procedures should not however result in contracts of such size that SMEs are effectively excluded from consideration at the earliest stage of the process;

36.  Regrets that SMEs and social economy enterprises are still facing difficulties in accessing public procurement, and calls on the Commission to assess the effectiveness of the measures provided by the 2014 directives and to come forward with new solutions if necessary;

37.  Asks the Commission to report to Parliament on the implementation on the ground of the ‘apply or explain’ principle in Article 46 of Directive 2014/24/EU, which requires contracting authorities to provide an indication of the main reasons for their decision not to subdivide into lots, which must be systematically explained in the procurement documents or the individual report;

38.  Calls on the Member States to support SMEs’ participation in tenders, for example by mandatory division into lots when possible or by placing a limit on the turnover required to participate in a tender procedure; highlights that division of public procurement contracts into lots fosters competition in the market as well as avoiding the risk of single-supplier dependency; calls on the Commission and the Member States to develop advisory services and training for SMEs to improve their participation in tendering processes;

39.  Calls on the Commission to analyse in particular the impediments to cross-border public procurement resulting from language, administrative, legal or any other barriers, and to propose solutions or intervene in order to guarantee functional cross-border procurement;

40.  Underlines the importance of ensuring interoperability in purchased goods and services and of avoiding vendor lock-in, and calls on the Commission to propose measures in this field;

41.  Regrets the lack of clear and consolidated public procurement data in the EU and notes that reliable data on access to public procurement are necessary to verify the accountability of public authorities, and are a means of combating fraud and corruption;

42.  Accepts the evaluation outcome of the Remedies Directive and the Commission’s decision not to propose a legislative revision, but calls for continuation of the cooperation of national review bodies and for more guidance from the Commission on the directives;

43.  Regrets that the Defence Procurement Directive has not yet delivered the desired results, in particular with regard to trans-national infrastructure projects, and urges the Commission and the Member States to intensify their efforts to better implement the currently applicable rules;

44.  Highlights the importance of transparency and the non-discriminatory nature of public procurement procedures; recalls the importance of having proper appeal procedures in place and the importance of access to guidance on how to launch an appeal;

International public procurement

45.  Calls for Union action to improve the access of EU suppliers to third-country public procurement markets, as the Union’s public procurement market is one of the most open in the world;

46.   Expresses concern over unfair competition within public procurement procedures as a result of state interference with third-country competitors, in particular, but not limited, to the market for electric vehicles and batteries; considers that there is a need to link trade defence instruments and public procurement practices;

47.  Stresses that public procurement markets are of major economic importance, given that procurement expenditure is estimated to account for 20 % of global GDP, and stresses that improving access to public procurement markets in third countries, as well as levelling the playing field for European businesses, can therefore be a major driver of growth in trade of goods and services, and also leads to greater choice and better value for tax payers’ money, both in the EU and in third countries;

48.  Points out that public procurement markets in third countries are often de jure and/or de facto closed to EU bidders; encourages the Commission to collect and provide better data on international public procurement procedures; recalls that the Commission estimates that more than half of the global procurement market is currently closed to free international competition owing to protectionist measures, which are on the rise globally, while approximately EUR 352 billion in value of EU public procurement is open to bidders from member countries of the WTO Agreement on Government Procurement; stresses the need for the EU to address this imbalance without resorting to protectionist measures; asks the Commission to ensure that European companies get similar market access to that enjoyed by our foreign competitors in the EU market and notes that the proposed so-called international procurement instrument (IPI) could under certain conditions be a means to create leverage for increasing market access;

49.  Welcomes the fact that one of the six priority areas for the Commission’s action in the field of public procurement is the improvement of access to procurement markets; stresses that improving access to public procurement markets in third countries, including at sub-national level, constitutes a strong offensive interest for the EU in trade negotiations, given that many EU companies are highly competitive in various sectors; stresses that government procurement should be included in each future trade agreement with a view to maximising the participation of European companies in foreign tenders; calls on the Commission to ensure compliance with and proper implementation of the provisions concerning public procurement markets contained in the EU’s free trade agreements; recalls that trade agreements should be used to improve access to third countries’ public procurement markets and that improved market access to third-country procurement markets, and enhanced rules for modern, efficient and transparent procurement procedures, which are crucial to obtaining better value for public money, should be key elements of any trade agreement to be concluded by the EU, while fully respecting the legitimate public policy objectives enshrined in the Union’s public procurement directives; stresses that third-country economic operators must comply with European social and environmental criteria in order to qualify for public procurement contracts, as laid out in Directives 2014/23/EU, 2014/24/EU and 2014/25/EU, and encourages, in line with this, the use of MEAT (most economically advantageous tenders) criteria for the award of such contracts; notes that bilateral and sub-regional free trade agreements do not always guarantee full access to procurement markets; asks the Commission to negotiate the greatest possible access to public procurement markets in third countries;

50.  Emphasises that any strategy to open up public procurement markets in third countries must concretely address the obstacles to and specific needs of SMEs to facilitate their access to markets, as they are particularly disadvantaged when it comes to penetrating third-country public procurement markets, while the effects on SMEs of exposure to new competitors from third countries must also be given due consideration; calls on the Commission to encourage the inclusion of SME-friendly procurement procedures (including cross-border initiatives and the division of tenders into lots) in trade agreements; stresses the benefits to be gained, by SMEs in particular, through digitalisation and the use of e-procurement in all public procurement processes with third countries;

51.  Points out that major emerging economies, such as Brazil, China, India and Russia, are not yet part of the GPA, while China and Russia are officially in the process of acceding, and asks the Commission to encourage and promote third countries in their efforts to join the GPA, as multilateral and plurilateral agreements are the best way to establish a level playing field in the long term; stresses that bilateral trade agreements with ambitious procurement provisions that respect the underlying principles of the GPA can be a stepping stone for enhanced multilateral cooperation;

52.  Highlights the importance of the GPA not only for providing de jure access to procurement markets in third countries, but also for enhancing the transparency and predictability of procurement procedures; encourages the Commission to promote the development of global and convergent standards for transparent procurement as an important tool for combating corruption; more specifically, asks the Commission to strive for the inclusion in trade agreements of provisions on joint rules for public procurement which enable reporting of corruption, simplify procedures and strengthen integrity and transparency for bidders;

Professionalisation

53.  Welcomes the Commission’s recommendations on professionalisation and calls on the Member States to develop national plans as a priority; suggests that each plan should differentiate between types of procurement, in particular as SME access to procurement in services and digital infrastructure may be facilitated in a different way to procurement access in the case of large infrastructure contracts;

54.  Calls on the Commission to propose the means for financial support from Union funds to support relevant actions on professionalisation in the Member States;

55.  Regrets the low level of professionalisation among those responsible for public purchasing and calls on the Member States to improve the skills of everyone involved in all stages of the public procurement process;

56.  Underlines that both procurers and suppliers need to be adequately trained in order to work efficiently at all procurement stages, and that attention must be given to all levels of public administration and to quality criteria, including social and environmental criteria, regarding professionalisation; believes that better results can be achieved by improving how public authorities consider what they will procure as well as how they procure it; without prejudice to the negotiated procedure, regrets that public procurement can often be captured by more experienced firms, which assist in the design phase of a procurement contract and as a consequence are better placed to win the contract;

57.  Asks Member States to encourage universities to further develop university courses in European public procurement law and to improve the training and career management of procurement practitioners, including those working in SMEs, including concerning the development and uptake of accessible IT tools; supports the creation of a common European framework of relevant technical and computer skills;

o
o   o

58.  Instructs its President to forward this resolution to the Council, the Commission and the governments and parliaments of the Member States.

(1) OJ L 259, 7.10.2017, p. 28.
(2) OJ L 94, 28.3.2014, p. 65.
(3) OJ L 94, 28.3.2014, p. 243.
(4) OJ L 94, 28.3.2014, p. 1.
(5) OJ L 133, 6.5.2014, p. 1.


EU Agency for Criminal Justice Cooperation (Eurojust) ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 4 October 2018 on the proposal for a regulation of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust) (COM(2013)0535 – C7-0240/2013 – 2013/0256(COD))
P8_TA-PROV(2018)0379A8-0320/2017

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2013)0535),

–  having regard to Article 294(2) and Article 85 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0240/2013),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Czech Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the provisional agreement approved by the responsible committee under Rule 69f(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 20 June 2018 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Budgetary Control and the Committee on Legal Affairs (A8-0320/2017),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 4 October 2018 with a view to the adoption of Regulation (EU) 2018/… of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA

P8_TC1-COD(2013)0256


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(1),

Whereas:

(1)  Eurojust was set up by Council Decision 2002/187/JHA(2) 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(6), 2007/845/JHA(7) and 2008/852/JHA(8). 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(9) 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/... of the European Parliament and of the Council(10)(11) 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/...+ (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/...+ , 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/...(12) 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/...(13) .

(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/...(14).

(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(15) and Council Decision 2007/533/JHA(16).

(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(17) ▌.

(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(18) should apply to Eurojust.

(67)  Regulation (EU, Euratom) No. 883/2013 of the European Parliament and of the Council ▌(19) 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(20) 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

1.  The European Union Agency for Criminal Justice Cooperation (Eurojust) is hereby established.

2.  Eurojust as established by this Regulation shall replace and succeed Eurojust as established by Decision 2002/187/JHA.

3.  Eurojust shall have legal personality. ▌

Article 2

Tasks

1.  Eurojust shall support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime which Eurojust is competent to deal with in accordance with Article 3(1) and (3), where that crime affects two or more Member States, or requires prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities, by Europol, by the EPPO and by OLAF.

2.  In carrying out its tasks, Eurojust shall:

(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.

3.  Eurojust shall carry out its tasks at the request of the competent authorities of the Member States, on its own initiative or at the request of the EPPO within the limits of the EPPO’s competence.

Article 3

Competence of Eurojust

1.  Eurojust shall be competent with respect to the forms of serious crime listed in Annex I. However, as of the date on which the EPPO assumes its investigative and prosecutorial tasks in accordance with Article 120(2) of Regulation (EU) 2017/1939, Eurojust shall not exercise its competence with regard to crimes for which the EPPO exercises its competence, except in those cases where Member States which do not participate in enhanced cooperation on the establishment of the EPPO are also involved and at the request of those Member States or at the request of the EPPO.

2.  Eurojust shall exercise its competence for crimes affecting the financial interests of the Union in cases involving Member States which participate in enhanced cooperation on the establishment of the EPPO but in respect of which the EPPO does not have competence or decides not to exercise its competence.

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).

3.  As regards forms of crime other than those listed in Annex I, Eurojust may also, in accordance with its tasks, assist with investigations and prosecutions where requested by a competent authority of a Member State.

4.  Eurojust's competence shall cover criminal offences related to the criminal offences listed in Annex I. The following categories of offences shall be regarded as related criminal offences:

(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.

5.  At the request of a Member State's competent authority, Eurojust may also assist with investigations and prosecutions that only affect that Member State and a third country, provided that a cooperation agreement or arrangement establishing cooperation pursuant to Article 52 has been concluded with that third country or provided that in a specific case there is an essential interest in providing such assistance.

6.  At the request of either the competent authority of a Member State or the Commission, Eurojust may assist in investigations and prosecutions that only affect that Member State but which have repercussions at Union level. Before acting at the request of the Commission, Eurojust shall consult the competent authority of the Member State concerned. That competent authority may, within a deadline set by Eurojust, oppose the execution of the request by Eurojust, justifying its position in every case.

Article 4

Operational functions of Eurojust

1.  Eurojust shall:

(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.

2.  In carrying out its tasks, Eurojust may ask the competent authorities of the Member States concerned, giving its reasons, to:

(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.

3.  Eurojust may also:

(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.

4.  Where two or more Member States cannot agree as to which of them should undertake an investigation or prosecution following a request under points (a) or (b) of paragraph 2, Eurojust shall issue a written opinion on the case. Eurojust shall send the opinion to the Member States concerned immediately.

5.  At the request of a competent authority, or on its own initiative, Eurojust shall issue a written opinion on recurrent refusals or difficulties concerning the execution of requests for, and decisions on, judicial cooperation, including requests and decisions based on instruments giving effect to the principle of mutual recognition, provided that it is not possible to resolve such cases through mutual agreement between the competent national authorities or through the involvement of the national members concerned. Eurojust shall send the opinion to the Member States concerned immediately.

6.  The competent authorities of the Member States concerned shall respond to requests from Eurojust under paragraph 2 and to the written opinions referred to in paragraph 4 or 5 without undue delay. The competent authorities of the Member States may refuse to comply with such requests or to follow the written opinion if doing so would harm essential national security interests, would jeopardise the success of an ongoing investigation or would jeopardise the safety of an individual.

Article 5

Exercise of operational and other functions

1.  Eurojust shall act through one or more of the national members concerned when taking any of the actions referred to in Article 4(1) or (2). Without prejudice to paragraph 2, the College shall focus on operational issues and any other issues that are directly linked to operational matters. The College shall only be involved in administrative matters to the extent necessary to ensure that its operational functions are fulfilled.

2.  Eurojust shall act as a College:

(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.

3.  When it fulfils its tasks, Eurojust shall indicate whether it is acting through one or more of the national members or as a College.

4.  The College may assign additional administrative tasks to the Administrative Director and the Executive Board beyond those provided for in Articles 16 and 18, in accordance with its operational needs.

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.

5.  The College shall adopt Eurojust’s rules of procedure on the basis of a two-thirds majority of its members. In the event that agreement cannot be reached by a two-thirds majority, the decision shall be taken by simple majority. Eurojust’s rules of procedure shall be approved by the Council by means of implementing acts.

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

1.  Eurojust shall have one national member seconded by each Member State in accordance with its legal system. That national member shall have his or her regular place of work at the seat of Eurojust.

2.  Each national member shall be assisted by one deputy and by one Assistant. In principle, the deputy and the Assistant shall have their regular place of work at the seat of Eurojust. Each Member State may decide that the deputy or Assistant or both will have their regular place of work in their Member State. If a Member State takes such a decision, it shall notify the College. If the operational needs of Eurojust so require, the College may request the Member State to assign the deputy or Assistant or both to work at the seat of Eurojust for a specified period. The Member State shall comply with such a request from the College without undue delay.

3.   Additional deputies or Assistants may assist the national member and, if necessary and with the agreement of the College, may have their regular place of work at Eurojust. Member States shall notify Eurojust and the Commission of the appointment of national members, deputies and Assistants.

4.  National members and deputies shall have the status of a prosecutor, a judge or a representative of a judicial authority with competences equivalent to those of a prosecutor or judge under their national law. The Member States shall grant them at least the powers referred to in this Regulation in order to be able to fulfil their tasks.

5.  The terms of office of the national members and their deputies shall be five years, renewable once. In cases where a deputy is unable to act on behalf of a national member or is unable to substitute for a national member, the national member shall remain in office upon expiry of his or her term of office until the renewal of his or her term or his or her replacement, subject to the consent of their Member State.

6.  Member States shall appoint national members and deputies on the basis of a proven high level of relevant, practical experience in the field of criminal justice.

7.  The deputy shall be able to act on behalf of or to substitute for the national member. An Assistant may also act on behalf of or substitute for the national member if he or she has a status referred to in paragraph 4.

8.  Operational information exchange between Eurojust and Member States shall take place through the national members.

9.  The salaries and emoluments of the national members, deputies and Assistants shall be borne by their Member State without prejudice to Article 12.

10.  Where national members, deputies and Assistants act within the framework of Eurojust's tasks, the relevant expenditure related to those activities shall be regarded as operational expenditure.

Article 8

Powers of national members

1.  The national members shall have the power to:

(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.

2.  Without prejudice to paragraph 1, Member States may grant additional powers to national members in accordance with their national law. Those Member States shall notify the Commission and the College of these powers.

3.  With the agreement of the competent national authority, national members may, in accordance with their national law:

(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(21).

4.  In urgent cases where it is not possible to identify or to contact the competent national authority in a timely manner, national members shall be competent to take the measures referred to in paragraph 3 in accordance with their national law, provided that they inform the competent national authority as soon as possible.

5.  The national member may submit a proposal to the competent national authority to carry out the measures referred to in paragraphs 3 and 4 where the exercise of the powers referred to in paragraphs 3 and 4 by that national member would be in conflict with:

(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.

6.  Member States shall ensure that, in cases referred to in paragraph 5, the proposal submitted by their national member is handled without undue delay by the competent national authority.

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

1.  The College shall be composed of:

(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).

2.  The Administrative Director shall attend the management meetings of the College, ▌without the right to vote.

3.  The College may invite any person whose opinion may be of interest to attend its meetings as an observer.

4.  The members of the College may, subject to the provisions of Eurojust's rules of procedure, be assisted by advisers or experts.

Article 11

The President and Vice-President of Eurojust

1.  The College shall elect a President and two Vice-Presidents from among the national members by a two-thirds majority of its members. In the event that a two-thirds majority cannot be reached after the second round of election, the Vice-Presidents shall be elected by a simple majority of the members of the College, while a two-thirds majority shall continue to be necessary for the election of the President.

2.  The President shall exercise his or her functions on behalf of the College. The President shall:

(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.

3.  The Vice-Presidents shall exercise the functions set out in paragraph 2 which the President entrusts to them. They shall replace the President if he or she is prevented from attending to his or her duties. The President and Vice-Presidents shall be assisted in the performance of their specific duties by the administrative staff of Eurojust.

4.  The term of office of the President and the Vice-Presidents shall be four years. They may be re-elected once.

5.   When a national member is elected President or Vice-President of Eurojust, his or her term of office ▌shall be extended to ensure that he or she can fulfil his or her function as President or Vice-President.

6.  If the President or Vice-President no longer fulfils the conditions required for the performance of his or her duties, he or she may be dismissed by the College acting on a proposal from one third of its members. The decision shall be adopted on the basis of a two-thirds majority of the members of the College, excluding the President or Vice-President concerned.

7.  When a national member is elected President of Eurojust, the Member State concerned may second another suitably qualified person to reinforce the national desk for the duration of the former's mandate as President.

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

1.  By ... [one year after entry into force of this Regulation], the Council shall, acting on a proposal by the Commission and by means of implementing acts, determine a mechanism for compensation, for the purpose of Article 11(7), to be made available to Member States whose national member is elected President.

2.  The compensation shall be available to any Member State if:

(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.

3.  The compensation provided shall equate to 50 % of the national salary of the seconded person. Compensation for living costs and other associated expenses shall be provided on a comparable basis to that provided to Union officials or other servants seconded abroad.

4.  The costs of the compensation mechanism shall be borne by Eurojust's budget.

Article 13

Meetings of the College

1.  The President shall convene the meetings of the College.

2.  The College shall hold at least one ▌meeting per month. ▌In addition, it shall meet on the initiative of the President, at the request of the Commission to discuss the administrative tasks of the College, or at the request of at least one third of its members.

3.  Eurojust shall send the EPPO the agenda of ▌College meetings ▌whenever issues are discussed which are of relevance for the exercise of the tasks of the EPPO. Eurojust shall invite the EPPO to participate in such meetings, without the right to vote.

When the EPPO is invited to a College meeting, Eurojust shall provide it with the relevant documents supporting the agenda.

Article 14

Voting rules of the College

1.  Unless stated otherwise, and where a consensus cannot be reached, the College shall take its decisions by a majority of its members.

2.  Each member shall have one vote. In the absence of a voting member, the deputy shall be entitled to exercise the right to vote subject to the conditions set out in Article 7(7). In the absence of the deputy, the Assistant shall also be entitled to exercise the right to vote subject to the conditions set out in Article 7(7).

Article 15

Annual and multi-annual programming

1.  By ▌30 November each year, ▌ the College shall adopt a programming document containing annual and multi-annual programming, based on a draft prepared by the Administrative Director, taking into account the opinion of the Commission. The College shall forward the programming document to the European Parliament, the Council, the Commission and the EPPO. The programming document shall become definitive after final adoption of the general budget of the Union and shall be adjusted accordingly, if necessary.

2.  The annual work programme shall comprise detailed objectives and expected results including performance indicators. It shall also contain a description of the actions to be financed and an indication of the financial and human resources allocated to each action, in accordance with the principles of activity-based budgeting and management. The annual work programme shall be coherent with the multi-annual work programme referred to in paragraph 4. It shall clearly indicate which tasks have been added, changed or deleted in comparison with the previous financial year.

3.  The College shall amend the adopted annual work programme when a new task is given to Eurojust. Any substantial amendment to the annual work programme shall be adopted by the same procedure as the initial annual work programme. The College may delegate to the Administrative Director the power to make non-substantial amendments to the annual work programme.

4.  The multi-annual work programme shall set out overall strategic programming including objectives, the strategy for cooperation with the authorities of third countries and international organisations referred to in Article 52, expected results and performance indicators. It shall also set out resource programming including multi-annual budget and staff. The resource programming shall be updated annually. The strategic programming shall be updated where appropriate, and in particular to address the outcome of the evaluation referred to in Article 69.

Section IV

The Executive Board

Article 16

Functioning of the Executive Board

1.  The College shall be assisted by an Executive Board. The Executive Board shall be responsible for taking administrative decisions to ensure the proper functioning of Eurojust. It shall oversee the necessary preparatory work of the Administrative Director on other administrative matters for adoption by the College. It shall not be involved in the operational functions of Eurojust referred to in Articles 4 and 5.

2.  The Executive Board may consult the College when carrying out its tasks.

3.  The Executive Board shall also:

(a)  review Eurojust's programming document referred to in Article 15 based on the draft prepared by the Administrative Director and forward it to the College for adoption;

(b)  adopt an anti-fraud strategy for Eurojust, proportionate to the fraud risks, taking into account the costs and benefits of the measures to be implemented and based on a draft prepared by the Administrative Director;

(c)  adopt appropriate implementing rules giving effect to the Staff Regulations of Officials of the European Union (the 'Staff Regulations of Officials') and the Conditions of Employment of Other Servants of the European Union ('Conditions of Employment of Other Servants'), laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68(22) in accordance with Article 110 of the Staff Regulations of Officials;

(d)  ensure adequate follow-up to the findings and recommendations stemming from the internal or external audit reports, evaluations and investigations, including those of the EDPS and OLAF;

(e)  take all decisions on the establishment and, where necessary, the modification of Eurojust's internal administrative structures;

(f)  without prejudice to the responsibilities of the Administrative Director set out in Article 18, assist and advise him or her on the implementation of the decisions of the College, with a view to reinforcing supervision of administrative and budgetary management;

(g)  undertake any additional administrative tasks assigned to it by the College under Article 5(4);

(h)  adopt the financial rules applicable to Eurojust in accordance with Article 64;

(i)  adopt, in accordance with Article 110 of the Staff Regulations of Officials, a decision based on Article 2(1) of the Staff Regulations of Officials and on Article 6 of the Conditions of Employment of Other Servants delegating the relevant appointing authority powers to the Administrative Director and establishing the conditions under which this delegation of powers can be suspended; the Administrative Director shall be authorised to sub-delegate those powers;

(j)  review Eurojust's draft annual budget for adoption by the College;

(k)  review the draft annual report on Eurojust's activities and forward it to the College for adoption;

(l)  appoint an accounting officer and a Data Protection Officer who are functionally independent in the performance of their duties.

4.  The Executive Board shall be composed of the President and Vice-Presidents of Eurojust, one representative of the Commission and two other members of the College designated on a two-year rotation system in accordance with Eurojust’s rules of procedure. The Administrative Director shall attend the meetings of the Executive Board without the right to vote.

5.   The President of Eurojust shall be the chairperson of the Executive Board. The Executive Board shall take its decisions by a majority of its members. Each member shall have one vote. In the event of a tied vote, the President of Eurojust shall have a casting vote.

6.  The term of office of members of the Executive Board shall ▌end when their term as national members, President or Vice-President ends.

7.  The Executive Board shall meet at least once a month. In addition, it shall meet on the initiative of its chairperson or at the request of the Commission or of at least two of its other members.

8.  Eurojust shall send to the EPPO the agenda of the Executive Board meetings and consult with the EPPO on the need to participate in those meetings. Eurojust shall invite the EPPO to participate, without the right to vote, whenever issues are discussed which are of relevance for the functioning of the EPPO.

When the EPPO is invited to an Executive Board meeting, Eurojust shall provide it with the relevant documents supporting the agenda.

Section V

The Administrative Director

Article 17

Status of the Administrative Director

1.  The Administrative Director shall be engaged as a temporary agent of Eurojust under point (a) of Article 2 of the Conditions of Employment of Other Servants.

2.  The Administrative Director shall be appointed by the College from a list of candidates proposed by the Executive Board, following an open and transparent selection procedure in accordance with Eurojust’s rules of procedure. For the purpose of concluding the employment contract with the Administrative Director, Eurojust shall be represented by the President of Eurojust.

3.  The term of office of the Administrative Director shall be four years. By the end of that period, the Executive Board shall undertake an assessment that takes into account an evaluation of the performance of the Administrative Director.

4.  The College, acting on a proposal from the Executive Board that takes into account the assessment referred to in paragraph 3, may extend the term of office of the Administrative Director once and for no more than four years.

5.  An Administrative Director whose term of office has been extended shall not participate in another selection procedure for the same post at the end of the overall period.

6.  The Administrative Director shall be accountable to the College ▌.

7.  The Administrative Director may be removed from the office only pursuant to a decision of the College acting on a proposal from the Executive Board.

Article 18

Responsibilities of the Administrative Director

1.  For administrative purposes, Eurojust shall be managed by its Administrative Director.

2.  Without prejudice to the powers of the ▌College or the Executive Board, the Administrative Director shall be independent in the performance of his or her duties and shall neither seek nor take instructions from any government or any other body.

3.  The Administrative Director shall be the legal representative of Eurojust.

4.  The Administrative Director shall be responsible for the implementation of the administrative tasks assigned to Eurojust, in particular:

(a)  the day-to-day administration of Eurojust and staff management;

(b)  implementing the decisions adopted by the College and the Executive Board;

(c)  preparing the programming document referred to in Article 15▌ and submitting it to the Executive Board for review;

(d)  implementing the programming document referred to in Article 15▌and reporting to the Executive Board and College on its implementation;

(e)  preparing the annual report on Eurojust's activities and presenting it to the Executive Board for review and to the College for adoption;

(f)  preparing an action plan following up on conclusions of internal or external audit reports, evaluations and investigations, including those of the EDPS and OLAF and reporting on progress twice a year to the College, to the Executive Board, to the Commission and to the EDPS;

(g)   preparing an anti-fraud strategy for Eurojust and presenting it to the Executive Board for adoption;

(h)   preparing draft financial rules applicable to Eurojust;

(i)   preparing Eurojust's draft statement of estimates of revenue and expenditure and implementing its budget;

(j)  exercising, with respect to the staff of Eurojust, the powers conferred by the Staff Regulations of Officials on the appointing authority and by the Conditions of Employment of Other Servants on the authority empowered to conclude contracts of employment of other servants (“the appointing authority powers”);

(k)  ensuring that the necessary administrative support is provided to facilitate the operational work of Eurojust;

(l)  ensuring that support is provided to the President and Vice-Presidents as they carry out their duties;

(m)  preparing a draft proposal for Eurojust's annual budget, which shall be reviewed by the Executive Board before adoption by the College.

CHAPTER III

OPERATIONAL MATTERS

Article 19

On-call coordination mechanism

1.  In order to fulfil its tasks in urgent cases, Eurojust shall operate an on-call coordination mechanism ('OCC') able to receive and process at all times the requests referred to it. The OCC shall be contactable ▌24 hours a day, seven days a week.

2.  The OCC shall rely on one OCC representative per Member State who may be either the national member, his or her deputy, ▌an Assistant entitled to replace the national member, or a seconded national expert. The OCC representative shall be available to act 24 hours a day, seven days a week.

3.  The OCC representatives shall act efficiently and without delay in relation to the execution of a request in their Member State.

Article 20

Eurojust national coordination system

1.  Each Member State shall appoint one or more national correspondents for Eurojust.

2.  All national correspondents appointed by the Member States under paragraph 1 shall have the skills and experience necessary for them to carry out their duties.

3.  Each Member State shall set up a Eurojust national coordination system to ensure coordination of the work carried out by:

(a)  the national correspondents for Eurojust;

(b)  any national correspondents for issues relating to the competence of the EPPO;

(c)  the national correspondent for Eurojust for terrorism matters;

(d)  the national correspondent for the European Judicial Network in criminal matters and up to three other contact points of the European Judicial Network;

(e)  national members or contact points of the Network for joint investigation teams, and national members or contact points of the networks set up by Decisions 2002/494/JHA, 2007/845/JHA and 2008/852/JHA;

(f)  where applicable, any other relevant judicial authority.

4.  The persons referred to in paragraphs 1 and 3 shall retain their position and status under national law, without this having a significant impact on the performance of their duties under this Regulation.

5.  The national correspondents for Eurojust shall be responsible for the functioning of their Eurojust national coordination system. Where several correspondents for Eurojust are appointed, one of them shall be responsible for the functioning of their Eurojust national coordination system.

6.  The national members shall be informed of all meetings of their Eurojust national coordination system where casework-related matters are discussed. The national members may attend such meetings as necessary.

7.  Each Eurojust national coordination system shall facilitate the carrying out of Eurojust’s tasks within the Member State concerned, in particular by:

(a)  ensuring that the case management system referred to in Article 23 receives information related to the Member State concerned in an efficient and reliable manner;

(b)  assisting in determining whether a request should be handled with the assistance of Eurojust or of the European Judicial Network;

(c)  assisting the national member in identifying relevant authorities for the execution of requests for, and decisions on, judicial cooperation, including requests and decisions based on instruments giving effect to the principle of mutual recognition;

(d)  maintaining close relations with the Europol national unit, other contact points of the European Judicial Network and other relevant competent national authorities.

8.  In order to meet the objectives referred to in paragraph 7, the persons referred to in paragraph 1 and in points (a), (b) and (c) of paragraph 3 shall, and the persons or authorities referred to in points (d) and (e) of paragraph 3 may be connected to the case management system in accordance with this Article and with Articles 23, 24, 25 and 34. The cost of connection to the case management system shall be borne by the general budget of the Union.

9.  The setting up of the Eurojust national coordination system and the appointment of national correspondents shall not prevent direct contacts between the national member and the competent authorities of his or her Member State.

Article 21

Exchanges of information with the Member States and between national members

1.  The competent authorities of the Member States shall exchange with Eurojust all information necessary for the performance of its tasks under Articles 2 and 4 in accordance with the applicable data protection rules. This shall at least include the information referred to in paragraphs 4, 5 and 6 of this Article▌.

2.  The transmission of information to Eurojust shall only be interpreted as a request for the assistance of Eurojust in the case concerned ▌if so specified by a competent authority.

3.  The national members shall exchange all information necessary for the performance of Eurojust’s tasks among themselves or with their competent national authorities, without prior authorisation. In particular, the competent national authorities shall promptly inform their national members of a case which concerns them.

4.  The competent national authorities shall inform their national members of the setting up of joint investigation teams and of the results of the work of such teams.

5.  The competent national authorities shall inform their national members without undue delay of any case ▌affecting at least three Member States for which requests for or decisions on judicial cooperation, including requests and decisions based on instruments giving effect to the principle of mutual recognition, have been transmitted to at least two Member States, where one or more of the following apply:

(a)  the offence involved is punishable in the requesting or issuing Member State by a custodial sentence or a detention order, the maximum period of which is at least five or six years, to be decided by the Member State concerned, and is included in the following list:

(i)  trafficking in human beings;

(ii)  sexual abuse or sexual exploitation including child pornography and solicitation of children for sexual purposes;

(iii)  drug trafficking;

(iv)  illicit trafficking in firearms, their parts or components or ammunition or explosives;

(v)  corruption;

(vi)  crime against the financial interests of the Union;

(vii)  forgery of money or means of payment;

(viii)  money laundering activities;

(ix)  computer crime;

(b)  there are factual indications that a criminal organisation is involved;

(c)  there are indications that the case may have a serious cross-border dimension or may have repercussions at Union level, or that it may affect Member States other than those directly involved.

6.  The competent national authorities shall inform their national members of:

(a)  cases in which conflicts of jurisdiction have arisen or are likely to arise;

(b)  controlled deliveries affecting at least three countries, at least two of which are Member States;

(c)  repeated difficulties or refusals regarding the execution of requests for, or decisions on, judicial cooperation, including requests and decisions based on instruments giving effect to the principle of mutual recognition.

7.  The competent national authorities shall not be obliged to supply information in a particular case if doing so would harm essential national security interests or jeopardise the safety of individuals.

8.  This Article is without prejudice to conditions set out in bilateral or multilateral agreements or arrangements between Member States and third countries, including any conditions set by third countries concerning the use of information once supplied.

9.  This Article is without prejudice to other obligations regarding the transmission of information to Eurojust, including Council Decision 2005/671/JHA(23).

10.  Information referred to in this Article shall be provided in a structured way determined by Eurojust. The competent national authority shall not be obliged to provide such information where it has already been transmitted to Eurojust in accordance with other provisions of this Regulation.

