18 Agency for the management of databases
in the area of freedom, security and justice
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(31456)
8151/10
COM(10) 93
(b)
(32064)
13595/10
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Draft Regulation on establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice
Draft Council Decision concerning the UK's request to take part in some of the provisions of the Schengen acquis relating to the establishment of an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice
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| Legal base | (a) Articles 77(2)(a) and (b), 78(2)(e), 79(2)(c), 74, 82(1)(d) and 87(2)(a) TFEU; co-decision; QMV
(b) Article 4 of the Schengen Protocol; unanimity
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| Document originated | (a) 19 March 2010
(b) 14 October 2101
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| Deposited in Parliament | (a) 1 April 2010
(b) 14 October 2010
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| Department | Home Office
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| Basis of consideration | (a) Minister's letter of 18 October
(b) EM of 28 October 2010
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| Previous Committee Report | (a) HC 428-i (2010-11), chapter 21 (8 September 2010)
(b) None
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| To be discussed in Council | 2-3 December
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) and (b) cleared
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Background
18.1 The EU has or is developing 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; the UK participates fully
in Eurodac;
- SIS II, which
will contain information about, for example, people wanted for
arrest and extradition and third country nationals to be denied
entry to Schengen states. Its purpose is to help the participating
states enforce the provisions of the Schengen acquis on
the free movement of people and on police and judicial cooperation
in criminal matters; the UK will participate in those parts of
SIS II related to police and judicial cooperation but not in those
related to visas, asylum and immigration; and
- VIS (the Visa
Information System), which will store records of all Schengen
visa applications together with the applicants' photographs 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 by immigration authorities and (with the exception
of the UK and Ireland) by Member States' law enforcement authorities
and Europol for the purposes of the prevention and detection of
terrorist and other serious offences; the UK will take no part
in VIS.
The Commission manages EURODAC and is responsible
for developing SIS II and VIS.
Previous scrutiny of document (a)
18.2 In June 2009, the Commission proposed a draft
Regulation and a draft Decision to create an Agency to manage
EURODAC, SIS II, VIS and other large JHA IT systems, if developed.
At that time, a Regulation was needed because the EC Treaty (now
renamed the Treaty on the Functioning of the European Union —
TFEU) provided the legal base for EURODAC and the parts of SIS
II and VIS which related to visas, asylum and immigration; and
a Decision was needed because the Treaty on the European Union
(TEU) provided the legal base for the aspects of SIS II and VIS
which related to police and judicial cooperation in criminal matters.
18.3 When the previous Committee considered the documents
in July 2009,[85] it
noted that, insofar as it related to SIS II and VIS, the draft
Regulation built on provisions of the Schengen acquis in
which the UK does not take part. To that extent, the UK could
not take part in the Regulation.
18.4 The previous Committee also noted that the UK:
- could not take part in the
Decision to the extent that it applied to VIS; but
- would be bound by the Decision to the extent
that it related to SIS II for the purposes of police and judicial
cooperation in criminal matters.
18.5 In September 2009, the Government decided to
opt into the draft Regulation, but its opt-in was partial. It
only applied to those IT systems in which the UK was already participating
as well as any future systems in which it wished to participate.[86]
In November 2009, the Government told our predecessors that it
had taken legal advice before opting in and had been advised that
a partial opt-in was possible.
18.6 The Lisbon Treaty entered into force on 1 December
2009, necessitating changes to the legal bases proposed for the
EU IT Agency. The Commission therefore proposed an amended draft
Regulation — document (a) — in March 2010 which conflates
the content of the earlier draft Regulation and Council Decision
and supersedes them. The legal bases for the draft Regulation
are to be found exclusively in the TFEU.
18.7 The proposed Agency to manage the databases
would be an EU body with its own legal personality and budget.
The Management Board would comprise one representative of each
Member State and two representatives of the Commission.[87]
Europol and Eurojust would have observer status at the Board when
matters relevant to their functions were discussed. The Agency
would be established in 2011 and take over the management of the
databases in 2012. It would employ 120 staff.
18.8 Recital 24 of the draft Regulation purports
to set out the basis on which the UK may participate in the IT
Agency but is virtually unintelligible.
The Government's view on document (a)
18.9 In his Explanatory Memorandum of 25 May, the
Parliamentary Under-Secretary of State at the Home Office (James
Brokenshire) said that the Government considers that the UK remains
bound by its decision in September 2009 to opt into document (a).
