text: COM(2026) 570 final. 1

text: OJ L 295, 21.11.2018, p. 39. 3 COM(2026) 570 final. 4 See SWD(2025) 182 final. The evaluation identified significant structural and operational constraints that impede its ability to fully realise its potential. According to the evaluation, these constraints include inefficiencies in internal governance, inconsistencies in the application of the Regulation across Member States, and limitations on cooperation with EU partners and third countries. COM(2026) 570 final, p. 1. 6 See COM(2026) 580 final. 7 See COM(2026) 313 final. 8 See COM(2026) 314 final. 4

text: See COM(2026) 570 final, Explanatory Memorandum, p. 2. 10 See Annex I of the Proposal. 11 See Chapter III, Section II. 12 See Art 5(6)(d). 13 See

text: Article 5(6)

text: (c)(ii). 14 For more detail, see Section 5. 15 For more detail, see Section 4. 16 For more detail, see Section 7. 5

text: See Art 43 of the Proposal and COM(2026) 570 final, Explanatory Memorandum, p. 12 as well as Recital 11 EUDPR. 18 For example, rules on onward transfers of personal data. 19 See, for instance, EDPS Opinion 4/2021 on the Proposal for Amendment of the Europol Regulation, issued on 8 March 2021, para 40. The EDPS notes the Proposal for the revision of the EUDPR aims to identify all common denominators of data protection rules applicable to Europol and Eurojust, and regroups them in the EUDPR, thereby removing fragmentation and duplication. This will allow the founding acts of Union bodies, offices, and agencies active in the area of law enforcement and criminal justice to maintain only those tailored-made data protection rules, developed to reflect their respective specific operational needs and nature. See COM(2026) 314 final, p. 4. 6

text: See

text: Articles 4

text: (c) and 25(2)(e). 21 Recital (25) further indicates that Eurojust should cross-check information stored in the relevant databases ‘systematically’. 22 See to that effect

text: Article 18(6)

text: and

text: Article 28(2)

text: (e). 7

text: See further Section 9 of the Opinion. 25 See also Section 8 of the Opinion. 26 See

text: Article 27(3) of Regulation (EU) 2018/1727

text: of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for Criminal Justice Cooperation (Eurojust), and replacing and repealing Council Decision 2002/187/JHA (OJ L 295, 21.11.2018, pp. 138). 9

text: Judgment of the European Court of Justice of 8 April 2014, Digital Rights Ireland and Seitlinger and others,

text: and C- 594/12, EU:C:2014:238, note 2, par. 64. 28 Idem, note 2, par. 63. 29 The time limit included in

text: Article 45(2)

text: (b), however, refers only to operational personal data transmitted in accordance with

text: Article 38

text: (information provided by Eurojust by national authorities). It does not address operational personal data processed by Eurojust in general, for the performance of its tasks. 10

text: See Article 6(8) of Regulation (EU, Euratom) 2023/2841 of the European Parliament and of the Council of 13 December 2023 laying down measures for a high common level of cybersecurity at the institutions, bodies, offices and agencies of the Union (OJ L, 2023/2841, 18.12.2023, ELI: http://data.europa.eu/eli/reg/2023/2841/oj) 31 Level 1 being the least secure and level 4 the most secure. 11

text: See EDPS Guidance for co-legislators on key elements of legislative proposals, issued on 7 May 2025, para 25-26. See in the same vein also Recital 36 of the Proposal (“The protection of the rights and freedoms of data subjects requires a clear attribution of responsibilities for data protection under this regulation”). 33 See also EDPS Guidance for co-legislators on key elements of legislative proposals, issued on 7 May 2025, para 28-35. 12

text: In case of a hit with restrictions maintained, it should be clarified whether there would a) be a confirmation of a hit by Eurojust but no sharing of (restricted) information b) there would simply be no return of a hit (the system would ‘stay silent’) or c) the system would return a ‘no hit’ feedback. Similarly, for ‘no hit’ situations it should be clarified whether the system would ‘stay silent’ or it would give a ‘no hit’ feedback. 35 See Recital (7) and Articles

text: and Article 34 of the Proposal. 13

text: See Article 61(2) of the Proposal. 37 See, by analogy, Judgment of the Court of Justice of 16 July 2020, Facebook Ireland and Schrems,

text: , EU:C:2020:559, in particular paragraphs 93 to 96 and 105; see also Opinion of the Court of Justice 1/15 of 26 July 2017, EU–Canada PNR Agreement EU:C:2017:592, paragraph 214. 14

text: Where such exchanges involve the Member State of that National Member. 39 See Article 63 (5) of the Proposal. 40 See

text: Article 42(2)

text: (d) of the Proposal. 15

text: On the involvement of the Data Protection Officer, see also paragraph 56 of this Opinion. 42 See

text: Article 4

text: (b),

text: Article 25(2)

text: (b)(iii),

text: Article 28(1)

text: Article 29(3)

text: Article 41(2)

text: (d),

text: Article 53(2)

text: (c) of the Proposal. 16

text: See

text: Article 26 of Regulation (EU) 2016/794

text: of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, pp. 53). 44 See

text: Article 2

text: (g) of

text: Regulation (EU) 2016/794

text: . 17

identifier: EDPS yttrande 19/2026

title: EDPS Opinion 19/2026 on the Proposal for the Regulation on the establishment of Eurojust and repealing Regulation (EU) 2018/1727

text: Opinion 19/2026

text: on the Proposal for the Regulation on the establishment of Eurojust and repealing

text: Regulation (EU) 2018/1727

text: The European Data Protection Supervisor (EDPS) is an independent institution of the EU, responsible under Article 52(2) of Regulation 2018/1725 ‘With respect to the processing of personal data… for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to data protection, are respected by Union institutions and bodies’, and under

text: Article 52(3)

text: ‘… for advising Union institutions and bodies and data subjects on all matters concerning the processing of personal data’.

text: Wojciech Rafał Wiewiórowski was appointed as Supervisor on 5 December 2019 for a term of five years. The selection procedure for a new EDPS mandate for a term of five years is still ongoing.

text: Under Article 42(1) of Regulation 2018/1725, the Commission shall ‘following the adoption of proposals for a legislative act, of recommendations or of proposals to the Council pursuant to

text: Article 218

text: TFEU or when preparing delegated acts or implementing acts, consult the EDPS where there is an impact on the protection of individuals’ rights and freedoms with regard to the processing of personal data’.

text: This Opinion relates to the Proposal for a Regulation of the European Parliament and of the Council on the establishment of the European Union Agency for Criminal Justice Cooperation (Eurojust) and repealing

text: Regulation (EU) 2018/1727

text: This Opinion does not preclude any future additional comments or recommendations by the EDPS, in particular if further issues are identified or new information becomes available. Furthermore, this Opinion is without prejudice to any future action that may be taken by the EDPS in the exercise of his powers pursuant to

text: Regulation (EU) 2018/1725

text: This Opinion is limited to the provisions of the Proposal that are relevant from a data protection perspective.

text: Executive Summary

text: On 24 June 2026, the European Commission adopted the Proposal for a Regulation of the European Parliament and of the Council on the establishment of the European Union Agency for Criminal Justice Cooperation (Eurojust) and repealing

text: Regulation (EU) 2018/1727

text: The Proposal aims to improve Eurojust’s internal functioning, governance, and operational performance as well as to expand Eurojust’s mandate to cover emerging crime areas such as cybercrime, gender-based violence, and violations of EU restrictive measures, and to reinforce its analytical and proactive capabilities.

text: The EDPS supports the aim of the Proposal to streamline data protection rules for operational personal data processed by Eurojust, by identifying all common denominators of data protection rules applicable to Eurojust and regrouping them in

text: Regulation (EU) 2018/1725

text: (EUDPR), thereby removing fragmentation and duplication. At the same time, the EDPS notes that the proposed extension of Eurojust’s tasks would entail more complex processing operations, additional information flows, increased exchanges with national authorities and potentially third countries.

text: The EDPS welcomes that the Proposal maintains the principle that any automated processing of operational personal data should take place within the integrated data processing environment of the Case Management System (CMS), subject to limited exceptions. Similarly, the EDPS welcomes the clear obligation that communication between the competent national authorities and Eurojust should continue to primarily take place through a network of IT systems and interoperable e- CODEX access points, which would enable a secure and reliable cross-border exchange of information. The EDPS also welcomes the important data protection safeguards maintained in Chapter IV of the Proposal.

text: While noting all these positive elements, this Opinion also contains a number of specific recommendations with a view of ensuring appropriate level of data protection. In particular, the EDPS recommends defining, in a comprehensive manner, the roles and responsibilities of Eurojust and Member States when processing operational personal data. In addition, the EDPS considers that the Proposal should make explicit the elements allowing to clearly circumscribe which databases would Eurojust be allowed to cross-check and under which conditions. The EDPS also suggests making publicly available and keeping up to date an overview of EU bodies, offices and agencies that would have indirect access via Eurojust’s “hit/no-hit’ system.

