Documents considered by the committee on 10 November 2010, including the following recommendation for debate: Safety of offshore oil and gas activities - European Scrutiny Committee Contents


6   EURODAC

(a)

(30917)

13263/09

COM(09) 342


+ ADDs 1-2

(b)

(30919)

13322/09

COM(09) 344

(c)

(32072)

14919/10

COM(10) 555


Draft Regulation on the establishment of EURODAC for the comparison of fingerprints for the effective application of the Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection

Commission staff working documents: impact assessment and summary of assessment

Draft Council Decision on requesting comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes

Amended draft Regulation on the establishment of EURODAC for the comparison of fingerprints for the effective application of the Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection

Legal base(a)  Article 63(1)(a) EC; co-decision; QMV

(b)  Articles 30(1)(b) and 34(2)(c) EU; consultation; unanimity

(c)  Article 78(2)(e) TFEU; co-decision; QMV

Document originated(a)  and (b) 10 September 2009

(b)  11 October 2010

Deposited in Parliament(a)  18 September 2009

(b)  21 September 2009

(c)  14 October 2010

DepartmentHome Office
Basis of considerationEM of 25 October 2010
Previous Committee Report(a)  and (b) HC 19-xxviii (2008-09), chapter 7 (21 October 2009)

(c) None

To be discussed in CouncilNo date set
Committee's assessment(a)  and (b) Politically important

(c) Legally and politically important

Committee's decision(a)  and (b) Cleared

(c) Not cleared; further information requested

Background

6.1  EURODAC is an EU database containing the fingerprints of any third country national or stateless person aged at least 14 years old who:

  • has applied for asylum in a Member State; or
  • has been apprehended in connection with an irregular crossing of a Member State's external border; or
  • is found to be illegally present within a Member State.

Its main purpose is to facilitate the application of the so-called Dublin Regulation which establishes rules for determining which Member State is responsible for examining an asylum application. Each set of fingerprint data may be compared with fingerprint data already stored in EURODAC to see if an asylum seeker has previously lodged an asylum claim in one or more other Member States or has entered EU territory unlawfully.

6.2  The Regulation establishing EURODAC was adopted in 2000 and the EURODAC system became operational in January 2003. The UK participated in the adoption of the EURODAC and Dublin Regulations and is bound by them. In 2007, the Commission produced a report evaluating the operation of both Regulations (often referred to collectively as the Dublin system) and concluded that a number of changes could be made to improve their practical application and effectiveness. Two of the more significant changes proposed were to include deadlines for the transmission of fingerprint data to EURODAC's Central Unit so as to reduce any unnecessary delay, and to consider making provision for access to EURODAC data for wider law enforcement purposes.

6.3  In December 2008, the Commission proposed repealing the 2000 EURODAC Regulation and replacing it with a new Regulation which would contain some new provisions while re-enacting, with some amendments, the substance of the 2000 Regulation.[13] The main changes proposed included the extension of the scope of EURODAC to cover applications for subsidiary protection,[14] provision for the operational management of EURODAC to be undertaken by a new IT Management Authority, the introduction of deadlines for transmitting fingerprint data to the EURODAC Central Unit, and the inclusion of additional data protection safeguards. Our predecessors recommended the draft Regulation for debate, along with proposed changes to the Dublin Regulation. The debate was held on 10 February 2009. In March 2009, the previous Government decided to opt into the draft EURODAC Regulation.

Previous scrutiny of documents (a) and (b)

6.4  In September 2009, the Commission proposed document (a) — an amended draft Regulation — which:

  • incorporated some of the amendments proposed by the European Parliament, as well as changes agreed in the course of the Council's negotiations on the previous draft Regulation; and
  • included provision for Europol and national law enforcement authorities to seek access to fingerprint data stored in the EURODAC Central Unit if there were reasonable grounds for believing that the data would contribute substantially to the prevention, detection or investigation of terrorist or other serious criminal offences.

6.5  The Commission also proposed document (b) — a new draft Council Decision — based on the provisions in the Treaty on European Union concerning police and judicial co-operation in criminal matters, which set out the conditions under which Europol and designated national law enforcement authorities would be able to request access to fingerprint data stored in EURODAC.

6.6  The previous Government considered that the new amending draft Regulation — document (a) — was in essence a new proposal, that the UK was not therefore bound by its opt-in to the earlier proposal, and that a fresh opt-in decision would be required. On the substance of the changes proposed, the Government indicated that most were acceptable. It considered that the 72-hour deadline for transmitting fingerprint data to the EURODAC Central Unit was more realistic than the 48 hours previously proposed. The Government also supported the proposal to give Europol and national law enforcement authorities access to EURODAC. The Government's principal concern remained the proposed reduction (also included in the earlier draft Regulation) from two years to one of the maximum storage period for fingerprint data on third country or stateless people apprehended in connection with the irregular crossing of an external border.

6.7  Our predecessors noted that EURODAC was not created for the purpose of preventing, detecting or investigating terrorist or other serious criminal offences and that it was questionable whether the use of a database for purposes other than those for which it was originally intended was justifiable. Documents (a) and (b) were held under scrutiny and the Government was asked to provide progress reports on the negotiations and to notify the Committee of the Government's opt-in decision.

6.8  In December 2009, the previous Government informed our predecessors that it had decided to opt into document (a) — the draft Regulation — but that the entry into force of the Lisbon Treaty on 1 December meant that documents (a) and (b) would most likely be replaced by a new consolidated legal instrument with a new legal base and that this would require a fresh opt-in decision by the Government.

