IE-2012-act-53 — Europol Act 2012 | Law Reform

1 .— (1) In this Act— “analysis” in relation to a sample of biological material, includes comparison and matching; F1 [ "automated data" means information that — ( a ) is being processed by means of equipment operating automatically in response to instructions given for that purpose, or ( b ) is recorded with the intention that it should be processed by means of such equipment; ] “Council Decision” means Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol) * the text of which in the English language is, for convenience of reference, set out in the Schedule to this Act; “criminal offence” means an offence for which Europol has competence in accordance with Article 4 of the Council Decision and includes related criminal offences; F2 [ "data" means automated data and manual data; ] “designated competent authority” shall be construed in accordance with section 2 (1) ; “DNA” means deoxyribonucleic acid; “DNA profile”, in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a sample of biological material that is clearly identifiable as relating to the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person; “Europol” means the European Police Office established under the Council Decision; “Europol Information System” means the data processing system established and maintained by Europol under the Council Decision; “Garda Commissioner” means the Commissioner of the Garda Síochána; “head of the national unit” shall be construed in accordance with section 4 (4) ; “liaison officer” means a person sent as a liaison officer with Europol under section 6 ; F1 [ "manual data" means information that is recorded as part of a relevant filing system, or with the intention that it should form part of a relevant filing system; ] “Minister” means the Minister for Justice and Equality; “national unit” shall be construed in accordance with section 4 ; “non-coding part of DNA”, in relation to a person, means the chromosome regions of a persons DNA that are not known to provide for any functional properties of the person; F2 [ "personal data" has the meaning it has in Part 5 of the Data Protection Act 2018; ] F2 [ "processing", in relation to personal data, has the meaning it has in Part 5 of the Data Protection Act 2018; ] F1 [ "relevant filing system" means any set of information relating to individuals to the extent that, although the information is not processed by means of equipment operating automatically in response to instructions given for that purpose, the set is structured, either by reference to individuals or by reference to criteria relating to individuals, in such a way that specific information relating to a particular individual is readily accessible; ] “revenue offence” means a criminal offence in connection with taxes, duties, customs or exchange control. (2) A word or expression used in this Act and in the Council Decision has the same meaning in this Act as in that Decision. 2 .— (1) The designated competent authorities of the State for the purposes of this Act and the Council Decision are the Commissioner of the Garda Síochána and, in relation to revenue offences, the Revenue Commissioners. (2) In this Act “designated competent authority” in relation to another Member State, means the authority designated by that Member State to be the designated competent authority for the purposes of the Council Decision. 3 .— Europol shall have the legal capacity of a body corporate and power to sue and be sued in its corporate name and to acquire, hold and dispose of property. 4 .— (1) The Europol National Unit (in this Act referred to as the “national unit”) within the Garda Síochána is designated as the national unit for the purpose of this Act and the Council Decision. (2) The national unit shall operate under the control and general superintendence of the Garda Commissioner. (3) The Garda Commissioner may assign such and so many members of the Garda Síochána to be members of the national unit as the Garda Commissioner thinks fit. (4) The Garda Commissioner shall assign the management of the national unit to a member of the Garda Síochána not below the rank of Chief Superintendent and the member so assigned shall be known as the “head of the national unit”. (5) The Garda Commissioner may assign other duties to the head of the national unit during his or her assignment as such. (6) ( a ) The Minister, after consultation with the Garda Commissioner, the Minister for Public Expenditure and Reform and such other Minister of the Government (if any) as the Minister considers appropriate in the circumstances and, in relation to officers of the Revenue Commissioners, with the Revenue Commissioners, may, appoint such and so many persons who are not members of the Garda Síochána to be members of the national unit. ( b ) An appointment under paragraph (a) shall be on such conditions as may be agreed with the Minister for Public Expenditure and Reform. (7) A member of the Garda Síochána or an officer of the Revenue Commissioners, who is a member of the national unit, notwithstanding his or her appointment as such, shall continue to be vested with and may perform the functions of a member of the Garda Síochána or an officer of the Revenue Commissioners, as may be appropriate, for purposes other than the purposes of this Act, as well as for the purposes of this Act. (8) Unless the context otherwise requires or the Minister by order otherwise provides, the references in the Council Decision to a Member State (whether specific or general) shall, in so far as those references apply to the State, be construed and have effect as if they were references to the national unit. 5 .