text: Furthermore, circumstances in which Eurojust may exchange information with private parties should be clarified and appropriate safeguards for any exchange of personal data should be in place. Similar considerations apply where alternative means of communications are used or when making use of cloud computing. The EDPS also calls for clarifications of the rules applicable to international transfers and for updating of cooperation agreements and working arrangements concluded by Eurojust under Decision 2002/187/JHA or

text: Regulation (EU) 2018/1727

text: . Finally, the Opinion also underlines the need for additional allocation of both human and financial resources to the EDPS.

text: THE EUROPEAN DATA PROTECTION SUPERVISOR,

text: Having regard to the Treaty on the Functioning of the European Union,

text: Having regard to

text: Regulation (EU) 2018/1725

text: of the European Parliament and of the Council of 23 October 2018 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

text: Regulation (EC) No 45/2001

text: and Decision No

text: (‘EUDPR’) , and in particular

text: Article 42(1)

text: thereof,

text: HAS ADOPTED THE FOLLOWING OPINION:

text: 1. Introduction

text: 1. On 24 June 2026, the European Commission adopted the Proposal for a Regulation of the European Parliament and of the Council on the establishment of the European Union Agency for Criminal Justice Cooperation (Eurojust) and repealing

text: Regulation (EU) 2018/1727

text: (‘the Proposal’).

text: 2. The objective of the Proposal is to address the shortcomings identified by the 2025 evaluation of Eurojust and to modernise Eurojust’s legal framework in line with the Lisbon Treaty and the Common Approach on EU decentralised agencies. The Proposal aims to improve Eurojust’s internal functioning, governance, and operational performance, while strengthening its cooperation with EU partners and third countries. In addition, the Proposal seeks to expand Eurojust’s mandate to cover emerging crime areas such as cybercrime, gender-based violence, and violations of EU restrictive measures, including where they present a hybrid dimension, and to reinforce its analytical and proactive capabilities .

text: 3. The Proposal is part of a package of criminal justice initiatives aimed at strengthening the Union’s capacity to prevent, detect, investigate and prosecute serious cross-border crime and was adopted together and in complementarity with the revisions of the Europol 6 7 8 Regulation , the European Investigation Order (EIO) Directive and the EUDPR . The EDPS will issue separate opinions on each of these other proposals.

text: 4. The present Opinion of the EDPS is issued in response to a consultation by the European Commission of 25 June 2026, pursuant to Article 42(1) of EUDPR. The EDPS welcomes the reference to this consultation in Recital 60 of the Proposal. The EDPS also positively notes that he was already previously informally consulted pursuant to recital 60 of EUDPR.

text: 2. General remarks

text: 5. The EDPS welcomes that the Proposal aims to respond to the evolving challenges posed by serious and organised cross-border crime in the European Union. While maintaining the management and operation elements that have proven efficient, it would modernise Eurojust's legal framework and streamline its functioning and structure .

text: 6. The EDPS highlights that the Proposal would significantly expand the scope of Eurojust’s mandate. In addition to its existing areas of competence, Eurojust’s revised mandate would cover several new crime areas: cybercrime, gender-based violence, crime of aggression and violations of EU restrictive measures . The Proposal would also reinforce Eurojust’s analytical and proactive capabilities, in particular Eurojust's operational activities on its own initiative . Additionally, the Proposal seeks to enable Eurojust to assist with investigations and prosecutions affecting two or more third countries or international organisations, where the case may have repercussions at Union level , as well as investigations and prosecutions affecting at least one Member State and a third country or an international organisation provided that a contact point has been designated in that third country or international organisation .

text: 7. The EDPS welcomes that the Proposal maintains the principle that any automated processing of operational personal data should take place within the integrated data processing environment of the Case Management System (CMS), subject to limited exceptions . Similarly, the EDPS supports the clear obligation that communication between the competent national authorities and Eurojust should continue to primarily take place through a network of IT systems and interoperable e-CODEX access points, which would enable a secure and reliable cross-border exchange of information .

text: 8. The EDPS also welcomes Chapter IV, which maintains important data protection safeguards, in particular by defining the categories of operational personal data that Eurojust may process. This includes data on suspects, convicted persons, victims and other parties to proceedings. It also lays down strict time limits for the storage of operational personal data after the termination of a proceedings , as well as specific data subject’s rights regarding access to operational personal data processed by Eurojust.

text: 9. The EDPS also positively notes that the Proposal aims to support the goal of streamlining data protection rules for operational personal data across EU agencies and bodies, including Eurojust. It clarifies that both the Eurojust Regulation and the EUDPR apply to Eurojust's data processing activities, with the specific data protection rules in the Eurojust Regulation taking precedence (as lex specialis) over the EUDPR . The EDPS understands that, with this Proposal, most of the data protection provisions are removed from the Eurojust Regulation with a view to avoiding duplication, since the corresponding rules are already set out in the EUDPR , as the overarching data protection legislation for EU Institutions, bodies and agencies. The EDPS welcomes and fully supports the proposed direct application of the horizontal rules in Chapter IX of EUDPR to the processing of operational personal data by Eurojust. This is an important step towards a comprehensive alignment of the data protection framework for the EU institutions, offices, bodies and agencies active in the area of freedom, security and justice, which the EDPS has repeatedly called for .

text: 10. It should also be noted that the proposed extension of Eurojust’s tasks would not only entail a quantitative increase in the volume of personal data processed. It would also likely involve more complex processing operations, additional information flows, increased exchanges with national authorities and potentially third countries, as well as a greater need to assess compliance with the applicable data protection safeguards. In this respect, the EDPS emphasises that information shared with Eurojust should clearly specify the purposes for which it may subsequently be processed. Any further processing of operational personal data should comply with the purpose limitation principle and be subject to a necessity and proportionality assessment. These developments would inevitably require more intensive and specialised supervision by the EDPS.

text: 11. Effective supervision cannot be ensured without adequate resources. The EDPS’ supervisory responsibilities over Eurojust are a necessary counterpart to the expansion of Eurojust’s operational powers. If Eurojust is entrusted with additional tasks involving the processing of personal data, the EDPS must be equipped with the corresponding human and financial resources to exercise its supervisory mandate effectively, independently and in a timely manner. The EDPS therefore underlines the need for an additional allocation of both human and financial resources to the EDPS.

text: 12. This Opinion aims to provide constructive and objective advice with a view of ensuring that the Proposal provides for the appropriate level of data protection, while delivering on its main policy objectives.

text: 3. Cross-checking of information by Eurojust

text: 13. According to recital 25 of the Proposal, one of the main challenges in combating serious cross-border crime is the timely identification of links and overlaps between ongoing investigations and prosecutions of criminal networks, in particular transnational organised crime networks involved in drug trafficking, and investigations and prosecutions concerning financial or other forms of serious fraud. Cross-checking of relevant information helps promoting the efficiency of judicial administration by preventing the duplication of parallel proceedings before different national courts, thereby reducing the risk of violating the ne bis in idem principle.

text: 14. Against this background, the Proposal tasks Eurojust with cross-checking information stored in relevant databases to identify links between cross-border investigations and inform the Member States concerned, or where appropriate, the European Public Prosecutor’s Office (EPPO), thereof and to support cross-border investigations . This task is further mentioned in

text: Article 28(2)

text: (e) of the Proposal which allows National Members to ask the competent authorities of their Member States to authorise cross-checking of their relevant national databases, when Eurojust acts on its own initiative. In addition,

text: Article 41(2)

text: (e) provides that the Eurojust CMS shall serve the purpose of enabling the analysis and systematic cross-checking of information.

text: 15. The EDPS recognises that cross-checking is necessary for Eurojust to fulfil its overall objective of supporting and strengthening coordination and cooperation between national investigating and prosecuting authorities in relation to serious cross-border crime. Nevertheless, in accordance with the principles of data minimisation and purpose limitation such cross-checking should remain limited to what is necessary and proportionate. In other words, the cross-checking of “relevant databases” mentioned in Articles

text: and

text: should be clearly delineated and not left as an open-ended clause.

text: 16. The EDPS understands from the Proposal that Eurojust’s cross-checking capabilities depend on the access rights of the National Members in charge of this cross checking. The EDPS notes that, in addition to the Eurojust’s systems to which all National Members have access, the full scope of this “cross-checking of relevant databases” would depend on the access rights granted by a particular Member State’s law to their National Member regarding their national information systems . The EDPS also understands that no cross-checking of EU data bases (other than the Eurojust ones) is envisaged under Articles 4 and 25 of the Proposal.

text: 17. The EDPS recommends that, before any cross-checking of personal data against national information systems is carried out, National Members should ensure that such further processing is (a) necessary and proportionate in light of the intended purpose; (b) authorised by the owner/provider of the personal data; (c) in accordance with the Member State law governing access to the national information.

text: 18. Furthermore, the EDPS recommends making these elements explicit in Articles

text: and

text: as well as in Recital 25, in order to clearly circumscribe which databases would Eurojust (through National Members) be allowed to cross-check and under which conditions.

text: 4. Alternative means for the exchange of information

text: 19. The EDPS understands that the communication between the competent national authorities and Eurojust under the Proposal will primarily take place through a network of IT systems and interoperable e-CODEX access points ('the decentralised IT system'). The Eurojust CMS will be connected to this decentralised IT system . The EDPS welcomes the usage of this system, which would enable a secure and reliable cross-border exchange of information.

