Explanatory Memorandum to COM(2021)782 - Information exchange between law enforcement authorities of Member States - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)782 - Information exchange between law enforcement authorities of Member States. |
|---|---|
| source | COM(2021)782  |
| date | 08-12-2021 |
1. CONTEXT OF THE PROPOSAL
• General context
As set out in the EU Security Union Strategy 1 , the new Counter-terrorism agenda for the EU 2 and the EU Strategy to tackle Organised Crime 2021-2025 3 , transnational threats call for a coordinated, more targeted and adapted response. While national authorities operating on the ground are on the frontline in the fight against organised crime and terrorism, action at Union level and global partnerships are paramount to ensure effective cooperation as well as information and knowledge exchange among national authorities, supported by a common criminal law framework and effective financial means. Furthermore, organised crime and terrorism are emblematic of the link between internal and external security. These threats spread across borders and manifest themselves in organised crime and terrorist groups that engage in a wide range of criminal activities.
In an area without internal border controls ('the Schengen area' 4 ), police officers in one Member State should have equivalent access to the information available to their colleagues in another Member State (subject to the same conditions). They should cooperate effectively and by default across the Union. Exchange of information on criminal matters is thus a key enabler to safeguarding security in the Schengen area.
Together with the abolition of internal border controls within the Schengen area, a set of rules for information exchange and police cooperation were agreed upon in the Convention Implementing the Schengen Agreement (CISA). In addition, the Schengen Information System (SIS) was established, creating a common EU security and border database containing information on wanted and missing persons and objects in the forms of alerts.
According to the EU Serious and Organised Crime Threat Assessment 2021 (EU SOCTA), more than 70% of organised crime groups are present in more than three Member States 5 . The 2021 EU SOCTA and the EMCDDA European Drug report 6 outline a number of areas where serious and organised crime appears to be on the rise. At the same time, as set out in the December 2020 Counter-Terrorism Agenda 7 , the EU remains on high terrorist alert.
The Schengen area is the largest free travel area in the world. It allows more than 420 million people to move freely and goods and services to flow unhindered. By removing border controls between Member States, the Schengen area has become part of our European way of life. It is a symbol of Europe's interconnectedness and of the ties between European citizens 8 . The Schengen area also contributes to the efficient functioning of the Single Market, and thus to the growth of the Union's economy 9 .
However, the growing mobility of people within the EU also creates additional challenges in preventing and fighting criminal threats, and in ensuring public safety. Almost 2 million people commuted across borders, including 1.3 million cross-border workers 10 . Despite the COVID-19 pandemic having reduced intra-EU mobility, flows of people will likely continue to be important in the future.
In recent years, the Schengen area has been repeatedly put to the test by a series of crises and challenges which have led several Member States to reintroduce internal border controls. One reason Member States have given for such a decision has been the uncontrolled secondary movements 11 of irregular migrants, which these Member States consider to pose a serious threat to public policy or internal security, justifying the need to reintroduce border controls. Pursuant to Regulation (EU) 2016/399 12 ('Schengen Borders Code'), the temporary reintroduction of border controls may be used only for a limited period of time, in exceptional circumstances (such as the migratory crisis observed in 2015/2016), as a last resort measure. In particular, there is room for improvement as regards the use of police checks and cooperation, including of course with regard to information exchange and communication. These measures, in particular if combined, have the potential to yield the same results in controlling secondary movements as temporary internal border controls, and are less intrusive when it comes to the free movement of persons, goods and services.
The rapidly evolving criminal landscape and the mobility of people suggest that cross-border cooperation between law enforcement authorities in the EU and the Schengen area is crucial to tackle criminal offences, and allow citizens and third country nationals legally staying on the territory to safely use their free movement. However, important challenges remain for law enforcement authorities' ability to exchange information with their counterparts in other Member States in an effective and efficient manner. This capability still varies greatly among the Member States highlighting a degree of fragmentation detrimental to the effectiveness and efficiency of information exchange. As a result, criminals and groups of criminals continue to take advantage of these inefficiencies to operate across borders, and secondary movements of irregular migrants will continue to pose a problem.
