Select Committee on European Communities Tenth Report

Letter from Joyce Quin MP, Minister of State at the Home Office to Lord Tordoff, Chairman of the Select Committee on the European Communities

  Thank you for your letter of 2 April requesting further information about the draft Convention. From its content I assume it crossed with my letter of 31 March which outlined the position following the Justice and Home Affairs Council in March.

  As I explained in my letter of 31 March the Council commissioned a feasibility study to examine the legal and technical implications of a possible extension of the Eurodac Convention to cover illegal immigrants to enable the Council to make an informed decision on the question in May. I mentioned that any such extension would be most likely to be effected by way of a subsequent instrument.

  You suggested in your letter that the Committee would find it helpful to have a note setting out the background to and reasons for the propsoal that Eurodac should be extended and certain other information about the implications of any such amendment. I therefore attach a short note as requested. It sets out the key points for the Committee.

  In my letter of 18 March I had mentioned that the possibility had been raised that the Central Unit of the Eurodac system should be run by the Commission rather than by a Member State. You enquired about the implications of substituting the Commission for a headquarters Member State in terms of the obligations and liabilities which would thereby be transferred to the Commission.

  The Eurodac Working Group considered at its last meeting the drafting changes which would need to be made to the text if a decision were taken that the Central Unit should be run by the Commission rather than by a headquarters state. I attach the latest draft of the Convention which integrates the changes which would be likely to be required. As you will see for the most part the changes would appear to be minor consequential drafting amendments. However further consideration would need to be given to these before the draft Convention could be signed.

  In effect it is suggested that the Commission would take on the responsibilities that would otherwise have fallen to the headquarters Member State. It would, for example, be for the Commission to adopt measures to ensure that persons working in the Central Unit did not use the data recorded in the central unit in a way contrary to the purpose of Eurodac (Article 7). Where the Convention did not make particular provision otherwise the operation of the Central Unit would be governed by the national law of the Member State in which the Central Unit was located. This would be the laws of Belgium if the Central Unit were to be located there.

  The proposed revisions to Article 10, which deals with liability, are intended to make the European Community liable for any damage to persons or other Member States caused by persons working in the Central Unit in breach of their duties. This would replicate the situation which exists in respect of a number of other databases already run by the Commission. There would be certain practical advantages for individuals if any action had to be brought before the European Court of Justice rather than the national courts of one of the Member States. One example is the standardised procedures. These would allow lawyers anywhere in the EU to bring a case with confidence. Were the Central Unit to be run by a Member State any proceedings for damages would need to be pursued in the courts of the relevant Member State in accordance with the provisions of its national law.

  You also mention the position of other Member States in respect of the draft Convention. As you note I did not, in my earlier letter, go into any detail about whether States other than Austria and Germany had difficulties with the text. Instead I simply indicated that one or more Member States might not be in a position to signify political agreement in March for a range of reasons. One of the Member States I had in mind was Spain; similar issues to those raised in the other Third Pillar matters you mention arise in Eurodac. The issue is being addressed bilaterally.

  There have not been any signficant changes to the text of the draft Convention since the version I deposited with the Committee in January, apart from those of which the Committee has already been made aware. There have, of course, been some other amendments made as a result of ongoing discussions in the working group but which do not make any difference of substance. It may be helpful if I mention two such amendments which I understand have come to the attention of the Committee.

  The first is an amendment to Article 4(1). The version of the text which was submitted to the Committee in January contained a reference to Member States taking the fingerprints of asylum seekers in accordance with the European Convention for the Protection of Rights and Fundamental Freedoms. The reference has subsequently been removed. Instead there is a reference to the fact that the procedure for taking prints is to be determined in accordance with the national practice of Member States. A reference has also been added to the need to inform the applicant for asylum of the purpose of taking the prints. (This was already contained in Article 11(1)). The new text does not imply that Member States are not required to comply with the ECHR when taking prints. All Member States are signatories to the ECHR and are therefore bound to comply with its provisions regardless of the wording of Article 4(1). The reference to national practice which has been inserted is simply intended to recognise that Member States may, within the constraints of the ECHR, have procedures which quite reasonably differ in some respects. The central contention—that all Member States should take the fingerprints of all applicants for asylum—remains unchanged.