text: 20. Article 40(2) of the Proposal, nevertheless, provides for the possibility of alternative means for the exchange of information where exchange of information via the decentralised IT system is not possible due to, for instance, the unavailability of the system, the nature of the transmitted material, technical limitations, such as data size, legal constraints relating to the admissibility as evidence of the requested data or to forensic requirements applicable to the requested data, or exceptional circumstances.

text: 21. The EDPS does not object that, in such exceptional circumstances, the transmission be carried out by other appropriate alternative means. However, the provision should expressly require the implementation of measures guaranteeing a substantially equivalent level of confidentiality and integrity of information exchanged through alternative means as for the decentralised IT system.

text: 5. Case Management System (CMS)

text: 22. Article 41(1) of the Proposal requires Eurojust to establish a case management system for the processing of operational personal data listed in Annex II, data listed in Annex III and non-personal data.

text: 23. The EDPS welcomes the clear indication in paragraph (6), that Eurojust must not carry out any automated processing of operational personal data outside the integrated data processing environment of the CMS, except in limited cases explicitly provided for under the Proposal. This constitutes an important guarantee that personal data will be held in a secure and controlled environment.

text: 24. The same paragraph provides for an exception, by allowing National Members to temporarily store and analyse personal data for the purpose of determining whether such data are relevant to Eurojust’s tasks and whether a case should be opened in the case management system. Those data may be held for a period not exceeding six months, which may be extended once for a further period not exceeding six months in cases where the National Member has – exceptionally – not been able to make that determination. The EDPS welcomes that, for these situations, the Proposal obliges Eurojust to still hold those data in a secure and controlled environment provided by Eurojust for this purpose, subject to appropriate safeguards substantially equivalent to those identified for the case management system.

text: 25. The EDPS recommends, however, introducing the obligation to properly justify any extension of the deadline of six months for the storage of operational personal data outside the integrated processing environment of the case management system. The same recommendation applies to Article 28(6) of the Proposal, allowing authorised Eurojust staff to temporarily store and analyse personal data in the CMS for the purpose of enabling the National Member or the College to determine whether such data are relevant to Eurojust’s tasks and whether a case should be opened in the CMS.

text: 26. Another exception is provided in paragraph (7), for cases where Eurojust is authorised to process operational or non-operational personal data ‘but does not act as controller in respect of such data’. The EDPS recommends that, for that separate system, there should be a requirement of the same level of protection (i.e. safeguards substantially equivalent to those ensured by Eurojust when it is acting as a controller). In addition, the EDPS recommends clarifying what would be the role of Eurojust in cases when it ‘does not act as a controller’ .

text: 27. The EDPS also notes the statement in

text: Article 41(8)

text: : ‘In the performance of their tasks, National Members may process personal data on the individual cases on which they are working, in accordance with this Regulation or other applicable instruments.’ The EDPS understands that the “performance of their tasks” refers to National Members performing Eurojust’s tasks and therefore suggests, for the sake of clarity, to explain that, for these tasks, personal data shall be processed in accordance with the provisions of the Eurojust Regulation and the EUDPR. In case “performance of their tasks” should also encompass processing of personal data on a purely national level, this should then be further explained and reflected in the Proposal.

text: 28. Finally, the EDPS recalls that the CMS should be designed, developed and operated based on a documented security and data protection risk assessment and an associated plan for relevant measures .

text: 6. Processing of operational personal data

text: 29. The EDPS notes Article 44(3) of the Proposal, which enables Eurojust to process operational personal data other than the personal data referred to in Annex II. The EDPS understands that there may be situations where there would be operational need to process additional data immediately relevant to ongoing coordinated investigations. However, the EDPS considers that these situations need to be clearly circumscribed.

text: 30. In that regard, the EDPS welcomes that this provision retains important data protection safeguards for such processing, by specifying that it may take place only ‘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 […] where such data are immediately relevant to and are included in ongoing investigations which Eurojust is coordinating or helping to coordinate […].’ and ‘the Data Protection Officer[…] shall be informed immediately […] 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 […] the decision to process them shall be taken jointly by the National Members concerned.’

text: 7. Storage limits for discontinued criminal investigations

text: 31. The EDPS welcomes Article 45 of the Proposal which provides for time limits for the storage of operational personal data. The EDPS reminds that, in line with the CJEU case law , the determination of a storage duration must be based on objective criteria. Different storage duration should be set for the different categories of data stored ‘on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned’ .

text: 32. In that regard, while taking note of the different time limits that are already set, the EDPS considers an additional storage limit should be determined in

text: Article 45(1)

text: for cases where prosecutors decide to discontinue a criminal investigation and not to prosecute a certain offence before the case even comes to court, similarly to what is already provided for in paragraph 2(b) of the same Article .

text: 8. Information security and cloud computing

text: 33. Article 46 of the Proposal requires Eurojust and Member States to define mechanisms to ensure that the security measures referred to in

text: Article 91

text: EUDPR are addressed across information system boundaries.

text: 34. The EDPS recommends that this Article explicitly requires that Eurojust, in addition to complying with

text: Article 91

text: 35. In addition, the EDPS recalls the obligation of Eurojust (as an EU body) to appoint a local cybersecurity officer or an equivalent function who shall act as its single point of contact regarding all aspects of cybersecurity .

text: 36. According to Article 40 (7) of the Proposal, ‘[w]here Eurojust establishes or procures cloud computing services for the purposes of this Regulation, it shall ensure that such services comply with applicable Union law, including requirements on the EU cloud sovereignty framework, data security, data protection, cybersecurity and digital sovereignty, thereby ensuring the secure hosting and processing of data exchanged under this Regulation, with strict access control and data compartmentalisation’.

text: 37. In this context the EDPS observes that, pursuant to Article 30(3) of Proposal for a Regulation of the European Parliament and of the Council establishing a framework of measures for strengthening Europe’s cloud and AI ecosystem (“Cloud and AI Development Act”), the cloud computing services procured by Union entities and public sectors bodies in the areas of national security, internal security, external border management, defence, justice or law enforcement must have a Union assurance level 2, 3 or 4 . However, according to paragraph 4 of the same Article, in certain cases, the assurance level could be further lowered to level 1, including for financial reasons.

text: 38. The personal data collected for justice and law enforcement purposes are typically highly sensitive. In this context, a potential data breach, including access to the data by third countries or other unauthorised third parties might have a very serious consequences not only for the affected data subjects, but also for the competent Union or Member States authorities. The security of the cloud services is also critical for the Union agencies and large-scale IT systems in the field of justice and home affairs, which act as information hubs and/or databases at Union level and contain millions of records, including biometric data.

text: 39. In the light of the above, the EDPS considers that the cloud computing services procured by Eurojust should meet the highest Union assurance levels (preferably level 4 but in any event not lower than level 3).

text: 9. Responsibility in data protection matters

text: 40. The EDPS understands that Article 53 of Proposal aims to clarify the responsibilities of Eurojust when it comes to processing of both operational and administrative personal data. It assigns the responsibility to Eurojust for compliance with the EUDPR in relation to administrative personal data and for compliance with the Eurojust Regulation and with EUDPR in relation to operational personal data which it would process. In addition, the Proposal allocates the responsibilities of Eurojust and Member States as regards certain obligations under data protection law (such as accuracy and lawfulness of transmission).

text: Article 53

text: , however, does not expressly clarify the role of Eurojust under data protection law (i.e. as controller, joint controller or processor) in relation to the different processing activities it carries out.

text: 42. The EDPS considers that a clear definition of the roles and data protection responsibilities of the actors involved in personal data processing, reflecting operational reality, is essential to legal certainty, and critical for enabling effective oversight by competent data protection authorities at EU and national level. The attribution of data protection roles also directly affects the effective exercise of data subjects’ rights .

text: 43. The EDPS therefore recommends defining the roles and responsibilities of Eurojust and Member States in a comprehensive manner, including by specifying that Eurojust would be the controller for the processing of personal data within the systems managed by Eurojust such as the CMS and the hit/no-hit system. In addition, the EDPS recalls that any relationship between (joint) controllers and processors must be governed by appropriate legal arrangements . If these roles and responsibilities are not to defined exhaustively in the Proposal as such, an empowering clause should be provided to further define the roles and responsibilities through implementing acts.

text: 10. Indirect information exchange on the basis of a hit/no-hit system

text: 44. Article 55(1) of the Proposal requires Eurojust to take all appropriate measures to ensure indirect access by other Union bodies, offices and agencies, ‘where such access is provided for in Union law’, to information held by Eurojust, under conditions of reciprocity, by means of an automated hit/no-hit system operated through the searching of indexes which shall be kept up to date.

text: 45. While the EDPS welcomes the express clarification that the access by other EUIs must be ‘provided for in Union law’, the EDPS notes that the Proposal does not provide a comprehensive overview of all EU bodies, offices and agencies that may have such access (now or in the future). In the interest of transparency, the EDPS recommends requiring Eurojust to make publicly available and keep up to date an overview of EU bodies, offices and agencies that would have such indirect access.

text: 46. The EDPS also welcomes, in paragraph (3) of the same Article, the detailed explanation of the actions that follow in case of a hit. However, the EDPS suggests clarifying whether any answer would be given to the requesting Union body, office or agency in case there would be no hit or in cases where there would be a hit, but the information would be subject to restrictions and the provider of the information would maintain those restrictions, even after being contacted by Eurojust . The EDPS would like to underline that, in the latter situations, there should be no disclosure of the fact that there was a hit.