• Reasons for and objectives of the proposal
The overall objective of this proposal is to legislate on organisational and procedural aspects of information exchange between law enforcement authorities in the EU with a view to contributing to the effective and efficient exchange of such information, hence protecting a fully functioning and resilient Schengen area. The proposal is (notably) without prejudice to the rules regulating the information exchange on alerts in the SIS via the Supplementary Information Request at the National Entries (SIRENE) Bureaux.
This proposal for a Directive on information exchange between law enforcement authorities of Member States forms part of a coherent package also comprising a proposal for a Council Recommendation reinforcing operational cross-border police cooperation, a proposal for a Regulation revising the Automated Data Exchange Mechanism for Police Cooperation ("Prüm II") as well as a proposal amending the Schengen Borders Code as set out in the Commission Communication of June 2021 'A strategy towards a fully functioning and resilient Schengen area' 13 . Together, these proposals seek to establish a Police Cooperation Code with the objective of streamlining, enhancing, developing, modernising and facilitating law enforcement cooperation between relevant national agencies, thus supporting Member States in their fight against serious and organised crime and terrorism.
Taking full account of the opinion expressed by the co-legislator, this proposal is based on the findings presented in the accompanying Impact Assessment. These findings also cover information, analyses and recommendations stemming from the Schengen evaluations in the field of police cooperation carried out in the past six years, the Communiction from the Commission on the way forward on aligning the former third pillar acquis with data protection rules 14 , the extensive consultations with relevant stakeholders in the past two years, and the important body of Council guidance papers developed for the last 15 years. Based on this combined analysis, three main objectives were identified. The present proposal seeks to achieve them by addressing three underlying problems.
Lack of clear and robust common rules on information exchange
The first objective of this proposal is to ensure, under precise, consistent and common rules, the equivalent access for any Member State's law enforcement authorities to information available in other Member States for the purpose of preventing and detecting criminal offences, conducting criminal investigations or criminal operations, while complying with fundamental rights, including data protection requirements.
Member States' Law Enforcement Authorities (LEAs) are involved in daily cross-border information exchanges related to operations against criminal offences. Yet, rules at national level impede the effective and efficient flow of information. The general rules for the exchange of law enforcement information which has cross-border relevance among Member States' law enforcement authorities are laid down in Council Framework Decision 2006/960/JHA simplifying the exchange of information between law enforcement authorities of the Member States of the European Union (hereinafter referred to as Swedish Framework Decision or SFD 15 ), adopted in 2006 before the entry into force of the Treaty of Lisbon. The Swedish Framework Decision partially superseded the police cooperation Chapter of the 1990 Convention Implementation the Schengen Agreement 16 .
The Swedish Framework Decision lays down the principles according to which information should be shared (principles of availability and equivalent access), the timeframe within which a request for information should be replied to, the forms that should be used to lodge and reply to such requests, as well as the data protection safeguards to be ensured when handling these information.
In practice, however, the 2006 Swedish Framework Decision is unclear, thereby hampering the full implementation of the principles of availability/equivalent access of relevant information in a cross-border context 17 . As a consequence, rules at national level continue to impede the flow of information despite the efforts made to complement the Swedish Framework Decision requirements by means of Council non-binding guidance 18 . Consequently, the current uncertainties would remain and continue to negatively affect the effective and efficient sharing of information, thereby leaving the impacts in the evolution of the EU security landscape and in the increased cross-border mobility essentially unaddressed.
For this reason, establishing a legal framework by means of a Directive for these purposes will allow a better monitoring and enforcement of rules at EU and national levels, while ensuring a convergence of national practices, thereby improving the effectiveness and efficiency of information flows between Member States.
Lack of common structures and efficient management tools for exchanging information
The second objective of this proposal for a Directive is to approximate common minimum standards with a view to ensuring an efficient and effective functioning of the Single Points of Contact. These common minimum requirements cover the composition, structures, responsibilities, staffing and technical capabilities.
Member States are responsible for the maintenance of law and order and the safeguarding of internal security 19 . They are in principle free to organise their law enforcement authorities and services as they see fit. When it comes to law enforcement cooperation structures, all Member States have set up or are in the process of setting up a Single Point of Contact 20 competent for channelling as much information exchange as possible. Based on national law or internal rules, law enforcement authorities may also exchange information directly between themselves. Although different manuals and national factsheets have been produced in order to facilitate a harmonised approach to the way national Single Points of Contact are organised, there are still significant differences across Member States as regards their structures, functions, means and capabilities.
