Explanatory Memorandum to COM(2009)342 - Establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] (Recast version) - Main contents
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| dossier | COM(2009)342 - Establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] ... |
|---|---|
| source | COM(2009)342  |
| date | 08-07-2009 |
EURODAC was established by Regulation (EC) No 2725/2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention i . A recast proposal which aimed at amending this Regulation was adopted by the Commission in December 2008 i (hereafter the December 2008 proposal).
This proposal was designed to ensure a more efficient use of the EURODAC database for the purpose of determining the Member State responsible for examining an asylum claim (i.e. provide a more efficient support to the application of the Dublin Regulation) and to properly address data protection concerns.
It also aligned the IT management framework to that of the SIS II and VIS Regulations by providing for the taking over of the tasks of the operational management for EURODAC by the future Agency for the operational management of large-scale IT systems in the area of freedom, security and justice i (hereinafter: IT Agency).
The December 2008 proposal also proposed to repeal the Implementing Regulation and to include its content in the EURODAC Regulation.
Finally, changes were introduced to take into account developments in the asylum acquis and technical progress which took place since the adoption of the Regulation in 2000.
The proposal was sent to European Parliament and the Council on 3 December 2008. The European Parliament referred the proposal to its Committee on Civil Liberties, Justice and Home Affairs (LIBE).
At its sitting on 7 May 2009, the European Parliament adopted a legislative resolution i endorsing the Commission proposal subject to a number of amendments.
The current proposal amends the December 2008 proposal in order to, on the one hand, take into account the resolution of the European Parliament and the results of negotiations in the Council, and, on the other hand, introduce the possibility for Member States' law enforcement authorities and Europol to access the EURODAC central database for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences.
In case a person suspected to have committed an act of terrorism or a serious crime has been previously registered as an asylum seeker but is not in any other database or is only registered with alphanumerical data (which might be incorrect, for example if that person has given a wrong identity or used forged documents), the only information available to identify him/her might be the biometric information contained in EURODAC.
The intention is now to allow consultation of EURODAC by law enforcement authorities for the purpose of prevention, detection and investigation of terrorist offences and other serious criminal offences. In order to do this it is necessary to amend the EURODAC Regulation to include explicitly this additional purpose.
Therefore, the current proposal introduces a bridging clause to permit this access for law enforcement purpose as well as the necessary accompanying provisions and amends the December 2008 proposal.
Comparison of fingerprints in possession of Member States' designated law enforcement authorities and Europol with those stored in the EURODAC database will only be possible in case of necessity of such comparison in a specific case under well-defined circumstances. Provisions on access to data and data security take into account access for law enforcement purposes.
Since the European Parliament issued its report on the recast proposal in first reading on7 May 2009, it is understood that it should have the possibility of issuing a new report in first reading on the current proposal which includes the content of the December 2008 proposal alongside the abovementioned modifications.
This proposal is presented at the same time as the Proposal for a Council Decision on requesting comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes (hereafter: Council Decision No […/…]JHA [EURODAC law enforcement Decision , spelling out the exact modalities of access for law enforcement purposes .
The Hague Programme called for the improvement of the cross-border exchange of data by law enforcement authorities, also by extending the access to existing data filing systems of the European Union.
The conclusions of the Mixed Committee of the JHA Council of 12-13 June 2007 invited the Commission to present as soon as possible the necessary proposals to achieve the aim of granting access under certain conditions to EURODAC to Member States' law enforcement authorities and Europol, to assist them in the course of their duties in relation to the prevention, detection and investigation of terrorist offences and other serious criminal offences.
The impacts of the access for law enforcement purposes introduced in the present amended proposal are assessed by an Impact Assessment attached to this proposal.
This proposal is fully in line with the Hague programme of 2004, the European Pact on Immigration and Asylum endorsed by the European Council of 15-16 October 2008 and the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum and protection of personal data.
