               EUROPEAN COMMISSION
            Brussels, 29.3.2022
            COM(2022) 132 final

            Recommendation for a
            COUNCIL DECISION
            authorising the negotiations for a comprehensive international convention on countering the use of information and communications technologies for criminal purposes

               EXPLANATORY MEMORANDUM

               1.CONTEXT OF THE PROPOSAL

               •Reasons for and objectives of the proposal

                  Cybercrime continues to be a growing threat to the security of citizens and businesses in the European Union (EU) according to the Europol Internet Organised Crime Threat Assessment.
                     1
                   Cybercrime is a global and borderless phenomenon, and stepping up international cooperation to fight cybercrime has been a priority for countries around the world for a number of years.

                  The 2001 Council of Europe Convention on Cybercrime (the ‘Budapest Convention’) is the first international treaty on cybercrime, defining cybercrime-related offences, providing for a series of powers and procedures to investigate cybercrime, such as the search of computer networks and interception, and secure electronic evidence in relation to any crime, and establishing a framework for international cooperation.
                     2
                   The Budapest Convention is open to non-Council of Europe members, and countries from all geographical regions have acceded to it. To date, there are 66 State Parties and fourteen additional countries have been invited to accede to it. It is the foundation for anti-cybercrime legislation in 80% of countries worldwide. The adoption of a Second Additional Protocol to the Budapest Convention by the Council of Europe’s Committee of Ministers on 17 November 2021 demonstrates the continued relevance of the Convention as a framework for international cooperation on cybercrime.
                     3

                  The rise of information technology and the rapid development of new telecommunication and computer network systems and the use and abuse of technologies for criminal purposes have also featured on the agenda of the United Nations (UN). On 21 December 2010, the UN General Assembly adopted Resolution 65/230 requesting the Commission on Crime Prevention and Criminal Justice (CCPCJ) to establish an open-ended intergovernmental expert group (‘the IEG’) to conduct a comprehensive study of the problem of cybercrime.
                     4
                   At its seventh (and last) meeting from 6-8 April 2021, the IEG took stock of all preliminary conclusions and recommendations suggested by UN Member States
                     5
                   and agreed to transmit to the CCPCJ the 63 agreed conclusions and recommendations.
                     6
                   In its study, the IEG did not come to a consensus about the need for a new international cybercrime treaty.

                  In parallel, some UN Member States stepped up their efforts to work towards such a treaty in the Third Committee deliberations of the UN General Assembly. The UN General Assembly consequently adopted resolution 73/187 of 17 December 2018 on ‘Countering the use of information and communications technologies for criminal purposes’.
                     7
                   Subsequently, on 27 December 2019, the UN General Assembly adopted a second Resolution, 74/247, on the same topic, establishing an open-ended ad hoc intergovernmental committee of experts (‘the ad hoc Committee’) to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes. The Resolution specified that the ad hoc Committee was to take into full consideration existing international instruments and efforts at the national, regional and international levels on combating the use of information and communications technologies for criminal purposes, in particular the work and outcomes of the IEG.
                     8
                   On 26 May 2021, the UN General Assembly adopted resolution 75/282 that determined the modalities for the negotiations.
                     9
                   The UN General Assembly decided, inter alia, that the ad hoc Committee should convene at least six sessions, of 10 days each, to commence in January 2022, and a concluding session to provide a draft convention to the UN General Assembly at its seventy-eighth session in 2024. It further decided that the ad hoc Committee shall hold the first, third and sixth negotiating sessions in New York and the second, fourth and fifth sessions in Vienna. On 20 January 2022, the General Assembly decided to postpone the first session to a later date due to the Covid-19 pandemic situation in New York.

                  This proposal aims to ensure the appropriate participation of the European Union in these negotiations since the negotiations are expected to touch upon elements that relate to EU legislation and competence, notably in the area of cybercrime. Article 3(2) of the Treaty on the Functioning of the European Union (TFEU) provides that the Union has exclusive competence ‘for the conclusion of an international agreement (...) in so far as its conclusion may affect common rules or alter their scope.’ An international agreement may affect common rules or alter their scope where the area covered by the agreement overlaps with Union legislation or is covered to a large extent by Union law.

                  Given that the negotiations relate to matters of Union competence other than CFSP, which are expected to be the main components of the envisaged agreement, the Commission should be appointed as head of the negotiating team. In matters that relate to Common Foreign and Security Policy, the High Representative of the Union for Foreign Affairs and Security Policy conducts the negotiations as part of the team. The Chief Negotiator from the Commission will ensure the overall consistency of the agreement. Under the authority of the Chief Negotiator, the Commission services will be in the lead for the non-CFSP parts of the envisaged agreement and the EEAS will be in the lead for those parts of the envisaged agreements that fall under the CFSP.

                  This recommendation is submitted to the Council pursuant to Article 218 TFEU in order to receive authorisation to negotiate the future UN convention on behalf of the European Union, to provide negotiating directives, and to appoint the Commission as negotiator.

               •Consistency with existing policy provisions in the policy area

                  The fight against cybercrime is a priority for the European Union as evidenced in the 2020 Security Union Strategy
                     10
                  , and the 2021 Organised Crime Strategy
                     11
                  . In the 2021 Security Union third progress report, the Commission committed to ensuring effective participation of the Union in the negotiations for a comprehensive international convention on ‘countering the use of information and communications technologies for criminal purposes’ at the level of the United Nations.
                     12

                  The Commission recognises the need to further advance and strengthen the capacities of law enforcement and judicial authorities in this field, to develop national cybercrime legislation, where not sufficiently provided. It also acknowledges the need to  promote international cooperation in the fight against cybercrime and  supports a range of capacity building programmes in a number of countries worldwide, including for developing countries.
                     13
                   The Commission has supported the work of the UN Intergovernmental Expert Group on Cybercrime, the UN Commission on Crime Prevention and Criminal Justice, the United Nations Office on Drugs and Crime (UNODC), the Committee of the Budapest Convention on Cybercrime and other bodies.

                  The negotiations on the international convention are expected to relate to common EU rules to fight cybercrime. In particular, this may include Directive 2011/93/EU on combating the sexual exploitation of children online and child pornography
                     14
                  , which addresses new developments in the online environment such as grooming (offenders posing as children to lure minors for the purpose of sexual abuse); Directive 2013/40/EU on attacks against information systems
                     15
                  , which aims to tackle large-scale cyber-attacks by requiring Member States to strengthen national cyber-crime laws and introduce a high level of criminal sanctions; and Directive (EU) 2019/713 on combating fraud and counterfeiting of non-cash means of payment
                     16
                  , which harmonises the criminal conduct of natural or legal persons in relation to non-cash means of payment and extends criminal liability to virtual currencies and digital wallets. Other EU instruments provide common rules for fighting crimes that may be enabled by the use of information systems, such as terrorism, trafficking in human beings, illicit drug trafficking, illicit arms trafficking, money laundering, corruption and organised crime.