As a result, Member States do not always have the necessary structures in place to exchange information effectively and efficiently with other Member States. National Single Points of Contact do not always play their coordination role and can lack resources to face the increasing number of requests.
Notably, they are not always equipped with the necessary information management tools (for example, a case management system with a common dashboard and automatic data upload and cross-check). Additionally, the Single Points of Contact do not always have direct and user-friendly access to all relevant EU and international databases and platforms. Moreover, some Single Points of Contact have limited access to relevant national databases, which further delays the overall information exchange process. Furthermore, the Single Points of Contact can lack resources to timely and effectively address the increasing number of requests received. Indeed, this rising trend has not always been accompanied by a proportionate increase of human and IT resources.
A modern information management architecture, already in use in some advanced Single Points of Contact, can alleviate tensions on limited human resources through the integration of information held by competent authorities in their respective databases, thereby also monitoring and tracking the deadline for answers to information requests 21 . Databases available at Single Points of Contact are not always used to their full potential either because of rudimentary search tools, preventing the adoption of transliteration 22 techniques and 'fuzzy logic' 23 search functions. The lack of transliteration and fuzzy logic search options within information systems prevents officials from getting exhaustive results (hits) through a unique query. As a result, officials have to carry out a new search for each personal detail they are investigating, resulting in an increased workload, which slows down the search process (for example, inversion of first and last name, different spelling used for the same individual notably stemming from different languages, alphabets and diacritic accents).
At present, deadlines are almost always exceeded when a judicial authorisation is required. The functional availability of a judicial authority, as it is already the case in more effective and efficient Single Points of Contact, will contribute to alleviate undue delays. Indeed, cases requiring a judicial authorisation can be handled more swiftly than what is currently the case, meaning that deadlines can be more readily met also in these cases.
Lack of common practice in the use of existing communication channel(s) to exchange information within the EU
The third objective of this proposal for a Directive is to remedy the proliferation of communication channels used for law enforcement information exchange between Member States while reinforcing Europol’s role as the EU criminal information hub for offences falling within its mandate.
Besides a number of system-specific cases regulated by EU law (i.e. requests for supplementary information related to SIS alerts must be made via SIRENE Bureaux 24 , and information exchange with Europol usually via ENUs 25 ), Member States have not agreed on a single channel of information exchange between their law enforcement authorities for cases with an EU dimension, leading to duplication of requests, undue delays and occasional information loss.
As a result, Member States use different channels to different extents to request, send and receive information, often without any clear, pre-defined rationale 26 , which hampers effective and efficient exchange of information. This also deprives national authorities from Europol's support even though Member States call on the Agency to be an EU criminal information hub able to deliver qualitative information-led products.
Single Points of Contact do not always ensure the monitoring of existing channels 24/7 resulting in possible negative impacts on cross-border cases requiring urgent information sharing. At the same time, Europol's Secure Information Exchange Network Application (hereinafter SIENA) is being underused in spite of its tailored features and strong data security infrastructure. Even when Member States do use SIENA, they do not always involve (by copying in) Europol, even though the information exchanged falls within its mandate. This can create significant information gaps at EU level.
• Consistency with existing policy provisions in the policy area
The present proposal is consistent with existing and upcoming policy provisions in the domain of law enforcement cooperation. Law enforcement cooperation is an area of shared competence between the EU and the Member States. In recent years, progress was made to improve the exchange of information cooperation between Member States and to close down the space in which terrorists and serious criminals operate. The legislative framework on counterterrorism and information exchange was strengthened in the aftermath of the terrorist attacks in Europe. Following the migration crisis of 2015, the general architecture of Justice and Home Affairs (JHA) information systems and databases was overhauled with a focus on interoperability 27 and dynamic convergence between security, borders and migration management. Moreover, greater cooperation between law enforcement bodies was promoted at EU level through the publication of (non-binding) Council recommendations and guidelines seeking to facilitate the convergence of national practices.
