THE ESTABLISHMENT OF "EURODAC"
(a)
(20680)
13052/99
(b)
(21153)
7079/00
COM(00) 100
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Draft Council Regulation (EC) concerning the establishment of
"Eurodac" for the comparison of fingerprints of applicants for asylum
and certain other aliens.
Amended draft Council Regulation concerning the establishment of
"Eurodac" for the comparison of fingerprints of applicants for asylum
and certain other third-country nationals to facilitate the
implementation of the Dublin Convention.
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| Legal base:
| Article 63 (1) (a) EC; consultation; unanimity
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| Forwarded to the Council:
| (b) 16 March 2000 |
| Deposited in Parliament:
| (b) 19 April 2000 |
| Department: |
Home Office |
| Basis of consideration:
| (a) Minister's letter of 8 February 2000
(a) and (b) EM of 5 May 2000
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| Previous Committee Report:
| (a) HC 23-iv (1999-2000), paragraph 5 ( 15 December 1999)
(b) None
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| To be discussed in Council:
| No date set |
| Committee's assessment:
| Politically important |
| Committee's decision:
| (a) Cleared
(b) Not cleared; awaiting further information
|
Background
2.1 This draft Regulation — the substance
of which we have considered several times — is a measure
designed to make the application of the Dublin Convention more
effective. That Convention, which came into force on 1 September
1997, sets out criteria for determining which State is responsible
for examining asylum applications lodged in any one of the Member
States. (Following the entry into force of the Treaty of Amsterdam,
the Dublin Convention needs to be replaced with a Title IV Community
instrument; we recently cleared from scrutiny a Commission staff
working document: Revisiting the Dublin Convention[10]
which discusses how this might best be
done.) Establishing the identity of applicants — which is
the purpose of the Eurodac database - is a key step in the Dublin
Convention process.
2.2 When we last considered the draft Regulation
(in December 1999), we asked the Minister of State at the Home
Office (Mrs Barbara Roche) for further information and clarification,
and kept the document under scrutiny. The Minister responded in
February. Since, in her letter, she promised a Supplementary Explanatory
Memorandum in the near future, we delayed consideration of her
response. The Minister has now deposited a new text (document
(b)) with an Explanatory Memorandum. Currently, as discussed more
fully below, the draft Regulation is waiting for the reconsultation
of the European Parliament (EP).
Document (b)
2.3 Document (b) comprises a revised text
and an Explanatory Memorandum from the Commission. The Explanatory
Memorandum responds to the opinion of the EP, sets out amendments
made to the original text, and explains why the Commission cannot
agree to certain changes proposed by the Council. It has four
sections:
- A: The European Parliament's opinion and the
Commission's response
- B: Amendments in the light of developments since
the Commission's original proposal
- C: Amendments from Council negotiations accepted
by the Commission
- D: Amendments proposed by the Council which are
not included in the amended Commission proposal.
2.4 In her Explanatory Memorandum, the Minister
summarises Section A as follows:
"[The Commission] has
accepted Amendments 1 (use of the term 'alien') and 2 (the title:
the exclusive link with the Dublin Convention). It has accepted
Amendment 6 (the need for a clear fingerprint match) in principle.
It has accepted Amendment 12 (prohibition on the transfer of data
to third countries and to other agencies) in general while catering
for a possible agreement extending Eurodac to Iceland and Norway.
It has accepted some of the changes proposed in Amendments 4,
7, 9, and 11 (erasure of data from the central database) while
not accepting it would be appropriate to provide that data on
asylum applicants should be erased as soon as they are granted
any kind of legal status. Article 7 now states that data on recognised
refugees will be erased when it becomes known that refugee status
has been granted, rather than this data being blocked for five
years and a decision taken at that point, as in the earlier draft.
The Commission has clarified the relevant article referring to
the erasure of data on those apprehended at the external border
as soon as a residence permit is granted. It has not accepted
Amendments 3, 5, 8 and 10 (the minimum age for fingerprinting)
recalling that pressure within the Council had been for a lower
rather than a higher age limit. Suggested amendments have been
accepted making clear that fingerprinting must be carried out
in accordance with the European Convention on Human Rights and
the United Nations Convention on the Rights of the Child."