  The second change to the text is in respect of Article 16, which deals with preliminary rulings. The version of the text submitted to the Committee in January contained a wording which would have given a compulsory jurisdiction to the European Court of Justice. It was, however, made clear in the supplementary Explanatory Note I submitted with the text that such a jurisdiction was not acceptable to the United Kingdom; but that the United Kingdom would be prepared to accept optional preliminary rulings. The latest version of Article 16 would provide for such a jurisdiction. However while most Member States have indicated a willingness to accept such a formulation I would say that this is not an issue on which agreement has yet been reached.

  There have also been changes to Article 6b (where Article 6b(2) has been simplified); Article 10 (which has been reworked so that liabilities are clearer); Aritcle 11 (where the text has been strengthened); Article 13 (where the importance of the authority having access to specialists on fingerprint data has been explicitly recognised); and Article 18a (consequent to the change to Article 6b). I attach the latest version of the text which contains these minor changes for your information.[50]

  As Presidency, our aim will be to achieve political agreement on the draft Eurodac Convention at the JHA Council meeting on 28 and 29 May, although given the issues still outstanding there can be no guarantee that such agreement will be reached. In the circumstances I would be grateful if the Committee could give its clearance before the Council meeting. If there are any outstanding points of concern then I would, of course, be prepared to deal with them as a matter of urgency.

  If the Committee has not cleared the draft Convention before the Council meeting and political agreement does not prove to be obtainable I should explain, as I did in my letter of 18 March, that the United Kingdom delegation will not withhold its agreement on the basis of an outstanding scrutiny reserve. I will, of course, write to let you know the outcome as soon as possible after the Council.

  I am copying this letter to the Chairman of the European Legislation Committee in the House of Commons, the Chairman of the Home Affairs Select Committee in the Commons and to Doug Henderson.


  1.  The purpose of the Eurodac system, as set out in Article 1 of the draft Convention, is "to assist in determining the Member State which is responsible pursuant to the Dublin convention for examining an application for asylum lodged in a Member State." The requirement to take fingerprints is currently restricted to those making an application for asylum.

  2.  Since the Dublin Convention came into effect on 1 September 1997 there has been a general acknowledgement that the Convention has not been working as well as it could. It has been reognised that the most difficult criteria by which to establish responsibility for an asylum seeker under the Dublin Convention is illegal entry into the territories of the Member States (Article 6).

  3.  In the light of this recognition, and in the context of the particular difficulties experienced within the European Union with the influx of migrants from Iraq, some Member States suggersted that the draft Eurodac Convention ought to be extended to include the fingerprints of illegal immigrants (where these could be relevant to decision taking under the provisions of the Dublin Convention) if it was to be a useful tool for improving the effectiveness of the operation of Dublin. This is the background to the decision taken by the Justice and Home Affairs Council in March that a feasibility study should be undertaken.

  4.  Consideration is therefore being given to how Eurodac could be extended to provide additional support to the successful operation of the Dublin Convention; and if Ministers decided that it should, whether this should be done by amending the existing draft Eurodac Convention before it is signed or by means of a subsequent protocol.

  5.  If the scope of the draft Eurodac Convention were to be extended to include relevant illegal immigrants it would be necessary to reach an agreement on the category of persons whose fingerprints could properly be included on the system for the purposes of determining responsibility under the provisions of the Dublin Convention. Special provision would also need to be made for the deletion of data on illegals. These are potentially difficult areas. Other consequential amendments to the text of the Convention would appear, on a preliminary analysis of what would be required, to be comparatively straightforward.

  6.  In reaching a decision on whether to extend the scope of Eurodac the Council would need to take into account the provisions of Article 8 of the European Convention on Human Rights and Article 5 of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.

  7.  There is no practical reason why the central database could not include data on illegals. For the purposes of Article 6 of the Dublin convention the fingerprints of illegal immigrants would simply be added to the database; the data would become relevant only once the individual had subsequently claimed asylum. There would, however, be some increase to the costs.

  8.  Although the fingerprinting of at least some illegal immigrants is already normal practice within some Member States a number have indicated that they would require legislation in order to provide for the routine fingerprinting of illegal immigrants and the sharing of this data with other Member States.

50   A later draft of the Convention is printed in Appendix 3. Back

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