Explanatory Memorandum to COM(2008)825 - Establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Regulation (Recast version) - Main contents
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| dossier | COM(2008)825 - Establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Regulation (Recast ... |
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| source | COM(2008)825  |
| date | 03-12-2008 |
- Grounds for and objectives of the proposal
Council Regulation (EC) No 2725/2000/EC of 11 December 2000 for the establishment of ‘EURODAC’ (hereinafter: EURODAC Regulation) i came into force on 15 December 2000. EURODAC, a Community-wide information technology system, was created to facilitate the application of the Dublin Convention,[2] which aimed at establishing a clear and workable mechanism for determining responsibility for asylum applications lodged in one of the Member States of the EU. The Convention was replaced by a Community law instrument, Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (ie. the Dublin Regulation).[3] EURODAC started operations on 15 January 2003.
The Commission published its report on the evaluation of the Dublin system i (hereinafter: Evaluation Report) in June 2007, covering the first 3 years of the operation of EURODAC (2003-2005). Whilst acknowledging that the Regulation is applied in a generally satisfactory way, it identified certain issues related to the efficiency of the current legislative provisions and announced the issues which have to be tackled in order to improve EURODAC's support to facilitate the application of the Dublin Regulation.
As announced in the Policy Plan on Asylum i, this proposal is part of a first package of proposals which aim to ensure a higher degree of harmonisation and better standards of protection for the Common European Asylum System (CEAS). It is adopted at the same time of the recast of the Dublin Regulation i and the Reception Conditions Directive i. In 2009, the Commission will propose to amend the Qualification Directive i and the Asylum Procedures Directive.[9] In addition, in the first quarter of 2009 the Commission will propose the establishment of a European Asylum Support Office, which will aim to provide practical assistance to Member States in taking decisions on asylum claims. The Support Office will also provide assistance to Member States who are faced with particular pressures on their national asylum system, notably because of their geographical position, to comply with requirement of Community legislation, by providing specific expertise and practical support.
The Evaluation Report observed the continuing late transmission of fingerprints by a number of Member States. The EURODAC Regulation currently only provides a very vague deadline for the transmission of fingerprints, which can cause significant delays in practice. This is a crucial issue since a delay in transmission may lead to results contrary to the responsibility principles laid down in the Dublin Regulation.
The Evaluation Report underlined that lack of an efficient facility for Member States to inform each other of the status of the asylum seeker has lead to inefficient management of deletions of data . The Member States who entered data on a specific person are often unaware that another MS of origin deleted data and therefore don't realise they should delete their data relating to the same person. As a consequence, the respect of the principle that no data should be kept in a form which allows the identification of data subjects for longer than is necessary for the purposes for which data were collected cannot therefore be sufficiently monitored.
According to the analysis of the Evaluation Report, unclear specification of national authorities having access to EURODAC hinders the monitoring role of the Commission and the European Data Protection Supervisor (EDPS).
The statistics of EURODAC reveal that some persons already granted asylum in a Member State nevertheless apply again in another, or in some cases even in the same Member State. According to the EURODAC Regulation in force however, this information is not available to Member States introducing the data of such a person upon re-application. As a result, persons already enjoying asylum in one of the Member States can apply again in a second Member State, which is against the principle of having only one Member State responsible.
Practical changes, the need for consistency with the evolution of the asylum acquis taken place since the adoption of Council Regulation (EC) No 2725/2000/EC, as well as the placement of the operational management of EURODAC under a new management structure require several technical amendments.
A thorough impact assessment examined several options to each of the problems identified by the Evaluation Report. Therefore the present proposal intends to recast Council Regulation (EC) No 2725/2000/EC and its implementing regulation, Council Regulation (EC) No 407/2002/EC i (hereinafter: Implementing Regulation) in order inter alia to improve the efficiency of the implementation of the EURODAC Regulation, to ensure consistency with the asylum acquis evolved since the adoption of the Regulation, to update some provisions taking account of factual developments since the adoption of the Regulation, to establish a new management framework and to better ensure the respect of personal data.
- General context
The Hague Programme called for the submission by the Commission of the second-phase instruments of the Common European Asylum System (CEAS) to the Council and the European Parliament with a view to their adoption before the end of 2010.
The Commission's intention to propose amendments to the EURODAC Regulation in the framework of the second phase of the Common European Asylum system was confirmed in its recently published Policy Plan on Asylum – an integrated approach to protection across the EU i.