text: 47. The Proposal should additionally specify, even if only in a general manner, the categories of personal data to be included in the index of the system, which could then be further specified in the implementing act provided for in Article 55(8) of the Proposal.

text: 48. When it comes to the implementing acts, the EDPS also reminds that they should fully consider the principle of data protection by design and by default and that the development, implementation and operation of the system, including any system-to-system connections should be subject to a mandatory prior consultation of the EDPS (in addition to the mandatory consultation on the implementing act pursuant to

text: Article 42(1)

text: EUDPR). Additionally, the requirements for a ‘hit’ to be considered successful should be clearly set out.

text: 11. Strategic analysis

text: 49. The Proposal aims to expand Eurojust's analytical and strategic functions . In that regard, Recital 35 of the Proposal explains that ‘the Regulation provides for the possibility of retaining operational personal data for a longer period where strictly necessary for analytical and strategic purposes, subject to clear conditions and robust data protection safeguards, and within a clear and legally certain framework consistent with the applicable Union data protection rules’.

text: 50. While the EDPS understands that the possibility of retaining operational personal data for a longer period would be provided for in

text: Article 45(4)

text: and (8) of the Proposal, it is not clear to which ‘robust data protection safeguards’ does Recital 35 refer to, as no corresponding provision is to be found in the enacting terms. The legislation providing for the interference with the fundamental right to protection of personal data must directly and specifically provide the required safeguards, especially where the link between the processing of personal data and the purpose to be achieved is less direct, as is the case for strategic analysis. The EDPS therefore recommends clarifying the safeguards in the Proposal.

text: 12. Exchange of operational personal data with the competent authorities of a third country

text: 51. As a preliminary and overarching remark, the EDPS recalls that Eurojust is an agency of the Union. All processing of operational personal data by Eurojust — including processing carried out by National Members acting within the structure of Eurojust and by Liaison Officers, who are members of Eurojust staff — is governed exclusively by the Eurojust Regulation and by EUDPR. Consequently, transfers of operational personal data by Eurojust to third countries or international organisations may take place only under the conditions laid down in

text: Articles 94

text: b, 94c and 94d of the EUDPR. Neither national law nor international commitments entered into by a Member State can constitute a legal basis for such transfers.

text: 52. Any provision that would permit transfers of operational personal data processed by Eurojust on a basis other than the EUDPR would create a parallel transfer channel circumventing the rules and safeguards that EU data protection law established specifically for Union institutions, bodies, offices and agencies. Such circumvention would (i) interrupt the continuity of protection that must accompany personal data when it leaves the Union, contrary to the requirement of an essentially equivalent level of protection established by the Court of Justice ; (ii) fragment the level of protection afforded to data held in Eurojust's CMS, which would then vary according to the Member State of the authorising National Member; (iii) dissociate the transfer decision from Eurojust's responsibility as controller under the accountability principle; and (iv) remove such transfers from the supervision of the EDPS, without any national supervisory authority being competent to supervise Eurojust's processing in its place, thereby creating a supervisory gap.

text: 53. Against this background, the EDPS notes with concern that

text: Article 18(1)

text: (c) grants National Members the power to directly ‘exchange operational information and evidence with competent national authorities of third countries and competent organs of international organisations, in accordance with the international commitments of their Member State and in accordance with data protection rules’.

text: 54. The reference to ‘data protection rules’ in this Article does not specify which rules are meant. If the provision were read as allowing the international commitments of a Member State to serve as the basis for a transfer of operational personal data processed by Eurojust, subject only to unspecified data protection rules, it would establish a parallel legal basis for transfers alongside the EUDPR, with the consequences described above. The EDPS recalls that an international commitment of a Member State is not among the legal bases on which Eurojust may transfer operational personal data to a third country or an international organisation. The EDPS therefore recommends clarifying in

text: Article 18(1)

text: (c) that, insofar as the exchange concerns operational personal data processed by Eurojust, it may take place exclusively in accordance with

text: Articles 94

text: b, 94c and 94d of the EUDPR. International commitments of the Member State concerned may govern the judicial cooperation dimension of the exchange, but cannot substitute for, or derogate from, the transfer regime of the EUDPR.

text: Article 18(1)

text: (e) further grants National Members the power to ‘authorise, on the basis of all relevant information available, including, where appropriate, input from the Data Protection Officer, the transfer of operational personal data necessary for the purposes of a specific investigation in which their Member State is involved, in accordance with

text: Articles 94

text: b, 94c and 94d of

text: Regulation (EU) 2018/1725

text: 56. The EDPS welcomes the express reference to

text: Articles 94

text: b, 94c and 94d of the EUDPR. However, the words ‘where appropriate’ render the involvement of the Data Protection Officer discretionary. The assessment of whether appropriate safeguards exist in a specific case, or of whether and on what basis a derogation may be relied upon, requires specialised data protection expertise. Systematic consultation of the Data Protection Officer would ensure that such assessments are conducted in a consistent and objective manner across Eurojust. The EDPS therefore recommends deleting the words ‘where appropriate’ in

text: Article 18(1)

text: (e), so that the authorisation of any such transfer of operational personal data is always preceded by input from the Data Protection Officer.

text: 57. The EDPS notes that Article 61(3) of the Proposal allows Eurojust’s Liaison Officers posted to third countries, if authorised by National Members and under their supervision and responsibility, to exchange operational personal data directly with the competent authorities of a third country. As recalled in paragraph 51 of this Opinion, Liaison Officers are members of Eurojust staff. Therefore, any transfer of operational personal data by a Eurojust Liaison Officer to competent authorities of a third country needs to follow the rules and safeguards applicable to international transfers as established under the EUDPR. Introducing transfers based solely on an authorisation by a National Member would circumvent the applicable safeguards under the EUDPR and would risk exposing the data to transfers without adequate levels of protection that were not subject to the necessary legal and data protection assessments.

text: 58. The EDPS also notes the discrepancy between

text: Article 18(1)

text: (e), which expressly conditions the National Member's authorisation on compliance with

text: Articles 94

text: b, 94c and 94d of the EUDPR, and

text: Article 61(3)

text: , which contains no such reference. The EDPS therefore recommends aligning

text: Article 61(3)

text: with

text: Articles 18(1)

text: (e) and 63(5) of the Proposal, by clarifying that any exchange of operational personal data under

text: Article 61(3)

text: may take place exclusively in accordance with the EUDPR.

text: 59. The EDPS furthermore notes that the Proposal introduces contact points of third countries to be hosted at Eurojust , with direct access to the CMS. This leads to the situation where an international transfer of operational personal data can be performed by a National Member simply granting access in the CMS to a contact point of a third country . While the EDPS recognises this may be beneficial for operational efficiency, the inherent risks associated with such an approach and the need for appropriate safeguards and policies to ensure the effective application of the rules governing international transfers should also be acknowledged.

text: 60. In that regard, the EDPS notes that

text: Article 62(4)

text: , dealing with liaison prosecutors posted at Eurojust, clearly states that ‘[t]ransfers of operational personal data to liaison prosecutors through the case management system shall take place only in compliance with this Regulation and

text: Regulation (EU) 2018/1725

text: ’. While recognising that

text: Article 63(5)

text: already provides that any exchange of operational personal data must be in accordance with the EUDPR, for reasons of consistency, the EDPS suggests aligning the wording of

text: Article 63(5)

text: with the wording of Article 62(4) of the Proposal.

text: 61. To ensure further clarity,

text: Articles 42(2)

text: (b) and (d) should be supplemented by referencing

text: Article 18(1)

text: (e), to emphasise that such access by liaison officers and contact points represents an international transfer and should be authorized only where necessary for the purposes of a specific investigation in which the Member State of the National Member is involved and after consulting the Data Protection Officer .

text: 62. Finally, the EDPS notes that the scope of

text: Article 54(2)

text: has been expanded to allow Eurojust to exchange directly any information, including administrative personal data, with Union institutions, bodies, offices and agencies and with the competent authorities of third countries and international organisations. The EDPS suggests that it is made clear that any exchange of personal data has to be done in accordance with the applicable data protection rules and, in this specific case, in accordance with the EUDPR provisions governing the processing of administrative personal data.

text: 13. Legacy cooperation agreements and working arrangements with third countries

text: 63. Article 86(8) of the Proposal mentions that the Proposal shall not affect the validity of cooperation agreements and working arrangements concluded by Eurojust under Decision 2002/187/JHA or

text: Regulation (EU) 2018/1727

text: . Such cooperation agreements and working arrangements will remain in force and shall be applied until they expire or are amended or replaced.

text: 64. While recognising that not all legacy agreements and working arrangements can be revised and amended at once, the EDPS would like to remind that these instruments were negotiated prior to the entry in force of the current data protection legislation and their continued application should be conceived as temporary and adaptation-oriented from the outset, not as a perpetual exemption. The EDPS, therefore, recommends providing an obligation for the Commission to review all legacy agreements and working arrangements and, where needed, start the negotiations of new agreements, thus ensuring the alignment of the agreements previously concluded by Eurojust with the current EU data protection legal framework.

