Legal provisions of COM(2021)96 - Amending regulations on information systems on conviction information (ECRIS-TCN), police and judicial cooperation, asylum and migration, and on screening at external borders - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2021)96 - Amending regulations on information systems on conviction information (ECRIS-TCN), police and judicial cooperation, asylum ... |
|---|---|
| document | COM(2021)96  |
| date | March 2, 2021 |
Contents
Article 1 - Amendments to Regulation (EU) 2019/816
1. In Article 1, the following point (e) is added:
‘(e) the conditions under which ECRIS-TCN shall be used by the competent authorities in order to perform a security check in accordance with Regulation (EU) …/… 28 [Regulation on Screening]*.’
_____________
* Regulation (EU) …/… [Regulation introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817] (OJ …)
2. Article 2 is replaced by the following:
“Article 2
Scope
This Regulation applies to the processing of identity information of third-country nationals who have been subject to convictions in the Member States for the purpose of identifying the Member States where such convictions were handed down [as well as for the purposes of border management] 29 . With the exception of point (b)(ii) of Article 5(1), the provisions of this Regulation that apply to third-country nationals also apply to citizens of the Union who also hold the nationality of a third country and who have been subject to convictions in the Member States.
This Regulation also:
(a)facilitates and assists in the correct identification of persons in accordance with this Regulation and with Regulation (EU) 2019/818;
(b)supports the objectives of Regulation (EU) …/… [Regulation on Screening] as regards the carrying out of the security checks.
3. In Article 3, point 6 is replaced by the following:
(6) ‘competent authorities’ means the central authorities and Eurojust, Europol, the EPPO [, the ETIAS Central Unit established within the European Border and Coast Guard Agency] 30 and the authorities referred to in Article 6(7) subparagraph 1 of Regulation (EU) …/… [Regulation on Screening], which are competent to access or query ECRIS-TCN in accordance with this Regulation;
4. Article 5 is amended as follows:
(a)in paragraph 1, the following point is added:
‘(c)a flag indicating, for the purpose of [Regulation (EU) 2018/1240 and of Article 11 and 12 of Regulation (EU) …/… [Regulation on Screening], that the third-country national concerned has been convicted for a terrorist offence or any other criminal offence listed in the annex to Regulation (EU) 2018/1240 if they are punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years, and in those cases the code of the convicting Member State(s).’;
(b)the following paragraph 7 is added after paragraph 6:
‘7. Where hits are identified following the security checks referred to in Articles 11 and 12 of Regulation (EU) …/… [Regulation on Screening] flags and the code(s) of convicting Member State(s) as referred to in point (c) of paragraph 1 of this article shall be accessible and searchable only, respectively, by the competent authorities referred to in Article 6(7) of Regulation (EU) …/… [Regulation on Screening] for the purpose of that Regulation.’
5. In Article 7, paragraph 7 is replaced by the following:
‘7. In the event of a hit, the central system shall automatically provide the competent authority with information on the Member States holding criminal records information on the third country national, along with the associated reference numbers referred to in Article 5(1) and any corresponding identity information. Such identity information shall only be used for the purpose of verifying the identity of the third country national concerned. The result of a search in the central system may only be used for the purposes of:
(a)making a request according to Article 6 of Framework Decision 2009/315/JHA;
(b)making a request referred to in Article 17(3) of this Regulation;
(c)[border management] 31 ;
(d)assessing whether a third country national subject to screening checks would pose a threat to public policy or public security, in accordance with Regulation (EU) …/… [Regulation on Screening].
6. The following Article 7a is inserted after Article 7:
‘Article 7a
Use of ECRIS-TCN for the purposes of the Screening
‘The competent authorities referred to in Article 6(7) of Regulation (EU) …/… [Regulation on Screening] shall have the right to access and search the European Criminal Records Information System for third country nationals (ECRIS-TCN) database using the European Search Portal provided for in Article 6 of Regulation (EU) 2019/818, for the purpose of performing the tasks conferred upon them by Article 11 of Regulation (EU) …/… [Regulation on Screening].
For the purpose of the security check referred to in Article 11 of Regulation (EU) …/… [Regulation on Screening], the competent authorities referred to in the first subparagraph shall only have access to data records in the CIR to which a flag has been added in accordance with Article 5(1)(c) of this Regulation.