As the two legs of law enforcement cooperation essentially relate to (i) information exchange (which is the focus of the present proposal), and (ii) operational cross-border cooperation, the present proposal will form part of a coherent package with the accompanying proposal for a Council Recommendation on aspects of cross-border operational police cooperation. This package is complemented with the parallel proposal for a Regulation revising the Automated Data Exchange Mechanism for Police Cooperation ("Prüm II"). The 'Prüm II' proposal will aim at strengthening the technical architecture of the Prüm exchange, broadening its scope of data categories and streamlining and accelarating its post-hit data exchange. The reinforced 'Prüm II' proposal would provide specific rules and possibilities for the automated exchange of specific – and particularly important – data categories (for example, fingerprints, DNA, facial images) within the overall framework and general rules for general information exchange that this Directive will provide.
As an important measure to enhance security within the EU, the present proposal will also contribute to a fully functioning and resilient Schengen area as set out in the Schengen Strategy. This proposal is also in full coherence with the 2020 proposal revising the Europol mandate 28 with a view to strenghening the agency's mandate on processing large and complex datasets as well as with the European Production and Preservation Orders for electronic evidence in criminal matters 29 . The proposal complements the legal framework 30 on the exchange of information on alerts in the SIS through the SIRENE Bureaux. This proposal is without prejudice to all those other acts of Union law, as well as other ones such as Directive 2019/1153 of 20 June 2019 laying down rules facilitating the use of financial and other information for the prevention, detection, investigation or prosecution of certain criminal offences, and repealing Council Decision 2000/642/JHA for the purpose of facilitating access to and the use of financial information and bank account information by competent authorities for the prevention, detection, investigation or prosecution of serious criminal offences 31 .
• Consistency with other Union policies
The present proposal aims to contribute positively to a fully functioning and resilient Schengen area, allowing more people to move freely, and goods and services to flow unhindered, which in turn contributes to the efficient functioning of the Single Market, and thus to the growth of the Union's economy. The present proposal is therefore fully consistent with other Union policies in the field of employment, transport, and ultimately economic growth in intra-EU border regions, but also across the entire EU.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The legal basis for EU action in the field of intra-EU law enforcement cooperation is Title V, Chapter 5 of the Treaty on the Functioning of the European Union (TFEU). Pursuant to Article 87 TFEU: "the Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences". More specifically, Article 87(2)(a) TFEU relates to measures concerning the collection, storage, processing, analysis and exchange of information relevant for the prevention, detection and investigation of criminal offences. The present legal proposal is to be adopted according to the ordinary legislative procedure.
• Subsidiarity (for non-exclusive competence)
EU action is needed to properly address the problems identified in the first section of this explanatory memorandum. The objective of improving information flows between relevant law enforcement authorities and with Europol cannot be sufficiently achieved by the Member States acting alone. Owing to the cross-border nature of crime and terrorism, the Member States are obliged to rely on one another. Hence, the establishment of common rules for the exchange of information can be better achieved at the Union level. Despite the existence of a number of national and regional measures in place, Member States alone would not be able to ensure the full implementation of the principles of availability and of equivalent access to information. If acting alone and on the basis of national schemes, Member States would not overcome current differences among Single Points of Contact, which hinder the efficient and effective exchange of relevant information across borders. They would not ensure an appropriate and uniform level of knowledge of, and capacity in, the use of relevant databases and communication channels.
The EU is better equipped than individual Member States to ensure the coherence of actions taken at national level, address the divergence of national practices, prevent duplications, overlaps and uncertainties and eventually facilitate an efficient counter-action to cross-border crime and terrorism. EU action, in response to the identified problems, is expected to bring added value for the entire EU, and therefore to its citizens, as it will render more resilient and robust the Schengen area, with a ripple effect on Schengen Associated Countries 32 . Common EU level rules, standards and requirements facilitating information exchange on cross-border crime between law enforcement authorities will generate significant economies of scale while ensuring high-level data security and data protection standards.
Law enforcement cooperation at EU level does not replace national policies on internal security. It does not substitute the work of national law enforcement authorities. Instead, EU level action supports and reinforces national security policies and the work of national law enforcement authorities against cross-border crime and terrorism.
• Proportionality
The present proposal aims to consolidate the EU legal framework in a single legal instrument on information exchange through the lisbonisation of the Swedish Framework Decision. It also contains provisions stemming from a set of Council non-binding guidelines adopted over the past 15 years. Considering the call of the co-legislator and the willingness expressed by Member States in the consultation phase, this proposal for a Directive addresses the identified problems without going beyond what is strictly necessary to achieve the objective of ensuring effective and efficient information flows between Member States.