                  The negotiations are also expected to cover criminal procedural and cooperation measures. The current EU legal framework includes instruments on law enforcement and judicial cooperation in criminal matters, such as the Directive 2014/41/EU regarding the European Investigation Order in criminal matters
                     17
                  , the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union
                     18
                  , Regulation 2018/1727 on Eurojust
                     19
                  , Regulation 2016/794 on Europol
                     20
                  , Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’)
                     21
                  , Council Framework Decision 2002/465/JHA on joint investigation teams
                     22
                  , Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings
                     23
                  . The Commission's April 2018 proposals on cross-border access to electronic evidence
                     24
                  , and the Police Cooperation Package
                     25
                  , currently undergoing the EU legislative procedure, are also relevant. Externally, the European Union has concluded a number of bilateral agreements with third countries, such as the Agreements on Mutual Legal Assistance between the European Union and the United States of America and between the European Union and Japan.
                     26

                  The Union has also adopted several directives that reinforce procedural rights of suspects and accused persons.
                     27
                   The protection of personal data is a fundamental right enshrined in Article 16 TFEU and in Article 8 of the Charter of Fundamental Rights of the European Union. Personal data must be processed in accordance with Regulation (EU) 2016/679 (the General Data Protection Regulation)
                     28
                   and Directive (EU) 2016/680 (the Police Data Protection Directive)
                     29
                  . The fundamental right of individuals to the respect for their private and family life, home and communications is also enshrined in Article 7 of the Charter of Fundamental Rights. This includes the respect for the privacy of communications, as well as the protection of the terminal equipment of the user, as essential elements. Electronic communications data must be processed in accordance with Directive 2002/58/EC (the ePrivacy Directive).
                     30

                  The negotiations should ensure that the provisions of a future UN convention achieve the highest possible protection of human rights, and that Member States should be able to comply with EU law, also taking account of its future development.

               •Consistency with other Union policies

                  The European Union has consistently promoted the Budapest Convention as a valuable and flexible legal framework of reference for international cooperation in the fight against cybercrime. It has supported third countries in acceding to the Convention, enabling them to introduce a minimum national legal framework to combat cybercrime as well as to develop the necessary investigation and prosecution capacities, facilitating cooperation with other parties to the Convention.
                     31

                  The EU, represented by the Commission, has also been actively involved in the negotiations for the Second Additional Protocol to the Budapest Convention.
                     32
                   The Protocol will be open for signature in May 2022. Given that the matters covered by the Second Additional Protocol are covered by Union exclusive competence, on 25 November 2021, the Commission adopted two proposals for Council Decisions to authorise EU Member States to sign
                     33
                   and to ratify
                     34
                  , in the interest of the European Union, the Second Additional Protocol to the Budapest Convention on Cybercrime.

                  The negotiations will therefore also need to ensure consistency and coherence with the Budapest Convention on Cybercrime and its Additional Protocols.

                  2.
                        LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

               •Legal basis

                  Article 218(3) of the Treaty on the Functioning of the European Union (TFEU) provides that the Commission shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and nominate the Union negotiator. According to Article 218(4) of the TFEU, the Council may address directives to the negotiator.

               •Subsidiarity (for non-exclusive competence)

                  Unilateral action would not provide an alternative as it would not provide a sufficient basis for cooperation with non-EU countries. Adhering to a multilateral agreement such as a possible future UN Convention, which the Union has been able to negotiate, is more efficient than entering into negotiations with individual non-EU countries at bilateral level.

               •Proportionality

                  This initiative does not go beyond what is necessary to achieve the policy objectives at stake.

               •Choice of the instrument

                  A Commission Recommendation for a Council Decision authorising the opening of negotiations is in line with Article 218(3) of the TFEU, which provides that the Commission shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations.

               3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

               •Ex-post evaluations/fitness checks of existing legislation

                  Not applicable.

               •Stakeholder consultations

                  The Commission published a call for evidence for this initiative on its website on 14 January 2022, which was available for comments for four weeks. The (five) individual responses to the call for evidence were published on the consultation website. These considerations have been taken into account in the preparation of the present proposal.

               •Collection and use of expertise

                  The Commission took into account views expressed by Member State experts during discussions in the relevant Council working groups in the preparation of the negotiations.

               •Impact assessment

                  Not applicable.

               •Regulatory fitness and simplification

                  Not applicable.

               •Fundamental rights

                  The negotiations are likely to cover elements that could constitute an interference with fundamental rights such as procedural criminal measures, definitions of criminal offences that may be the basis for a criminal proceeding, or access to a person’s private data obtained in the context of a criminal proceeding. The provisions to be negotiated may lead to interferences with e.g. the right to a fair trial, the right to privacy and the right to the protection of personal data. As the participation in the negotiations on behalf of the European Union should not compromise the level of protection of fundamental rights in the Union, this initiative proposes to pursue a high level of protection of fundamental rights.

               4.BUDGETARY IMPLICATIONS

                  There are no budgetary implications for the Union budget. EU Member States may have one-off costs for the implementation of the Convention once the negotiations are concluded, but it is not possible to determine these costs at this stage as negotiations have not yet fully started.

               5.OTHER ELEMENTS

               •Implementation plans and monitoring, evaluation and reporting arrangements

                  The negotiations process is expected to span a period until 2024, after which the signature and conclusion of the Convention may take place. The initiative proposes to pursue a negotiation process that is open, inclusive and transparent.

               Recommendation for a

               COUNCIL DECISION

               authorising the negotiations for a comprehensive international convention on countering the use of information and communications technologies for criminal purposes

               THE COUNCIL OF THE EUROPEAN UNION,

               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 218(3) and (4) thereof,

               Having regard to the Recommendation from the European Commission,

               Whereas:

               (1)On 27 December 2019, the United Nations General Assembly adopted resolution 74/247 on countering the use of information and communications technologies for criminal purposes, deciding to establish an open-ended ad hoc intergovernmental committee of experts, representative of all regions, to elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes.
                  35
                The Union should participate in the negotiations on this convention.

               (2)The Union has adopted common rules that overlap with several elements being considered for such a convention. Those common rules include in particular a comprehensive set of instruments on substantive criminal law
                  36
               , on police and judicial cooperation in criminal matters
                  37
               , on minimum standards of procedural rights
                  38
               , as well as data protection and privacy safeguards
                  39
               . Future common rules should also be taken into account.
                  40

               (3)Therefore, a new international convention on countering the use of information and communications technologies for criminal purposes may affect common Union rules or alter their scope.

               (4)In order to protect the integrity of Union law and to ensure that the rules of international law and Union law remain consistent, it is necessary that the Union participate in the negotiations on a new international convention on countering the use of information and communications technologies for criminal purposes.

               (5)The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council and delivered an opinion on …

               (6)[In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Decision and is not bound by it or subject to its application.]

