Position Paper of German Bar Association on Europol Reform
In April 2021, the German Bar Association (DAV) published a position paper on the Commission Proposal for a Regulation amending the Europol Regulation (→eucrim 4/2020, 279) that outlines its concerns over the proposed enlarged mandate of Europol. The DAV is especially concerned about allowing Europol to directly exchange personal data with private parties. For the DAV, such competences risk a circumvention of fundamental rights, e.g., prior judicial authorisation, independent control, and effective remedies. Enabling Europol to directly exchange data with private parties may also affect information protected by the lawyer-client privilege and by data protection provisions. In this context, the possibility to conduct big data analysis is considered incompatible with the jurisprudence of the ECtHR and the CJEU, according to which the use of personal data is allowed only to the extent of what is strictly necessary.
Lastly, two powers in the proposal are considered incompatible with Art. 88 TFEU:
- Requesting Member States to initiate an investigation without the need of a cross-border element.
- Entering data on suspected involvement of third-country nationals into the Schengen Information System (SIS).
They surpass the Agency’s competence given under EU’s primary law.