25. "EURODAC": PROPOSAL
FOR A COUNCIL REGULATION ESTABLISHING EURODAC AS A COMMUNITY INSTRUMENT
(9988/99)
Letter from Lord Tordoff, Chairman of
the Committee, to the Rt Hon Jack Straw MP, Secretary of State
for the Home Department, Home Office
Thank you for your response to the Committee's
Report Fingerprinting Illegal Immigrants: Extending the Eurodac
Convention. The Committee has noted your intention to participate
in the adoption of the Commission's proposed Regulation establishing
Eurodac as a Community instrument.
Sub-Committee E considered the draft Regulation
at its meeting on 20 October. There are a number of points on
which it would welcome clarification, particularly as these have
not been addressed fully in your Explanatory Memorandum. The first
concerns the proposed legal base. You refer to the Eurodac Regulation
as a flanking measure. Article 61(a) of the EC Treaty requires
such measures to be "directly related" to the free movement
of persons and to be in accordance with the relevant Treaty provision,
in this case Article 63(1)(a). Article 63(1)(a) requires the Council
to adopt "criteria and mechanisms for determining which Member
State is responsible for considering an application for asylum
submitted by a national of a third country in one of the Member
States." This provision would seem to allow for the adoption
of a measure to give effect, within a Community framework, to
the objectives of the Dublin Convention. It is less clear, however,
whether it extends to measures designed to facilitate the application
of that Convention, particularly in the absence of any Community
measure to implement the Dublin obligations. The Sub-Committee
would be grateful for a fuller explanation of your reasons for
believing that Article 63(1)(a) is an appropriate legal base.
The Sub-Committee noted that your Explanatory
Memorandum does not include an assessment of the compatibility
of the draft Regulation with the requirements of Article 5 of
the EC Treaty and the Protocol on the application of the principles
of subsidiarity and proportionality. It would welcome your views,
particularly in the light of the concern expressed in the Committee's
Report that the extension of Eurodac to certain categories of
illegal entrant would seem to encompass an unquantified number
of immigrants who do not claim asylum or who have valid documents
proving who they are and where they have come from.
As regards the choice of legal instrument, the
Sub-Committee considered that the use of a directly applicable
Regulation could only be justified if the provisions specifying
whether and when fingerprints must or may be taken from illegal
entrants were clear and precise. The substance of a minutes statement
clarifying the circumstances in which the fingerprints of third
country nationals found illegally present within a Member State
may be sent to Eurodac has been incorporated into Article 11 of
the draft Regulation. A separate statement concerning the obligation
to fingerprint third country nationals apprehended in connection
with an irregular border crossing has not, however, been incorporated
into Article 8. The Commission's Explanatory Memorandum merely
states that "the Council will need to reflect on whether
it wishes to agree on and publish a similar statement". This
would seem to fall short of incorporation. Is it the Government's
intention to press for the incorporation of the minutes statement
or additional text to provide clearer guidance on the circumstances
in which fingerprints must be taken?
Recital 17 of the draft Regulation states that
the territorial scope of Eurodac should be aligned with that of
the Dublin Convention. The Sub-Committee noted that all EU Member
States are parties to the Convention. By contrast, Denmark has
opted out of any Community measures, such as Eurodac, based on
Title IV of the EC Treaty and the UK and Ireland must activate
special opt-in procedures if either wishes to participate. How
is it intended to give effect to recital 17 and what are the legal
and practical implications if Denmark (or Ireland or the UK) maintains
its opt-out?
Finally, the Sub-Committee would also welcome
the Government's views on the proposed changes to the data protection
regime.
I look forward to receiving the information
requested. In the meantime, the draft Regulation remains under
scrutiny.
21 October 1999
Letter from the Rt Hon Jack Straw MP,
Secretary of State for the Home Department, to Lord Tordoff, Chairman
of the Committee
Thank you for your letter of 21 October conveying
the points on which the Committee would like clarification. I
am extremely grateful for the contribution made by the Committee.
