Decision of the Management Board of Europol of 9 June 2020 on internal rules concerning restrictions of certain rights of data subjects in relation to processing of administrative personal data by Europol

This Decision lays down rules relating to the conditions under which Europol may restrict the application of Articles 14 to 20, 35 and 36, as well as Article 4 thereof based on Article 25 of Regulation (EU) 2018/1725.

1 The controller of the processing operations is Europol, represented by its Executive Director, who may delegate the function of the controller.

2 Data subjects shall be informed of the delegated controller by way of the data protection notices or records published on the website and/or the intranet of Europol.

1 Where Europol exercises its duties with respect to data subjects’ rights under Regulation (EU) 2018/1725, it shall consider whether any of the exemptions laid down in Regulation (EU) 2018/1725 applies.

2 In accordance with Article 25(1) of Regulation (EU) 2018/1725, Europol may restrict the application of Articles 14 to 20, 35 and 36, as well as Article 4 thereof, in so far as its provisions correspond to the rights and obligations provided for in Articles 14 to 20 of Regulation (EU) 2018/1725, when: (a) IIS is conducting pre-inquiries and administrative inquiries and the Disciplinary Board is carrying out disciplinary procedures on the basis of the Staff Regulations of Officials of the European Union as well as the Decision of the Europol Management Board laying down General implementing provisions on the conduct of administrative inquiries and disciplinary procedures. Relevant restrictions may be based on Article 25(1)(c), (g) and (h) of Regulation (EU) 2018/1725; (b) in the course of whistleblowing procedures in order to ensure that Europol staff members may confidentially report facts where they believe there are serious irregularities as indicated in the Guidelines on whistle-blowing arrangements. Relevant restrictions may be based on Article 25(1)(h) of Regulation (EU) 2018/1725; (c) in formal and informal procedures for cases of harassment ensuring that Europol staff members may confidentially report to confidential counsellors in the context of a harassment procedure as defined by the Decision of the Management Board of Europol on the policy on protecting the dignity of the person and preventing psychological harassment and sexual harassment. Relevant restrictions may be based on Article 25(1)(h) of Regulation (EU) 2018/1725; (d) Data Protection Officer is conducting inquiries on processing activities carried out at Europol pursuant to Article 13 of the Decision of the Management Board of Europol laying down Implementing Rules concerning the Data Protection Officer. Relevant restrictions may be based on Article 25(1)(c), (g) and (h) of Regulation (EU) 2018/1725; (e) Internal Audit Capability is conducting internal audits in relation to all the activities and departments at Europol. Relevant restrictions may be based on Article 25(1)(c), (g) and (h) of Regulation (EU) 2018/1725; (f) Europol is providing or receiving assistance and cooperation to and from other Union institutions, bodies, offices and agencies, in the context of the abovementioned activities, as set out in relevant service level agreements, memorandum of understanding and cooperation agreements. Relevant restrictions may be based on Article 25(1)(c), (d), (g) and (h) of Regulation (EU) 2018/1725.

3 The categories of data include identification data of a natural person, contact information, professional roles and tasks, information on private and professional conduct and performance, and financial data.

4 Any restriction shall respect the essence of the fundamental rights and freedoms and be necessary and proportionate in a democratic society.

5 A necessity and proportionality test shall be carried out on a case-by-case basis before restrictions are applied. Restrictions shall be limited to what is strictly necessary to achieve the set objectives.

6 Restrictions should be duly monitored by the data controller and a periodical revision with a necessity and proportionality test shall be done every six months following their adoption in consultation with the Data Protection Officer.

7 Restrictions shall be lifted as soon as the circumstances that justify them no longer apply. The data controller in consultation with the Data Protection Officer shall provide the information concerned to the data subject together with the information on the possibility to lodge a complaint with the EDPS at any time or to seek a judicial remedy in the Court of Justice of the European Union.

8 Europol shall file, for accountability purposes, a record describing the reasons for the restrictions applied, which grounds among those listed in paragraph 1 apply and the outcome of the necessity and proportionality test. Those records shall be part of an ad hoc register kept by the Data Protection Officer, which shall be made available on request to the EDPS. A report on the application of Article 25 of Regulation (EU) 2018/1725 shall be made available periodically.

