Documents considered by the Committee on 19 December 2017 Contents

8Managing EU migration and security databases

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested; drawn to the attention of the Home Affairs Committee and the Committee on Exiting the European Union

Document details

Proposal for a Regulation on the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

Legal base

Articles 74, 77(2)(a) and (b), 78(2)(e), 79(2)(c), 82(1)(d), 85(1), 87(2)(a) and 88(2) TFEU, ordinary legislative procedure, QMV

Department

Home Office

Document Number

(38878), 10820/17, COM(17) 352

Summary and Committee’s conclusions

8.1A new EU Agency—“eu-LISA”—was established in 2012 to oversee the operational management of three EU information systems dealing with asylum, border management and law enforcement. The Regulation setting up eu-LISA provides that the Agency may be made responsible for the preparation, development and operational management of other large-scale EU information systems in the justice and home affairs field. Several new EU information systems are planned (see the Background section of this chapter for further details). Each envisages an important role for eu-LISA in ensuring overall operational management. The proposed Regulation would give eu-LISA responsibility for managing these new EU information systems. It would also repeal and replace the 2011 Regulation establishing eu-LISA, make some technical changes to implement the findings of a recent external evaluation, and empower the Agency to take the actions needed to make EU information systems for security, border and migration management fully interoperable by 2020 (this latter task being dependent on the adoption of a further legislative instrument).

8.2UK participation in eu-LISA is legally complex, bringing into play the UK’s Title V (justice and home affairs) opt-in and Schengen opt-out Protocols. This is because the proposed Regulation will give eu-LISA responsibility for an array of new EU information systems. Some build on parts of the Schengen rule book on border control and visa policy which do not apply to the UK and are not open to UK participation. Others are subject to the UK’s Title V (justice and home affairs) opt-in or Schengen opt-out, meaning that the UK is able to decide whether or not to participate.

8.3In his Explanatory Memorandum on the proposed Regulation, the Security Minister (Mr Nick Hurd) set out the steps that the Government would need to take if it were to decide that the UK should participate in the proposal (see the Background section). He indicated that the Government considers eu-LISA to be an effective Agency and supports most of the changes proposed by the Commission.

8.4We noted that effective operational management of the EU’s main asylum, border management and security information systems was particularly important in the context of the UK’s decision to leave the EU since many of the systems will mainly contain data on third country (non-EU) nationals. A high level of data quality and accuracy was therefore in the UK’s interests while it remains a member of the EU and when it leaves, given the potential impact on British citizens. We requested further information on the factors influencing the Government’s opt-in and opt-out decisions and the prospects for securing some form of continued UK participation in eu-LISA, and the information systems it manages, post-exit.

8.5In his letters dated 31 October and 1 December, the Minister confirms that the Government has decided to participate in the proposed Regulation for reasons set out in a Written Ministerial Statement issued by the Home Secretary (Amber Rudd):

“The Government believe it is in the national interest to continue participating in eu-LISA, as this will maximise our influence over how it operates the IT systems that we take part in and for which it is responsible. We have therefore decided to opt in to the draft eu-LISA Regulation to the extent that it is not Schengen-building and not to opt out to the extent that it builds on the policing and judicial co-operation aspects of Schengen.”98

8.6The Minister accepts that full participation in eu-LISA will also depend on the Council adopting (by unanimity) a further Council Decision based on Article 4 of the Schengen Protocol. He recognises that “our impending departure from the EU is likely to make these discussions more difficult”. He notes that Article 38 of the Commission proposal would limit participation in eu-LISA to non-EU Schengen countries (Iceland, Norway, Switzerland and Liechtenstein). Whilst the Government would have preferred Article 38 to provide for participation by any third countries taking part in some or all of the systems that eu-LISA manages, the Minister notes:

“A third country agreement concluded by the EU may provide for an EU measure, or provisions within such a measure, to apply to that third country, with or without modifications or adaptations, even where the EU measure being applied does not itself expressly provide for participation by non-Member States.”

He continues:

“As such, ultimately the scope of a third country’s participation in eu-LISA will be determined by the agreement that provides for that participation, and not by the eu-LISA Regulation itself. As the Committee will be aware, we have proposed a treaty with the EU on security, law enforcement and criminal justice.”

8.7The Minister provides an update on negotiations in Council which have proceeded swiftly. He expects the Estonian Presidency to seek agreement to a general approach at the Justice and Home Affairs Council on 7/8 December and adds:

“Although there are some negotiating objectives that we have not achieved in full, the Government considers the text being submitted for General Approach to be broadly acceptable. However, as the text has not cleared Parliamentary Scrutiny in either House we will abstain in the vote on it. We expect all other Member States to support the text.”

8.8We are grateful to the Minister for clarifying the mechanism that would enable the UK to participate in the proposed eu-LISA Regulation and other EU police and criminal justice measures post-exit, even when the measures themselves appear either to preclude or restrict third country participation. We note that the example he gives—an agreement with Iceland and Norway providing for their participation in the Eurodac Regulation (and related EU asylum measures)—achieves this outcome by including these countries in the definition of “Member States” in the relevant EU legislation. The agreement also establishes a mechanism to keep pace with changes to relevant EU laws and to ensure “as uniform an application and interpretation as possible” of these laws.99

8.9The Minister tells us that the Government is seeking to negotiate a treaty with the EU on security, law enforcement and criminal justice. We ask him to confirm that the Government intends eu-LISA to be amongst the measures included in this treaty and to indicate which EU information systems managed by eu-LISA should also be included.

