Explanatory Memorandum to COM(2016)7 - Amendment of council framework decision 2009/315/JHA on the exchange of information on third country nationals and the European Criminal Records Information System (ECRIS) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)7 - Amendment of council framework decision 2009/315/JHA on the exchange of information on third country nationals and the ... |
|---|---|
| source | COM(2016)7  |
| date | 19-01-2016 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Efficient cooperation between Member States and exchange of information extracted from criminal records of convicted persons is a necessary cornerstone of a properly functioning common area of justice and security.
The European Council and the Justice and Home Affairs Council of Ministers have stated on several occasions the importance of improving the existing European Criminal Records Information System (ECRIS). The Riga Statement of 29 January 2015 issued by the Justice and Home Affairs Ministers stressed that exchanging information on criminal convictions is important in any strategy to combat crime and counter terrorism 1 . On 20 November 2015, the Justice and Home Affairs Council of Ministers concluded that it would contribute to the criminal justice response to radicalisation leading to terrorism and violent extremism if Member States used ECRIS to its full potential and if the Commission submitted a proposal for the extension of ECRIS to cover third country nationals 2 . In its Conclusions on Counter-Terrorism of the same day, the Council of Ministers committed the Member States to using ECRIS to its full potential and welcomed the Commission's intention to submit by January 2016 an ambitious proposal to extend ECRIS to cover third country nationals 3 . The European Council of 17 and 18 December 2015 reiterated that the recent terrorist attacks demonstrated in particular the urgent need to share more information on terrorist activity, notably as regards the extension of European Criminal Records Information System (ECRIS) to third country nationals 4 .
Improving ECRIS is also part of the European Agenda on Security 5 .The Commission emphasised the added value of EU measures for exchanging information, operational cooperation and other support and undertook to accelerate the work already under way to improve ECRIS for non-EU nationals and ensure it is implemented effectively.
ECRIS is an electronic system for exchanging information on previous convictions handed down against a specific person by criminal courts in the EU for the purposes of criminal proceedings against a person and, if so permitted by national law, for other purposes. The system is based on Council Framework Decision 2009/315/JHA and Council Decision 2009/316/JHA 6 .
The underlying principle of ECRIS is that complete information on previous convictions of an EU national can be obtained from the Member State of nationality of that person. Convicting Member States must notify information and updates related to convictions handed down against a national of another Member State to the Member State of nationality. The Member State of nationality must store this information and can thus provide exhaustive, up-to-date information 7 on the criminal records of its nationals upon request, regardless of where in the EU convictions were handed down.
Standardised electronic formats 8 allow for efficient and immediately understandable communication in all EU languages and within short deadlines 9 . Designated central authorities in every Member State are the contact points in the ECRIS network, dealing with all tasks such as notifying, storing, requesting and providing criminal record information.
Although it is possible to exchange information on convictions concerning third country nationals and stateless persons (hereinafter: TCN) through ECRIS today, there is no procedure/mechanism in place to do so efficiently for the following reasons:
• As TCN have no Member State of nationality, in order to obtain a complete overview of the criminal records history of a particular individual requests must be sent to all the convicting Member State(s). Generally, a requesting Member State does not know in which Member State(s) a particular TCN has previously been convicted.
• If one Member State would want to have this information, it would have to send requests to all Member States (‘blanket requests’). This creates an administrative burden in all Member States, including in (the majority of) the countries not holding the requested information. The administrative burden of ‘blanket requests’ would amount to an estimated EUR 78 million per year if Member States were to request information each time a TCN faced conviction. The costs of replying to ‘blanket requests’ are not compensated by an equivalent benefit and are, in fact, lost because the majority of the replies will not return results. This is especially detrimental to smaller Member States that are required to respond to all requests without being necessarily well equipped to do so. Moreover, a flood of unnecessary requests undermines confidence in the reliability and functioning of the ECRIS network as a whole, as users may conclude that the inefficiency of ECRIS-TCN is indicative of the inefficiency of ECRIS as a whole.