The Commission have now circulated a new text
of the draft Regulation containing amendments made following discussion
at the Council Working Group together with some changes made as
a result of Commission proposals. Although this is not a published
text, I believe that this is an appropriate stage at which to
deposit the current text for scrutiny. Developments since July
when the previous text was deposited, which include the Government's
decision to exercise its opt-in to the draft Regulation, lead
me to believe that this should be done now.
The European Parliament is due to publish its
opinion on the draft Regulation shortly and I understand that
a final published text will be available soon after that date.
However, the Presidency is driving this very fast now and aims
to have the draft Regulation adopted at the Justice and Home Affairs
Council on 2 and 3 December.
I therefore propose to submit within the next
week an Explanatory Memorandum covering the latest text of the
draft Regulation, and at the same time to respond to the questions
in your letter of 21 October. In the meantime, I thought that
the Committee would wish to have this early warning of the pace
at which the Eurodac work is now developing.
22 November 1999
Letter from Lord Tordoff, Chairman of
the Committee, to the Rt Hon Jack Straw, MP, Secretary of State
for the Home Department
Thank you for your letter of 22 November. I
note what you say concerning the speed with which this proposal
is now being taken forward by the Finnish Presidency. As your
letter acknowledges this is matter which has been the subject
of detailed examination by the Committee and clearly we will need
a sufficient opportunity to consider the revised texts and your
response to the points raised in my letter of 21 October. I feel
I must alert you now that it may not be possible for this to be
done before next week's Justice and Home Affairs Council.
23 November 1999
Letter from Barbara Roche MP, Minister
of State, Home Office, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 21 October with
some further questions from your Sub-Committee on the draft Regulation.
I am sorry I have not been in a position to provide you with a
full response to your letter before now.
I understand that the Presidency is aiming to
gain as much agreement as possible on the draft Regulation at
the forthcoming Justice and Home Affairs Council on 2 and 3 December.
The Council Working Group has been meeting regularly in order
to make the necessary progress and much work has been achieved
lately. I have signed an Explanatory Memorandum detailing the
background and recent developments on Eurodac and a copy of this
is enclosed for your information.
LEGAL BASE
In your letter, you say that the Sub-Committee
would be grateful for a fuller explanation of my reasons for believing
that Article 63(1)(a) (of the EC Treaty) is an appropriate legal
base.
Article 63(1)(a) TEC requires the Council to
adopt "criteria and mechanisms for determining which Member
State is responsible for considering an application for asylum
submitted by a national of a third country in one of the Member
States". The Government is of the view that the Dublin Convention
contains some such criteria and mechanisms, while the draft Eurodac
Regulation sets out further such mechanisms. An example of such
a mechanism under the Dublin Convention is to be found at Article
15(1) of that Convention, which provides for one Member State
to communicate to another such information on individual cases
as is necessary for determining the Member State which is responsible
for examining an application for asylum. The Eurodac Regulation
would, when agreed, formalise this mechanism by requiring the
exchange of fingerprint data across Member States for the same
purpose. The Government therefore considers that Article 63(1)(a)
TEC is the correct legal basis for the Eurodac Regulation.
The Government notes the Sub-Committee's additional
concern that there is no Community measure to implement Dublin
Convention obligations. It is intended to replace the provisions
of the Dublin Convention by a Community measure in the future.
In the meantime, the Government considers that the legal base
for the Eurodac Regulation is not affected by the fact that the
Dublin Convention has not yet been converted into a Community
measure. The Regulation still provides a mechanism for the stated
purpose.
CLARITY AND
LEGAL CERTAINTY
You ask if it is the Government's intention
to press for the incorporation of the minutes statement or additional
text (into Article 8) to provide clearer guidance on the circumstances
in which fingerprints must be taken.
In the Government's response to the Sub-Committee's
report on the draft Protocol, we stated that the Government understood
the Committee's concern that important facets of the agreement
should be reflected in the text rather than in a Council minutes
statement. At that time, the Government was supporting a Commission
proposal that the substance of the minutes statement be incorporated
into the text, believing it would further strengthen the text
in terms of precision and legal certainty. Since then, the Government
has continued to argue for this incorporation at Working Group
level but has not received the necessary degree of support from
other Member States.