Article 22

Information provided by Eurojust to competent national authorities

1.  Eurojust shall provide competent national authorities with information on the results of the processing of information, including the existence of links with cases already stored in the case management system, without undue delay. That information may include personal data.

2.  Where a competent national authority requests that Eurojust provide it with information within a certain timeframe, Eurojust shall transmit that information within that timeframe.

Article 23

Case management system, index and temporary work files

1.  Eurojust shall establish a case management system composed of temporary work files and of an index which contain the personal data referred to in Annex II and non-personal data.

2.  The purpose of the case management system shall be to:

(a)  support the management and coordination of investigations and prosecutions for which Eurojust is providing assistance, in particular by cross-referencing information;

(b)  facilitate access to information on on-going investigations and prosecutions;

(c)  facilitate the monitoring of the lawfulness of Eurojust’s processing of personal data and its compliance with the applicable data protection rules.

3.  The case management system may be linked to the secure telecommunications connection referred to in Article 9 of Council Decision 2008/976/JHA(24).

4.  The index shall contain references to temporary work files processed within the framework of Eurojust and may not contain any personal data other than those referred to in points (1)(a) to (i), (k) and (m) and (2) of Annex II.

5.  In the performance of their duties, national members may process data on the individual cases on which they are working in a temporary work file. They shall allow the Data Protection Officer to have access to the temporary work file. The Data Protection Officer shall be informed by the national member concerned of the opening of each new temporary work file that contains personal data.

6.  For the processing of operational personal data, Eurojust may not establish any automated data file other than the case management system. The national member may, however, temporarily store and analyse personal data for the purpose of determining whether such data are relevant to Eurojust's tasks and can be included in the case management system. That data may be held for up to three months.

Article 24

Functioning of temporary work files and the index

1.  A temporary work file shall be opened by the national member concerned for every case with respect to which information is transmitted to him or her in so far as that transmission is in accordance with this Regulation or other applicable legal instruments. The national member shall be responsible for the management of the temporary work files opened by that national member.

2.  The national member who has opened a temporary work file shall decide, on a case-by-case basis, whether to keep the temporary work file restricted or to give access to it or to parts of it ▌to other national members, to authorised Eurojust staff or to any other person working on behalf of Eurojust who has received the necessary authorisation from the Administrative Director.

3.  The national member who has opened a temporary work file shall decide which information related to that temporary work file shall be introduced in the index in accordance with Article 23(4).

Article 25

Access to the case management system at national level

1.  In so far as they are connected to the case management system, persons referred to in Article 20(3) shall only have access to:

(a)  the index, unless the national member who has decided to introduce the data in the index expressly denied such access;

(b)  temporary work files opened by the national member of their Member State;

(c)  temporary work files opened by national members of other Member States and to which the national member of their Member States has received access, unless the national member who opened the temporary work file expressly denied such access.

2.  The national member shall, within the limitations provided for in paragraph 1 of this Article, decide on the extent of access to the temporary work files which is granted in his or her Member State to the persons referred to in Article 20(3) in so far as they are connected to the case management system.

3.  Each Member State shall decide, after consultation with its national member, on the extent of access to the index which is granted in that Member State to the persons referred to in Article 20(3) in so far as they are connected to the case management system. Member States shall notify Eurojust and the Commission of their decision regarding the implementation of this paragraph. The Commission shall inform the other Member States thereof.

4.  Persons who have been granted access in accordance with paragraph 2 shall at least have access to the index to the extent necessary to access the temporary work files to which they have been granted access.

CHAPTER IV

PROCESSING OF INFORMATION

Article 26

Processing of personal data by Eurojust

1.  This Regulation and Article 3 and Chapter IX of Regulation (EU) 2018/...(25) shall apply to the processing of operational personal data by Eurojust. Regulation (EU) 2018/...+ shall apply to the processing of administrative personal data by Eurojust, with the exception of Chapter IX of that Regulation.

2.  References to “applicable data protection rules” in this Regulation shall be understood as references to the provisions on data protection set out in this Regulation and in Regulation (EU) 2018/...+.

3.  The data protection rules on processing of operational personal data contained in this Regulation shall be considered as specific data protection rules to the general rules laid down in Article 3 and Chapter IX of Regulation (EU) 2018/...+.

4.  Eurojust shall determine the time limits for the storage of administrative personal data in the data protection provisions of its rules of procedure.

Article 27

Processing of operational personal data

1.  In so far as it is necessary to perform its tasks, Eurojust may, within the framework of its competence and in order to carry out its operational functions, process by automated means or in structured manual files in accordance with this Regulation only the operational personal data listed in point 1 of Annex II of persons who, under the national law of the Member States concerned, are persons with regard to whom there are serious grounds for believing that they have committed or are about to commit a criminal offence in respect of which Eurojust is competent or who have been convicted of such an offence.

2.  Eurojust may process only the operational personal data listed in point 2 of Annex II of persons who, under the national law of the Member States concerned, are regarded as victims or other parties to a criminal offence, such as persons who might be called to testify in a criminal investigation or prosecution regarding one or more of the types of crime and the criminal offences referred to in Article 3, ▌ persons who are able to provide information on criminal offences, or contacts or associates of a person referred to in paragraph 1. The processing of such operational personal data may only take place if it is ▌necessary for the fulfilment of the tasks of Eurojust, within the framework of its competence and in order to carry out its operational functions.

3.  In exceptional cases, for a limited period of time which shall not exceed the time needed for the conclusion of the case in relation to which the data are processed, Eurojust may also process operational personal data other than the personal data referred to in Annex II relating to the circumstances of an offence, where such data are immediately relevant to and are included in ongoing investigations which Eurojust is coordinating or helping to coordinate and when their processing is ▌necessary for the purposes specified in paragraph 1. The Data Protection Officer referred to in Article 36 shall be informed immediately when such operational personal data are processed, and shall be informed of the specific circumstances which justify the necessity of the processing of those operational personal data. Where such other data refer to witnesses or victims within the meaning of paragraph 2 of this Article, the decision to process them shall be taken jointly by the national members concerned.

4.  Eurojust may process special categories of operational personal data in accordance with Article 76 of Regulation (EU) 2018/...(26). Such data may not be processed in the index referred to in Article 23(4) of this Regulation. Where such other data refer to witnesses or victims within the meaning of paragraph 2 of this Article, the decision to process them shall be taken by the national members concerned.

Article 28

Processing under the authority of Eurojust or processor

The processor and any person acting under the authority of Eurojust or of the processor who has access to operational personal data shall not process those data except on instructions from Eurojust, unless required to do so by Union law or Member State law.

Article 29

Time limits for the storage of operational personal data

1.  Operational personal data processed by Eurojust shall be stored by Eurojust for only as long as is necessary for the performance of its tasks. In particular, without prejudice to paragraph 3 of this Article, the operational personal data referred to in Article 27 may not be stored beyond the first applicable date among the following dates:

(a)  the date on which prosecution is barred under the statute of limitations of all the Member States concerned by the investigation and prosecutions;

(b)  the date on which Eurojust is informed that the person has been acquitted and the judicial decision became final, in which case the Member State concerned shall inform Eurojust without delay;

(c)  three years after the date on which the judicial decision of the last of the Member States concerned by the investigation or prosecution became final;

(d)  the date on which Eurojust and the Member States concerned mutually established or agreed that it was no longer necessary for Eurojust to coordinate the investigation and prosecutions, unless there is an obligation to provide Eurojust with this information in accordance with Article 21(5) or (6);

(e)  three years after the date on which operational personal data were transmitted in accordance with Article 21(5) or (6).

2.  Observance of the storage deadlines referred to ▌in paragraph 1 of this Article shall be reviewed constantly by appropriate automated processing conducted by Eurojust, particularly from the moment in which the case is closed by Eurojust. A review of the need to store the data shall also be carried out every three years after they were entered; the results of such reviews shall apply to the case as a whole. If operational personal data referred to in Article 27(4) are stored for a period exceeding five years, the EDPS shall be informed.

3.  Before one of the storage deadlines referred to in ▌paragraph 1 expires, Eurojust shall review the need for the continued storage of the operational personal data where and as long as this is necessary to perform its tasks. It may decide by way of derogation to store those data until the following review. The reasons for the continued storage shall be justified and recorded. If no decision is taken on the continued storage of operational personal data at the time of the review, those data shall be deleted automatically.

4.  Where, in accordance with paragraph 3, operational personal data have been stored beyond the storage deadlines referred to in paragraph 1, the EDPS shall also carry out a review of the need to store those data every three years.

5.  Once the deadline for the storage of the last item of automated data from the file has expired, all documents in the file shall be destroyed with the exception of any original documents which Eurojust has received from national authorities and which need to be returned to their provider.

6.  Where Eurojust has coordinated an investigation or prosecutions, the national members concerned shall inform ▌each other whenever they receive information that the case has been dismissed or that all judicial decisions related to the case have become final ▌.

7.  Paragraph 5 shall not apply where:

(a)  this would damage the interests of a data subject who requires protection; in such cases, the operational personal data shall be used only with the express and written consent of the data subject;

(b)  the accuracy of the operational personal data is contested by the data subject; in such cases paragraph 5 shall not apply for a period enabling Member States or Eurojust, as appropriate, to verify the accuracy of such data;

(c)  the operational personal data are to be maintained for purposes of proof or for the establishment, exercise or defence of legal claims;

(d)  the data subject opposes the erasure of the operational personal data and requests the restriction of their use instead; or

(e)  the operational personal data are further needed for archiving purposes in the public interest or statistical purposes.

Article 30

Security of operational personal data

Eurojust and Member States shall define mechanisms to ensure that the security measures referred to in Article 91 of Regulation (EU) 2018/...(27) are addressed across information system boundaries.

Article 31

Right of access by the data subject

1.  Any data subject who wishes to exercise the right of access referred to in Article 80 of Regulation (EU) 2018/...+ to operational personal data that relate to the data subject and which have been processed by Eurojust may make a request to Eurojust or to the national supervisory authority in the Member State of the data subject’s choice. That authority shall refer the request to Eurojust without delay, and in any case within one month of its receipt.

2.  The request shall be answered by Eurojust without undue delay and in any case within three months of its receipt by Eurojust.

3.  The competent authorities of the Member States concerned shall be consulted by Eurojust on the decision to be taken in response to a request. The decision on access to data shall only be taken by Eurojust in close cooperation with the Member States directly concerned by the communication of such data. Where a Member State objects to Eurojust's proposed decision, it shall notify Eurojust of the reasons for its objection. Eurojust shall comply with any such objection. The national members concerned shall subsequently notify the competent authorities of the content of Eurojust's decision.

4.  The national members concerned shall deal with the request and reach a decision on Eurojust's behalf. Where the national members concerned are not in agreement, they shall refer the matter to the College, which shall take its decision on the request by a two-thirds majority.

Article 32

Limitations to the right of access

In the cases referred to in Article 81 of Regulation (EU) 2018/...(28), Eurojust shall inform the data subject after consulting the competent authorities of the Member States concerned in accordance with Article 31(3) of this Regulation.

Article 33

Right to restriction of processing

Without prejudice to the exceptions set out in Article 29(7) of this Regulation, where the processing of operational personal data has been restricted under Article 82(3) of Regulation (EU) 2018/...+, such operational personal data shall only be processed for the protection of the rights of the data subject or another natural or legal person who is a party to the proceedings to which Eurojust is a party, or for the purposes laid down in Article 82(3) of Regulation (EU) 2018/...+.

Article 34

Authorised access to operational personal data within Eurojust

Only national members, their deputies, their Assistants and authorised seconded national experts, the persons referred to in Article 20(3) in so far as those persons are connected to the case management system and authorised Eurojust staff may, for the purpose of achieving Eurojust's tasks, have access to operational personal data processed by Eurojust within the limits provided for in Articles 23, 24 and 25 ▌.

Article 35

Records of categories of processing activities

1.  Eurojust shall maintain a record of all categories of processing activities under its responsibility. That record shall contain all of the following information:

(a)  Eurojust’s contact details and the name and the contact details of its Data Protection Officer;

(b)  the purposes of the processing;

(c)  the description of the categories of data subjects and of the categories of operational personal data;

(d)  the categories of recipients to whom the operational personal data have been or will be disclosed including recipients in third countries or international organisations;

(e)  where applicable, transfers of operational personal data to a third country or an international organisation, including the identification of that third country or international organisation;

(f)  where possible, the envisaged timelimits for erasure of the different categories of data;

(g)  where possible, a general description of the technical and organisational security measures referred to in Article 91 of Regulation (EU) 2018/...(29).

2.  The records referred to in paragraph 1 shall be in writing, including in electronic form.

3.  Eurojust shall make the record available to the EDPS on request.

Article 36

Designation of the Data Protection Officer

1.  The ▌Executive Board shall designate a Data Protection Officer. The Data Protection Officer shall be a member of staff specifically appointed for this purpose. In the performance of his or her duties, the Data Protection Officer shall act independently and may not receive any instructions.

2.  The Data Protection Officer shall be selected on the basis of his or her professional qualities and, in particular, expert knowledge of data protection law and practice, and ability to fulfil his or her tasks under this Regulation, in particular those referred to in Article 38.

3.  The selection of the Data Protection Officer shall not be liable to result in a conflict of interests between his or her duty as Data Protection Officer and any other official duties he or she may have, in particular in relation to the application of this Regulation.

4.  The Data Protection Officer shall be appointed for a term of four years and shall be eligible for reappointment up to a maximum total term of eight years. The Data Protection Officer may be dismissed from his or her post by the Executive Board only with the agreement of the EDPS, if he or she no longer fulfils the conditions required for the performance of his or her duties.

5.  Eurojust shall publish the contact details of the Data Protection Officer and communicate them to the EDPS.

Article 37

Position of the Data Protection Officer

1.  Eurojust shall ensure that the Data Protection Officer is involved properly and in a timely manner in all issues which relate to the protection of personal data.

2.  Eurojust shall support the Data Protection Officer in performing the tasks referred to in Article 38 by providing the resources and staff necessary to carry out those tasks and by providing access to personal data and processing operations, and to maintain his or her expert knowledge.

3.  Eurojust shall ensure that the Data Protection Officer does not receive any instructions regarding the carrying out of his or her tasks. The Data Protection Officer shall not be dismissed or penalised by the Executive Board for performing his or her tasks. The Data Protection Officer shall report directly to the College in relation to operational personal data and report to the Executive Board in relation to administrative personal data.

4.  Data subjects may contact the Data Protection Officer with regard to all issues related to processing of their personal data and to the exercise of their rights under this Regulation and under Regulation (EU) 2018/...(30).

5.  The Executive Board shall adopt implementing rules concerning the Data Protection Officer. Those implementing rules shall in particular concern the selection procedure for the position of the Data Protection Officer, his or her dismissal, tasks, duties and powers, and safeguards for the independence of the Data Protection Officer.

6.  The Data Protection Officer and his or her staff shall be bound by the obligation of confidentiality in accordance with Article 72.

7.  The Data Protection Officer may be consulted by the controller and the processor, by the staff committee concerned and by any individual on any matter concerning the interpretation or application of this Regulation and Regulation (EU) 2018/...(31) without them going through the official channels. No one shall suffer prejudice on account of a matter brought to the attention of the Data Protection Officer alleging that a breach of this Regulation or Regulation (EU) 2018/...+ has taken place.

8.  After his or her designation the Data Protection Officer shall be registered with the EDPS by Eurojust.

Article 38

Tasks of the Data Protection Officer

1.  The Data Protection Officer shall in particular have the following tasks regarding the processing of personal data:

(a)  ensuring in an independent manner the compliance of Eurojust with the data protection provisions of this Regulation and Regulation (EU) 2018/...(32) and with the relevant data protection provisions in Eurojust’s rules of procedure; this includes monitoring compliance with this Regulation, with Regulation (EU) 2018/...+, with other Union or national data protection provisions and with the policies of Eurojust in relation to the protection of personal data, including the assignment of responsibilities, awareness‑raising and training of staff involved in processing operations, and related audits;

(b)  informing and advising Eurojust and staff who process personal data of their obligations pursuant to this Regulation, to Regulation (EU) 2018/...+ and to other Union or national data protection provisions;

(c)  providing advice where requested as regards the data protection impact assessment and monitoring its performance pursuant to Article 89 of Regulation (EU) 2018/...(33);

(d)  ensuring that a record of the transfer and receipt of personal data is kept in accordance with the provisions to be laid down in Eurojust’s rules of procedure;

(e)  cooperating with the staff of Eurojust who are responsible for procedures, training and advice concerning data processing;

(f)  cooperating with the EDPS;

(g)  ensuring that data subjects are informed of their rights under this Regulation and Regulation (EU) 2018/...+;

(h)  acting as the contact point for the EDPS on issues relating to processing, including the prior consultation referred to in Article 90 of Regulation (EU) 2018/...(34), and consulting where appropriate, with regard to any other matter;

(i)  providing advice where requested as regards the necessity of a notification or communication of a personal data breach pursuant to Articles 92 and 93 of Regulation (EU) 2018/...+;

(j)  preparing an annual report and communicating that report to the Executive Board, to the College and to the EDPS.

2.  The Data Protection Officer shall carry out the functions provided for in Regulation (EU) 2018/...+ with regard to administrative personal data.

3.  The Data Protection Officer and the staff members of Eurojust assisting the Data Protection Officer in the performance of his or her duties shall have access to the personal data processed by Eurojust and to its premises, to the extent necessary for the performance of their tasks.

4.  If the Data Protection Officer considers that the provisions of Regulation (EU) 2018/...(35) related to the processing of administrative personal data or that the provisions of this Regulation or of Article 3 and of Chapter IX of Regulation (EU) 2018/...+ related to the processing of operational personal data have not been complied with, he or she shall inform the Executive Board, requesting that it resolve the non-compliance within a specified time. If the Executive Board does not resolve the non-compliance within the specified time, the Data Protection Officer shall refer the matter to the EDPS.

Article 39

Notification of a personal data breach to the authorities concerned

1.  In the event of a personal data breach, Eurojust shall without undue delay notify the competent authorities of the Member States concerned of that breach.

2.  The notification referred to in paragraph 1 shall, as a minimum:

(a)  describe the nature of the personal data breach including, where possible and appropriate, the categories and number of data subjects concerned and the categories and number of data records concerned;

(b)  describe the likely consequences of the personal data breach;

(c)  describe the measures proposed or taken by Eurojust to address the personal data breach; and

(d)  where appropriate, recommend measures to mitigate the possible adverse effects of the personal data breach.

Article 40

Supervision by the EDPS

1.  The EDPS shall be responsible for monitoring and ensuring the application of the provisions of this Regulation and Regulation (EU) 2018/...(36) relating to the protection of fundamental rights and freedoms of natural persons with regard to processing of operational personal data by Eurojust, and for advising Eurojust and data subjects on all matters concerning the processing of operational personal data. To that end, the EDPS shall fulfil the duties set out in paragraph 2 of this Article, shall exercise the powers granted in paragraph 3 of this Article and shall cooperate with the national supervisory authorities in accordance with Article 42.

2.  The EDPS shall have the following duties under this Regulation and Regulation (EU) 2018/...+:

(a)  hearing and investigating complaints, and informing the data subject of the outcome within a reasonable period;

(b)  conducting inquiries either on his or her own initiative or on the basis of a complaint, and informing the data subjects of the outcome within a reasonable period;

(c)  monitoring and ensuring the application of the provisions of this Regulation and Regulation (EU) 2018/...(37) relating to the protection of natural persons with regard to the processing of operational personal data by Eurojust;

(d)  advising Eurojust, either on his or her own initiative or in response to a consultation, on all matters concerning the processing of operational personal data, in particular before Eurojust draws up internal rules relating to the protection of fundamental rights and freedoms with regard to the processing of operational personal data.

3.  The EDPS may under this Regulation and Regulation (EU) 2018/...(38), taking into account the implications for investigations and prosecutions in the Member States:

(a)  give advice to data subjects on the exercise of their rights;

(b)  refer a matter to Eurojust in the event of an alleged breach of the provisions governing the processing of operational personal data, and, where appropriate, make proposals for remedying that breach and for improving the protection of the data subjects;

(c)  consult Eurojust where requests to exercise certain rights in relation to operational personal data have been refused in breach of Article 31, 32 or 33 of this Regulation or Articles 77 to 82 or Article 84 of Regulation (EU) 2018/...+;

(d)  warn Eurojust;

(e)  order Eurojust to carry out the rectification, restriction or erasure of operational personal data which have been processed by Eurojust in breach of the provisions governing the processing of operational personal data and to notify such actions to third parties to whom such data have been disclosed, provided that this does not interfere with the tasks of Eurojust set out in Article 2;

(f)  refer the matter to the Court of Justice of the European Union (the 'Court') under the conditions set out in the TFEU;

(g)  intervene in actions brought before the Court.

4.  The EDPS shall have access to the operational personal data processed by Eurojust and to its premises to the extent necessary for the performance of his or her tasks.

5.  The EDPS shall draw up an annual report on his or her supervisory activities in relation to Eurojust. That report shall be part of the annual report of the EDPS referred to in Article 60 of Regulation (EU) 2018/...(39). The national supervisory authorities shall be invited to make observations on this report before it becomes part of the annual report of the EDPS referred to in Article 60 of Regulation (EU) 2018/...+. The EDPS shall take utmost account of the observations made by national supervisory authorities and, in any case, shall refer to them in the annual report.

6.  Eurojust shall cooperate with the EDPS in the performance of his or her tasks at his or her request.

Article 41

Professional secrecy of the EDPS

1.  The EDPS and his or her staff shall, both during and after their term of office, be subject to a duty of professional secrecy with regard to any confidential information which has come to their knowledge in the course of their performance of official duties.

2.  The EDPS shall, in the exercise of his or her supervision powers, take into utmost account the secrecy of judicial inquiries and criminal proceedings, in accordance with Union or Member State law.

Article 42

Cooperation between the EDPS and national supervisory authorities

1.  The EDPS shall act in close cooperation with national supervisory authorities ▌with respect to specific issues requiring national involvement, in particular if the EDPS or a national supervisory authority ▌finds major discrepancies between practices of the Member States or potentially unlawful transfers using Eurojust's communication channels, or in the context of questions raised by one or more national supervisory authorities on the implementation and interpretation of this Regulation.

2.  In the cases referred to in paragraph 1, coordinated supervision shall be ensured in accordance with Article 62 of Regulation (EU) 2018/...(40).

3.   The EDPS shall keep national supervisory authorities fully informed of all issues that directly affect them or are otherwise relevant to them. Upon a request from one or more national supervisory authorities, the EDPS shall inform them on specific issues.

4.  In cases relating to data originating from one or several Member States, including cases referred to in Article 43(3), the EDPS shall consult the national supervisory authorities concerned. The EDPS shall not decide on further action to be taken before those national supervisory authorities have informed the EDPS of their position, within a deadline specified by the EDPS. That deadline shall not be shorter than one month or longer than three months. The EDPS shall take utmost account of the position of the national supervisory authorities concerned. In cases where the EDPS intends not to follow their position, he or she shall inform them, provide a justification, and submit the matter to the European Data Protection Board.

In cases which the EDPS considers to be extremely urgent, he or she may decide to take immediate action. In such cases, the EDPS shall immediately inform the national supervisory authorities concerned and substantiate the urgent nature of the situation and justify the action he or she has taken.

5.  National supervisory authorities shall keep the EDPS informed of any actions they take with respect to the transfer, retrieval, or any other communication of operational personal data under this Regulation by the Member States.

Article 43

Right to lodge a complaint with the EDPS with respect to operational personal data

1.  Any data subject shall have the right to lodge a complaint with the EDPS, if he or she considers that the processing by Eurojust of operational personal data relating to him or her does not comply with this Regulation or Regulation (EU) 2018/…(41).

2.  Where a complaint ▌relates to a decision referred to in Article 31, 32 or 33 of this Regulation or Article 80, 81 or 82 of Regulation (EU) 2018/...+, the EDPS shall consult the national supervisory authorities or the competent judicial body of the Member State that provided the data or the Member State directly concerned. In adopting his or her decision, ▌which may extend to a refusal to communicate any information, the EDPS shall take into account the opinion of the national supervisory authority or of the competent judicial body.

3.  Where a complaint relates to the processing of data provided by a Member State to Eurojust, the EDPS and the national supervisory authority of the Member State that provided the data, each acting within the scope of their respective competences shall ensure that the necessary checks on the lawfulness of the processing of the data have been carried out correctly ▌.

4.  Where a complaint relates to the processing of data provided to Eurojust by Union bodies, offices or agencies, by third countries or by international organisations or to the processing of data retrieved by Eurojust from publicly available sources, the EDPS shall ensure that Eurojust has correctly carried out the necessary checks on the lawfulness of the processing of the data.

5.  The EDPS shall inform the data subject of the progress and outcome of the complaint, as well as the possibility of a judicial remedy pursuant to Article 44.

Article 44

Right to judicial review against the EDPS

Actions against the decisions of the EDPS concerning operational personal data shall be brought before the Court.

Article 45

Responsibility in data protection matters

1.  Eurojust shall process operational personal data in such a way that it can be established which authority provided the data or from where the data were retrieved.

2.  Responsibility for the accuracy of operational personal data shall lie with:

(a)  Eurojust for operational personal data provided by a Member State, or by a Union institution, body, office or agency where the data provided has been altered in the course of processing by Eurojust;

(b)  the Member State or the Union institution, office, body or agency which provided the data to Eurojust, where the data provided has not been altered in the course of processing by Eurojust;

(c)  Eurojust for operational personal data provided by third countries or by international organisations, as well for operational personal data retrieved by Eurojust from publicly available sources.

3.  Responsibility for compliance with Regulation (EU) 2018/...(42) in relation to administrative personal data and for compliance with this Regulation and with Article 3 and Chapter IX of Regulation (EU) 2018/...+ in relation to operational personal data shall lie with Eurojust.

Responsibility for the legality of a transfer of operational personal data shall lie:

(a)  where a Member State has provided the operational personal data concerned to Eurojust, with that Member State;

(b)  with Eurojust, where it has provided the operational personal data concerned to Member States, to Union institutions, bodies, offices or agencies, to third countries or to international organisations.

4.  Subject to other provisions of this Regulation, Eurojust shall be responsible for all data processed by it. .

Article 46

Liability for unauthorised or incorrect processing of data

1.  Eurojust shall be liable, in accordance with Article 340 TFEU, for any damage caused to an individual which results from the unauthorised or incorrect processing of data carried out by it.

2.  Complaints against Eurojust on grounds of the liability referred to in paragraph 1 of this Article shall be heard by the Court in accordance with Article 268 TFEU.

3.  Each Member State shall be liable, in accordance with its national law, for any damage caused to an individual which results from the unauthorised or incorrect processing carried out by it of data which were communicated to Eurojust.

CHAPTER V

RELATIONS WITH PARTNERS ▌

SECTION I

COMMON PROVISIONS

Article 47

Common provisions

1.  In so far as necessary for the performance of its tasks, Eurojust may establish and maintain cooperative relations with Union institutions, bodies, offices and agencies in accordance with their respective objectives, and with the competent authorities of third countries and international organisations in accordance with the cooperation strategy referred to in Article 52.

2.  In so far as relevant to the performance of its tasks and subject to any restrictions pursuant to Article 21(8) and Article 76, Eurojust may exchange any information with the entities referred to in paragraph 1 of this Article directly, with the exception of personal data.

3.  For the purposes set out in paragraphs 1 and 2, Eurojust may conclude working arrangements with the entities referred to in paragraph 1. Such working arrangements shall not form the basis for allowing the exchange of personal data and shall not bind the Union or its Member States.

4.  Eurojust may ▌receive and process personal data received from the entities referred to in paragraph 1 in so far as necessary for the performance of its tasks, subject to the applicable data protection rules.

5.  Personal data shall only be transferred by Eurojust to Union institutions, bodies, offices or agencies, to third countries or to international organisations ▌if this is necessary for the performance of its tasks and is in accordance with Articles 55 and 56. If the data to be transferred have been provided by a Member State, Eurojust shall obtain the consent of the relevant competent authority in that Member State, unless ▌the Member State has granted its prior authorisation to such onward transfer, either in general terms or subject to specific conditions. Such consent may be withdrawn at any time.

6.  Where Member States, Union institutions, bodies, offices or agencies, third countries or international organisations ▌have received personal data from Eurojust, onward transfers of such data to third parties shall be prohibited unless all of the following conditions have been met:

(a)  Eurojust has obtained prior consent from the Member State that provided the data;

(b)  Eurojust has given its explicit consent after considering the circumstances of the case at hand;

(c)  the onward transfer is only for a specific purpose that is not incompatible with the purpose for which the data were transmitted.

SECTION II

RELATIONS WITH PARTNERS WITHIN THE UNION

Article 48

Cooperation with the European Judicial Network and other Union networks involved in judicial cooperation in criminal matters

1.  Eurojust and the European Judicial Network in criminal matters shall maintain privileged relations with each other, based on consultation and complementarity, especially between the national member, contact points of the European Judicial Network in the same Member State as the national member, and the national correspondents for Eurojust and the European Judicial Network. In order to ensure efficient cooperation, the following measures shall be taken:

(a)  on a case-by-case basis national members shall inform the contact points of the European Judicial Network of all cases which they consider the Network to be in a better position to deal with;

(b)  the Secretariat of the European Judicial Network shall form part of the staff of Eurojust; it shall function as a separate unit;it may draw on the administrative resources of Eurojust which are necessary for the performance of the European Judicial Network's tasks, including for covering the costs of the plenary meetings of the Network;

(c)  contact points of the European Judicial Network may be invited on a case-by-case basis to attend Eurojust meetings;

(d)  Eurojust and the European Judicial Network may make use of the Eurojust national coordination system when determining under point (b) of Article 20(7) whether a request should be handled with the assistance of Eurojust or the European Judicial Network.

2.  The Secretariat of the Network for joint investigation teams and the Secretariat of the Network set up by Decision 2002/494/JHA shall form part of the staff of Eurojust. Those secretariats shall function as separate units. They may draw on the administrative resources of Eurojust which are necessary for the performance of their tasks. The coordination of the secretariats shall be ensured by Eurojust. This paragraph applies to the secretariat of any relevant network involved in judicial cooperation in criminal matters for which Eurojust is to provide support in the form of a secretariat. Eurojust may support relevant European networks and bodies involved in judicial cooperation in criminal matters, including where appropriate by means of a secretariat hosted at Eurojust.

3.  The network set up by Decision 2008/852/JHA may request that Eurojust provide a secretariat of the network. If such request is made, paragraph 2 shall apply.

Article 49

Relations with Europol

1.  Eurojust shall take all appropriate measures to enable Europol, within Europol's mandate, to have indirect access, on the basis of a hit/no-hit system, to information provided to Eurojust, without prejudice to any restrictions indicated by the Member State, Union body, office or agency, third country or international organisation ▌that provided the information in question. In the case of a hit, Eurojust shall initiate the procedure by which the information that generated the hit may be shared in accordance with the decision of the Member State, Union body, office or agency, third country or international organisation ▌ that provided the information to Eurojust.

2.  Searches of information in accordance with paragraph 1 shall be carried out only for the purpose of identifying whether information available at Europol matches with information processed at Eurojust.

3.  Eurojust shall allow searches in accordance with paragraph 1 only after obtaining from Europol information on which Europol staff members have been designated as authorised to perform such searches.

4.  If during Eurojust's information processing activities in respect of an individual investigation, Eurojust or a Member State identifies the need for coordination, cooperation or support in accordance with Europol’s mandate, Eurojust shall notify Europol thereof and shall initiate the procedure for sharing the information, in accordance with the decision of the Member State that provided the information. In such cases Eurojust shall consult with Europol.

5.  Eurojust shall establish and maintain close cooperation with Europol to the extent relevant to performing the tasks of the two agencies and to achieving their objectives, taking account of the need to avoid duplication of effort.

To that end, the Executive Director of Europol and the President of Eurojust shall meet on a regular basis to discuss issues of common concern.

6.  Europol shall respect any restriction of access or use, whether in general or specific terms, that has been indicated by a Member State, Union body, office or agency, third country or international organisation, ▌in relation to information that it has provided.

Article 50

Relations with the EPPO

1.  Eurojust shall establish and maintain a close relationship with the EPPO based on mutual cooperation within their respective mandates and competences and on the development of operational, administrative and management links between them as defined in this Article. To that end, the ▌President of Eurojust and the European Chief Prosecutor shall meet on a regular basis to discuss issues of common interest. They shall meet at the request of the President of Eurojust or of the European Chief Prosecutor.

2.  Eurojust shall treat requests for support from the EPPO without undue delay, and, where appropriate, shall treat such requests as if they had been received from a national authority competent for judicial cooperation.

3.  Whenever necessary to support the cooperation established in accordance with paragraph 1 of this Article, Eurojust shall make use of the Eurojust national coordination system set up in accordance with Article 20, as well as the relations it has established with third countries, including its liaison magistrates

4.  In operational matters relevant to the EPPO’s competences, Eurojust shall inform the EPPO of and, where appropriate, associate it with its activities concerning cross-border cases, including by:

(a)  sharing information on its cases, including personal data, in accordance with the relevant provisions in this Regulation;

(b)  requesting the EPPO to provide support.