Furthermore, this proposal is in line with the Commission's 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 i , which noted that the Council and the law enforcement community identifies the absence of access by internal security authorities to VIS, SIS II immigration and EURODAC data as a shortcoming, which results in a serious gap in the identification of suspected perpetrators of terrorist or serious crimes. Since the adoption of the Communication in 2005, the VIS Decision was adopted in order to grant law enforcement authorities and Europol access to that database.
During the drafting exercise, due attention was given to fundamental rights. The right to asylum and protection of personal data were considered in the Impact Assessment attached to the proposal.
As regards the right to asylum, amendments to the provisions of the Regulation on the information to be given to asylum seekers on the application of the Dublin system enables them to effectively exercise their right to asylum. The new provision that requires Member States to indicate in EURODAC the fact that they apply the discretionary clauses of the Dublin Regulation, facilitates communication amongst Member States and therefore prevents uncertainty for the asylum seeker, by making clarity about which Member States handles his case. As regards the protection of personal data, by allowing for efficient management of deletions of data , the proposal ensures that no data should be kept in a form which allows the identification of data subjects for longer than is necessary for the purposes for which data were collected. The same principle is underpinning the amendment aligning the storage period for data on third country nationals or stateless persons fingerprinted in connection with the irregular crossing of an external border with the period until which the Dublin Regulation allocates responsibility on the basis of that information.
With regard to the special situation of persons seeking international protection, for instance, 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 search functionality for law enforcement purposes will have led to the stigmatisation of persons seeking international protection. Furthermore, in order to ensure that the processing of personal data for law enforcement purposes does not contravene the fundamental right to the protection of personal data, in particular the necessity and the proportionality, the proposal sets out strict conditions with regard to the access to EURODAC data by law enforcement authorities, which excludes that the EURODAC database be searched on a routine basis. The proposal also prohibits the further processing for law enforcement purposes by clearly defining the kind of crimes which will allow access to EURODAC. It also lays down strict security measures to ensure the security of personal data processed and establishes supervision of the processing activities by independent public data protection authorities. The proposal also states that Directive 95/46/EC and Regulation 45/2001/EC apply to the processing of personal data carried out under the Regulation and that the processing of personal data carried out by law enforcement authorities on EURODAC data once have been extracted is subject to Council Framework Decision 2008/977/JHA.
Therefore, this proposal is fully in line with the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum (Article 18) and protection of personal data (Article 8) and has to be applied accordingly.
The Commission published the Green Paper on the future Common European Asylum System i in June 2007, which proposed options concerning the future features of the Dublin and EURODAC Regulations. In the framework of the wide public consultation on the Green Paper, 89 contributions were received from a wide range of stakeholders.
The Commission services discussed the outcome of the Evaluation Report and the outline of the planned amendments to the Regulation with the Member States in the Committee on Immigration and Asylum (CIA) in March 2008 as well as in two informal expert meetings with Member States’ practitioners dedicated to the conclusions of the Evaluation Report in October 2007 and April 2008.
UNHCR, the European Council on Refugees and Exiles (ECRE) as well as the EDPS were also informally consulted in the preparation of the amendment of the Regulation.
During the drafting of the present amended proposal, 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. Several intergovernmental organisations, non-governmental organisations and other experts working in the area of asylum, fundamental rights were consulted during a meeting in Brussels on 8 October 2007. 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 were consulted in the framework of a meeting held in Brussels on 11 October 2007.
A detailed list of consulted parties is included in the Impact Assessment attached to this proposal.
This proposal amends the Commission Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] - COM(2008) 825.
The present amended proposal uses the same legal base as the original proposal, namely Article 63(1)(a) of the Treaty establishing the European Community.
Title IV of the Treaty is not applicable to the United Kingdom and Ireland, unless those two countries decide otherwise, in accordance with the provisions set out in the Protocol on the position of the United Kingdom and Ireland attached to the Treaties.