TERRITORIAL SCOPE
You ask how it is intended to give effect to
recital 17 (of the draft Regulation) and what are the legal and
practical implications if Denmark (or Ireland or the UK) maintains
its opt-out (recital 17 of the draft said "it is appropriate
to restrict the territorial scope of the Regulation so as to align
it on the territorial scope of the Dublin Convention").
The Commission has now circulated a fresh recital
in the latest version of the draft Regulation reflecting the position
following the opt-ins by the United Kingdom and by Ireland. The
United Kingdom is in a strong position to play a full part in
negotiations on the draft regulation. Unanimity by all Member
States is required before the draft regulation can be adopted.
The Commission has reported that Denmark has recently repeated
its wish to participate in Eurodac but is in a different position.
As to Danish participation, the Regulation does
not build on the Schengen acquis and therefore Article 5 of the
Danish Protocol does not facilitate Denmark's participation on
an international law basis. If Denmark is otherwise not able to
participate, it would continue to be bound by its obligations
under the Dublin Convention, as it is now, but would not play
any part in Eurodac. Whilst, given their respective purposes,
it would be impossible to envisage participation in Eurodac but
not in Dublin, the Government cannot see that any difficulty arises
where a Member State participates in Dublin but not in Eurodac.
Either way, the Government's view is that the recitals will require
adjustment in the light of Denmark's eventual position.
SUBSIDIARITY AND
PROPORTIONALITY
The Sub-Committee raised concerns about the
extension of Eurodac to cover certain categories of illegal entrant.
The Government has already set out its views on the proportionality
of fingerprinting these individuals in the ECHR context. I would
refer you to the Government's response to the Sub-Committee's
report, which referred to Kate Hoey's note to the Sub-Committee
of 10 May 1999. The Government would adopt the same reasoning
in respect of proportionality in this context. It was agreed in
the Government's response that fingerprinting illegal entrants
who are detained upon crossing an external EU Border could be
considered to be disproportionate. The Government has continued
to press for an appropriate form of words in Article 8 of the
draft Regulation to cover this, and it has very recently been
agreed in principle to include a specific reference to the requirements
of the ECHR at this point in the text.
DATA PROTECTION
The Sub-Committee asked for the Government's
views on the proposed changes to the data protection regime.
I believe there is little that I can usefully
add here to the text of the Explanatory Memorandum which points
out that the current draft, like the frozen text, is based on
and develops the data protection regime established under the
TEC (Directive 95/46/EC) which is considered appropriate given
that Eurodac is a First Pillar instrument.
29 November 1999
Letter from Lord Tordoff, Chairman of
the Committee, to Barbara Roche MP, Minister of State, Home Office
Thank you for your letter of 29 November responding
to a number of points raised by Sub-Committee E with regard to
the draft Eurodac Regulation. The Committee has also considered
a revised draft Regulation and Explanatory Memorandum submitted
shortly before the Justice and Home Affairs Council on 2 December.
It appears that the Council reached a "political
orientation" on all provisions of the Regulation except those
concerning territorial scope. I understand that the Council also
agreed changes to the regulatory procedure proposed by the Commission
and that this matter is to be referred back to the European Parliament.
The Committee would be grateful for clarification of what was
agreed at the Council. As you know, the draft Regulation remains
under scrutiny. If the Council did, in fact, reach a political
agreement, the Committee would expect to be informed of the special
reasons justifying such action. The Committee would also welcome
an account of the Council's proposed changes to the comitology
procedure and of any progress made on the question of the territorial
application of the Regulation.