text: 14. Exchange of data with private parties

text: 65. The EDPS notes that the Proposal includes the possibility for Eurojust to exchange information, including operational personal data, with “relevant private parties” .

text: 66. In this regard, the EDPS recalls that while this would be a novelty for Eurojust, exchanges of personal data with private parties are an already established practice for other EU agencies in the area of justice and home affairs, such as Europol .

text: 67. However, unlike Europol,, the Proposal does not specify under which circumstances, conditions and safeguards such exchange would be allowed. In addition, the EDPS also notes that the Proposal, contrary to Europol Regulation , does not define the notion of ‘private parties’.

text: 68. The EDPS therefore recommends defining the notion of ‘private parties’ and specifying explicitly in the Proposal is which cases and under which conditions and safeguards Eurojust would be allowed to exchange personal data with private parties.

text: 15. Conclusions

text: 69. In light of the above, the EDPS makes the following recommendations: (1) To make explicit, in Articles

text: and

text: as well as in Recital 25, the elements allowing to clearly circumscribe which databases would Eurojust (through National Members) be allowed to crosscheck and under which conditions. (2) To require, in

text: Article 40(2)

text: , the implementation of measures guaranteeing a substantially equivalent level of confidentiality and integrity of information exchanged through alternative means as for the decentralised IT system. (4) To require the same level of protection for the separate system mentioned in

text: Article 41(7)

text: and to clarify in this provision what would be the role of Eurojust in cases when it “does not act as a controller”. (5) To clarify in

text: Article 41(8)

text: that personal data is to be processed by National Members in accordance with the provisions of the Eurojust Regulation and the EUDPR. (7) To introduce, in

text: Article 46

text: , the requirement that Eurojust, in addition to complying with

text: Article 91

text: EUDPR, establishes and maintains appropriate security governance documentation and procedures, including security and data protection risk assessments, security plans, business continuity plans and disaster recovery plans, covering all systems, infrastructures and interoperability components involved in the processing of operational data. (8) To ensure that the cloud computing services, procured by Eurojust, meet the highest Union assurance level. (9) To define in a comprehensive manner the roles and responsibilities of Eurojust and Member States, including by specifying that Eurojust would be the controller for the processing of personal data within the systems managed by Eurojust - the CMS and the hit/no-hit system. (10) To require in

text: Article 55

text: that Eurojust makes publicly available and keeps up to date an overview of the which EU bodies, offices and agencies have indirect access to information held by Eurojust. (11) To clarify in

text: Article 55(3)

text: whether any answer would be given to the requesting Union body, office or agency in cases there would be no hit or in cases where there would be a hit, but the information would be subject to restrictions. (12) To specify in

text: Article 55

text: , even if only in a general manner, the categories of personal data to be included in the index of the hit/no-hit system. (13) To clarify in one or more dedicated provisions to which “robust data protection safeguards” Recital 35 refers to. (14) To clarify in

text: Article 18(1)

text: Articles 94

text: b, 94c and 94d of the EUDPR. (16) To align

text: Article 61(3)

text: with

text: Articles 18(1)

text: (e) and 63(5), by clarifying that any exchange of operational personal data under

text: Article 61(3)

text: may take place exclusively in accordance with the EUDPR. (19) To clarify in

text: Article 54(2)

text: that any exchange of personal data has to be done in accordance with the applicable data protection rules and, in this specific case, in accordance with the EUDPR provisions governing the processing of administrative personal data. (20) To provide for an obligation for the Commission to review all Eurojust’s legacy agreements and working arrangements and, where needed, start the negotiations of new ones fully aligned with the EU legal framework on data protection. (21) To define the notion of ‘private parties’ and to specify explicitly in the Proposal is which cases and under which conditions and safeguards Eurojust would be allowed to exchange personal data with private parties. Brussels, 11 August 2026 (e-signed) Wojciech Rafał WIEWIÓROWSKI 18


text: OJ L 295, 21.11.2018, p. 39.

text: COM(2022) 414 final 3 COM(2022) 414 final, page 3.

text: COM(2022) 414 final, page 5.

text: Proposal for a Regulation laying down harmonised rules on artificial intelligence (Artificial Intelligence Act) and amending certain Union legislative acts, COM/2021/206 final. See also recital (5) of the Recommendation.

text: COM(2022) 414 final, pages 2 and 3.

text: COM(2022) 414 final, page 2.

text: Declaration on ethics and data protection in artificial intelligence, 40th International Conference of Data Protection and Privacy Commissioners, 23 October 2018, page 5 10 COM(2022) 414 final, page 6. 11 COM(2022) 414 final, page 4.

text: Article 1

text: (a) of the proposed AI Act states that this Regulation lays down “harmonised rules for the placing on the market, the putting into service and the use of artificial intelligence systems (‘AI systems’) in the Union”. 13 EDPB-EDPS Joint Opinion 5/2021 on the proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on artificial intelligence (Artificial Intelligence Act), issued on 18 June 2021.

text: See CAI’s terms of reference 15 COM(2022) 414 final, page 4. 16 COM(2022) 414 final, page 4. 17 See for instance the prohibition, recommended in the Joint Opinion, of AI systems AI systems to be used by law enforcement authorities for predicting the occurrence or reoccurrence of an actual or potential criminal offence based on profiling of natural persons as referred to in

text: Article 3(4) of Directive (EU) 2016/680

text: or assessing personality traits and characteristics or past criminal behaviour of natural persons or groups. This prohibition would be underpinned by both privacy and data protection and presumption of innocence and right to fair trial considerations.

text: Joint Opinion, paragraph 4.

text: Joint Opinion, paragraph 82.

text: Joint Opinion, paragraph 4. 21 COM(2022) 414 final, page 2. See also negotiating directive (14).

text: COM(2022) 414 final, page 2. 23 Regrettably, there are regulatory divergences within the proposed AI Act regarding the obligations and limitations upon public and private sector actors in relation to certain AI systems (notably, manipulative AI, social scoring and biometric AI systems). In their Joint Opinion, the EDPS and the EDPB have recommended in particular a ban, [emphasis added] “for both public authorities and private entities, on AI systems categorizing individuals from biometrics into clusters according to ethnicity, gender, as well as political or sexual orientation, or other grounds for discrimination prohibited under Article 21 of the Charter”, Joint Opinion, paragraph 33.

text: COM(2022) 414 final, page 2.

text: Joint Opinion, paragraph 27.

text: On fundamental rights “inextricably linked” to the fundamental rights to privacy and to the protection of personal data, see EDPS Guidelines on assessing the proportionality of measures that limit the fundamental rights to privacy and to the protection of personal data, issued on 19 December 2019, at pages 21, 24. 27 draft report on the proposal for a regulation of the European Parliament and of the Council on harmonised rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain Union Legislative Acts, issued on 20 April 2022.

text: See COM(2022) 414 final, pages 3 and 4:, referring to secondary EU legislation applicable to AI systems depending on the service for which the AI system is intended to be used.

text: See Opinion 1/15 of 8 September 2016, PNR Canada, ECLI:EU:C:2016:656, paragraphs 252-261, and Judgment of the Court of Justice of 19 August 2022, Ligue des droits humains ,

text: , ECLI:EU:C:2022:491, paragraphs 194-195.

text: Joint Opinion, paragraph 16. 31 Joint Opinion, paragraph 17.

text: COM(2022) 414 final, page 2 33 Joint Opinion, paragraph 29.

text: The use of AI systems might present serious proportionality problems, since it might involve the Joint Opinion, paragraph 30: “ processing of data of an indiscriminate and disproportionate number of data subjects for the identification of only a few individuals (e.g., passengers in airports and train stations). The frictionless nature of remote biometric identification systems also presents transparency problems and issues related to the legal basis for the processing under the EU law (the LED, the GDPR, the EUDPR and other applicable law). The problem regarding the way to properly inform individuals about this processing is still unsolved as well as the effective and timely exercise of the rights of individuals. The same applies to its irreversible, severe effect on the populations’ (reasonable) expectation of being anonymous in public spaces, resulting in a direct negative effect on the exercise of freedom of expression, of assembly, of association as well as freedom of movement.” See Joint Opinion, paragraph 32. See Joint Opinion, paragraph 33. See Joint Opinion, paragraph 33. See Joint Opinion, paragraph 34. See Annex III to the proposed AI Act, at point 6.(a): “AI systems intended to be used by law enforcement authorities for making individual risk assessments of natural persons in order to assess the risk of a natural person for offending or reoffending or the risk for potential victims of criminal offences”. See Annex III to the proposed AI Act, at point 6.(e): “AI systems intended to be used by law enforcement authorities for predicting the occurrence or reoccurrence of an actual or potential criminal offence based on profiling of natural persons as referred to in

text: Article 3(4) of Directive (EU) 2016/680

text: or assessing personality traits and characteristics or past criminal behaviour of natural persons or groups”. Joint Opinion, paragraph 8. In this sense, see also Draft report on the proposal for a regulation of the European Parliament and of the Council on harmonised rules on Artificial Intelligence (Artificial Intelligence Act) and amending certain Union Legislative Acts, issued on 20 April 2022. Joint Opinion, paragraph 35.