5.  Eurojust shall have indirect access to information in the EPPO’s case management system on the basis of a hit/no-hit system. Whenever a match is found between data entered into the case management system by the EPPO and data held by Eurojust, the fact that there is a match shall be communicated to both Eurojust and to the EPPO, as well as to the Member State which provided the data to Eurojust. ▌Eurojust shall take appropriate measures to enable the EPPO to have indirect access to information in its case management system on the basis of a hit/no-hit system.

6.  The EPPO may rely on the support and resources of the administration of Eurojust. To that end, Eurojust may provide services of common interest to the EPPO. The details shall be regulated by an arrangement.

Article 51

Relations with other Union bodies, offices and agencies

1.  Eurojust shall establish and maintain cooperative relations with the European Judicial Training Network.

2.  OLAF shall contribute to Eurojust's coordination work regarding the protection of the financial interests of the Union, in accordance with its mandate under Regulation (EU, Euratom) No 883/2013.

3.  The European Border and Coast Guard Agency shall contribute to Eurojust's work including by transmitting relevant information processed in accordance with its mandate and tasks under point (m) of Article 8(1) of Regulation (EU) 2016/1624 of the European Parliament and of the Council(43). The European Border and Coast Guard Agency's processing of any personal data in connection therewith shall be regulated by Regulation (EU) 2018/...(44).

4.  For the purposes of receiving and transmitting information between Eurojust and OLAF, without prejudice to Article 8 of this Regulation, Member States shall ensure that the national members of Eurojust are regarded as competent authorities of the Member States solely for the purposes of Regulation (EU, Euratom) No 883/2013. The exchange of information between OLAF and national members shall be without prejudice to obligations to provide the information to other competent authorities under those Regulations.

SECTION III

INTERNATIONAL COOPERATION

Article 52

Relations with the authorities of third countries and international organisations

1.  Eurojust may establish and maintain cooperation with authorities of third countries and international organisations.

To that end, Eurojust shall prepare a cooperation strategy every four years in consultation with the Commission, which specifies the third countries and international organisations with which there is an operational need for cooperation.

2.  Eurojust may conclude working arrangements with the entities referred to in Article 47(1).

3.  Eurojust may designate contact points in third countries in agreement with the competent authorities concerned, in order to facilitate cooperation in accordance with the operational needs of Eurojust.

Article 53

Liaison magistrates posted to third countries

1.  For the purpose of facilitating judicial cooperation with third countries in cases in which Eurojust is providing assistance in accordance with this Regulation, the College may post liaison magistrates to a third country subject to the existence of a working arrangement as referred to in Article 47(3) with the competent authorities of that third country.

2.  The tasks of the liaison magistrates shall include any activity designed to encourage and accelerate any form of judicial cooperation in criminal matters, in particular by establishing direct links with the competent authorities of the third country concerned. In the performance of their tasks, the liaison magistrates may exchange operational personal data with the competent authorities of the third country concerned in accordance with Article 56.

3.  The liaison magistrate referred to in paragraph 1 shall have experience of working with Eurojust and adequate knowledge of judicial cooperation and how Eurojust operates. The posting of a liaison magistrate on behalf of Eurojust shall be subject to the prior consent of the magistrate and of his or her Member State.

4.  Where the liaison magistrate posted by Eurojust is selected among national members, deputies or Assistants:

(a)  the Member State concerned shall replace him or her in his or her function as a national member, deputy or Assistant;

(b)  he or she shall cease to be entitled to exercise the powers granted to him or her under Article 8.

5.  Without prejudice to Article 110 of the Staff Regulations of Officials, the College shall draw up the terms and conditions for the posting of liaison magistrates, including their level of remuneration. The College shall adopt the necessary implementing arrangements in this respect in consultation with the Commission.

6.  The activities of liaison magistrates posted by Eurojust shall be ▌subject to the supervision of the EDPS. The liaison magistrates shall report to the College, which shall inform the European Parliament and the Council in the annual report and in an appropriate manner of their activities. The liaison magistrates shall inform national members and competent national authorities of all cases concerning their Member State.

7.  The competent authorities of the Member States and liaison magistrates referred to in paragraph 1 may contact each other directly. In such cases, the liaison magistrate shall inform the national member concerned of such contacts.

8.  The liaison magistrates referred to in paragraph 1 shall be connected to the case management system.

Article 54

Requests for judicial cooperation to and from third countries

1.  Eurojust may, with the agreement of the Member States concerned, coordinate the execution of requests for judicial cooperation issued by a third country where such requests ▌require execution in at least two Member States as part of the same investigation. Such requests may also be transmitted to Eurojust by a competent national authority.

2.  In urgent cases and in accordance with Article 19, the OCC may receive and transmit the requests referred to in paragraph 1 of this Article if they have been issued by a third country which has concluded a cooperation agreement or working arrangement with Eurojust.

3.  Without prejudice to Article 3(5), where requests for judicial cooperation which relate to the same investigation and which require execution in a third country are made by the Member State concerned, Eurojust shall facilitate judicial cooperation with that third country.

SECTION IV

TRANSFERS OF PERSONAL DATA

Article 55

Transmission of operational personal data to Union institutions, bodies, offices and agencies

1.  Subject to any further restrictions pursuant to this Regulation, in particular pursuant to Articles 21(8), 47(5) and 76, Eurojust shall only transmit operational personal data to another Union institution, body, office or agency if the data are necessary for the legitimate performance of tasks covered by the competence of the other Union institution, body, office or agency.

2.  Where the operational personal data are transmitted following a request from another Union institution, body, office or agency, both the controller and the recipient shall bear the responsibility for the legitimacy of that transfer.

Eurojust shall be required to verify the competence of the other Union institution, body, office or agency and to make a provisional evaluation of the necessity of the transmission of the operational personal data. If doubts arise as to this necessity, Eurojust shall seek further information from the recipient.

The other Union institution, body, office or agency shall ensure that the necessity of the transmission of the operational personal data can be subsequently verified.

3.  The other Union institution, body, office or agency shall process the operational personal data only for the purposes for which they were transmitted.

Article 56

General principles for transfers of operational personal data to third countries and international organisations

1.  Eurojust may transfer operational personal data toa third country or ▌international organisation, subject to compliance with the applicable data protection rules and the other provisions of this Regulation, and only where the following conditions are met:

(a)  the transfer is necessary for the performance of Eurojust’s tasks;

(b)  the authority of the third country or the international organisation to which the operational personal data are transferred is competent in law enforcement and criminal matters;

(c)  where the operational personal data to be transferred in accordance with this Article have been transmitted or made available to Eurojust by a Member State, Eurojust shall obtain prior authorisation for the transfer from the relevant competent authority of that Member State in compliance with its national law, unless that Member State has authorised such transfers in general terms or subject to specific conditions;

(d)  in the case of an onward transfer to another third country or international organisation by a third country or international organisation, Eurojust shall require the transferring third country or international organisation to obtain the prior authorisation of Eurojust for that onward transfer.

Eurojust shall only provide authorisation under point (d) with the prior authorisation of the Member State from which the data originate after taking due account of all relevant factors, including the seriousness of the criminal offence, the purpose for which the operational personal data were originally transferred and the level of personal data protection in the third country or international organisation to which the operational personal data are to be transferred onward.

2.  Subject to the conditions set out in paragraph 1 of this Article, Eurojust may transfer operational personal data to a third country or to an international organisation only where one of the following applies:

(a)  the Commission has decided pursuant to Article 57 that the third country or international organisation in question ensures an adequate level of protection, or in the absence of such an adequacy decision, appropriate safeguards have been provided for or exist in accordance with Article 58(1), or in the absence of both an adequacy decision and of such appropriate safeguards, a derogation for specific situations applies pursuant to Article 59(1);

(b)  a cooperation agreement allowing for the exchange of operational personal data has been concluded before … [date of application of this Regulation] between Eurojust and that third country or international organisation, in accordance with Article 26a of Decision 2002/187/JHA; or

(c)  an international agreement has been concluded between the Union and the third country or international organisation pursuant to Article 218 TFEU that provides for adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals.

3.  The working arrangements referred to in Article 47(3) may be used to set out modalities to implement the agreements or adequacy decisions referred to in paragraph 2 of this Article.

4.  Eurojust may in urgent cases transfer operational personal data without prior authorisation from a Member State in accordance with point (c) of paragraph 1. Eurojust shall only do so if the transfer of the operational personal data is necessary for the prevention of an immediate and serious threat to the public security of a Member State or of a third country or to the essential interests of a Member State, and where the prior authorisation cannot be obtained in good time. The authority responsible for giving prior authorisation shall be informed without delay.

5.  Member States and Union institutions, bodies, offices and agencies shall not transfer operational personal data they have received from Eurojust onward to a third country or an international organisation, . As an exception, they may make such a transfer in cases where Eurojust has authorised it after taking into due account all relevant factors, including the seriousness of the criminal offence, the purpose for which the operational personal data were originally transmitted and the level of personal data protection in the third country or international organisation to which the operational personal data are transferred onward.

6.  Articles 57, 58 and 59 shall apply in order to ensure that the level of protection of natural persons ensured by this Regulation and by Union law is not undermined.

Article 57

Transfers on the basis of an adequacy decision

Eurojust may transfer operational personal data to a third country or to an international organisation where the Commission has decided in accordance with Article 36 of Directive (EU) 2016/680 that the third country, a territory or one or more specified sectors within that third country, or the international organisation in question ensures an adequate level of protection.

Article 58

Transfers subject to appropriate safeguards

1.  In the absence of an adequacy decision, Eurojust may transfer operational personal data to a third country or an international organisation where:

(a)  appropriate safeguards with regard to the protection of operational personal data are provided for in a legally binding instrument; or

(b)  Eurojust has assessed all the circumstances surrounding the transfer of operational personal data and has concluded that appropriate safeguards exist with regard to the protection of operational personal data.

2.  Eurojust shall inform the EDPS about categories of transfers under point (b) of paragraph 1.

3.  When a transfer is based on point (b) of paragraph 1, such a transfer shall be documented and the documentation shall be made available to the EDPS on request. The documentation shall include a record of the date and time of the transfer and information about the receiving competent authority, about the justification for the transfer and about the operational personal data transferred.

Article 59

Derogations for specific situations

1.  In the absence of an adequacy decision, or of appropriate safeguards pursuant to Article 58, Eurojust may transfer operational personal data to a third country or an international organisation only on the condition that the transfer is necessary:

(a)  in order to protect the vital interests of the data subject or another person;

(b)  to safeguard legitimate interests of the data subject;

(c)  for the prevention of an immediate and serious threat to public security of a Member State or a third country; or

(d)  in individual cases for the performance of the tasks of Eurojust, unless Eurojust determines that the fundamental rights and freedoms of the data subject concerned override the public interest in the transfer.

2.  Where a transfer is based on paragraph 1, such a transfer shall be documented and the documentation shall be made available to the EDPS on request. The documentation shall include a record of the date and time of the transfer, and information about the receiving competent authority, about the justification for the transfer and about the operational personal data transferred.

CHAPTER VI

FINANCIAL PROVISIONS

Article 60

Budget

1.  Estimates of all the revenue and expenditure of Eurojust shall be prepared for each financial year, corresponding to the calendar year, and shall be shown in Eurojust's budget.

2.  Eurojust's budget shall be balanced in terms of revenue and of expenditure.

3.  Without prejudice to other resources, Eurojust's revenue shall comprise:

(a)  a contribution from the Union entered in the general budget of the Union;

(b)  any voluntary financial contribution from the Member States;

(c)  charges for publications and any service provided by Eurojust;

(d)  ad hoc grants.

4.  The expenditure of Eurojust shall include staff remuneration, administrative and infrastructure expenses and operating costs, including funding for joint investigation teams.

Article 61

Establishment of the budget

1.  Each year the Administrative Director shall draw up a draft statement of estimates of Eurojust's revenue and expenditure for the following financial year, including the establishment plan, and shall send it to the Executive Board. The European Judicial Network and other Union networks involved in judicial cooperation in criminal matters referred to in Article 48 shall be informed of the parts related to their activities in due time before the estimate is forwarded to the Commission.

2.  The Executive Board shall, on the basis of the draft statement of estimates, review the provisional draft estimate of Eurojust's revenue and expenditure for the following financial year, which it shall forward to the College for adoption.

3.  The provisional draft estimate of Eurojust's revenue and expenditure shall be sent to the Commission by no later than 31 January each year. Eurojust shall send the final draft estimate, which shall include a draft establishment plan, to the Commission by 31 March of the same year.

4.  The Commission shall send the statement of estimates to the European Parliament and to the Council (the 'budgetary authority') together with the draft general budget of the Union.

5.  On the basis of the statement of estimates, the Commission shall enter in the draft general budget of the Union the estimates it considers necessary for the establishment plan and the amount of the contribution to be charged to the general budget, which it shall place before the budgetary authority in accordance with Articles 313 and 314 TFEU.

6.  The budgetary authority shall authorise the appropriations for the contribution from the Union to Eurojust.

7.  The budgetary authority shall adopt Eurojust's establishment plan. ▌Eurojust's budget shall be adopted by the College. It shall become final following the final adoption of the general budget of the Union. Where necessary, Eurojust’s budget shall be adjusted by the College accordingly.

8.  ▌Article 88 of Commission Delegated Regulation (EU) 1271/2013(45) shall apply to any building project likely to have significant implications for Eurojust's budget.

Article 62

Implementation of the budget

The Administrative Director shall act as the authorising officer of Eurojust and shall implement Eurojust's budget under his or her own responsibility, within the limits authorised in the budget.

Article 63

Presentation of accounts and discharge

1.  Eurojust's accounting officer shall send the provisional accounts for the financial year (year N) to the Commission's Accounting Officer and to the Court of Auditors by 1 March of the following financial year (year N + 1).

2.  Eurojust shall send the report on the budgetary and financial management for year N to the European Parliament, the Council and the Court of Auditors by 31 March of year N + 1.

3.  The Commission's Accounting Officer shall send Eurojust's provisional accounts for year N, consolidated with the Commission's accounts, to the Court of Auditors by 31 March of year N + 1.

4.  In accordance with Article 246(1) of Regulation (EU, Euratom) 2018/1046, the Court of Auditors shall make its observations on Eurojust’s provisional accounts by 1 June of year N + 1.

5.  On receipt of the Court of Auditors' observations on Eurojust's provisional accounts pursuant to Article 246 of Regulation (EU, Euratom) 2018/1046, the Administrative Director shall draw up Eurojust's final accounts under his or her own responsibility and shall submit them to the Executive Board for an opinion.

6.  The Executive Board shall deliver an opinion on Eurojust's final accounts.

7.  The Administrative Director shall, by 1 July of year N + 1, send the final accounts for year N to the European Parliament, to the Council, to the Commission and to the Court of Auditors, together with the Executive Board’s opinion.

8.  The final accounts for year N shall be published in the Official Journal of the European Union by 15 November of year N + 1.

9.  The Administrative Director shall send the Court of Auditors a reply to its observations by 30 September of year N + 1. The Administrative Director shall also send this reply to the Executive Board and to the Commission.

10.  At the European Parliament’s request, the Administrative Director shall submit to it any information required for the smooth application of the discharge procedure for the financial year in question in accordance with Article 261(3) of Regulation (EU, Euratom) 2018/1046.

11.  On a recommendation from the Council acting by a qualified majority, the European Parliament shall, before 15 May of year N + 2, grant a discharge to the Administrative Director in respect of the implementation of the budget for year N.

12.  The discharge of Eurojust’s budget shall be granted by the European Parliament on a recommendation of the Council following a procedure comparable to that provided for in Article 319 TFEU and Articles 260, 261 and 262 of Regulation (EU, Euratom) 2018/1046, and based on the audit report of the Court of Auditors.

If the European Parliament refuses to grant the discharge by 15 May of year N + 2, the Administrative Director shall be invited to explain his or her position to the College, which shall take its final decision on the position of the Administrative Director in light of the circumstances.

Article 64

Financial rules

1.  The financial rules applicable to Eurojust shall be adopted by the Executive Board in accordance with Delegated Regulation (EU) 1271/2013 after consultation with the Commission. Those financial rules shall not depart from ▌Delegated Regulation (EU) 1271/2013 unless such departure is specifically required for Eurojust's operation and the Commission has given its prior consent.

In respect of the financial support to be given to joint investigation teams' activities, Eurojust and Europol shall jointly establish the rules and conditions upon which applications for such support are to be processed.

2.  Eurojust may award grants related to the fulfilment of its tasks under Article 4(1). Grants provided for tasks relating to point (f) of Article 4(1) may be awarded to the Member States without a call for proposals.

CHAPTER VII

STAFF PROVISIONS

Article 65

General provisions

1.   The Staff Regulations of Officials and the Conditions of Employment of Other Servants, as well as the rules adopted by agreement between the institutions of the Union for giving effect to the Staff Regulations of Officials and the Conditions of Employment of Other Servants shall apply to the staff of Eurojust.

2.  Eurojust staff shall consist of staff recruited according to the rules and regulations applicable to officials and other servants of the Union, taking into account all the criteria referred to in Article 27 of the Staff Regulations of Officials, including their geographical distribution.

Article 66

Seconded national experts and other staff

1.  In addition to its own staff, Eurojust may make use of seconded national experts or other staff not employed by Eurojust.

2.  The College shall adopt a decision laying down rules on the secondment of national experts to Eurojust and on the use of other staff, in particular to avoid potential conflicts of interest.

3.  Eurojust shall take appropriate administrative measures, inter alia through training and prevention strategies, to avoid conflicts of interest, including conflicts of interests relating to post-employment issues.

CHAPTER VIII

EVALUATION AND REPORTING

Article 67

Involvement of the Union institutions and national parliaments

1.  Eurojust shall transmit its annual report to the European Parliament, to the Council and to national parliaments, which may present observations and conclusions.

2.   Upon his or her election, the newly elected President of Eurojust shall make a statement before the competent committee or committees of the European Parliament and answer questions put by its members. Discussions shall not refer directly or indirectly to concrete actions taken in relation to specific operational cases.

3.  The President of Eurojust shall appear once a year for the joint evaluation of the activities of Eurojust by the European Parliament and national parliaments within the framework of an interparliamentary committee meeting, to discuss Eurojust’s current activities and to present its annual report or other key documents of Eurojust.

Discussions shall not refer directly or indirectly to concrete actions taken in relation to specific operational cases.

4.  In addition to the other obligations of information and consultation set out in this Regulation, Eurojust shall transmit to the European Parliament and to national parliaments in their respective official languages for their information:

(a)  the results of studies and strategic projects elaborated or commissioned by Eurojust;

(b)  the programming document referred to in Article 15;

(c)  working arrangements concluded with third parties.

Article 68

Opinions on proposed legislative acts

The Commission and the Member States exercising their rights on the basis of point (b) of Article 76 TFEU may request Eurojust's opinion on all proposed legislative acts referred to in Article 76 TFEU.

Article 69

Evaluation and review

1.  By ▌… [5 years after the date of application of this Regulation] , and every 5 years thereafter, the Commission shall commission an evaluation of the implementation and impact of this Regulation, and the effectiveness and efficiency of Eurojust and its working practices. The College shall be heard in the evaluation ▌. The evaluation may, in particular, address the possible need to modify the mandate of Eurojust, and the financial implications of any such modification.

2.  The Commission shall forward the evaluation report together with its conclusions to the European Parliament, to national parliaments, to the Council and to the College. The findings of the evaluation shall be made public.

CHAPTER IX

GENERAL AND FINAL PROVISIONS

Article 70

Privileges and immunities

Protocol No 7 on the privileges and immunities of the European Union, annexed to the TEU and to the TFEU, shall apply to Eurojust and its staff.

Article 71

Language arrangements

1.  Council Regulation No 1(46) shall apply to Eurojust.

2.  The College shall decide Eurojust’s internal language arrangements by a two-thirds majority of its members.

3.  The translation services required for the functioning of Eurojust shall be provided by the Translation Centre for the bodies of the European Union, as established by Council Regulation (EC) No 2965/94(47), unless the unavailability of the Translation Centre requires another solution to be found.

Article 72

Confidentiality

1.  The national members and their deputies and Assistants referred to in Article 7, Eurojust staff, national correspondents, seconded national experts, liaison magistrates, the Data Protection Officer, and the members and staff of the EDPS shall be bound by an obligation of confidentiality with respect to any information which has come to their knowledge in the course of the performance of their tasks.

2.  The obligation of confidentiality shall apply to all persons and to all bodies that work with Eurojust.

3.  The obligation of confidentiality shall also apply after leaving office or employment and after the termination of the activities of the persons referred to in paragraphs 1 and 2.

4.  The obligation of confidentiality shall apply to all information received or exchanged by Eurojust, unless that information has already lawfully been made public or is accessible to the public.

Article 73

Conditions of confidentiality of national proceedings

1.  Without prejudice to Article 21(3), where information is received or exchanged via Eurojust, the authority of the Member State which provided the information may stipulate conditions, pursuant to its national law, on the use by the receiving authority of that information in national proceedings.

2.  The authority of the Member State which receives the information referred to in paragraph 1 shall be bound by those conditions.

Article 74

Transparency

1.  Regulation (EC) No 1049/2001 of the European Parliament and the Council(48) shall apply to documents held by Eurojust.

2.  The Executive Board shall, within six months of the date of its first meeting, prepare the detailed rules for applying Regulation (EC) No 1049/2001 for adoption by the College.

3.  Decisions taken by Eurojust under Article 8 of Regulation (EC) No 1049/2001 may be the subject of a complaint to the European Ombudsman or of an action before the Court, under the conditions laid down in Articles 228 and 263 TFEU respectively.

4.  Eurojust shall publish on its website a list of the Executive Board members and summaries of the outcome of the meetings of the Executive Board. The publication of those summaries shall be temporarily or permanently omitted or restricted if such publication would risk jeopardising the performance of Eurojust's tasks, taking into account its obligations of discretion and confidentiality and the operational character of Eurojust.

Article 75

OLAF and the Court of Auditors

1.  In order to facilitate the combating of fraud, corruption and other unlawful activities under Regulation (EU, Euratom) No 883/2013, within six months from the entry into force of this Regulation, Eurojust shall accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-fraud Office (OLAF)(49). Eurojust shall adopt appropriate provisions that apply to all national members, their deputies and Assistants, all seconded national experts and all Eurojust staff, using the template set out in the Annex to that Agreement.

2.  The Court of Auditors shall have the power of audit, on the basis of documents and on the spot, over all grant beneficiaries, contractors and subcontractors who have received Union funds from Eurojust.

3.  OLAF may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 and Council Regulation (Euratom, EC) No 2185/96(50), ▌ with a view to establishing whether there have been any irregularities affecting the financial interests of the Union in connection with expenditure funded by Eurojust.

4.  Without prejudice to paragraphs 1, 2 and 3, working arrangements with third countries or international organisations, the contracts, grant agreements and grant decisions of Eurojust shall contain provisions expressly empowering the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

5.  The staff of Eurojust, the Administrative Director and the members of the College and Executive Board shall, without delay and without their responsibility being called into question as a result, notify OLAF and the EPPO of any suspicion of irregular or illegal activity within their respective mandate, which has come to their attention in the fulfilment of their duties.

Article 76

Rules on the protection of sensitive non-classified information and classified information

1.  Eurojust shall establish internal rules on the handling and confidentiality of information and on the protection of sensitive non-classified information, including the creation and processing of such information at Eurojust.

2.  Eurojust shall establish internal rules on the protection of EU classified information which shall be consistent with Council Decision 2013/488/EU(51) in order to ensure an equivalent level of protection for such information.

Article 77

Administrative inquiries

The administrative activities of Eurojust shall be subject to the inquiries of the European Ombudsman in accordance with Article 228 TFEU.

Article 78

Liability other than liability for unauthorised or incorrect processing of data

1.  Eurojust's contractual liability shall be governed by the law applicable to the contract in question.

2.  The Court shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by Eurojust.

3.  In the case of non-contractual liability, Eurojust shall, in accordance with the general principles common to the laws of the Member States and independently of any liability under Article 46, make good any damage caused by Eurojust or its staff in the performance of their duties.

4.  Paragraph 3 shall also apply to damage caused through the fault of a national member, a deputy or an Assistant in the performance of their duties. However, when he or she is acting on the basis of the powers granted to him or her pursuant to Article 8, his or her Member State shall reimburse Eurojust the sums which Eurojust has paid to make good such damage.

5.  The Court shall have jurisdiction in disputes over compensation for damages referred to in paragraph 3.

6.  The national courts of the Member States competent to deal with disputes involving Eurojust's liability as referred to in this Article shall be determined by reference to Regulation (EU) No 1215/2012 of the European Parliament and of the Council(52) ▌.

7.  The personal liability of Eurojust's staff towards Eurojust shall be governed by the applicable provisions laid down in the Staff Regulations of Officials and Conditions of Employment of Other Servants.

Article 79

Headquarters agreement and operating conditions

1.  The seat of Eurojust shall be The Hague, the Netherlands.

2.  The necessary arrangements concerning the accommodation to be provided for Eurojust in the Netherlands and the facilities to be made available by the Netherlands together with the specific rules applicable in the Netherlands to the Administrative Director, members of the College, Eurojust staff and members of their families shall be laid down in a headquarters agreement between Eurojust and the Netherlands concluded once the College’s approval is obtained.

Article 80

Transitional arrangements

1.  Eurojust as established by this Regulation shall be the general legal successor in respect of all contracts concluded by, liabilities incumbent upon, and properties acquired by Eurojust as established by Decision 2002/187/JHA.

2.  The national members of Eurojust as established by Decision 2002/187/JHA who have been seconded by each Member State under that Decision shall take the role of national members of Eurojust under Section II of Chapter II of this Regulation. Their terms of office may be extended once under Article 7(5) of this Regulation after the entry into force of this Regulation, irrespective of a previous extension.

3.  The President and Vice-Presidents of Eurojust as established by Decision 2002/187/JHA at the time of the entry into force of this Regulation shall take the role of the President and Vice-Presidents of Eurojust under Article 11 of this Regulation, until the expiry of their terms of office in accordance with that Decision. They may be re-elected once after the entry into force of this Regulation under Article 11(4) of this Regulation, irrespective of a previous re-election.

4.  The Administrative Director who was last appointed under Article 29 of Decision 2002/187/JHA shall take the role of the Administrative Director under Article 17 of this Regulation until the expiry of his or her term of office as decided under that Decision. The term of office of that Administrative Director may be extended once after the entry into force of this Regulation.

5.  This Regulation shall not affect the validity of agreements concluded by Eurojust as established by Decision 2002/187/JHA. In particular, all international agreements concluded by Eurojust before … [the date of application of this Regulation] shall remain valid.

6.  The discharge procedure in respect of the budgets approved on the basis of Article 35 of Decision 2002/187/JHA shall be carried out in accordance with the rules established by Article 36 thereof.

7.  This Regulation shall not affect employment contracts which have been concluded under Decision 2002/187/JHA prior to the entry into force of this Regulation. The Data Protection Officer who was last appointed under Article 17 of that Decision shall take the role of the Data Protection Officer under Article 36 of this Regulation.

Article 81

Replacement and repeal

1.  ▌Decision 2002/187/JHA is hereby replaced for the Member States bound by this Regulation with effect from ...[one year after the date of entry into force.].

Therefore, Decision 2002/187/JHA is repealed with effect from ...[one year after the date of entry into force.].

2.  With regard to the Member States bound by this Regulation, references to the Decision referred to in paragraph 1 shall be construed as references to this Regulation.

Article 82

Entry into force and application

1.  This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.  It shall apply from ...[one year after the date of entry into force].

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at,

For the European Parliament For the Council

The President The President

ANNEX I

List of forms of serious crime with which Eurojust is competent to deal in accordance with Article 3(1):

–  terrorism,

–   organised crime,

–  drug trafficking,

–   money-laundering activities,

–  crime connected with nuclear and radioactive substances,

–   immigrant smuggling,

–   trafficking in human beings,

–  motor vehicle crime,

–   murder and grievous bodily injury,

–  illicit trade in human organs and tissue,

–  kidnapping, illegal restraint and hostage taking,

–  racism and xenophobia,

–  ▌robbery and aggravated theft,

–  illicit trafficking in cultural goods, including antiquities and works of art,

–  swindling and fraud,

–  crime against the financial interests of the Union,

–  insider dealing and financial market manipulation,

–  racketeering and extortion,

–  counterfeiting and product piracy,

–  forgery of administrative documents and trafficking therein,

–  forgery of money and means of payment,

–  computer crime,

–  corruption,

–  illicit trafficking in arms, ammunition and explosives,

–  illicit trafficking in endangered animal species,

–  illicit trafficking in endangered plant species and varieties,

–  environmental crime, including ship source pollution,

–   illicit trafficking in hormonal substances and other growth promoters,

–   sexual abuse and sexual exploitation, including child abuse material and solicitation of children for sexual purposes,

–  genocide, crimes against humanity and war crimes.

ANNEX II

Categories of personal data referred to in Article 27

1.  (a) surname, maiden name, given names and any alias or assumed names;

(b)  date and place of birth;

(c)  nationality;

(d)  sex;

(e)  place of residence, profession and whereabouts of the person concerned;

(f)  social security number or other official numbers used in the Member State to identify individuals, driving licences, identification documents and passport data, customs and Tax Identification Numbers;

(g)  information concerning legal persons if it includes information relating to identified or identifiable individuals who are the subject of a judicial investigation or prosecution;

(h)  details of accounts held with banks or other financial institutions;

(i)  description and nature of the alleged offences, the date on which they were committed, the criminal category of the offences and the progress of the investigations;

(j)  the facts pointing to an international extension of the case;

(k)  details relating to alleged membership of a criminal organisation;

(l)  telephone numbers, e-mail addresses, traffic data and location data, as well as any related data necessary to identify the subscriber or user;

(m)  vehicle registration data;

(n)  DNA profiles established from the non-coding part of DNA, photographs and fingerprints.

2.  (a) surname, maiden name, given names and any alias or assumed names;

(b)  date and place of birth;

(c)  nationality;

(d)  sex;

(e)  place of residence, profession and whereabouts of the person concerned;

(f)  the description and nature of the offences involving the person concerned, the date on which the offences were committed, the criminal category of the offences and the progress of the investigations;

(g)  social security number or other official numbers used by the Member States to identify individuals, driving licences, identification documents and passport data, customs and Tax Identification Numbers;

(h)  details of accounts held with banks and other financial institutions;

(i)  telephone numbers, e-mail addresses, traffic data and location data, as well as any related data necessary to identify the subscriber or user;

(j)  vehicle registration data.

(1) Position of the European Parliament of 4 October 2018.
(2)Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 63, 6.3.2002, p. 1).
(3)Council Decision 2003/659/JHA of 18 June 2003 amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 245, 29.9.2003, p. 44).
(4)Council Decision 2009/426/JHA of 16 December 2008 on the strengthening of Eurojust and amending Decision 2002/187/JHA setting up Eurojust with a view to reinforcing the fight against serious crime (OJ L 138, 4.6.2009, p. 14).
(5) Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).
(6)Council Decision 2002/494/JHA of 13 June 2002 setting up a European network of contact points in respect of persons responsible for genocide, crimes against humanity and war crimes (OJ L 167, 26.6.2002, p. 1).
(7)Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime (OJ L 332, 18.12.2007, p. 103).
(8)Council Decision 2008/852/JHA of 24 October 2008 on a contact-point network against corruption (OJ L 301, 12.11.2008, p. 38).
(9) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).
(10) Regulation (EU) 2018/… of the European Parliament and of the Council of … on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002 (OJ …).
(11)+ OJ: Please insert in the text the number of the Regulation contained in document PE-CONS 31/18 (2017/0002(COD)) and insert the number, date and OJ reference of that Regulation in the footnote.
(12)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(13)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(14)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(15) Council Common Position 2005/69/JHA of 24 January 2005 on exchanging certain data with Interpol (OJ L 27, 29.1.2005, p. 61).
(16) Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 205, 7.8.2007, p. 63).
(17)Council Joint Action 96/277/JHA of 22 April 1996 concerning a framework for the exchange of liaison magistrates to improve judicial cooperation between the Member States of the European Union (OJ L 105, 27.4.1996, p. 1).
(18)Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).
(19)Regulation (EU, Euratom) No. 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).
(20) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).
(21) Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ L 130, 1.5.2014. p. 1).
(22) OJ L 56, 4.3.1968, p. 1.
(23) Council Decision 2005/671/JHA of 20 September 2005 on the exchange of information and cooperation concerning terrorist offences (OJ L 253, 29.9.2005, p. 22).
(24) Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network (OJ L 348, 24.12.2008, p. 130).
(25)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(26)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(27)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(28)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(29)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(30)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(31)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(32)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(33)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(34)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(35)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(36)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(37)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(38)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(39)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(40)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(41)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(42)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(43) Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1).
(44)+ OJ: Please insert the number of Regulation contained in document PE-CONS 31/18 (2017/0002(COD)).
(45) Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article 208 of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).
(46)Council Regulation No 1 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385.).
(47) Council Regulation (EC) No 2965/94 of 28 November 1994 setting up a Translation Centre for bodies of the European Union (OJ L 314, 7.12.1994, p. 1)
(48) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).
(49) OJ L 136, 31.5.1999, p. 15.
(50) Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities' financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).
(51) Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ L 274, 15.10.2013, p. 1).
(52) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).