The Committee noted that the revised Regulation
specifies in greater detail the type of fingerprint data to be
transmitted to the Eurodac Central Unit. As regards asylum seekers
and aliens (non-EU nationals) apprehended in connection with the
irregular crossing of an external border, Member States are required
to take and send to Eurodac the fingerprints of all fingers
(Articles 4(1) and 8(1)). Member States may also, if their national
law permits, send to Eurodac the fingerprint data of aliens found
illegally present in their territory to check if a prior claim
for asylum has been lodged elsewhere. Such data must include "all
or at least the index fingers, and if those are missing, the prints
of all other fingers" (Article 11(2)). The Committee would
welcome an explanation of the reasons for distinguishing between
the type of fingerprint data to be sent to Eurodac. How does the
Government intend to implement Article 11(2)?
The amended Regulation also sets out a number
of detailed requirements for the collation and analysis of statistical
data by the Eurodac Central Unit (Article 3(3)). It is not clear
whether this data will be included in the Annual Report to the
European Parliament, and Council (Article 22). The Committee would
be grateful for confirmation that the statistical data collated
by the Central Unit pursuant to Article 3(3) will be published.
The Committee noted that the amended Regulation
provides for the erasure of any data held in the Eurodac database
on a person who acquires citizenship of a Member State (Articles
7 and 10(2)(c)). The original draft Regulation referred to citizenship
of the Union, and status reserved exclusively for nationals of
Member States. Can you explain the reasons for, and implications
of, the change from Union to Member State citizenship?
There are two further matters of concern to
the Committee. You explain in your letter that the Government
has pressed for the incorporation of the Council minutes statement
clarifying the scope of the obligation to fingerprint non-EU nationals
apprehended in connection with an irregular border crossing, but
other Member States are opposed. You will recall the concern expressed
by the Committee in its Report that a lack of clarity with regard
to the scope of the fingerprinting obligation would undermine
legal certainty and produce inconsistencies of practice in the
Member States. Your Explanatory Memorandum justifies the use of
a Regulation "in order to ensure strict harmonisation between
Member States. If Member States were fingerprinting different
categories of person, sending different fingerprints to the Central
Unit or retaining the fingerprints for a different length of time,
the system would not work to best effect". The Committee
remains concerned that the need for a minutes statement indicates
that the Regulation, as drafted, does not provide the strict harmonisation
necessary to ensure consistency and effectiveness. The Committee
would therefore welcome an explanation of the reasons given by
other Member States for the non-incorporation of the minutes statement,
and the Government's view of the status of the minutes statement
as an aid to the interpretation and application of Article 8.
Finally, your Explanatory Memorandum does not
indicate the view taken by the Council on the amendments proposed
by the European Parliament. In particular, the EP recommended
raising the minimum age for fingerprinting to 18 and incorporating
references to safeguards in the ECHR and UN Convention on the
Rights on the Child. The Committee's Report stated that "due
consideration should be given to the special needs of children"
in determining both the scope of the fingerprinting obligation
and the detailed rules for its application. The Committee would
be grateful for an explanation of the Government's view on the
EP's amendments and the Council's reasons for rejecting the EP
proposal to raise the minimum age to 18.
The Committee looks forward to receiving your
response to the points raised above. It intends, in the meantime,
to hold the draft Regulation under scrutiny.
16 December 1999
Letter from Barbara Roche MP, Minister of State,
Home Office, to Lord Tordoff, Chairman of the Committee
Thank you for your letter of 16 December 1999,
with further comments from the Select Committee on the Draft Regulation.
You asked for clarification of a number of issues. The Government's
response is set out below.
"It appears that the Council reached
a `political orientation' on all provisions of the Regulation
except those concerning territorial scope. The Committee would
be grateful for clarification of what was agreed at the Council.
As you know, the draft Regulation remains under scrutiny. If the
Council did, in fact, reach a political agreement, the Committee
would expect to be informed of the special reasons justifying
such action".
You will be aware that Jimmy Hood recently raised
the same concern in his letter to the Home Secretary of 15 December.
The Council Press Release in which this form of words appeared
is not of course a matter for which we have any responsibility.
It does not seem particularly clear that by "political orientation"
the Release meant any more than some level of progress towards
eventual agreement. Our Parliamentary scrutiny reserve was registered
clearly. The Home Secretary was not asked for, and did not give,
assent to "political agreement" and the Council could
not have reached it, not only because of our Parliamentary scrutiny
reserve, but because the European Parliament (EP) is to be reconsulted.
