Select Committee on European Union Fortieth Report

CHAPTER 2: POLICE access to Eurodac and vis

19.  The issue of police cooperation arises in a number of contexts. Under the heading of combating illegal immigration, the Heiligendamm Conclusions state that "the ministers are committed to rapidly introducing the Visa Information System (VIS), including a sponsor's database in VIS and police access to Eurodac, as well as full access of authorities responsible for internal security to VIS".


20.  Eurodac is a fingerprint database established under the first pillar solely to assist in the determination of the country responsible for considering asylum applications. It requires all Member States to take the fingerprints of asylum applicants and of others apprehended for the irregular crossing of external borders. The fingerprints are transmitted to a central database which the immigration authorities of other Member States can access, allowing them to check the identity of asylum applicants, and to check whether an alien found illegally present in one Member State has applied for asylum in another Member State. Importantly, fingerprints are erased after ten years; earlier if a person has meanwhile been granted citizenship of a Member State.

21.  The Regulation establishing Eurodac[21] does not contemplate police access to Eurodac, nor is there any reason why it should; the fingerprints are collected for the very specific purpose prescribed in Article 1(1) of the Regulation.[22] There is not at present any legislative proposal on the table to widen the scope of Eurodac. Police access to the database held by the Commission would be an entirely new departure.[23] The sole legal basis of the Regulation is Article 63(1)(a) of the EC Treaty,[24] and that alone would be insufficient to allow access for purposes other than those in Article 1(1), whose wording is taken directly from the Treaty.

22.  In their Conclusions the ministers state that they "intend to intensify cooperation in fighting illegal immigration and link national centres. Experts from all authorities concerned (border police, police, immigration authorities) should work together to ensure information is shared at the necessary levels." There are certainly arguments for a degree of interoperability between the databases of SIS, VIS and Eurodac to assist in combating crime;[25] if fingerprints are found at the scene of a serious crime, and there is evidence that an asylum-seeker may be involved, access to Eurodac might reveal valuable information about the person whose prints had been found.[26] Routine access is different. As the Commission put it, "neither claiming asylum nor a visa application indicates in any way that a hitherto innocent individual will commit a crime or a terrorist act".[27]

23.  If Eurodac is to be used for purposes other than those for which it was set up, a number of matters must first be addressed. Foremost among them are the issues of data protection, and whether law enforcement authorities will destroy fingerprints taken from Eurodac when they are erased from that database. As to the first of these, Ms Ryan agreed in oral evidence that the Data Protection Framework Decision (DPFD)[28] would need to be in place before there could be police access to Eurodac.[29] We are not aware that the second problem has yet been considered.

24.  We have doubts about the legality of police access to Eurodac under existing EU law, and recommend that the Government should examine the legality of what is proposed.

25.  While a case can be made for allowing police access to data collected for a different purpose, we believe that the Data Protection Framework Decision should first be in place. We are concerned that the requirement to delete the data could be overridden if it is transferred onto police databases.

The Visa Information System (VIS)

26.  The database of the Visa Information System contains the data on visa applicants needed for the exchange of information between those Member States which have abolished checks at their internal borders. VIS is not a law enforcement tool, but is being developed for the application of the Common Visa Policy.

27.  Under point 6, the Heiligendamm Conclusions state:

"[The ministers] also emphasized that the authorities responsible for internal security of participating States must have full and effective access to both SIS and VIS to satisfy the interest of all EU Member States in efficient crime control."

The "participating States" do not include the United Kingdom; the Council Legal Service regards VIS as part of the Schengen acquis, so that United Kingdom access to information on VIS is denied. Nevertheless Mr Storr emphasised the desirability of law enforcement authorities throughout Europe having access to the system.[30]

28.  The position is not entirely analogous to Eurodac, since in the case of VIS there is already a Commission proposal on the table for access to the information by law enforcement authorities.[31] Access under this proposal would be subject to important safeguards. Only designated national authorities would have access to the information; access would be limited to specific categories of serious crime; access must be necessary in a specific case; the information which can be accessed is limited; and further onward transfer of information would be restricted. Crucially, Article 8 of the proposed Decision provides for the DPFD to apply, and the Decision on access to VIS could not apply until the DPFD has entered into force.

29.  In an explanatory memorandum of 19 December 2005 the Government welcomed this proposal, and stated that "it attaches importance to ensuring that an important mechanism exists to protect personal data processed under this proposal. The Government welcomes the provisions under Article 8 of the draft proposal and in particular notes the provision that the [DPFD] will apply to personal data processed under this instrument." The application of the DPFD was also welcomed by the European Data Protection Supervisor in his Opinion of 20 January 2006. But both he and the United Kingdom Information Commissioner thought that the position of those countries which (like the United Kingdom) do not have direct access to VIS should be clarified, so that the DPFD applies to them too in relation to information from VIS sent to them by a participating State.

30.  The proposal for access to VIS by law enforcement authorities is a document we continue to keep under scrutiny. We have had correspondence with Home Office ministers about it, and some of our questions have been answered, most recently in a letter from Tony McNulty MP of 20 February 2006. Mr McNulty wrote again on 2 March 2006 to provide us with the views of the Information Commissioner on this proposal. These raised a number of concerns which we were told would be taken into account during negotiations. We hope therefore that the "full and effective access" which the G6 ministers consider desirable continues to be subject to the rigorous safeguards contained in the Commission proposal, and to the application of the DPFD which the Government welcomed three months earlier.

31.  The Government should ensure that access to data in the Visa Information System for the purposes of crime control is subject to safeguards no less rigorous than those in the current Commission proposal, including those suggested by the data protection authorities.

21   Council Regulation (EC) No 2725/2000 of 11 December 2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention, OJ L 316 of 1.12.2000. This is a first pillar measure, but any instrument allowing access for general law enforcement purposes would be a third pillar measure. Back

22   Article 1(1) reads: "A system known as "Eurodac" is hereby established, the purpose of which shall be to assist in determining which Member State is to be responsible pursuant to the Dublin Convention for examining an application for asylum lodged in a Member State, and otherwise to facilitate the application of the Dublin Convention under the conditions set out in this Regulation." Back

23   Written evidence of Statewatch, p 13. Back

24   So far as relevant, this reads: "The Council…shall…adopt (1) measures on asylum…within the following areas: (a) 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". Back

25   See the Communication from the Commission to the Council and the European Parliament on improved effectiveness, enhanced interoperability and synergies among European databases in the area of justice and home affairs (Document 15122/05) (the Communication on Interoperability).  Back

26   House of Commons European Scrutiny, Session 2005-06, 15th Report. Back

27   Communication on interoperability. Back

28   Proposal for a Council Framework Decision on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (Document 13019/05). Back

29   Q 101. Back

30   Q 108. Back

31   The Council Decision of 8 June 2004 establishing the Visa Information System (2004/512/EC) is a first pillar measure based on Article 66 TEC. However the Proposal for a Council Decision concerning access for consultation of the Visa Information Service (VIS) by the authorities of Member States responsible for internal security and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and other serious criminal offences (Document 15142/05, 25 November 2005) is a third pillar measure: the legal base is Article 30(1)(b) and Article 34(2)(c) of the TEU. Back

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