18 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 | Minister's letter of 11 January 2011
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| Previous Committee Report | HC 428-x (2010-11), chapter 10 (8 December 2010) and 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 | Cleared
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Background and previous scrutiny
18.1 EURODAC is an EU database which forms part of the so-called
"Dublin system" for determining which Member State is
responsible for examining a claim for asylum. It contains the
fingerprints of third country nationals or stateless people aged
at least 14 years old who:
- have applied for asylum in an EU Member State; or
- have been apprehended in connection with an irregular
crossing of a Member State's external border; or
- have been found to be illegally present within
a Member State.
18.2 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. Each set
of fingerprint data obtained by a Member State may be compared
with data already stored in EURODAC to see if an asylum seeker
has previously lodged a claim in one or more other Member States
or has entered EU territory unlawfully.
18.3 The UK participates fully in the Dublin system
and is bound by the 2000 Regulation establishing EURODAC. The
amending draft Regulation proposed by the Commission is the third
attempt to recast the 2000 Regulation. The UK opted into previous
draft amending Regulations proposed in 2008 and 2009 but which
were subsequently withdrawn. The Government told us that a fresh
opt-in decision was required for the Commission's latest draft
amending Regulation because it was "in essence a new proposal"
and the Government was not, therefore, bound by its earlier decisions
to opt into the 2008 and 2009 draft amending Regulations.[70]
18.4 We found the Government's approach to the opt-in
in this case difficult to reconcile with that taken in relation
to UK participation in a draft Regulation to establish an IT Agency
for the operational management of large scale IT systems (including
EURODAC). In that case, the Government considered that a fresh
opt-in decision was not required when the Commission's original
proposal (which the UK had opted into) was replaced by an amended
proposal.
18.5 We noted that the circumstances in which the
UK may be bound by, or released from, an earlier opt-in decision
had broader legal and political significance and asked the Government
to explain the criteria which it and EU institutions applied to
determine:
- whether an earlier opt-in decision
remains binding on the UK; or
- whether a fresh opt-in decision is required.
18.6 The Minister for Immigration (Damian Green)
told us that the Commission's latest draft amending Regulation,
compared with its 2009 predecessor, reflected "a significant
change in scope such that this can be considered a new proposal
that triggers the opt-in."[71]
This was because the latest proposal omitted a provision enabling
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. He added that the Commission and Council Legal
Service had not contradicted the Government's view that a fresh
opt-in decision was required, nor had they expressed a view on
the precise criteria that would trigger a fresh opt-in.
18.7 We accepted the Government's view that the change
in scope of the Commission's latest draft amending Regulation
was significant, but asked the Minister to explain whether a "significant
change in scope" was the sole criterion the Government applied
to determine whether a fresh opt-in would be required and, if
there were additional criteria, to tell us what they were. We
also asked the Minister to inform us of the Government's decision
whether or not to opt in.
The Minister's letter of 11 January 2011
18.8 The Minister tells us that the Government has
decided to opt into the Commission's latest draft amending Regulation
"in order to secure continued access to EURODAC for immigration
purposes, as it plays a vital role in combating abuse of the UK's
asylum system." He explains the process applied by the Government
in the present case to determine whether a fresh opt-in decision
was required.
"As the Committee will appreciate, Article
3 of the UK's opt-in Protocol provides that in order for it to
apply, a proposal or initiative must have been presented to the
Council pursuant to Title V of Part Three of the TFEU. As set
out in the original explanatory memorandum deposited with the
Committee and in my letter of 19 November 2010 to you, the EURODAC
proposal is such a proposal. As I set out in this last letter,
in this case we also considered that this was a new proposal to
which the opt-in applied because the removal of the provisions
permitting law enforcement access reflected a significant change
in scope compared to the previous proposal. The ability of the
UK (and Ireland) to opt-in to this proposal is also expressly
reflected in the text of the Commission proposal. This is an evolving
area and the Government will keep its approach to the application
of the Protocol in these types of cases under review."
Conclusion
18.9 We thank the Minister for informing us of
the Government's decision to opt into the latest draft amending
Regulation. We take the Minister's latest letter as confirmation
that a "significant change in scope" is the principal
criterion for determining whether a fresh opt-in decision is required,
but that it may not be the only one. We note what the Minister
says about this being "an evolving area" and that the
Government intends to keep under review its approach to the application
of the opt-in Protocol. While we are content to clear the document
from scrutiny, we ask the Minister to inform us of any significant
developments in the present negotiation and of any evolution in
the Government's approach to future opt-in decisions in similar
cases, where the UK has opted into a Commission proposal which
is later withdrawn and replaced by a new proposal.
70 See the Minister's Explanatory Memorandum of 25
October 2010. Back
71
See Minister's letter of 19 November 2010. Back
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