5 AGENCY FOR THE MANAGEMENT
OF JHA DATABASES
(a)
(30737)
11722/09
COM(09) 293
(b)
(30738)
11726/09
COM(09) 294
|
Draft Regulation establishing an Agency for the operational management of large
scale IT systems in the area of freedom, security and justice
Draft Council Decision conferring upon the Agency established by Regulation
XX tasks regarding the operational management of SIS II and VIS in application
of Title VI of the EU Treaty
|
| Legal base | (a) Articles 62(2)(a), 62(2)(b)(ii), 63(3)(b) and 66 EC; co-decision; QMV
(b) Articles 30(1)(a) and (b) and 34(2)(c) EU; consultation; unanimity
|
| Department | Home Office |
| Basis of consideration | Minister's letter of 26 October 2009
|
| Previous Committee Report | HC 19-xxv (2008-09), chapter 7 (21 July 2009)
|
| To be discussed in Council
| No date set |
| Committee's assessment | Politically important
|
| Committee's decision | (Both) Not cleared; further information requested
|
Background
5.1 These proposals concern the arrangements for
the management of three large Justice and Home Affairs (JHA) databases:
- EURODAC, which
stores asylum seekers' fingerprints and is used to help Member
States decide which of them is responsible for deciding an asylum
application;
- SIS II, which
will contain information about, for example, people wanted for
arrest and extradition, third country nationals to be denied entry
to any of the Schengen states, missing people and stolen property.
Its purpose is to help participating states enforce the provisions
of the Schengen acquis on the free movement of people and
on police and judicial cooperation in criminal matters; and
- VIS (the Visa
Information System), which will store records of all Schengen
visa applications received in participating Member States' missions
overseas, together with the applicant's photograph and fingerprints.
VIS will make it easier for Member States to exchange visa information
so as, for example, to detect visa fraud. VIS may be consulted
not only by immigration authorities but also by Europol and Member
States' law enforcement authorities for the purposes of the prevention
and detection of terrorist and other serious offences.
5.2 The Commission is responsible for the operational
management of EURODAC. It is also responsible for completing the
development of SIS II and VIS. When approving the legislation
to establish SIS II and VIS, the Council of Ministers and the
European Parliament invited the Commission to present proposals
for legislation to make an agency responsible for the management
of the systems.
5.3 Title IV of the EC Treaty provides that, in pursuit
of the progressive establishment of an area of freedom security
and justice, the Council of Ministers should adopt measures on
visas, asylum, immigration and other policies related to the free
movement of people within the EU. Article 69 of the Treaty and
Protocol 4 provide that the UK is not to take part in the adoption
of any Title IV measure, or be bound by it, unless the UK has
expressly opted into the measure.
5.4 Title VI of the EU Treaty provides that the EU's
objective is to provide citizens with a high level of safety in
an area of freedom, security and justice. The objective is to
be achieved by preventing and fighting crime through closer cooperation
between Member States' law enforcement and judicial authorities.
5.5 Title IV of the EC Treaty provides the legal
bases for the legislation on EURODAC and for the legislation on
SIS II and VIS relating to visas, asylum and immigration. Title
VI of the EU Treaty provides the legal base for legislation on
the use of SIS II and VIS for the purposes of police and judicial
cooperation in criminal matters.
Previous scrutiny of documents (a) and (b)
5.6 We first scrutinised these document in July.[14]
Document (a) is the draft of a Regulation to create an Agency
to be responsible for the operational management of SIS
II, VIS and EURODAC. It also provides for the Agency to develop
and manage other large-scale information technology systems for
which Title IV of the EC Treaty provides the legal base.
5.7 Document (b) is the draft of a Decision to make
the Agency responsible for managing the parts of SIS II and VIS
for which Title VI of the EU Treaty provides the legal base (police
and judicial cooperation in criminal matters).
5.8 The Agency would be an EC body with its own legal
personality. It would be funded by contributions from the EU budget
and the Member States. The powers of the Agency's Management Board
would include appointing the Agency's Executive Director, approving
the annual work and agreeing the annual estimates of revenue and
expenditure. The Management Board would comprise one representative
of each Member State and two representatives of the Commission.
Europol and Eurojust would have observer status at the Board when
matters relevant to their functions were discussed and would be
represented on the Agency's SIS II and VIS advisory groups. The
Agency would be established in 2011 and take over the management
of the databases in 2012. It would employ 120 staff. The Agency's
total start-up costs between 2010 and 2013 would be €113
million.
5.9 Recital 8 of the draft Decision says that:
- because the Decision, insofar as it applies to
VIS, is a development of the Schengen acquis in which the
UK does not participate, the UK is not taking part in the adoption
of the Decision and will not be bound by it; but
- the UK is taking part in the Decision so far
as its provisions relate to SIS II (for the purpose of police
and judicial cooperation in criminal matters).
5.10 In July, the Minister of State at the Home Office
(Mr Phil Woolas) told us that, in the Government's view, the UK's
involvement in the proposed Agency should reflect the UK's current
participation in the JHA databases. The UK is connecting to SIS
II for the purposes of police and judicial cooperation in criminal
matters. It also participates in EURODAC. The Government is challenging
in the European Court of Justice the current exclusion of the
UK from the Council Decision which gives law enforcement authorities
access to VIS.[15] The
outcome of that case will affect whether the UK could take part
in document (b).
5.11 We recognised the potential benefits of creating
a single Agency to manage SIS II, VIS, EURODAC and other large
JHA systems. But we decided to keep documents (a) and (b) under
scrutiny pending progress reports on the negotiations and notification
of the Government's decision whether to opt into document (a).
The Minister's letter of 26 October 2009
5.12 The Minister's letter tells us that the Government
has decided to opt-in to the draft Regulation to the extent that
it applies to the databases in which the UK currently takes part
and all future IT systems in which the Government of the day decides
to participate.
5.13 The Minister says:
"There were a number of key considerations
that informed the decision to partially opt-in. If the UK did
not opt into the measure, we would have no representation in the
Agency and would not be able to participate in the negotiations
over its creation. Given that we already participate in Eurodac,
are scheduled to connect to SIS II, and have launched an ECJ challenge
to the decision preventing us gaining access to the law enforcement
aspects of VIS, not opting into the Regulation would marginalise
our ability to influence the management of these systems in which
we participate. The Agency would also have a role in developing
any new IT systems, which may include systems in which the UK
would want to eventually participate and where for example we
might want to take part in pilot projects to influence their development.
Our non-participation in the Agency would exclude us from such
a role."
5.14 The Minister also tells us that the Government
will propose some amendments to the draft Regulation. For example,
the Government, supported by other Member States, has proposed
an amendment to one of the provisions on the voting rights of
Member States in the Management Board.
Conclusion
5.15 We note the Government's decision to opt-in
to document (a). We also note that it will seek amendments to
the Regulation. We should be grateful, therefore, if the Minister
would provide us with progress reports on the negotiations. Meanwhile,
we shall keep both documents under scrutiny.
14 See HC 19-xxv (2008-09), chapter 7 (21 July 2009). Back
15
Decision2008/633/JHA: OJ No. L 218,13.8.08, p.129. Back
|
