Explanatory Memorandum to COM(2009)344 - Requesting comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2009)344 - Requesting comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement ... |
|---|---|
| source | COM(2009)344  |
| date | 08-07-2009 |
Grounds for and objectives of the proposal Information about citizens of EU Member States and about third country nationals is available in many forms and systems in the Member States and at EU level. National and European instruments lay down the rules and conditions under which law enforcement authorities can have access to this information in order to carry out their lawful tasks. Fingerprint data is especially useful information for law enforcement purposes, as it constitutes an important element in establishing the exact identity of a person. The usefulness of fingerprint databases in fighting crime is a fact that has been repeatedly acknowledged. Fingerprint data of asylum seekers are collected and stored in the Member State in which the asylum application was filed, as well as in EURODAC. In all Member States that replied to the questionnaire of the Commission services, the law enforcement authorities had direct or indirect access to their national databases that contain the fingerprints of asylum seekers for the purpose of fighting crime. During the consultation of experts it became clear that those national law enforcement authorities that consult national databases containing fingerprints of asylum seekers for criminal investigations consider the hit rate significant. However, while Member States successfully access asylum seekers fingerprints on a national level, it seems that access to asylum seekers fingerprint databases of other Member States is more problematic. The reason is that there is a structural information and verification gap since there is currently no single system that is accessible to law enforcement authorities which enables to determine the Member State that has information on an asylum seeker. If a query of a national Automated Fingerprint Identification Systems (AFIS) using the Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (Prüm Decision) which will be implemented by Member States by June 2011 does not result in a 'hit', it is not certain that no information is available in a Member State. Therefore, law enforcement authorities will not only remain ignorant about whether or not information is available at all and in which Member State, but often also whether this information relates to the same person. Law enforcement officials will only know whether information is available in a database of another Member State if their judicial authorities issue a request for mutual legal assistance requesting the other Member State to query their databases and send the relevant information.
General context The Hague Programme stated that the exchange of information to strengthen security should be improved. One of the ideas contained in the Programme is to make full use of new technology, inter alia - where appropriate - by direct (on-line) access for law enforcement authorities, including for Europol, to existing central EU databases. The conclusions of the Mixed Committee of the JHA Council of 12-13 June 2007 considered that, in order to fully achieve the aim of improving security and to enhance the fight against terrorism, access under certain conditions to EURODAC should be granted to Member States' police and law enforcement authorities, as well as Europol, in the course of their duties in relation to the prevention, detection and investigation of terrorist offences and other serious criminal offences. It therefore invited the Commission to present as soon as possible the necessary proposals to achieve this aim. The absence of the possibility for law enforcement authorities to access EURODAC to combat terrorism and other serious crime was also reported as a shortcoming in the Commission Communication to the Council and the European Parliament on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs of 24 November 2005. The existing instruments on exchange of law enforcement information do not allow to timely determine with sufficient certainty whether a Member State actually holds fingerprint data of an asylum seeker. This means that without any action at EU level, law enforcement authorities will continue to remain ignorant about whether or not information on a fingerprint is available at all, in which Member State information is available, and whether information relates to the same person. Without efficient and reliable means to determine whether or not information is available in another Member State the action of public authorities either becomes prohibitively expensive or seriously jeopardises the application of the law because no further efficient and reasonable action to determine a person's identity can be taken.