• Choice of the instrument
Building on previous relevant Council Conclusions 33 , the present Commission proposal for a Directive aims to achieve effective and efficient information flows between law enforcement authorities of the Member States, by means of a substantial approximation of Member States' legislation concerning information exchange and communication. Its provisions ensure the respect of the conferral of powers as well as the differences in the legal systems and traditions of the Member States, as acknowledged by the Treaties. In light of the above, the proposed legal proposal takes the form of a Directive.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
The consultation involved relevant stakeholders from a wide range of subject matters, national police, customs, judicial and data protection authorities, civil society organisations, academia, and from members of the public on their expectations and concerns relating to strengthening law enforcement cooperation in the EU 34 .
The Commission used different means of engagement such as targeted questionnaires, experts' interviews, focus groups, case-studies, and organised thematic workshops with Member States and Schengen Associated Countries' representatives. The subject matters and the policy options presented in the Impact Assessment accompanying the present proposal were also discussed within the relevant Council's Working Parties (for example, Law Enforcement Working Party/Police, Law Enforcement Working Party/Customs, Standing Committee on Operational Cooperation on Internal Security).
In addition, in line with the Better Regulation Guidelines 35 , the Commission launched a Public Consultation. The results of the consultation activities (20 answers) have been duly taken into account in the preparation of the present proposal 36 .
• Collection and use of expertise
Numerous consultation activities – such as scoping interviews, questionnaires and online surveys, semi-structured interviews, case-studies and focus groups – were also conducted by the contractor during the preparation of a Study to support the preparation of an impact assessment on EU policy initiatives facilitating cross-border law enforcement cooperation.
• Impact assessment
In line with the Better Regulation guidelines, an Impact Assessment was carried out for the preparation of the present legislative proposal. Based on its findings, the Commission identified three main problems which corresponds to three main specific objectives of the present proposal (as mentioned above). Correspondingly, three policy options with different degrees of intervention were considered for potentially achieving each of the specific objectives 37 .
Specific objective 1: Facilitate equivalent access for law enforcement authorities to information held in another Member State, while complying with fundamental rights, including data protection requirements.
Contents
ensuring alignment of the provisions currently contained in the 2006 SFD with the 2016 Data Protection Law Enforcement Directive;
developing a set of new flanking ‘soft’ measures, such as training and Commission guidance on specific aspects law enforcement information exchange, as appropriate;
improving the clarity of the SFD provisions. This is done through a clarification on the SFD scope and a simplification of its use. Commission guidance on the national datasets available in each Member States for possible exchange may also be developed to further improve implementation, as appropriate;
facilitating compliance with deadlines requirements by which information is to be made available to another Member State, including when a judicial authorisation is required.
Specific objective 2: Ensure that all Member States have an effective functioning Single Point of Contact, including when a judicial authorisation is required to provide information upon request of another Member State.
developing a new set of flanking ‘soft’ measures, such as training, financial support and Commission guidance of relevance, as appropriate;
establishing minimum common requirements on the composition of the Single Points of Contact (including when a judicial authorisation is required), their functions, staffing, capabilities.
Specific objective 3: Remedy the proliferation of communication channels used for law enforcement information exchange between Member States, while reinforcing Europol’s role as the EU criminal information hub for offences falling within its mandate.
developing new set of flanking ‘soft’ measures, such as training, financial support and Commission guidance on information sharing, as appropriate;
requiring Member States to use SIENA for all bi- and multilateral information exchanges under the proposed Directive after a necessary transition period ensuring the full roll-out of SIENA.
These measures will streamline, clarify, develop and modernise cross-border law enforcement cooperation, while better safeguarding fundamental rights in particular as regards the protection of personal data (as explained below). It will also step up Europol support to Member States in countering evolving threats. The preferred policy option will ensure a strong convergence of national practices regarding the effective and efficient functionning of Single Point of Contact, through common minimum standards.