Mutual recognition of freezing and confiscation orders ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 4 October 2018 on the proposal for a regulation of the European Parliament and of the Council on the mutual recognition of freezing and confiscation orders (COM(2016)0819 – C8-0002/2017 – 2016/0412(COD))
P8_TA-PROV(2018)0380A8-0001/2018

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2016)0819),

–  having regard to Article 294(2) and Article 82(1), second subparagraph, point (a) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0002/2017),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Czech Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the provisional agreement approved by the committee responsible under Rule 69f(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 20 June 2018 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinions of the Committee on Economic and Monetary Affairs and the Committee on Legal Affairs (A8-0001/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 4 October 2018 with a view to the adoption of Regulation (EU) 2018/… of the European Parliament and of the Council on the mutual recognition of freezing orders and confiscation orders

P8_TC1-COD(2016)0412


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 82 (1)(a) 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(1),

Whereas:

(1)  The Union has set itself the objective of maintaining and developing an area of freedom, security and justice.

(2)  Judicial cooperation in criminal matters in the Union is based on the principle of mutual recognition of judgments and judicial decisions, which has commonly been referred to as the cornerstone of judicial cooperation in criminal matters within the Union since the Tampere European Council of 15 and 16 October 1999.

(3)  The freezing and the confiscation of instrumentalities and proceeds of crime are among the most effective means of combatting crime. The ▌Union is committed to ensuring more effective identification, confiscation and re-use of criminal assets in accordance with "The Stockholm programme – An open and secure Europe serving and protecting the citizens"(2).

(4)  As crime is often transnational in nature, effective cross-border cooperation is essential in order to freeze and confiscate the instrumentalities and proceeds of crime.

(5)  The current Union legal framework in relation to the mutual recognition of freezing orders and confiscation orders is composed of Council Framework Decisions 2003/577/JHA ▌(3) and 2006/783/JHA(4).

(6)  The Commission's implementation reports on Framework Decisions 2003/577/JHA and 2006/783/JHA show that the existing regime for the mutual recognition of freezing orders and confiscation orders is not fully effective. Those Framework Decisions have not been implemented and applied uniformly in the Member States, which has led to insufficient mutual recognition and sub-optimal cross-border cooperation.

(7)  The Union legal framework on mutual recognition of freezing orders and confiscation orders has not kept up with recent legislative developments at Union and national levels. In particular, Directive 2014/42/EU of the European Parliament and of the Council (5) establishes minimum rules on the freezing and the confiscation of property. Those minimum rules concern the confiscation of instrumentalities and proceeds of crime, including in the cases of illness or absconding of the suspect or accused person, where criminal proceedings have already been initiated regarding a criminal offence, extended confiscation and confiscation from a third party. Those minimum rules also concern the freezing of property with a view to possible subsequent confiscation. The types of freezing orders and confiscation ▌ orders covered by that Directive should also be included in the legal framework on mutual recognition.

(8)  When adopting Directive 2014/42/EU, the European Parliament and the Council stated in a declaration that an effective system of freezing and confiscation in the ▌Union is inherently linked to the well-functioning mutual recognition of freezing orders and confiscation orders. Considering the need to put in place a comprehensive system for the freezing and confiscation of the instrumentalities and proceeds of crime in the Union, the European Parliament and the Council called on the Commission to present a legislative proposal on the mutual recognition of freezing orders and confiscation orders.

(9)  In its communication of 28 April 2015 entitled ‘The European Agenda on Security’, the Commission considered that judicial cooperation in criminal matters relies on effective cross-border instruments and that the mutual recognition of judgments and judicial decisions is a key element in the security framework. The Commission also recalled the need to improve the mutual recognition of freezing orders and confiscation orders.

(10)  In its communication of 2 February 2016 on an Action Plan for strengthening the fight against terrorist financing, the Commission highlighted the need to ensure that criminals who fund terrorism are deprived of their assets. The Commission stated that, in order to disrupt organised crime activities that finance terrorism, it is essential to deprive those criminals of the proceeds of crime. To that end, the Commission stated that it is necessary to ensure that all types of freezing orders and confiscation orders are enforced to the maximum extent possible throughout the Union by the application of the principle of mutual recognition.

(11)  In order to ensure the effective mutual recognition of freezing orders and confiscation orders, the rules on the recognition and execution of those orders should be established by a legally binding and directly applicable act of the Union.

(12)  It is important to facilitate the mutual recognition and execution of freezing orders and confiscation orders by establishing rules that oblige a Member State to recognise, without further formalities, the freezing orders and confiscation orders issued by another Member State within the framework of ▌ proceedings in criminal matters and to execute those orders within its territory.

(13)  This Regulation should apply to all freezing orders and to all confiscation orders issued within the framework of proceedings in criminal matters. 'Proceedings in criminal matters' is an autonomous concept of Union law interpreted by the Court of Justice of the European Union, notwithstanding the case law of the European Court of Human Rights. The term therefore covers all types of freezing orders and confiscation orders issued following proceedings in relation to a criminal offence, not only orders covered by Directive 2014/42/EU. It also covers other types of order issued without a final conviction. While such orders might not exist in the legal system of a Member State, the Member State concerned should be able to recognise and execute such an order issued by another Member State. Proceedings in criminal matters could also encompass criminal investigations by the police and other law enforcement authorities. Freezing orders and confiscation orders that are issued within the framework of proceedings in civil or administrative matters should be excluded from the scope of this Regulation.

(14)  This Regulation should cover ▌freezing orders and confiscation orders related to criminal offences covered by Directive 2014/42/EU, as well as freezing orders and confiscation orders related to other criminal offences. The criminal offences covered by this Regulation should therefore not be limited to ▌particularly serious crimes that have a cross-border dimension, as Article 82 of the Treaty on the Functioning of the European Union (TFEU) does not require such a limitation for measures laying down rules and procedures for ensuring the mutual recognition of judgments in criminal matters.

(15)  Cooperation between Member States, which is based on the principle of mutual recognition and the immediate execution of judicial decisions, presupposes confidence that the decisions to be recognised and executed will always be taken in compliance with the principles of legality, subsidiarity and proportionality. Such cooperation also presupposes that the rights of persons who are affected by a freezing order or confiscation order should be preserved. Such affected persons, who can be natural persons or legal persons, should include the person against whom a freezing order or confiscation order was issued or the person who owns the property that is covered by that order, as well as any third parties whose rights in relation to that property are directly prejudiced by that order, including bona fide third parties. Whether such third parties are directly prejudiced by a freezing order or confiscation order, should be decided in accordance with the law of the executing State.

(16)  This Regulation does not modify the obligation to respect fundamental rights and legal principles enshrined in Article 6 of the Treaty on European Union (TEU).

(17)  This Regulation respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union (the "Charter") and the European Convention for the Protection of Human Rights and Fundamental Freedoms (the "ECHR"). This includes the principle that any discrimination based on any ground such as sex, racial or ethnic origin, religion, sexual orientation, nationality, language, political opinion, or disability is to be prohibited. This Regulation should be applied in accordance with those rights and principles.

(18)  The procedural rights set out in Directives 2010/64/EU(6), 2012/13/EU(7), 2013/48/EU(8), (EU) 2016/343(9), (EU) 2016/800(10) and (EU) 2016/1919(11) of the European Parliament and of the Council should apply, within the scope of those Directives, to criminal proceedings covered by this Regulation as regards the Member States bound by those Directives. In any case, the safeguards under the Charter should apply to all proceedings covered by this Regulation. In particular, the essential safeguards for criminal proceedings set out in the Charter should apply to proceedings in criminal matters that are not criminal proceedings but which are covered by this Regulation.

(19)  While ▌the rules for the transmission, recognition and execution of freezing orders and confiscation orders should ensure the efficiency of the process of recovering criminal assets, fundamental rights are to be respected.

(20)  When assessing double criminality, the competent authority of the executing State should verify whether the factual elements underlying the criminal offence in question, as reflected in the freezing certificate or confiscation certificate submitted by the competent authority of the issuing State, would also, per se, be subject to a criminal penalty in the executing State if they were present in that State at the time of the decision on the recognition of the freezing order or confiscation order.

(21)  The issuing authority should ensure that, when issuing a freezing order or confiscation order, the principles of necessity and proportionality are respected. Under this Regulation, a freezing order or confiscation order should only be issued and transmitted to an executing authority in another Member State where it could have been issued and used in a solely domestic case. The issuing authority should be responsible for assessing the necessity and proportionality of such orders in each case as the recognition and execution of freezing orders and confiscation orders should not be refused on grounds other than those provided for in this Regulation.

(22)  In some cases, a freezing order may be issued by an authority, designated by the issuing State, which is competent in criminal matters to issue or execute the freezing order in accordance with national law, and which is not a judge, court or public prosecutor. In such cases, the freezing order should be validated by a judge, court or public prosecutor, before it is transmitted to the executing authority.

(23)  Member States should be able to make a declaration stating that, when a freezing certificate or a confiscation certificate is transmitted to them with a view to the recognition and execution of a freezing order or confiscation order, the issuing authority should transmit the original freezing order or confiscation order, or a certified copy thereof, together with the freezing certificate or the confiscation certificate. Member States should inform the Commission where they make or withdraw such a declaration. The Commission should make such information available to all Member States and to the European Judicial Network (EJN) provided for by Council Decision 2008/976/JHA(12). The EJN should make that information available on the website referred to in that Decision.

(24)  The issuing authority should transmit a freezing certificate or a confiscation certificate, together with the freezing order or confiscation order, where applicable, either directly to the executing authority or to the central authority of the executing State, as applicable, by any means capable of producing a written record under conditions that allow the executing authority to establish authenticity of the certificate or the order, such as registered mail or secured e-mail. The issuing authority should be able to make use of any relevant channels or means of transmission, including the secure telecommunications system of the EJN, Eurojust, or other channels used by judicial authorities.

(25)  Where the issuing authority has reasonable grounds to believe that the person against whom a freezing order or confiscation order concerning an amount of money was issued has property or income in a Member State, it should transmit the freezing certificate or the confiscation certificate that relates to the order to that Member State. On that basis, the certificate could, for example, be transmitted to the Member State in which the natural person against whom the order was issued is residing or, where that person has no permanent address, is habitually residing. Where the order is issued against a legal person, the certificate could be transmitted to the Member State in which the legal person is domiciled.

(26)  With a view to the administrative transmission and reception of certificates relating to freezing orders and confiscation orders, Member States should be able to designate one or more central authorities where necessary due to the structure of their internal legal systems. Such central authorities could also provide administrative support, play a coordination role and assist in the collection of statistics, thus facilitating and promoting the mutual recognition of freezing orders and confiscation orders.

(27)  Where a confiscation certificate that relates to a confiscation order concerning an amount of money is transmitted to more than one executing State, the issuing State should seek to avoid the situation whereby more property than necessary is confiscated and the total amount obtained from the execution of the order would exceed the maximum amount specified therein. To that end, the issuing authority should, inter alia, indicate in the confiscation certificate the value of assets, where known, in each executing State, so that the executing authorities can take account thereof, maintain the necessary contact and dialogue with the executing authorities on the property to be confiscated, and inform the relevant executing authority or authorities immediately if it considers that there could be a risk that confiscation in excess of the maximum amount might occur. Where appropriate, Eurojust could exercise a coordinating role within its remit in order to avoid excessive confiscation.

(28)  Member States should be encouraged to make a declaration stating that, as executing States, they would accept freezing certificates, confiscation certificates, or both, in one or more official languages of the Union other than their official languages.

(29)  The executing authority should recognise freezing orders and confiscation orders ▌ and should take the measures necessary ▌for their execution. The decision on the recognition and execution of the freezing order or confiscation order should be taken, and the freezing or confiscation should be carried out, with the same speed and priority as for ▌similar domestic cases. ▌Time limits, which should be calculated in accordance with Regulation (EEC, Euratom) No 1182/71 of the Council(13), should be set out in order to ensure a quick and efficient decision on the recognition of the freezing order or confiscation order and a quick and efficient execution thereof. As regards freezing orders, the executing authority should start taking the concrete measures necessary to execute such orders no later than 48 hours after the decision on the recognition and execution thereof has been taken.

(30)  In the execution of a freezing order, the issuing authority and the executing authority should take due account of the confidentiality of the investigation. In particular, the executing authority should guarantee the confidentiality of the facts and ▌ substance of the freezing order. This is without prejudice to the obligation to inform affected persons of the execution of a freezing order in accordance with this Regulation.

(31)  The recognition and execution of a freezing order or confiscation order should not be refused on grounds other than those provided for in this Regulation. This Regulation should permit the executing authorities not to recognise or execute confiscation orders on the basis of the ▌ principle of ne bis in idem, on the basis of the rights of affected persons or on the basis of the right to be present at the trial.

(32)  This Regulation should permit executing authorities not to recognise or execute confiscation orders where the person against whom the confiscation order was issued did not appear in person at the trial that resulted in the confiscation order linked to a final conviction. This should only be a ground for non-recognition or non-execution where trials result in confiscation orders linked to a final conviction and not where proceedings result in non-conviction-based confiscation orders. However, in order for such a ground to be available, one or more hearings should be held. The ground should not be available if the relevant national procedural rules do not provide for a hearing. Such national procedural rules should comply with the Charter and with the ECHR, in particular with regard to the right to a fair trial. This is the case, for example, where the proceedings are conducted in a simplified manner following, solely or partially, a written procedure or a procedure in which no hearing is provided for.

(33)  It should be possible, in exceptional circumstances, not to recognise or execute a freezing order or confiscation order where such recognition or execution would prevent the executing State from applying its constitutional rules relating to freedom of the press or freedom of expression in other media.

(34)  The creation of an area of freedom, security and justice within the Union is based on mutual trust and a presumption of compliance by other Member States with Union law and, in particular, with fundamental rights. However, in exceptional situations, where there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of a freezing order or confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, the executing authority should be able to decide not to recognise and execute the order concerned. The fundamental rights that should be relevant in this respect are, in particular, the right to an effective remedy, the right to a fair trial and the right of defence. The right to property should, in principle, not be relevant because freezing and confiscation of assets necessarily imply an interference with a person's right to property and because the necessary safeguards in that respect are already provided for in Union law, including in this Regulation.

(35)  Before deciding not to recognise or execute a freezing order or confiscation order on the basis of any ground for non-recognition or non-execution, the executing authority should consult the issuing authority in order to obtain any necessary additional information.

(36)  When examining a request from the executing authority to limit the period during which the property should be frozen, the issuing authority should take into account all of the circumstances of the case, in particular whether the continuation of the freezing order could cause unjustified damage in the executing State. The executing authority is encouraged to consult with the issuing authority on this issue before making a formal request.

(37)  The issuing authority should inform the executing authority when an authority of the issuing State receives any sum of money which has been paid in respect of the confiscation order, it being understood that the executing State should only be informed if the amount paid in respect of the order impacts on the outstanding amount that is to be confiscated pursuant to the order.

(38)  It should be possible for the executing authority to postpone the execution of a ▌freezing order or a confiscation order, in particular where its execution might damage an ongoing criminal investigation. As soon as the grounds for postponement have cesased to exist ▌, the executing authority should take the measures necessary for the execution of the order.

(39)  After the execution of a freezing order, and following the decision to recognise and execute a confiscation order, the executing authority should, in so far as possible, inform affected persons known to it of such execution or such decision. To that end, the executing authority should make every reasonable effort to identify the affected persons, verify how they can be reached and inform them of the execution of the freezing order or of the decision to recognise and execute the confiscation order. In carrying out that obligation, the executing authority could ask the issuing authority for assistance, for example where the affected persons appear to reside in the issuing State. The obligation under this Regulation for the executing autority to provide information to affected persons is without prejudice to any obligation of the issuing authority to provide information to persons under the law of the issuing State, for example regarding the issue of a freezing order or regarding existing legal remedies under the law of the issuing State.

(40)  The issuing authority should be notified without delay if it is impossible to execute a freezing order or confiscation order. Such impossibility might arise because the property has already been confiscated, has disappeared, has been destroyed or cannot be found at the location indicated by the issuing authority, or because the location of the property has not been indicated in a sufficiently precise manner despite consultations between the executing authority and the issuing authority. In such circumstances, the executing authority should no longer be obliged to execute the order. However, if the executing authority subsequently obtains information that allows it to locate the property, it should be able to execute the order without a new certificate having to be transmitted in accordance with this Regulation.

(41)  Where the law of the executing State renders the execution of a freezing order or confiscation order legally impossible, the executing authority should contact the issuing authority in order to discuss the situation and to find a solution. Such a solution could consist in the issuing authority withdrawing the order concerned.

(42)  As soon as the execution of a confiscation order has been completed, the executing authority should inform the issuing authority of the results of the execution. Where practically possible, the executing authority should, at that time, also inform the issuing authority of the property or the amount of money that has been confiscated, and of other details that it considers relevant.

(43)  The execution of a freezing order or confiscation ▌ order should be governed by the law of the executing State and only the authorities of that State should ▌be competent to decide on the procedures for execution. Where appropriate, the issuing and executing authority should be able to invite Eurojust or the EJN to provide assistance, within their remit, concerning issues relating to the execution of freezing orders and confiscation orders.

(44)  The proper ▌operation of this Regulation presupposes close communication between the competent national authorities involved, in particular in cases of the simultaneous execution of a confiscation order in more than one Member State. The competent national authorities should therefore consult each other whenever necessary, directly or, where appropriate, via Eurojust or the EJN.

(45)  The victims' rights to compensation and restitution should not be prejudiced in cross-border cases. Rules for the disposal of frozen or confiscated property should give priority to the compensation of, and restitution of property to, victims. The notion of ‘victim’ is to be interpreted in accordance with the law of the issuing State, which should also be able to provide that a legal person could be a victim for the purpose of this Regulation. This Regulation should be without prejudice to rules on compensation and restitution of property to victims in national proceedings.

(46)  Where an executing authority is informed of a decision issued by the issuing authority or by another competent authority in the issuing State to restitute frozen property to the victim, the executing authority should take the necessary measures to ensure that the property concerned is frozen and restituted to the victim as soon as possible. The executing authority should be able to transfer the property to the issuing State, so that the latter would be able to restitute the property to the victim, or directly to the victim subject to the consent of the issuing State. The obligation to restitute frozen property to the victim should be subject to the following conditions: the victim’s title to the property should not be contested, meaning that it is accepted that the victim is the rightful owner of the property and there are no serious claims putting that into question; the property should not be required as evidence in criminal proceedings in the executing State; and the rights of affected persons, in particular the rights of bona fide third parties, should not be prejudiced. The executing authority should restitute frozen property to the victim only where those conditions have been met. Where an executing authority considers that those conditions have not been met, it should consult with the issuing authority, for example to request any additional information or to discuss the situation, in order to find a solution. If no solution can be found, the executing authority should be able to decide not to restitute the frozen property to the victim.

(47)  Each Member State should consider establishing a national centralised office responsible for the management of frozen property, with a view to possible later confiscation, as well as for the management of confiscated property. Frozen property and confiscated property could be earmarked, as a matter of priority, for law enforcement and organised crime prevention projects and for other projects of public interest and social utility.

(48)  Each Member State should consider establishing a national fund to guarantee appropriate compensation for victims of crime, such as families of police officers and public servants killed or permanently disabled in the line of duty. Member States could earmark a portion of confiscated assets for that purpose.

(49)  Member States should not be able to claim from each other compensation for costs resulting from the application of this Regulation. However, where the executing State has incurred large or exceptional costs, for example because the property has been frozen for a considerable period of time, any proposal by the executing authority to share the costs should be considered by the issuing authority.

(50)  In order to be able to address identified problems in the future regarding the content of the certificates set out in the Annexes to this Regulation as quickly as possible, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amendments to those certificates. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work ▌, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making(14). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(51)  Since the objective of this Regulation, namely the mutual recognition and execution of freezing orders and confiscation orders, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and its effects, 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.

(52)  Provisions of Framework Decision 2003/577/JHA have already been replaced by Directive 2014/41/EU of the European Parliament and of the Council(15) as regards the freezing of evidence for Member States bound by that Directive. Provisions of Framework Decision 2003/577/JHA as regards freezing of property should be replaced by this Regulation between Member States bound by it .Framework Decision 2006/783/JHA should also be replaced by this Regulation between Member States bound by it. The provisions of Framework Decision 2003/577/JHA as regards freezing of property, as well as the provisions of Framework Decision 2006/783/JHA, should therefore continue to apply not only between the Member States that are not bound by this Regulation but also between any Member State that is not bound by this Regulation and any Member State that is bound by this Regulation.

(53)  The legal form of this act should not constitute a precedent for future legal acts of the Union in the field of mutual recognition of judgments and judicial decisions in criminal matters. The choice of the legal form for future legal acts of the Union should be carefully assessed on a case-by-case basis taking into account, among other factors, the effectiveness of the legal act and the principles of proportionality and subsidiarity.

(54)  Member States should ensure that, in accordance with Council Decision 2007/845/JHA(16), their Asset Recovery Offices cooperate with each other to facilitate the tracing and identification of proceeds of crime and other crime-related property which may become the object of a freezing order or confiscation order.

(55)  In accordance with Article 3 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, ▌the United Kingdom ▌ has notified its wish to take part in the adoption and application of this Regulation ▌.

(56)  In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21, and without prejudice to Article 4 of that Protocol, ▌Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(57)  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,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

SUBJECT-MATTER, DEFINITIONS AND SCOPE

Article 1

Subject matter

1.  This Regulation lays down the rules under which a Member State recognises and executes in its territory freezing orders and confiscation orders issued by another Member State within the framework of ▌proceedings in criminal matters.

2.  This Regulation shall not have the effect of modifying the obligation to respect the fundamental rights and legal principles enshrined in Article 6 TEU.

3.  When issuing freezing orders or confiscation orders, issuing authorities shall ensure that the principles of necessity and proportionality are respected.

4.  This Regulation does not apply to freezing orders and confiscation orders issued within the framework of proceedings in civil or administrative matters.

Article 2

Definitions

For the purpose of this Regulation, the following definitions apply:

(1)   ‘freezing order’ means a decision issued or validated by an issuing authority in order to prevent the destruction, transformation, removal, transfer or disposal of property with a view to the confiscation thereof;

(2)  confiscation order’ means a final penalty or measure, imposed by a court following proceedings in relation to a criminal offence, resulting in the final deprivation of property of a natural or legal person;

▌ (3) 'property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property, which the issuing authority considers to be:

(a)  the proceeds of a criminal offence, or its equivalent, whether the full amount of the value or only part of the value of such proceeds;

(b)  the instrumentalities of a criminal offence, or the value of such instrumentalities;

(c)  subject to confiscation through the application in the issuing State of any of the powers of confiscation provided for in Directive 2014/42/EU; or

(d)  subject to confiscation under any other provisions relating to powers of confiscation, including confiscation without a final conviction, under the law of the issuing State, following proceedings in relation to a criminal offence;

(4)  'proceeds' means any economic advantage derived directly or indirectly from a criminal offence, consisting of any form of property and including any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;

(5)  'instrumentalities' means any property used or intended to be used, in any manner, wholly or partially, to commit a criminal offence ▌;

(6)  'issuing State’ means the Member State in which a freezing order or confiscation order is issued ▌;

(7)  ‘executing State’ means the Member State to which a freezing order or confiscation order is transmitted for the purpose of recognition and execution;

(8)  ‘issuing authority’ means:

(a)  in respect of a freezing order:

(i)  a judge, court, ▌or public prosecutor competent in the case concerned; or

(ii)  another competent authority which is designated as such by the issuing State and which is competent in criminal matters to order the freezing of property or to execute a freezing order in accordance with national law. In addition, before it is transmitted to the executing authority, the freezing order shall be validated by a judge, court or public prosecutor in the issuing State after examining its conformity with the conditions for issuing such an order under this Regulation ▌. Where the order has been validated by a judge, court or public prosecutor, that other competent authority may also be regarded as an issuing authority for the purposes of transmitting the order;

(b)  in respect of a confiscation order, an authority which is designated as such by the issuing State and which ▌ is competent in criminal matters to execute a confiscation order issued by a court in accordance with national law;

(9)  ‘executing authority’ means an authority that is competent to recognise a freezing order or confiscation order and to ensure its execution in accordance with this Regulation and the procedures applicable under national law for the freezing and confiscation of property; where such procedures require that a court register the order and authorise its execution, the executing authority includes the authority that is competent to request such registration and authorisation;

(10)  ‘affected person means the natural or legal person against whom a freezing order or confiscation order is issued, or the natural or legal person that owns the property that is covered by that order, as well as any third parties whose rights in relation to that property are directly prejudiced by that order under the law of the executing State.

Article 3

Criminal offences

1.  Freezing orders or confiscation orders shall be executed without verification of the double criminality of the acts giving rise to such orders, where those acts are punishable in the issuing State by a custodial sentence of a maximum of at least three years and constitute one or more of the following criminal offences under the law of the issuing State:

(1)  participation in a criminal organisation;

(2)  terrorism;

(3)  trafficking in human beings;

(4)  sexual exploitation of children and child pornography;

(5)  illicit trafficking in narcotic drugs and psychotropic substances;

(6)  illicit trafficking in weapons, munitions and explosives;

(7)  corruption;

(8)  fraud, including fraud and other criminal offences affecting the Union’s financial interests as defined in Directive (EU) 2017/1371 of the European Parliament and of the Council(17);

(9)  laundering of the proceeds of crime;

(10)  counterfeiting currency, including the euro;

(11)  computer-related crime;

(12)  environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties;

(13)  facilitation of unauthorised entry and residence;

(14)  murder or grievous bodily injury;

(15)  illicit trade in human organs and tissue;

(16)  kidnapping, illegal restraint or hostage-taking;

(17)  racism and xenophobia;

(18)  organised or armed robbery;

(19)  illicit trafficking in cultural goods, including antiques and works of art;

(20)  swindling;

(21)  racketeering and extortion;

(22)  counterfeiting and piracy of products;

(23)  forgery of administrative documents and trafficking therein;

(24)  forgery of means of payment;

(25)  illicit trafficking in hormonal substances and other growth promoters;

(26)  illicit trafficking in nuclear or radioactive materials;

(27)  trafficking in stolen vehicles;

(28)  rape;

(29)  arson;

(30)  crimes within the jurisdiction of the International Criminal Court;

(31)  unlawful seizure of aircraft or ships;

(32)  sabotage.

2.  For criminal offences other than those referred to in paragraph 1, the executing State may make the recognition and execution of a freezing order or confiscation order subject to the condition that the acts giving rise to the freezing order or confiscation order constitute a criminal offence under the law of the executing State, whatever its constituent elements or however it is described under the law of the issuing State.

CHAPTER II

TRANSMISSION, RECOGNITION AND EXECUTION OF FREEZING ORDERS

Article 4

Transmission of freezing orders

1.  A freezing order shall be transmitted by means of a freezing certificate. The issuing authority shall transmit the freezing certificate provided for in Article 6 directly to the executing authority or, where applicable, to the central authority referred to in Article 24(2), by any means capable of producing a written record under conditions that allow the executing authority to establish the authenticity of the freezing certificate.

2.  Member States may make a declaration stating that, when a freezing certificate is transmitted to them with a view to the recognition and execution of a freezing order, the issuing authority is to transmit the original freezing order or a certified copy thereof together with the freezing certificate. However, only the freezing certificate has to be translated, in accordance with Article 6(2).

3.  Member States may make the declaration referred to in paragraph 2 prior to the date of application of this Regulation or at a later date. Member States may withdraw such a declaration at any time. Member States shall inform the Commission when they make or withdraw such a declaration. The Commission shall make such information available to all Member States and to the EJN .

4.  As regards a freezing order concerning an amount of money, where the issuing authority has reasonable grounds to believe that the person against whom the freezing order was issued has property or income in a Member State, it shall transmit the freezing certificate to that Member State.

5.  As regards a freezing order concerning specific items of property, where the issuing authority has reasonable grounds to believe that such items are located in a Member State, it shall transmit the freezing certificate to that Member State.

6.  The freezing certificate shall:

(a)  be accompanied by a confiscation certificate transmitted in accordance with Article 14; or

(b)  contain an instruction that the property is to remain frozen in the executing State pending the transmission and execution of the confiscation order in accordance with Article 14, in which case the issuing authority shall indicate the estimated date of this transmission in the freezing certificate.

7.  The issuing authority shall inform the executing authority if it is aware of any affected persons. The issuing authority shall also provide, upon request, the executing authority with any information relevant to any claim that such affected persons may have in relation to the property, including any information identifying those persons.

8.  Where, despite the information having been made available in accordance with Article 24(3), the competent executing authority is unknown to the issuing authority, the issuing authority shall make all necessary inquiries, including through the contact points of the EJN, in order to determine which authority is competent for the recognition and execution of the freezing order.

9.  Where the authority in the executing State which receives a freezing certificate is not competent to recognise the freezing order or take the measures necessary for its execution, that authority shall immediately transmit the freezing certificate to the competent executing authority in its Member State and shall inform the issuing authority accordingly.

Article 5

Transmission of a freezing order to one or more executing States

1.  A freezing certificate shall only be transmitted pursuant to Article 4 to one executing State at any one time, unless paragraph 2 or 3 of this Article applies.

2.  Where a freezing order concerns specific items of property, the freezing certificate may be transmitted to more than one executing State at the same time where:

(a)  the issuing authority has reasonable grounds to believe that different items of property covered by the freezing order are located in different executing States; or

(b)  the freezing of a specific item of property covered by the freezing order would require action in more than one executing State.

3.  Where a freezing order concerns an amount of money, the freezing certificate may be transmitted to more than one executing State at the same time where the issuing authority considers that there is a specific need to do so, in particular where the estimated value of the property which may be frozen in the issuing State and in any one executing State is not likely to be sufficient for the freezing of the full amount covered by the freezing order.

Article 6

Standard freezing certificate

1.  In order to transmit a freezing order, the issuing authority shall complete the freezing certificate set out in Annex I, shall sign it and shall certify its content as being accurate and correct.

2.  The issuing authority shall provide the executing authority with a translation of the freezing certificate in an official language of the executing State or in any other language that the executing State will accept in accordance with paragraph 3.

3.  Any Member State may, at any time, state in a declaration submitted to the Commission that it will accept translations of freezing certificates in one or more official languages of the Union other than the official language or languages of that Member State. The Commission shall make the declarations available to all Member States and to the EJN.

Article 7

Recognition and execution of freezing orders

1.  The executing authority shall recognise a freezing order transmitted in accordance with Article 4 and shall take the measures necessary for its execution in the same way as for a domestic freezing order issued by an authority of the executing State, unless the executing authority invokes one of the grounds for non-recognition and non-execution provided for in Article 8 or one of the grounds for postponement provided for in Article 10.

2.  The executing authority shall report to the issuing authority on the execution of the freezing order, including a description of the property frozen and, where available, providing an estimate of its value. Such reporting shall be carried out using any means capable of producing a written record, without undue delay once the executing authority has been informed that the freezing order has been executed.

Article 8

Grounds for non-recognition and non-execution of freezing orders

1.  The executing authority may decide not to recognise or execute a freezing order only where:

(a)  executing the freezing order would be contrary to the principle of ne bis in idem;

(b)  there is a privilege or immunity under the law of the executing State that would prevent the freezing of the property concerned or there are rules on the determination or limitation of criminal liability that relate to the freedom of the press or the freedom of expression in other media that prevent the execution of the freezing order;

(c)  the freezing certificate is incomplete or manifestly incorrect and has not been completed following the consultation referred to in paragraph 2;

(d)  the freezing order relates to a criminal offence committed, wholly or partially, outside the territory of the issuing State and, wholly or partially, in the territory of the executing State and the conduct in connection with which the freezing order was issued does not constitute a criminal offence under the law of the executing State;

(e)  in a case falling under Article 3(2), the conduct in connection with which the freezing order was issued does not constitute a criminal offence under the law of the executing State; however, in cases that involve taxes or duties or customs and exchange regulations, the recognition or execution of the freezing order shall not be refused on the grounds that the law of the executing State does not impose the same kind of taxes or duties or does not provide for the same type of rules as regards taxes and duties or the same type of customs and exchange regulations as the law of the issuing State;

(f)  in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the freezing order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.

2.  In any of the cases referred to in paragraph 1, before deciding not to recognise or execute the freezing order, whether wholly or partially, the executing authority shall consult the issuing authority by any appropriate means and where appropriate, shall request the issuing authority to supply any necessary information without delay.

3.  Any decision not to recognise or execute the freezing order shall be taken without delay and notified immediately to the issuing authority by any means capable of producing a written record.

4.  Where the executing authority has recognised a freezing order, but it becomes aware, during the execution thereof, that one of the grounds for non-recognition or non-execution applies, it shall immediately contact the issuing authority by any appropriate means in order to discuss the appropriate measures to take. On that basis, the issuing authority may decide to withdraw the freezing order. If, following such discussions, no solution has been reached, the executing authority may decide to stop the execution of the freezing order.