• In practice, Member States avoid sending ‘blanket requests’ and often rely only on information stored in their own national criminal record registers. This means that complete information on the criminal records history of TCN is often not available to the responsible authorities in the Member States. In fact, although in 2014 558000 TCN were convicted in 19 Member States, only 23000 requests (from 25 Member States participating in ECRIS today) related to TCN convictions were made in ECRIS.
The objective of the proposal is fully in line with the Commission´s priority of combating cross-border crime and terrorism as a common European responsibility in an Area of Freedom, Security and Justice. This is one of the initiatives of the European Agenda on Security. It will ensure that ECRIS covers both EU nationals and TCN criminal record information.
• Consistency with existing policy provisions in the policy area
Other EU measures envisaged in the context of information exchange and cooperation with regard to combating and preventing crime would not solve or alleviate the problem of the inefficient criminal record information exchange regarding convicted TCN. There is no alternative to improve the way of information exchange regarding criminal convictions on TCN through ECRIS by means of any other instrument of information exchange mentioned in the European Agenda of Security (such as SIS II, Prüm and Eurodac), as these are designed to serve different purposes.
• Consistency with other Union policies
Improving ECRIS with regard to TCN is part of the strategy outlined in the European Agenda on Security. In addition, the exchange of criminal records information supports the application of Council Framework Decision 2008/675/JHA 10 , which stipulates that Member States judicial authorities should, during criminal proceedings, take into account previous convictions handed down against the same person for different facts in other Member States, irrespective of the nationality of the person concerned.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposed legal instrument is a Directive based on Article 82(1)(d) of the Treaty on the Functioning of the European Union. Article 82(1)(d) is the legal basis for the Union’s right to act in the field of judicial cooperation in criminal matters to facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. The proposed action falls squarely within this area. The proposal amends the existing EU legislation in this area.
• Subsidiarity (for non-exclusive competence)
Improvement of the existing system to exchange criminal record information on convicted TCN cannot be done at Member State level. A common mechanism aiming at a standardised, rapid, coordinated and efficient information exchange between Member States requires concerted action. This can neither be achieved unilaterally at Member State level nor bilaterally between Member States. It is by its nature a task to be undertaken at EU level.
• Proportionality
Efficient exchange of criminal record information is instrumental in combating cross-border crime and contributes considerably to putting into practice the principle of mutual recognition of judgments and judicial decisions in a common area of justice and security where people move freely. Action at EU level is therefore proportionate to the objectives of the initiative.
The proposed changes do not go beyond what is necessary to achieve the objective of cross-border judicial cooperation, and build on what is already applied in the existing ECRIS for EU nationals. The obligation to store TCN fingerprints is deemed necessary to ensure the more secure identification of TCN. Establishing the identity of TCN is often particularly difficult if not impossible, for example because reliable identity documents do not exist or are missing, or because of widely used common surnames.
Amongst several existing options, the most proportionate option has been chosen: a decentralised system to identify the Member State(s) holding criminal record information on TCN, based on an index-filter containing anonymised identity data of convicted TCN extracted from national criminal record registers and on a hit/no hit search mechanism. A ‘hit’ indicates that criminal record information on the TCN is available and shows the Member State which can provide the information. The identified Member State(s) can then be requested to provide complete information through the established ECRIS.
The system will be organised in a decentralised way. Member States will have to extract identity data from their criminal record and feed it into a separate file. Specific software will irreversibly convert the personal identity data into locks and keys, the index-filter. The index-filter will be distributed to all other Member States, enabling them to search independently at their own premises. The index-filter will thus not contain personal data, but it will allow the receiving Member States to match their own data against it and to find out whether further entries in criminal records exist in other Member States. Member States will have to send updated national index-filters to all other Member States if any data contained in the index-filters are changed or deleted.
