21 Agency for the management of JHA databases
| (a)
(30737)
11722/09
COM(09) 293
(b)
(30738
11726/09
COM(09) 294
(c)
(31456)
8151/10
COM(10) 93
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Draft Regulation to establish an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice
Draft Council Decision to confer on the Agency established by Regulation XX tasks regarding the operational management of SIS II and VIS in application of Title VI of the EU Treaty
Draft Regulation on establishing an Agency for the operational management of large-scale IT systems in the area of security, freedom and justice
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| Legal base | (a)Articles 62(2)(a), 62(2)(b)(ii), 63(3)(b) and 66 EC; co-decision; QMV
(b) Articles 30(1)(a) and (b) and 34(2)(c) EU; consultation; unanimity;
(c)Articles 77(2)(a) and (b), 78(2)(e), 79(2)(c), 74, 82(1)(d) and 87(2)(a) TFEU; co-decision; QMV
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| Document originated | (a) and (b) 24 June 2009; (c) 19 March 2010
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| Deposited in Parliament | (a) and (b) 3 July 2009; (c) 1 April 2010
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| Department | Home Office
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| Basis of consideration | (a) and (b) Minister's letter of 18 November 2009;
(c) EM of 25 May 2010 and Minister's letter of 21 July 2010
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| Previous Committee Report | (a) and (b) HC 19-xxv (2008-09), chapter 7 (21 July 2009) and HC 19-xxix (2008-09), chapter 5 (28 October 2009:
(c) None
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| To be discussed in Council | October 2010
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| Committee's assessment | Legally important
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| Committee's decision | (a) and (b) cleared;
(c) Not cleared; further information requested
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Background
21.1 The EU has or is developing three large Justice and Home
Affairs (JHA) databases:
- EURODAC, which stores asylum seekers' fingerprints
and is used to help Member States decide which of them is responsible
for deciding an asylum application; the UK participates fully
in Eurodac;
- SIS II, which
will contain information about, for example, people wanted for
arrest and extradition and third country nationals to be denied
entry to Schengen states. Its purpose is to help the participating
states enforce the provisions of the Schengen acquis on
the free movement of people and on police and judicial cooperation
in criminal matters; the UK will participate in those parts of
SIS II related to police and judicial cooperation but not in those
related to visas, asylum and immigration; and
- VIS (the Visa
Information System), which will store records of all Schengen
visa applications together with the applicants' photographs and
fingerprints. VIS will make it easier for Member States to exchange
visa information so as, for example, to detect visa fraud. VIS
may be consulted by immigration authorities and (with the exception
of the UK and Ireland) by Member States' law enforcement authorities
and Europol for the purposes of the prevention and detection of
terrorist and other serious offences; the UK will take no part
in VIS..
The Commission manages EURODAC and is responsible
for developing SIS II and VIS.
Previous scrutiny of documents (a) and (b)
21.2 In June 2009, the Commission proposed documents
(a) and (b). They are the drafts of a Regulation and a Decision
to create an Agency to manage EURODAC, SIS II, VIS and other large
JHA IT systems, if developed. At that time, a Regulation was needed
because the EC Treaty provided the legal basis for EURODAC and
the parts of SIS II and VIS which relate to visas, asylum and
immigration; and a Decision was needed because the EU Treaty provided
the legal base for the aspects of SIS II and VIS which relate
to police and judicial cooperation in criminal matters.
21.3 When the previous Committee considered the documents
in July 2009,[80] it
noted that, insofar as it related to SIS II and VIS, the draft
Regulation built on provisions of the Schengen acquis in
which the UK does not take part. To that extent, the UK could
not take part in the Regulation.
21.4 The previous Committee also noted that the UK:
- could not take part in the
Decision to the extent that it applied to VIS; but
- would be bound by the Decision to the extent
that it related to SIS II for the purposes of police and judicial
cooperation in criminal matters.
21.5 The proposed Agency to manage the databases
would be an EU body with its own legal personality and budget.
The Management Board would comprise one representative of each
Member State and two representatives of the Commission. Europol
and Eurojust would have observer status at the Board when matters
relevant to their functions were discussed. The Agency would be
established in 2011 and take over the management of the databases
in 2012. It would employ 120 staff.
21.6 In his Explanatory Memorandum of 14 July 2009,
the then Minister of State at the Home Office (Mr Phil Woolas)
told the previous Committee that there appeared to be some merit
in having one Agency to run the databases. But the Government
was still examining the details of the proposals and had not yet
decided whether to opt into the Regulation.