— (1) For the purposes of this Act and the Council Decision, the national unit shall have the following functions: ( a ) to accept requests from Europol to initiate investigations in relation to alleged criminal offences and inform the designated competent authorities of such requests as soon as practicable; ( b ) to liaise with Europol and the designated competent authorities of other Member States; ( c ) to communicate information and intelligence to Europol which the head of the national unit considers necessary for Europol to carry out its tasks; ( d ) to issue a request to Europol for advice, information, intelligence or analysis; ( e ) to respond to requests from Europol for information, intelligence or advice; ( f ) to provide Europol with information for processing in its databases; ( g ) to perform such other tasks as are required by the Council Decision. (2) Notwithstanding subsection (1) , the national unit may refuse to provide information to Europol where to do so would be likely to— ( a ) prejudice the security or other essential interests of the State or be contrary to public policy, ( b ) prejudice criminal proceedings or investigations in relation to alleged criminal offences in the State, or ( c ) jeopardise the safety of a person. (3) The national unit shall for the purposes of sections 8 and 9 communicate directly with the Europol Information System. (4) The national unit may for the purposes of the Council Decision— ( a ) access the Europol Information System, and ( b ) receive information and intelligence from that system. 6 .— (1) The Garda Commissioner shall, subject to subsection (2) and the Council Decision, send one or more than one member of the national unit to be a liaison officer with Europol for the purposes of the Council Decision. (2) A member of the national unit, other than a member of the Garda Síochána, may be sent as a liaison officer with Europol only after consultation with the Minister, and ( a ) where the member to be sent is an officer of the Revenue Commissioners, on the nomination of the Revenue Commissioners, ( b ) where the member to be sent is not a member of the Garda Síochána or an officer of the Revenue Commissioners, on the nomination of such other Minister of the Government as the Minister considers appropriate in the circumstances. (3) Without prejudice to the functions of the national unit under section 5 , a liaison officer shall provide liaison between Europol and the national unit in the transmission of information, and otherwise cooperate with Europol and Europol staff. (4) A liaison officer who is not a member of the Garda Síochána has the same immunities and privileges as if he or she were a person appointed to the rank of garda F3 [ under section 50 of the Policing, Security and Community Safety Act 2024 ] . 7 .— (1) On receipt of a request to initiate an investigation in relation to alleged criminal offences pursuant to Article 7 of the Council Decision— ( a ) the national unit shall transmit the request to the designated competent authority concerned, ( b ) that designated competent authority shall decide whether or not to comply with the request and communicate the decision to the national unit, and ( c ) the national unit shall notify Europol of the decision of the designated competent authority. (2) Where the designated competent authority concerned decides not to comply with the request, the national unit shall notify Europol of the reasons for the refusal unless the national unit considers that to so inform Europol would be likely to— ( a ) prejudice the security or other essential interests of the State or be contrary to public policy, ( b ) prejudice a criminal investigation or criminal proceedings in the State, or ( c ) jeopardise the safety of a person. (3) The national unit shall notify Europol of the result of an investigation carried out on foot of a request under subsection (1) . 8 .— (1) For the purposes of this Act and the Council Decision, the national unit or a liaison officer shall, where such data are available, provide the data referred to in subsection (2) to the Europol Information System where— ( a ) a person has been convicted of a criminal offence, ( b ) there are reasonable grounds for believing that a person may have committed a criminal offence, ( c ) there are reasonable grounds for believing that a person is likely to commit a criminal offence. (2) The data in relation to a person referred to in subsection (1) which shall be provided to the Europol Information System may include data relating to any or all of the following matters: ( a ) surname, maiden name, given name or a name by which the person is commonly known or has assumed (whether falsely or otherwise); ( b ) date and place of birth; ( c ) nationality; ( d ) sex; ( e ) place of residence, profession and whereabouts; ( f ) driving licence number, identification document number or passport data; and ( g ) where necessary, other data in relation to characteristics likely to assist in identification, including fingerprint or palm print data and DNA profile or any other specific objective physical characteristics not subject to a change. (3) Data whether or not in relation to a person referred to in subsection (1) and relating to the following matters may also be provided to the Europol Information System: ( a ) a criminal offence or an alleged criminal offence committed by a person; ( b ) the time, place and method of committing such a criminal offence or alleged criminal offence; ( c ) the means which were or might be used to commit such a criminal offence; ( d ) which designated competent authority would be investigating such a criminal offence; ( e ) suspected membership of a person in a criminal organisation; ( f ) a conviction for a criminal offence; or ( g ) the identity of the national unit. (4) Where requested to do so, the national unit may transmit information of types, other than that referred to in subsections (2) and (3) , in relation to a person referred to in subsection (1) , to any other national unit or to Europol. 9 .— (1) The national unit shall determine the conditions under which data may be provided to Europol for purposes other than those referred to in section 8 , including the dissemination or operational use of such data. (2) The national unit shall not provide the data referred to in subsection (1) unless the head of the national unit is satisfied that no person, including Europol, another Member State or an expert will use or disseminate the data concerned without the prior consent of the national unit. (3) In this section “expert” shall be construed in accordance with Article 14.8 of the Council Decision. 10 .— (1) Where the national unit or a liaison officer considers that data received or provided by the national unit or that officer and processed by the Europol Information System is incorrect or needs to be supplemented, the national unit or the liaison officer concerned shall— ( a ) modify, correct or delete as necessary the data concerned, or ( b ) request the Europol Information System to modify, correct or delete as necessary that data. (2) Where the national unit or a liaison officer has reasonable grounds for believing that information provided by another Member State, is incorrect or inaccurate, the national unit or the liaison officer, as the case may be, shall, without delay, notify the provider of the information concerned. (3) Where the data in relation to a criminal offence has been provided by the national unit or a liaison officer to the Europol Information System and the prosecution for that offence has been abandoned, or the accused person has been acquitted, the national unit shall, as soon as may be, cause those data to be deleted. (4) Where the national unit deletes from files in the State data which have been provided to the Europol Information System, it shall, as soon as may be, inform Europol accordingly. 11 .— (1) The national unit and liaison officers may input, access and retrieve data from the Europol Information System for the purpose of preventing and combating organised crime, terrorism and other forms of serious crime in accordance with the Council Decision. (2) The designated competent authorities may query the Europol Information System, but only for the purpose of determining whether the data requested are available in the Europol Information System. (3) Where a query under subsection (2) determines that the data requested are available in the Europol Information System, the designated competent authority which made the query shall request the national unit to obtain the data. (4) The Minister shall, by notice in writing, inform the General Secretariat of the Council of the European Union of the competent authorities in the State designated for the purposes of this section. 12 .— (1) Personal data retrieved from any of Europol’s data processing files or provided to the national unit by any other appropriate means shall be provided or used by the designated competent authorities in order to prevent and combat criminal offences or other serious forms of crime. (2) Subject to subsection (3) , any restrictions on the use of data imposed by Europol, a communicating Member State, a communicating third state or a communicating third body shall be complied with by the designated competent authorities. (3) Where a court in the State, a legislative body or another body established by statute proposes, when supervising a designated competent authority to waive in accordance with law a restriction placed on information received from a communicating Member State, a communicating third state or a communicating third body, the relevant designated competent authority shall— ( a ) consult the communicating state or body concerned as respects the interests and views of that state or body in the matter, and ( b ) take all reasonable steps to convey those interests and views to the court, legislative body or supervising authority concerned. (4) The designated competent authorities may request a communicating Member State, a communicating third state or a communicating third body to waive any restrictions imposed on the use of data by the communicating State concerned. 