Select Committee on European Scrutiny Twelfth Report

6 Incorporating the Prüm Treaty into EU law










Draft Council Decision on stepping up cross-border cooperation, particularly in combating terrorism and cross-border crime

Note by the Presidency of the Council: Integration of the Prüm Treaty into the Union Legal Order

Revised draft Decision on stepping up cross-border cooperation, particularly in combating terrorism and cross-border crime

Legal base(a) and(c) Articles 30(1)(a) and (b), 31(1)(a), 32 and 34(2)(c) EU; consultation; unanimity

(b) —

Deposited in Parliament(a) 9 February 2007

(b) 23 February 2007

(c) 27 February 2007

DepartmentHome Office
Basis of considerationEM of 5 March 2007
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decision(a) and (b) Cleared

(c) Not cleared; further information requested

The Prüm Treaty

6.1 In May 2005, seven Member States signed the Treaty of Prüm.[25] Its purpose is to increase the signatories' effectiveness in preventing and investigating terrorism and cross-border crime by greater cooperation. So, for example, the Treaty makes provision for one signatory ("the receiving State") to have access to the automated database of another signatory ("the requested State") to check whether it contains a match for a DNA profile or a fingerprint.

6.2 Since the Treaty was signed, eight more Member States have notified their intention to join the Prüm Treaty.[26]

6.3 Article 1(4) of the Treaty requires a proposal to be made for the Treaty to be incorporated into the law of the European Union.

The relevant provisions of the EU Treaty

6.4 Title VI of the EU Treaty makes provision for police and judicial cooperation between Member States in criminal matters. The following provisions of Title VI are cited as the legal base for the documents (a) and (c):

  • Article 30 (1)(a) and (b), which states that such cooperation includes operational cooperation between law enforcement services to prevent and detect crime and the collection, storage, processing, analysis and exchange of information, subject to appropriate provisions for the protection of personal data.
  • Article 31(1)(a), which provides that the judicial cooperation includes facilitating and accelerating cooperation for the purposes of prosecutions and the enforcement of decisions.
  • Article 32, which authorises the Council to specify the conditions for, and limitations on, operations by the law enforcement services of one Member State in the territory of another Member State.
  • Article 34(2)(c), which authorises the Council to adopt decisions for purposes consistent with the objectives of Title VI of the EU Treaty, excluding the approximation of the laws of Member States.

The Council Framework Decision on simplifying the exchange of information and intelligence between law enforcement authorities

6.5 In December 2006, the Council adopted a Framework Decision to establish rules for the exchange of "information and intelligence" between Member States' law enforcement authorities for the purposes of conducting criminal investigations or criminal intelligence operations.[27] Article 2(d) of the Framework Decision defines "information and intelligence" as;

i)  "any type of information or data which is held by law enforcement authorities; and

ii)  any type of information or data which is held by public authorities or by private entities and which is available to law enforcement authorities without taking of coercive measures … ."

Document (a)

6.6 Document (a) was proposed by the seven original signatories of the Prüm Treaty and by five of those who have notified their intention to join it. It is the draft of a Decision which reproduces, with few differences, the provisions of the Prüm Treaty which relate to police and judicial cooperation in criminal matters and for which the EU Treaty contains a legal base.

6.7 Document (a) omits the provisions of the Prüm Treaty for which there is not a legal base in the EU Treaty. For example, it omits Article 23 because the Article is about cooperation to organise joint flights for the removal of illegal immigrants and other repatriation measures. Immigration is a first pillar matter and so outside the scope of the EU Treaty.

6.8 Document (a) has been superseded by document (c), the revised draft of the Decision.

Document (b)

6.9 Document (b) is a note by the German Presidency. It says that the JHA Council on 15-16 January gave broad support to the notion of incorporating the Prüm Treaty into EU law. Accordingly, a committee of senior officials from the Member States (the Article 36 Committee) had considered what action might be necessary. As a result, document (a) had been prepared. The Presidency invited the Council to:

  • "reach a political understanding" that the third pillar provisions of the Prüm Treaty should be incorporated in EU law;
  • welcome the draft Decision (document (a)); and
  • ask the Article 36 Committee to carry forward the work with a view to the adoption of the Decision by the Council in June 2007.