21.7 In September 2009, the Government decided to
opt into the Regulation. The opt-in was partial. It applied only
to those IT systems in which the UK was already participating
and all future systems in which it wished to participate.[81]
21.8 In her letter of 18 November 2009, the then
Parliamentary Under-Secretary of State at the Home Office (Meg
Hillier) told our predecessors that the Government had taken legal
advice before opting into the draft Regulation and had been advised
that a partial opt-in was possible. This was also the view of
the Commission. But the Commission had not provided written confirmation
of its view and the opinion of the Presidency on the question
was not yet known. Our predecessors asked the Minister to tell
them the response of the Presidency and the Commission to the
Government's formal letter notifying its opt-in decision.
Document (c)
21.9 Document (c) is a draft Regulation to establish
an Agency for the operational management of JHA databases. It
conflates documents (a) and (b) and supersedes them. The new proposal
is necessary because the Council and the European Parliament had
not completed their consideration of documents (a) and (b) by
1 December 2009. That was the day when the Treaty of Lisbon came
into effect. As a consequence, the EC Treaty and the EU Treaty
could no longer be used to provide the legal bases for the legislation
to establish the Agency. The legal base for the proposed legislation
is now provided by the Treaty on the Functioning of the European
Union (TFEU).
21.10 Except for the different legal bases and some
minor drafting differences, the provisions of document (c) are
the same as those of documents (a) and (b) taken together.
The Government's view on document (c)
21.11 In his Explanatory Memorandum of 25 May, the
Parliamentary Under-Secretary of State at the Home Office (James
Brokenshire) said that the Government regards document (c) as
an amended version of the original draft Regulation (document
(a)) because the original draft has been amended to incorporate
the provisions of document (b), the draft Decision. It is the
Government's view, therefore, that the UK remains bound by its
decision in September 2009 to opt into document (a).
21.12 The Government's primary negotiating aim will
be to ensure that the UK has voting rights on the Agency's Management
Board which mirror the UK's participation in the IT systems to
be managed by the Agency.
21.13 The Minister also said that the Government
is considering whether Article 82(1)(d) TFEU (one of the Articles
cited as the legal base for the draft Regulation) is appropriate.
The Government intends to raise the matter with the Commission.
The Minister's letter of 21 July 2010
21.14 On 21July, the Minister wrote to us to confirm
that the Government has decided to participate fully in the proposal
to create the IT Agency and to explain how it will achieve this.
The text of his letter is as follows:
"I am writing to update you on developments
in relation to the above proposal, confirming that the Government
has decided to participate fully and I will explain in this letter
how we will achieve this.
"I think it would first be helpful to set out
the background to this decision. The original proposals (for a
Regulation and a Council Decision) were published on 3 July 2009.
On 23 September 2009, the UK's Permanent Representative to the
European Union wrote to Carl Bildt, President of the Council of
the European Union, informing him of the UK's intention to take
part in the adoption and application of the proposed Regulation.
However, before negotiations on the Regulation and Council Decision
could be concluded, the Lisbon Treaty entered into force, making
the Council Decision obsolete. An amended version of the Regulation
was consequently presented on 22 March 2010.
"Both the original proposals for a Regulation
and a Council Decision in 2009, and the amended proposal for a
Regulation in 2010, raised complex legal and practical issues
as a result of the variable degree of the UK's participation in
the IT systems to be managed by the IT Agency. As a result, and
following presentation of the amended proposal, UK officials met
with Council officials to discuss the issue of the UK's participation.
The outcome of these discussions was an agreement that:
- The UK remained bound by its
opt-in to the earlier proposal for a Regulation in respect of
EURODAC and any future systems the UK chooses to participate in;
- The UK was bound by the elements of the proposal
relating to the police and judicial cooperation aspects of the
second generation of the Schengen Information System ("the
SIS II"), but, under Article 5(2) of the Schengen Protocol,
had the right to opt out of these if it decided to do so and conveyed
this by 21 June 2010;
- The UK was not able to participate in the elements
of the proposal relating to the Visa Information System ("the
VIS") and the parts of the SIS II which build upon the part
of the Schengen acquis in which the UK does not participate (i.e.
the non-police and judicial cooperation part), as per recital
25 of the original proposed Regulation (Com (2009) 293).
"To overcome the legal and practical complexities,
it was suggested creating a Council Decision based on Article
4 of the Schengen Protocol. Article 4 provides that the UK (and
Ireland) may at any time request to take part in some or all of
the provisions of the Schengen Acquis. The proposed Council Decision
would treat the IT Agency Regulation as already part of the Schengen
Acquis and provide that the UK was taking part in it. Whilst this
would represent a nominal extension of our involvement in Schengen
— in that we would participate in the IT Agency and its
functioning — it would not mean that we were participating
in other aspects of the Schengen Acquis in which we do not wish
to participate (e.g. on visas or on external border controls).