2.5 Most of the amendments noted in Sections
B and C are of a technical or updating nature.
2.6 In relation to Section D, the Minister
says:
"The Commission states
there are three amendments to the text of the draft Regulation
proposed by the Council to which it cannot agree.
"i) Deletion of the term 'citizenship
of the Union' (Articles 7 and 10)
"The overall view of Member States was that
references to citizenship of a Member State had greater legal
clarity than the term citizenship of the Union, and undermined
the concept of nationality of a Member State. It was however accepted
that the use of one term rather than another would have no practical
difference. On the first point the Commission refers to the provisions
of Article 17 TEC, and does not accept the second point.
"ii) Implementing powers ('Comitology')
(Article 21 previously Article 22)
"Article 22 of the previous version of the draft
Regulation (now Article 21) was based on the procedure in Council
Decision 87/373/EEC. This has now been replaced by Council Decision
1999/468/EC. The new Council Decision incorporates amendments
introducing criteria for the choice of procedure, the streamlining
of procedures, the modification of the regulatory procedure, an
explicit rôle for the European Parliament and measures to
improve transparency. The Council has now adopted its decision
laying down the procedures for the exercise of implementing powers
conferred on the Commission. Following this, the Commission has
decided to modify all legislative proposals pending before the
European Parliament and Council which envisaged recourse to a
comitology procedure and to replace the procedure with that of
the same type contained in Decision 1999/468/EC. In this instance,
the procedure is one of a regulatory procedure under which the
power to adopt implementing provisions is delegated to the Commission,
with the assistance of a regulatory committee. However, Member
States agreed that the article should be amended to reflect the
opinion that the Council should adopt this rôle, having
decided that the Council should not be seen as abrogating its
responsibilities in an area which touches upon the freedom of
the individual. As a result, the Commission has entered a declaration
into its explanatory memorandum to the document (at D (ii)), stating
that in its view the amendment proposed has not been properly
substantiated, as required by Article 1 of Decision 1999/468/EC
and accordingly is not consonant with the principles and rules
laid down by the Council pursuant to Article 202 TEC nor with
the treatment of comparable cases by the Council in the past.
The Commission states that it reserves its rights under the Treaty
on this issue, suggesting that it might consider litigation against
the Council. The Commission also believes the proposed amendment
represents a substantial change to the Commission's original proposal,
and reconsultation of the European Parliament is therefore required.
"iii) Penalties (Article 23, previously
Article 24)
"The Council proposed to replace this article
with the following wording taken from the frozen Eurodac Convention
text 'Member States shall ensure that the use of data recorded
in the central database contrary to the purpose of Eurodac as
laid down in Article 1(1) shall be subject to appropriate penalties'.
The Commission states that it has three difficulties with the
proposed text — that the language is not appropriate in
a binding Community regulation, that reference to the penalties
being effective, proportionate and dissuasive had been deleted
(despite the meaning of the phrase being clear in the jurisprudence
of the Court of Justice) and thirdly, that the Council sought
to remove the duty to notify the Commission of the relevant rules
relating to penalties adopted by Member States given the Commission's
rôle as 'guardian of the Treaties'."
The Minister's answers to our questions
2.7 Most of the answers to our questions
on document (a) are contained in the Minister's letter of 8 February.
In some cases, however, her EM on document (b) contains more up-to-date
information.
Inclusion of the Minutes Statement
2.8 We had asked why other Member States
opposed the incorporation of this statement (which seeks to clarify
the circumstances in which fingerprints must be taken) into the
text itself, and sought the Minister's assurance that the Government
was still pressing for its incorporation, in the interests of
legal certainty.
2.9 In her letter, the Minister explains
that the Finnish Presidency ruled that amendments should be made
to the "frozen" Third Pillar text only in order to ensure
its compatibility with First Pillar procedures. The UK was the
only Member State which considered that incorporation of the statement
met that criterion. Its efforts to press the matter had been unsuccessful.