The most positive impacts of the preferred policy option are expected to stem from establishing the Single Point of Contact as a 'one-stop shop' for law enforcement cooperation in all Member States. The establishment of Europol SIENA as the default channel of communication will add to the streamlining of law enforcement information exchange, while ensuring the convergence of information at Europol, and the security of such information (and personal data). The preferred policy option also contains flanking measures such as relevant trainings and financial support, key enablers to achieving the specific objectives presented above. The preferred option reflects the best cumulative impacts as regards to relevance, added value, effectiveness, efficiency, coherence and proportionality. It draws lessons from the past and, at the same time, is sufficiently ambitious. The preferred option takes duly account of the views expressed by the Member States while responding to the legitimate expectations of the EU citizens and businesses. In doing so, the preferred option contributes to the effective and efficient functioning of the Schengen area.
• Fundamental rights
The Impact Assessment accompanying the present proposal analysed the effects that each policy options, including the measures envisaged by this proposal for a Directive, potentially have on fundamental rights of citizens. By definition, any policy options addressing information sharing between law enforcement authorities, have an impact on the right to protection of personal data, as provided for by Article 8 of Charter of Fundamental Rights of the EU (hereinafter: Charter) and Article 16 of the Treaty on the Functioning of the European Union.
The policy options also have a potential impact on other fundamental rights, such as those protected by Articles 2 (Right to life), 3 (Right to the integrity of the person), 6 (Right to liberty and security), 17 (Right to property) and 45 (Freedom of movement and of residence) of the Charter. The Impact Assessment considered that the chosen policy options are proportionate since they are limited to what is strictly necessary to meet the objective of safeguarding the internal security in the Schengen area while protecting the free movement of persons 38 .
Furthermore, the alignment of the relevant rules on exchanges of information for law enforcement purposes with the subsequently adopted and applicable rules on processing personal data for law enforcement purposes (pursuant to the 2016 Law Enforcement Data Protection Directive; hereinafter: LED 39 ) are expected to positively impact safeguarding citizens' fundamental rights. The use of SIENA as the communication channel will also enhance the security of the personal data processing systems and their overall protection against possible abuses. As the LED provides and ensures the required level of personal data protection in the Union, there is no need to go beyond it. Instead, the alignment will ensure full consistency with the EU personal data protection rules, including those contained in the LED. In this manner, effect is given to the Commission’s commitment contained in a 2020 Communication to 'make a legislative proposal, which as a minimum will entail an amendment of Council Framework Decision 2006/960/JHA to ensure the necessary data protection alignment, in the last quarter of 2021' 40 .
4. BUDGETARY IMPLICATIONS
While highly depending from the specificities of each national IT set-up and legal parameters, an estimation of possible costs has been provided by Europol and reported in the Impact Assessment accompanying this proposal. The necessary IT upgrades in both Single Points of Contact and Police and Customs Cooperation Centres 41 were estimated to amount to a maximum one-off total of EUR 11,5 million. These are deemed to be divided as follows:
–1,5 million to set-up Case Management Systems (CMS) in 10 MS (not yet equipped);
–1 million to integrate SIENA in the CMS of the Single Points of Contacts of 20 MS (not yet equipped);
–2,25 million to establish connection of Police and Customs Cooperation Centres with SIENA in a maximum of 45 Police and Customs Cooperation Centres (14 out of 59 are already connected);
–6,75 million to set-up CMSs in a maximum of 45 Police and Customs Cooperation Centres (45x EUR 150.000).
These costs (one-off investment) are deemed acceptable and proportionate to the identified problem and do not go beyond what is necessary to achieve the specific objectives set out by this proposal for a Directive. It should be noted that Member States are in any case pursuing a modernisation of their IT systems (also in the context of the interoperability of EU information systems). This provides a good opportunity for cost effective implementation of the changes envisaged by the provision of this proposal. These estimations do not cover training needs since, especially for IT upgrades, the training costs are highly depending from the specificities of each national IT set-up and legal parameters.
In any event, the costs at national level should be covered by Member States' programmes under the Internal Security Fund 42 . The Internal Security Fund includes the specific objective to 'improve and facilitate the exchange of information' and to 'improve and intensify cross-border cooperation' 43 . When preparing their national programmes, Member States are thus invited to include activities relevant for the implementation of the envisaged Directive, with explicit reference to Single Points of Contact and Police and Customs Cooperation Centres, and the connection to SIENA. As some Member States are more advanced than others in their level of cooperation, the cost of implementing the proposed Directive will vary between Member States.