Existing provisions in the area of the proposal Council Regulation (EC) No 2725/2000 of 11 December 2000 established Eurodac for the comparison of fingerprints for the effective application of the Dublin Convention (the Eurodac Regulation). On 3 December 2008 the Commission adopted a proposal to amend the EURODAC regulation aimed at making the EURODAC system more efficient. There are currently some EU instruments that permit consultation of fingerprints and other law enforcement data held by one Member State by another Member State. The first instrument that is likely to be used for consultations regarding fingerprints is the Prüm Decision.. On the basis of this Council Decision the Member States' grant each other automated access inter alia to national AFISon the basis of a hit/no hit request. If a query on the basis of the Prüm Decision produces a hit, supplementary information, including personal data, can be obtained in the Member State that recorded the fingerprint in its national AFIS using national law , including mutual legal assistance. While this procedure might be successful for those Member States that store fingerprints of asylum seekers together with other fingerprints collected by law enforcement authorities in a national AFIS, it will be unsuccessful for those Member States that do not store fingerprints of asylum seekers in their national AFIS unless they are related to crime. Another instrument that could be used for consultations regarding fingerprints is Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities (FWD 2006/960). This instrument facilitates the exchange of information (the fingerprint as well as the supplementary information) that is held or is available to law enforcement authorities in Member States. This instrument is operational as from 18 December 2008. The last instrument that Member States could use is mutual legal assistance under which the judicial authorities of the Member States can seek access to criminal and non-criminal fingerprint collections, including on asylum seekers on the basis of the Convention on Mutual Assistance in Criminal Matters. The last two instruments cannot be used when the Member State that holds data on a fingerprint is not known. Currently no system exists which could be used to identify such Member State.
Consistency with the other policies and objectives of the Union The proposal is fully in line with the overall objective of creating a European area of freedom, security and justice. In particular, this proposal was subject to in-depth scrutiny to ensure that its provisions are fully compatible with fundamental rights and notably the right to asylum and the protection of personal data as enshrined respectively in Article 8 (protection of personal data) and 18 (right to asylum) of the Charter of Fundamental Rights of the EU as reflected in the Impact Assessment accompanying this proposal. With regard to the special situation of persons seeking international protection, the concern was raised that data extracted from EURODAC for law enforcement purposes could end up in the hands of the countries from which the applicants fled and fear persecution. This could have adverse effects on the applicant, his relatives and friends, thus potentially discouraging refugees from formally applying for international protection in the first place. As a result of this scrutiny, the proposal contains a specific prohibition of sharing personal data obtained pursuant to this proposal with third countries, organisations or entities. In addition, an extensive monitoring and evaluation mechanism of the proposal is foreseen. This evaluation will include whether the operation of the Decision will have led to the stigmatisation of persons seeking international protection. Furthermore, to keep the interference with the right to protection of personal data legitimate and proportional, strict access conditions are provided which also exclude that EURODAC fingerprint are searched on a routine basis. The proposal is also fully compatible with data protection principles since the Council Framework Decision on the Protection of Personal Data processed in the Framework of Police and Judicial Co-operation in Criminal Matters 2008/977/JHA applies to it. This Framework Decision lays down the principles that Member States must abide by when processing data retrieved from an EU database, such as EURODAC, while at the same time requires Member States to impose effective sanctions for violations of the data protection principles.
Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents The Commission consulted the States applying the Dublin acquis, i.e. the Member States, Iceland, Norway and Switzerland, as well as to Europol by way of two questionnaires and an expert meeting which took place in Brussels on 25-26 September 2007, during which the experts had the opportunity to clarify the replies to the questionnaire and express further views. Secondly, the Commission consulted the following intergovernmental organisations, non-governmental organisations and other scientific experts working in the area of asylum law/policy, fundamental rights and protection of personal data during a meeting in Brussels on 8 October 2007. MEPs Cavada, Klamt and Ludford also participated at the same meeting. Finally, the Commission consulted representatives of the national data protection authorities of the States that implement the Dublin acquis, as well as the Joint Supervisory Body of Europol and the European Data Protection Supervisor during a meeting held in Brussels on 11 October 2007.
Summary of responses and how they have been taken into account The consultation process had a major impact on shaping the legislative proposal. More specifically, such impact affected the choice of the legislative option and the various parameters of the option. The consultations showed that the Member States were very favourable to having the possibility to compare fingerprints with EURODAC for law enforcement purposes, while civil liberties and asylum NGOs were not very favourable. The proposal presents a balance on the positions of the various interested groups, by containing several guarantees and limits.
There was no need for external expertise.