This solution satisfactorily fulfils the objectives of the legislative proposal, as it introduces a mechanism into the ECRIS framework to efficiently identify Member States holding criminal record information on TCN. This avoids costly and inefficient ‘blanket’ requests and will thus eliminate the reason why Member States currently refrain from using ECRIS for TCN.
The decentralised system does not require establishing an additional layer at EU level where personal data of TCN are centralised, which does not exist for EU nationals either. It does therefore not require additional data protection and security at EU level.
• Choice of the instrument
The legislative text to be amended is a Framework Decision, i.e. an instrument which is binding on the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. A similar legal instrument, i.e. a directive, has therefore been chosen for the amending legislative act, since many of the obligations will have to be enacted in national law.
A directive allows the national authorities to choose the form and method of transposition, e.g. as regards the information and communication technology and the national registers to be used to extract identity data for the purpose of subsequent exchange with the other Member States. Because Member States need to adapt their national criminal record registers to be able to deal with the new demands placed on them, a directive is more appropriate as a legal instrument than a regulation, which would be directly applicable in all Member States and leave the national authorities less flexibility.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The first report on the implementation of Council Framework Decision 2009/315/JHA will provide further information on how the existing system is working, but will not focus specifically on the exchange of information on TCN. However, consultation with the Member States has shown clearly the very limited extent to which ECRIS is currently used to exchange information on convicted TCN, and the reasons why.
• Stakeholder consultations
In line with the Commission’s minimum standards regarding participation and openness to stakeholders views presented in the Better Regulation Guidelines 11 , an extensive consultation strategy has been developed to ensure a wide participation throughout the policy cycle of this initiative. This strategy was based on a mix of targeted consultations (bilateral contacts, stakeholder- and experts meetings, written consultations), providing the Commission with knowledgeable and representative options. The Commission has sought a wide and balanced range of views on this issue by giving the opportunity to all relevant parties (Member States, national authorities, lawyers and academics, fundamental right stakeholder, data protection stakeholders) to express their opinions, in particular the European Union Agency for Fundamental Rights (FRA), the European Data Protection Supervisor (EDPS) and the Art.29 Working Party composed of Member States data protection supervisory authorities.
All Member States supported a regulatory option and an index-filter-based hit/no hit mechanism. A decentralised approach gained substantial support, provided that the implementation software can be installed, integrated and maintained smoothly at Member State level and that financial support (grants) would be available. Some Member States favoured the centralised solution, as they considered that it would demand less implementation effort at Member State level, would be less costly for Member States and would better secure a common approach of the Member States. A few Member States were undecided.
Practical advantages of fingerprints with regard to the secure identification of a person were acknowledged by many Member States. Indeed, this is the only way to be sure of the identity of the person. This is extremely important since the judicial authorities are responsible for the accuracy of the information held in a criminal record. Some Member States expressed constitutional concerns and drew the attention to problems regarding the practical implementation of mandatory fingerprints in ECRIS. Many Member States' central authorities do currently not store fingerprints in their national criminal record registers and are not connected to the national automated fingerprint identification system (AFIS).Some Member States are concerned about possible double standards for EU nationals on the one hand and TCN on the other hand. The situation is different for TCN because some of them come from countries which do not have any appropriate or any valid civil registry. Against this background, the inclusion of fingerprints becomes a priority.
Fundamental rights stakeholders acknowledged in general the positive effects of a future ECRIS-TCN system from an overall justice perspective by helping to ensure appropriate sentencing and protect children from abuse, as well as the positive effect on TCN by enabling them to prove a clean criminal record throughout the Union 12 . They are in favour of a decentralised system accompanied by adequate anonymisation techniques.
These stakeholders pointed out that introducing a TCN-specific system is possible from the point of view of equality, provided that it is necessary and proportionate. The EDPS considered that creating a different regime for the information to be stored and exchanged of TCN on the one hand and on nationals of the Member States on the other hand needed to be duly justified. The stakeholders drew attention to the safeguards needed to address the specific situation of TCN in the context of migration, to aspects related to the creation of an index-filter and the use of fingerprints, to the rights of the child, as well as to the rights of data subjects and to the need for effective remedies.