The United Kingdom and Ireland are bound by Council Regulation (EC) No 343/2003 following their notice of their wish to take part in the adoption and application of that Regulation based on the above-mentioned Protocol. The position of these Member States with regard to the current Regulation does not affect their possible participation with regard to the amended Regulation.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark attached to the Treaties, Denmark does not take part in the adoption of this Regulation and is not bound by it nor subject to its application. However, given that Denmark applies the current Dublin Regulation, following an international agreement i that it concluded with the EC in 2006, it shall, in accordance with Article 3 of that agreement, notify the Commission of its decision whether or not to implement the content of the amended Regulation.
In parallel to the association of several non-EU Member States to the Schengen acquis, the Community concluded, or is in the process of doing so, several agreements associating these countries also to the Dublin/EURODAC acquis:
- the agreement associating Iceland and Norway, concluded in 2001 i;
- the agreement associating Switzerland, concluded on 28 February 2008 i;
- the protocol associating Liechtenstein, signed on 28 February 2008 i.
In order to create rights and obligations between Denmark –which as explained above has been associated to the Dublin/EURODAC acquis via an international agreement – and the associated countries mentioned above, two other instruments have been concluded between the Community and the associated countries i.
In accordance with the three above-cited agreements, the associated countries shall accept the Dublin/EURODAC acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision whether or not to accept the content of that act, once approved by the Council and the European Parliament. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/EURODAC acquis, the 'guillotine' clause is applied and the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise by unanimity.
Since the amendment of the EURODAC Regulation to include a bridging clause to allow law enforcement access constitutes a development of the Dublin/EURODAC acquis within the terms of the abovementioned agreements, the described procedure applies also as concerns this proposal.
Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the Common European Asylum System (CEAS) to the issues described above as problems regarding the EURODAC Regulation. Although an important level of harmonization was reached in the Regulation adopted in 2000, there is still room for developing the support that EURODAC provides to the implementation of the Dublin Regulation. The need for EU action regarding the management of an EU database which was created for assisting in the implementation of a Regulation dealing with transnational movements of asylum seekers seems clear.
An amendment of the EURODAC Regulation is also required in order to add a secondary purpose thereto, namely allow access for the purpose to fight against terrorism and crime to data stored in the EURODAC central database. This objective cannot be sufficiently achieved by the Member States, since such amendment can only be proposed by the Commission.
The impact assessment published along with the December 2008 proposal i assessed each sub-option regarding the problems identified so as to represent an ideal proportion between practical value and efforts needed. It concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems.
The relevant Impact Assessment concluded that 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 to EURODAC exists to establish or verify the exact identity of an asylum seeker that allows law enforcement authorities to obtain the same result.
Contents
- DETAILED EXPLANATION
- BUDGETARY IMPLICATIONS
- Amended proposal
- General context
- CONSISTENCY WITH OTHER POLICIES
- Compliance with the Charter of Fundamental Rights
- CONSULTATION OF INTERESTED PARTIES
- Legal basis
- IMPACT OF THE PROPOSAL ON NON EU MEMBER STATES ASSOCIATED TO THE DUBLIN SYSTEM
- SUBSIDIARITY PRINCIPLE
- Proportionality principle
- OF THE PROPOSAL
- Amendments accepted
- Amendments 12 and 29
- Amendment 16, 17 and 18
- Amendment 35
- Amendments 37 and 38
- Amendments partly accepted
- Amendment 11
- Amendment 25
- Amendment 42
- Amendments which cannot be accepted
- Amendment 8
- Amendment 9
- Amendment 23
- Amendment 28
- Amendment 31
- Amendment 32
- Amendment 33
- Amendment 40
- Modifications introduced following the outcome of negotiations in the Council
- Article 12
- Article 30
- Other changes
- Modifications to allow access for law enforcement purposes
- Article 2
- Article 3
- Article 6
- Article 13
- Article 19
- Article 22
- Article 25
- Article 30
Modifications introduced following the European Parliament resolution
In its legislative resolution, the European Parliament broadly supported the Commission proposal and proposed mostly editorial amendments along with some substantial ones. The amendments are for the most part acceptable or partly acceptable, with some exceptions. The position of the Commission on each the amendments is detailed hereafter.
