European Scrutiny Committee Contents




COM(12) 254

Draft Regulation of the European Parliament and of the Council on the establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EU) No [.../...] (establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person) and to request comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (Recast version)

Legal baseArticles 78(2)(e), 87(2)(a) and 88(2)(a) TFEU; QMV; co-decision
DepartmentHome Office
Basis of considerationMinister's letter of 12 December 2012
Previous Committee ReportsHC 86-xi (2012-13), chapter 12 (5 September 2012);

HC 86-vii (2012-13), chapter 3 (4 July 2012)

Discussion in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionClear

Background and previous scrutiny

16.1 Our earlier Reports describe the background to, and content of, the draft Regulation, which is the Commission's fourth attempt to amend the EURODAC system. The EURODAC database contains the fingerprints of third country nationals or stateless people aged at least 14 years old who have applied for asylum, entered illegally, or been found illegally present within an EU Member State. It has been operational since 2003 and is generally regarded as an essential part of the Dublin system for determining which Member State is responsible for examining a claim for asylum.

16.2 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 may be compared with fingerprint 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. The UK participates fully in EURODAC and the wider Dublin system of which it forms part.

16.3 Many of the changes proposed to the EURODAC are uncontroversial. They would, for example, extend the scope of EURODAC to cover claims for subsidiary protection as well as asylum, introduce a 72-hour time limit for the transmission of fingerprint data, and include additional safeguards to ensure the safety and accuracy of data. Far more contentious is the proposal to include new provisions to enable designated national law enforcement authorities and Europol to seek access to EURODAC in order to compare fingerprint data for the purpose of preventing, detecting or investigating a terrorist or other serious criminal offence. We thought that this was symptomatic of a broader trend to allow law enforcement access to EU databases which were not originally designed for that purpose and questioned whether the Commission had adduced sufficient evidence to justify such a significant extension of the purpose of the EURODAC database.

16.4 The draft Regulation is subject to the UK's Title V opt-in and we recommended a debate on the Government's opt-in decision which took place in European Committee B on 10 September 2012. The Minister for Immigration (Mr Mark Harper) wrote to inform us on 18 October that the Government had decided to opt into the draft Regulation,

"in order to secure continued access to EURODAC for immigration purposes, as it plays an important role in combating abuse of the UK's asylum system."

16.5 He indicated that a majority of Member States supported the inclusion of provisions on law enforcement access to EURODAC data, and added:

"We do not object in principle to law enforcement agencies having access to EURODAC, so long as access takes place only when checks on criminal databases have been unsuccessful.


"We are conscious of the concerns about criminalising asylum seekers, as is the European Parliament and as was the Commission, which has twice introduced proposals without law enforcement access. However, we believe that the current compromise is acceptable as it only allows law enforcement access after a criminal check has been made. This is likely to make it possible to reach an agreement with the European Parliament."

16.6 The Minister also informed us that a provision allowing Europol to access EURODAC data for the purpose of "an analysis of a general nature and of a strategic type" had been excised from the latest text. As, however, Europol would still be able to request access for the purpose of "a specific analysis", we asked him to clarify what types of analyses are envisaged and the precise circumstances which would justify a request for access.[52]

The Minister's letter of 12 December 2012

16.7 The Minister (James Brokenshire) tells us that negotiations are moving at a fast pace and that he expects an agreement to be reached on the draft Regulation early in 2013.

16.8 Turning first to the basis on which Europol may access EURODAC data, the Minister explains:

"[T]he Regulation would allow Europol to compare fingerprint data with EURODAC where this is necessary in a specific case. Systematic comparisons would not be allowed, as they would not be for Member States. In addition, it is envisaged that all of the following conditions would need to be met before Europol could have access:

"a. The offence being investigated falls within Europol's mandate;

"b. Comparison of the fingerprint data with the data stored in Europol's own information processing systems does not identify the person in question;

"c. The comparison is needed 'to support and strengthen action by Member States in preventing, detecting and investigating terrorist offences or other serious criminal offences falling under Europol's mandate'; and

"d. There are 'reasonable grounds' to consider that such comparison with EURODAC data will contribute to the prevention, detection or investigation of any of the criminal offences in question."

16.9 The Minister continues:

"The Government believes that access to EURODAC, subject to these conditions, could provide Europol with a useful additional tool to support Member States' investigations. One of Europol's key functions is to analyse criminal intelligence data provided by different Member States' law enforcement agencies to identify potential cross matches. Not all of this information can be transmitted freely to all Member States, as the Member State providing it will have stipulated how it should be handled and which partners may have access to it.

"This means that Europol will sometimes have a broader picture of a particular investigation than individual Member States. That picture may lead it to conclude that a comparison with EURODAC is needed to identify a suspect or victim of an offence when this will not be apparent to Member States. Europol has advised that this could be particularly useful in dealing with offences such as human trafficking, as traffickers sometimes instruct their victims to claim asylum in order to get them into the EU. Knowing when and how a trafficking ring's victims entered the EU could provide important information about how the organisation works, and enable Europol to provide information to Member States that contributes to its disruption."

16.10 The Minister acknowledges our broader concern about law enforcement access to EURODAC data, but adds:

"The Government considers that the need to conduct a check under the Prüm provisions first is a sensible safeguard and that, where there is no match, a subsequent check of EURODAC is proportionate where a serious offence is being investigated. We accept this means that the UK could not conduct such checks at the current time, as we have not implemented the Prüm provisions, and we would continue not to be able to do so if we were to choose to leave the Prüm provisions as part of the 2014 decision. We are, however, satisfied that our law enforcement agencies could make equivalent checks through alternative policing channels and therefore being unable to make EURODAC checks would have no significant operational impact."

16.11 Finally, the Minister describes the factors which influenced the Government's decision to opt into the draft Regulation. They are,

"the considerable benefits to the UK asylum system of being within the measure, the neutral effect to the UK of not currently being able to make law enforcement checks and the fact that other Member States were likely to oppose any attempt to remove these provisions during negotiations. On balance, our view was, and remains, that the benefits of being within the new EURODAC measure far outweighed any concerns and disadvantages relating to law enforcement access."


16.12 We thank the Minister for his letter and welcome the efforts made to strengthen the provisions on Europol access to EURODAC data by aligning them more closely with those applicable to national law enforcement authorities. Nevertheless, as our earlier Reports have made clear, we do not accept that there is a compelling case for extending access to EURODAC data for law enforcement purposes. Indeed, the fact that the Minister anticipates that there will be no significant operational impact for UK law enforcement authorities if they are unable to satisfy the conditions for requesting access to EURODAC data tends to reinforce our view. We are therefore disappointed that the Government appears to be unwilling to take a more robust stance on this issue. As, however, negotiations are expected to conclude shortly and there is broad support amongst Member States for the inclusion of provisions on law enforcement access, we agree to release the draft Regulation from scrutiny.

52   See the letter of 24 October 2012 from the Chairman of the European Scrutiny Committee to the Minister for Immigration. Back

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Prepared 2 January 2013