2.10 She adds:
"It is to be noted that
the alternative course recommended by the European Parliament
of adding a specific reference to the European Convention of Human
Rights has been adopted, together with a specific reference to
the United Nations Convention on the Rights of the Child. This
undoubtedly strengthens the individual's rights under the Article."
Overriding of the Immigration and Asylum Act
2.11 We asked whether the Government was
content for implementation of the Regulation to override this
Act in relation to the destruction or blocking of the fingerprints
of those asylum seekers granted refugee status, and, if so, why.
In fact, as the EM on document (b) makes clear, Article 7 now
states that data on recognised refugees will be erased once it
becomes known that refugee status has been granted, so the Act
will not have to be amended in this respect.
Denmark's non-participation in Eurodac
2.12 We had queried the Minister's confidence
that there would be no difficulties about Denmark's participation
in the Dublin Convention but not in Eurodac. In her letter, the
Minister responds:
"Denmark has recently
repeated its wish to participate in Eurodac. It is precluded from
doing so by virtue of its Protocol to the Amsterdam Treaty, since
Eurodac has been determined not to be a Schengen development measure.
However, should it not participate, it is believed that the Regulation
would still operate effectively. I understand that fingerprints
are currently taken from asylum seekers in Denmark and that it
is linked to the fingerprint database shared with Norway, Finland
and Sweden. Provided that Denmark has suitable national fingerprinting
legislation, it will still be possible for these prints to be
exchanged on a national basis where there is evidence to suggest
an asylum seeker first entered the territory of the Member States
through Denmark.
"It seems unlikely that Denmark would feature
as a focal point for asylum seekers although there would remain
a risk that asylum seekers with unfounded claims would prefer
to claim asylum in Denmark. For the longer term, once the Dublin
Parallel Agreement has been concluded with Norway and Iceland,
it is not ruled out that Eurodac might be similarly extended to
them; this could provide a vehicle also for Denmark to participate
in Eurodac on an international law basis."
Requests for information on progress
2.13 We sought information on four areas.
The first was whether the Council had made any formal response
to the EP's call for the age for fingerprinting to be raised.
Section A of document (b) makes it clear that these amendments
were rejected (see paragraph 2.4 above). We also asked for information
about the comitology procedure: the Minister's Explanatory Memorandum
on document (b) quoted at paragraph 2.6 above, provides updated
information on this issue. Thirdly, we asked whether specific
reference to the European Convention of Human Rights had been
included in the text: the Minister's answer to our first question
includes this information. Finally, we asked to be kept in touch
with progress over the issue of territorial scope of application.
Following the successful conclusion of discussions with the Government
of Gibraltar and the Spanish government, this matter has been
settled.
The Government's view
2.14 In her Explanatory Memorandum on document
(b), the Minister says:
"The United Kingdom's
declared intention is to be fully associated with Community activities
in the field of asylum — subject to consideration of the
subject matter of individual proposals and the effect of the UK's
frontier Protocol. In respect of Eurodac, the Government believes
that there are clear advantages in participating in the measure
which led to its recent decision to opt in to the draft Regulation."
2.15 She also states:
"Now that the draft
Regulation is to be resubmitted to the European Parliament, there
is likely to be pressure from the Commission and from other Member
States on the United Kingdom to lift its parliamentary scrutiny
reservation to allow the draft to progress and be finalised."
Conclusion
2.16 We thank the Minister for her letter
and later Explanatory Memorandum which, between them, have answered
our outstanding questions on the draft Regulation. We are now
content to clear document (a).
2.17 However, recent developments and
the ensuing changes to the text have given rise to new questions,
particularly in regard to the relationship between Eurodac and
the Dublin Convention, the erasure of fingerprint data on recognised
refugees, and the adoption by the Council of implementing rules.
We have seen the pertinent questions on these and other matters
raised with the Minister by our sister Committee in the House
of Lords, and will wait to receive a copy of her response to it
before deciding whether to clear document (b).
10 (21138) 7122/00; see HC 23-xx (1999-2000), paragraph
11 (7 June 2000). Back
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