In that context, it should be noted that the current proposal is not meant to be a tool for regulating migration. It does not change any existing provisions and guarantees in this area. The recitals of the proposed legal instrument explicitly acknowledge respect of the guarantees contained in EU and national law on asylum and migration. These are to be upheld in the future system.
Certain crimes, such as irregular entry or stay, or travelling with false visa or travel documents are specific to TCN and the future ECRIS-TCN should not impact disproportionately on the rights of TCN convicted for such offences. The FRA suggested in this respect that convictions relating to irregular entry and stay should not be processed under ECRIS-TCN for purposes other than criminal proceedings. However, the Commission considers that the extent to which criminal record information is processed for purposes other than criminal proceedings is a matter of national law, as is currently the case for EU nationals.
Fundamental rights stakeholders acknowledged that the secure identification of TCN can be more difficult than the identification of EU nationals. However, according to the FRA, the necessity and proportionality of using fingerprints for the index-filter, as well as the alternatives of using passports and/or residence permits, and the possibilities offered by existing EU and national databases, need to be taken into account. These need to be considered in comparison to the inclusion of fingerprints of all or certain categories of TCN.
However, the proposal does provide for the mandatory storage of fingerprints of TCN in order to overcome the problems in identifying TCN. The problems are different to those encountered when identifying EU nationals, where information can be more easily gained from the Member State of nationality.
Stakeholders also identified that TCN children may be particularly exposed to risks stemming from the exchange of information on their convictions. The FRA suggested that in the light of the vulnerability of children, consideration should be given to either excluding children from the scope of ECRIS altogether or from the index-filter, or to limiting exchanges to very serious crimes committed by children. At the same time, stakeholders would like to ensure that the proposal should make it possible for employers to verify in an effective manner whether a particular TCN has been barred from exercising activities involving direct and regular contacts with children as a result of past criminal convictions.
In this context, it should be noted that ECRIS is a decentralised tool for exchanging information contained in the Member States' criminal record registers. It is up to the national law of the Member States to decide whether or not the convictions of children are entered into the national criminal records and can thus be exchanged between Member States. With regard to access to criminal record information through ECRIS during recruitment to posts involving direct and regular contacts with children, the implementation of the Directive will facilitate the verification of previous convictions of TCN in this area.
Some stakeholders referred to the need to ensure that TCN have the right to access their own data and have it rectified, since inaccurate criminal records may be more common in cases involving TCN. However, the ECRIS legal instruments only cover the exchange of criminal record information, and do not touch upon the rights of individuals to have access to data concerning themselves stored at national level. This area is governed by data protection law, both at national and EU levels.
• Collection and use of expertise
A feasibility study on the ‘Establishment of a European Index of Convicted Third Country Nationals’ provided a better understanding of future mechanism for exchanges on convicted TCN and evaluated the impact of an index from a technical, legal and organisational point of view. 13 A study to assess the ICT impact of the legislative proposal for an ECRIS TCN system provided an overview of the costs which the EU and the Member States would incur in implementing the various options. 14 Eurostat migration and population statistics provided evidence regarding the size of the problem. In-depth interviews were also held with representatives of FIU.net 15 , in particular on the Match software, an intelligent information and knowledge sharing program based on an anonymous index-filter and developed for FIU.net.
• Impact assessment
The Commission conducted an impact assessment. The links to the summary sheet and the positive opinion of the Regulatory Scrutiny Board have been inserted below:
ec.europa.eu/justice/criminal/european-e-justice
Three policy alternatives were examined: i) maintaining the status quo; ii) a voluntary Member State project for a more efficient mechanism to exchange criminal record information on TCN, co-financed by the Commission; and iii) legislation on a search mechanism to identify Member States holding criminal record information on TCN consisting of identity data of convicted TCN (index-filter) that can be searched by a hit-/no-hit search mechanism. Two sub-options were examined for the latter alternative: either a decentralised index-filter that would be anonymised and distributed to all other Member States enabling them to search at their own premises; or an index-filter that would be stored at a central EU-body.