This mechanism achieves the outcome we want and allows flexibility
in the use of the Schengen and Title V opt-ins which is in the
UK interest.
"In order to implement this solution, the Council
Decision would need to be agreed by the Council in a unanimous
decision. The upcoming Belgian Presidency indicated that it supports
this approach and Member States in the Council are not expected
to oppose it.
"The Government has decided that it would be
in the UK's best interests to seek to participate on these terms
to ensure the UK is a full participant in the IT Agency and its
activities. The reasons for this are the same as those for which
the UK decided to opt in to the original proposal: by doing so
we would be protecting the UK's position vis-à-vis the
European IT systems we participate in currently and in the future;
and we would also be supporting more effective management of European
IT systems.
"We have also indicated to the Belgian Presidency
and the Commission that we wish to pursue the solution set out
above to create a Council Decision allowing the UK to participate,
for the purposes of this proposal, in the non-police and judicial
cooperation aspects of the Schengen acquis. The UK's Permanent
Representative to the EU will be writing to the President of the
Council of the European Union to this effect. It will be deposited
for scrutiny as soon as it is published and we anticipate that
it will be presented for adoption in parallel with adoption of
the Regulation, which is scheduled to be considered by the October
JHA Council. The Presidency has indicated that it wishes to secure
a Council common position on the text of the Regulation in October."
Conclusion
21.15 Article 82(1)(d) TFEU requires the Council
and the European Parliament to adopt measures to facilitate cooperation
between Member States' judicial or equivalent authorities in relation
to proceedings in criminal matters and the enforcement of decisions.
We agree with the Minister that the Article does not appear to
be an appropriate legal base for the proposed Regulation. We should
be grateful if he would tell us what reply the Government receives
when it puts the point to the Commission.
21.16 We should also be grateful for the Minister's
views on the following questions:
- Does the September 2009
opt-in decision apply to document (c)?
In his letter of 21 July, the Minister says that
the UK remains bound by its decision in September 2009 to opt
in to document (a). This was the view of Council officials as
well as the opinion of UK officials. We find the view surprising
because document (c) not only has a different legal base from
document (a) but also has a wider scope, incorporating the substantive
provisions of document (b). We ask the Minister to tell us the
reasons why the Government considers that the September opt-in
applies to document (c) and why a new opt-in is not needed to
reflect the substantive changes to the original proposal.
The Minister also says that UK and Council officials
agreed that the UK was bound by the elements of the proposal relating
to the police and judicial co-operation aspects of the second
generation of the Schengen Information System ("the SIS II")
but, under Article 5(2) of the Schengen Protocol, had the right
to opt out of these if it decided to do so and conveyed this by
21 June 2010. Article 5(2) of that Protocol enables the UK to
opt out of proposals or initiatives which build on parts of the
Schengen acquis in which the UK already participates.
We should be grateful if the Minister would explain the apparent
conflict between his statement that the UK remains bound by the
Government's original opt-in to document (a) but that document
(c) triggers the opt-out under Article 5(2) of the Schengen Protocol.
- What should the legal
base be for the proposed Council Decision?
The fourth paragraph of the Minister's letter
appears to say that the proposed Decision, which would treat the
IT Agency Regulation as already part of the existing Schengen
acquis, would be based on Article 4 of the Schengen
Protocol. Article 4 entitles the UK at any time to make a request
to take part in all or some of the provisions of the Schengen
acquis and provides for the Council to decide on the request
by unanimity, comprising in this particular case all the Member
States listed in Article 1 of the Schengen Protocol (all EU Member
States bar the UK and Ireland) and the UK. Article 4 does not
appear to provide a legal base for a Council Decision to add to
the Schengen acquis. We should be grateful for the Minister's
views on what would provide an appropriate legal base for the
proposed Council Decision.
We also ask the Minister to explain how the Eurodac
database, which has not hitherto been considered to be a Schengen
or Schengen-building measure, can by virtue of the Council Decision
be deemed to form part of the Schengen acquis.
- Would this represent
only a "nominal extension"?
The fourth paragraph of the Minister's letter
also says that the proposed Council Decision would represent a
nominal extension of the UK's involvement in the Schengen acquis.
We find this surprising. Would not the extension be actual, having
legal effect, and not merely nominal?
21.17 Pending the Minister's replies to our questions,
we shall keep document (c) under scrutiny. We clear documents
(a) and (b) because they have been superseded by document (c).
80 See HC 19-xxv (2008-09), chapter 7 (21 July 2009). Back
81
See HC 19-xxix (2008-09), chapter 5 (28 October 2009). Back
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