Amendments 3, 5, 6, 10, 13, 15, 19, 20, 21, 22, 26, 27, 30, 39
These amendments are accepted since they aim to correct inaccuracies and ensure consistency of the proposal.
These amendments are inserted in a new Article 8 (information on the status of the data subject) which merges Article 6 i and 17 i of the December 2008 proposal.
Although with slightly different wording, the substance of these amendments is accepted in article 12.
This amendment, aiming to ensure that information is provided to the persons concerned in a language he or she understands or may reasonably be presumed to understand, is accepted in Article 25 i.
These amendments are accepted since they contain clarifications of text concerning rights of the data subject (Article 25 of the present proposal).
Amendment 1
As it appears from recital 2 of the present proposal, this amendment is accepted as far as a reference to ' international protection' is concerned, but not as far as the deletion of the expression 'forced by circumstances' is concerned, for reasons of consistency with Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status i.
The first part of the amendment, which splits the deadline for taking and sending fingerprints in two parts, is not acceptable, since such an approach could create practical difficulties for Member States. However, it is accepted to extend the deadline for transmission to 72 hours (in conformity with the EP proposal of 48 hours plus 24 hours) and Article 7 is modified accordingly. The second part of the amendments which proposes exceptions to the general rule is generally acceptable, but a different wording is proposed in order to take into account the results of the discussion in the Council.
The first part of the amendment adding a new reference to the reference number used when searching a transaction on a third country national or stateless person found illegally present in a Member State is accepted (in Article 18 i of the present proposal).
The wording of this amendment is reflected in Article 5 i.
Amendment 4 and 14
The amendments on Article 9 and the related recital 11 of the December 2008 proposal (recital 17 and Article 11 in the present proposal) suggest that persons who obtained long term residence status in accordance with Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents i (Long-term Residence Directive) be erased from EURODAC. The Long-term Residence Directive explicitly excludes from its scope of application the applicants and beneficiaries of international protection: for this reason it is not possible to accept those amendments. In addition, these amendments cannot be considered admissible since they are introduced in the text untouched by the recast .
The amendment is not accepted since the purpose of Article 5 paragraph 7 is not to determine the scope of the IT Agency, but to clarify that the Management Authority referred to in the present Regulation is the same as the one referred to in the SIS II and VIS Regulations.
This amendment (related to Article 5 of the present proposal) is not accepted since its subject is relevant for the proposal on the establishment of the IT Agency and not for this one.
The amendment, which proposes to add a reference to some additional articles of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted i in Article 16 i of the present proposal, is not considered necessary, as those situations are already covered in the current drafting.
The amendment aims at introducing the obligation to inform the EDPS of each false hit. Since it is the task of the national data protection authorities and not of the EDPS to directly monitor the everyday operation of the system, this amendment (not requested by the EDPS in his opinion on the proposal) is not accepted.
This amendment aims at introducing a provision prohibiting the transfer of data to authorities of third countries. By stipulating that only MSs' designated authorities can have access to EURODAC and by explicitly forbidding, in its Article 22, the transfer of such data to third countries, the Regulation in force is already clear that such data cannot be accessed by third countries. Therefore this amendment is not accepted because it is not needed and actually it might give the impression that previously it was possible to transfer data to third countries.
This amendment aims at introducing a requirement that the Management Authority lay down 'a common set of requirements to be fulfilled by persons in order to be granted authorisation to access EURODAC'. The suggested provision is unclear and could create unnecessary administrative burden for the Management Authority, since the screening of personnel accessing EURODAC is more efficiently performed at national level.
This amendment aims at introducing an obligation for Member States to notify changes in their list of authorities within a maximum of 30 days after the change took effect. This is regarded as an unnecessary burden and the deadline proposed as unrealistic. In addition, it is not in line with similar provision in the Dublin Regulation.
This amendment aims to ensure the supervision of the Management Authority by the EDPS. This is not the subject matter of the EURODAC Regulation .