Apart from the costs potentially covered by Member States’ programmes under the Internal Security Fund, there will be no other costs borne at EU level.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
The evaluation of impacts of the proposed measures depends on the information to be received from the Member States. For this reason, the present proposal contains provisions on collection of data indicators. The responsibility for the collection of the relevant monitoring data should be in the remit of national authorities, ideally the Single Points of Contact. Subsequently, the monitoring of these activity indicators will be used to inform on the application of the proposed measures.
In this connection, the present proposal requires the Commission to submit a report to the European Parliament and to the Council, assessing the extent to which the Member States have taken the necessary measures to comply with this proposed Directive. The relevant article also requires the Commission to submit a report to the European Parliament and to the Council assessing the added value of the Directive, 5 years after the entry into force, and consider a possible review of the Directive upon relevance.
Aside from this legal proposal, the Commission, acting by virtue of its administrative autonomy, will set up an informal expert group composed of experts from each Member State, to advise and support the Commission in the monitoring and application of the Directive, including in the preparation of Commission guidance papers. This expert group could be built upon the existing informal Head of the Single Points of Contact' network. Last but not least, the evaluation and monitoring mechanism to verify the application of the Schengen acquis in the field of police cooperation will continue to be carried out, in line with the current Council Regulation 44 , and eventually in line with its possible amendment 45 . These evaluation reports have so far covered the implementation of the Swedish Framework Decision. Future evaluations will encompass the application of the envisaged new Directive.
• Detailed explanation of the specific provisions of the proposal
General provisions for information exchange between Member States' law enforcement authorities for the purpose of preventing, detecting and investigating criminal offences (Art. 1 to Art.
3)
The first block of provisions builds on the structure and substance of the Swedish Framework Decision in force since 2006. In addition, it brings its scope and contents in line with the provisions concerning police cooperation (Title V, Chapter 4) as introduced by the Treaty of Lisbon in force since 2009.
Article 1 defines the scope of application of the horizontal rules for exchanging information for the purposes of preventing, detecting or investigating criminal offences. The provisions of this Directive apply unless otherwise regulated by other, specific acts of EU law.
Article 2 defines a number of key terms, such as the authorities subject to the horizontal rules on information exchange, the criminal offences concerned and the type of information available to law enforcement authorities.
Article 3 outlines three principles that must be respected when exchanging information between the Member States under the Directive: the principle of equivalent access establishing that substantially the same conditions must exist for information exchanges within a Member State and between Member States; the principle of availability stating that if information is available concerning a criminal offence in a Member State, this must, as a general rule, be made available to other Member States as well; and the principle of confidentiality guaranteeing that Member States respect each other’s confidentiality requirements when treating such information by ensuring a similar level of protection.
Exchange of information through the Single Point of Contact (Art. 4 to Art.
6)
Article 4 sets out a number of requirements regarding requests for information sent to the Single Point of Contact. This notably concerns criteria justifying the request and qualifying urgency. The request is to be submitted by the Single Point of Contact of other Member States or, where a Member State decides so, by other law enforcement authorities. The language used for the request must be chosen among a list of languages that each Member States is obliged to establish and that is to be published in the Official Journal of the EU.
Article 5 establishes the obligation for the Single Point of Contact receiving the requests for information referred to in Article 4 to process and respond to the requests within precise time limits, which may be derogated from only in certain narrowly specified circumstances, namely, when a judicial authorisation is required. Such provision of information will have to be done in the same language used for the request.
Article 6 lays down an exhaustive list of grounds that the Single Point of Contact may invoke, where objectively justified, to refuse the disclosure of the requested information, of which the relevant authority of the requesting Member State must be promptly informed. The possibility for the Single Point of Contact to seek clarifications as to the content of the requests is foreseen, which will suspend the applicable time limits, yet only if the clarifications are objectively necessary to avoid the request being refused. In respect of other clarifications that may be deemed necessary, there will be no such suspension.
Other exchanges of information (Art. 7 to Art.
8)
Article 7 establishes the obligation for Member States to share information with another (other) Member State(s) spontaneously, i.e. on the relevant authority’s own initiative without a request for information having been submitted, when that information is likely to assist in achieving one of the purposes specified in the Directive.
Article 8 ensures that the relevant Single Points of Contact are kept informed of any exchange of information upon request, other than requests submitted to the Single Point of Contact, i.e. either information exchanges upon request handled directly between law enforcement authorities of different Member States or upon requests for information submitted by a Single Point of Contact to a law enforcement authority of another Member State. This includes relevant information exchanges by Police and Customs Cooperation Centres and any other equivalent bodies, in as far as they qualify as law enforcement authorities under the proposed Directive.
