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
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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
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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
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Document originated | (a) and (b) 10 September 2009
(b) 11 October 2010
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Deposited in Parliament | (a) 18 September 2009
(b) 21 September 2009
(c) 14 October 2010
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Department | Home Office
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Basis of consideration | EM of 25 October 2010
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Previous Committee Report | (a) and (b) HC 19-xxviii (2008-09), chapter 7 (21 October 2009)
(c) None
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To be discussed in Council | No date set
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Committee's assessment | (a) and (b) Politically important
(c) Legally and politically important
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Committee's decision | (a) and (b) Cleared
(c) Not cleared; further information requested
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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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