10 EURODAC
| (32072)
14919/10
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
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| Legal base | Article 78(2)(e) TFEU; co-decision; QMV
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| Document originated | 11 October 2010
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| Deposited in Parliament | 14 October 2010
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| Department | Home Office
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| Basis of consideration | Letter of 19 November 2010
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| Previous Committee Report | HC 428-vii (2010-11), chapter 6 (10 November 2010)
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| To be discussed in Council | No date set
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
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.
Conclusion
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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