Article 9

Time limits for recognition and execution of freezing orders

1.  The executing authority shall take the decision on the recognition and execution of the freezing order and execute that order without delay and with the same speed and priority as for a similar domestic case after the executing authority has received the freezing certificate.

2.  Where the issuing authority has indicated in the freezing certificate that the execution of the freezing order is to be carried out on a specific date, the executing authority shall take as full account as possible thereof. Where the issuing authority has indicated that coordination is needed between the Member States involved, the executing authority and the issuing authority shall coordinate with each other in order to agree on the date of execution of the freezing order. Where no agreement can be reached, the executing authority shall decide on the date of execution of the freezing order, taking as full account as possible of the interests of the issuing authority.

3.  Without prejudice to paragraph 5, where the issuing authority has stated in the freezing certificate that immediate freezing is necessary since there are legitimate grounds to believe that the property in question will imminently be removed or destroyed, or in view of any investigative or procedural needs in the issuing State, the executing authority shall decide on the recognition of the freezing order no later than 48 hours after it has been received by the executing authority. No later than 48 hours after such a decision has been taken, the executing authority shall take the concrete measures necessary to execute the order.

4.  The executing authority shall communicate, without delay and by any means capable of producing a written record, the decision on the recognition and execution of the freezing order to the issuing authority .

5.  Where it is not possible, in a specific case, to meet the time limits set out in paragraph 3, the executing authority shall immediately inform the issuing authority by any means, giving the reasons for which it was not possible to meet those time limits, and shall consult with the issuing authority on an appropriate schedule for the recognition or the execution of the freezing order.

6.  The expiry of the time limits set out in paragraph 3 shall not relieve the executing authority of its obligation to take a decision on the recognition and execution of the freezing order, and to execute that order, without delay.

Article 10

Postponement of the execution of freezing orders

1.  The executing authority may postpone the execution of a freezing order transmitted in accordance with Article 4 where:

(a)  its execution might damage an ongoing criminal investigation, in which case the execution of the freezing order may be postponed until such time as the executing authority considers reasonable;

(b)  the property is already the subject of an existing freezing order, in which case the execution of the freezing order may be postponed until that existing order is withdrawn; or

(c)  the property is already subject to an existing order issued in the course of other proceedings in the executing State, in which case the execution of the freezing order may be postponed until that existing order is withdrawn; however, this point shall only apply where the existing order would have priority, under national law, over subsequent national freezing orders in criminal matters.

2.  The executing authority shall, immediately and by any means capable of producing a written record, report to the issuing authority on the postponement of the execution of the freezing order , specifying the grounds for the postponement and, where possible, the expected duration of the postponement.

3.  As soon as the grounds for postponement have ceased to exist, the executing authority shall immediately take the measures necessary for the execution of the freezing order and inform the issuing authority thereof by any means capable of producing a written record.

Article 11

Confidentiality

1.  During the execution of a freezing order, the issuing authority and the executing authority shall take due account of the confidentiality of the investigation in the context of which the freezing order was issued.

2.  Except to the extent necessary to execute the freezing order, the executing authority shall guarantee the confidentiality of the facts and substance of the freezing order in accordance with its national law. Without prejudice to paragraph 3 of this Article, as soon as the freezing order has been executed, the executing authority shall inform the affected persons thereof in accordance with Article 32.

3.  To protect ongoing investigations, the issuing authority may request the executing authority to postpone informing affected persons of the execution of the freezing order under Article 32. As soon as it is no longer necessary to postpone informing affected persons in order to protect ongoing investigations, the issuing authority shall inform the executing authority accordingly so that the executing authority can inform the affected persons of the execution of the freezing order in accordance with Article 32.

4.  If the executing authority cannot comply with the confidentiality obligations under this Article, it shall notify the issuing authority immediately and, where possible, prior to the execution of the freezing order.

Article 12

Duration of freezing orders

1.  The property subject to a freezing order shall remain frozen in the executing State until the competent authority of that state has responded definitively to a confiscation order transmitted in accordance with Article 14 or until the issuing authority has informed the executing authority of any decision or measure that renders the order unenforceable or causes it to be withdrawn in accordance with Article 27(1).

2.  The executing authority may, taking into account the circumstances of the case, make a reasoned request to the issuing authority to limit the period for which the property is to be frozen. Such a request, including any relevant supporting information, shall be transmitted by any means capable of producing a written record under conditions that allow the issuing authority to establish the authenticity of the request. When examining such a request, the issuing authority shall take all interests into account, including those of the executing authority. The issuing authority shall respond to the request as soon as possible. If the issuing authority does not agree to the limitation, it shall inform the executing authority of the reasons thereof. In such a case, the property shall remain frozen in accordance with paragraph 1. If the issuing authority does not respond within six weeks of receiving the request, the executing authority shall no longer be obliged to execute the freezing order.

Article 13

Impossibility to execute a freezing order

1.  Where an executing authority considers that it is impossible to execute a freezing order, it shall notify the issuing authority thereof without delay.

2.  Before notifying the issuing authority in accordance with paragraph 1, the executing authority, where appropriate, shall consult with the issuing authority.

3.  The non-execution of a freezing order under this Article may only be justified where the property:

(a)  has already been confiscated;

(b)  has disappeared;

(c)  has been destroyed;

(d)  cannot be found in the location indicated on the freezing certificate; or

(e)  cannot be found because its location has not been indicated in a sufficiently precise manner, despite the consultations referred to in paragraph 2.

4.  As regards the situations under points (b), (d) and (e) of paragraph 3, where the executing authority subsequently obtains information that allows it to locate the property, the executing authority may execute the freezing order without a new freezing certificate having to be transmitted, provided that, prior to executing the freezing order, the executing authority has verified with the issuing authority that the freezing order is still valid.

5.  Notwithstanding paragraph 3, where the issuing authority has indicated that property of equivalent value could be frozen, the executing authority shall not be required to execute the freezing order where one of the circumstances set out in paragraph 3 exists and there is no property of equivalent value that can be frozen.

CHAPTER III

TRANSMISSION, RECOGNITION AND EXECUTION OF CONFISCATION ORDERS

Article 14

Transmission of confiscation orders

1.  A confiscation order ▌ shall be transmitted by means of a confiscation certificate. The issuing authority shall transmit the confiscation certificate provided for in Article 17 directly to the executing authority or, where applicable, to the central authority referred to in Article 24(2), by any means capable of producing a written record under conditions that allow the executing authority to establish the authenticity of the confiscation certificate.

2.  Member States may make a declaration stating that, when a confiscation certificate is transmitted to them with a view to the recognition and execution of a confiscation order, the issuing authority is to transmit the original confiscation order or a certified copy thereof together with the confiscation certificate. However, only the confiscation certificate has to be translated, in accordance with Article 17(2).

3.  Member States may make the declaration referred to in paragraph 2 prior to the date of application of this Regulation, or at a later date. Member States may withdraw such a declaration at any time. Member States shall inform the Commission when they make or withdraw such a declaration. The Commission shall make such information available to all Member States and to the EJN.

4.  As regards a confiscation order concerning an amount of money, where the issuing authority has reasonable grounds to believe that the person against whom the confiscation order was issued has property or income in a Member State, it shall transmit the confiscation certificate to that Member State.

5.   As regards a confiscation order concerning specific items of property, where the issuing authority has reasonable grounds to believe that such items are located in a Member State, it shall transmit the confiscation certificate to that Member State.

6.  The issuing authority shall inform the executing authority if it is aware of any affected persons. The issuing authority shall also, upon request, provide the executing authority with any information relevant to any claim that such affected persons may have in relation to the property, including any information identifying those persons.

7.  Where, despite the information having been made available in accordance with Article 24(3), the competent executing authority is unknown to the issuing authority, the issuing authority shall make all necessary inquiries, including through the contact points of the EJN, in order to determine which authority is competent for the recognition and execution of the confiscation order.

8.  Where the authority in the executing State which receives a confiscation certificate is not competent to recognise the confiscation order or to take the measures necessary ▌for its execution, that authority shall immediately transmit the confiscation certificate to the competent executing authority in its Member State and shall inform the issuing authority accordingly.

Article 15

Transmission of a confiscation order to one or more executing States

1.  A confiscation certificate shall only be transmitted, pursuant to Article 14, to one executing State at any one time, unless paragraph 2 or 3 of this Article applies.

2.  Where a confiscation order concerns specific items of property, the confiscation certificate may be transmitted to more than one executing State at the same time where:

(a)  the issuing authority has reasonable grounds to believe that different items of property covered by the confiscation order are located in different executing States; or

(b)  the confiscation of a specific item of property covered by the confiscation order would require action in ▌more than one executing State.

3.  Where a confiscation order concerns an amount of money, the confiscation certificate may be transmitted to more than one executing State at the same time where the issuing authority considers that there is a specific need to do so, in particular where:

(a)  the property concerned has not been frozen under this Regulation; or

(b)  the estimated value of the property which may be confiscated in the issuing State and in any one executing State is not likely to be sufficient for the confiscation of the full amount covered by the confiscation order.

Article 16

Consequences of transmission of confiscation orders

1.  The transmission of a confiscation order, in accordance with Articles 14 and 15, shall not restrict the right of the issuing State to execute the order.

2.  The total amount obtained from the execution of a confiscation order concerning an amount of money shall not exceed the maximum amount specified in that order, regardless of whether that order was transmitted to one or to several executing States.

3.  The issuing authority shall immediately inform the executing authority by any means capable of producing a written record where:

(a)  it considers that there is a risk that confiscation in excess of the maximum amount may occur, in particular on the basis of information received from the executing authority pursuant to point (b) of Article 21(1)▌;

(b)  all or a part of the ▌confiscation order has been executed in the issuing State or in a different executing State, in which case it shall specify the amount for which the ▌confiscation order has not yet been executed; or

(c)  after the transmission of a confiscation certificate in accordance with Article 14, an authority of the issuing State receives any sum of money which has been paid ▌in respect of the confiscation order.

Where point (a) of the first subparagraph applies, the issuing authority shall inform the executing authority as soon as possible when the risk referred to in that point ceases to exist.

Article 17

Standard confiscation certificate

1.  In order to transmit a confiscation order, the issuing authority shall complete the confiscation certificate set out in Annex II, shall sign it and shall certify its content as being accurate and correct.

2.  The issuing authority shall provide the executing authority with a translation of the confiscation certificate in an official language of the executing State or in any other language ▌that the executing State will accept in accordance with paragraph 3.

3.  Any Member State may, at any time, state in a declaration submitted to the Commission that it will accept translations of confiscation certificates in one or more official languages of the Union other than the official language or languages of that Member State. The Commission shall make the declarations available to all Member States and to the EJN.

Article 18

Recognition and execution of confiscation orders

1.  The executing authority shall ▌ recognise a confiscation order transmitted in accordance with Article 14 and shall take the measures necessary ▌for its execution in the same way as for a domestic confiscation order issued by an authority of the executing State, unless the executing authority invokes one of the grounds for non-recognition and non-execution provided for in Article 19 or one of the grounds for postponement provided for in Article 21.

2.  Where a confiscation order concerns a specific item of property, the issuing authority and executing authority may, where ▌the law of the issuing State so provides, agree that confiscation in the executing State can be carried out through the confiscation of a sum of money corresponding to the value of the property that was to be confiscated.

3.  Where a confiscation order concerns an amount of money and the executing authority is unable to obtain payment of that amount, it shall execute the confiscation order in accordance with paragraph 1 on any item of property that is available for that purpose. Where necessary, the executing authority shall convert the amount of money to be confiscated into the currency of the executing State at the daily euro exchange rate as published in the C series of the Official Journal of the European Union for the date on which the confiscation order was issued..

4.  Any part of the amount of money that is recovered pursuant to the confiscation order in any State other than the executing State shall be deducted in full from the amount to be confiscated in the executing State.

5.  Where the issuing authority has issued a confiscation order but has not issued a freezing order, the executing authority may, as part of the measures provided for in paragraph 1, decide to freeze the property concerned of its own motion in accordance with its national law with a view to subsequent execution of the confiscation order. In such a case, the executing authority shall inform the issuing authority without delay and, where possible, prior to freezing the property concerned.

6.  As soon as the execution of the confiscation order has been completed, the executing authority shall inform, by any means capable of producing a written record, the issuing authority of the results of the execution.

Article 19

Grounds for non-recognition and non-execution of confiscation orders

1.  The executing authority may decide not to recognise or execute a confiscation order only where:

(a)  executing the ▌ confiscation order would be contrary to the principle of ne bis in idem;

(b)  there is a privilege or immunity under the law of the executing State that would prevent the confiscation of the property concerned or there are rules on the determination or limitation of criminal liability that relate to the freedom of the press or the freedom of expression in other media that prevent the execution of the confiscation order;

(c)  the confiscation certificate is incomplete or manifestly incorrect and has not been completed following the consultation referred to in paragraph 2;

(d)  the ▌confiscation order relates to a criminal offence committed, wholly or partially, outside the territory of the issuing State and, wholly or partially, in the territory of the executing State and the conduct in connection with which the ▌ confiscation order was issued does not constitute a criminal offence under the law of the executing State;

(e)  the rights of affected persons would make it impossible under the law of the executing State to execute the ▌confiscation order, including where that impossibility is a consequence of the application of legal remedies in accordance with Article 33;

(f)  ▌in a case falling under Article 3(2), the conduct in connection▌with which the ▌confiscation order was issued does not constitute a criminal offence under the law of the executing State; however, in cases that involve taxes or duties or customs and exchange regulations, the recognition or execution of the confiscation order shall not be refused on the grounds that the law of the executing State does not impose the same kind of taxes or duties or does not provide for the same type of rules as regards taxes and duties or the same type of customs and exchange regulations as the law of the issuing State;

(g)  according to the confiscation certificate, the person against whom the confiscation order was issued did not appear in person at the trial that resulted in the confiscation order linked to a final conviction, unless the confiscation certificate states that ▌, in accordance with further procedural requirements defined in the law of the issuing State, the person:

(i)  was summoned in person in due time ▌and was thereby informed of the scheduled date and place of the trial that resulted in the confiscation order, or ▌actually received, by other means, official information of the scheduled date and place of that trial in such a manner that it was established unequivocally ▌that that person was aware of the scheduled trial, and was informed in due time that such a confiscation order could be handed down if that person did not appear at the trial;

(ii)  being aware of the scheduled trial, had given a mandate to a lawyer, who was either appointed by the person concerned or by the State, to defend that person at the trial and was actually defended by that lawyer at the trial; or

(iii)  after having been served with the confiscation order and having been expressly informed of the right to a retrial ▌ or an appeal ▌, in which the person would have the right to participate and which would allow a re-examination of the merits of the case including an examination of fresh evidence ▌, and which could lead to the original confiscation order being reversed, expressly stated that he or she did not contest the confiscation order, or did not request a retrial or appeal within the applicable time limits;

(h)  in exceptional situations, there are substantial grounds to believe, on the basis of specific and objective evidence, that the execution of the confiscation order would, in the particular circumstances of the case, entail a manifest breach of a relevant fundamental right as set out in the Charter, in particular the right to an effective remedy, the right to a fair trial or the right of defence.

2.  In any of the cases referred to in paragraph 1, before deciding not to recognise or execute the confiscation order, whether wholly or partially, the executing authority shall consult the issuing authority by any appropriate means and, where appropriate, shall request the issuing authority to supply any necessary information without delay.

3.  Any decision not to recognise or execute the confiscation order shall be taken without delay and notified immediately to the issuing authority by any means capable of producing a written record.

Article 20

Time limits for recognition and execution of confiscation orders

1.  ▌The executing authority shall take the decision on the recognition and execution of the confiscation order without delay and, without prejudice to paragraph 4, no later than 45 days after the executing authority has received the confiscation certificate.

2.   The executing authority shall communicate, without delay and by any means capable of producing a written record, the decision on the recognition and execution of the confiscation order to the issuing authority .

3.   Unless grounds for postponement under Article 21 exist, the executing authority shall take the concrete measures necessary to execute the confiscation order without delay and, at least, with the same speed and priority as for a similar domestic case.

4.   Where it is not possible, in a specific case, to meet the time limit set out in paragraph 1, the executing authority shall ▌ inform the issuing authority without delay by any means, giving the reasons for which it was not possible to meet that time limit, and shall consult with the issuing authority on an appropriate schedule for the recognition and execution of the confiscation order. ▌

5.  The expiry of the time limit set out in paragraph 1 shall not relieve the executing authority of its obligation to take a decision on the recognition and execution of the confiscation order, and to execute that order, without delay.

Article 21

Postponement of the execution of confiscation orders

1.  The executing authority may postpone the recognition or execution of a confiscation order transmitted in accordance with Article 14 where:

(a)  its execution might damage an ongoing criminal investigation, in which case the execution of the confiscation order may be postponed until such time as the executing authority considers reasonable;

(b)  as regards a confiscation order concerning an amount of money, it considers that there is a risk that the total amount obtained from the execution of that confiscation order might considerably exceed the amount specified in the confiscation order because of the simultaneous execution of the confiscation order in more than one Member State;

(c)  the property is already the subject of ongoing confiscation proceedings in the executing State; or

(d)  a legal remedy as referred to in Article 33 has been invoked.

2.   Notwithstanding Article 18(5), for as long as the execution of a confiscation order is postponed, the competent authority of the executing State shall take all the measures it would take in a similar domestic case to prevent the property from no longer being available for the purpose of the execution of the confiscation order.

3.   The executing authority shall, without delay and by any means capable of producing a written record, ▌ ▌ report to the issuing authority on the postponement of the execution of the confiscation order, specifying the grounds for the postponement and, where possible, the expected duration of the postponement.

4.   As soon as the grounds for postponement have ceased to exist ▌, the executing authority shall take, without delay, the measures necessary for the execution of the confiscation order and inform the issuing authority thereof by any means capable of producing a written record.

Article 22

Impossibility to execute a confiscation order

1.  Where an executing authority considers that it is impossible to execute a confiscation order, it shall notify the issuing authority thereof without delay.

2.  Before notifying the issuing authority in accordance with paragraph 1, the executing authority, where appropriate, shall consult with the issuing authority, taking into account also the possibilities provided for under Article 18(2) or (3).

3.  The non-execution of a confiscation order under this Article may only be justified where the property:

(a)  has already been confiscated;

(b)  has disappeared;

(c)  has been destroyed;

(d)  cannot be found in the location indicated on the confiscation certificate; or

(e)  cannot be found because its location has not been indicated in a sufficiently precise manner, despite the consultations referred to in paragraph 2.

4.  As regards the situations under points (b), (d) and (e) of paragraph 3, where the executing authority subsequently obtains information that allows it to locate the property, the executing authority may execute the confiscation order without a new confiscation certificate having to be transmitted, provided that, prior to executing the confiscation order, the executing authority has verified with the issuing authority that the confiscation order is still valid.

5.  Notwithstanding paragraph 3, where the issuing authority has indicated that property of equivalent value could be confiscated, the executing authority shall not be required to execute the confiscation order where one of the circumstances set out in paragraph 3 exists and there is no property of equivalent value that can be confiscated.

CHAPTER IV

GENERAL PROVISIONS

Article 23

Law governing execution

1.  The execution of the freezing order or confiscation order shall be governed by the law of the executing State and its authorities shall be solely competent to decide on the procedures for its execution and to determine all the measures relating thereto.

2.  A freezing order or confiscation order issued against a legal person shall be executed even where the executing State does not recognise the principle of criminal liability of legal persons.

3.  Notwithstanding Article 18(2) and (3), the executing State may not impose alternative measures ▌to the freezing order transmitted pursuant to Article 4 or confiscation order transmitted pursuant to Articles 14 without the consent of the issuing State ▌.

Article 24

Notification of the competent authorities

1.  By [date of application of this Regulation], each Member State shall inform the Commission of the authority or authorities as defined in points (8) and (9) of Article 2 that are competent under its law in the cases where that Member State is, the issuing State or the executing State, respectively.

2.  Where necessary, due to the structure of its internal legal system, each Member State may designate one or more central authorities to be responsible for the administrative transmission and reception of freezing certificates and confiscation certificates and for assisting its competent authorities. Each Member State shall inform the Commission of any such authority that it so designates.

3.  The Commission shall make the information received under this Article available to all Member States and to the EJN.

Article 25

Communication

1.  Where necessary, the issuing authority and the executing authority shall consult each other ▌ without delay to ensure the efficient application of this Regulation, using any appropriate means of communication.

2.  All communications, including those intended to deal with difficulties concerning the transmission or authentication of any document needed for the execution of the freezing order or confiscation order, shall be made directly between the issuing authority and the executing authority and, where a Member State has designated a central authority in accordance with Article 24(2), shall be made, where appropriate, with the involvement of that central authority.

Article 26

Multiple orders

1.  If ▌ the executing authority receives two or more freezing orders or confiscation orders from different Member States issued against the same ▌person and that person ▌ does not have sufficient property in the executing State to satisfy all of the orders, or if the executing authority receives two or more freezing orders or confiscation orders in respect of the same specific item of property, the executing authority shall decide which of the orders to execute in accordance with the law of the executing State, without prejudice to the possibility of postponing the execution of a confiscation order in accordance with Article 21.

2.  In taking its decision, the executing authority shall give priority to the interests of victims where possible. It shall also take all other relevant circumstances into account, including the following:

(a)  whether the assets are already frozen;

(b)  the dates of the respective orders and their dates of transmission ▌;

(c)  the ▌ seriousness of the criminal offence concerned; and

(d)  the place ▌where the criminal offence was committed.

Article 27

Termination of the execution of a freezing order or confiscation order

1.  Where the freezing order or confiscation order can no longer be executed or is no longer valid, the issuing authority shall withdraw the freezing order or confiscation order without delay.

2.  The issuing authority shall immediately inform the executing authority, by any means capable of producing a written record, of the withdrawal of a freezing order or confiscation order and of any decision or measure that causes a freezing order or confiscation order to be withdrawn.

3.  The executing authority shall terminate the execution of the freezing order or confiscation order, in so far as the execution has not yet been completed, as soon as it has been informed by the issuing authority in accordance with paragraph 2. The executing authority shall send, without undue delay and by any means capable of producing a written record, a confirmation of the termination to the issuing State.

Article 28

Management and disposal of frozen and confiscated property

1.  The management of frozen and confiscated property shall be governed by the law of the executing State.

2.  The executing State shall manage the frozen or confiscated property with a view to preventing its depreciation in value. To that end, the executing State, having regard to Article 10 of Directive 2014/42/EU, shall be able to sell or transfer frozen property.

3.  Frozen property and money obtained after selling such property in accordance with paragraph 2 shall remain in the executing State until a confiscation certificate has been transmitted and the confiscation order has been executed, without prejudice to the possibility of restituting property under Article 29.

4.  The executing State shall not be required to sell or return specific items covered by a confiscation order, where those items constitute cultural objects, as defined in point (1) of Article 2 of Directive 2014/60/EU of the European Parliament and of the Council(18). This Regulation shall not affect the obligation to return cultural objects under that Directive.

Article 29

Restitution of frozen property to the victim

1.  Where the issuing authority or another competent authority of the issuing State has issued a decision, in accordance with its national law, to restitute frozen property to the victim, the issuing authority shall include information on that decision in the freezing certificate or communicate information on that decision to the executing authority at a later stage.

2.  Where an executing authority has been informed of a decision to restitute frozen property to the victim as referred to in paragraph 1, it shall take the necessary measures to ensure that, where the property concerned has been frozen, that property is restituted as soon as possible to the victim, in accordance with the procedural rules of the executing State, where necessary via the issuing State, provided that:

(a)  the victim’s title to the property is not contested;

(b)  the property is not required as evidence in criminal proceedings in the executing State; and

(c)  the rights of affected persons are not prejudiced.

The executing authority shall inform the issuing authority where property is transferred directly to the victim.

3.  Where an executing authority is not satisfied that the conditions of paragraph 2 have been met, it shall consult with the issuing authority without delay and by any appropriate means in order to find a solution. If no solution can be found, the executing authority may decide not to restitute the frozen property to the victim.

Article 30

Disposal of confiscated property or money obtained after selling such property

1.  Where the issuing authority or another competent authority of the issuing State has issued a decision, in accordance with its national law, either to restitute confiscated property to the victim or to compensate the victim, the issuing authority shall include information on that decision in the confiscation certificate or communicate, at a later stage, information on that decision to the executing authority.

2.  Where an executing authority has been informed of a decision to restitute confiscated property to the victim as referred to in paragraph 1, it shall take the necessary measures to ensure that, where the property concerned has been confiscated, that property is restituted as soon as possible to the victim, where necessary via the issuing State. The executing authority shall inform the issuing authority where property is transferred directly to the victim.

3.  Where it is not possible for the executing authority to restitute the property to the victim in accordance with paragraph 2, but money has been obtained as a result of the execution of a confiscation order in relation to that property, the corresponding sum shall be transferred to the victim for the purposes of restitution, where necessary via the issuing State. The executing authority shall inform the issuing authority where money is transferred directly to the victim. Any remaining property shall be disposed of in accordance with paragraph 7.

4.  Where an executing authority has been informed of a decision to compensate the victim as referred to in paragraph 1, and money has been obtained as a result of the execution of a confiscation order, the corresponding sum, in so far as it does not exceed the amount indicated in the certificate, shall be transferred to the victim for the purposes of compensation, where necessary via the issuing State. The executing authority shall inform the issuing authority where money is transferred directly to the victim. Any remaining property shall be disposed of in accordance with paragraph 7.

5.  Where proceedings to restitute property to, or compensate, the victim are pending in the issuing State, the issuing authority shall inform the executing authority accordingly. The executing State shall refrain from disposing of the confiscated property until the information on the decision to restitute property to, or compensate, the victim has been communicated to the executing authority, even in cases where the confiscation order has already been executed.

6.  Without prejudice to paragraphs 1 to 5, property other than money that has been obtained as a result of the execution of the confiscation order shall be disposed of in accordance with the following rules:

(a)  the property may be sold, in which case the proceeds of the sale are to be disposed of in accordance with paragraph 7;

(b)  the property may be transferred to the issuing State provided that, where the confiscation order covers an amount of money, the issuing authority has given its consent to the transfer of property to the issuing State ;

(c)  subject to point (d), if it is not possible to apply point (a) or (b), the property may be disposed of in another way in accordance with the law of the executing State; or

(d)  the property may be used for public interest or social purposes in the executing State in accordance with its law, subject to the consent of the issuing State.

7.  Unless the confiscation order is accompanied by a decision to restitute property to the victim or to compensate the victim in accordance with paragraphs 1 to 5, or unless ▌otherwise agreed by the Member States involved, the executing State shall dispose of the money obtained as a result of the execution of a confiscation order ▌ as follows:

(a)  if the amount obtained from the execution of the confiscation order is equal to or less than EUR 10 000, the amount shall accrue to the executing State; or

(b)  if the amount obtained from the execution of the confiscation order is more than EUR 10 000, 50 % of the amount shall be transferred by the executing State to the issuing State.

Article 31

Costs

1.  Each Member State shall bear its own costs resulting from the application of this Regulation, without prejudice to the provisions relating to the disposal of confiscated property set out in Article 28.

2.   The executing authority may submit a proposal to the issuing authority that the costs be shared where it appears, either before or after the execution of a freezing order or confiscation order, that the execution of the order would entail large or exceptional costs.

Such proposals shall be accompanied by a detailed breakdown of the costs incurred by the executing authority. Following such a proposal the issuing authority and the executing authority shall consult with each other. Where appropriate, Eurojust may facilitate such consultations.

The consultations, or at least the result thereof, shall be recorded by any means capable of producing a written record.

Article 32

Obligation to inform affected persons

1.  Without prejudice to Article 11, following the execution of a freezing order or following the decision to recognise and execute a confiscation order, the executing authority shall inform, to the extent possible, the affected persons known to it of such execution and of such decision without delay, in accordance with procedures under its national law.

2.  The information to be provided in accordance with paragraph 1 shall specify the name of the issuing authority and the legal remedies available under the law of the executing State. The information shall also specify, at least in a brief manner, the reasons for the order.

3.  Where appropriate, the executing authority may ask the issuing authority for assistance in carrying out the tasks referred to in paragraph 1.

Article 33

Legal remedies in the executing State against the recognition and execution of a freezing order or confiscation order

1.  Affected persons shall have the right to effective legal remedies in the executing State against the decision on the recognition and execution of freezing orders pursuant to Article 7 and confiscation orders pursuant to Article 18. The right to a legal remedy shall be invoked before a court in the executing State in accordance with its law. As regards confiscation orders, the invocation of a legal remedy may have suspensive effect where the law of the executing State so provides.

2.  The substantive reasons for issuing the freezing order or confiscation order shall not be challenged before a court in the executing State.

3.  The competent authority of the issuing State shall be informed of any legal remedy invoked in accordance with paragraph 1.

4.  This Article is without prejudice to the application in the issuing State of safeguards and legal remedies in accordance with Article 8 of Directive 2014/42/EU.

Article 34

Reimbursement

1.  Where the executing State is liable under its law for damage ▌ to an affected person resulting from the execution of a freezing order transmitted to it pursuant to Article 4 or confiscation order transmitted to it pursuant to Article 14, the issuing State shall reimburse the executing State for any damages paid to the affected person. However, where the issuing State can demonstrate to the executing State that the damage, or any part thereof, was exclusively due to the conduct of the executing State, the issuing and executing States shall agree between themselves on the amount to be reimbursed.

2.  Paragraph 1 is without prejudice to the law of the Member States on claims by natural or legal persons for compensation for damage.

CHAPTER V

FINAL PROVISIONS

Article 35

Statistics

1.  Member States shall regularly collect comprehensive statistics from the relevant authorities. They shall maintain those statistics and shall send them to the Commission each year. Those statistics shall include, in addition to the information referred to in Article 11(2) of Directive 2014/42/EU, the number of freezing orders and confiscation orders received by a Member State from other Member States that were recognised and executed, and the recognition and execution of which were refused ▌.

2.  Each year, Member States shall also send the following statistics to the Commission, where they are available at a central level in the Member State concerned:

(a)  the number of cases in which a victim was compensated or granted restitution of the property obtained by the execution of a confiscation order under this Regulation; and

(b)  the average period required for the execution of freezing orders and confiscation orders under this Regulation.

Article 36

Amendments to the certificate and the form

The Commission is empowered to adopt delegated acts in accordance with Article 37 concerning any amendment to the certificates set out in Annexes I and II. Such amendments shall be in accordance with this Regulation and shall not affect it.

Article 37

Exercise of the delegation

1.  The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.  The ▌ power to adopt delegated acts referred to in Article 36 shall be conferred on the Commission for an indeterminate period of time from …[date of application of this Regulation].

3.  The delegation of power referred to in Article 36 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.  Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5.  As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6.   A delegated act adopted pursuant to Article 36 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months ▌ at the initiative of the European Parliament or of the Council.

Article 38

Reporting and review

By …. [five years from the date of application of this Regulation], and every five years thereafter, the Commission shall submit a report to the European Parliament, to the Council and to the European Economic and Social Committee on the application of this Regulation, including on:

a)  the possibility for Member States to make and withdraw declarations under Articles 4(2) and 14(2);

b)  the interaction between the respect for fundamental rights and the mutual recognition of freezing orders and confiscation orders;

c)  the application of Articles 28, 29 and 30 in relation to the management and disposal of frozen and confiscated property, the restitution of property to victims and the compensation of victims.

Article 39

Replacement

This Regulation replaces the provisions of Framework Decision 2003/577/JHA as regards the freezing of property between the Member States bound by this Regulation as from [date of application of this Regulation].

This Regulation replaces Framework Decision 2006/783/JHA between the Member States bound by this Regulation as from [date of application of this Regulation].

For the Member States bound by this Regulation, references to Framework Decision 2003/577/JHA as regards freezing of property and references to Framework Decision 2006/783/JHA shall be construed as references to this Regulation.

Article 40

Transitional provisions

1.  This Regulation shall apply to freezing certificates and confiscation certificates transmitted on or after … [date of application of this Regulation].

2.  Freezing certificates and confiscation certificates transmitted before … [date of application of this Regulation] shall continue to be governed by Framework Decisions 2003/577/JHA and 2006/783/JHA, between the Member States bound by this Regulation until the final execution of the freezing order or confiscation order.

Article 41

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from [24 months after the date of entry into force of this Regulation].

However, Article 24 shall apply from [date of entry into force of this Regulation].

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at...,

For the European Parliament For the Council

The President The President

ANNEX I

FREEZING CERTIFICATE

SECTION A:

Issuing State: ……………………………………………………………………………..

Issuing authority: ………………………………………………………………………...

Validating authority (if applicable): ……………………………………………………..

Executing State: ………………………………………………………………………….