               [OR]

               [In accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland has notified [, by its letter of ... ,] its wish to take part in the adoption and application of this Decision.]

               (7)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application.

               HAS ADOPTED THIS DECISION:

               Article 1

               The Commission is hereby authorised to negotiate, on behalf of the Union, a comprehensive convention on countering the use of information and communications technologies for criminal purposes.

               Article 2

               The negotiating directives are set out in the Annex.

               Article 3

               The negotiations shall be conducted in consultation with a special committee to be designated by the Council.

               Article 4

               This Decision and its attachment will be made public immediately after their adoption.

               Article 5

               This Decision is addressed to the Commission.

               Done at Brussels,

                     For the Council

                     The President

                     (1)

                        2021 Europol Internet Organised Crime Threat Assessment (iOCTA)
                  www.europol.eu

                     (2)

                        Council of Europe Budapest Convention on Cybercrime (CETS N° 185), 23 November 2001,
                  https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=0900001680081561
                  .

                     (3)

                  Result details (coe.int)
                  .
                  Second Additional Protocol to the Cybercrime Convention adopted by the Committee of Ministers of the Council of Europe - News (coe.int)
                  .

                     (4)

                        General Assembly Resolution of 21 December 2010,

                     A/Res/65/230 - E - A/Res/65/230 -Desktop (undocs.org)

                  .

                     (5)

                        Compilation of all preliminary conclusions and recommendations suggested by Member States during the meetings of the Expert Group to Conduct a Comprehensive Study on Cybercrime held in 2018, 2019 and 2020:
                  V2101012.pdf (unodc.org)
                  .

                     (6)

                        Report on the meeting of the Expert Group to Conduct a Comprehensive Study on Cybercrime held in Vienna from 6 to 8 April 2021:
                  V2102595.pdf (unodc.org)
                  .

                     (7)

                        General Assembly Resolution of 17 December 2018,
                  A/RES/73/187
                  .

                     (8)

                        General Assembly Resolution of 27 December 2019,
                  A/RES/74/247
                  .

                     (9)

                        General Assembly Resolution of 26 May 2021,
                  A/RES/75/282*
                  .

                     (10)

                  COM(2020) 605 final
                   (27.7.2020).

                     (11)

                  COM(2021) 170 final
                   (14.4.2021).

                     (12)

                  COM(2021) 799 final
                   (8.12.2021).

                     (13)

                        This includes programmes such as GLACY+, CyberEast and CyberSouth, co-funded by the EU and the Council of Europe and administered by the Council of Europe.

                     (14)

                        Directive 2011/93/EU (13.12.2011).

                     (15)

                        Directive 2013/40/EU (12.8.2013)

                     (16)

                        Directive (EU) 2019/713 (17.4.2019).

                     (17)

                        Directive 2014/41/EU (3.4.2014).

                     (18)

                        Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (29.5.2020)

                     (19)

                        Regulation (EU) 2018/1727 (14.11.2018).

                     (20)

                        Regulation (EU) 2016/794 (11.5.2016).

                     (21)

                        Council Regulation (EU) 2017/1939 (12.10.2017).

                     (22)

                        Council Framework Decision 2002/465/JHA (13.6.2022).

                     (23)

                        Council Framework Decision 2009/948/JHA (30.11.2009).

                     (24)

                        Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters,

                     COM/2018/225 final

                  , and Proposal for a Directive laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings,

                     COM/2018/226 final

                  (17.04.2018).

                     (25)

                        Proposal for a Council Recommendation on Police Cooperation, COM(2021)780, Proposal for a Directive on information exchange between law enforcement authorities of Member States, repealing Council Framework Decision 2006/960/JHA, COM(2021)782, and Proposal for a Regulation on automated data exchange for police cooperation (“Prüm II”), COM(2021)784, (8.12.2021).

                     (26)

                        Agreement on mutual legal assistance between the European Union and the United States of America (25.6.2003).Agreement between the European Union and Japan on mutual legal assistance in criminal matters (2009).

                     (27)

                        Directive 2010/64/EU (20.10.2010); Directive 2012/13/EU (22.05.2012); Directive 2013/48/EU (22.10.2013); Directive (EU) 2016/1919 (26.10.2016); Directive (EU) 2016/800 (11.05.2016); Directive (EU) 2016/343 (9.03.2016).

                     (28)

                        Regulation (EU) 2016/679 (27.04.2016).

                     (29)

                        Directive (EU) 2016/680 (27.04.2016).

                     (30)

                        Directive 2002/58/EC (12.07.2002), amended by Directive 2009/136/EC (25.11.2009).

                     (31)

                        See e.g., Council Conclusions on Cyber Diplomacy, 10 February 2015, document 6122/15.

                     (32)

                        Decision of the Council authorising the European Commission to participate, on behalf of the EU, in negotiations on a Second Additional Protocol to the Council of Europe Convention on Cybercrime, reference 9116/19.

                     (33)

                        Proposal for a Council Decision authorising Member States to sign, in the interest of the EU, the Second Additional Protocol to the Convention on Cybercrime on enhanced co-operation and disclosure of electronic evidence, COM/2021/718 final (25.11.2021).

                     (34)

                        Proposal for a Council Decision authorising Member States to ratify, in the interest of the EU, the Second Additional Protocol to the Convention on Cybercrime on enhanced co-operation and disclosure of electronic evidence,

                     COM/2021/719 final

                   (25.11.2021).

                     (35)

                        Resolution adopted by the General Assembly on 27 December 2019 on the report of the Third Committee (A/74/401)], Countering the use of information and communications technologies for criminal purposes,
                  A/RES/74/247

                     (36)

                        Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA,

                     OJ L 335, 17.12.2011, p. 1–14

                  ; Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA,

                     OJ L 218, 14.8.2013, p. 8–14

                  ; Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA, PE/89/2018/REV/3,

                     OJ L 123, 10.5.2019, p. 18–29

                  .

                     (37)

                        Council Act of 29.5.2000 establishing the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, OJ C197, 12.7.2000, p.1; Regulation (EU) 2018/1727 of the European Parliament and of the Council on the European Union Agency for Criminal Justice Cooperation (Eurojust) and repealing Council Decision 2002/187/JHA, OJ L 295, 21.11.2018; Regulation (EU) 2016/794 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, p. 53; Council Framework Decision 2002/465/JHA of 13 June 2002 on joint investigation teams, OJ L 162, 20.6.2002, p. 1; Council Framework Decision 2009/948/JHA on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, OJ L328, 15.12.2009, p.42; Directive 2014/41/EU regarding the European Investigation Order in criminal matters, OJ L130, 1.5.2014, p.1.

                     (38)

                        Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings, OJ L 280, 26.10.2010, p. 1; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294, 6.11.2013, p. 1; Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, OJ L 297, 4.11.2016, p. 1; Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, OJ L 132, 21.5.2016, p. 1; Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ L 65, 11.3.2016, p. 1.