"I understand that the Council also
agreed changes to the regulatory procedure proposed by the Commission
and that this matter is to be referred back to the European Parliament.
The Committee would also welcome an account of the Council's proposed
changes to the comitology procedure".
Member States have now agreed that Article 22
should be amended to reflect that the Council should adopt this
role, having decided that the Council should not be seen to be
abrogating its responsibilities in an area which touches upon
the freedom of the individual. As a result, the Commission has
entered a reservation, on the basis that such a retention of powers
by the Council does not comply with the criteria in the EC Treaty
and Council Decision 1999/468/EC. It argues that such a retention
has not been properly substantiated as required by Article 1 of
the Decision, meaning that the Council would be in breach of the
Decision and past EC rulings in this area. As the latest text
now differs from the one commented upon by the EP, the EP will
need to be re-consulted before the Regulation can be adopted.
This may take some months.
"The Committee would welcome any progress
made on the question of the territorial application of the Regulation".
Under Article 299(4) of the Treaty Establishing
the European Community (TEC) measures under Title IV apply to
Gibraltar. However, the draft Eurodac Regulation would build on
the Dublin Convention, which determines the State responsible
for examining applications for asylum lodged on one of the member
states. The Dublin Convention does not currently apply to Gibraltar.
So, in this case, the Draft Regulation can only apply to Gibraltar
once the Dublin Convention applies there. The wording in the Draft
Regulation provides for this. However it is one of a number of
EC measures currently blocked by Spain on the question of the
designation of Gibraltar competent authorities. Discussions on
this issue have been continuing for several months with Spain
and the Government of Gibraltar in the context of discussion of
issues relating to the United Kingdom application to participate
in Schengen. We shall inform the Committee of the outcome of these
discussions.
"As regards asylum seekers and aliens
(non-EU nationals) apprehended in connection with the irregular
crossing of an external border, Member States are required to
take and send to Eurodac the fingerprints of all fingers
(Article 4(1) and 8(1). Member States may also, if their national
law permits, send to Eurodac the fingerprint data of aliens found
illegally present in their territory to check if a prior claim
for asylum has been lodged elsewhere. Such data must include `all
or at least the index fingers, and if those are missing, the prints
of all other fingers' (Article 11(2)). The Committee would welcome
an explanation of the reasons for distinguishing between the type
of fingerprint data to be sent to Eurodac. How does the Government
intend to implement Article 11(2)?"
It is intended that Eurodac data should be kept
for different purposes, but all relating to support of the Dublin
Convention, without going beyond the needs of that Convention.
Prints from asylum applicants are to be used for comparison purposes
with data already on the central unit database and stored there.
Prints from aliens apprehended in connection with the irregular
crossing of an external border are taken to be stored in the central
database for comparison later against the prints of asylum seekers
subsequently transmitted, and full prints are to be taken in case,
at some future stage, fewer prints are available. However, under
Article 11(2), the prints which may be taken from those found
illegally present in a Member State will be compared only against
the prints of asylum seekers already stored—and cannot be
stored themselves if no match is made. It appears that an accurate
match can be established using only a limited number of fingers
using fingerprint technology currently available. Because the
prints in this third category are to be used for comparison purposes
only, two prints as a minimum will be sufficient and index fingers
have been selected. No decision has yet been taken on how to implement
Article 11(2) but it is not expected that its implementation will
cause any difficulty domestically and it will be considered alongside
current plans to computerise the existing fingerprinting arrangements.
"The amended Regulation also sets out
a number of detailed requirements for the collation and analysis
of statistical data by the Eurodac Central Unit (Article 3(3)).
It is not clear whether this data will be included in the Annual
Report to the European Parliament and Council (Article 22). The
Committee would be grateful for confirmation that the statistical
data collated by the Central Unit pursuant to Article 3(3) will
be published".