Executing authority (if known): …………………………………………………………

SECTION B: Urgency and/or requested date for execution

1.  Please indicate the particular grounds for urgency:

□ There are legitimate grounds to believe that the property in question will imminently be removed or destroyed, namely:

……………………………………………………………………………………………………………………………………………………………………………………………………………………

□ Investigative or procedural needs in the issuing State, namely: ……………………………………………………………………………………………………………………………………………………………………………………………………………………

2.  Date for execution:

□ A specific date is requested, namely: …………………….

□ Coordination needed between the Member States involved

Grounds for this request: ……………………………………………………………………………………………………………………………………………………………………………………………………………………

SECTION C: Affected person(s)

Identity of the person(s) against whom the freezing order is issued, or of the person(s) that owns/own the property that is covered by the freezing order (if more than one person is affected, please provide the information for each person):

1.  Identification data

(i)  In the case of natural person(s)

Name:……………………………………………………………………………

First name(s):………………………………………………………………………….

Other relevant name(s), if applicable:…………………………………………………

Aliases, if applicable:…………………………………………………..

Sex: …………………………………………

Nationality:………………………………………………..

Identity number or social security number, if available:..……………………………………

Type and number of the identity document(s) (identity card or passport), if available:

………………………………………………….....................................

Date of birth:…………………………………………….......................

Place of birth:…………………………………………………………

Residence and/or known address (if the address is not known, the last known address):

………………………………………………………………………………………………

Language(s) which the affected person understands ………………………………………………

Please indicate the position of the affected person in the proceedings:

□ person against whom the freezing order is directed

□ person that owns the property that is covered by the freezing order

(ii)  In the case of legal person(s)

Name: ………………………………………………………………………..

Legal form: ………………………………………………………………………..

Shortened name, commonly used name or trading name, if applicable:…………………………..

Registered seat:……………………………………………………………………………….

Registration number:………………………………………………………………………….

Address:…………………………………………………………………..

Name of the representative:……………………………………………………

Please indicate the position of the affected person in the proceedings:

□ person against whom the freezing order is directed

□ person that owns the property that is covered by the freezing order

2.  If different from the address above, please give the location where the freezing order is to be executed:

…………………………………………………………………………………………………………

3.  Third parties whose rights in relation to the property that is covered by the freezing order are directly prejudiced by the order (identity and grounds):

…………………………………………………

………………………………………………………………………………………………….

4.  Provide any other information that will assist with the execution of the freezing order :

………………………………………………………………………………………………….

SECTION D: Information on property to which the order relates

1.  Please indicate if the order concerns:

 an amount of money

 specific item(s) of property (corporeal or incorporeal, movable or immovable)

 property of equivalent value (in the context of value-based confiscation)

2.  If the order concerns an amount of money or property of equivalent value to that amount of money:

—  The amount for execution in the executing State ▌, in figures and words (indicate currency): ………………………………………..

—  The total amount covered by the order, in figures and words (indicate currency): ………………………………………..

Additional information:

—  Grounds for believing that the affected person has property/income in the executing State:

……………………………………………………………………………………..

—  Description of the property/ source of income of the affected person(when possible):

……………………………………………………………………………………..

—  Exact location of the property/source of income of the affected person (if not known, the last known location):………………………………………………………………………………

—  Details of the bank account of the affected person (if known):

................................................................................................................................................................

3.  If the order concerns specific item(s) of property or property of equivalent value to such property:

Grounds for the transmission of the order to the executing State:

the specific item(s) of property is/are located in the executing State

the specific item(s) of property is/are registered in the executing State

 the issuing authority has reasonable grounds to believe that all or part of the specific item(s) of property covered by the order is/are located in the executing State.

Additional information:

—  Grounds for believing that the specific item(s) of property is/are located in the executing State:

…………………………………………………………………………………………

—  Description of the item of property ▌:

…………………………………………………………………………………..

—  Location of the item of property (if not known, the last known location):

…………………………………………………………………………………..

—  Other relevant ▌information (e.g. appointment of a judicial administrator):

…………………………………………………

SECTION E: Grounds for issuing the freezing order

1.  Summary of the facts

Set out the reasons why the freezing order is issued, including:

—  summary of the facts, including a description of the criminal offence(s):

……………………………………………………………………………………………………………………………………………………………………………………………………………………

—  stage of the investigation:

……………………………………………………………………………………………………………………………………………………………………………………………………………………

—  grounds for freezing:

……………………………………………………………………………………………………………………………………………………………………………………………………………………

—  other relevant information:

……………………………………………………………………………………………………………………………………………………………………………………………………………………

2.  Nature and legal classification of the criminal offence(s) in relation to which the freezing order was issued and the applicable legal provision(s):

……………………………………………………………………………………………………

…………………………………………………………………………………………………….

3.  Is the criminal offence in relation to which the freezing order is issued punishable in the issuing State by a custodial sentence of a maximum of at least three years and included in the list of criminal offences set out below? (please tick the relevant box). Where the freezing order concerns several criminal offences, please indicate numbers in the list of criminal offences below (corresponding to the criminal offences as described under points 1 and 2 above).

□ participation in a criminal organisation

□ terrorism

□ trafficking in human beings

□ sexual exploitation of children and child pornography

□ illicit trafficking in narcotic drugs and psychotropic substances

□ illicit trafficking in weapons, munitions and explosives

□ corruption

□ fraud, including fraud and other criminal offences affecting the Union’s financial interests as defined in Directive (EU) 2017/1371

□ laundering of the proceeds of crime

□ counterfeiting currency, including the euro

□ computer-related crime

□ environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties

□ facilitation of unauthorised entry and residence

□ murder or grievous bodily injury

□ illicit trade in human organs and tissue

□ kidnapping, illegal restraint or hostage-taking

□ racism and xenophobia

□ organised or armed robbery

□ illicit trafficking in cultural goods, including antiques and works of art

□ swindling

□ racketeering and extortion

□ counterfeiting and piracy of products

□ forgery of administrative documents and trafficking therein

□ forgery of means of payment

□ illicit trafficking in hormonal substances and other growth promoters

□ illicit trafficking in nuclear or radioactive materials

□ trafficking in stolen vehicles

□ rape

□ arson

□ crimes within the jurisdiction of the International Criminal Court

□ unlawful seizure of aircraft or ships

□ sabotage

4.  Any other relevant information (e.g. relation between the property and the criminal offence):

………………………………………………………………………………………………………..

SECTION F: Confidentiality of the order and/or request for specific formalities

 Need to maintain the information in the order confidential after execution:

……………………………………………………………………………………………….

 Need for specific formalities at the time of execution:

……………………………………………………………………………………………….

SECTION G: Where a freezing certificate has been transmitted to more than one executing State, provide the following information:

1.  A freezing certificate has been transmitted to the following other executing State(s) (State and authority):

……………………………………………………………………………………

…………………………………………………………………………………….

2.  A freezing certificate has been transmitted to more than one executing State for the following reasons ▌:

Where the freezing order concerns specific items of property:

 Different items of property covered by the order are believed to be located in different executing States ▌

 The freezing of a specific item of property requires action in more than one executing State ▌

▌ Where the freezing order concerns an amount of money:

 The estimated value of the property which may be frozen ▌in the issuing State and in any one executing State is not likely to be sufficient for the freezing of the full amount covered by the order

 Other specific needs:

…………………………………………………………………………………………..

3.  Value of assets, if known, in each executing State:

…………………………………………………………………………………………

…………………………………………………………………………………………

4.  Where the freezing of the specific item(s) of property requires action in more than one executing State, description of the action to be taken in the executing State:

…………………………………………………………………………………………

…………………………………………………………………………………………

SECTION H: Relation to an earlier freezing order and/or other order(s) or request(s)

Please indicate whether this freezing order relates to an earlier order or request (e.g. freezing order, European Investigation Order, European arrest warrant or mutual legal assistance). If applicable, provide the following information relevant to identify the previous order or request :

—  Type of the order/request:………………………………………………………………………….

—  Date of issue:…………………………………………………………………………………..

—  Authority to which the order/request was transmitted:………………………………………………….

—  Reference number given by the issuing authority:……………………………………………

—  Reference number(s) given by the executing authority(ies): ……………………………………

SECTION I: Confiscation

Please indicate whether:

□ this freezing certificate is accompanied by a confiscation certificate issued in the issuing State (reference number of the confiscation certificate): ……………………………...........................................................................................................

□ the property shall remain frozen in the executing State pending the transmission and execution of the confiscation order (estimated date for submission of the confiscation certificate, if possible):

……………………………………………………………………………………………………

SECTION J: Alternative measures

1.  Please indicate whether the issuing State allows for the application by the executing State of alternative measures where it is not possible to execute the freezing order, either wholly or partially:

□ Yes

□ No

2.  If yes, state which measures may be applied:

………………………………………………………………………………………………….

SECTION K: RESTITUTION OF FROZEN PROPERTY

1.  Please indicate if a decision to restitute frozen property to the victim has been issued:

□ Yes

□ No

If yes, please specify the following concerning the decision to restitute frozen property to the victim:

Authority that issued the decision (official name): ……………….………………………………………

Date of the decision: .………………………….………………………………………….

Reference number of the decision (if available):………………………………………………

Description of the property to be restituted: ………..…………………………………….

Name of the victim: ……………………………….………………………………………….

Address of the victim: ………………………………………………………………………..

If the victim’s title to the property is contested, please provide details (persons contesting the title, reasons, etc):

…………………………………………………………………………………………….

…………………………………………………………………………………………….

If rights of affected persons could be prejudiced as a result of the restitution, please provide details (the affected persons, the rights that could be prejudiced, reasons, etc):

…………………………………………………………………………………………….

…………………………………………………………………………………………….

2.  Is a demand for restitution of frozen property to the victim pending in the issuing State?

□ No

□ Yes, the outcome will be communicated to the executing authority

The issuing authority shall be notified in case of direct transfer to the victim.

SECTION L: Legal remedies

Authority in the issuing State which can supply further information on procedures for seeking legal remedies in the issuing State and on whether legal assistance, interpretation and translation is available:

 The issuing authority (see Section M)

 The validating authority (see Section N)

 Other:……………………………………………………………………………………………

SECTION M: Details of the issuing authority

Type of the issuing authority:

□ judge, court, public prosecutor

□ another competent authority designated by the issuing State

Name of the authority:………………………………………………………………………….

Name of the contact person:…………………………………………………………………….

Post held (title/grade)………………………………………………………………………

File No: …………………………………………………………………………………..

Address: …………………………………………………………………………………..

Tel. No. (country code) (area/city code):…………………………………………………….

Fax No. (country code) (area/city code):………………………………………………….....

E-mail:……………………………………………………………………………………….

Languages in which it is possible to communicate with the issuing authority:………………….

If different from above, the contact details of the person(s) to contact for additional information or to make practical arrangements for the execution of the order:

Name/Title/Organisation:…………………………………………………………………….

Address: ……………………………………………………………………………………

E-mail/Tel. No.:…………………………………………………………………….

Signature of the issuing authority and/or its representative certifying the content of the freezing certificate as accurate and correct:…………………………………………………………………

Name:………………………………………………………………………………………….

Post held (title/grade):………………………………………………………………………….

Date: ……………………………………………………………………………………………

Official stamp (if available):……………………………………………………………………

SECTION N: Details of the authority which validated the freezing order

Please indicate the type of authority which has validated the freezing order, if applicable:

□ judge or court

□ public prosecutor

Name of the validating authority:…………………………………………………

Name of the contact person:……………………………………………………………………

Post held (title/grade):………………………………………………………………………

File no:. …………………………………………………………………………..

Address: …………………………………………………………………………..

Tel. No. (country code) (area/city code):…………………………………………………...

Fax No. (country code) (area/city code):……………………………………………………

E-mail: …………………………………………………………………………………

Languages in which it is possible to communicate with the validating authority: ………………..

Please indicate the main contact point for the executing authority:

□ issuing authority

□ validating authority

__________________

Signature and details of the validating authority and/or its representative:

....................................................................................................................................................

Name:………………………………………………………………………………………….

Post held (title/grade):…………………………………………………………………………

Date: …………………………………………………………………………………………..

Official stamp (if available):…………………………………………………………………..

SECTION O: Central authority

Where a central authority has been made responsible for the administrative transmission and reception of freezing certificates in the issuing State, please indicate:

Name of the central authority: ………………………………………………………………...

Name of the contact person: .........................................

Post held (title/grade): …………………………………………

File No.: ………………………………………………………………………………

Address:………………………………………………………………………………………..

Tel. No. (country code) (area/city code): ..................................................................................

Fax No. (country code) (area/city code): ..................................................................................

E-mail : ……………………………………………………………………………………..

SECTION P: Attachments

Please indicate any attachments to the certificate:………………………………………………...

___________________

ANNEX II

CONFISCATION CERTIFICATE

SECTION A:

Issuing State: …………………………………………………………………………….

Issuing authority: ………………………………………………………………………...

Executing State: ………………………………………………………………………….

Executing authority (if known): ……………………………………………....................

SECTION B: Confiscation order

1.  Court which issued the confiscation order (official name):…………………………………..

2.  Reference number of the confiscation order (if available):…………………………………..

3.  The confiscation order was issued on (date):…………………………………………………

4.  The confiscation order became final on (date): ………………………………………………

SECTION C: Affected person(s)

Identity of the person(s) against whom the confiscation order is issued, or of the person(s) that owns/own the property that is covered by the confiscation order (if more than one person is affected, please provide the information for each person):

1.  Identification data

(i)  In the case of natural person(s)

Name:……………………………………………………….

First name(s):……………………………………………….

Other relevant name(s), if applicable:……………………………………

Aliases, if applicable:………………………..

Sex: ……………………..

Nationality:…………………………………………………………………………………..

Identity number or social security number, if available:……………………………………..

Type and number of the identity document(s) (identity card or passport), if available:

………………………………………………………………………….

Date of birth:……………………………………………………………

Place of birth:……………………………………………………………

Residence and/or known address (if address is not known, the last known address):

……………………………………………………………………………………….

Language(s) which the affected person understands: ……………………………………………..

Please indicate the position of the affected person in the proceedings:

□ person against whom the confiscation order is directed

□ person that owns the property that is covered by the confiscation order

(ii)  In the case of legal person(s)

Name: ………………………………………………………………………………

Legal form:…………………………………………………………………….

Shortened name, commonly used name or trading name, if applicable: …………………

Registered seat:……………………………………………………………………………

Registration number:………………………………………………………………………

Address ▌:……………………………………………………………….

Name of the ▌representative:………………………………………………..

Please indicate the position of the affected person ▌ in the proceedings:

person against whom the confiscation order is directed

person that owns the property that is covered by the confiscation order

2.  If different from the address above, please give the location where the confiscation order is to be executed:

…………………………………………………………………………………………

3.   Third parties whose rights in relation to the property that is covered by the confiscation order are directly prejudiced by the order (identity and grounds):

…………………………………………………

………………………………………………………………………………………………….

4.   Provide any other information that will assist with the execution of the confiscation order:

…………………………………………………………………………………………..

SECTION D: Information on property to which the ▌ order relates

1.  The court has decided that the property:

□ is the proceeds of a criminal offence, or its equivalent, whether the full amount of the value or only part of the value of such proceeds

□ constitutes the instrumentalities of a criminal offence, or the value of such instrumentalities

□ is subject to confiscation through the application in the issuing State of any of the powers of confiscation provided for in Directive 2014/42/EU (including extended confiscation)

□ is subject to confiscation under any other provisions relating to powers of confiscation, including confiscation without a final conviction, under the law of the issuing State following proceedings in relation to a criminal offence

2.  Please indicate if the order concerns:

 an amount of money

 specific item(s) of property (corporeal or incorporeal, movable or immovable)

 property of equivalent value (in the context of value-based confiscation)

3.  If the order concerns an amount of money or property of equivalent value to that amount of money:

—  The amount for execution in the executing State, in figures and words

(indicate currency): ……………………………………………………….

—  The total amount covered by the order, in figures and words

(indicate currency): ………………………………………………………

Additional information:

—  Grounds for believing that the affected person has property/income in the executing State:

……………………………………………………………………………………..

—  Description of the property/source of income of the affected person (when possible):

…………………………………………………………………………………….

—  Exact location of the property/source of income of the affected person (if not known, the last known location): ……………………………………………………………..

—  Details of the bank account of the affected person (if known):

..............................................................................................................................................................

4.  If the order concerns specific item(s) of property or property of equivalent value to such property:

Grounds for the transmission of the order to the executing State:

 the specific item(s) of property is/are located in the executing State

 the specific item(s) of property is/are registered in the executing State

 the issuing authority has reasonable grounds to believe that all or part of the specific item(s) of property covered by the order is/are located in the executing State.

Additional information:

—  Grounds for believing that the specific item(s) of property is/are located in the executing State: ……………………………………………………………….

………………………………………………………………………………….

—  Description of the item of property …….………………………………

………………………………………………………………………………….

—  Location of the item of property (if not known, the last known location):

………………………………………………………………………………….

—  Other relevant information (e.g. appointment of a judicial administrator):

…………………………………………………

5.  Information on conversion and transfer of property

If the order concerns a specific item of property, state whether it is provided for under the law of the issuing State that the confiscation in the executing State can be carried out through the confiscation of a sum of money corresponding to the value of the property to be confiscated:

 Yes

 No

SECTION E: Freezing order

Please indicate whether:

□ the confiscation order is accompanied by a freezing order issued in the issuing State (reference number of the freezing certificate): ……………………………...........................................................................................................

□ the property has been frozen in accordance with an earlier freezing order transmitted to the executing State

—  date of issue of the freezing order:………………………………………………………...

—  date of transmission of the freezing order: ………………………………………………..

—  the authority to which it was transmitted:………………………………………………….

—  reference number given by the issuing authority: ………………………………………….

—  reference number given by the executing authorities: ……………………………………..

SECTION F: Grounds for issuing the confiscation order

1.  Summary of the facts and the reasons why the confiscation order is issued, including a ▌description of the criminal offence(s) and other relevant information:

……………………………………………………………………………………………………..

2.  Nature and legal classification of the criminal offence(s) in relation to which the confiscation order was issued and the applicable legal provision(s):

………………………………………………………………………………………………………..

3.  Is the criminal offence in relation to which the confiscation order is issued punishable in the issuing State by a custodial sentence of a maximum of at least three years and included in the list of criminal offences set out below? (please tick the relevant box). Where the confiscation order concerns several criminal offences, please indicate numbers in the list of criminal offences below (corresponding to the criminal offences as described under points 1 and 2 above).

□ participation in a criminal organisation

□ terrorism

□ trafficking in human beings

□ sexual exploitation of children and child pornography

□ illicit trafficking in narcotic drugs and psychotropic substances

□ illicit trafficking in weapons, munitions and explosives

□ corruption

□ fraud, including fraud and other criminal offences affecting the Union’s financial interests as defined in Directive (EU) 2017/1371

□ laundering of the proceeds of crime

□ counterfeiting currency, including the euro

□ computer-related crime

□ environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties

□ facilitation of unauthorised entry and residence

□ murder or grievous bodily injury

□ illicit trade in human organs and tissue

□ kidnapping, illegal restraint or hostage-taking

□ racism and xenophobia

□ organised or armed robbery

□ illicit trafficking in cultural goods, including antiques and works of art

□ swindling

□ racketeering and extortion

□ counterfeiting and piracy of products

□ forgery of administrative documents and trafficking therein

□ forgery of means of payment

□ illicit trafficking in hormonal substances and other growth promoters

□ illicit trafficking in nuclear or radioactive materials

□ trafficking in stolen vehicles

□ rape

□ arson

□ crimes within the jurisdiction of the International Criminal Court

□ unlawful seizure of aircraft or ships

□ sabotage

4.  Any other relevant information (e.g. relation between the property and the criminal offence):

………………………………………………………………………………………………………..

SECTION G: Where a confiscation certificate has been transmitted to more than one executing State, provide the following information:

1.  A confiscation certificate has been transmitted to the following other executing State(s) (State and authority):

……………………………………………………………………………………

…………………………………………………………………………………….

2.  A confiscation certificate has been transmitted to more than one executing State for the following reasons:

Where the confiscation order concerns specific items of property:

 Different items of property covered by the order are believed to be located in different executing States

 The confiscation of a specific item of property requires action in more than one executing State

Where the confiscation order concerns an amount of money:

 The property concerned has not been frozen under Regulation (EU) 2018/...(19)

 The estimated value of the property which may be confiscated in the issuing State and in any one executing State is not likely to be sufficient for the confiscation of the full amount covered by the order

 Other specific needs:

…………………………………………………………………………………………..

3.  Value of assets, if known, in each executing State:

…………………………………………………………………………………………

…………………………………………………………………………………………

4.  Where the confiscation of the specific item(s) of property requires action in more than one executing State, description of the action to be taken in the executing State:

……………………………………………………………………………………………

SECTION H: Proceedings resulting in the confiscation order

Please indicate if the person against whom the confiscation order was issued appeared in person at the trial that resulted in the confiscation order linked to a final conviction:

1.  □ Yes, the person appeared in person at the trial.

2.  □ No, the person did not appear in person at the trial ▌

3.  □ No, in accordance with national procedural rules there were no hearings held.

4.  If you have ticked the box under point 2, please confirm the existence of one of the following:

4.1a.  □ the person was summoned in person on ▌(day/month/year) and thereby informed of the scheduled date and place of the trial that resulted in the confiscation order and was informed that a confiscation order could be handed down if he or she does not appear at the trial

OR

4.1b.  □ the person was not summoned in person but actually received, by other means, official information of the scheduled date and place of the trial that resulted in the confiscation order, in such a manner that it was established unequivocally that he or she was aware of the scheduled trial, and was informed that a confiscation order may be handed down if he or she does not appear at the trial

OR

4.2.  □ being aware of the scheduled trial, the person had given a mandate to a lawyer, who was either appointed by the person concerned or by the state, to defend him or her at the trial, and was actually defended by that lawyer at the trial

OR

4.3.  □ the person was served with the confiscation order on ▌(day/month/year) and was expressly informed about the right to a retrial or an appeal, in which he or she had the right to participate and which allowed a re-examination fo the merits of the caseincluding an examination of fresh evidence, and which could lead to the original confiscation order being reversed, and

□ the person expressly stated that he or she did not contest the confiscation order

OR

□ the person did not request a retrial or appeal within the applicable time limits

5.  If you have ticked the box under points 4.1b, 4.2 or 4.3, please provide information about how the relevant condition has been met:……………………………………………………

SECTION I: Alternative measures, including custodial sanctions

1.  Please indicate whether the issuing State allows for the application by the executing State of alternative measures where it is not possible to execute the confiscation order, either wholly or partially:

□ Yes

□ No

2.  If yes, state which measures may be applied:

□ Custody (maximum period):

…………………………………………………………………………………………………

□ Community service (or equivalent) (maximum period):

………………………………………………………………………………………………….

□ Other measures (description):

………………………………………………………………………………………………….

SECTION J: Decision to restitute property to, or compensate, the victim

1.  Please indicate, where relevant:

□ An issuing authority or another competent authority of the issuing State has issued a decision to compensate the victim with, or restitute to the victim, the following sum of money: ……………………………………………………..

□ An issuing authority or another competent authority of the issuing State has issued a decision to restitute the following property other than money to the victim: …………………………………………………………….

□ Proceedings to restitute property to, or compensate, the victim are pending in the issuing State and the outcome will be communicated to the executing authority

2.  Details of the decision to restitute property to, or compensate, the victim:

Authority that issued the decision (official name):…………………………………..

Date of the decision:……………………………………………………………

Date on which the decision became final: ………………………………………………………….

Reference number of the decision (if available):………………………………………………

Description of the property to be restituted: ………..…………………………………….....

Name of the victim: ……………………………….………………………………………….

Address of the victim: ………………………………………………………………………..

The issuing authority shall be notified in case of direct transfer to the victim.

SECTION K: Details of the issuing authority

Name of authority:……………………………………………………………………………

Name of ▌the contact person:………………………………………………………..

Post held (title/grade)………………………………………………………………………

File No.:………………………………………………………………………………………..

Address:……………………………………………………………………………………….

Tel. No. (country code) (area/city code):………………………………………………………

Fax No. (country code) (area/city code): ……………………………………………………….

E-mail:………………………………………………………………………………………….

Languages in which it is possible to communicate with the issuing authority:………………..

If different from above, the contact details of the person(s) to contact for additional information or to make practical arrangements for the execution of the order or the transfer of the property:…………………………………

Name/Title/Organisation:………………………………………………………………………

Address: ……………………………………………………………………………………..

E-mail/ Tel. No.:……………………………………………………………………..

-------------------------------

Signature of the issuing authority and/or its representative certifying the content of the confiscation certificate as accurate and correct: ……………………………………………………………

Name:…………………………………………………………………………………………

Post held (title/grade):…………………………………………………………………………

Date: …………………………………………………………………………………………..

Official stamp (if available):…………………………………………………………………..

SECTION L: Central authority

Where a central authority has been made responsible for the administrative transmission and reception of confiscation certificates in the issuing State, please indicate:

Name of the central authority: ………………………………………………………………

Name of the contact person:………………………………………..

Post held (title/grade ): …………………………………………

File No.:…………………………………………………………………………………

Address:………………………………………………………………………………………

Tel. No. (country code) (area/city code): ..................................................................................

Fax No. (country code) (area/city code): ..................................................................................

E-mail: …………………………………………………………………………………….

SECTION M: Payment details of the Issuing State

IBAN: ………………………………………………

BIC: ………………………………………………..

Name of bank account holder: ……………………..

SECTION N: Attachments

Please indicate any attachments to the certificate:

(1) Position of the European Parliament of 4 October 2018.
(2)OJ C 115, 4.5.2010, p.1.
(3)Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45).
(4)Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59).
(5)Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union (OJ L 127, 29.4.2014, p. 39).
(6)Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1).
(7)Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1).
(8)Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1).
(9)Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ L 65, 11.3.2016, p. 1).
(10)Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, p. 1).
(11)Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4.11.2016, p.1).
(12)Council Decision 2008/976/JHA of 16 December 2008 on the European Judicial Network (OJ L 348, 24.12.2008, p. 130).
(13)Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 on determining the rules applicable to periods, dates and time limits (OJ L 124, 8.6.1971, p. 1).
(14)OJ L 123, 12.5.2016, p. 1.
(15) Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ L 130, 1.5.2014, p. 1).
(16)Council Decision 2007/845/JHA of 6 December 2007 concerning cooperation between Asset Recovery Offices of the Member States in the field of tracing and identification of proceeds from, or other property related to, crime (OJ L 332, 18.12.2007, p. 103).
(17)Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union's financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29).
(18)Directive 2014/60/EU of the European Parliament and of the Council of 15 May 2014 on the return of cultural objects unlawfully removed from the territory of a Member State and amending Regulation (EU) No 1024/2012 (OJ L 159, 28.5.2014, p. 1).
(19)+ OJ: Please insert in the text the number of this Regulation (PE-CONS 38/18 - 2016/0412(COD)).


Free flow of non-personal data in the European Union ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 4 October 2018 on the proposal for a regulation of the European Parliament and of the Council on a framework for the free flow of non-personal data in the European Union (COM(2017)0495 – C8-0312/2017 – 2017/0228(COD))
P8_TA-PROV(2018)0381A8-0201/2018

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2017)0495),

–  having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0312/2017),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the French Senate, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the European Economic and Social Committee of 15 February 2018(1),

–  after consulting the Committee of the Regions,

–  having regard to the provisional agreement approved by the committee responsible under Rule 69f(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 29 June 2018 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinion of the Committee on Industry, Research and Energy (A8-0201/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 4 October 2018 with a view to the adoption of Regulation (EU) 2018/… of the European Parliament and of the Council on a framework for the free flow of non-personal data in the European Union

P8_TC1-COD(2017)0228


(Text with EEA relevance)

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 114 thereof,

Having regard to the proposal from the European Commission,

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

Having regard to the opinion of the European Economic and Social Committee(2),

After consulting the Committee of the Regions,

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

Whereas:

(1)  The digitisation of the economy is accelerating. Information and Communications Technology is no longer a specific sector, but the foundation of all modern innovative economic systems and societies. Electronic data are at the centre of those systems and can generate great value when analysed or combined with services and products. At the same time, the rapid development of the data economy and emerging technologies such as Artificial Intelligence, Internet of Things products and services, autonomous systems, and 5G are raising novel legal issues surrounding questions of access to and reuse of data, liability, ethics and solidarity. Work should be considered on the issue of liability, in particular through the implementation of self-regulatory codes and other best practices, taking into account recommendations, decisions and actions taken without human interaction along the entire value chain of data processing. Such work might also include appropriate mechanisms for determining liability, for transferring responsibility among cooperating services, for insurance and for auditing.

(2)  Data value chains are built on different data activities: data creation and collection; data aggregation and organisation; data ▌ processing; data analysis, marketing and distribution; use and re-use of data. The effective and efficient functioning of data processing is a fundamental building block in any data value chain. However, the effective and efficient functioning of data processing, and the development of the data economy in the Union, are hampered, in particular, by two types of obstacles to data mobility and to the internal market: data localisation requirements put in place by Member States' authorities and vendor lock-in practices in the private sector.

(3)  The freedom of establishment and the freedom to provide services under the Treaty on the Functioning of the European Union (‘TFEUʼ) apply to data ▌ processing services. However, the provision of those services is hampered or sometimes prevented by certain national, regional or local requirements to locate data in a specific territory.

(4)  Such obstacles to the free movement of data ▌ processing services and to the right of establishment of service providers originate from requirements in the laws of Member States to locate data in a specific geographical area or territory for the purpose of ▌ data processing. Other rules or administrative practices have an equivalent effect by imposing specific requirements which make it more difficult to ▌ process data outside a specific geographical area or territory within the Union, such as requirements to use technological facilities that are certified or approved within a specific Member State. Legal uncertainty as to the extent of legitimate and illegitimate data localisation requirements further limits the choice s available to market players and to the public sector regarding the location of data ▌ processing. This Regulation in no way limits the freedom of businesses to conclude contracts specifying where data are to be located. This Regulation is merely intended to safeguard that freedom by ensuring that an agreed location can be situated anywhere within the Union.

(5)  At the same time, data mobility in the Union is also inhibited by private restrictions: legal, contractual and technical issues hindering or preventing users of data ▌ processing services from porting their data from one service provider to another or back to their own information technology (IT) systems, not least upon termination of their contract with a service provider.

(6)  The combination of those obstacles has led to a lack of competition between cloud service providers in the Union, to various vendor lock-in issues, and to a serious lack of data mobility. Likewise, data-localisation policies have undermined the ability of research and development companies to facilitate collaboration between firms, universities, and other research organisations with the aim of driving innovation.

(7)  For reasons of legal certainty and because of the need for a level playing field within the Union, a single set of rules for all market participants is a key element for the functioning of the internal market. In order to remove obstacles to trade and distortions of competition resulting from divergences between national laws and to prevent the emergence of further likely obstacles to trade and significant distortions of competition, it is necessary to adopt uniform rules applicable in all Member States.

(8)  The legal framework on the protection of natural persons with regard to the processing of personal data, and on respect for private life and the protection of personal data in electronic communications and in particular Regulation (EU) 2016/679 of the European Parliament and of the Council(4) and Directives (EU) 2016/680(5) and 2002/58/EC(6) of the European Parliament and of the Council are not affected by this Regulation.

(9)  The expanding Internet of Things, artificial intelligence and machine learning, represent major sources of non-personal data, for example as a result of their deployment in automated industrial production processes. Specific examples of non-personal data include aggregate and anonymised datasets used for big data analytics, data on precision farming that can help to monitor and optimise the use of pesticides and water, or data on maintenance needs for industrial machines. If technological developments make it possible to turn anonymised data into personal data, such data are to be treated as personal data, and Regulation (EU) 2016/679 is to apply accordingly.

(10)  Under Regulation (EU) 2016/679, Member States may neither restrict nor prohibit the free movement of personal data within the Union for reasons connected with the protection of natural persons with regard to the processing of personal data. This Regulation establishes the same principle of free movement within the Union for non-personal data except when a restriction or a prohibition is justified by public security reasons. Regulation (EU) 2016/679 and this Regulation provide a coherent set of rules that cater for free movement of different types of data. Furthermore, this Regulation does not impose an obligation to store the different types of data separately.

(11)  In order to create a framework for the free flow of non-personal data in the Union and the foundation for developing the data economy and enhancing the competitiveness of Union industry, it is necessary to lay down a clear, comprehensive and predictable legal framework for the processing of data other than personal data in the internal market. A principle-based approach that provides for cooperation among Member States, as well as self-regulation, should ensure that the framework is flexible enough to take into account the evolving needs of users, service providers and national authorities in the Union. In order to avoid the risk of overlaps with existing mechanisms, thereby avoiding higher burdens both for Member States and businesses, detailed technical rules should not be established.

(12)  This Regulation should not affect data processing in so far as it is carried out as part of an activity which falls outside the scope of Union law. In particular, it should be recalled that, in accordance with Article 4 of the Treaty on European Union (‘TEUʼ), national security is the sole responsibility of each Member State.