13 .— (1) For the purposes of the application of the Council Decision to the State, references to the “authority” in Article 30.2 of the Council Decision shall be construed as references to the head of the national unit. (2) A person may, by applying to the head of the national unit, request from Europol information as to whether personal data relating to him or her are processed by Europol and, if such data are so processed, may request to have such data communicated to him or her in a language that he or she understands. (3) The national unit shall forward a request sent to it under subsection (2) to Europol within 30 days of receiving it. (4) Where a request concerns data provided to Europol by the national unit and the designated competent authorities do not consider that access to the data should be permitted or otherwise object to the proposed response of Europol to the request, the national unit shall notify Europol of their objections and the reasons for them. (5) The designated competent authorities may object to the provision of information in response to a request under subsection (2) where either of those authorities considers that providing the information concerned would be likely to— ( a ) prejudice the sovereignty, security or other essential interests of the State or would be contrary to public policy or public order, ( b ) prejudice investigations in relation to alleged criminal offences or criminal proceedings in the State, or ( c ) prejudice the rights and freedoms of a person. (6) When considering an objection to the grant of access to data, the designated competent authority concerned shall take into account the interests of the person making the request. (7) The State shall be liable for any injury, loss or damage caused to a person by a legal or factual error in data processed by Europol, where the injury, loss or damage concerned was caused in the State. 14 .— (1) The Data Protection Commissioner is designated as the national supervisory body for the purposes of this Act and the Council Decision. (2) For the purposes of the Council Decision the Data Protection Commissioner— ( a ) may access, at the national unit or at the office of a liaison officer, data provided to the Europol Information System by the national unit or a liaison officer, and ( b ) shall inform the Joint Supervisory Body under the Council Decision of any action that the Data Protection Commissioner has taken with respect to the Europol Information System. (3) In this section “Joint Supervisory Body” means the body set up under Article 34 of the Council Decision. 15 .— (1) Information which comes to the knowledge of any of the following persons in the performance of their functions as— ( a ) the Director of Europol, ( b ) a member of the Management Board of Europol, ( c ) a Deputy Director of Europol, ( d ) an employee of Europol, ( e ) a person who, in respect of another Member State, performs the functions for that Member State, that a liaison officer performs in relation to the State, or ( f ) another person under a particular obligation of discretion or confidentiality under this Act or the Council Decision, shall be deemed to be official information within the meaning of the Official Secrets Act 1963 and the provisions of that Act shall apply accordingly to such information. (2) As respects information to which subsection (1) relates, “duly authorised” in section 4(4) of the Official Secrets Act 1963 shall be construed as including being authorised by the Director of Europol or, as the case may be, the Management Board of Europol. 16 .— Every order made by the Minister under section 4 shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling the order is passed by either House within the next subsequent 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder. 17 .— (1) Every act done, or purporting to have been done, before the commencement of this Act, under and in accordance with the Europol Act 1997 or the Council Decision, shall be, and be deemed always to have been, valid and effectual for all purposes. (2) If subsection (1) would, but for this subsection, conflict with a constitutional right of any person, the operation of that subsection shall be subject to such limitation as is necessary to secure that it does not so conflict but shall otherwise be of full force and effect. 18 .— Section 95(1) of the Criminal Justice (Mutual Assistance) Act 2008 is amended by the substitution of “ Europol Act 2012 ” for “Europol Act 1997”. 19 .— The Europol Act 1997 and the Europol (Amendment) Act 2006 are repealed. 20 .— The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Public Expenditure and Reform, be paid out of moneys provided by the Oireachtas. 21 .— (1) This Act may be cited as the Europol Act 2012. (2) This Act shall come into operation on such day as the Minister may by order appoint.