The Commission has indicated that, although
there is no legal requirement to include the statistical data
in the Annual Report which the Commission will be required to
submit to the European Parliament and the Council, it envisages
that this material would be included. The "pre-defined quantitative
indicators" referred to in Article 23(1) have yet to be considered
but the Commission considers it likely that these would be based
on statistical data.
"The Committee noted that the amended
Regulation provides for the erasure of any data held in the Eurodac
database on a person who acquires citizenship of a Member State
(Articles 7 and 10(2)(c)). The original draft Regulation referred
to citizenship of the Union, a status reserved exclusively for
nationals of Member States. Can you explain the reasons for, and
implications of, the change from Union to Member State citizenship?"
The overall view here was that reference to
citizenship of a Member State had more clarity of meaning than
the term Membership of the Union, although it was accepted that
the use of one term rather than another would have no practical
difference.
"You will recall the concern expressed
by the Committee in its report that a lack of clarity with regard
to the scope of the fingerprinting obligation would undermine
legal certainty and would produce inconsistencies of practice
in the Member States. Your Explanatory Memorandum justifies the
use of a Regulation `in order to ensure strict harmonisation between
Member States. If Member States were fingerprinting different
categories of person, sending different fingerprints to the Central
Unit or retaining the fingerprints for a different length of time,
the system would not work to best effect'. The Committee remains
concerned that the need for a minutes statement indicates that
the Regulation, as drafted, does not provide the strict harmonisation
necessary to ensure consistency and effectiveness. The Committee
would therefore welcome an explanation of the reasons given by
other Member States for the non-incorporation of the minutes statement,
and the Government's view of the status of the minutes statement
as an aid to the interpretation and application of Article 8".
The text of the draft Protocol (which contained
the previous version of Article 8) was "frozen" in March
1999 and, under the Finnish Presidency's direction, amendments
to the text were agreed by Member States with the sole purpose
of ensuring compatibility with First Pillar procedures. With the
exception of the United Kingdom, Member States did not consider
that incorporation of the minutes statement in the text met this
criterion. The Government has continued to press for the incorporation
of the Minutes Statement in Working Group discussions but has
been unsuccessful. The United Kingdom has, of course, maintained
its scrutiny reservation over the draft as a whole given outstanding
Parliamentary scrutiny. It would however be unrealistic to assume
at this stage we shall be able to secure any further textual change.
This is disappointing especially in view of
the Committee's concerns. We will reflect on the possibility of
providing greater legal certainty in the course of implementation,
although this may give rise to legal problems in view of the status
of Eurodac as a Regulation.
It is to be noted that the alternative course
recommended by the European Parliament of adding a specific reference
to the European Convention on Human Rights has been adopted, together
with a specific reference to the United Nations Convention on
the Rights of the Child. This undoubtedly strengthens the individual's
rights under the Article. It also overcomes a limitation of the
approach adopted in the draft Minutes Statement, which is the
difficulty of accommodating all the varied circumstances which
exist in different Member States in terms of the character of
their borders, transport links and methods of immigration control.
As the Committee says, Eurodac aims to achieve necessary degree
of harmonisation. But there inevitably comes a point at which
Member States will have to decide for themselves how to interpret
the scope of this provision as it applies in their particular
circumstances. In doing so, they will be subject to the scrutiny
of their domestic courts and the European Court of Human Rights
in applying the safeguards of the ECHR to Eurodac, and to that
of the European Court of Justice in questions arising from Eurodac
itself. On balance, the Government is satisfied that this provides
a sufficient legal framework.
"Your Explanatory Memorandum does not
indicate the view taken by the Council on the amendments proposed
by the European Parliament. In particular, the EP recommended
raising the minimum age for fingerprinting to 18 and incorporating
references to safeguards in the ECHR and the UN Convention on
the Rights of the Child. The Committee's Report stated that `due
consideration should be given to the special needs of children'
in determining both the scope of the fingerprinting obligation
and the detailed rules for its application. The Committee would
be grateful for an explanation of the Government's view on the
EP's amendments and the Council's reasons for rejecting the EP's
proposal to raise the minimum age to 18".