As regards fingerprints, three sub-options were examined: i) the mandatory storage of fingerprints for TCN and their inclusion in the index/index-filter; ii) obliging Member States to verify the identity of a TCN in existing data exchange systems based on fingerprints before using ECRIS; iii) extending ECRIS to support the voluntary use of fingerprints by Member States for TCN.
The decentralised index-filter is the preferred option because it offers a mechanism to identify efficiently which Member States hold criminal record information on a particular TCN. As it implies a legal obligation for all Member States, it will guarantee a common approach. It does not require an additional EU-level system, making it more cost-efficient than the centrally-stored index-filter. To secure effective identification of third country nationals, fingerprints should be included in the identification data to be stored in the person's criminal record and in the index-filter. Establishing the identity of TCN is often particularly difficult if not impossible, for example because reliable identity documents do not exist or are missing, or because of widely used common surnames.
There would not be any significant direct impact in economic, social or environmental areas. Businesses, SMEs and micro-enterprises would not be affected. There would be the following impact on the EU and national budgets: one-off costs for the EU of approximately EUR 1 089 000, for the Member States approx. EUR 768 000 (a total of approx. EUR 1 857 000); on-going costs for the EU of approximately EUR 668 000; for the Member States, the on-going costs are expected to gradually increase over the years, starting at EUR 5 304 000 and increasing up to a maximum EUR 12 804 000. This means that the total on-going costs are expected to increase gradually over the years, starting at EUR 5 972 000 and increasing up to maximum EUR 13 472 000. The additional cost of handling fingerprints will be approximately EUR 5 million in set up costs for the EU, and EUR
1 million in on-going costs for the EU per year. Set-up costs for Member States would range from EUR 2 million to EUR 3 million per Member State depending on the volume of TCN convictions.
Member States currently use ECRIS to search for TCN only in 5% of the cases. The benefits of the proposed solution are expected to increase the use of ECRIS considerably. If Member States were to systematically send ‘blanket’ requests, the administrative burden in responding to them has been identified as the most costly element (estimated up to EUR 78 million) of the ECRIS-workflow; the proposed solution saves such costs.
• Fundamental rights
Article 6(1) of the Treaty on European Union states that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights.
The proposed measures include legal provisions to ensure that information related to convicted third-country nationals is exchanged more efficiently. These provisions are in line with relevant provisions of the Charter, including the protection of personal data; the principle of equality before the law; and the general prohibition of discrimination.
The proposed measures are without prejudice to the respect of the right to respect for private and family life, the right to an effective remedy and to a fair trial and the presumption of innocence. The proposed measures are also without prejudice to the respect of the principle of non-refoulement, protection in the event of removal, expulsion or extradition and other relevant standards and guarantees enshrined in EU law on asylum and borders.
The provisions do not affect fundamental rights, including the right to protection of personal data, any more than what is strictly necessary to achieve the objective judicial cooperation in criminal matters, in line with the requirements of Article 52(1) of the Charter. It builds on what is already applied in the existing ECRIS for nationals of Member States by choosing a decentralised system to identify the Member States holding criminal record information on TCN and the use of state-of-the-art data minimisation technology. The jurisprudence of the Court of Justice in the cases Digital Rights Ireland Ltd 16 and Maximilian Schrems v. Data Protection Commissioner 17 has thereby been taken into account.
Given the potential impact on fundamental rights of the use of fingerprinting, the use of anonymisation techniques and of effective tools to avoid at the same time the risk of false matches shall be ensured, thus preventing any disproportionate interference with fundamental rights, including the right to protection of personal data and the right to respect for private life.
One of the purposes of the proposed measures is to protect children from the risk of abuse and exploitation by ensuring that people who work with children undergo proper vetting procedures. This will enable employers to verify in an effective manner whether someone has been banned from activities involving direct and regular contacts with children as a result of past criminal convictions.
