Explanatory Memorandum to COM(2008)332 - Establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2008/XX/JHA - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2008)332 - Establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision ... |
|---|---|
| source | COM(2008)332  |
| date | 27-05-2008 |
Grounds for and objectives of the proposal The need to improve the quality of information exchanged on convictions was prioritised in the European Council Declaration on Combating Terrorism of 25 and 26 March 2004 and was reiterated in the Hague Programme, adopted by the European Council on 4 and 5 November 2004. These objectives are reflected in the action plan jointly adopted by the Commission and the Council on 2 and 3 June 2005 with a view to carrying out the Hague Programme. As a response to the expectations expressed at the Council meeting (Justice and Home Affairs) on 14 April 2005, following the publication in January 2005 of the White Paper on exchanges of information on convictions and the effect of such convictions in the European Union and the subsequent general discussion thereof, the Council in June 2007 has reached a political agreement on the Framework Decision on the organisation and content of the exchange of information extracted from criminal records between Member States 2008/XXX/JHA (hereinafter the 'Framework Decision'). The Framework Decision requires further measures for its implementation, in particular as regards the setting up of a computerised system of exchange of information. The purpose of this decision is to implement Article 11 of the Framework Decision.
General context Information on convictions is currently exchanged according to the European Convention on Mutual Assistance in Criminal Matters of 1959 (Council of Europe Convention, hereinafter the '1959 Convention'). This system presents important shortcomings, which were analysed in the White Paper. The result is that national courts often pass sentences on the sole basis of the past convictions featuring in their national register, without any absolutely no knowledge of convictions in other Member States. At the Council meeting of 14 April 2005, Member States decided to maintain the principle of centralisation of information in the Member State of nationality of the person, but agreed that the system should be improved in order to ensure that information is completed and transmitted in an electronic way.
Existing provisions in the area of the proposal On 21 November 2005 the Council adopted a first proposal from the Commission for a Council Decision on the exchange of information extracted from criminal records, whose purpose is to improve the system of the 1959 Convention in the short term, chiefly by speeding up transmission (Council Decision 2005/876/JHA). In June 2007 the Council reached a political agreement on the Framework Decision which this Decision seeks to complete. The main purposes of the Framework Decision are to ensure that a Member State is able to respond properly and fully to requests made to it regarding the criminal records of its nationals, and to lay down the basis for a computerised conviction-information exchange system. This system shall be built and developed to enable the exchange of criminal records information in a uniform, electronic and easily machine-translatable form. This proposal shall implement Article 11 of the Framework Decision.
Consistency with the other policies and objectives of the Union This Decision respects fundamental rights. It contains several provisions designed to ensure a high and satisfactory level of protection for personal data transmitted by the convicting Member State to the Member State of the person's nationality (Article 3 i and 3(3)). They supplement the provisions of the Framework Decision which limit the use that the requesting Member State can make of information for which it has asked (Article 9).
Consultation of interested parties
Consultation methods, main sectors targeted and general profile of respondents Two studies were undertaken before the Framework Decision, and much consultation and collection of expertise has been carried out in preparation of the Framework Decision i. Detailed questionnaires on how national criminal records work were sent to Member States in April 2004; the replies were collated and analysed in the White Paper. Furthermore an extensive study on national criminal records systems in the European Union, Bulgaria and Romania was carried out in 2006 with the objective of supporting the Commission's decision making concerning criminal records by depicting the current situation in the relevant states, proposing alternatives for the development of a common format for the exchange of information on criminal records and outlining the most feasible and appropriate solution in detail. The main inspiration for this proposal comes from the pilot project ("Network of Judicial Registers" (NJR)) launched by Member States. The participating Member States i have developed a secure electronic communication between their respective judicial registers and since 2007, 6 out of 12 current members of the project have been exchanging information in this form. The Commission has also organised a specific expert meeting to prepare this proposal and has received contributions from several Member States. EUROJUST was also consulted.
Summary of responses and how they have been taken into account The results of the consultations and recommendations made by the studies were taken into account in preparation of this proposal.
There was no need for external expertise.
Impact assessment This proposal simply implements certain aspects of the Framework Decision. Therefore it was not necessary to carry out an impact assessment.
Contents
Summary of the proposed action The proposal seeks to implement Article 11 of the Framework Decision. It proposes to develop a computerised conviction - information exchange system between Member States by establishing the European Criminal Records Information System (ECRIS). The proposal sets up elements of a standardised format for the electronic exchange of information extracted from criminal records, in particular as concerns information on the offence giving rise to the conviction and information on the content of the conviction, as well as other general and technical implementation aspects of the information exchange.
Legal basis The legal basis for this proposal is Article 31 of the Treaty on European Union, as amended by the Nice Treaty, and Article 34 i (c).
Subsidiarity principle The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.
This proposal shall set up common technical elements and standards of a computerised system, the ECRIS, as well as other general and technical implementation aspects related to organising and facilitating exchanges of criminal records information. This objective could be better achieved by an EU action.
The setting up of common technical standards for the computerised data transmission between Member States cannot be carried out adequately by the Member States nor can the central support and the help desk be organised individually. It requires coordinated action by the European Union.
As the Framework Decision states it is left to Member States to decide at which stage of proceedings and in what form the information on convictions should be collected, as well as to decide how to store the collected information. Each Member State keeps the full responsibility to handle its own criminal records system with the view to participating in ECRIS. The exchange of information on criminal records remains under the full responsibility of the Member States.
The proposal therefore complies with the subsidiarity principle.