The Presidency's proposals were endorsed by the Justice and Home Affairs Council at its meeting on 15-16 February.

Document (c)

6.10 Document (c) has been proposed by all 15 Member States who have signed the Prüm Treaty or notified their intention to do so. It is a revised draft of the Decision. The main provisions are as follows.

6.11 Article 2 requires Member States to open and keep national DNA analysis files for the investigation of criminal offences. The processing of data in those files by a Member State must be done in accordance with the Decision and in compliance with the national law of the processing state.

6.12 Article 3 provides that Member States must give any other Member State access to the "reference data" in their DNA files for the purposes of the investigation of a crime.[28] The Member State making the enquiry (the receiving State) is authorised to make an automated search of the requested State's database to see if it contains a DNA profile that matches the profile held in the receiving State's database.

6.13 Article 5 provides that, if a match is found, the requested State is to provide the receiving State with personal information about the data subject in accordance with the national law of the requested State.

6.14 Article 7 requires that, if it has not got a matching DNA profile for a particular person, the requested State must collect "cellular material" from that person and derive from it the person's DNA profile if the receiving State;

  • specifies the purpose for which the information is required;
  • produces an investigation warrant or suitable statement showing that the legal requirements for collecting the material would be satisfied if the person were present in the receiving state's territory; and
  • under the law of the requested State, the requirements for collecting the material are satisfied.

6.15 Articles 8, 9 and 10 make provision about fingerprint data which is similar to the provision in Articles 2, 3 and 5 about DNA data.

6.16 Article 12 requires requested States to provide receiving States with access to their vehicle registration data to obtain information about owners, operators and vehicles for the purposes of the prevention or investigation of a crime or the maintenance of public order and security. The receiving State may make a search only in individual cases and only if it has the full chassis number or vehicle registration number.

6.17 Article 13 requires Member States, either on request or of their own accord, to provide other Member States with non-personal information for the prevention of criminal offences and to maintain public order and security at major events "with a cross-border dimension" and, in particular, sporting events or meetings of the European Council.

6.18 Article 14 requires Member States to provide, for the same purposes as in Article 13, personal data about individuals if there is reason to believe that the person will commit a criminal offence or pose a threat to public order and security. Such personal data may be processed only for the purposes for which it is supplied and for the particular event concerned. The information must be deleted once the purposes for which it is supplied have been achieved and, in any event, within a year.

6.19 Article 16 authorises Member States, on request or of their own accord, to supply other Member States with specified personal information because there is reason to believe that the data subject will commit terrorist offences. The specified information which may be provided is the data subject's name and date and place of birth and the reason for the belief that the person will commit a terrorist offence. The Member State which supplies the information may attach binding conditions on the use of the data.

6.20 Article 17 authorises a Member State to run joint patrols and other joint operations within its territory with other Member States' law enforcement officers in order to maintain public order and security and prevent crime. If its national law allows, the host State may (with the seconding State's consent) confer "executive powers" on the officers seconded to the joint operation.

6.21 Article 18 requires Member States to give each other assistance "in connection with mass gatherings and similar major events, and serious accidents, by seeking to prevent criminal offences and maintain public order and security… ."

6.22 Article 19 allows law enforcement officers seconded to a joint operation in another Member State to wear their national uniforms and, with the consent of the host State, to carry weapons, ammunition and equipment.

6.23 Articles 24 to 32 make detailed provision about the processing and protection of information supplied under the Decision. For example, they require that the protection is to be no less than that of Council of Europe Convention 108; and they give the data subject the right to know that information about him is held and the right to damages for injury from incorrect information.

6.24 Article 36 authorises the continuation of existing, and the making of new, bilateral or multilateral agreement or arrangements between Member States or between them and third countries "in so far as such agreements or arrangements provide for the objectives of this Decision to be extended or enlarged".