Member States are obliged to ensure that the provisions are implemented in full respect of fundamental rights and principles as enshrined in the Charter.
The implementation and application of the provisions on ECRIS TCN should not interfere disproportionately with migrants and asylum seekers’ fundamental rights, in particular protection in the event of removal and expulsion; the right to asylum; and the protection of personal data (also in light of the need to prevent the risk of data transfers to third countries, especially as far as persons in need of international protection are concerned). The necessity and proportionality of any potential negative impact on fundamental rights should be carefully assessed according to EU law on asylum and migration.
Member States should consider allowing TCN, in certain circumstances, to request and receive criminal record certificates, using the ECRIS system, particularly in case of bona fide persons seeking employment where there are no doubts about their previous stay in other Member States.
Member States must also ensure that data subjects have the right to access data in order to have it rectified, and that effective remedies are in place to allow data subjects to challenge inaccurate criminal records, in full compliance with the standards stemming from the right to an effective remedy, including as regards the availability of legal aid, interpretation and translation services.
When reporting on the application of the provisions, the Commission will also assess the impact of the proposed measures and of their implementation on fundamental rights. Its assessment will be based in part on an evaluation of the effect on the fundamental rights of third-country nationals in comparison with the effect on the fundamental rights of EU nationals. The Commission's review will pay particular attention to the necessity and proportionality of the use of fingerprints, other biometric data and identification data in light of the experience gained and the tools and techniques used to ensure anonymisation and avoid the risk of false matches. Any proposals for the future revision of the system must take the outcome of this assessment into account.
This proposal in no way precludes Member States' responsibilities under their national laws, including rules on entering convictions against minors and children into the national criminal record register. Similarly, it does not prevent the application of Member States' constitutional law or international agreements to which they are bound, in particular those deriving from the European Convention on Human Rights and Fundamental Freedoms, to which all Member States are party.
4. BUDGETARY IMPLICATIONS
The financial envelope foreseen for the implementation of the Directive for the period January 2017 to December 2020 is EUR 10 760 000. 18 The proposed envelope is compatible with the current Multi-annual Financial Framework and costs will be met through the Justice programme. The commitment profile is the result of the expected adjustments needed at EU and national level in the first three years. The maintenance costs will stabilise at EUR 1 602 000 million a year from the third year of implementation. Further details are provided in the legislative financial statement accompanying this proposal.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Two years after the legislative instrument has been adopted, the Commission will evaluate the extent to which it has been implemented in the Member States, and of the effectiveness of the actions that Member States have taken in terms of achieving the objectives set out above. On the basis of this evaluation, the Commission will decide on the appropriate follow-up.
The implementation of the Directive in the Member States will be monitored continuously by the existing ECRIS expert group. This group will also act as a forum for exchanging best practices on the exchange of information on criminal records at EU level, including information on TCN.
• Detailed explanation of the specific provisions of the proposal
Contents
- Article 1
- The Commission conducted an impact assessment. The links to the summary sheet and the positive opinion of the Regulatory Scrutiny Board have been inserted below:
- Point 1:
- Point 2:
- Point 3:
- Point 4:
- Point 5:
- Point 6:
- Point 7:
- Point 8:
- Point 9:
- Point 10:
- Points 11 and 12:
- Point 13:
- Article 2:
- Article 3:
- Article 4 and 5:
Article 1 of the Framework Decision has been extended with a view to improve the exchange of information on convictions of TCN. The purpose of the instrument now includes an obligation of the convicting Member State to store criminal record information on a TCN, including fingerprints.
The definition of ‘convicting Member State’ in Article 1(a) of the Framework Decision has been transferred to the Article on definitions, Article 2. This definition now covers convictions, irrespective of whether they were handed down against a national of another Member State or a TCN.
A definition of ‘third country national’ is added to clarify that this group of persons includes stateless persons and persons whose nationality is not known.