                     (39)

                        Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA; Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201, 31.7.2002, p. 37–47, amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009.

                     (40)

                        Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters, 17 April 2018, COM/2018/225 final; Proposal for a Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings, 17 April 2018, COM/2018/226 final.

    ---documentbreak---

               EUROPEAN COMMISSION
            Brussels, 29.3.2022
            COM(2022) 132 final

            ANNEX
            to the
            Recommendation for a Council Decision
            authorising the negotiations for a comprehensive international convention on countering the use of information and communications technologies for criminal purposes

               ANNEX

               Regarding the process of the negotiations, the Union should aim to achieve that:

               (1)The negotiation process is open, inclusive and transparent, and based on cooperation in good faith.

               (2)The negotiation process enables participation in a meaningful way of all relevant stakeholders, including civil society, the private sector, academia and non-governmental organisations.

               (3)All the inputs received from the entire United Nations Membership are considered on an equal basis to ensure an inclusive process.

               (4)The negotiation process is based on an effective and realistic work programme.

               Regarding the general objectives for the negotiations, the Union should aim to achieve that:

               (5)The Convention serves as an effective instrument for criminal law enforcement and judicial authorities in the global fight against cybercrime, with the aim to add value to international cooperation.

               (6)The existing framework of tried-and-tested international and regional instruments and efforts as reflected in United Nations General Assembly Resolutions 74/247 and 75/282 is taken into full consideration. Accordingly, the Convention is compatible with and complement existing international instruments, in particular the 2001 Council of Europe Budapest Convention on Cybercrime and its protocols, the 2000 United Nations Convention against Transnational Organized Crime and its protocols, but also other relevant international and regional instruments. The Convention avoids any impact on their application or the further accession of any country to them and, to the extent possible, avoid unnecessary duplication.

               (7)The work and outcomes of the open-ended intergovernmental Expert Group to Conduct a Comprehensive Study on Cybercrime as agreed by United Nations General Assembly Resolution 75/282 are taken into full consideration.

               (8)The provisions of the Convention achieve the highest possible protection of human rights. EU Member States should be able to comply with EU law, including the fundamental rights, freedoms and general principles of EU law as enshrined in the European Union Treaties and the Charter of Fundamental Rights. The provisions of the Convention should also be compatible with the EU’s and its Member States’ international trade obligations.

               Regarding the substance of the negotiations, the Union should aim to achieve that:

               (9)The Convention provides for definitions of offences that can only be committed using information systems.

               (10)The Convention provides for definitions of offences that can be committed without using information systems but that can be enabled by the use of information systems in certain circumstances, but only in cases where the involvement of information systems substantially changes the characteristics or impact of the offences.

               (11)The offences are clearly and narrowly defined in a technology neutral manner. The definitions are compatible with those in other relevant international or regional conventions in particular in the area of organised crime or cybercrime, and with international human rights standards.

               (12)The Convention provides for rules on the attempt, aiding and abetting of such offences, on the liability of legal persons for such offences, for rules on the establishment of jurisdiction over such offences, and on sanctions and measures in relation to such offences that are compatible with other relevant international or regional conventions in particular in the area of organised crime or cybercrime, and with international human rights standards.

               (13)The Convention provides for procedural criminal measures that allow authorities to investigate cybercrimes effectively, to freeze and confiscate proceeds of such crimes and to preserve or obtain electronic evidence of any criminal offence as part of a criminal investigation or proceeding, taking due account of the proportionality principle.

               (14)Those procedural criminal measures provide sufficient added value compared to other relevant international or regional conventions in particular in the area of organised crime or cybercrime, and are compatible with such conventions and with international human rights standards.

               (15)Procedural measures to preserve or obtain electronic evidence contain a clear and narrow definition of the type of information covered. Procedural measures for cooperation with private sector entities ensure that the burden on such entities is proportionate and that private sector entities fully respect the human rights of their users. The Convention provides legal clarity for online service providers (e.g., Internet service providers) in their interactions with law enforcement authorities of the State Parties to the Convention. Procedural measures for the removal of illegal content only relate to illegal content that can be sufficiently specific and narrowly defined.

               (16)The Convention provides for cooperation measures that allow authorities in different States that are party to the instrument to cooperate effectively for the purpose of criminal investigations or proceedings concerning offences defined in the instrument or to cooperate to preserve or obtain electronic evidence of any criminal offence as part of a criminal investigation or proceeding.

               (17)Those cooperation measures provide sufficient added value compared to other relevant international or regional conventions in particular in the area of organised crime or cybercrime, and are compatible with such conventions and with international human rights standards.

               (18)Cooperation measures are subject to the conditions provided for by the law of the requested Party and provide for broad grounds for refusal such as to ensure the protection of fundamental rights, including the right to the protection of personal data, including in the context of personal data transfers, and, where appropriate, the existence of double criminality.

               (19)The Convention provides for strict conditions and strong safeguards to ensure that EU Member States can respect and protect the fundamental rights, freedoms and general principles of EU law as enshrined in the European Union Treaties and the Charter of Fundamental Rights, including, in particular, the principle of proportionality, procedural guarantees and rights, the right to effective judicial redress, the presumption of innocence, the right to a fair trial, and the rights of defence of persons subject to criminal proceedings, as well as the right to privacy, the right to the protection of personal data and of electronic communications data when such data is processed, including for transfers to authorities in countries outside the European Union, and the right to freedom of expression and information. The Convention ensures in particular  that EU Member States are able to comply with requirements for the international transfers of personal data within the meaning of Directive (EU) 2016/680, Regulation (EU) 2016/679 and Directive 2002/58/EC. The conditions and safeguards also ensure the protection of human rights and fundamental freedoms in line with international human rights standards. This applies to the entire Convention, including procedural measures and cooperation measures, including those that may significantly interfere with individuals’ rights, such as the freezing and confiscation of proceeds of crime and extradition.

               (20)The Convention provides a basis for voluntary capacity building measures to support countries in their ability to conduct effective cybercrime investigations and proceedings and to obtain electronic evidence for investigations and proceedings of other offences, including by means of technical assistance and training. The UNODC has a clearly described role for the implementation of such measures.

               (21)The Convention takes due account of the position of natural and legal persons as victims of cybercrime. The Convention ensures that these victims of cybercrime receive appropriate assistance, support and protection.

               (22)The Convention provides a basis for practical measures for the prevention of cybercrime that are clearly defined and strictly limited and distinct from criminal procedural measures that could interfere with the rights and freedoms of individuals or legal persons.

               Regarding the functioning of the Convention, the Union should aim to achieve that:

               (23)The Convention preserves existing global and regional instruments and ongoing international cooperation in the global fight against cybercrime. In particular, the European Union Member States, in their mutual relations, are  able to continue to apply the rules of the European Union.