Article 8
This new Article was introduced in order to provide information to Member States on the status of the data subject. First of all, it includes provisions which already figured in the December 2008 proposal, namely Article 6 i and Article 17 i thereof, which refer to information on persons transferred following a take back procedure and the application of the sovereignty clause of the Dublin Regulation. In addition, the article foresees that Member States are also informed if a given person, whose data is stored in the database, was transferred following a take charge procedure, or if he or she left the territory of the Member States, either voluntarily or as the result of a return decision or removal order.
This new Article will therefore facilitate Member States' task to determine the Member State responsible under the Dublin Regulation.
The modifications introduced in this article aim to clearly spell out which third country nationals or stateless persons have to be fingerprinted and at what point in time. The introduced change will help harmonising practices between Member States and ensure that as soon as a person is allowed entry on the territory of the Member States, his/her fingerprints need to be taken and sent to the EURODAC database.
Until the start of operation of the IT Agency, the Commission will continue to produce the two types of reporting foreseen in the Regulation in force, ie. the annual reports (containing the analysis of annual statistics) and the evaluation reports (along with the respective evaluation of the Dublin Regulation).
Modifications were also introduced to recitals 3, 19 and 32 and Articles 5 i and i, and 19 i in order to take into account drafting suggestions put forward during the negotiations in Council which the Commission considered could be accepted.
Article 1
Paragraph 2 is amended in order to reflect the addition of a new purpose of the system.
Paragraph 1(c)(iv) is added in order to ensure that the authorities designated for accessing EURODAC for a law enforcement purpose will also comply with the provisions on responsibility for data use and data security. In points (f) and (g), the National Access Point and verifying authority is defined.
This new article introduces a bridging clause in order to allow access for law enforcement purposes by providing a link between a third pillar instrument (Council Decision No […/…]JHA [EURODAC law enforcement Decision] ) and the present first pillar Regulation.
Points (i) and (j), introduce the obligation to collect statistics on the number of law enforcement searches and the number of hits these produced.
In order to better facilitate the purposes of law enforcement access, the present proposal entails a technical amendment to the EURODAC central system, ie. a new functionality to search on the basis of a so-called latent i.
In the second indent of paragraph 1, a reference is made to Article 3 in order to take note of the possibility of access for law enforcement purposes.
The scope of paragraph 4 was extended in order to take note of the possibility of access for law enforcement purposes.
The new paragraph 2 ensures the new type of search in the system: during access for law enforcement purposes, the data entered is searched against all fingerprints stored in the central database.
The amendment of paragraph 1(b) ensures that upon taking his or her fingerprints, the data subject is also informed about the possibility of his or her data be accessed for law enforcement purposes.
Paragraph 5 was amended in order to extend the overall evaluation of the EURODAC Regulation so as to include the mechanism of access for law enforcement purposes. This extended evaluation can examine in particular whether the mechanism introduced in Article 3 has been used in a proportionate manner, whether the rights of individuals have been duly safeguarded, and whether its application has led to stigmatisation of asylum seekers. The evaluation can also take account of the reports prepared by the European Data Protection Supervisor and the national data protection authorities, as well as the Joint Supervisory Body of Europol with regard to their supervisory tasks. In light of this evaluation the Commission may present appropriate proposals.
The present proposal entails a technical amendment to the EURODAC central system in order to provide for the possibility to carry out comparisons for law enforcement purposes. A new functionality to search on the basis of a latent is also proposed.
The financial statement attached to this proposal is also valid for the proposal concerning the request for comparison with EURODAC data by Member States' law enforcement authorities and by Europol for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences - COM(2009) 344.
The cost estimate of 2,415 million euros includes costs of 3 years of technical maintenance, and consists of IT-related services, software and hardware and would cover the upgrade and customisation to allow searches for law enforcement purposes and also the changes for the original asylum purpose unrelated to law enforcement access. The amounts of the EURODAC recast proposal adopted on 3 December 2008 are kept in the present financial statement for the sake of clarity.
ê 2725/2000/EC (adapted)