text: On the AI systems that should be prohibited, see also EDPB Statement on the Digital Services and Data Strategy, adopted on 18 November 2021, specifying, at page 2: “The proposal for the AIR would allow for the use of AI systems categorizing individuals from biometrics (such as facial recognition) according to ethnicity, gender, as well as political or sexual orientation, or other prohibited grounds of discrimination, or AI systems whose scientific validity is not proven or which are in direct conflict with essential values of the EU. The EDPB considers that such systems should be prohibited in the EU and calls on the co-legislators to include such a ban in the AIR. Furthermore, the EDPB considers that the use of AI to infer emotions of a natural person is highly undesirable and should be prohibited, except for certain well-specified use-cases, namely for health or research purposes, subject to appropriate safeguards, conditions and limits. In the same vein, given the significant adverse effect for individuals’ fundamental rights and freedoms, the EDPB reiterates that the AIR should include a ban on any use of AI for an automated recognition of human features in publicly accessible spaces - such as of faces but also of gait, fingerprints, DNA, voice, keystrokes and other biometric or behavioral signals - in any context. The proposed AIR currently allows for the use of real-time remote biometric identification systems in publicly accessible spaces for the purpose of law enforcement in certain cases. The EDPB welcomes the recently adopted EP Resolution where the significant risks are highlighted.” Joint Opinion, paragraph 8. See also EDPS Opinion 11/2021 on the Proposal for a Directive on consumer credits, issued on 26 August 2021, at paragraph 55: “[..] the EDPS recalls the need for integration of the requirements under data protection law (for instance, data minimisation, privacy by design and by default) in the requirements under the Artificial Intelligence Act, in particular in the context of the certification of the AI creditworthiness system. The integration of this requirement would be crucially beneficial to individuals’ rights, both as data subject and consumer.” Joint Opinion, paragraph 37. See also EDPS Opinion 11/2021 on the Proposal for a Directive on consumer credits, issued on 26 August 2021, at paragraph 54: “The EDPS also recommends providing for ex ante verification of the creditworthiness AI system, including verification of compliance with the Proposal’s requirements, with the involvement of the competent authority having specific expertise on consumer loans established pursuant to Article 41 of the Proposal.”

text: Including significant changes of the threats-scenario, having regard to external risks, see Joint Opinion, paragraph 40. 46 See Directive (5) of the Recommendation. 47 Joint Opinion, paragraph 76. See also EDPS Opinion 11/2021 on the Proposal for a Directive on consumer credits, issued on 26 August 2021, at paragraph 52 (emphasis added): “[..] In light of the above, the EDPS recalls the recommendations made in the Joint EDPB-EDPS Opinion to include data protection requirements, as well requirements stemming from sectoral legislation, in this case consumer credit, applicable Union legislation under the requirements for declaration of conformity of the AI system. In the absence of this inclusion, the loan applicant’s consumer and data protection rights might in practice be jeopardised by the (high-risk) creditworthiness AI system.” 48 See

text: Regulation (EU) No 1025/2012

text: of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives

text: and

text: and Directives

text: and

text: of the European Parliament and of the Council and repealing

text: Council Decision 87/95/EEC

text: and Decision No

text: of the European Parliament and of the Council, OJ L 316, 14.11.2012, p. 12,

text: Article 10(6)

text: , specifying that the requirements to be covered by standards are set out in the corresponding Union harmonisation legislation;

text: Article 15(1)

text: (b), referring to conformity of the standards to the corresponding Union legislation and policies. 49 See COM(2022) 414 final, pages 3 and 4:, referring to secondary EU legislation applicable to AI systems depending on the service for which the AI system is intended to be used.

identifier: EDPS yttrande 20/2022

amnesord:
Artificial Intelligence
Charter of Fundamental Rights

publisher: Europeiska datatillsynsmannen

sprak: en

title: Artificial intelligence, human rights, democracy and the rule of law

serie: yttranden

text: 13 October 2022

type: rubrik

text: Opinion 20/2022

text: on the Recommendation for a Council Decision authorising the opening of negotiations on behalf of the European Union for a Council of Europe convention on artificial intelligence, human rights, democracy and the rule of law

type: stycke

text: The European Data Protection Supervisor (EDPS) is an independent institution of the EU, responsible under Article 52(2) of Regulation 2018/1725 ‘With respect to the processing of personal data… for ensuring that the fundamental rights and freedoms of natural persons, and in particular their right to data protection, are respected by Union institutions and bodies’, and under Article 52(3)‘…for advising Union institutions and bodies and data subjects on all matters concerning the processing of personal data’.

text: Wojciech Rafał Wiewiórowski was appointed as Supervisor on 5 December 2019 for a term of five years. Under Article 42(1) of Regulation 2018/1725, the Commission shall ‘following the adoption of proposals for a legislative act, of recommendations or of proposals to the Council pursuant to Article 218 TFEU or when preparing delegated acts or implementing acts, consult the EDPS where there is an impact on the protection of individuals’ rights and freedoms with regard to the processing of personal data’.

text: This Opinion relates to the Recommendation for a Council Decision authorising the opening of negotiations on behalf of the European Union for a Council of Europe convention on artificial intelligence, human rights, democracy and the rule of law. This Opinion does not preclude any future additional comments or recommendations by the EDPS, in particular if further issues are identified or new information becomes available. Furthermore, this Opinion is without prejudice to any future action that may be taken by the EDPS in the exercise of his powers pursuant to

text: Regulation (EU) 2018/1725

text: . This Opinion is limited to the provisions of the draft Proposal that are relevant from a data protection perspective.

text: Executive Summary

text: On 18 August 2022, the European Commission issued a Recommendation for a Council Decision authorising the opening of negotiations on behalf of the European Union for a Council of Europe convention on artificial intelligence (AI), human rights, democracy and the rule of law (‘the convention’), pursuant to

text: Article 218

text: TFEU.

text: Having regard to the ‘trans-border’ nature of artificial intelligence, the EDPS welcomes the general objective, pursued by the Council of Europe, of elaborating the first legally binding international instrument on artificial intelligence, based on the Council of Europe’s standards on human rights, democracy and the rule of law. Accordingly, the EDPS supports the opening of negotiations on behalf of the Union for the convention, and welcomes the Union’s role in promoting trustworthy AI that is consistent with the Union’s values.

text: The EDPS takes note of the fact that the subject matter of the convention would be regulated in the EU by the proposed AI Act, and acknowledges the Commission’s aim to ensure that the convention is compatible with the proposed AI Act, taking into account future developments in the legislative process. However, the EDPS considers that the convention represents an important opportunity to complement the proposed AI Act by strengthening the protection of fundamental rights of all persons affected by AI systems and therefore advocates that the convention provides clear and strong safeguards for the persons affected by the use of AI systems.

text: In the light of the above, the EDPS makes four main recommendations on the negotiating directives:

text: - the general objectives for the negotiation of the convention should give more prominence to the safeguards and rights to be provided to the individuals - and groups of individuals - subject to AI systems, in line with the primary focus and objectives of the Council of Europe;

text: - an explicit reference to compliance of the convention with the existing EU legal framework on data protection should be included in a specific directive;

text: - in line with the risk-based approach, the objective of imposing a prohibition on AI systems posing unacceptable risks should be introduced;

text: - the convention should promote the adoption of a data protection by design and by default approach at every step of AI systems’ life-cycle.

text: Additionally, the Opinion offers further recommendations on inclusion in the convention of minimum procedural safeguards, as well as minimum requirements for transparency, explainability and auditability, compliance and control mechanisms, on cross-border cooperation between competent authorities to be designated by the parties to the convention for the supervision of the safeguards and rights to be provided in accordance with the convention.

text: THE EUROPEAN DATA PROTECTION SUPERVISOR,

text: Having regard to the Treaty on the Functioning of the European Union,

text: Having regard to

text: Regulation (EU) No 2018/1725

text: of the European Parliament and of the Council of 23 October 2018 on the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies and on the free movement of such data (‘EUDPR’) , and in particular

text: Article 42(1)

text: thereof,

text: HAS ADOPTED THE FOLLOWING OPINION:

text: 1. Introduction

text: 1. On 18 August 2022, the European Commission issued a Recommendation for a Council Decision authorising the opening of negotiations on behalf of the European Union for a Council of Europe convention on artificial intelligence (AI), human rights, democracy and the rule of law , pursuant to

text: Article 218

text: TFEU (‘the Recommendation’).

text: 2. The objective of the Recommendation is to authorise the opening of negotiations on behalf of the Union for a future Council of Europe convention on AI, human rights, democracy and the rule of law (‘the convention’), to adopt negotiating directives and to nominate the Commission as the Union negotiator .

text: 3. In the explanatory memorandum , the Commission stresses that negotiations for the convention relate to matters falling under the exclusive Union competence, also due to the significant overlap between the ‘zero draft’ of the convention circulated by the Committee on Artificial Intelligence (CAI) of the Council of Europe, on the one hand, and of the Commission proposal for a regulation on AI (‘the proposed AI Act’) , on the other hand, in terms of their scope and content .

