REPORT on the draft Council implementing decision approving the conclusion by Eurojust of the Memorandum of Understanding between the Office for Harmonisation in the Internal Market and Eurojust

7.12.2015 - (11595/2015 – C8‑0303/2015 – 2015/0811(CNS)) - *

Committee on Legal Affairs
Rapporteur: Kostas Chrysogonos

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the draft Council implementing decision approving the conclusion by Eurojust of the Memorandum of Understanding between the Office for Harmonisation in the Internal Market and Eurojust

(11595/2015 – C8‑0303/2015 – 2015/0811(CNS))

(Consultation)

The European Parliament,

–  having regard to the Council draft (11595/2015),

–  having regard to Article 39(1) of the Treaty on European Union, as amended by the Treaty of Amsterdam, and Article 9 of Protocol No 36 on transitional provisions, pursuant to which the Council consulted Parliament (C8-0303/2015),

–  having regard to Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime[1], and in particular Article 26(2) thereof,

–  having regard to the judgments of the Court of Justice of the European Union of 16 April 2015[2],

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

–  having regard to the report of the Committee on Legal Affairs (A8-0353/2015),

1.  Approves the Council draft;

2.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

3.  Asks the Council to consult Parliament again if it intends to substantially amend the text approved by Parliament;

4.  Instructs its President to forward its position to the Council and the Commission.

EXPLANATORY STATEMENT

The draft implementing decision in question formalises the conclusion by Eurojust of the Memorandum of Understanding between the Office for Harmonisation in the Internal Market (OHIM), for which the Committee on Legal Affairs is responsible under Annex VI to Parliament's Rules of Procedure, and Eurojust.

The purpose of the Memorandum of Understanding (MoU) is to foster cooperation between Eurojust and OHIM in compliance with their respective mandates.

A provision which is particularly worthy of attention is Article 3(5) of the MoU, whereby "[e]xchange of information or experience provided for in this MoU shall not include the transmission of operational information including data relating to an identified or identifiable person". This clarification was positively welcomed by the Joint Supervisory Body of Eurojust. The Rapporteur fully endorses this approach and calls on the Council to be vigilant of the implementation in practice of the data protection guarantee enshrined in Article 3(5) of the MoU.

Another interesting provision is Article 6 on settlement of disputes. Pursuant to paragraph 1 thereof, disputes related to the interpretation or application of the MoU must be settled "by means of consultations and negotiations between representatives" of Eurojust and OHIM, thus excluding the arbitration of any third party. This is in line with most of the other agreements of this kind[3].

In turn, paragraph 2 of the same provision lays down that in the event of serious failing to comply with the provisions of the MoU, or if Eurojust or OHIM is of the view that such failing may occur in the near future, either of them may suspend the application of the MoU temporarily, pending the consultations and negotiations referred to in paragraph 1. This suspension clause is unusual compared with other agreements concluded by Eurojust.

However, it appears that Eurojust and OHIM agreed to conclude the MoU because, in the words of Recital 6 thereof, they were "willing and ready to develop strategic cooperation that could help them to achieve their respective objectives". It can be inferred that Eurojust and OHIM acknowledge that the terms of the MoU, including Article 6 thereof, contribute to a better performance of their tasks. It follows that, as it stands, the MoU is in the common interest of Eurojust and OHIM and should be approved as such by the Council.

PROCEDURE – COMMITTEE RESPONSIBLE

Title	Memorandum of Understanding between the Office for Harmonisation in the Internal Market and Eurojust
References	11595/2015 – C8-0303/2015 – 2015/0811(CNS)
Date of consulting Parliament	8.10.2015
Committee responsible        Date announced in plenary	JURI 14.10.2015
Committees asked for opinions        Date announced in plenary	ITRE 14.10.2015	IMCO 14.10.2015	CULT 14.10.2015	LIBE 14.10.2015
Not delivering opinions        Date of decision	ITRE 10.11.2015	IMCO 10.11.2015	CULT 4.11.2015	LIBE 26.10.2015
Rapporteurs        Date appointed	Kostas Chrysogonos 23.10.2015
Date adopted	3.12.2015
Result of final vote	+: –: 0:	20 2 1
Members present for the final vote	Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Therese Comodini Cachia, Mady Delvaux, Laura Ferrara, Enrico Gasbarra, Mary Honeyball, Gilles Lebreton, António Marinho e Pinto, Jiří Maštálka, Emil Radev, Evelyn Regner, Pavel Svoboda, József Szájer, Tadeusz Zwiefka
Substitutes present for the final vote	Angel Dzhambazki, Jytte Guteland, Heidi Hautala, Stefano Maullu, Rainer Wieland, Kosma Złotowski
Date tabled	7.12.2015

• [1]  OJ L 63, 6.3.2002, p. 1.
• [2]  Judgments of the Court of Justice of 16 April 2015 in Joined cases C-317/13 and C-679/13, Parliament v Council, ECLI:EU:C:2015:223, and in Case C-540/13, Parliament v Council, ECLI:EU:C:2015:224.
• [3]  See for instance Article 9 of the Memorandum of Understanding on cooperation between the European Union Agency for Fundamental Rights (FRA) and Eurojust, Article 9 of the Memorandum of Understanding on cooperation between Frontex and Eurojust, and Article 7 of Memorandum of Understanding on cooperation between Eurojust and the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA). An exception is to be found in Article 21 of the Agreement between Eurojust and Europol where the arbitration of an ad hoc Committee is foreseen.