Documents considered by the Committee on 19 January 2011 - 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 considerationMinister's letter of 11 January 2011
Previous Committee ReportHC 428-x (2010-11), chapter 10 (8 December 2010) and HC 428-vii (2010-11), chapter 6 (10 November 2010)
To be discussed in CouncilNo date set
Committee's assessmentLegally and politically important
Committee's decisionCleared

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 The UK opted into previous draft amending Regulations proposed in 2008 and 2009 but which were subsequently withdrawn.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."


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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