Council Decision of 6 April 2009 establishing the European Police Office (Europol) (2009/371/JHA) (repealed)

Article 41 Obligation of discretion and confidentiality

1. The members of the Management Board, the Director, the Deputy Directors, employees of Europol and liaison officers shall refrain from any action and any expression of opinion which might be harmful to Europol or prejudice its activities.

2. The members of the Management Board, the Director, the Deputy Directors, employees of Europol and liaison officers, as well as any other person under a particular obligation of discretion or confidentiality, shall be bound not to disclose any facts or information which come to their knowledge in the performance of their duties or the exercise of their activities to any unauthorised person or to the public. This shall not apply to facts or information too insignificant to require confidentiality. The obligation of discretion and confidentiality shall apply even after the termination of office or employment, or after the termination of activities. Notification of the particular obligation referred to in the first sentence shall be given by Europol together with a warning of the legal consequences of any infringement. A written record shall be drawn up of such notification.

3. The members of the Management Board, the Director, the Deputy Directors, employees of Europol and liaison officers, as well as other persons under the obligation provided for in paragraph 2, shall not give evidence in or outside a court or make any statements on any facts or information which come to their knowledge in the performance of their duties or the exercise of their activities without reference to the Director or, in the case of the Director himself, to the Management Board.

The Management Board or the Director, depending on the case, shall approach the judicial body or any other competent body with a view to ensuring that the necessary measures under the national law applicable to the body approached are taken.

Such measures may either be to adjust the procedures for giving evidence in order to ensure the confidentiality of the information or, provided that the national law concerned so permits, to refuse to make any communication concerning data in so far as it is vital for the protection of the interests of Europol or of a Member State.

Where a Member State’s legislation provides for the right to refuse to give evidence, persons referred to in paragraph 2 asked to give evidence shall be required to obtain permission to do so. Permission shall be granted by the Director or, in the case of evidence to be given by the Director, by the Management Board. Where a liaison officer is asked to give evidence concerning information he receives from Europol, such permission shall be given after the agreement of the Member State responsible for the officer concerned has been obtained. The obligation to seek permission to give evidence shall apply even after the termination of office or employment or after the termination of activities.

Furthermore, if the possibility exists that the evidence may extend to information and knowledge which a Member State has communicated to Europol or which clearly involves a Member State, the position of that Member State concerning the evidence shall be sought before permission is granted.

Permission to give evidence may be refused only in so far as that is necessary to protect the overriding interests of Europol or of a Member State or Member States that need protection.

4. Each Member State shall treat any infringement of the obligation of discretion or confidentiality laid down in paragraphs 2 and 3 as a breach of the obligations imposed by its law on official or professional secrets or its provisions for the protection of classified material.

It shall ensure that the rules and provisions concerned also apply to its own employees who have contact with Europol in the course of their work.