9 When processing administrative personal data exchanged with other organisations in the context of its tasks, Europol shall consult those organisations on the possible relevant grounds for imposing restrictions and the necessity and proportionality of the restrictions, unless this would jeopardise the activities of Europol.

The assessment of the risks to the rights and freedoms of data subjects whose personal data may be subject to restrictions, as well as their retention period, are referenced in the record of the relevant processing activities in accordance with Article 31 of Regulation (EU) 2018/1725 and, if applicable, in relevant data protection impact assessments based on Article 39 of the said Regulation.

1 Europol shall implement safeguards to prevent abuse or unlawful access or transfer of personal data that may be subject to restrictions. These safeguards shall include technical and organisational measures to protect the personal data against accidental or unlawful destruction, accidental loss or unauthorised disclosure, alteration and access or any other unauthorised form of processing. The safeguards shall include: (a) a clear definition of roles, responsibilities and procedural steps; (b) if appropriate, a secure electronic environment which prevents unlawful or accidental access or transfer of electronic data to unauthorised persons; (c) if appropriate, secure storage and processing of paper-based documents; (d) due monitoring of restrictions and a periodic review of their application.

2 The retention period of the personal data that may be subject to restrictions shall be no longer than necessary and appropriate for the purposes for which the data are processed. It shall in any event not be longer than the retention period specified in the data protection notices, privacy statements or records referred above.

1 The Data Protection Officer shall be consulted without undue delay whenever the data controller intends to apply restrictions to the data subject rights in accordance with this Decision and shall be provided access to the record containing the assessment of the necessity and proportionality and any documents underlying factual and legal elements.

2 The involvement of the Data Protection Officer in the restrictions procedure, including information exchanges, shall be documented in an appropriate form.

1 Europol shall publish on Europol intranet data protection notices that inform all data subjects of processing activities involving processing of their personal data which could be subject to restrictions in accordance with these rules.

2 Data controllers shall individually inform data subjects who are parties to a procedure, parties concerned by a procedures or witnesses concerning their rights and possible restrictions.

1 Where in the context of the activities mentioned in this Decision, Europol restricts, wholly or partly, their rights mentioned in Articles 14 to 16 and 35 of Regulation (EU) 2018/1725, data subjects shall be informed of the principal reasons on which the application of the restriction is based, and of their right to lodge a complaint with the EDPS as well to seek a judicial remedy before the Court of Justice of the European Union.

2 Europol may defer, omit or deny the provision of information concerning the reasons for the restriction referred to in paragraph 1 for as long as it would cancel the effect of the restriction. This assessment shall take place on a case-by-case basis in cooperation with the Data Protection Officer.

1 Where in the context of the activities mentioned in this Decision, Europol restricts, wholly or partly, the right of access to personal data, the right to rectification, erasure, and restriction of processing, as referred to in Articles 17 to 20 respectively of Regulation (EU) 2018/1725, it shall inform the data subject concerned, in its reply to their request, of the principal reasons on which the application of the restriction is based, and of the possibility of lodging a complaint with the EDPS or of seeking a judicial remedy before the Court of Justice of the European Union.

2 Europol may defer, omit or deny the provision of information concerning the reasons for the restriction referred to in paragraph 1 if it would cancel the effect of the restriction. This assessment shall take place on a case-by-case basis in cooperation with the Data Protection Officer.

1 Europol, under exceptional circumstances, and in line with the provisions and the rationale of Directive 2002/58/EC of the European Parliament and of the Council , may restrict the right to confidentiality of electronic communications, as referred to in Article 36 of Regulation (EU) 2018/1725.

2 Where Europol restricts the right to confidentiality of electronic communications, it shall inform the data subject concerned, in its reply to their request, of the principal reasons on which the application of the restriction is based, and of the possibility of lodging a complaint with the EDPS or of seeking a judicial remedy before the Court of Justice of the European Union.

3 Europol may defer, omit or deny the provision of information concerning the reasons for the restriction referred to in paragraph 1 and 2 for as long as it would cancel the effect of the restriction. This assessment shall take place on a case-by-case basis in cooperation with the Data Protection Officer.

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