Document (c) — the amended draft Regulation

6.9  The latest amending draft Regulation, proposed by the Commission in October, cites Article 78(2)(e) of the Treaty on the Functioning of the European Union (TFEU) as its legal base. This Article provides for the adoption of EU measures to establish the criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection. Apart from the change to the legal base, the only other significant change is the removal of the provision to enable Europol or national law enforcement authorities to request access to EURODAC data. The Commission considers that removal of this provision will make the adoption of the draft Regulation easier which will, in turn, pave the way for establishing a new IT Agency for the operational management of large-scale IT systems in the area of freedom, security and justice. Once established, the Agency would be responsible for the management of EURODAC.

6.10  The main elements retained in the amended draft Regulation are:

  • extension of the scope of EURODAC to include applications for international protection (encompassing claims for asylum and for subsidiary protection);
  • provision for a new IT Management Agency to take over responsibility for the operational management of EURODAC;
  • a 72-hour deadline for transmitting fingerprint data to EURODAC, but with an extension of time allowed where fingertips are too damaged to permit accurate comparison;
  • a reduction from two years to one of the period for storing fingerprint data of third country or stateless people apprehended in connection with the irregular crossing of a Member State's external border;
  • the inclusion of additional safeguards to ensure the safety and accuracy of data and an improvement in the rights of data subjects; and
  • provision for the European Data Protection Supervisor to oversee the processing of personal data .

6.11  The Commission says that the costs involved in implementing the changes contained in the amended draft Regulation will be substantially reduced because the removal of the provision on the access of law enforcement authorities to EURODAC means that fewer adaptations will be required to the existing EURODAC database. The costs of adapting EURODAC's central unit are estimated at €230,000 instead of the projected €2,415,000 for documents (a) and (b).

The Government's view on document (c) — the amended draft Regulation

6.12  In his Explanatory Memorandum of 25 October 2010, the Minister for Immigration (Damian Green) says that the removal of the provision that would have allowed access to EURODAC for law enforcement purposes does not raise significant operational issues for UK law enforcement agencies, will reduce costs considerably, and will speed up negotiations on the draft Regulation. The Government welcomes the introduction of a 72-hour time limit for transmitting fingerprint data to EURODAC, as well as the recognition that special circumstances may exist, for example, where fingerprints cannot be taken immediately on health grounds or because they are damaged, which justify an extension.

6.13  The Government is disappointed that the amended draft Regulation maintains the proposed reduction from two years to one of the time permitted for storing the fingerprint data of third country or stateless people apprehended in connection with an irregular border crossing, as the UK Border Agency believes that such data can be of continuing significance in assessing the credibility of a claim for international protection. He says that Member States are divided on the appropriate length of the storage period, but that the European Data Protection Supervisor considers the reduced storage time to be "proportionate" and in line with proposed changes to the Dublin Regulation.

6.14  The Minister notes that the UK's opt-in applies, and adds:

"The Government considers that the amendments which the current proposal for a Regulation make to the September 2009 proposal are such that this is in essence a new proposal and therefore the UK is not bound by its decision to opt into the September 2009 proposal or, indeed, the decision to opt into the December 2008 proposal. As a result a new decision is needed whether or not to opt into the current amended proposal for a Regulation.

"The Government is committed to taking all opt-in decisions on a case-by-case basis, putting the national interest at the heart of our decision making. In making the opt-in decision on this proposals [sic], we will have particular regard to the following:

  • "Whether participation in the EURODAC system would be of net benefit to the UK if the proposals were adopted and the implications if we did not opt into this proposal given that the UK has opted into the earlier proposal to replace the Dublin Regulation;
  • "The extent to which we think the proposals can be improved in negotiations if we do opt in; and
  • "The implications of not opting in for our broader relationship with the EU and with other Member States — in particular, for our ability to promote our own agenda in the EU and to secure co-operation and support from other Member States on immigration and wider Justice and Home Affairs questions."[15]

Conclusion

6.15  Our predecessors expressed concern about the principle of using a database for purposes other than those for which it was originally intended and designed so we welcome the removal of the provision in the latest draft Regulation — document (c) — for access to EURODAC data for broader law enforcement purposes.

6.16  We note that the Government generally considers the latest draft Regulation to be more realistic and practical than the Commission's original proposal and anticipates that negotiations could move quickly. The Minister indicates that the UK's opt-in applies afresh to document (c) and that the Government has not yet decided whether or not to opt in. As the Government opted into the previous draft amending Regulation — document (a) — as well as its 2008 predecessor, we expect that the Government will choose to do so again. The circumstances in which the UK may be bound by, or released from, an earlier opt-in decision clearly have broader legal and political significance. We should, therefore, be grateful if the Minister would explain to us the criteria which the Government and the EU institutions apply for determining:

  • whether an earlier opt-in decision remains binding on the UK; or
  • whether a fresh opt-in is required.

6.17  We think this issue requires some clarification, not least because the Government has told us that it is bound by an earlier opt-in decision concerning an amended draft Regulation to establish an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (including EURODAC).[16] In that case, the Government did not consider a change to the legal base and to the scope of the original proposal to be sufficient to justify a fresh opt-in decision, so we would welcome some indication of the nature and scale of the changes that would be required to trigger a new opt-in decision. We also ask the Government to inform us of its decision whether or not to opt into the latest draft Regulation.

6.18  As document (c) — the amended draft Regulation — supersedes documents (b) and (c), we are content to clear the latter two documents from scrutiny. Document (c) remains under scrutiny pending the Government's response to our questions.




13   (30256) 16934/08: see HC 19-iv (2008-09) chapter 4 (21 January 2009). Back

14   An individual who does not qualify as a refugee may nevertheless qualify for "subsidiary protection" where there are substantial grounds for believing that he or she would face a real risk of serious harm if returned to his or her country of origin.  Back

15   See paragraph 9 of the Minister's Explanatory Memorandum.  Back

16   See HC 428-i (2010-11), chapter 21 (8 September 2010). Back


 
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