text: 4. The explanatory memorandum to the Recommendation highlights that the ‘zero draft’ proposes to include the following provisions:  purpose and scope of the (framework) convention; 5  definitions for an AI system, lifecycle, provider, user and ‘AI subject’;  certain fundamental principles, including procedural safeguards and rights for AI subjects that would apply to all AI systems, irrespective of their level of risk;  additional measures for the public sector as well as AI systems posing ‘unacceptable’ and ‘significant’ levels of risk identified on the basis of a risk and impact assessment methodology (to be set out later in an annex to the convention);  follow-up and cooperation mechanism between the parties;  final provisions, including a possibility for EU Member States to apply EU law in their mutual relations for matters covered by the convention and a possibility for the Union to accede to the convention.

text: 5. The Recommendation, under recitals (6) and (7), highlights that the conclusion of the convention may affect existing and foreseeable Union rules. To protect the integrity of Union law and ensure consistency between the rules of international law and Union law, the Commission should be authorised to negotiate the convention on behalf of the Union.

text: 6. The present Opinion of the EDPS is issued in response to a consultation by the Commission of 18 August 2022, pursuant to Article 42(1) of EUDPR. The EDPS welcomes the reference to this consultation in Recital 8 of the Recommendation.

text: 2. General remarks

text: 7. The EDPS welcomes the general objective, pursued by the Council of Europe, of elaborating a “legally binding instrument of a transversal nature on artificial intelligence, based on the Council of Europe’s standards on human rights, democracy and the rule of law” . Indeed, the ‘trans-border’ nature of artificial intelligence development, deployment and use “may affect all humanity” . The convention will be open to participation not only by the 46 Member States of the Council of Europe, but also by non-Member States of the organisation.

text: 8. Accordingly, the EDPS supports the opening of negotiations on behalf of the Union for a future convention on AI, and welcomes the Union’s role in promoting trustworthy AI that is consistent with the Union’s values, through the first legally binding international instrument on AI, based on shared values and principles , notably on human dignity, democracy and the rule of law . 6

text: 9. However, the EDPS notes that the first directive (directive (5)) regarding the general objectives for the negotiations, starts with a reference to the compatibility of the future convention ‘with EU single market law’, and not to the fundamental rights. Similarly, the first directive on the substance of the negotiations (directive (11)) lays down, as aim of the negotiations, that “the provisions of the convention are fully compatible with EU single market”.

text: 10. The EDPS notes that this market-centric approach is aligned with one of the main objectives of the proposed AI Act , the single market dimension of the regulation of AI systems. In this respect, the EDPS recalls the recommendations put forward in the EDPS-EDPB Joint Opinion 5/2021 (‘the joint Opinion’) . At the same time, the remit of the Council of Europe is much broader. Indeed, the Committee on Artificial Intelligence (CAI), set up by the Committee of Ministers of the Council of Europe for the period 2022-2024, has been instructed to “establish an international negotiation process and conduct work to elaborate an appropriate legal framework on the development, design and application of artificial

text: intelligence, based on Council of Europe’s standards of human rights, democracy and

text: the rule of law, and conducive to innovation.” [emphasis added] .

text: 11. Against this background, the EDPS considers that the convention represents an important opportunity to complement the proposed AI Act by strengthening the protection of fundamental rights of all persons affected by AI systems. Accordingly, and in line with the Joint Opinion on the AI Act, the EDPS considers that safeguarding the rights of individuals and groups of individuals subject to the use of AI systems should be given greater prominence among the general objectives for the negotiation of the convention.

text: 12. The EDPS underlines that AI systems can be used in a variety of context in which EU and national law provide specific substantive and procedural guarantees aiming at safeguarding fundamental rights and freedoms other than privacy and personal data protection. These include the presumption of innocence and the right to fair trial , or the principle of equal treatment in employment and occupation .

text: 13. The EDPS recalls that those fundamental rights and relevant instruments of EU law must also be taken into account when ensuring consistency of the convention with EU law . 7

text: 3. Relationship with other instruments

text: 3.1 Interplay with EU law, including the Charter

text: 14. Negotiating directive (5) lays down the objective of compatibility of the convention with EU law, stating that the Union should aim to achieve that the convention “is compatible with EU single market law and other areas of EU law, including its general principles of EU law and the fundamental rights and freedoms as enshrined in the EU Charter of Fundamental Rights and implemented through secondary EU legislation”.

text: 15. The EDPS recommends deleting the word “including” to better reflect the interplay between general principles and fundamental rights, on the one hand, and secondary law (EU single market law and other areas of law), on the other hand. The same recommendation applies to directive (11).

text: 16. In this regard, given that data, including personal data, “are in many cases the key premise for autonomous decisions which will inevitably affect individuals’ lives at various levels” the EDPS underlines the importance for the future convention to fully respect the EU acquis in the area of personal data protection.

text: 17. In addition, the EDPS welcomes directive (13), which specifies that the convention should “in no way” undermine the level of protection of fundamental rights and freedoms and the guarantees provided in Union law, including the independence of authorities supervising fundamental rights insofar as required under EU law and recalls the need to interpret such freedoms and guarantees broadly, as set out in Section 2 above. 3.2 Interplay of the convention with the proposed AI Act

text: 18. The EDPS takes note of the overlap of the scope of the convention with the scope of the future AI Act and supports the Commission’s aim to ensure that the convention is consistent with the proposed AI Act, taking into account future developments in the legislative process, as laid down in Directives (6) and (12). At the same time, the EDPS recalls that “a lot of work remains to be done until the Proposal (of the AI Act) can give birth to a well-functioning legal framework, efficiently supplementing the GDPR in protecting basic human rights while fostering innovation” . Against this background, the EDPS would welcome the inclusion in the convention of provisions aiming at reinforcing the rights of persons impacted by the use of AI systems that would complement the future AI Act.

text: 19. In particular, the EDPS suggests that the Commission should aim at including in the convention a methodology for assessing the risks posed by AI systems on fundamental 8 rights, enshrined in the European Convention on Human Rights (‘ECHR’), providing for clear, concrete and objective criteria for such human rights impact assessment (HRIA). 3.3 Interplay of the convention with existing data protection legal framework

text: 20. Apart from a general reference to Convention 108+, the mandate is missing a clear directive referring to the relation of the convention to data protection law. In this regard, in the Joint Opinion the EDPS and EDPB observed that data, including personal data, “are in many cases the key premise for autonomous decisions which will inevitably affect individuals’ lives at various levels” .

text: 21. Hence, the EDPS recommends inserting a directive explicitly referring to consistency of the convention with the existing legal framework on data protection. Indeed, consistency with data protection principles and laws should be a prerequisite on which the convention should build upon.

text: 22. The EDPS considers in particular that directive (16), stating that the convention should

text: [emphasis added] “avoid overlaps and provide meaningful added value compared to

text: other relevant international or regional convention, in particular in the area of data protection”, does not provide sufficient clarity in this respect.

text: 4. Scope of the convention

text: 23. The EDPS welcomes the proposed scope of the convention, which should cover both public and private providers and users of AI systems , in accordance with its ‘transversal nature’ . In this regard, the EDPS notes that the proposed AI Act would also have a horizontal nature, since it would be applicable to providers and users of AI systems as public or private entities.

text: 24. The EDPS considers that, unless justified or required under EU primary or secondary law, the same approach should be taken having regard to the use of AI systems, regardless of whether providers and users of AI systems are public or private entities. This would allow a more coherent implementation of the risk-based approach . 9

text: 25. According to the explanatory memorandum , the convention should include “additional measures for the public sector”. The EDPS welcomes this approach, insofar as these measures complement the safeguards for persons impacted by the use of AI, to take into account the role, tasks, responsibilities and rules to which bodies entrusted with missions of public interest are subject. In this regard, the EDPS notes that these additional measures should also apply to private entities when providing public or essential services.

text: 26. Moreover, the EDPS recalls that “the use of AI in the area of police and law enforcement requires area-specific, precise, foreseeable and proportionate rules that need to consider the interests of the persons concerned and the effects on the functioning of a democratic society.” Accordingly, the EDPS recommends taking into consideration not only the interests of the law enforcement and judicial authorities, as stated in directive (20) of the Annex, but also the specific risks associated with the use of AI in the area of criminal justice and law enforcement. To this end, the EDPS recommends adding a directive recalling the necessity to strike the right balance between the public interest and the interests of the persons subject to AI systems, and to ensure full compliance with the fundamental rights to privacy and to the protection of personal data, as well as with the other fundamental rights, notably the right to presumption of innocence and to a fair trial. These rights are often inextricably linked with the fundamental rights to privacy and to the protection of personal data .

text: 27. The EDPS also welcomes the inclusion in the convention, among the definitions to be provided, of the notion of “AI subject” and, in connection with this definition, he inclusion of procedural safeguards and rights for “AI subjects” (namely, persons affected by the use of AI systems, e.g. workers affected by the use of AI work management systems; natural persons applying for a loan affected by the use of AI creditworthiness systems; migrants and asylum seekers affected by the use of AI for border and migration control, etc.).

