10 Exchange of information between law
enforcement authorities
| (26925)
13413/05
COM(05) 490
+ ADD 1
| Draft Framework Decision on the exchange of information under the principle of availability
Commission staff working document: Impact Assessment
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| Legal base | Articles 30(1)(b) and 34(2)(b) EU; consultation; unanimity
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| Document originated | 12 October 2005
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| Deposited in Parliament | 19 October 2005
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| Department | Home Office |
| Basis of consideration | EM of 1 November 2005
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| Previous Committee Report | None
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information requested
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Background
10.1 In November 2004, the European Council adopted the Hague
Programme, setting out a five-year programme for policies on security,
freedom and justice in the EU.[33]
In the section on Strengthening Security, the Hague Programme
says that the cross-border exchange of information between law
enforcement authorities should be governed by the "principle
of availability". That principle is defined as follows:
"throughout the Union, a law enforcement officer in one
Member State who needs information in order to perform his duties
can obtain this from another Member State and that the law enforcement
agency in the other Member State which holds this information
will make it available".[34]
10.2 The European Council invited the Commission to make proposals
by the end of 2005 for the implementation of the principle of
availability, incorporating the following conditions:
- information may be exchanged only to permit the performance
of legal tasks;
- the integrity of the information must be guaranteed;
- sources of information and the confidentiality
of information must be protected;
- common standards for access to data and common
technical standards must be applied;
- respect for data protection must be ensured;
and
- individuals must be protected from the abuse
of data and have the right to seek correction of incorrect data.
The European Council added:
"The methods of exchange of information
should make full use of new technology and must be adapted to
each type of information, where appropriate, through reciprocal
access to or interoperability of national data bases, or direct
(on-line) access, including for Europol, to existing central EU
databases such as SIS [the Schengen Information System, managed
by the Commission]".[35]
10.3 Article 29 of the Treaty of European Union (the
EU Treaty) provides for police and judicial cooperation in criminal
matters, including cooperation between Member States' police forces,
customs authorities and other competent authorities and between
them and the European Police Office (Europol). Article 30(1)(b)
provides that common action in police cooperation includes the
collection, storage, analysis and exchange of information. Article
34(2)(b) provides for the Council to promote cooperation by adopting
framework decisions for the approximation of Member States' laws
and regulations. The framework decisions are binding about the
result to be achieved but leave the form and methods of implementation
to the Member States.
The document
10.4 The document comprises a draft Framework Decision
on the exchange of information under the principle of availability;
an explanatory memorandum by the Commision; and an assessment
(ADD 1) by the Commission of the impact of the proposal and three
alternative options.
10.5 The document is the Commission's response to
the European Council's invitation in the Hague Programme. The
Commission says that its proposal goes beyond the present arrangements
for the exchange of information and is not a development of the
Schengen acquis.[36]
It suggests that there are, at present, numerous obstacles to
the general and speedy availability of information needed for
the prevention, detection and investigation of crime. For example,
the intervention of national units or central contact points is
usually required to deal with requests for information. The existing
bi-lateral and multilateral agreements between Member States do
not oblige them to provide information or are geographically restricted.
There is not a standardised procedure for making and responding
to requests. And there are no efficient mechanisms to establish
whether and where information exists.
10.6 The purpose of the draft Framework Decision
is to overcome these obstacles. It proposes the conditions and
rules under which information held by the competent authorities
in one Member State is to be available to the equivalent competent
authorities in other Member States in order to help them prevent,
detect and investigate criminal offences prior to the commencement
of a prosecution.
10.7 The draft Decision applies to six types of
information:
- DNA profiles;
- fingerprints;
- ballistics;
- vehicle registration information;
- telephone numbers and other communication data,
excluding content data and certain traffic data; and
- "minimum data for the identification of
persons contained in civil registers".
10.8 "Competent authority" means a Member
State's police forces, customs authorities or other law enforcement
agencies and Europol. "Equivalent competent authority"
means an authority equivalent to a competent authority in another
Member State. Provision is made for the determination of the equivalence
of authorities.
10.9 The draft Framework Decision proposes that
each Member State should have a duty to ensure that the equivalent
competent authorities of other Member States and Europol have
online access (that is, without prior authorisation) to the information
held on electronic databases of the Member State's competent authorities.