The European Parliament published its report
on 18 November and the Council has not yet responded. The Government
believes that is important at this stage for progress to be made
towards implementation of the Draft Regulation, and that matters
already agreed amongst the Member States should not be re-opened
unless they raise new or significant issues not already considered.
In general it does not consider that the proposals put forward
by the European Parliament raise any issues of this kind and would
prefer that the "frozen" text should proceed unchanged
in these respects. The issue of a minimum age had already been
discussed at an earlier stage. However, amendments have been made
to Articles 4 and 8 making it clear that fingerprints shall be
taken in accordance with the ECHR and the UN Convention on the
Rights of the Child. I believe that these are positive and helpful
changes, the point being of course ones recommended by the European
Parliament.
Although no new published draft has yet been
prepared by the Council, amended working documents have been drawn
up incorporating changes agreed up to the point of the December
JHA Council. In view of these agreed changes a Supplementary Explanatory
Memorandum will be prepared and circulated in the near future.
Letter from Lord Tordoff, Chairman of
the Committee, to Barbara Roche MP, Minister of State, Home Office
Thank you for your response to my letter of
16 December. Sub-Committee E (Law and Institutions) has considered
your letter and Explanatory Memorandum accompanying the Commission's
revised proposal for a draft Regulation (document 7079/00, Eurodac
1). There are a number of issues on which the Committee would
welcome further clarification of the Government's position.
RELATIONSHIP BETWEEN
EURODAC AND
THE DUBLIN
CONVENTION
The first concerns the timing of the present
initiative. The Committee is aware that a number of policy options
for the revision of the Dublin Convention and its replacement
by a Community instrument are currently under review. It is not
clear how much of the existing Dublin Convention language will
survive in the successor instrument. Given this uncertainty, the
wisdom of modelling Eurodac on the terms of the present Convention
would seem to be questionable. You state in your Explanatory Memorandum
that there is likely to be pressure to finalise the draft Regulation.
Is it the intention to proceed to the adoption of the Regulation
before determining the precise form and content of the successor
to the Dublin Convention?
The revised title of the draft Regulation makes
explicit the exclusive link between the Eurodac system and the
Dublin Convention. Some of the key provisions (such as the definitions
of the categories of third country nationals subject to fingerprinting
(Articles 8(1) and 11(1)) mirror language in the Dublin Convention.
Other amendments proposed in the Commission's latest draft would
seem to go in the opposite direction. For example, the use of
the term "third country national" instead of "alien"
would signify a departure from the terminology of the Dublin Convention.
Your Explanatory Memorandum does not indicate whether the Government
attaches any significance to the different wording. Nor do you
comment on the risk of divergent interpretations. Although, at
present, the Court of Justice has no jurisdiction with regard
to the Dublin Convention, it will be able to give interpretative
rulings on any Community successor to Dublin and on Eurodac under
Article 68 of the EC Treaty. I would welcome your comments on
the significance of the difference of wording of similar provisions
in the revised Regulation and the Dublin Convention and how you
propose to ensure consistency between the two instruments.
ERASURE OF
FINGERPRINT DATA
OF RECOGNISED
REFUGEES
Article 7(b) requires the erasure of the fingerprint
data of asylum seekers once refugee status has been granted. The
case for retaining such data was to produce a statistical assessment
of the scale and frequency of "secondary movements"
of persons granted asylum in one Member State who subsequently
move to another and claim asylum as a means of acquiring legal
status. Under the revised Regulation, such an assessment could
not be undertaken. The alternative proposed by the Commission
is to include refugees in the scope of a further instrument defining
the circumstances in which third country nationals legally residentin
one Member State may reside in another. Does the Government accept
the Commission's analysis that facilitating the free movement
of legally resident third country nationals, including refugees,
would reduce the incentive to claim asylum in more than one Member
State and thus relieve some of the pressures on immigration authorities?