               (24)The Convention provides for an appropriate mechanism to ensure its implementation and provide for final provisions, including on the settlement of disputes, signature, ratification, acceptance, approval and accession, entry into force, amendment, suspension, denunciation and depositary and languages that are modelled where possible and appropriate along the provisions of other relevant international or regional conventions in particular in the area of organised crime or cybercrime.

               (25)The Convention allows for the European Union to become a party to it.


               EUROPEAN COMMISSION
            Brussels, 6.4.2022
            COM(2022) 167 final

            Recommendation for a
            COUNCIL DECISION
            Authorising the opening of negotiations on an agreement on the carriage of goods by road between the European Union and Ukraine

               EXPLANATORY MEMORANDUM

               1.Context of the recommendation

               The Commission hereby recommends to the Council to authorise the opening of negotiations for a time-limited agreement on the carriage of goods by road between the Union and Ukraine (hereafter referred to as “the Agreement”) to address repercussions of Russia’s unprovoked and unjustified military aggression against Ukraine and to nominate the Commission as Union negotiator. Negotiating directives are also attached to the recommendation.

               2.Background

               Road freight transport between the Union and Ukraine is currently governed to a large extent by a number of bilateral transport agreements between EU Member States and Ukraine. These agreements impose quotas arrangements on hauliers from both sides regarding transit and bilateral trade. According to a study prepared in 2014
                  1
               , a total of 560,680 quotas were granted on a bilateral basis to Ukraine by the 25 Member States with which Ukraine had bilateral road transport agreements at that time. In 2019, the number was slightly lower (552.875 quotas, among which 1750 multiple quotas). Quotas regularly require certain Euro emission values.

               Alongside the permits that are based on the abovementioned bilateral agreements, the International Transport Forum (ITF) operates a multilateral quota system that provides for multilateral licences for the international carriage of goods by road by transport undertakings established in a Member country of the European Conference of Ministers of Transport (ECMT). The licences apply to carriage of goods between ECMT Member countries or in transit through the territory of one or several of those countries. However, the number of quotas within the ECMT system is quite low in comparison to the quotas issued under the bilateral agreements (although the comparison is not rigorous, as the ECMT quotas concern annual licences, whereas the bilateral agreements in question regard permits for single trips). In 2022, 4000 annual licences were attributed to Ukrainian operators.

               In 2006, Ukraine acceded to the Agreement on the work of crews of vehicles engaged in international road transport (AETR)
                  2
                to which all EU Member States are also contracting parties. As a consequence, Ukrainian operators carrying out goods on the Union territory must comply with the same driving time, breaks and rest periods of those applying in the Union in accordance with Regulation (EC) 561/2006
                  3
               .

               In view of the military aggression undertaken by Russia against Ukraine, the transport situation has become very difficult for this country. Important transport routes for the carrying of goods via the Black Sea are blocked or have been destroyed by Russian military forces, and the Ukrainian airspace is closed for civilian transport. The rail network is currently prioritised for the transport of passengers and refugees and it remains very vulnerable to the Russian bombardments.

               Therefore, in order to help the Ukrainian economy under hard duress, it is appropriate to urgently conclude an agreement between the Union and Ukraine which will last until the impact of the war on transport infrastructures and operations remains severe, and by which the strained and vulnerable rail network, blocked civilian airspace and blocked Black Sea ports can to the greatest extent possible be replaced by enhanced road transport alternatives to carry goods between the EU and Ukraine. This is very important for the trade in grain, fuel, foodstuffs and other goods, which needs to be urgently addressed to reduce food insecurity within Ukraine and avoid exacerbating the refugee outflows. The Agreement will also include clauses on the recognition of driving licenses and certificates of professional competence for Ukrainian drivers transporting goods to the EU. The Agreement will apply to the territory of Ukraine controlled by the legitimate government of Ukraine and so recognised by the European Union.

               The conclusion of such an agreement is in the interest of the Union, not only because the Union has an interest in the stabilisation of the Ukrainian State and economy, but also because Ukraine is an important supplier of products such as grain and other foodstuffs, and because EU hauliers will obtain reciprocal transport rights to the territory of Ukraine.

               3.Consistency with other Union policies

                  This agreement is consistent with the current EU external relations policy with Ukraine. The Government of Ukraine has requested such an agreement as an urgent measure.

                  The conclusion of an agreement on the carriage of goods by road with Ukraine would also be in line with the Association Agreement signed on 27 June 2014 between the Union and Ukraine, as it envisages in its Article 136 possible future special road agreements with a view to assuring a coordinated development and progressive liberalisation of transport between the Parties.

               4.Legal basis, subsidiarity and Proportionality

               •Legal basis

                  The procedural legal basis for a decision authorising the opening of negotiations of an agreement between the Union and a third country and addressing directives to the negotiator is Article 218(3) and (4) TFEU.

               •Union competence

                  Article 216(1) TFEU establishes that:

                  “The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.”

               This Agreement falls under the Union transport policy and is necessary in order to achieve one of the objectives referred to in the Treaties, which is “to contribute to free and fair trade”, and its conclusion is foreseen in Article 136 of the Association Agreement with Ukraine.

               The conclusion of international agreements on road transport of goods is also explicitly provided for in a legislative act of the Union.

               In particular, Article 1 of Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market establishes in its paragraphs 2 and 3 that:

               "2. In the event of carriage from a Member State to a third country and vice versa, this Regulation shall apply to the part of the journey on the territory of any Member State crossed in transit. It shall not apply to that part of the journey on the territory of the Member State of loading or unloading, as long as the necessary agreement between the Community and the third country concerned has not been concluded.

               3. Pending the conclusion of the agreements referred to in paragraph 2, this Regulation shall not affect:

               (a) provisions relating to the carriage from a Member State to a third country and vice versa included in bilateral agreements concluded by Member States with those third countries;

               (b) provisions relating to the carriage from a Member State to a third country and vice versa included in bilateral agreements concluded between Member States which, under either bilateral authorisations or liberalisation arrangements, allow loading and unloading in a Member State by hauliers not established in that Member State."

               Furthermore, its conclusion may affect common rules or alter their scope as established by the ECJ jurisprudence. In particular, the Court in paragraph 201 of its Opinion 2/15 of 16 May 2017
                  4
                stated as follows:

               "201 As the Court has already determined, where an agreement between the European Union and a third State provides for the application, to the international relations covered by that agreement, of rules that will overlap to a large extent with the common EU rules applicable to intra-Community situations, that agreement must be regarded as capable of affecting or altering the scope of those common rules. Despite there being no contradiction with those common rules, the meaning, scope and effectiveness of the latter may be affected (see, inter alia, Opinion 1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81, paragraphs 143 and 151 to 153; Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014, EU:C:2014:2303, paragraphs 84 to 90; and judgment of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraphs 48 and 49). "

                  The market access envisaged in this Recommendation certainly overlaps with the market access provisions adopted by the Union as regards international road haulage transport referred above.

