Order of the General Court First Chamber, Extended Composition, 6 September 2023, EDPS v Parliament and Council, T-578/22
| Date | 06 September 2023 |
| Year | 2023 |
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Order of the General Court (First Chamber, Extended Composition), 6 September 2023,
EDPS v Parliament and Council, T-578/22
Link to the full text of the order
Action for annulment – L aw governing the institutions – Processing of personal data by Europol –
Regulation (EU) 2016/794 – The institutional prerogatives of the EDPS – Locus standi – Action in part
inadmissible and in part manifestly inadmissible
On 3 January 2022, following an own-initiative inquiry, the European Data Protection Supervisor
(EDPS) adopted a decision against the European Union Agency for Law Enforcement Cooperation
(Europol).
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By that decision, the EDPS ordered Europol, in essence, for each contribution received as
from 4 January 2022, to proceed to data subject categorisation within 6 months as from the date of
reception of that contribution, and to proceed to data subject categorisation within 12 months for all
datasets existing as at the date of that decision, after which periods Europol was required to erase
those data.
On 8 June 2022, the European Parliament and the Council adopted the amended Europol regulation.
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That regulation laid down, in essence, under two transitional provisions,
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the conditions in which
Europol is to proceed, within a specified period, to the categorisation of the datasets in its possession
at the time of entry into force of the amended Europol regulation, and specifies the conditions and
procedures according to which the processing of personal data not relating to categories of data
subjects listed in Annex II to the amended Europol r egulation, and which were transferred to Europol
before 28 June 2022, is to be authorised in support of an ongoing criminal investigation.
The EDPS took the view that the contested provisions infringed his independence and his powers as a
supervisory authority, since, in his view, they retroactively legalised Eur opol’s contested data retention
practices and de facto annulled the decision of 3 January 2022. Thus, pursuant to Article 263 TFEU, he
sought, before the General Court, the annulment of those provisions. The EDPS submitted that his
standing to bring an action was justified by the need to be able to have a judicial remedy in order to
defend his institutional prerogatives and, in particular, his independence as a supervisory authority.
In the present case, the General Court has before it, for the first time, an action for annulment
brought by the EDPS against a legislative act of the Council and the Parliamen t, which raises, inter alia,
the issue of the jurisdiction of the General Court to hear and determine that action, the issue of the
application of the judgment in Parliament v Council (C-70/88)
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by analogy to the present case, and the
issue of the direct concern of the EDPS, who is treated in the same way as a legal person, under the
fourth paragraph of Article 263 TFEU.
Findings of the Court
In the first place, the Court examines whether it has jurisdiction to hear the action brought by the
EDPS and observes, first of all, that the EDPS is not among the applicants referred to in the second
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Pursuant to Article 43(3)(e) of Regulation (EU) 2016/794 of the European Parliament and of the Coun cil of 11 May 2016 on the European
Union Agency for Law Enforcemen t 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 2016 L 135, p. 53 ; ‘the initial Europol regulation’).
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By means of Regulation (EU) 2022/991 of the European P arliament and of the Council of 8 June 2022, as regard s Europol’s cooperation with
private parties, the processing of personal data by Europol in support of criminal investigations, and Europol’s role i n res earch and
innovation (OJ 2022 L 169, p. 1), thereby amending the initial Europol regulation (‘ the amended Europol regulation’).
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Articles 74a and 74b of the amended Europol Regulation (‘the contested provis ions’).
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