8.10We note that the Government “intends to keep under review the question of whether to seek a Council Decision to secure the full application of the measure to the UK”. We ask the Minister whether this means that, in the absence of a Council Decision, the UK would still be able to participate in eu-LISA, but to a more limited extent. Does he consider that partial participation in a Regulation is legally possible, bearing in mind the Court of Justice’s reluctance to accept partial participation of the UK (and Denmark) in a measure (in that case EU participation in the Chicago Convention)?100

8.11The general approach agreed by the Council introduces a new provision—Article 38a—which would enable eu-LISA to establish “cooperative relations” and “working arrangements” with relevant authorities in third countries if authorised to do so by a Union act. We ask the Minister to explain what sort of cooperation is envisaged and how useful it would be for the UK post-exit, particularly if the UK is unable to secure a treaty with the EU on security, law enforcement and criminal justice cooperation.

8.12We are disappointed that the Minister was unable to inform us sooner of the Presidency’s intention to seek a general approach at the Justice and Home Affairs Council on 7/8 December. We remind him that effective scrutiny depends on the Government providing information in sufficient time for us to consider it before, not after, decisions are taken within the Council.

8.13We ask the Minster to provide progress reports on the negotiations and to inform us of any developments in relation to the Council Decision required under Article 4 of the Schengen Protocol. Meanwhile, the proposed Regulation remains under scrutiny. We draw this chapter to the attention of the Home Affairs Committee and the Committee on Exiting the European Union.

Full details of the documents

Proposed Regulation on the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, and amending Regulation (EC) 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) 1077/2011: (38878), 10820/17, COM(17) 352.

Background

8.14The proposed Regulation covers an array of existing or planned EU information systems. Some build on parts of the Schengen rule book on border control and visa policy which do not apply to the UK and are not open to UK participation. Others are subject to the UK’s Title V (justice and home affairs) opt-in or Schengen opt-out, meaning that the UK can decide whether to participate.

8.15As the following table shows, the UK is not entitled to participate in the Visa Information System (VIS), the border control elements of the Schengen information System (SIS II), the EU Entry/Exit System (EES) and the European Travel Information and Authorisation System (ETIAS). The UK currently participates in the Dublin Regulation, Eurodac database, the European Criminal Records Information System (ECRIS) and the police cooperation aspects of SIS II. The Government has opted into new proposals to expand the Eurodac database but does not intend to take part in the new redistribution mechanism which is a key element of the Commission’s Dublin reform proposals. The Government has decided to participate in the Commission’s proposed reform of SIS II in so far as it concerns police cooperation. The Government has opted into a recent proposal to establish a centralised EU information system—ECRIS-TCN—containing criminal records information on third country national offenders within the EU.

Existing information systems managed by eu-LISA

Schengen or non-Schengen

UK position

Visa Information System—VIS

Schengen

UK excluded

Schengen Information System—SIS II (border control component)

Schengen

UK excluded

Schengen Information System—SIS II (police cooperation)

Schengen

UK participates in existing SIS II and is also participating in the Commission’s proposal to strengthen the law enforcement component of SIS II

Eurodac

Non-Schengen

UK participates in the existing Eurodac database. The UK has opted into the Commission’s proposal to expand its scope

New information systems to be managed by eu-LISA

Schengen or non-Schengen

UK position

EU Entry/Exit System—EES

Schengen

UK excluded

European Travel Information and Authorisation System—ETIAS

Schengen

UK excluded

Dublin Regulation

Non-Schengen

UK participates in the current (Dublin III) Regulation. The UK has not opted into the proposed Dublin IV Regulation containing a new automated redistribution mechanism for asylum seekers

European Criminal Records Information System—extension to third country nationals (ECRIS-TCN)

Non-Schengen

UK participates in ECRIS and has opted into a supplementary proposal extending ECRIS to third country national offenders

8.16To participate in the proposed eu-LISA Regulation, the Government would need to:

The Minister’s letters of 31 October and 1 December 2017

8.17In his first letter, the Minister informs us of the Government’s decision to “opt into the new eu-LISA Regulation to the extent that it is not Schengen building, and not to opt out to the extent that it builds on those parts of the Schengen system in which the UK takes part”. He says that the Presidency was notified on 23 October and adds:

“The Government believes it is in the national interest to continue participating in eu-LISA while we are EU members and thus are bound by the legislation governing some of the IT systems it either manages or is likely to be commissioned to build.”