Impact assessment The Impact Assessment considered three options, and a number of sub-options. The options was a no action option, a legislative option for making it possible to request the comparison with EURODAC data for law enforcement purposes and a legislative option for making it possible to request the comparison with EURODAC data for law enforcement purposes while at the same time regulating the exchange of supplementary information following a successful hit from EURODAC. A fourth option was originally considered but rejected as it would entail disproportionate costs. Between the 'no action' option and the legislative proposal options, the legislative proposal options present clear advantages. Access of law enforcement authorities to EURODAC is the only timely, accurate, secure and cost-efficient way to identify whether and if so where data about asylum seekers are available in the Member States. No reasonable efficient alternative exists to EURODAC to establish or verify the exact identity of an asylum seeker that allows law enforcement authorities to obtain the same result. This unique identification is essential for law enforcement authorities in order to prevent and combat terrorism and serious crime involving third country nationals, as well as to protect victims of terrorism or serious crime. Access to Eurodac cannot be considered disproportionate to the aims to be achieved. Between the two options involving legislative measures, both options present the same impacts on fundamental rights. The third option would make supplementary information on the asylum seeker available between Member States through a special procedure where such is requested, while the second option would use the existing instruments to facilitate access to such supplementary information. Even though the achievement of the objectives would be more effective under the third option, it is considered that the costs of implementing the third option would be higher compared to the second option. In addition, currently there are no indications that current instruments on exchange of law enforcement information would not be a sufficient instrument for the exchange of supplementary information.
The Commission carried out an impact assessment listed in the Work Programme SEC(2009) 936.
Contents
Summary of the proposed action The proposed action establishes the basis for the right of Member States as well as Europol to request a comparison of fingerprint data or a latent with EURODAC data. A successful comparison with result in a hit reply from EURODAC, which will be acompanied by all data that is held in EURODAC regarding the fingerprint. Requests for supplementary information following a hit would not be regulated in the proposed Council Decision but rather be covered by existing instruments on the exchange of law enforcement information. The scope of the proposal will be the fight against terrorist offences and serious criminal offences, such as trafficking in human beings and drugs. Even though currently EURODAC does not provide the possibility to search the database on the basis of a latent, this search facility can be added to the EURODAC system under the Biometric Matching System (BMS) project. This search facility is very important from a law enforcement point of view, since in most cases it is only possible to find latents at a crime scene under investigation.
Legal basis The Treaty on European Union, and in particular Articles 30(1)(b) and 34(2)(c).
Subsidiarity principle The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.
The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reason(s).
The proposed actions require an amendment of the EURODAC Regulation in order to add a secondary purpose to it, that of using EURODAC data in the fight against terrorism and crime. This amendment can only be proposed by the Commission. Without this amendment, the Member States have no right to act.
Any action undertaken by Member States alone is likely to be prohibitively expensive and disproportional.
Community action will better achieve the objectives of the proposal for the following reason(s).
The right to consult EURODAC is the simplest, most proportionate and least expensive way to close the identified information gap.
The proposed measures merely permit the request for comparison with EURODAC data. The further cooperation and exchange of information is left to current instruments and to the Member States.
The proposal therefore complies with the subsidiarity principle.
Proportionality principle The proposal complies with the proportionality principle for the following reason(s).
Access of law enforcement authorities to EURODAC is the only timely, accurate, secure and cost-efficient way to identify whether and if so where data about asylum seekers are available in the Member States. No reasonable efficient alternative exists to EURODAC to establish or verify the exact identity of an asylum seeker that allows law enforcement authorities to obtain the same result. The proposed measures focus on the essentials of the right to consultation, and do not go beyond what is proportionate.
The proposed measure involves the least costs on the Community and the Member States, as it uses existing databases and existing information sharing structures and does not seek to create new such systems.
Proposed instruments: other.
Other means would not be adequate for the following reason(s). Since fundamental rights are at stake, other regulatory means than a Decision under Title VI TEU would not be appropriate.
The proposal would entail a technical amendment to EURODAC in order to provide the possibility to carry out a comparison on the basis of a latent.
Review/revision/sunset clause
The proposal includes a review clause.