This proposal implements certain aspects of the Framework Decision, which respects the proportionality principle. The decision provides for the minimum basis to allow electronic interconnection between national criminal records and to allow automatic translation to take place.
Proposed instruments: Decision.
Other means would not be adequate for the following reason: The proposal aims to establish the ECRIS system. This action entails certain basic elements and standards of a computerised data exchange system, including a standardised format for the electronic exchange of information extracted from criminal records, as well as other general and technical implementation aspects related to the organizing and facilitating exchanges of information. These detailed specifications require the use of a Council Decision.
The implementation and operation of the ECRIS will have budgetary implications, but these costs, to a large extent, will be covered by the specific program 'criminal justice' as part of 'Fundamental Rights and Justice' Framework Programme i.
Simulation, pilot phase and transitory period
Information is currently exchanged between some Member States participating in a pilot project in an electronic way. This proposal is very much inspired by the pilot project, in particular as concerns the tables of offences and sanctions.
Moreover, as provided by the Framework Decision, Member States will have to decide themselves whether to join the interconnection according to their own state of development. As a result the system will grow progressively.
The proposal provides for simplification of legislation, simplification of administrative procedures for public authorities (EU or national), in particular as it will allow automatic translation of the information avoiding costly and lengthy manual translation.
Moreover the setting up of an electronic exchange system will speed up and make the exchange of information systematic replacing lengthy and uncertain paper exchange.
The proposal provides for a regular report to be sent to Council and European Parliament.
Detailed explanation of the proposal This section gives a brief overview of those main articles of the proposal which have not been described above. Article 3 - European Criminal Records Information System This Article lays down rules concerning the technical architecture, operation and use of ECRIS, as well as defining the responsibilities, including financial responsibilities, stemming from its functioning. ECRIS is a system based on decentralised information technology architecture. The criminal records data will be stored solely in databases operated by Member States, and there will be no direct online access to criminal records databases of other Member States. The S-TESTA network was chosen by the pilot project as a common communication infrastructure between national criminal records databases. This choice will be confirmed in the first stage of the project. A common set of protocols allowing the exchange of information between national criminal records databases will be determined in accordance with the Comitology procedure, taking into consideration achievements of the pilot project. In order to implement this set of protocols, the Commission may provide software allowing Member States to connect their registers. Member States will decide whether to use this software or to rely on their own interconnection software implementing the common set of protocols. Member States bear the responsibility for the operation of national criminal records databases and for the efficient performance of exchanges involving their participation. The expenditure concerning the communication infrastructure should be covered by the general budget of the European Union and existing European Union financial programmes can be used to support ECRIS specifically. Article 4, Annexes A and B - Format of transmission of information, Table of Offences categories and Table of Sanctions categories The present Decision creates a standardised European format of transmission of information on convictions, allowing information to be exchanged in a uniform, electronic and easily computer translatable way. This Article establishes an obligation for Member States to refer to the codes of categories of offences and sanctions provided for in two reference tables of 'Offences categories' in Annex A and 'Sanctions categories' in Annex B when notifying other Member States about convictions or when replying to their requests for information on convictions. Transmitting this information, Member States will have to indicate an appropriate sub-category code of the reference table of offences or sanctions respectively for each offence and each sanction. If it is not possible to classify an offence or sanction under any of the existing sub-categories, they should indicate an appropriate 'open category' code. Additionally, in case of relevance for a certain conviction of the additional parameters relating to the offence or sanction, included in both reference tables, the indication of an appropriate letter code for each parameter will be required. The categories of offences should be interpreted in the light of existing harmonised common definitions, both on the European and international level. The content of the tables derives from the analysis of the needs of all 27 Member States by considering mainly the Pilot Project categorisation and the results of the clustering exercise of various national offences and sanctions. Comments made by some delegations following the 12 November 2007 expert meeting have also been taken into consideration in this respect. Article 5 - Information on national convictions, sanctions and measures This Article requires that Member States enter their national offences and sanctions in each category of the table in Annex A or Annex B respectively. In order to ensure the mutual understanding and transparency of the common categorisation, they shall also send a short description of national penalties and measures, and, where necessary for distinguishing between some problematic offences, a short description of the constitutive elements of these national offences. A list of national criminal courts should also be provided with the aim of allowing an automatic translation of names of these courts. This Article links the timing for submission of the listed information with the moment of notifying the Council and the Commission by Member States pursuant to Article 11 i of the Framework Decision about their readiness to use the standardised format and to transmit it electronically to other Member States. The relevant updates will have to be conveyed regularly. The information will be accessible to national judicial authorities through any available electronic channels to ensure full transparency and mutual understanding. Article 6 - 7 - Committee, Committee procedure and the implementing measures Article 7 sets up a committee which will assist the Commission in developing ECRIS. Article 6 provides that the reference tables of categories of offences and sanctions, as well the technical standards used for the exchange of information will require constant revision and regular updates. It also envisages the adoption of rules on statistics as well as the adoption of a manual setting out the detailed rules for the exchange of information in order to ensure that national users of ECRIS share the common understanding of various notions and procedures. This manual should address in particular modalities of identification of offenders, common understanding of the categories of offences and sanctions listed in Annexes A and B, explanation of problematic national offences and sanctions, as well as the procedures governing the exchange of information. Accordingly, Article 6 vests the Commission assisted by a Committee with the implementing powers with respect to all such aspects of the operation and development of ECRIS. Article 7 defines the procedure for the adoption of measures necessary for the implementation of this Decision by analogy to the regulatory procedure under Community law.