(13)  The free flow of data within the Union will play an important role in achieving data-driven growth and innovation. Like businesses and consumers, Member States' public authorities and bodies governed by public law stand to benefit from increased freedom of choice regarding data-driven service providers, from more competitive prices and from a more efficient provision of services to citizens. Given the large amounts of data that public authorities and bodies governed by public law handle, it is of the utmost importance that they lead by example by taking up data processing services and that they refrain from making data localisation restrictions when they make use of data processing services. Therefore, public authorities and bodies governed by public law should be covered by this Regulation. In this regard, the principle of the free flow of non-personal data for which this Regulation provides should apply also to general and consistent administrative practices and to other data localisation requirements in the field of public procurement, without prejudice to Directive 2014/24/EU of the European Parliament and of the Council(7).

(14)  As in the case of Directive 2014/24/EU, this Regulation is without prejudice to laws, regulations, and administrative provisions which relate to the internal organisation of Member States and that allocate, among public authorities and bodies governed by public law, powers and responsibilities for the processing of data without contractual remuneration of private parties, as well as the laws, regulations and administrative provisions of Member States that provide for the implementation of those powers and responsibilities. While public authorities and bodies governed by public law are encouraged to consider the economic and other benefits of outsourcing to external service providers, they might have legitimate reasons to choose self-provisioning of services or insourcing. Consequently, nothing in this Regulation obliges Member States to contract out or externalise the provision of services that they wish to provide themselves or to organise by means other than public contracts.

(15)  This Regulation should apply to natural or legal persons who provide data ▌processing services to users residing or having an establishment in the Union, including those who provide data processing services in the Union without an establishment in the Union. This Regulation should therefore not apply to data processing services taking place outside the Union and to data localisation requirements relating to such data.

(16)  This Regulation does not lay down rules relating to the determination of applicable law in commercial matters and is therefore without prejudice to Regulation (EC) No 593/2008 of the European Parliament and of the Council(8). In particular, to the extent that the law applicable to a contract has not been chosen in accordance with that Regulation, a contract for the provision of services is, in principle, governed by the law of the country of the service provider’s habitual residence.

(17)  This Regulation should apply to data ▌ processing in the broadest sense, encompassing the usage of all types of IT systems, whether located on the premises of the user or outsourced to a service provider. It should cover data processing of different levels of intensity, from data storage (Infrastructure-as-a-Service (IaaS)) to the processing of data on platforms (Platform-as-a-Service (PaaS)) or in applications (Software-as-a-Service (SaaS)). ▌

(18)  Data localisation requirements represent a clear barrier to the free provision of data ▌ processing services across the Union and to the internal market. As such, they should be banned unless they are justified on grounds of public security, as defined by Union law, in particular within the meaning of Article 52 TFEU, and satisfy the principle of proportionality enshrined in Article 5 TEU. In order to give effect to the principle of free flow of non-personal data across borders, to ensure the swift removal of existing data localisation requirements and to enable, for operational reasons, the processing of data in multiple locations across the Union, and since this Regulation provides for measures to ensure data availability for regulatory control purposes, Member States should only be able to invoke public security as a justification for data localisation requirements.

(19)  The concept of ‘public security’, within the meaning of Article 52 TFEU and as interpreted by the Court of Justice, covers both the internal and external security of a Member State, as well as issues of public safety, in order, in particular, to facilitate the investigation, detection and prosecution of criminal offences. It presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society, such as a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations, or a risk to military interests. In compliance with the principle of proportionality, data localisation requirements that are justified on grounds of public security should be suitable for attaining the objective pursued, and should not go beyond what is necessary to attain that objective.

(20)  In order to ensure the effective application of the principle of free flow of non-personal data across borders, and to prevent the emergence of new barriers to the smooth functioning of the internal market, Member States should immediately communicate to the Commission any draft act that introduces a new data localisation requirement or modifies an existing data localisation requirement. Those draft acts should be submitted and assessed in accordance with ▌ Directive (EU) 2015/1535 of the European Parliament and of the Council(9).

(21)  Moreover, in order to eliminate potential existing barriers, during a transitional period of 24 months from the date of application of this Regulation, Member States should carry out a review of existing laws, regulations or administrative provisions of a general nature laying down data localisation requirements and communicate to the Commission any such data localisation requirement that they consider being in compliance with this Regulation, together with a justification for it. This should enable the Commission to examine the compliance of any remaining data localisation requirements. The Commission should be able, where appropriate, to make comments to the Member State in question. Such comments could include a recommendation to amend or repeal the data localisation requirement.

(22)  The obligations to communicate existing data localisation requirements and draft acts to the Commission established by this Regulation should apply to regulatory data localisation requirements and draft acts of a general nature, but not to decisions addressed to a specific natural or legal person.

(23)  In order to ensure the transparency of data localisation requirements in the Member States laid down in a law, regulation or administrative provision of a general nature for natural and legal persons, such as service providers and users of data ▌ processing services, Member States should publish information on such requirements on a national online single information point, and regularly update that information. Alternatively, Member States should provide up-to-date information on such requirements to a central information point established under another Union act. In order to appropriately inform natural and legal persons of data localisation requirements across the Union, Member States should notify to the Commission the addresses of such single information points. The Commission should publish this information on its own website, along with a regularly updated consolidated list of all data localisation requirements in force in Member States, including summarised information on those requirements.

(24)  Data localisation requirements frequently stem from a lack of trust in cross-border data ▌ processing, deriving from the presumed unavailability of data for the purposes of the competent authorities of the Member States, such as for inspection and audit for regulatory or supervisory control. Such lack of trust cannot be overcome solely by the nullity of contractual terms prohibiting lawful access to data by competent authorities for the performance of their official duties. Therefore, this Regulation should clearly stipulate that it does not affect the powers of competent authorities to request or obtain access to data in accordance with Union or national law, and that competent authorities cannot be refused access to data on the basis that the data are processed in another Member State. Competent authorities could impose functional requirements to support access to data, such as requiring that system descriptions are to be kept in the Member State concerned.

(25)  Natural or legal persons who are subject to obligations to provide data to competent authorities can comply with such obligations by providing and guaranteeing effective and timely electronic access to the data to competent authorities, regardless of the Member State in the territory of which the data are processed. Such access can be ensured through concrete terms and conditions in contracts between the natural or legal person subject to the obligation to provide access and the service provider.

(26)  Where a natural or legal person is subject to an obligation to provide data and fails to comply with that obligation ▌, the competent authority should be able to seek assistance from competent authorities in other Member States. In such cases, competent authorities should use specific cooperation instruments in Union law or under international agreements, depending on the subject matter in a given case, such as, in the area of police cooperation, criminal or civil justice or in administrative matters respectively, Council Framework Decision 2006/960/JHA(10), Directive 2014/41/EU of the European Parliament and of the Council(11), the Convention on Cybercrime of the Council of Europe(12), Council Regulation (EC) No 1206/2001(13), Council Directive 2006/112/EC(14) and Council Regulation (EU) No 904/2010(15). In the absence of such specific cooperation mechanisms, competent authorities should cooperate with each other with a view to providing access to the data sought, through designated ▌ single points of contact ▌.

(27)  Where a request for assistance entails obtaining access to any premises of a natural or legal person including to any data ▌ processing equipment and means, by the requested authority, such access must be in accordance with Union law or national procedural law, including any requirement to obtain prior judicial authorisation.

(28)  This Regulation should not allow users to attempt to evade the application of national law. It should therefore provide for the imposition, by Member States, of effective, proportionate and dissuasive penalties on users which prevent competent authorities from receiving access to their data necessary for the performance of the competent authorities’ official duties under Union and national law. In urgent cases, where a user abuses its right, Member States should be able to impose strictly proportionate interim measures. Any interim measures requiring the re-localisation of data for longer than 180 days following the re-localisation would deviate from the free movement of data principle for a significant period and should, therefore, be communicated to the Commission for the examination of their compatibility with Union law.

(29)  The ability to port data without hindrance is a key factor in facilitating user choice and effective competition on markets for data ▌ processing services. The real or perceived difficulties in porting data cross-border also undermine the confidence of professional users when taking up cross-border offers, and thereby their confidence in the internal market. Whereas individual consumers benefit from existing Union law, the ability to switch between service providers is not facilitated for those users who act in the course of their business or professional activities. Consistent technical requirements across the Union, whether concerning technical harmonisation, mutual recognition or voluntary harmonisation, also contribute to developing a competitive internal market for data processing services.

(30)  In order to take full advantage of the competitive environment, professional users should be able to make informed choices and to easily compare the individual components of various data ▌ processing services offered in the internal market, including in respect of the contractual terms and conditions of porting data upon the termination of a contract. In order to align with the innovation potential of the market and to take into account the experience and expertise of the service providers and professional users of data ▌ processing services, the detailed information and operational requirements for data porting should be defined by market players through self-regulation, encouraged, facilitated and monitored by the Commission, in the form of Union codes of conduct which might include model contractual terms and conditions. ▌

(31)  In order to be effective and to make switching between service providers and data porting easier, such codes of conduct should be comprehensive and should cover at least the key aspects that are important during the process of porting data, such as the processes used for, and the location of, data back-ups; the available data formats and supports; the required IT configuration and minimum network bandwidth; the time required prior to initiating the porting process and the time during which the data will remain available for porting; and the guarantees for accessing data in the case of the bankruptcy of the service provider. The codes of conduct should also make clear that vendor lock-in is not an acceptable business practice, should provide for trust-increasing technologies, and should be regularly updated in order to keep pace with technological developments. The Commission should ensure that all relevant stakeholders, including associations of small and medium-sized enterprises (SMEs) and start-ups, users and cloud service providers are consulted throughout the process. The Commission should evaluate the development, and the effectiveness of the implementation, of such codes of conduct.

(32)  ▌ Where a competent authority in one Member State requests assistance from another Member State in order to obtain access to data pursuant to this Regulation, it should submit, through a designated single point of contact, a duly justified request to the latter's designated single point of contact, which should include a written explanation of the reasons and the legal bases for seeking access to the data. The single point of contact designated by the Member State whose assistance is requested should facilitate the transmission of the request to the relevant competent authority in the requested Member State. In order to ensure effective cooperation, the authority to which a request is transmitted should without undue delay provide assistance in response to a given request or provide information on difficulties experienced in fulfilling such request, or on its grounds for refusing it.

(33)  Enhancing trust in the security of cross-border data ▌ processing should reduce the propensity of market players and the public sector to use data localisation as a proxy for data security. It should also improve the legal certainty for companies as regards compliance with the applicable security requirements when they outsource their data ▌ processing activities to service providers, including to those in other Member States.

(34)  Any security requirements related to data ▌ processing that are applied in a justified and proportionate manner on the basis of Union or national law in compliance with Union law in the Member State of residence or establishment of the natural or legal persons whose data are concerned should continue to apply to processing of that data in another Member State. Those natural or legal persons should be able to fulfil such requirements either themselves or through contractual clauses in contracts with service providers.

(35)  Security requirements set at national level should be necessary and proportionate to the risks posed to the security of data ▌ processing in scope of the national law in which these requirements are set.

(36)  Directive (EU) 2016/1148 of the European Parliament and of the Council(16) provides for legal measures to boost the overall level of cybersecurity in the Union. Data ▌ processing services constitute one of the digital services covered by that Directive. According to that Directive, Member States are to ensure that digital service providers identify and take appropriate and proportionate technical and organisational measures to manage the risks posed to the security of network and information systems which they use. Such measures should ensure a level of security appropriate to the risk presented, and should take into account the security of systems and facilities; incident handling; business continuity management; monitoring, auditing and testing; and compliance with international standards. These elements are to be further specified by the Commission in implementing acts under that Directive.

(37)  The Commission should submit a report on the implementation of this Regulation, in particular with a view to determining the need for modifications in the light of technological or market developments. That report should in particular evaluate this Regulation, especially its application to data sets composed of both personal and non-personal data, as well as the implementation of the public security exception. Before this Regulation starts to apply, the Commission should also publish informative guidance on how to handle data sets composed of both personal and non-personal data, in order that companies, including SMEs, better understand the interaction between this Regulation and Regulation (EU) 2016/679, and to ensure that both Regulations are complied with.

(38)  This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, and should be interpreted and applied in accordance with those rights and principles, including the rights to the protection of personal data, the freedom of expression and information and the freedom to conduct a business.

(39)  Since the objective of this Regulation, namely to ensure the free flow of data other than personal data in the Union, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, 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,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject matter

This Regulation aims to ensure the free flow of data other than personal data within the Union by laying down rules relating to data localisation requirements, the availability of data to competent authorities and the porting of data for professional users.

Article 2

Scope

1.  This Regulation applies to the ▌ processing of electronic data other than personal data in the Union, which is:

(a)  provided as a service to users residing or having an establishment in the Union, regardless of whether the service provider is established or not in the Union; or

(b)  carried out by a natural or legal person residing or having an establishment in the Union for its own needs.

2.   In the case of a data set composed of both personal and non-personal data, this Regulation applies to the non-personal data part of the data set. Where personal and non-personal data in a data set are inextricably linked, this Regulation shall not prejudice the application of Regulation (EU) 2016/679.

3.  This Regulation does not apply to an activity which falls outside the scope of Union law.

This Regulation is without prejudice to laws, regulations, and administrative provisions that relate to the internal organisation of Member States and that allocate, among public authorities and bodies governed by public law defined in point (4) of Article 2(1) of Directive 2014/24/EU, powers and responsibilities for the processing of data without contractual remuneration of private parties, as well as the laws, regulations, and administrative provisions of Member States that provide for the implementation of those powers and responsibilities.

Article 3

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)  'data' means data other than personal data as defined in point (1) of Article 4 of Regulation (EU) 2016/679;

(2)  'processing' means any operation or set of operations which is performed on data or on sets of data in electronic format, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;

(3)  'draft act' means a text drafted for the purpose of being enacted as a law, regulation or administrative provision of a general nature, the text being at the stage of preparation at which substantive amendments can still be made ▌;

(4)  'service provider' means a natural or legal person who provides data ▌processing services;

(5)  'data localisation requirement' means any obligation, prohibition, condition, limit or other requirement provided for in the laws, regulations or administrative provisions of a Member State or resulting from general and consistent administrative practices in a Member State and in bodies governed by public law, including in the field of public procurement, without prejudice to Directive 2014/24/EU, which imposes the ▌ processing of data in ▌ the territory of a specific Member State or hinders ▌ the processing of data in any other Member State;

(6)  'competent authority' means an authority of a Member State or any other entity authorised by national law to perform a public function or to exercise official authority, that has the power to obtain access to data ▌ processed by a natural or legal person for the performance of its official duties, as provided for by Union or national law;

(7)  'user' means a natural or legal person, including a public authority or a body governed by public law, using or requesting a data ▌ processing service;

(8)  'professional user' means a natural or legal person, including a public authority or a body governed by public law, using or requesting a data ▌ processing service for purposes related to its trade, business, craft, profession or task.

Article 4

Free movement of data within the Union

1.  Data localisation requirements shall ▌ be prohibited ▌, unless they are justified on grounds of public security in compliance with the principle of proportionality.

The first subparagraph is without prejudice to paragraph 3 and to data localisation requirements laid down on the basis of existing Union law.

2.  Member States shall immediately communicate to the Commission any draft act which introduces a new data localisation requirement or makes changes to an existing data localisation requirement in accordance with the procedures set out in ▌Articles 5, 6 and 7 of Directive (EU) 2015/1535.

3.  By ... [24 months from the date of application of this Regulation], Member States shall ensure that any existing data localisation requirement that is laid down in a law, regulation or administrative provision of a general nature and that is not in compliance with paragraph 1 of this Article is repealed.

By ... [24 months from the date of application of this Regulation], if a Member State considers that an existing measure containing a data localisation requirement is in compliance with paragraph 1 of this Article and can therefore remain in force, it shall communicate that measure to the Commission, together with a justification for maintaining it in force. Without prejudice to Article 258 TFEU, the Commission shall, within a period of six months from the date of receipt of such communication, examine the compliance of that measure with paragraph 1 of this Article and shall, where appropriate, make comments to the Member State in question, including, where necessary, recommending the amendment or the repeal of the measure.

4.  Member States shall make the details of any data localisation requirements laid down in a law, regulation or administrative provision of a general nature and applicable in their territory publicly available via a national online single information point which they shall keep up-to-date, or provide up-to-date details of any such localisation requirements to a central information point established under another Union act.

5.  Member States shall inform the Commission of the address of their single information point referred to in paragraph 4. The Commission shall publish the link(s) to such point(s) on its website, along with a regularly updated consolidated list of all data localisation requirements referred to in paragraph 4, including summarised information on those requirements.

Article 5

Data availability for competent authorities

1.  This Regulation shall not affect the powers of competent authorities to request, or obtain, access to data for the performance of their official duties in accordance with Union or national law. Access to data by competent authorities may not be refused on the basis that the data are ▌ processed in another Member State.

2.   Where, after requesting access to a user's data, a competent authority does not obtain access and if no specific cooperation mechanism exists under Union law or international agreements to exchange data between competent authorities of different Member States, that competent authority may request assistance from a competent authority in another Member State in accordance with the procedure set out in Article 7.

3.  Where a request for assistance entails obtaining access to any premises of a natural or legal person, including to any data ▌ processing equipment and means, by the requested authority, such access must be in accordance with Union law or national procedural law.

4.  Member States may impose effective, proportionate and dissuasive penalties for failure to comply with an obligation to provide data, in accordance with Union and national law.

In the case of abuse of rights by a user, a Member State may, where justified by the urgency of accessing the data and taking into account the interests of the parties concerned, impose strictly proportionate interim measures on that user. If an interim measure imposes re-localisation of data for a duration that is longer than 180 days following re-localisation, it shall be communicated within that 180-day period to the Commission. The Commission shall, in the shortest possible time, examine the measure and its compatibility with Union law, and, where appropriate, take the necessary measures. The Commission shall exchange information with the single points of contact of Member States referred to in Article 7 on experience gained in this regard.

Article 6

Porting of data

1.  The Commission shall encourage and facilitate the development of self-regulatory codes of conduct at Union level ('codes of conduct'), in order to contribute to a competitive data economy, based on the principles of transparency and interoperability and taking due account of open standards, covering inter alia the following aspects:

(a)   best practices for facilitating the switching of service providers and the porting of data in a structured, commonly used and machine-readable format including open standard formats where required or requested by the service provider receiving the data;

(b)  minimum information requirements to ensure that professional users are provided, before a contract for data processing is concluded, with sufficiently detailed, clear and transparent information regarding the processes, technical requirements, timeframes and charges that apply in case a professional user wants to switch to another service provider or port data back to its own IT systems ▌; ▌

(c)  approaches to certification schemes that facilitate the comparison of data processing products and services for professional users, taking into account established national or international norms, to facilitate the comparability of those products and services. Such approaches may include, inter alia, quality management, information security management, business continuity management and environmental management;

(d)  communication roadmaps taking a multi-disciplinary approach to raise awareness of the codes of conduct among relevant stakeholders.

2.  The Commission shall ensure that the codes of conduct are developed in close cooperation with all relevant stakeholders, including associations of SMEs and start-ups, users and cloud service providers.

3.  The Commission shall encourage service providers to complete the development of the codes of conduct by ... [12 months from the date of publication of this Regulation] and to effectively implement them by ... [18 months from the date of publication of this Regulation].

Article 7

Procedure for cooperation between authorities

1.  Each Member State shall designate a single point of contact which shall liaise with the single points of contact of other Member States and the Commission regarding the application of this Regulation. Member States shall notify to the Commission the designated single points of contact and any subsequent change thereto.

2.  Where a competent authority in one Member State requests assistance from another Member State, pursuant to Article 5(2), in order to obtain access to data, it shall submit a duly justified request to the latter's designated single point of contact. The request shall include a written explanation of the reasons and the legal bases for seeking access to the data.

3.  The single point of contact shall identify the relevant competent authority of its Member State and transmit the request received pursuant to paragraph 2 to that competent authority.

4.  The relevant competent authority so requested shall, without undue delay and within a timeframe proportionate to the urgency of the request, provide a response communicating the data requested, or informing the requesting competent authority that it does not consider that the conditions for requesting assistance under this Regulation have been met.

5.  Any information exchanged in the context of assistance requested and provided under Article 5(2) shall be used only in respect of the matter for which it was requested.

6.  The single points of contact shall provide users with general information on this Regulation, including on the codes of conduct.

Article 8

Evaluation and guidelines

1.  No later than ... [48 months from the date of publication of this Regulation], the Commission shall submit a report ▌ to the European Parliament, to the Council and to the European Economic and Social Committee evaluating the implementation of this Regulation, in particular in respect of:

(a)  the application of this Regulation, especially to data sets composed of both personal and non-personal data in the light of market developments and technological developments which might expand the possibilities for deanonymising data;

(b)  the implementation by Member States of Article 4(1), and in particular the public security exception; and

(c)  the development and effective implementation of the codes of conduct and the effective provision of information by service providers.

2.  Member States shall provide the Commission with the necessary information for the preparation of the report referred to in paragraph 1.

3.  By ... [6 months from the date of publication of this Regulation], the Commission shall publish informative guidance on the interaction of this Regulation and Regulation (EU) 2016/679, especially as regards data sets composed of both personal and non-personal data.

Article 9

Final provisions

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall apply six months after its publication.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at ...,

For the European Parliament For the Council

The President The President

(1) OJ C 227, 28.6.2018, p. 78.
(2)OJ C 227, 28.6.2018, p. 78.
(3) Position of the European Parliament of 4 October 2018.
(4)Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
(5)Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).
(6)Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).
(7) Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65).
(8) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).
(9)Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).
(10)Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ L 386, 29.12.2006, p. 89).
(11)Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters (OJ L 130, 1.5.2014, p. 1).
(12)Convention on Cybercrime of the Council of Europe, CETS No 185.
(13)Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, p. 1).
(14)Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1).
(15)Council Regulation (EU) No 904/2010 of 7 October 2010 on administrative cooperation and combating fraud in the field of value added tax (OJ L 268, 12.10.2010, p. 1).
(16)Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).


The EU's input on a UN binding instrument on transnational corporations with respect to human rights
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European Parliament resolution of 4 October 2018 on the EU’s input to a UN Binding Instrument on transnational corporations and other business enterprises with transnational characteristics with respect to human rights (2018/2763(RSP))
P8_TA-PROV(2018)0382B8-0443/2018

The European Parliament,

–  having regard to Articles 2, 3, 21 and 23 of the Treaty on European Union (TEU),

–  having regard to its resolution of 5 July 2016 on implementation of the 2010 recommendations of Parliament on social and environmental standards, human rights and corporate responsibility(1),

–  having regard to its resolution of 30 May 2018 on the Annual Report on the implementation of the Common Commercial Policy(2),

–  having regard to Articles 207 and 208 of the Treaty on the Functioning of the European Union (TFEU),

–  having regard to the EU Strategic Framework on Human Rights and Democracy as adopted by the Foreign Affairs Council on 25 June 2012, and to the Action Plan on Human Rights and Democracy 2015-2019 adopted by the Council on 20 July 2015,

–  having regard to the UN Guiding Principles on Business and Human Rights (UNGPs), endorsed by the UN Human Rights Council in its resolution 17/4 of 16 June 2011,

–  having regard to the Commission’s Trade for All Strategy,

–  having regard to the Commission’s Sector Guides on Implementing the UNGPs(3),

–  having regard to the Commission staff working document of 14 July 2015 on ‘Implementing the UN Guiding Principles on Business and Human Rights – State of Play’ (SWD(2015)0144),

–  having regard to the opinion of the European Union Agency for Fundamental Rights (FRA) entitled ‘Improving access to remedy in the area of business and human rights at the EU level’(4),

–  having regard to the UN Human Rights Council resolution 26/9 of 26 June 2014, whereby it decided ‘to establish an open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights, whose mandate shall be to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises’,

–  having regard to General comment No 24 (2017) of the UN Committee on Economic, Social and Cultural Rights (CESCR) on State obligations under the International Covenant on Economic, Social and Cultural Rights in the context of business activities (E/C.12/GC/24),

–  having regard to the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights(5),

–  having regard to the United Nations Global Compact(6),

–  having regard to the OECD Guidelines for Multinational Enterprises,

–  having regard to the International Labour Organisation’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, revised in 2017,

–  having regard to the OECD Due Diligence Guidance for the garment and footwear sector,

–  having regard to the Children’s Rights and Business Principles developed by UNICEF,

–  having regard to the Council conclusions on Business and Human Rights adopted on 20 June 2016,

–  having regard to the ISO 26000 Guidance Standard on Social Responsibility,

–  having regard to the OECD Due Diligence Guidance for Responsible Business Conduct,

–  having regard to Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters(7),

–  having regard to Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non-financial and diversity information by certain large undertakings and groups(8),

–  having regard to Regulation (EU) 2017/821 of the European Parliament and of the Council of 17 May 2017 laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflict-affected and high-risk areas(9),

–  having regard to the Council of Europe recommendation to Member States on human rights and business, adopted on 2 March 2016,

–  having regard to its resolution of 13 March 2018 on gender equality in EU trade agreements(10),

–  having regard to its resolution of 13 December 2017 on the Annual Report on Human Rights and Democracy in the World 2016 and the European Union’s policy on the matter(11),

–  having regard to its resolution of 16 November 2017 on the EU-Africa Strategy: a boost for development(12),

–  having regard to its resolution of 27 April 2017 on the EU flagship initiative on the garment sector(13),

–  having regard to its resolution of 14 February 2017 on the revision of the European Consensus on Development(14),

–  having regard to its resolution of 12 September 2017 on the impact of international trade and the EU’s trade policies on global value chains(15),

–  having regard to Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market(16),

–  having regard to its resolution of 25 November 2010 on corporate social responsibility in international trade agreements(17),

–  having regard to its resolution of 14 December 2016 on the Annual Report on human rights and democracy in the world and the European Union’s policy on the matter 2015(18),

–  having regard to its resolution of 22 November 2016 on increasing the effectiveness of development cooperation(19),

–  having regard to its resolution of 25 October 2016 on corporate liability for serious human rights abuses in third countries(20),

–  having regard to its resolution of 5 July 2016 on the fight against trafficking in human beings in the EU’s external relations(21),

–  having regard to its resolution of 14 April 2016 on the private sector and development(22),

–  having regard to its resolution of 17 December 2015 on the Annual Report on Human Rights and Democracy in the World 2014 and the European Union’s policy on the matter(23),

–  having regard to the study commissioned by its Subcommittee on Human Rights on ‘Implementation of the UN Guiding Principles on Business and Human Rights’(24),

–  having regard to the questions to the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, to the Commission and to the Council on the EU’s input to a UN Binding Instrument on transnational corporations and other business enterprises with transnational characteristics with respect to human rights (O-000074/2018 – B8‑0402/2018, O-000075/2018 – B8-0403/2018 and O-000078/2018 – B8‑0404/2018),

–  having regard to the motion for a resolution of the Committee on Development,

–  having regard to Rules 128(5) and 123(2) of its Rules of Procedure,

A.  whereas the EU is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights; whereas its actions on the international scene (including its development and trade policies) must be guided by these principles and must be consistent with the principle of Policy Coherence for Development (PCD), as enshrined in Article 208 of the Treaty of Lisbon; whereas according to Article 208 of the TFEU the principle of PCD must be respected in all EU external actions;

B.  whereas the European Union is both a normative power and an economic power; whereas, as such, it needs to position itself as a leader in the dissemination of best practice and the development of global standards;

C.  whereas the implementation of Agenda 2030 implies that economic development should go hand in hand with social justice, good governance, respect for human rights, including social rights and the right to human dignity and freedom for all, as well as high labour and environmental standards; whereas sustainable development, trade and human rights can have an impact on each other and may reinforce one another;

D.  whereas human rights obligations rest primarily with States; whereas although States are not per se responsible for human rights violations by private actors, they may breach their international human rights law obligations where such violations can be attributed to them, or where they fail to take appropriate due diligence to prevent, investigate, punish and redress private actors’ abuse; whereas States generally have discretion in deciding what measures to take, making use of policies, legislation, regulations and adjudication;

E.  whereas due diligence is a concept referred to in the OECD Guidelines for Multinational Enterprises(25);

F.  whereas States should fulfil their human rights obligations within their territory and/or jurisdiction; whereas States should set out clearly the expectation that obligation to protect implies regulating to ensure that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations, including through their subsidiaries, controlled companies and entities in their supply chain worldwide;

G.  whereas the UN Guiding Principles on Business and Human Rights (UNGPs), endorsed by consensus in the Human Rights Council, remain the authoritative framework for preventing and addressing the risk of adverse impacts on human rights linked to business activity, and whereas the 2017 study commissioned by Parliament’s Subcommittee on Human Rights and entitled ‘Implementation of the UN Guiding Principles on Business and Human Rights’ shows clearly that EU Member States are the most advanced in the global context in the implementation of the UNGPs, having the highest number of National Action Plans adopted or in progress;

H.  whereas the UNGPs apply to all States and to all business enterprises, both transnational and others, regardless of their size, sector, location, ownership and structure, and are grounded in the three pillars of the UN ‘protect-respect-remedy’ framework, namely: 1) the State’s duty to protect against human rights abuses by third parties, including business; 2) the corporate responsibility to respect human rights; and 3) greater access for victims to effective remedy, both judicial and non-judicial; stresses that although the UNGPs are not legally binding, they are widely recognised and supported, and serve as the basis for policy approaches towards business and human rights internationally, as well as recognition of States’ existing obligations to respect, protect and fulfil human rights and fundamental freedoms, of the role of business enterprises as specialised organs of society performing specialised functions which are required to comply with all applicable laws and to respect human rights, and of the need for rights and obligations to be matched to appropriate and effective remedies when breached; whereas available evidence suggests that where the UNGPs are implemented, the incidence of corporate-related human rights harm is reduced;

I.  whereas the UN Global Compact calls on corporations to embrace, support and enact, within their sphere of influence, a set of core values in the areas of human rights, labour standards, the environment and the fight against corruption, making a commitment to those values and integrating them into their business operations on a voluntary basis;

J.  whereas corporations are one of the major players in economic globalisation, financial services and international trade, and are required to comply with all applicable laws and international treaties in force and to respect human rights; whereas these business enterprises as well as national corporations may at times cause or contribute to human rights violations or abuses and affect the rights of vulnerable groups such as minorities, indigenous people, women and children, or contribute to environmental problems; whereas they may also have an important role to play in offering positive incentives in terms of promoting human rights, democracy, environmental standards and corporate social responsibility;

K.  whereas there is an asymmetry between the rights and obligations of transnational corporations (TNCs), particularly in investment protection treaties, where investors are being granted broad rights, such as ‘fair and equitable treatment’, that are not necessarily matched by binding and enforceable obligations in terms of compliance with human rights and labour and environmental law throughout the whole supply chain;

L.  whereas the long-term positive impact on human rights of European businesses operating globally and leading by example through a non-discriminatory corporate culture is acknowledged;

M.  whereas the EU, with regard to the internal/external coherence of its policies, has played a leading role in negotiating and implementing a number of initiatives for global responsibility which go hand in hand with the promotion and respect of international standards in relation to business and human rights; whereas the EU and its Member States have also committed to a number of instruments, in particular the 2011 UNGPs and the 2016 Council of Europe recommendation on human rights and business;

N.  whereas in recent years, the EU and its Member States have started to adopt legislation to enhance corporate accountability and embed elements of Human Rights Due Diligence (HRDD) into legislation; whereas these measures are now helping to set global standards but can still be developed further, examples being the EU Conflict Minerals Regulation and the EU Non-Financial Reporting Directive (NFR), as well as the Timber Regulation (EUTR); whereas the Commission, however, has been reluctant to put forward further legislation for other sectors, such as garments, despite repeated calls from Parliament; whereas the multitude of national legislative initiatives might lead to an inefficient and unfair playing field within the EU; whereas a binding UN treaty could be a meaningful step forward in this regard;

O.  whereas victims of human rights violations in which EU businesses are involved may claim compensation before domestic courts in the EU under Regulation (EU) No 1215/2012; whereas the provisions laid down in this regulation require a stronger international framework in order to improve their efficiency with regard to the affected parties, while ensuring a level playing field between corporations domiciled in the EU and those which are not;

P.  whereas a global holistic approach to corporate liability for human rights abuses is still lacking; whereas victims of human rights abuses involving transnational companies face multiple obstacles to accessing remedies, including judicial remedies and guarantees of non-repetition; whereas such obstacles to access to remedies constitute a further serious violation of human rights; whereas a holistic approach would provide legal certainty to both businesses and individuals, in the context of the proliferation of national due diligence initiatives;

Q.  whereas gender inequality implies that women are often particularly vulnerable to human rights violations, and face special burdens when seeking access to remedy;

R.  whereas the 2017 opinion of the Fundamental Rights Agency (FRA) found that more could be done to ensure effective judicial and non-judicial access to remedy for business-related human rights abuses within or outside the EU, including by providing victims with more assistance in accessing courts and the possibility to file class actions, facilitating the burden of proof, and incentivising due diligence obligations for companies, including for parent companies linked to human rights performance in subsidiaries or supply chains;

S.  whereas the EU Charter of Fundamental Rights imposes both domestic and extraterritorial obligations on States regarding their duties to provide access to judicial remedies for victims of human rights violations;