Article 4(1) of the current Framework Decision is amended to ensure that Member States’ obligation to add the nationality (or nationalities) of a convicted person to the criminal record now also applies to the nationality or nationalities of TCN. The information on nationality is indispensable for central authorities to find out which Member State holds information on the person concerned.
The new Article 4a lays down the following obligations of a Member State as regards convictions on TCN handed down in its territory: an obligation to store criminal record information; the obligation to distribute to the other Member States an anonymised index-filter with identity information on the TCN convicted in its territory for the purpose of identifying the Member States holding criminal record information on a TCN; and the obligation to update the index-filter in line with any deletion or alteration of the data included in it. A Member State complies with the storage obligation even if the information is stored in another database than the criminal record database, as long as the central authority has access to the database in which the information is stored.
Finally, the Article stipulates that it applies regardless of whether a person also holds an EU nationality in order to ensure that the information can be found whether or not the additional nationality is known; his/her criminal record and the index-filter will contain the information stored in his/her quality as a national of a Member State.
The corresponding right of the Member States which receive the index-filter is stipulated, i.e. the right to search it.
Provisions of the Framework Decision have been deleted if their deadline has elapsed (paragraph 2 and the introductory part of paragraph 3), to make Article 6 more readable.
In addition, Article 6(3) puts the obligation on a Member State to supplement an extract of a criminal record for which a TCN has asked (his/her own record) with information from the other Member States in the same way that it would for EU nationals.
Under the newly inserted paragraph 4a of Article 7, a request for information on a TCN is treated similarly to a request for information on EU nationals; paragraphs 1 and 4a are construed in the same way. So the requested central authority has to transmit information on a conviction handed down in its Member State against the TCN plus any convictions handed down in third countries that have been entered in its criminal record.
Consequently, the reference to TCN in paragraph 4 of Article 7 of the Framework Decision has been deleted.
The references to personal data are extended to the new provisions on TCN.
Article 11(3) includes an explicit reference to the European Criminal Record Information System and to the standardised format. The first sentence of Article 11(3) has become redundant because the deadline has elapsed, and has therefore been deleted.
Article 11(5) sets out the technical obligations of Member States in relation to the tasks to be fulfilled by the Directive. This concerns both the current information exchange system and the new ‘hit’/‘no hit’ system based on an anonymised index-filter. The technical and administrative arrangements for facilitating the exchange of information will be set out in implementing acts.
Article 11 i governs the transmission of information if ECRIS is not available; it combines the current paragraphs 5 and 3 of Article 11. The content of the current Article 11 i can now be found in Article 11b (implementing acts).
Article 11(5) replaces the current Article 11(5) and requires Member States to notify the Commission instead of the Council in future when they are able to use ECRIS and the new index-filter.
The current Article 11(7) is deleted and the obligation of Member States to carry out the necessary technical alterations within a fixed deadline can now be found in Article 3(3) of this Directive.
The new Article 11a incorporates the main points contained in Council Decision 2009/316/JHA, which established ECRIS, in order to organise the exchange of information from criminal records between the Member States.
A comitology procedure has been introduced to give the Commission the necessary tools in order to implement the technical aspects of the exchange of information so it will work in practice. The procedure chosen is the examination procedure. This will be used in particular to take implementing measures relating to the standardised format currently provided for in Council Decision 2009/316/JHA.
The new Article 13a concerns the Commission's reporting and reviewing obligations.
The current reporting requirement of Article 7 of Council Decision 2009/316/JHA, i.e. the regular report on the exchange of information through ECRIS, is incorporated into the Framework Decision (Article 13a(4)).
This provision replaces Council Decision 2009/316/JHA. The content of the latter has largely been incorporated in the Framework Decision and will be further taken up in implementing measures in accordance with Article 11b.
A transposition period of 12 months seems to be adequate given that the Commission and Member States can build on existing technology and on existing, functioning criminal records in the Member States.
These Articles govern the entry into force and the addressees of the Directive (the Member States).