The consultation of national criminal records based on the flagged ECRIS-TCN data shall take place in accordance with national law and using national channels. The relevant national authorities shall provide an opinion to the competent authorties referred to in Article 6(7) of Regulation (EU) …/… [Regulation on Screening] within two days where the screening takes place on the territory of the Member States or within four days where the screening takes place at external borders. The absence of opinion within these deadlines shall mean that there are no security grounds to be taken into account.’
7. In Article 24, paragraph 1 is replaced by the following:
‘1. The data entered into the central system and the CIR shall only be processed for the purposes of:
(a)the identification of the Member States holding the criminal records information of third-country nationals
(b)[border management] 32 or
(c)screening pursuant to Article 11 of Regulation (EU) …/… [Regulation on Screening].’
Article 2 - Amendments to Regulation (EU) 2019/818
1. In Article 7, paragraph 2 is replaced by the following:
“(2) The Member State authorities and Union agencies referred to in paragraph 1 shall use the ESP to search data related to persons or their travel documents in the central systems of Eurodac and ECRIS-TCN in accordance with their access rights as referred to in the legal instruments governing those EU information systems and in national law. They shall also use the ESP to query the CIR in accordance with their access rights under this Regulation for the purposes referred to in Articles 20, 20a, 21 and 22.”
2. Article 17 is amended as follows:
(a)paragraph 1 is replaced by the following:
“A common identity repository (CIR), creating an individual file for each person that is registered in the EES, VIS, ETIAS, Eurodac or ECRIS-TCN containing the data referred to in Article 18, is established for the purpose of facilitating and assisting in the correct identification of persons registered in the EES, VIS, ETIAS, Eurodac and ECRIS-TCN in accordance with Articles 20 and 20a of this Regulation, of supporting the functioning of the MID in accordance with Article 21 and of facilitating and streamlining access by designated authorities and Europol to the EES, VIS, ETIAS and Eurodac, where necessary for the prevention, detection or investigation of terrorist offences or other serious criminal offences in accordance with Article 22.”
(b)paragraph 4 is replaced by the following:
“ Where it is technically impossible because of a failure of the CIR to query the CIR for the purposes of identifying a person pursuant to Article 20 or of verifying or establishing the identity of a person pursuant to Article 20a of this Regulation, for the detection of multiple identities pursuant to Article 21 or for the purposes of preventing, detecting or investigating terrorist offences or other serious criminal offences pursuant to Article 22, the CIR users shall be notified by eu-LISA in an automated manner.
3. In Article 18, paragraph 3 is replaced by the following:
“(3) The authorities accessing the CIR shall do so in accordance with their access rights under the legal instruments governing the EU information systems, and under national law and in accordance with their access rights under this Regulation for the purposes referred to in Articles 20, 20a, 21 and 22.”
4. The following Article 20a is inserted after Article 20:
“Article 20a
Access to the common identity repository for identification according to Regulation (EU) …/… [Regulation on Screening]
1. Queries of the CIR shall be carried out by the designated competent authority as referred to in Article 6(7) of Regulation (EU) …/… [Regulation on Screening], solely for the purpose of verifying or establishing the identity of a person according to Article 10 of that Regulation, provided that the procedure was initiated in the presence of that person.
2. Where the query indicates that data on that person are stored in the CIR, the competent authority referred to in paragraph 1 shall have access to consult the data referred to in Article18(1) of this Regulation.”
5. Article 24 is amended as follow:
(a)paragraph 1 is replaced by the following:
‘1. Without prejudice to Article 29 of Regulation (EU) 2019/816, eu-LISA shall keep logs of all data processing operations in the CIR in accordance with paragraphs 2, 2a, 3 and 4 of this Article.’
(b)the following paragraph 2a is inserted after paragraph 2:
“2a. eu-LISA shall keep logs of all data processing operations pursuant to Article 20a in the CIR. Those logs shall include the following elements:
(a)the Member State launching the query;
(b)the purpose of access of the user querying via the CIR;
(c)the date and time of the query;
(d)the type of data used to launch the query;
(e)the results of the query.”
(c)in paragraph 5, the first sub-paragraph is replaced by the following:
“(5) Each Member State shall keep logs of queries that its authorities and the staff of those authorities duly authorised to use the CIR make pursuant to Articles 20, 20a, 21 and 22. Each Union agency shall keep logs of queries that its duly authorised staff make pursuant to Articles 21 and 22.”
Article 3
This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.