                  In view of the above, the Union has exclusive external competence under Article 3(2) TFEU to conclude the envisaged agreement.

               •Commission's duty to consult

               Taking into account the judgment of the Court of Justice of 16 July 2015 in case C-425/13
                  5
               , clarifying the roles of the different institutions for the purpose of the application of Article 218(2) and (4) TFEU in accordance with the principles of institutional balance and mutual sincere cooperation laid down in Article 13(2) TEU, it is necessary to reflect these clarifications.

               It is appropriate that the Commission provides the Council and the special committee designated by it with all the information necessary for them to monitor the progress of the negotiations, such as, in particular, the general aims announced and the positions taken by the other parties throughout the negotiations. The Commission will report in writing to the Council and to the special committee designated by it on the outcome of the negotiations in a way that allows the Council to exercise its institutional prerogatives.

               In order to comply with the obligation of respecting the institutional balance laid down in Article 13(2) TEU and the obligation established in Article 218(10) TFEU, the Commission will inform the European Parliament to the same extent.

               •Proportionality

                  The Recommendation complies with the proportionality principle for the following reasons:

                  The envisaged agreement is the most efficient instrument to enhance EU-Ukraine road transport relations, since it removes the need for quotas in bilateral agreements between EU Member States and Ukraine.

                  The proposed agreement will not impose any additional administrative or financial burden neither on Member States’ authorities nor on the industry compared to the current situation. It should on the opposite reduce the administrative burden for both the industry and the Member States. In addition, it will delete the need for transport permits for EU hauliers for the indicated categories of transport rights (transit and bilateral rights), which will reduce the burden for the EU transport industry.

               5.Budgetary implications

                  The Recommendation has no implication for the Union budget.

               6.Other elements

               •Detailed explanation of the specific provisions of the Recommendation

               The Council Decision will authorise the opening of negotiations for an agreement on the carriage of goods by road between the Union and Ukraine to address repercussions of Russia’s aggression against Ukraine, and will nominate the Commission as Union negotiator. The negotiating directives which are attached to the Decision give a broad description of the scope of the envisaged agreement.

               Recommendation for a

               COUNCIL DECISION

               Authorising the opening of negotiations on an agreement on the carriage of goods by road between the European Union and Ukraine

               THE COUNCIL OF THE EUROPEAN UNION,

               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 218(3) and (4) thereof,

               Having regard to the recommendation from the European Commission,

               Whereas:

               (1)Negotiations should be opened with a view to concluding an agreement between the Union and the Republic of Ukraine on the carriage of goods by road. It is appropriate that the agreement applies until the impact of Russia’s unprovoked and unjustified aggression against Ukraine on transport infrastructures and operations remains severe.

               (2)The Commission should be designated as negotiator.

               (3)The negotiations should be conducted by the Commission in consultation with the [name of the special committee to be inserted by the Council],

               HAS ADOPTED THIS DECISION:

               Article 1

               The Commission is hereby authorised to negotiate, on behalf of the Union, an agreement between the European Union and the Republic of Ukraine on the carriage of goods by road.

               Article 2

               The negotiation directives are set out in the Annex.

               Article 3

               The negotiations shall be conducted in consultation with the [name of the special committee to be inserted by the Council].

               Article 4

               This Decision is addressed to the Commission.

               Done at Brussels,

                     For the Council

                     The President

                     (1)

                        Study on the economic impact of an agreement between the EU and the Ukraine prepared by ICF, TRT and DIW Econ, Final Report, 14 October 2014.

                     (2)

                        Signed in Geneva, 1 July 1970.

                     (3)

                        Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85

                     (4)

                        ECLI:EU:C:2017:376.

                     (5)

                        ECLI:EU:C:2015:483.

    ---documentbreak---

               EUROPEAN COMMISSION
            Brussels, 6.4.2022
            COM(2022) 167 final

            ANNEX
            to the
            Recommendation for a COUNCIL DECISION
            Authorising the opening of negotiations on an agreement on the carriage of goods by road between the European Union and Ukraine

               ANNEX

               Negotiating directives for an agreement between the European Union and Ukraine on the carriage of goods by road

               1.Negotiating objectives

               To negotiate an agreement with Ukraine which liberalises transport of goods by road by granting access rights to Ukrainian and European Union operators regarding transit and bilateral international carriage and which contains the recognition of driving licences and certificates of professional competence issued by Ukrainian competent authorities in the European Union and vice versa.

               2.Scope of the agreement

               The agreement should allow Ukrainian road hauliers access to the market of the Union.

               (1)The agreement should liberalise transport of goods by road by granting access rights to Ukrainian and European Union operators regarding transit and bilateral international carriage between the European Union and Ukraine. The agreement should maintain or increase the level of market access or other commercial opportunities available under the existing bilateral road transport agreements between EU Member States and Ukraine.

               (2)The agreement, which should be equally authentic in all official EU languages, should include a language clause to that effect.

               (3)The agreement should address driving licences and certificates of professional competence issued by Ukrainian competent authorities in order to ensure their recognition in the European Union.

               (4)The agreement should be limited in time and apply for as long as the impact of Russia’s military aggression against Ukraine on transport infrastructures and operations remains severe.

               3.General provisions

               The agreement being subsequent to the existing bilateral road transport agreements between EU Member States and Ukraine will prevail over their provisions.

               Once that agreement is terminated, the existing bilateral agreements between EU Member States and Ukraine may again apply unless and until the Union concludes another agreement with Ukraine in the field of road transport.

               4.Management of the agreement

               A Joint Committee composed of representatives of the Parties should be established, which should be responsible for the administration of the agreement and for its proper implementation in particular as regards the adaptation, following their modification, of the EU rules included in an Annex to the agreement to be complied with by Ukraine as well as new rules applicable in the field of road transport adopted at Union level.

               Ukrainian experts may be allowed to participate as observers in the Experts Groups established by the Union and dealing with the Union legislation to be applied by Ukraine, which will be set out in an Annex to the agreement.

               The agreement should include an expeditious, effective and binding dispute settlement mechanism, which will ensure that the agreement can be properly applied.

               Notwithstanding the dispute settlement mechanism, the agreement should include provisions to be applied in case of non-fulfilment of its obligations, such as the possibility of adopting appropriate safeguard measures or of suspending fully or partially the rights or privileges granted under the terms of the agreement.

               5.Conduct of the Negotiations

               The Commission will conduct the negotiations in pursuance of these directives and will ensure proper coordination with ongoing and future negotiations in other relevant areas.


               EUROPEAN COMMISSION
            Brussels, 6.4.2022
            COM(2022) 168 final

            Recommendation for a
            COUNCIL DECISION
            Authorising the opening of negotiations on an agreement on the carriage of goods by road between the European Union and the Republic of Moldova

               EXPLANATORY MEMORANDUM

               1.Context of the recommendation

               The Commission hereby recommends to the Council to authorise the opening of negotiations for a time-limited agreement on the carriage of goods by road between the Union and Moldova (hereafter referred to as “the agreement”) to address repercussions of Russia’s unprovoked and unjustified military aggression against Ukraine and to nominate the Commission as Union negotiator. Negotiating directives are also attached to the recommendation.