The Government's view

6.25 The Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) says that the Government broadly welcomes the proposed Decision as a way to improve practical cooperation between Member States. The provisions on the exchange of information about DNA, fingerprints and vehicle registration are consistent with "the principle of availability", which the Government supports.[29] The Minister tells us that "The Presidency has indicated that whilst this Council Decision [on the incorporation of the Prüm Treaty into EU law] is under negotiation they will not be tabling for further discussion the separate Commission proposal for a Framework Decision on the exchange of information under the principle of availability".[30]

6.26 Commenting on the Articles on the supply of information about DNA and fingerprints, the Minister says that the proposal would not give receiving Member States greater access to personal information than is currently available through existing legal assistance arrangements; but the right to make automated searches for a data match ("hit") would allow the police to establish more quickly whether relevant information exists in another Member State. She says that in Germany and Austria, where parts of the Prüm Treaty are already being implemented, the operation of the DNA and fingerprint provisions has "resulted in hits on a large number of murders, rapes and other serious crimes with a cross-border element".

6.27 The Minister also says that the proposed Articles on the sharing of information for the prevention of terrorist offences and for the maintenance of public order would not require the UK to share any more information than it already does. Article 17, on joint operations, makes the exercise of the power subject to national law and so would not give foreign police the authority to act on UK soil. Moreover, Article 19 would not "extend the powers of foreign police to carry firearms on the UK territory".

6.28 The Minister tells us that:

"We are considering in detail the data protection provisions in the draft Council Decision and their relationship with other third pillar instruments, particularly the [proposed] Data Protection Framework Decision.[31] We believe that they are largely consistent with UK national law on the sharing of information with other Member States. It should also be noted that if the Data Protection Framework Decision comes into force in the future, it will apply to all third pillar measures."

6.29 Finally, the Minister tells us that it is considering the financial implications for the UK of implementing the proposed Decision and she confirms that the German Presidency wishes the Council to reach agreement on the Decision at the JHA Council in June.


6.30 We note that the Government broadly supports the draft Decision as a way to improve police cooperation. We ask the Minister, therefore, why the Government did not become a signatory of the Treaty in 2005 or subsequently; and if it would now wish to become party to the Treaty if the draft Decision were not adopted.

6.31 We attach much importance to the data protection provisions of the draft Decision. We should be grateful, therefore, if the Minister would:

  • tell us why the Framework Decision on the exchange of information and intelligence between law enforcement authorities,[32] which was adopted last December, does not make sufficient provision for police cooperation and why the incorporation of the Treaty of Prüm is needed, in addition;
  • provide us with a full report on the outcome of the Government's detailed examination of the data protection provisions of document (c); and
  • tell us whether the draft Data Protection Framework Decision would or would not take precedence over document (c) if there were a conflict between the data protection Articles of the two measures; and whether provision will be made to specify how any such conflicts would be resolved.

6.32 Finally, we ask the Minister to tell us the outcome of the Governmnent's work on the likely cost to the UK of implementing the proposed Decision.

6.33 Pending consideration of the further information for which we have asked, we shall keep document (c) under scrutiny. Document (a) has been superseded by document (c); document (b) was considered by the JHA Council in February; and so we clear both of those documents.

25   The English version refers to the document as a "Convention"; but the versions in other languages describe it as a "Treaty". In this Report, we refer to it as the Prüm Treaty. The signatories were Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain.  Back

26   The eight are: Bulgaria, Finland, Italy, Portugal, Romania, Slovakia, Slovenia and Sweden. Back

27   Council Framework Decision 2006/960/JHA: OJ No. L 386, 29.12.06, p.89. Back

28   Reference data" means the DNA profile and a reference number; the reference must not contain any information which would enable the data subject to be identified. Back

29   The Hague Programme on security, freedom and justice defines the principle of availability 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" - Conclusions of the European Council on 4-5 November 2004, Annex 1, paragraph 2.1, page 27. Back

30   (27065) 13413/05: see HC 34-xiv (2005-06), para 1 (11 January 2006). Back

31   ((26947) 13563/05: see HC 34-xii (2005-06), para25 (30 November 2005). Back

32   Framework Decision 2006/960/JHA. Back

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