T.  whereas a system of corporate liability for human rights abuses is currently being negotiated in the UN, within the UNHRC’s open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (OEIGWG), established by the UN General Assembly in 2014; whereas both the EU and its Member States play a role at the OEIGWG, but the Commission has no mandate from the Council to conduct negotiations on behalf of the EU concerning its participation in the OEIGWG;

1.  Notes that the globalisation and increasing internationalisation of business activities and supply chains make the role that corporations play in ensuring respect for human rights more important, having already created a situation in which international norms, rules and cooperation are crucial to avoid human rights abuses in third countries;

2.  Is of the opinion that transnational corporations should refrain from financing or engaging in activities, commercial or non-commercial, that might fuel radicalism or extremism, in particular when it entails the manipulation of a religious creed, as well as from any direct or indirect support to any group promoting, advocating or justifying violence;

3.  Firmly believes that the private sector is an important partner in achieving the Sustainable Development Goals (SDGs) and in mobilising additional resources for development; stresses that, given their increasing role in development cooperation, private sector actors must align with development effectiveness principles and abide by the principles of corporate accountability throughout the whole life cycle of projects;

4.  Recalls that due diligence is a key component of the UN Guiding Principles’ second pillar regarding corporate responsibility and respect for human rights; stresses that effective due diligence practices can also help strengthen access to remedy; encourages the EU and its Member States to pursue the adoption of a coherent framework establishing mandatory human rights due diligence requirements for companies;

5.  Recalls that the NAP (National Action Plan) development process, if well-designed and adjusted to the local context, can contribute not only to ensuring an efficient implementation of the UNGPs but also to the strengthening of national human rights protection mechanisms;

6.  Reiterates its call for the UNGPs and other international corporate responsibility standards to be consistently raised by EU representatives in human rights dialogues with third countries;

7.  Strongly supports the full implementation, within and outside the EU, of the UNGPs, as unanimously endorsed by the Council in June 2011, and calls for the EU and the Member States to elaborate and adopt ambitious and operative action plans at both EU and national level that set out clear expectations for governments and all types of business enterprises for the swift, effective and comprehensive implementation of the said principles; takes the view that the NAPs should include indicators to measure achievement; stresses also that the EU should ensure independent and regular peer review of Member States’ NAPs and the progress made, particularly to facilitate access to remedy; recalls that the UNGPs can be complemented with parallel binding initiatives to cover their shortcomings;

8.  Considers it regrettable that a global approach is still lacking to the way in which transnational corporations abide by human rights law and ensure other remedy mechanisms, which may contribute to TNCs’ impunity for cases of human rights abuses and thus be detrimental to people’s rights and dignity; regrets that the UNGPs are not embodied in enforceable instruments; recalls that the poor implementation of UNGPs, as in the case of other internationally recognised standards, has been largely attributed to their non-binding character;

9.  Notes with concern that many obstacles persist regarding access to judicial remedy, particularly in case of transnational corporations, due to, for example, difficulties encountered by victims in identifying the competent court, lack of codification of certain human rights abuses in penal codes, or corruption, which can undermine legal proceedings in developing countries; recalls that appropriate non-judicial remedies are also of crucial importance, but are often lacking; calls on national governments to reinforce their efforts to ensure, through judicial, administrative, legislative or other appropriate means, that when human rights abuses occur within their territory and/or jurisdiction, those affected have access to effective remedy;

10.  Reaffirms the urgent need to act in an effective and coherent manner at all levels, including national, European and international, in order to effectively address human rights abuses by transnational corporations, to provide for access to remedies, to address legal problems resulting from the transnational character of the activities of business enterprises and TNCs and the growing complexity of global value chains and the extraterritorial dimension of transnational companies, as well as the related uncertainty as to where liability for human rights violations lies; reaffirms the need to fully implement the extraterritorial obligations of States, as set out in the Maastricht Principles and building on the various instruments of the Council of Europe, in particular the European Convention on Human Rights (ECHR); more broadly, urges the EU to take initiatives to improve access to remedy in extraterritorial cases, in line with the recommendations set in the 2017 FRA opinion;

11.  Reaffirms the primacy of human rights in international law, in accordance with Article 103 of the Charter of the United Nations, and the need to consolidate it through a clear system whereby human rights obligations effectively take precedence over other types of conflicting obligations, and provision is made for suitable mechanisms to enforce human rights law, for monitoring and for remedies, combined with appropriate penalties and compensation in the event of violations; insists that this is essential for overcoming globalisation imbalances and putting people’s rights and the planet first; stresses that coordination and the exchange of information and good practices will contribute positively to initiatives taken by businesses which have decided to respect human rights and social and environmental standards;

12.  Stresses that corporate social responsibility on a voluntary basis risks creating unfair competition for those who choose to comply with international standards; stresses that it is not sufficient for ensuring, in connection with the implementation of the duty of care, full conformity with international standards and obligations;

13.  Warmly welcomes in this context the work initiated in the United Nations through the OEIGWG to create a binding UN instrument on transnational corporations and other business enterprises with respect to human rights, and considers this to be a necessary step forward in the promotion and protection of human rights;

14.  Stresses that the binding treaty should build on the UNGP’s framework and encompass: the definition of mandatory due diligence obligations for TNCs and other business enterprises, including with respect to their subsidiaries, the recognition of the extraterritorial human rights obligations of States, the recognition of corporate criminal liability, mechanisms for coordination and cooperation among states on investigation, prosecution and enforcement of cross-border cases, and the setting-up of international judicial and non-judicial mechanisms for supervision and enforcement; is of the opinion that the new instrument should impose on States the obligation to adopt regulatory measures requiring companies to apply human rights due diligence policies and procedures, and proposes that this obligation should be enforced by means of companies being accountable in either the forum where the harm was caused, or the forum where the parent company is incorporated or where it has a substantial presence;

15.  Calls on the UN member states to protect the negotiations from commercial and other vested interests, following the example of the World Health Organization (WHO) and Article 5.3 of the WHO Framework Convention on Tobacco Control (WHO FCTC), including strong ethical rules to prevent conflicts of interest and unethical lobbying, and requiring full transparency regarding industry interactions with parties to the negotiations;

16.  Recalls the need to adopt a gender-sensitive approach throughout the process and to pay special attention to vulnerable groups such as indigenous people and children;

17.  Recalls that Parliament has voiced its unequivocal support for this multilateral OEIGWG process in eight different resolutions;

18.  Stresses the importance of the EU and its Member States being actively involved in this intergovernmental process through the creation of a working group including all the relevant departments of the Commission, the EEAS, the Council Working Group on Human Rights (COHOM) and the relevant committees of Parliament, on the basis of the principle of PCD;

19.  Reiterates once more its call for the EU and its Member States to engage genuinely and constructively in these negotiations and in the intergovernmental process aimed at the completion of the OEIGWG’s mandate; highlights the paramount importance of the EU constructively contributing to the achievement of a Binding Treaty which will effectively address the issue of corporate liability for human rights violations and related challenges;

20.  Calls on the UN member states to ensure that the negotiations leading to the treaty are conducted in a transparent fashion, with consultation of a broad range of rights-holders potentially impacted by the treaty, including civil society organisations and victim platforms; calls on the EU and its Member States to mainstream a meaningful gender approach in their negotiating position;

21.  Calls for the EU to ensure that any revision or future strategy document linked to the EU Strategic Framework and Action Plan on Human Rights and Democracy includes clear objectives and measurable benchmarks for the EU’s participation in the UN treaty negotiations;

22.  Decides to continue to closely follow the OEIGWG negotiation process;

23.  Instructs its President to forward this resolution to the Council, the Commission and the European External Action Service.

(1) OJ C 101, 16.3.2018, p. 19.
(2) Texts adopted, P8_TA(2018)0230.
(3) https://ec.europa.eu/anti-trafficking/publications/european-commission-sector-guides-implementing-un-guiding-principles-business-and-hum-0_en
(4) http://fra.europa.eu/sites/default/files/fra_uploads/fra-2017-opinion-01-2017-business-human-rights_en.pdf
(5) http://www.etoconsortium.org/nc/en/main-navigation/library/maastricht-principles/?tx_drblob_pi1%5BdownloadUid%5D=23
(6) https://www.unglobalcompact.org/
(7) OJ L 351, 20.12.2012, p. 1.
(8) OJ L 330, 15.11.2014, p. 1.
(9) OJ L 130, 19.5.2017, p. 1.
(10) Texts adopted, P8_TA(2018)0066.
(11) Texts adopted, P8_TA(2017)0494.
(12) Texts adopted, P8_TA(2017)0448.
(13) OJ C 298, 23.8.2018, p. 100.
(14) OJ C 252, 18.7.2018, p. 62.
(15) OJ C 337, 20.9.2018, p. 33.
(16) OJ L 295, 12.11.2010, p. 23.
(17) OJ C 99 E, 3.4.2012, p. 101.
(18) OJ C 238, 6.7.2018, p. 57.
(19) OJ C 224, 27.6.2018, p. 36.
(20) OJ C 215, 19.6.2018, p. 125.
(21) OJ C 101, 16.3.2018, p. 47.
(22) OJ C 58, 15.2.2018, p. 209.
(23) OJ C 399, 24.11.2017, p. 151.
(24) http://www.europarl.europa.eu/RegData/etudes/STUD/2017/578031/EXPO_STU(2017)578031_EN.pdf
(25) http://www.oecd.org/corporate/mne/48004323.pdf


Situation in Yemen
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European Parliament resolution of 4 October 2018 on the situation in Yemen (2018/2853(RSP))
P8_TA-PROV(2018)0383RC-B8-0444/2018

The European Parliament,

–  having regard to its previous resolutions on Yemen, in particular those of 25 February 2016(1) and 15 June 2017(2) on the humanitarian situation in Yemen, and of 9 July 2015(3) and 30 November 2017(4) on the situation in Yemen,

–  having regard to the report published by the UN Human Rights Council Group of Regional and International Eminent Experts on Yemen on 28 August 2018 on the situation of human rights in Yemen, including violations and abuses since September 2014,

–  having regard to the joint statements by Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy (VP/HR) Federica Mogherini and Commissioner Christos Stylianides of 13 June 2018 on the latest developments around Hodeidah, Yemen, and of 4 August 2018 on the airstrikes in Hodeidah,

–  having regard to the annual report of the UN High Commissioner for Human Rights of 24 September 2018 on the situation in Yemen,

–  ‎having regard to the Council conclusions of 25 June 2018 on Yemen,

–  having regard to the statement by the President of the UN Security Council of 15 March 2018,

–  having regard to the statement of 6 September 2018 by the Special Envoy of the UN Secretary-General for Yemen,

–  having regard to the statement by the World Food Programme Executive Director of 19 September 2018,

–  having regard to the Rome Statute of the International Criminal Court,

–  having regard to the UN Security Council resolutions on Yemen, in particular resolutions 2216 (2015), 2201 (2015) and 2140 (2014),

–  having regard to Rule 123(2) and (4) of its Rules of Procedure,

A.  whereas the ongoing conflict in Yemen has entered its fourth year and more than 22 million people need humanitarian support; whereas over 17 million people are food insecure, among whom more than 8 million people are severely food insecure and at risk of starvation; whereas the current fragmentation of the conflict is a clear sign of the erosion of state unity; whereas the situation in Yemen also carries grave risks for the stability of the region;

B.  whereas the conflict started in 2015 when Iranian-backed Houthi rebels ousted the country’s internationally recognised president, who subsequently brought in a multinational coalition led by Saudi Arabia to fight the rebels and those troops allied to them;

C.  whereas since November 2017, the Saudi-led coalition has established a blockade on all imports to the Houthi-controlled territory, with the exception of urgent humanitarian and relief materials; whereas according to the OCHA, Yemen has received only 21 % of its fuel requirements and 68 % of its food import needs since the blockade began; whereas, in certain cases, Houthi rebels have blocked the delivery of essential medical supplies, food and humanitarian aid to government-controlled cities;

D.  whereas in June 2018 the coalition led by Saudi Arabia and the United Arab Emirates (UAE) started an offensive to take the city of Hodeidah; whereas Save the Children has reported hundreds of civilian casualties in this operation; whereas Hodeidah is Yemen’s most important port and is the transit point for as much as 70 % of the country’s critical food and humanitarian aid; whereas, according to the UN, nearly 470 000 people have fled Hodeidah Governorate since early June 2018; whereas a further attack on Hodeidah would have devastating consequences for civilians; whereas parties to the conflict are obliged to allow and facilitate the rapid and unimpeded passage of humanitarian relief, including medicine, food and other items necessary for survival;

E.  whereas the ceasefire negotiations led by the UN Special Envoy for Yemen, Martin Griffiths, resulted in a temporary cessation of the offensive; whereas the collapse of the latest attempt to hold peace talks in Geneva led to a resumption of hostilities on 7 September 2018; whereas since the offensive started, civilian deaths have increased by 164 %; whereas, in spite of the international pressure to achieve a stable and inclusive political solution to the crisis, the parties to the conflict and their regional and international backers, including Saudi Arabia and Iran, have failed to reach a ceasefire or any type of settlement, and the fighting and indiscriminate bombings continue unabated;

F.  whereas on 9 August 2018, an air strike perpetrated by the Saudi-led coalition hit a school bus in a market in the northern province of Saada, killing scores of people, including at least 40 children, most of whom were under the age of 10; whereas this attack was followed two weeks later, on 24 August, by a new Saudi-led coalition strike killing 27 civilians, mostly children, who were fleeing the violence in the besieged southern city of Hodeidah;

G.  whereas the Saudi-led campaign and the intense aerial bombardments, including indiscriminate attacks in densely populated areas, exacerbate the humanitarian impact of the war; whereas the laws of war prohibit deliberate and indiscriminate attacks on civilians and civilian targets such as schools and hospitals; whereas, having regard to the findings of the Group of Independent Eminent International and Regional Experts (GEE), such attacks may amount to war crimes and the individuals who commit them may be prosecuted for these crimes; whereas the Saudi-led coalition’s investigations into alleged war crimes in Yemen have lacked credibility and failed to provide redress to civilian victims;

H.  whereas since March 2015, more than 2 500 children have been killed, more than 3 500 children have been maimed or injured and a growing number of children have been recruited by armed forces on the ground; whereas women and children are particularly affected by the ongoing hostilities; whereas according to UNICEF, nearly two million children are out of school, which compromises the future of an entire generation of children in Yemen as a result of limited or no access to education, making them vulnerable to military recruitment and sexual and gender-based violence;

I.  whereas in August 2018 a report compiled by the UN High Commissioner for Human Rights concluded that there are ‘reasonable grounds to believe’ all parties to the conflict in Yemen may have committed war crimes; whereas forces on both sides of the conflict have been accused of firing heavy weapons into built-up areas and highly populated areas, including strikes on hospitals and other non-military structures;

J.  whereas the war has led to the destruction of infrastructure and the collapse of Yemen’s economy, and caused widespread disruption to basic commodities and the supply of utilities, sanitation and clean drinking water; whereas the regular payment of salaries of up to 1,4 million non-military Yemeni public workers effectively ceased at the end of 2016;

K.  whereas preventing the use of UN flights for international media and human rights organisations impedes independent coverage of the situation in Yemen and contributes to the global neglect of the conflict;

L.  whereas gender-based sexual violence has increased exponentially since the start of the conflict; whereas the already limited capacity to address sexual and gender-based violence in the criminal justice system has collapsed, and no investigations have been conducted in relation to practices such as abducting and raping women, or threatening to, as a way of extorting money from their families and communities;

M.  whereas human rights defenders have faced relentless harassment, threats and smear campaigns from all parties to the conflict; whereas women human rights defenders, journalists and activists have faced specific repression on the basis of their gender;

N.  whereas Houthi de-facto authorities have conducted a systemic campaign of harassment, arbitrary and abusive detentions, and forced disappearances and torture against human rights defenders, journalists and religious minorities; whereas 24 Yemenis from the Baha’i minority, including one child, are facing charges that could result in the death penalty, for nothing other than their beliefs and peaceful actions;

O.  whereas Houthi rebels have been accused of causing mass civilian casualties during their siege of Taiz, Yemen’s third largest city; whereas they have waged a war of attrition against civilian populations in government-controlled areas; whereas they have also deployed banned anti-personnel landmines and recruited children;

P.  whereas Kamel Jendoubi, Chairman of the GEE that issued a Report to the Human Rights Council on the Situation of human rights in Yemen on 28 August 2018, is the victim of a smear campaign aimed at intimidating the GEE and casting doubts on its findings;

Q.  whereas Yemen has signed the Rome Statute of the International Criminal Court but has yet to ratify it; whereas several provisions of the Rome Statute, including those related to war crimes, reflect customary international law;

R.  whereas in February 2018 Russia vetoed a UN Security Council resolution highlighting Iranian involvement in the conflict;

S.  whereas there is an international arms embargo in place against the Iranian-backed Houthi rebels and, according to the 18th EU Annual Report on Arms Exports, EU Member States have continued to authorise transfers of arms to Saudi Arabia since the escalation of the conflict, in violation of Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment(5); whereas in the past year, some EU Member States have partly or totally suspended arms transfers to Saudi Arabia and the UAE; whereas Parliament has repeatedly called on the VP/HR to launch an initiative to impose an EU arms embargo on Saudi Arabia, in line with Common Position 2008/944/CFSP;

T.  whereas the majority of strikes carried out by US forces in Yemen are lethal drone strikes; whereas the decision to add certain persons to the target lists of drone operations is often made without court warrants or orders; whereas the targeting and subsequent killing of certain individuals can under certain circumstances be seen as extrajudicial killing;

U.  whereas the war in Yemen has opened up space for extremist groups, including al-Qaeda in the Arabian Peninsula (AQAP), to extend their reach, thereby threatening the wider region; whereas a stable, secure Yemen with a properly functioning government is critical to international efforts to combat extremism and violence in the wider region and beyond, as well as to peace and stability within Yemen itself;

V.  whereas stability in the wider region is of critical importance for the EU; whereas the EU is committed to a comprehensive and strategic approach encompassing all relevant regional actors; whereas finding a political solution to the conflict under the auspices of the UN peace initiative in Yemen should be a priority for the EU and the international community as a whole;

W.  whereas the EU remains committed to continuing to deliver life-saving aid to all people in need in Yemen; whereas at the same time, the EU shares the concerns of the UN and other donors about the continuing shrinking of humanitarian space; whereas from 2015 until now, the EU has contributed more than EUR 233 million in humanitarian funding to Yemen;

1.  Condemns in the strongest terms the ongoing violence in Yemen and all attacks against civilians and civilian infrastructure; emphasises its concern over the conflict that is continuing to degenerate into one of the gravest current humanitarian, political, and economic crises; reminds all parties involved, including their regional and international backers, that the deliberate targeting of civilians and civilian infrastructure, including hospitals and medical personnel, water systems, ports, airports and markets, amounts to a grave violation of international law;

2.  Deeply regrets the loss of life caused by the conflict and the suffering of those caught up in the fighting, and expresses its condolences to the families of the victims; reaffirms its commitment to continuing to support Yemen and the Yemeni people;

3.  Calls on all parties to the conflict to cease hostilities immediately; urges Saudi Arabia and other actors involved to further lift the ongoing blockade of Yemen: calls on all directly or indirectly involved states and relevant actors, including Iran, to apply maximum pressure on all parties to work towards de-escalation and to immediately cease providing political, military and financial support to military actors on the ground, either directly or by proxy;

4.  Stresses that only a political, inclusive and negotiated solution to the conflict can restore peace and preserve the unity, sovereignty, independence and territorial integrity of Yemen; calls on all international and regional actors to engage constructively with the parties in Yemen to enable a de-escalation of the conflict and a negotiated settlement;

5.  Supports the efforts of the Special Envoy of the UN Secretary-General for Yemen, Martin Griffiths, to restart the political process; takes note of his statement to the UN Security Council of 11 September 2018 ‘that despite the absence of one of the sides to the Consultations in Geneva last week, and even if it certainly did not go as planned, we still managed to relaunch the political process with solid support clearly from the Yemeni people and the international community’; welcomes Mr Griffiths’ visit to Sana’a on 16 September 2018; calls for the Special Envoy to be given full and unhindered access to all parts of the territory of Yemen; calls on the VP/HR and all EU Member States to provide Mr Griffiths with political backing with a view to reaching a negotiated and inclusive settlement;

6.  Condemns all terror attacks in the strongest terms; is deeply concerned about the increased presence in Yemen of criminal and terrorist groups, including AQAP and ISIS/Daesh; calls on all parties to the conflict to take resolute action against such groups; condemns the presence of foreign fighters and calls for the removal of all such fighters from Yemen;

7.  Calls on all the parties to the conflict to allow for immediate and full humanitarian access to the conflict-affected areas in order to assist the population in need; calls on the Council and the UN Security Council, in implementing UN Security Council Resolution 2216 (2015), to identify the individuals obstructing the delivery of humanitarian assistance in Yemen and to impose targeted sanctions on them;

8.  Stresses that the UN Security Council has underlined its support for the UN Verification and Inspection Mechanism (UNVIM), and that the EU fully supports the continuation of UNVIM and the full and unhindered implementation of its mandate;

9.  Calls on all parties to immediately cease all attacks against freedom of expression, and to release all journalists and human rights defenders detained solely for having exercised their human rights; calls on all parties to cease obstructing the work of international media and humanitarian personnel in relation to the conflict;

10.  Calls on all parties to the conflict to take the necessary measures to ensure effective, impartial and independent investigations into all alleged violations and abuses of human rights and alleged violations of international humanitarian law, in accordance with international standards; is deeply concerned about reports of denial of freedom of religion or belief, which include discrimination, unlawful detention, the use of violence, and abuses of human rights, including sexual and other violence against women, men, girls and boys, in violation of international standards;

11.  Calls on all parties to the conflict to end the recruitment or use of children as soldiers and to put a stop to other grave violations committed against them in violation of applicable international law and standards; calls on all parties to release any children who have already been recruited and to cooperate with the UN with a view to their rehabilitation and reintegration into their communities; supports the vital work of UNICEF in Yemen;

12.  Calls on the Specialised Criminal Court in Houthi-controlled territory in Sana’a to acquit and release Asmaa al-Omeissy, Saeed al-Ruwaished and Ahmed Bawazeer, who were forcibly disappeared, tortured and sentenced to death after a grossly unfair trial for allegedly aiding an enemy country;

13.  Calls on the Specialised Criminal Court in Sana’a to immediately release the 25 followers of the Baha’i faith who are currently detained for peacefully practising their religion and face charges punishable by death;

14.  Reminds all parties to the conflict that they are accountable under international law for any crimes committed; urges the Member States to take all necessary measures to hold alleged perpetrators to account, notably through national or international prosecution of individuals, groups and organisations suspected of such violations or the application of the principle of universal jurisdiction, and by investigating and prosecuting the alleged perpetrators of atrocity crimes in Yemen;

15.  Praises the work undertaken by the UN GEE on Yemen and expresses its full solidarity with its Chairman, Kamel Jendoubi; welcomes the annual report of the UN High Commissioner for Human Rights of 24 September 2018 on the situation in Yemen, in which the UN Human Rights Council decided to extend the mandate of the GEE for a further period of one year, renewable as authorised by the Human Rights Council, to include gathering evidence of war crimes and crimes against humanity committed in Yemen, in order to prosecute and punish those guilty of such violations; calls for a referral of the situation in Yemen to the International Criminal Court (ICC); urges Yemen to join the ICC, which would allow for the prosecution of all those responsible for the crimes committed during the conflict, in the absence of a UN Security Council referral;

16.  Calls for the European Union and all Member States to provide cohesive, prompt and effective support to the GEE across all relevant UN bodies, and in the Human Rights Council in particular;

17.  Urges the Council, the VP/HR and the Member States to oppose extrajudicial killings, including the use of drones, to reaffirm the EU’s position under international law and to ensure that Member States do not perpetrate, facilitate or otherwise take part in unlawful lethal operations; urges the Council to adopt a Common Position on the use of armed drones;

18.  Calls on the EU to take the initiative at the next Human Rights Council meeting to raise the issue of membership by states with deeply questionable human rights records;

19.  Urges the VP/HR, the EEAS and the Member States to continue to conduct a dialogue with the countries of the region on human rights and fundamental freedoms; expresses its readiness to hold a constructive and open dialogue with authorities of the countries of the region on the fulfilment of their international human rights commitments; calls for an exchange of expertise on judicial and legal matters in order to strengthen the protection of individual rights in the countries of the region;

20.  Calls on the Council to effectively promote compliance with international humanitarian law, as provided for in the relevant EU guidelines; reiterates, in particular, the need for the strict application by all EU Member States of the rules laid down in Common Position 2008/944/CFSP; recalls, in this regard, Parliament’s resolutions on the situation in Yemen of 25 February 2016 and 30 November 2017; urges all EU Member States in this context to refrain from selling arms and any military equipment to Saudi Arabia, the UAE and any member of the international coalition, as well as to the Yemeni Government and other parties to the conflict;

21.  Denounces the destruction of Yemeni cultural heritage by the airstrikes of the Saudi-led coalition, including the Old City of Sana’a and the historic city of Zabid; regrets and recalls the responsibility of the coalition for this destruction and stresses that it will be held accountable also for such acts; calls on the UN Secretary-General to refer the issue of the protection of all cultural sites under threat from the conflict in Yemen to the Security Council, with a view to the adoption of a resolution on the matter;

22.  Welcomes the UN 2018 Yemen Humanitarian Response Plan and the 2018 High-Level Pledging Event for the Humanitarian Crisis in Yemen, in which international donors pledged more than USD two billion; deplores, however, the fact that a funding gap still exists for Yemen; welcomes the fact that the EU is committed to assisting those affected by the conflict in Yemen and has pledged EUR 107,5 million; calls on all donors to swiftly disburse their pledges; welcomes the fact that the EU will continue to provide development assistance to Yemen, giving priority to interventions directed at stabilising the country, and will work in stable areas with local authorities to promote resilience, to help to maintain the provision of basic services and to foster sustainable livelihoods for communities;

23.  Reserves the right to reconsider the matter until a negotiated solution is reached; recommends that its Subcommittee on Human Rights monitor human rights developments in Yemen and produce a report on the violations of human and civil rights perpetrated in the country;

24.  Instructs its President to forward this resolution to the Council, the Commission, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the governments and parliaments of the Member States, the Secretary-General of the United Nations, the Secretary-General of the Gulf Cooperation Council, the Secretary-General of the League of Arab States and the Government of Yemen.

(1) OJ C 35, 31.1.2018, p. 142.
(2) OJ C 331, 18.9.2018, p. 146.
(3) OJ C 265, 11.8.2017, p. 93.
(4) Texts adopted, P8_TA(2017)0473.
(5) OJ L 335, 13.12.2008, p. 99.


Fighting customs fraud and protecting EU own resources
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European Parliament resolution of 4 October 2018 on fighting customs fraud and protecting EU own resources (2018/2747(RSP))
P8_TA-PROV(2018)0384B8-0400/2018

The European Parliament,

–  having regard to the seventeenth report of the European Anti-Fraud Office on the year 2016,

–  having regard to Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law(1),

–  having regard to Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office(2) and to Commission Decisions (EU) 2018/1094 of 1 August 2018 confirming the participation of the Netherlands in the enhanced cooperation on the establishment of the European Public Prosecutor's Office(3) and (EU) 2018/1103 of 7 August 2018 confirming the participation of Malta in the enhanced cooperation on the establishment of the European Public Prosecutor's Office(4),

–  having regard to Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code(5) and to the related delegated and implementing acts,

–  having regard to the Commission communication of 7 April 2016 on an action plan on VAT (COM(2016)0148),

–  having regard to the European Court of Auditors’ special report No 24/2015 of 3 March 2016 entitled ‘Tackling intra-Community VAT fraud: More action needed’,

–  having regard to customs procedure 42, which provides for VAT exemption on goods imported into one Member State when they will subsequently be shipped to another Member State,

–  having regard to Council Decision 2014/335/EU, Euratom of 26 May 2014 on the system of own resources of the European Union(6),

–  having regard to the European Court of Auditors’ special report No 19/2017 of 5 December 2017 entitled ‘Import procedures: shortcomings in the legal framework and an ineffective implementation impact the financial interests of the EU’,

–  having regard to the motion for a resolution of the Committee on Budgetary Control,

–  having regard to Rule 123(2) of its Rules of Procedure,

A.  whereas traditional own resources, comprised mainly of duties on imports from outside the EU and sugar levies, account for around 12,8 % of EU own resources;

B.  whereas in early 2017 the European Anti-Fraud Office (OLAF) concluded an investigation into a case of customs fraud in the UK, the main conclusions of which appear in the 2017 OLAF activity report;

C.  whereas OLAF calculated a loss for EU budget own resources of EUR 1.987 billion in terms of lost customs duties due on textiles and shoes imported from China through the UK in the period 2013-2016;

D.  whereas, as a means of comparison, in 2016 OLAF recommended the financial recovery of a total amount of EUR 631,1 million as a result of 272 investigations it carried out;

E.  whereas the fraud in question involves undervaluation, whereby importers can derive profit from evading customs duties and related taxes, paying much less than what is legally due;

F.  whereas the investigation also revealed substantial VAT evasion in connection with imports through the UK through abuse of the suspension of the payment of VAT, the so-called customs procedure 42; whereas these losses are cumulatively estimated to be in the range of EUR 3,2 billion for the period 2013-2016, which also represents a loss for the EU budget;

G.  whereas OLAF has issued a financial recommendation to the Commission’s Directorate-General for Budget, an administrative recommendation to the Commission’s Directorate-General for Taxation and Customs Union and a judicial recommendation to the UK Crown Prosecution Service to initiate judicial proceedings against those involved in fraudulently evading customs duties and against those knowingly involved in laundering the proceeds of this offence;

H.  whereas OLAF is currently investigating a new customs undervaluation case involving the port of Piraeus in Greece, which represents a serious loss for EU resources and is estimated to have cost Italy tens of millions of euros in unpaid VAT, though the total could be far higher as the investigation is still ongoing;

I.  whereas the UK and Greek cases are far from being isolated and should act as a trigger to take action;

J.  whereas the European Court of Auditors has pointed out that there is no harmonised and standardised application of customs controls by Member States and that this may incentivise fraudsters to choose the weakest link in the chain to perform their fraudulent imports;

1.  Welcomes the infringement procedure initiated by the Commission on 8 March 2018 as a follow-up to the UK customs fraud case;

2.  Calls on the Commission to take all necessary measures to recover uncollected EU own resources to provide revenue for the EU budget;

3.  Calls on the Directorate-General for Taxation and Customs Union to take action in order to prevent future abuse of customs procedure 42;

4.  Requests that the Commission follow up on the OLAF recommendations and report back accordingly, and regrets the fact that it can take up to 10 years to recover funds;

5.  Urges the Commission to ensure that Member States fully comply with the provisions of the Union Customs Code, which entered into force on 1 May 2016, and to clarify any provisions that may lead to confusion; calls on the Commission and the Member States to make sure that the application of the common rules by customs authorities is organised in such a manner that fraud, including carousel fraud, is effectively prevented and controls are reinforced at ports, airports and land borders and on the internet;

6.  Calls on the Commission to contribute to the completion and financial sustainability of the EU customs information systems;

7.  Calls on the Commission to develop a suitable methodology and produce periodic estimates of the customs gap as from 2019, and to report back to Parliament every six months in this regard;

8.  Calls on the Council to reach a swift agreement with Parliament on a Union legal framework for customs infringements and sanctions, in order to allow harmonised administrative sanctions and the application of the same criteria in consideration of violations; recalls that Parliament adopted its position back in October 2016; calls on the Commission to facilitate this agreement;

9.  Regrets the fact that not all EU Member States have agreed to be part of the European Public Prosecutor’s Office;

10.  Urges the Commission and the Member States to conclude as soon as possible their discussions on efforts towards implementing a definitive VAT system, which aims to harmonise the way VAT is collected and paid across the EU in order, among other things, to avoid fraud;

11.  Calls on the Commission to develop an action plan to ensure the full and timely implementation of the VAT regulations in all Member States with a view to securing this source of EU own resources;

12.  Calls on the Commission to consider transferring the responsibilities of customs authorities from national to EU level as regards ensuring harmonised treatment at all EU points of entry, monitoring the performance and activities of customs administrations, and collecting and processing customs data;

13.  Endorses the objectives of the Customs 2020 Regulation (EU) No 1294/2013(7) to support customs authorities in protecting the financial and economic interests of the Union and of the Member States, including the fight against fraud; emphasises that the Commission must take appropriate measures ensuring that the financial interests of the Union are protected by the application of preventive measures against fraud;

14.  Instructs its President to forward this resolution to the Commission.

(1) OJ L 198, 28.7.2017, p. 29.
(2) OJ L 283, 31.10.2017, p. 1.
(3) OJ L 196, 2.8.2018, p. 1.
(4) OJ L 201, 8.8.2018, p. 2.
(5) OJ L 269, 10.10.2013, p. 1.
(6) OJ L 168, 7.6.2014, p. 105.
(7) OJ L 347, 20.12.2013, p. 209.

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