The Government's primary negotiating aim would be to ensure that
the UK has voting rights on the Agency's Management Board which
mirror the UK's participation in the IT systems to be managed
by the Agency. The Minister also said that the Government was
considering whether Article 82(1)(d) TFEU — one of the Articles
cited as the legal base for the draft Regulation and which provides
for co-operation between judicial or equivalent authorities in
Member States in relation to criminal proceedings and the enforcement
of decisions — was appropriate and would raise the matter
with the Commission.
18.10 The Minister wrote to the Committee on 21 July
to provide further information on how the Government intended
to ensure that it could participate fully in the draft Regulation.
He indicated that:
- UK and Council officials agreed
that the UK remained bound by its original opt-in (notified in
September 2009) to the earlier version of the draft Regulation
as regards EURODAC and any future IT systems in which the UK chooses
to participate;
- the UK was also bound by those elements of the
draft Regulation relating to the police and judicial co-operation
aspects of SIS II, but Article 5(2) of the Schengen Protocol gave
the UK a right to opt out, provided it decided to do so by 21
June 2010; and
- the UK was unable to participate in those parts
of the draft Regulation relating to VIS and the elements of SIS
II concerning visas and immigration which build upon parts of
the Schengen acquis in which the UK does not participate.
18.11 To overcome these difficulties, the Minister
outlined a possible solution involving the adoption of a new Council
Decision based on Article 4 of the Schengen Protocol. This Article
enables the UK (and Ireland) to request to take part in some or
all of the provisions of the Schengen acquis. According
to the Minister,
"The proposed Council Decision would treat the
IT Agency Regulation as already part of the Schengen acquis
and provide that the UK was taking part in it. Whilst this would
represent a nominal extension of our involvement in Schengen —
in that we would participate in the IT Agency and its functioning
— it would not mean that we were participating in other
aspects of the Schengen acquis in which we do not wish
to participate (e.g. on visas or on external border controls).
This mechanism achieves the outcome we want and allows flexibility
in the use of the Schengen and Title V opt-ins which is in the
UK interest."
The Committee's view on document (a)
18.12 We considered the draft Regulation at our meeting
on 8 September and asked for further information from the Minister
on the following:
- what response the Government
has had from the Commission on the use of Article 82(1)(d) TFEU
as one of the legal bases for the draft Regulation;
- why the Government considers that it remains
bound by its September 2009 opt-in, and that a fresh opt-in is
not needed, in light of the substantive changes to the scope of,
and the legal bases cited for, the new draft Regulation;
- why the opt-out under Article 5(2) of the Schengen
Protocol now applied to elements of the draft Regulation;
- what the appropriate legal base should be for
the new Council Decision proposed by the Minister, and whether
that Decision would deem the EURODAC database to form part of
the Schengen acquis; and
- why the Government considered that the proposed
Council Decision would be no more than a "nominal" extension
of the UK's involvement in Schengen.
The Minister's letter of 18 October
18.13 The Minister (James Brokenshire) explains that
the Government does not consider the draft Regulation published
in March — document (a) — to be a new proposal, "but
rather a recast version of the original proposal, meaning that
a fresh opt-in was neither possible nor necessary in this case."
Although the scope of the draft Regulation is wider, the new elements
it contains relate to Schengen and are therefore governed by the
Schengen Protocol, not the Opt-in Protocol.
18.14 The opt-out facility provided by Article 5(2)
of the Schengen Protocol now applies as a result of changes introduced
by the Lisbon Treaty. Previously, the police and judicial co-operation
elements of SIS II and VIS would have required a separate Council
Decision under the TEU, to be agreed by unanimity but without
any facility for the UK to opt in or opt out. The Government's
decision, in September 2009, to opt into the original draft Regulation,
therefore, did not cover these elements. Post-Lisbon, these elements
have been incorporated into the amended draft Regulation but remain
outside the scope of the UK's opt-in decision. The Government
considers that, as VIS and SIS II are both part of the Schengen
acquis, their inclusion in the amended Regulation triggers
the UK's opt-out under Article 5(2) of the Schengen Protocol (although
the Government has chosen not to opt out).
18.15 The Minister says that Article 4 of the Schengen
Protocol, which enables the UK to request that the Council adopt
a decision on UK participation in some or all of the provisions
of the Schengen acquis, provides the legal base for the
proposed new Council Decision, but he adds that the Decision "does
not itself add the Regulation to the Schengen acquis".