               2.Background

               Road freight transport between the Union and Moldova is currently governed to a large extent by a number of bilateral transport agreements between EU Member States and Moldova. These agreements provide for quotas arrangements for hauliers from both sides regarding transit and bilateral trade. According to information from the Moldovan National Agency of Road Transport, a total of 15,000 quotas were granted by Estonia, Lithuania, Latvia, Poland, Slovakia, Hungary, and Slovenia to Moldova. Of this total amount, 14,320 are transit or bilateral quotas, and 680 universal quotas. Of all the quotas attributed by these countries to Moldova for 2022, only 8,647 quotas (only about 60% of the total) were left by 17 March 2022.

               Alongside the permits that are based on the abovementioned bilateral agreements, the International Transport Forum (ITF) operates a multilateral quota system that provides for multilateral licences for the international carriage of goods by road by transport undertakings established in a Member country of the European Conference of Ministers of Transport (ECMT). The licences apply to carriage of goods between ECMT Member countries or in transit through the territory of one or several of those countries. However, the number of quotas within the ECMT system is quite low in comparison to the quotas issued under the bilateral agreements (although the comparison is not rigorous, as the ECMT quotas concern annual licences, whereas the bilateral agreements in question regard permits for single trips). In 2022, 1,430 annual licences and 1,752 short-term licences were attributed to Moldovan operators.

               Moldova is party to the Agreement on the work of crews of vehicles engaged in international road transport (AETR)
                  1
                to which all EU Member States are also contracting parties. As a consequence, Moldovan operators carrying out goods on the Union territory must comply with the same driving time, breaks and rest periods of those applying in the Union in accordance with Regulation (EC) 561/2006
                  2
               .

               In view of the military aggression undertaken by Russia against Ukraine, the transport situation has become very difficult for Moldova. The war in Ukraine forces Moldovan road transport operators to search for alternative routes to avoid transiting the territory of Ukraine, which has so far been the only way to reach the third country markets in the East of Ukraine. However, Moldovan carriers do not have sufficient permits for the necessary transit of the Member States through which such transit would be necessary. This endangers the fulfilment of long-term contracts for the supply of goods (especially agricultural products) with their trading partners in the above-mentioned countries. There is also an increased need for bilateral transports operations between Moldova and the EU, which the current set of permits cannot match. An extension of transport rights for Moldovan hauliers and the granting of reciprocal rights for EU hauliers could also allow the EU to export more goods to Moldova, which is therefore also in the interest of the EU. At the same time, Moldova might need to further adjust its economic and transport patterns in order to respond to the impact of the war on the international markets.

               Therefore, in order to help the Moldovan economy which is under great difficulties, while this country has already provisionally hosted more than 350,000 refugees coming from Ukraine and transiting to other countries, it is appropriate to urgently conclude an agreement between the Union and Moldova by which the blocked transit routes through Ukraine can, to the best possible extent, be replaced by enhanced road transport alternatives through the EU and bilateral road transport between Moldova and the EU can be enhanced. Such an agreement should last for as long as the impact of the war on transport operations and the Ukrainian transport infrastructure remains severe.

               Such an agreement is also in the interest of the EU, since the EU has an interest in the stabilisation of the Moldovan economy, also with a view to the fact that the country has to deal with an influx of refugees fleeing the war, and an interest to mitigate the impact of the Russian aggression on the security situation of the EU and its borders. In addition, EU hauliers will obtain reciprocal transport rights to the ones granted to Moldovan hauliers, which will be positive for the EU economy.

               Article 80(c) of the Association Agreement calls to enhance the main transport links between the territories of the EU and Moldova, and its Article 82 calls for cooperation improving the movement of goods, increasing fluidity of transport flows between the Republic of Moldova, the EU and third countries in the region, by removing administrative, technical and other obstacles.

               3.Consistency with other Union policies

                  This agreement is consistent with the current EU external relations policy with Moldova. The Government of Moldova has requested an agreement as an urgent measure. Such an agreement will also complement the EU support granted to Moldova in March 2022 to help the Moldovan authorities to provide assistance to people fleeing from the Russian invasion of Ukraine. The conclusion of a time-limited agreement on the carriage of goods by road with Moldova for the duration of transport impediments caused by the war in Ukraine would also be in line with the Association Agreement signed on 27 June 2014 between the Union and Moldova
                     3
                  .

               4.Legal basis, subsidiarity and Proportionality

               •Legal basis

                  The procedural legal basis for a decision authorising the opening of negotiations of an agreement between the Union and a third country and addressing directives to the negotiator is Article 218(3) and (4) TFEU.

               •Union competence

                  Article 216 (1) TFEU establishes that:

                  “The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope.”

               This Agreement falls under the Union transport policy and is necessary in order to achieve one of the objectives referred to in the Treaties, which is to “contribute to free and fair trade”.

               In addition, the conclusion of international agreements on road transport of goods is explicitly provided for in a legislative act of the Union.

               In particular, Article 1 of Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market establishes in its paragraphs 2 and 3 that:

               "2. In the event of carriage from a Member State to a third country and vice versa, this Regulation shall apply to the part of the journey on the territory of any Member State crossed in transit. It shall not apply to that part of the journey on the territory of the Member State of loading or unloading, as long as the necessary agreement between the Community and the third country concerned has not been concluded.

               3. Pending the conclusion of the agreements referred to in paragraph 2, this Regulation shall not affect:

               (a) provisions relating to the carriage from a Member State to a third country and vice versa included in bilateral agreements concluded by Member States with those third countries;

               (b) provisions relating to the carriage from a Member State to a third country and vice versa included in bilateral agreements concluded between Member States which, under either bilateral authorisations or liberalisation arrangements, allow loading and unloading in a Member State by hauliers not established in that Member State."

               Moreover, Art. 82 of the Association Agreement between the Union and Moldova stipulates that the cooperation between the two parties shall aim at improving the movement of passengers and goods and increase the fluidity of transport flows between the Union and the Republic of Moldova.

               Furthermore, its conclusion may affect common rules or alter their scope as established by the ECJ jurisprudence. In particular, the Court in paragraph 201 of its Opinion 2/15 of 16 May 2017
                  4
                stated as follows:

               "201 As the Court has already determined, where an agreement between the European Union and a third State provides for the application, to the international relations covered by that agreement, of rules that will overlap to a large extent with the common EU rules applicable to intra-Community situations, that agreement must be regarded as capable of affecting or altering the scope of those common rules. Despite there being no contradiction with those common rules, the meaning, scope and effectiveness of the latter may be affected (see, inter alia, Opinion 1/03 (New Lugano Convention) of 7 February 2006, EU:C:2006:81, paragraphs 143 and 151 to 153; Opinion 1/13 (Accession of third States to the Hague Convention) of 14 October 2014, EU:C:2014:2303, paragraphs 84 to 90; and judgment of 26 November 2014, Green Network, C‑66/13, EU:C:2014:2399, paragraphs 48 and 49). "

                  The market access envisaged in this Recommendation certainly overlaps with the market access provisions adopted by the Union as regards international road haulage transport referred above.

