Documents considered by the Committee on 8th December 2010 - European Scrutiny Committee Contents




COM(10) 555

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 baseArticle 78(2)(e) TFEU; co-decision; QMV
Document originated11 October 2010
Deposited in Parliament14 October 2010
DepartmentHome Office
Basis of considerationLetter of 19 November 2010
Previous Committee ReportHC 428-vii (2010-11), chapter 6 (10 November 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


10.1 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.

10.2 EURODAC forms part of the so-called "Dublin system" for determining which Member States is responsible for examining a claim for asylum. Each set of fingerprint data may be compared with 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. EURODAC is intended to reduce the risk of multiple claims for asylum being lodged in different Member States or of asylum seekers being shuttled between Member States, without any one taking responsibility for the asylum application.

10.3 EURODAC was established by means of a Regulation adopted in 2000 and became operational in January 2003. The UK participates fully in the Dublin system and so is bound by the 2000 Regulation. In December 2008, the Commission proposed a new recast Regulation (the 2008 draft Regulation) which would incorporate changes identified in a Commission report evaluating the effectiveness of the Dublin system. The UK opted into the 2008 draft Regulation but it was later withdrawn and replaced, in September 2009, by an amended draft Regulation (the 2009 draft Regulation). The UK decided that a fresh opt-in decision was required because the 2009 draft Regulation differed from its 2008 predecessor by including provision for Europol and designated national law enforcement authorities to seek access to EURODAC data 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. The Government decided, in December 2009, to exercise its right to opt-in.[48]

Scrutiny of the latest amended draft Regulation

10.4 The latest amended draft Regulation, proposed by the Commission in October, is the third attempt to recast the original 2000 Regulation establishing EURODAC. It includes a new legal base to take account of the entry into force of the Lisbon Treaty on 1 December 2009. 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.

10.5 In his Explanatory Memorandum of 25 October, the Minister for Immigration (Damian Green) told us that the UK's opt-in applied afresh:

    "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 proposal, 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."[49]

    10.6 We noted that 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 therefore asked the Government to explain to us the criteria which it and the EU institutions apply for determining:

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

    10.7 We also noted that the position taken by the Government in this case, in insisting that a fresh opt-in decision was required, appeared to be at odds with its approach to a related proposal concerning the establishment of a new IT Agency responsible for the operational management of large-scale justice and home affairs databases (including EURODAC and two other IT systems). In that case, the Government had taken the view that it was bound by its opt-in to the original draft Regulation establishing the Agency, notwithstanding that a subsequent amended draft Regulation included changes both to the legal base and to the scope of the original proposal. We asked the Government to provide some indication of the nature and scale of the changes that would need to be made by a later amended proposal in order to trigger a new opt-in decision.

    The Minister's letter of 19 November

    10.8 The Minister explains why the Government considers that the latest amended draft Regulation on EURODAC requires a fresh opt-in decision, whereas the later amended draft Regulation establishing the IT Agency does not:

      "Our view is that although the IT Management Agency proposal presented in March 2010 included extra elements, these were not elements within Title V of the Treaty on the Functioning of the European Union (TFEU) to which the UK's opt-in Protocol applied; rather they were Schengen elements and as such fell outside the scope of the Title V TFEU opt-in Protocol. On that basis we considered that the earlier opt-in stood in the case of the IT Management Agency. In contrast the changes to the proposed EURODAC Regulation compared to the earlier version presented in September 2009 (document 13263/09) are wholly within the scope of Title V TFEU. We also consider that the removal of the provisions permitting law enforcement access reflects a significant change in scope such that this can be considered a new proposal that triggers the opt-in. Neither the European Commission nor the Council Legal Service have expressed a view that our opt-in does not apply to this, the third recast of the EURODAC proposal, although neither have expressed a view on the precise criteria that would trigger a fresh opt-in."

    10.9 The Minister adds that he will inform the Committee once the Government has decided whether or not to opt into the amended draft EURODAC Regulation.


    10.10 In the Conclusion to our Report on the proposed Regulation establishing an IT Agency,[50] we said that we thought the Government had provided an adequate technical explanation of the reasons for considering that the UK remained bound by its opt-in to the original draft Regulation, notwithstanding the changes introduced by a subsequent amended draft Regulation. This was largely a consequence of the complex interplay between the UK's Opt-In Protocol and the Schengen Protocol, with the latter effectively trumping the former for EU measures forming part of, or building on, the Schengen acquis. We nevertheless questioned the conclusion drawn by the Government that it would not have been possible for the UK to insist on a fresh opt-in decision.

    10.11 We understand that different considerations apply to the amended draft Regulation establishing EURODAC because it is wholly governed by the UK's Opt-In Protocol. We take the point that this latest — and third — attempt to recast the 2000 Regulation establishing EURODAC reflects "a significant change in scope" from its 2009 predecessor because it no longer provides for the use of EURODAC data for broader law enforcement purposes. We assume, therefore, that "a significant change in scope" would be one of the criteria which the Government would apply in determining whether a fresh opt-in decision is required whenever the Commission produces an amended proposal falling within the scope of the UK's Opt-In Protocol. The Minister does not tell us if this is the only criterion which the Government applies or, if there are others, what they are.

    10.12 As the Government has not yet informed us of its decision whether or not to opt into the latest draft Regulation, we shall continue to hold it under scrutiny. We would be grateful if the Government, when informing us of its decision, could also confirm whether a "significant change in scope" is the sole criterion it applies for determining whether a fresh opt-in decision is required and, if there are additional criteria, tell us what they are.

    48   The scrutiny history for 2008 and 2009 draft Regulations is set out in detail in HC 428-vii (2010-11) chapter 6 (10 November 2010). Back

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

    50   See HC 428-ix (2010-11), chapter 18 (24 November 2010). Back

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