8.18In his second letter, the Minister addresses the questions raised in our earlier Report agreed on 13 November. First, we noted that the proposed Regulation would give eu-LISA responsibility for the operational management of a new automated system for registering and monitoring asylum applicants and reallocating responsibility in the proposed Dublin IV Regulation. We asked whether the Government’s decision not to participate in the proposed Dublin IV Regulation would have any legal or policy implications for its opt-in decision in relation to the proposed eu-LISA Regulation. The Minister says not:

“Of course, eu-LISA already manages systems that the UK does not take part in, and will have responsibility for more of those systems if the draft Regulation is agreed. The concept of our being in eu-LISA without participating in all the systems it manages is well-established.”

8.19We questioned whether it would be legally or practically feasible for the UK to opt out of those parts of the proposed Regulation concerning the police cooperation aspects of SIS II, given that the Government has decided to participate in the Commission’s recent proposal to strengthen the SIS II police cooperation Regulation. The Minister notes that this question no longer arises, in light of the Government’s decision to participate in both Regulations.

8.20The opt-in and opt-out decisions taken by the Government are not in themselves sufficient to secure UK participation in the proposed Regulation—a further Council Decision adopted by the EU26 (EU Schengen States, so excluding the UK and Ireland) will also be needed. We asked whether this was a realistic prospect, given the UK’s decision to leave the EU in March 2019 and the possibility that negotiations may not be concluded in time. We also asked the Minister whether the Council Decision would need to be adopted before the Regulation. He responds:

“The Government intends to keep under review the question of whether to seek a Council Decision to secure the full application of the measure to the UK. We will seek a Decision if it appears we would benefit from the legal certainty that it would give to our full participation in the Agency while we are still Members. Of course our impending departure from the EU is likely to make these discussions more difficult. We do not consider that the Council Decision would need to be adopted before the Regulation was.”

8.21We asked the Minister whether he expected the UK’s Withdrawal Agreement to include arrangements for UK participation in, or access to, any of the information systems managed by eu-LISA, or whether would this be a matter for a future relations agreement between the EU and the UK or a separate “strategic agreement” establishing a framework for future security, law enforcement and criminal justice cooperation with the EU.101 We asked how soon negotiations on these matters would begin and when we could expect the Government to provide further details of its negotiating objectives. The Minister says only:

“The details of our future cooperation in relation to justice and home affairs measures will be agreed in negotiations. We will seek to ensure that any provisions in the withdrawal agreement and the overarching security cooperation treaty we aim to agree with the EU help operate the new relationship.”

8.22We noted that, under Article 38 of the proposed Regulation, only non-EU Schengen Stats can participate in eu-LISA. We asked the Minister to explain:

8.23The Minister explains that Article 38 “currently provides that participation in the Agency will be open to third countries that have entered into agreements with the EU associating them with the Schengen acquis and with Dublin and Eurodac-related measures, and specifies that those agreements shall make arrangements for the detailed rules governing the participation of those countries, including their voting rights”. The Council has introduced an additional provision—Article 38a—which would also allow eu-LISA to “establish and maintain cooperative relationships” with other (non-Schengen) third countries, “to the extent related to the fulfilment of its tasks”.

8.24The Minister continues:

“The Government would have preferred Article 38 to provide for participation by third countries that take part in any of the systems that eu-LISA manages, as that would have made it clearer that a third country does not have to take part in the whole Schengen acquis, plus Dublin and Eurodac, in order to participate in eu-LISA.

“However, we note that a third country agreement concluded by the EU may provide for an EU measure, or provisions within such a measure, to apply to that third country, with or without modifications or adaptations, even where the EU measure being applied does not itself expressly provide for participation by non-Member States. For example, the 2013 Eurodac Regulation does not on its face provide for or permit direct access by a third country to the Eurodac system. Nevertheless, Norway applies that Regulation and has access to the system it governs, under that country’s agreement with the EU of 19 January 2001 [OJ L 093 , 03/04/2001 P. 40—47]. As such, ultimately the scope of a third country’s participation in eu-LISA will be determined by the agreement that provides for that participation, and not by the eu-LISA Regulation itself. As the Committee will be aware, we have proposed a treaty with the EU on security, law enforcement and criminal justice.”

8.25The Minister says that negotiations have made rapid progress. He expects the Estonian Presidency to seek agreement to a general approach at the Justice and Home Affairs Council on 7/8 December. Although the Government does not yet have the final text to be agreed, he sets out the main issues on which it is likely to diverge from the Commission’s original proposal:

8.26Commenting on these changes, the Minister acknowledges that “there are some negotiating objectives that we have not achieved in full” but describes the overall general approach text as “broadly acceptable”. He notes that the proposed Regulation remains under scrutiny and says that the Government will abstain in the event of a vote. He expects all other Member States to support the general approach and adds:

“Once the General Approach has been agreed, we expect negotiations between the Council and European Parliament to begin quickly. There is a good chance of Political Agreement being reached on the text in the first half of next year, under the Bulgarian Presidency.”

Previous Committee Reports

First Report HC 301–i (2017–19), chapter 26 (1 November 2017).


98 See the Written Ministerial Statement issued on 2 November 2017, Hansard 32WS.

99 See the Agreement with Iceland and Norway on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway, OJ L 93, p.40, 03.04.2001.

100 Opinion 1/15 26 July 2017.

101 See the Government’s future partnership paper, Security, law enforcement and criminal justice published in September.




22 December 2017