Additional rules on the provision of information under Chapter II and III (Art. 9 to Art. 13)
Article 9 addresses situations where, under the national law of the Member State to which relevant information is available, a judicial authorisation is required for the provision of that information, either upon request or spontaneously and either by the Single Point of Contact or by a law enforcement authority. This provision gives effect to and further specifies the principle of equivalent access, meaning that substantially the same conditions must apply when the requested information is subject to judicial authorisation, regardless of the fact that the information is to be provided to an authority of another Member State rather than to an authority of the same Member State. This article also establishes that the authority concerned must immediately take all necessary steps, both practically and legally, in accordance with their national law, to obtain such judicial authorisation as soon as possible.
Article 10 sets out certain requirements aimed at ensuring adequate protection of personal data, resulting in particular from the alignment with the rules of the LED.
Article 11 regulates the language to be used by Single Points of Contact and law enforcement authorities in the situations specified in this Directive, both as regards the actual provision of information and any other communications related thereto. No such language requirements apply to the direct information exchanges and other communications referred to in Article 8. Member States are to establish a list of languages acceptable to them, which should also include English. Such lists must be published by the Commission in the Official Journal of the EU.
Article 12 introduces the obligation for the Single Point Contact as well as all other law enforcement authorities to systematically keep informed Europol (meaning put in copy), insofar as the exchanges concern crimes falling under the scope of Europol’s mandate as specified in its basic act. This obligation ensures that Europol can fulfil its role of information hub in the EU in relation to information relevant for law enforcement purposes.
Article 13 requires all relevant authorities to use – and, to that aim, be directly connected to – the Secure Information Exchange Network Application (SIENA), managed by Europol, for all exchanges of information and related communications covered by the Directive. These rules on the mandatory use of SIENA do not apply where specific acts of Union law contain different requirements on the communication channel to be used, for instance for information exchanges governed by the SIS Regulation 46 , given that exchanges under such specific acts are excluded from the scope of this Directive.
Minimum requirements on establishing a Single Point of Contact as a central entity to coordinate information exchange between Member States (Art. 14 to Art. 16)
The fifth block of provisions sets out and builds on the obligation for each Member State to establish or designate a Single Point of Contact as the central entity coordinating information exchanges between its law enforcement authorities and those of other Member States within the scope of the Directive. It lays out a number of minimum requirements that any Single Point of Contact must comply with.
Article 14 sets out the tasks and capabilities of the Single Point of Contact. In order to carry out its functions, the Single Point of Contact is to have access to the necessary information and be kept systematically informed of all direct information exchanges between its national authorities and those of the other Member States. The actual establishment or designation of the Single Points of Contact must be notified, within a set time period, to the Commission, which must then publish such notifications in the Official Journal of the EU.
Article 15 establishes minimum requirements regarding the composition of the Single Point of Contact, leaving a degree of flexibility to each Member State to determine its precise organisation and composition as deemed most appropriate depending on its national circumstances, provided the requirements of the Directive are met.
Article 16 defines minimum requirements for the Case Management System of the Single Points of Contact.
Final provisions
The final provisions ensure that the implementation of the proposed Directive is properly monitored. Firstly, by the Member States, through the obligation to collect and provide a minimum set of statistical data on a yearly basis (Article 17). Secondly, by the Commission, through the obligation to report to the European Parliament and the Council, having regard inter alia to the data provided by Member States, thus allowing, thirdly, those two institutions to monitor the Directive’s implementation as well (Article 18).
Finally, Articles 19, 20, 21, 22 and 23 deal with a number of necessary legal-technical issues, namely, the deletion or repeal of pre-existing rules which the rules of the proposed Directive replace, transposition into national law, as well as entry into force and addressees. As regards the existing rules contained in the CISA (Article 19), Article 39 thereof is replaced only insofar as it relates to information exchange for the purpose specified in the proposed Directive. Article 39 continues to be applicable to other forms of police cooperation covered by that article. In contrast, Article 46 of the CISA, which specifically relates to such information exchange, is fully superseded by the proposed Directive and is therefore deleted.