He confirms that EURODAC is not part of the Schengen acquis
and that the proposed Council Decision "will only apply to
the Schengen elements of the IT Agency in which the UK does not
participate". Any extension of the UK's involvement in Schengen
as a consequence of the Council Decision would be "minimal"
as it would be "limited to the workings of the IT Agency"
rather than to the databases themselves.
18.16 The Minister provides a copy of the letter
sent by the UK's Permanent Representative on 5 October to the
President of the Council requesting a Council decision to enable
the UK to participate in the adoption of the amended Regulation.
The Minister also provides the latest draft of the proposed Regulation
and draws our attention to a "key change" designed to
ensure that the UK has voting rights within the Management Board
which are commensurate with the UK's level of participation in
IT systems managed by the Agency. The Minister says that "the
amended wording is closer to what we would like, but we think
there is scope to make this even clearer". He adds that "this
is the only change to the text of significance to UK policy interests".
18.17 Since writing to us, officials have provided
a more recent draft of the Regulation which includes a new recital
confirming that the UK will have voting rights in the Management
Board for any IT scheme managed by the Agency in which the UK,
now or in the future, participates. Recital 24 has also been amended
to express more clearly the basis for the UK's participation in
the IT Agency and includes appropriate cross-references to the
new draft Council Decision (see below). As regards the legal bases
cited for the draft Regulation, officials have advised that the
reason for including Article 82(1)(d) TFEU is to make provision
for Eurojust involvement, as an observer, in meetings of the Agency's
Management Board.
The draft Council Decision — document (b)
18.18 The Government has also deposited the new draft
Council Decision which is based on Article 4 of the Schengen Protocol.
The purpose of the draft Decision is to enable the UK to participate
in the Agency, even though the management functions of the Agency
will extend to areas of the Schengen acquis — notably
VIS and the elements of SIS II concerning visas and border controls
— which do not apply to the UK and which the UK would otherwise
be unable to take part in. Recital 8 explains why a Council Decision
is needed:
"The proposed Agency shall have a single legal
personality and shall be characterised by the unity of its organisational
and financial structure, which requires a single legal instrument
establishing it and which has to be voted on within the Council
in its entirety. Moreover, once adopted, the Regulation is to
become applicable in its entirety in the Member States bound by
it. This excludes the possibility of a partial applicability for
the United Kingdom."
18.19 Recital 11 of the draft Decision further specifies
that participation in the IT Agency:
"would be without prejudice to the fact that
at present the United Kingdom does not and cannot participate
in the provisions of the Schengen acquis relating to the
free movement of third country nationals, visa policy and the
crossing by persons of the external borders of the Member States.
This would justify the inclusion of specific provisions in the
Regulation establishing the Agency reflecting this special position
of the United Kingdom, in particular as regards limited voting
rights in the Management Board."
18.20 The draft Decision consists only of two Articles.
Article 1 provides that the UK:
"shall participate in the Regulation of the
European Parliament and Council establishing an Agency for the
operational management of large-scale IT systems in the area of
freedom, security and justice to the extent that it relates to
the operational management of SIS II and of VIS, in which the
UK does not participate."
18.21 Article 2 provides for the draft Decision to
enter into force on the day following its publication in the Official
Journal.
The Government's view — document (b)
18.22 In his Explanatory Memorandum, the Minister
(James Brokenshire) says that the purpose of the proposed Council
Decision is to enable the UK to participate fully in the adoption
of the draft Regulation — document (a) — and in the
activities of the IT Agency which concern the operational management
of existing or future EU databases in which the UK takes part.
The Government considers that full participation will enable the
UK to support more effective management of European IT systems.