If the information is not available online, the Member State must
provide an online index of what relevant information is available
and who controls it. Having consulted the index, the equivalent
competent authority may issue an information demand, to which
a reply must be given within 12 hours. The reply may limit the
use to which the information may be put so as to:
i) avoid jeopardising the success of an investigation
in progress; or
ii) protect a source of information or a person;
or
iii) protect the confidentiality of information.
The reply to a demand for information may also refuse
the provision of information either on any of the grounds on which
limitations on use may be imposed or to protect the fundamental
rights and freedoms of the person whose personal data is involved.
10.10 The draft Decision refers to the provisions
of a separate proposal on data protection.
10.11 Member States would be required to take all
the measures necessary to comply with the Framework Decision by
30 June 2007.
10.12 The Commission's impact assessment notes that
there could be substantial (but unquantified) costs to each Member
State in creating its index of information and adapting its systems
so that other Member States' competent authorities could gain
online access to its databases.
The Government's view
10.13 The Parliamentary Under-Secretary of State
at the Home Office (Mr Paul Goggins) tells us that the Government
supports the general purpose of the Commission's proposal to increase
and speed up the sharing of information and intelligence between
Member States and with Europol.
10.14 The Minister notes that:
- Article 7 provides that the
information obtained under the draft Decision may be used only
for the prevention, detection or investigation of offences. He
says that this is, arguably, more restrictive than the present
arrangements and practices.
- There needs to be consistency between the data
protection provisions of this proposal and the separate draft
Framework Decision on the protection of personal data.
- The proposed grounds for refusing a demand for
information are, arguably, more limited than the present arrangements
and practices.
10.15 The Minister adds that the UK Presidency will,
in particular, encourage discussion by the Council of the costs
of providing the access to information proposed in the draft Decision.
Conclusion
10.16 Clearly, the exchange of information between
Members States and with Europol can make an important contribution
to the prevention and detection of crime. We quite see the potential
benefits of EU legislation to remove unnecessary obstacles to
such exchanges. But it is a major leap from the removal of unnecessary
obstacles to the creation of an obligation to give the competent
authorities of every other Member State a right to online access
to national databases. It seems to us questionable whether the
European Council's definition of the principle of accessibility
(see paragraph 10.1 and 10.2 above) necessarily entails a right
to online access without the prior consent of the Member State
which holds the data. In any event, we consider the principle
to be of sufficient importance to warrant a debate.
10.17 It is true that the draft Decision proposes
that there should be a right, on specified grounds, to impose
limitations on the use of the information or to refuse to provide
the data. But it also proposes that the reply to a request must
be made within 12 hours. We wonder whether this would allow sufficient
time for the proper consideration of the request. Moreover, as
the Minister says, the proposed grounds for refusal may be more
limited than under present arrangements. Further, it is not clear
whether the right to refuse would be confined only to requests
arising from an entry in the index or would also extend to online
access to the databases. It seems to us that the right to refuse
should apply to all information and not be confined to data mentioned
in an index.
10.18 We agree with the Minister that the provisions
on data protection in this proposal and in the separate draft
Framework Decision on the protection of personal data need to
be consistent. This suggests that discussion of the data protection
provisions in the draft Decision on the principle of availability
should be postponed until after the other measure has been considered.
10.19 We also agree with the Minister on the importance
of consideration of the costs to Member States of providing online
access and creating an index. It seems to us inconceivable that
the draft Decision should be adopted until robust estimates of
the costs have been produced.
10.20 Annex II of the draft Decision specifies
the six types of information which Member States would have a
duty to make available. The sixth type is described as "minimum
data for the identification of persons contained in civil registers".
We ask the Minister to tell us what he understands this to mean.
10.21 We consider the "principle of availability"
to be of such importance as to require debate in European Standing
Committee B. But before recommending the debate, we should be
grateful for the Minister comments on our observations. Pending
his reply, the document remains under scrutiny.
33 See (25730) 10249/05: HC 38-iv (2004-05), para 17
(19 January 2005). Back
34
Conclusions of the European Council on 4/5 November2004, Annex
1, paragraph 2.1, page 20. Back
35
Hague Programme, page 21. Back
36
The acquis comprises the Schengen Convention of 1995, and the
supporting agreements, on the abolition of checks at the internal
borders of the Schengen area, the strengthening of control of
the external borders and police and judicial cooperation. Back
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