                  In view of the above, the Union has exclusive external competence under Article 3(2) TFEU to conclude the envisaged agreement.

               To the extent that the existing bilateral agreements are not superseded by the envisaged agreement, they may continue to apply as a matter of the envisaged agreement. Once that agreement is terminated, the existing bilateral agreements may again apply independently unless and until the Union concludes another agreement with Moldova in the field of road transport.

               •Commission's duty to consult

               Taking into account the judgment of the Court of Justice of 16 July 2015 in case C-425/13
                  5
               , clarifying the roles of the different institutions for the purpose of the application of Article 218(2) and (4) TFEU in accordance with the principles of institutional balance and mutual sincere cooperation laid down in Article 13(2) TEU, it is necessary to reflect these clarifications.

               It is appropriate that the Commission provides the Council and the special committee designated by it with all the information necessary for them to monitor the progress of the negotiations, such as, in particular, the general aims announced and the positions taken by the other parties throughout the negotiations. The Commission will report in writing to the Council and to the special committee designated by it on the outcome of the negotiations in a way that allows the Council to exercise its institutional prerogatives.

               In order to comply with the obligation of respecting the institutional balance laid down in Article 13(2) TEU and the obligation established in Article 218(10) TFEU, the Commission will inform the European Parliament to the same extent.

               •Proportionality

                  The Recommendation complies with the proportionality principle for the following reasons:

                  The envisaged agreement is the most efficient instrument to enhance EU-Moldova road transport relations, since it removes the need for quotas in bilateral agreements between Member States and Moldova as regards transit.

                  The proposed agreement will not impose any additional administrative or financial burden neither on Member States’ authorities nor on the industry. It should on the opposite reduce the administrative burden for both the industry and the Member States, since the granting of reciprocal rights to the ones of Moldovan hauliers for EU hauliers (transit rights and the rights of bilateral international carriage) will remove the need for permits for EU operators and thereby reduce the administrative burden for the EU transport industry.

               5.Budgetary implications

                  The Recommendation has no implication for the Union budget.

               6.Other elements

               •Detailed explanation of the specific provisions of the Recommendation

               The Council Decision will authorise the opening of negotiations for an agreement on the carriage of goods by road between the Union and Moldova to address repercussions of Russia’s aggression against Ukraine and will nominate the Commission as Union negotiator. The negotiating directives which are attached to the Decision give a broad description of the scope of the envisaged agreement.

               Recommendation for a

               COUNCIL DECISION

               Authorising the opening of negotiations on an agreement on the carriage of goods by road between the European Union and the Republic of Moldova

               THE COUNCIL OF THE EUROPEAN UNION,

               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 218(3) and (4) thereof,

               Having regard to the recommendation from the European Commission,

               Whereas:

               (1)Negotiations should be opened with a view to concluding an agreement between the Union and the Republic of Moldova on the carriage of goods by road. It is appropriate that the agreement applies for as long as the impact of Russia’s aggression against Ukraine on transport operations and Ukrainian transport infrastructures remains severe.

               (2)The Commission should be designated as negotiator.

               (3)The negotiations should be conducted by the Commission in consultation with the [name of the special committee to be inserted by the Council],

               HAS ADOPTED THIS DECISION:

               Article 1

               The Commission is hereby authorised to negotiate, on behalf of the Union, an agreement between the European Union and the Republic of Moldova on the carriage of goods by road.

               Article 2

               The negotiating directives are set out in the Annex.

               Article 3

               The negotiations shall be conducted in consultation with the [name of the special committee to be inserted by the Council].

               Article 4

               This Decision is addressed to the Commission.

               Done at Brussels,

                     For the Council

                     The President

                     (1)

                        Signed in Geneva, 1 July 1970.

                     (2)

                        Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85

                     (3)

                        OJ L260 of 30 August 2014, page 4.

                     (4)

                        ECLI:EU:C:2017:376.

                     (5)

                        ECLI:EU:C:2015:483.

    ---documentbreak---

               EUROPEAN COMMISSION
            Brussels, 6.4.2022
            COM(2022) 168 final

            ANNEX
            to the
            Recommendation for a COUNCIL DECISION
            Authorising the opening of negotiations on an agreement on the carriage of goods by road between the European Union and the Republic of Moldova

               ANNEX

               Negotiating directives for an agreement between the European Union and the Republic of Moldova on the carriage of goods by road

               1.Negotiating objectives

               Allow for liberalisation of the transport of goods by road, in terms of transit rights and rights of bilateral international carriage, between Moldova and the Union for the duration of Russia’s unprovoked and unjustified military aggression against Ukraine.

               2.Scope of the agreement

               (1)The agreement should liberalise transport of goods by road by granting access rights to Moldovan and European Union operators regarding transit and bilateral international carriage between the European Union and Moldova. The agreement should maintain or increase the level of market access or other commercial opportunities available under existing bilateral road transport agreements between EU Member States and Moldova.

               (2)The agreement, which should be equally authentic in all official EU languages, should include a language clause to that effect.

               (3)The agreement should be limited in time and it should apply for as long as the impact of Russia’s aggression against Ukraine on transport operations and Ukrainian transport infrastructure remains severe.

               3.General provisions

               The agreement, being subsequent to the existing bilateral road transport agreements between Member States and Moldova, will prevail over their provisions.

               Once this agreement is terminated, the existing bilateral agreements between EU Member States and Moldova would again apply unless and until the Union concludes another agreement with Moldova in the field of road transport.

               4.Management of the agreement

               A Joint Committee composed of representatives of the Parties should be established, which should be responsible for the administration of the agreement and for its proper implementation in particular as regards the adaptation, following their modification, of the EU rules included in an Annex to the agreement to be complied with by Moldova as well as new rules applicable in the field of road transport adopted at Union level.

               Moldovan experts may be allowed to participate as observers in the Experts Groups established by the Union and dealing with the Union legislation to be applied by Moldova, which will be set out in an Annex to the agreement.

               The agreement should include an expeditious, effective and binding dispute settlement mechanism, which will ensure that the agreement can be properly applied.

               Notwithstanding the dispute settlement mechanism, the agreement should include provisions to be applied in case of non-fulfilment of its obligations, such as the possibility of adopting appropriate safeguard measures or of suspending fully or partially the rights or privileges granted under the terms of the agreement.

               5.Conduct of the Negotiations

               The Commission will conduct the negotiations in pursuance of these directives and will ensure proper coordination with ongoing and future negotiations in other relevant areas.