18.23 The Minister acknowledges that the variable
degree of UK participation in the databases to be managed by the
proposed IT Agency "raises complex legal and practical issues"
but endorses the solution now proposed. He explains that the proposed
Council Decision
"confirms the UK request to take part in the
provisions of the Schengen acquis consisting exclusively
in the provisions of the proposed Agency Regulation covering the
operational management of parts of the information systems in
which the UK so far does not participate, ie VIS and the
immigration aspects of SIS II. The Council Decision is issued
on the basis that these elements are already part of the Schengen
acquis … Whilst the Council Decision represents a
minor extension of our involvement in Schengen, it does not mean
that the UK will participate in other aspects of the Schengen
acquis in which we do not wish to participate, ie
visas and management of the EU external border, but only in the
IT Agency and its functioning. It also allows flexibility in the
use of the Schengen and Title V opt-ins which is in the UK's interest."[88]
18.24 The Minister estimates the overall cost of
the IT Agency at €107.6 million, to be funded from the EU
budget. On current plans, the Agency should become operational
by 2012 and its activities will, until 2013, be covered by existing
budget lines for SIS II, EURODAC and VIS. He says that the Council
Decision is likely to be proposed for adoption at the Justice
and Home Affairs Council on 2-3 December and that the Presidency
hopes to secure a First Reading deal with the European Parliament
on the draft Regulation by the same date.
Conclusion
18.25 Our predecessors recognised the potential
benefits of creating a single Agency to manage the three principal
databases in the "area of freedom, security and justice".
The difficulty has been in establishing what role the UK can and
should play, in light of its limited participation in the IT systems
to be managed by the Agency, and how to secure UK involvement.
We agree with the Minister that this has been a long and complex
negotiation during which the Government's thinking seems to have
evolved considerably. For example, in July the Minister told us
that the draft Council Decision would treat the IT Agency Regulation
"as already part of the Schengen acquis". In
October, he said that the draft Decision would "not in itself
add the Regulation to the Schengen acquis". We think
this latter view must be right because the draft Regulation applies
to EURODAC, which does not form part of the Schengen acquis.
We also think that the solution now proposed, though far from
elegant, appears to be workable.
18.26 We note that the Government is satisfied
with the proposed choice of legal base for the draft Regulation.
We understand that Articles 82(1)(d) and 87(2)(a) TFEU are intended
to make provision for the involvement of Europol and Eurojust
in meetings of the IT Agency's Management Board. As these Articles
concern co-operation between Member States' competent authorities
in the field of police and judicial and co-operation in criminal
matters, we wonder whether Articles 85(1) and 88(1) TFEU which
refer specifically to Eurojust and Europol should not also be
cited.
18.27 We think that the Minister has provided
an adequate technical explanation of the reasons why the Government
considers that its opt-in to the original draft Regulation, in
September 2009, remains binding notwithstanding the publication
of an amended draft Regulation in March 2010. This is because
the original opt-in only applied to those parts of the draft Regulation
concerning EURODAC and these parts were retained in the amended
draft Regulation. The additional elements added were all Schengen-building
elements and were covered by the Schengen Protocol, not the Opt-In
Protocol. The Minister therefore tells us that a fresh opt-in
"was neither possible nor necessary in this case". He
also says that the solution proposed to secure full UK participation
in the IT Agency "allows flexibility in the use of the Schengen
and Title V opt-ins which is in the UK's interest."
18.28 While we understand the logic of the Government's
position, it is nevertheless the case that the amended draft Regulation
makes changes both to the legal base proposed and to the scope
of the instrument. While these changes are largely consequential
on the entry into force of the Lisbon Treaty, we are not convinced
by the assertion that the original and the amended draft Regulations
are essentially the same, at least as regards those elements covered
by the UK's opt-in; nor do we understand why the Minister considers
that it would not have been possible for the UK to insist on a
fresh opt-in. We are not sure how he can reconcile this view with
his belief that the present case allows flexibility in the use
of the Opt-In and Schengen Protocols. It seems to us that the
Government's reluctance to assert the need for a new opt-in decision
in relation to the amended draft Regulation narrows, rather than
expands, the flexibility available to the UK.
18.29 The Minister tells us that there is every
prospect of agreement on the draft Council Decision and draft
Regulation at the December Justice and Home Affairs Council. Notwithstanding
the concerns we have raised regarding the UK's opt-in, we think
that the solution proposed is viable and ensures that the UK's
participation in the IT Agency is commensurate with its involvement,
both now and in the future, in the IT systems which the Agency
will be responsible for managing. We therefore accept the Minister's
view that the proposals are in the UK's interest and we are willing
to clear them from scrutiny.
85 See HC 19-xxv (2008-09), chapter 7 (21 July 2009). Back
86
See HC 19-xxix (2008-09), chapter 5 (28 October 2009). Back
87
The latest version of the draft Regulation, sent to us by the
Government, provides for one Commisison representative. Back
88
Paragraph 21 of the Minister's Explanatory Memorandum. Back
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