RELATIONSHIP WITH
THE EUROPEAN
CONVENTION ON
HUMAN RIGHTS
The Committee notes that the revised Regulation
includes the requirement that mandatory fingerprinting (under
Articles 4(1) and 8(1)) complies with the European Convention
on Human Rights (ECHR) and the UN Convention on the Rights of
the Child. Implementing rules covering, inter alia, the procedure
for taking fingerprints are to be agreed by committee. You state
in your letter that the way in which Member States interpret the
Regulation and, in particular, their application of the ECHR safeguards,
will be subject to scrutiny in their domestic courts and in the
European Court of Human Rights. In addition, questions arising
from Eurodac itself will be subject to review in the European
Court of Justice.
While the Committee shares the commitment to
respect international human rights standards, it is not clear
how the reference to the two Conventions would strengthen in a
practical way the rights of the individual under Articles 4(1)
and 8(1). A consequence of the Regulation would seem to be that
the European Court of Justice would be the ultimate arbiter of
the extent to which national practice, in implementation of the
rules, was as a matter of Community law compliant with the ECHR
(and indeed, the UN Convention). There would be no possibility
of a further appeal to the Strasbourg Court. Moreover, Community
Regulations and rules made under them take effect in the Member
States as directly applicable law. Even if the procedure for fingerprinting
at the national level were susceptible to challenge in a domestic
court and from there up to the Strasbourg Court, it appears at
first sight that a situation similar to that in the Matthews case
might arise. Is it possible that a Member State might find itself
in breach of the ECHR but incapable, without the unanimous agreement
of the Council, to effect a change in practice or procedure to
make it compliant? The Committee would welcome further clarification
of the options for action available to an aggrieved individual
alleging a breach of ECHR rights in the procedures for taking
fingerprints under the draft Regulation and, in particular, the
relationship between the Strasbourg and Luxembourg Courts.
COMMITTEE PROCEDURES
You explain that the Council wishes to reserve
to itself the right to adopt certain implementing measures on
the grounds that "the Council should not be seen to be abrogating
its responsibilities in an area which touches on the freedom of
the individual". This issue is of some importance, not least
because the implementing rules will include the safeguards to
ensure compliance with the ECHR and the Convention on the Rights
of the Child. The Commission draws attention to a possible reduction
in democratic oversight as there would be no obligation on the
Council to inform the European Parliament of draft implementing
measures.
In our Report on committee procedures (Delegation
of Powers to the Commission: Reforming Comitology) we stated
that "special provisions may be needed to safeguard human
rights and fundamental freedoms", especially in areas such
as immigration and asylum. We placed particular emphasis on the
need for democratic legitimacy, accountability and transparency.
The apparent absence of any parliamentary supervision of implementing
measures adopted by the Council under the Eurodac Regulation is
a matter of concern. The Committee would welcome an explanation
of how the Government intends to ensure democratic legitimacy,
accountability and transparency in the adoption by the Council
of implementing rules. In particular, would you accept that there
would be a role for the parliamentary scrutiny committees prior
to the adoption of such measures?
PENALTIES
The Committee would be grateful for further
explanation of the Council's reasons for opposing the text proposed
by the Commission on the penalties to be imposed for the misuse
of Eurodac data.
IMPLEMENTATION
Your Explanatory Memorandum (at paragraph 26)
indicates that implementation of the Regulation would require
amendment of the Immigration and Asylum Act 1999 as regards mandatory
fingerprinting. We have already raised with you our doubts as
to whether the draft Regulation provides a sufficient degree of
legal certainty to ensure consistency of implementation in the
Member States. You state in your letter that the Government will
"reflect on the possibility of providing greater legal certainty
in the course of implementation, although this may give rise to
legal problems in view of the status of Eurodac as a Regulation".
The Committee would welcome your views on the extent of the discretion,
if any, the Government would enjoy to issue practice guidelines
on the implementation of obligations set out in the Regulation.
The Committee intends to hold the revised draft
Regulation (document 7079/00. Eurodac 1) under scrutiny pending
your response. This letter clears from scrutiny two earlier drafts
(documents 9988/99 COM(99) 260 and (P)13052/99).
9 June 2000
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