text: 28. In the Joint Opinion, the EDPS and EDPB deplored the absence of any reference in the proposed AI Act to the individual affected by AI systems, and considered such an absence as a ‘blind spot’ in the proposed AI Act. The EDPS also notes that in the draft report on the AI Act , the co-rapporteurs of the European Parliament (LIBE Committee) have proposed the insertion of new articles on the right to lodge a complaint against the providers or users of AI systems and the right to an effective judicial remedy against a national supervisory authority for the persons affected by the use of AI systems, both as individuals and as group of persons concerned. 10

text: 29. Accordingly, the EDPS recommends specifying in a directive that the convention should provide procedural certain minimum safeguards for the persons affected by the use of the AI systems. Such rights would complement but be without prejudice to the rights established under EU primary law, existing secondary EU legislation or national law .

text: 30. These should include requirements for transparency, explainability and auditability of AI systems.

text: 5. Risk-based approach and AI systems posing unacceptable risks

text: 31. The EDPS welcomes the reference in directive (14) to the risk-based approach, according to which the convention should lay down rules that are proportionate, effective and clear across the AI value-chain. Such an approach is the one underpinning the proposed AI Act, too.

text: 32. In the Joint Opinion, the EDPS and EDPB also appreciated that the proposal “would apply to any AI systems, including those which do not involve the processing of personal data but can still have an impact on interests or fundamental rights and freedoms” .

text: 33. Also having regard to this possible scenario related to the use of AI systems, the EDPS recommends that directive (14) specify that societal/group risks posed by AI systems (the risks for groups of individuals or the society as a whole, e.g. collective effects with a particular relevance, like group discrimination or expression of political opinions in public spaces) must also be assessed and mitigated .

text: 34. Moreover, the EDPS notes that, although the explanatory memorandum refers to ‘AI systems posing ‘unacceptable’ risks’ , this key issue is not reflected in the directives. Therefore, the EDPS strongly recommends including in the negotiating directives that certain AI systems, posing unacceptable risks, should be prohibited, as well as to provide an indication of such AI systems.

text: 35. In addition to the narrow prohibitions already set out in the proposed AI Act, the EDPS recalls that the following AI systems should also be prohibited: - social scoring, by public authorities or on their behalf, as well as by private companies ; 11 - biometric identification of individuals in publicly accessible spaces ; more specifically, the negotiating directive should include that “the convention prohibits any use of AI for automated recognition of human features in publicly accessible spaces - such as of faces but also of gait, fingerprints, DNA, voice, keystrokes and other biometric or behavioral signals - in any context”; - AI systems categorizing individuals from biometrics (for instance, from face or voice recognition) into clusters according to ethnicity, gender, as well as political or sexual orientation, or other grounds for discrimination prohibited under Article 21 of the Charter (biometric categorization systems) ; - AI systems whose scientific validity is not proven or which are in direct conflict with essential values of the EU (e.g., the polygraph) ; - AI systems intended to be used by law enforcement authorities for making individual risk assessments of natural persons in order to assess the risk of a natural person for offending of reoffending criminal offences , or for predicting the occurrence or reoccurrence of an actual or potential criminal offence based on profiling of a natural person or on assessing personality traits and characteristics or past criminal behavior ; - AI systems inferring ‘emotions’ of natural persons (so-called emotion categorization systems), except for well-specified use-cases, namely for health or research purposes (e.g., a patient where emotion recognition is important) with appropriate safeguards in place and subject to all data protection conditions and limits including purpose limitation .

text: 36. According to the EDPS and the EDPB, these types of practice would not meet the necessity and proportionality requirements, or may even affect the essence of the right to human dignity. Thus, they could be considered unacceptable interferences with 12 fundamental rights by the CJEU and the European Court of Human Rights. The Union should therefore aim to achieve that these AI systems are prohibited .

text: 6. Design and development of AI systems

text: 37. The EDPS, in line with the recommendation made in the Joint Opinion , recommends including a negotiating directive according to which the convention should promote the adoption of a data protection by design and by default approach at every step of AI systems’ lifecycle, allowing the effective implementation of data protection principles by means of state-of-the-art technologies.

text: 38. The EDPS notes that directive (17) concerns different aspects related to the implementation of the rules applicable to the design, development and application of AI systems. The EDPS is aware that the negotiating directives by their nature cannot be too prescriptive. However, the EDPS considers that directive (17) should be more specific.

text: 39. Directive (17) refers to appropriate ex ante and ex post compliance and control mechanisms. In this regard, the Joint Opinion welcomed that AI systems posing a highrisk must be subject to a prior conformity assessment before they can be placed on the market or otherwise put into operation in the EU. However, the EDPS and EDPB also advocated adapting the conformity assessment to the effect that an ex ante third-party conformity assessment must be carried out for high-risk AI . Similarly, the EDPS recommends a clear inclusion in the directives of this requirement (namely, third-party assessment, as opposed to self-assessment by the provider of the AI system), taking into account the high risks for the persons affected by the use of AI systems (the ‘AI subjects’). 13

text: 40. It should also be clear in the mandate that the high-risk AI systems should be subject to a new conformity assessment procedure whenever a significant change occurs .

text: 41. Directive (17) also refers to certification mechanisms. Their role should be recognised by the convention. However, the object and legal effects of these certifications should be better specified. In particular, in order to ensure that the certification is implemented in a way that is compatible with the fundamental rights and freedoms as enshrined in the ECHR and the Charter as implemented through secondary EU legislation , such certifications should be consistent with the requirements under the applicable EU and Member States laws.

text: 42. Concerning the role of standards referred to in directive (17), the EDPS recommends specifying that technical standards, on the one hand, can have a positive impact on harmonization of products and services; on the other hand, their role is to provide technical specifications of rules (clear and legally binding obligations for the design, development and application of AI systems) already established by law .

text: 43. Technical standards should indeed be used for the specification of requirements (for instance safety and quality requirements, with regard to reliability, robustness, performance and functional safety) established by the corresponding Union legislation. The EDPS considers that the mandate for negotiation should acknowledge the role as well as the conditions and limits of technical standardisation of AI systems, referring to the possible adoption of technical standards to allow harmonised implementation of the requirements already set out at legislative level.

text: 44. This remark is particularly important in light of complex systems, such as AI systems, whose design, development and application concern different services, related to areas which are already subject to specific EU secondary legislation . 14

text: 7. Supervision of AI systems

text: 45. The EDPS welcomes that directive (17) and, more specifically, directive (21), refer to effective supervision by competent authorities. Directive (21) specifies that the convention should provide for cooperation mechanisms that allow effective enforcement.

text: 46. Indeed, due to the heterogeneity of areas to which the AI systems refer (ranging from work and employment to financial services, education and health-care, administration of justice, fraud prevention, etc.), there is a need for structured and institutionalised cooperation between different competent authorities (in particular, between the data protection authorities and the competent sectoral authorities).

text: 47. Moreover, the EDPS recommends including a directive according to which the convention should provide that competent supervisory authorities must be granted adequate investigatory and enforcement powers. These authorities should be empowered in particular to have access to any relevant documents, information and data necessary to open and conduct investigations and to monitor compliance, as well as to require access to, and explanation relating to, databases, algorithms and source codes.

text: 48. As discussed in Section 2 above, the development, deployment and use of AI systems often has a cross-border nature. Thus, the EDPS recommends adding a negotiating directive aiming at ensuring that the convention facilitates and encourages cross-border cooperation between competent authorities.

text: 8. Conclusions

text: 49. In light of the above, the EDPS makes the following recommendations: (1) to give more prominence to the objective of “ensuring a high level of protection of human rights and preservation of European values”, in line with the nature and mandate of the Council of Europe. (2) to delete the word “including” after “the EU single market law and other areas of law” in directives (5) and (11), to better reflect interplay between general principles and fundamental rights, on the one hand, and secondary law (EU single market law and other areas of law), on the other hand. (3) to add a specific directive recalling the necessity to strike the right balance between the public interest and the interests of the persons subject to AI systems, to ensure full compliance with the rights to privacy and to the protection of personal data, as well as with other fundamental rights at stake, notably the right to presumption of innocence and to a fair trial, the right to good administration and the principle of non-discrimination. 15 (4) to specify in a directive that the convention should provide certain minimum procedural safeguards and rights for the persons affected by the use of the AI systems. (5) to specify in a directive that the convention should provide for minimum requirements on transparency, explainability and auditability of AI systems. (6) to include in directive (14) the specification that societal/group risks posed by AI systems must also be assessed and mitigated. (7) to specify in the negotiating directives that certain AI systems, posing unacceptable risks, should be prohibited, as well as to provide an indicative list of such AI systems. (8) to include a negotiating directive according to which the convention should promote the adoption of a data protection by design and by default approach at every step of AI systems’ lifecycle. (9) to specify the content of directive (17) as follows: - an ex ante third-party conformity assessment must be carried out for high-risk AI; - the high-risk AI systems should be subject to a new conformity assessment procedure whenever a significant change occurs; - specify the object and the legal effect of certifications; - specify that technical standards, on the one hand, can have a positive impact on harmonization of products and services; on the other hand, their role is to provide technical specifications of rules already established by law. (10) to include a directive according to which the convention should provide that competent supervisory authorities must be granted adequate investigatory and enforcement powers. (11) to add a negotiating directive aiming at ensuring that the convention facilitates and encourages cross-border cooperation between competent authorities. Brussels, 13 October 2022 (e-signed) Wojciech Rafał WIEWIÓROWSKI 16

type: vagledning

utgivare: edps