In order to ensure a level of consistency in the second phase of the construction of the Common European Asylum System, the present recast of the EURODAC Regulation and its implementing regulation is proposed in parallel to the proposal on the amendment of the Dublin Regulation.
Should no action on EU level be taken to address the problems described above, the identified problems would continue to persist, since the present wording of the Regulation will not be sufficient to ensure a high standard of efficiency in supporting the application of the Dublin Regulation. Member States could decide to follow certain interpretations of their own which might interfere with the correct and uniform application of the EURODAC Regulation, thus resulting in serious divergences creating legal uncertainty.
The Dublin System consist of the Dublin i and EURODAC Regulations, and their two implementing regulations: Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national i and Council Regulation (EC) No 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No 2725/2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention. i
This proposal is fully in line with the Tampere European Council Conclusions of 1999, the Hague programme of 2004 and the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum and protection of personal data.
The SIS II i and VIS i Regulations stipulate the need to establish a Management Authority for the purpose of operating their large-scale IT systems. In the joint statements accompanying these Regulations, the Council and the European Parliament agreed that the Management Authority should be an Agency.[17] The Impact Assessment prepared in view of the establishment of the Agency concluded that, in the long term, the housing of all large-scale IT systems in one location under one management and running on the same platform would serve to improve productivity and reduce operational costs. Therefore, it considered a new Regulatory Agency to be indeed the best option for carrying out the tasks of the 'Management Authority' for SIS II, VIS and also for EURODAC.
During the recast exercise, due attention was given to fundamental rights. The right to asylum and protection of personal data were considered in the Impact Assessment attached to the proposal.
As regards the right to asylum, amendments to the provisions of the Regulation on the information to be given to asylum seekers on the application of the Dublin system enables them to effectively exercise their right to asylum.
The new provision that requires Member States to indicate in EURODAC the fact that they apply the discretionary clauses of the Dublin Regulation, facilitates communication amongst Member States and therefore prevents uncertainty for the asylum seeker, by making clarity about which Member States handles his case.
As regards the protection of personal data, by allowing for efficient management of deletions of data , the proposal ensures that no data should be kept in a form which allows the identification of data subjects for longer than is necessary for the purposes for which data were collected. The same principle is underpinning the amendment aligning the storage period for data on third country nationals or stateless persons fingerprinted in connection with the irregular crossing of an external border with the period until which the Dublin Regulation allocates responsibility on the basis of that information.
Therefore, this proposal is fully in line with the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum (Article 18) and protection of personal data (Article 8) and has to be applied accordingly.
The Commission published the Green Paper on the future Common European Asylum System i in June 2007, which proposed options concerning the future features of the Dublin and EURODAC Regulations. In the framework of the wide public consultation on the Green Paper, 89 contributions were received from a wide range of stakeholders.
The Commission services discussed the outcome of the Evaluation Report and the outline of the planned amendments to the Regulation with the Member States in the Committee on Immigration and Asylum (CIA) in March 2008 as well as in two informal expert meetings with Member States’ practitioners dedicated to the conclusions of the Evaluation Report in October 2007 and April 2008.
UNHCR, the European Council on Refugees and Exiles (ECRE) as well as the EDPS were also informally consulted in the preparation of the amendment of the Regulation.
Contents
- Legal elements of the proposal
- Existing provisions in the area of the proposal
- CONSISTENCY WITH OTHER POLICIES
- Compliance with the Charter of Fundamental Rights
- CONSULTATION OF INTERESTED PARTIES
- Legal basis
- IMPACT OF THE PROPOSAL ON NON EU MEMBER STATES ASSOCIATED TO THE DUBLIN SYSTEM
- SUBSIDIARITY PRINCIPLE
- Proportionality principle
In order to improve the efficiency of the implementation of the EURODAC Regulation, clearer deadlines for data transmission will be set.
In order to better address data protection requirements, better management of deletions of data from the central database will be facilitated by ensuring that the Central System informs Member States of the need to delete data.
The EURODAC Regulation in force stipulates that five years after EURODAC starts operations, a decision would be taken as to whether the data on refugees (until now stored but not searchable) should be stored and searched or should be erased in advance once the data subject is recognised as a refugee. In order to inform Member States of the status of those applicants who have in fact been already granted international protection in a Member State, data on refugees will be deblocked (i.e. made available for searches).
In order to better facilitate the application of the Dublin Regulation, Member States will be required to indicate in EURODAC the fact that they apply the discretionary clauses provided for by that Regulation, ie. assume responsibility for the assessment of the claim of an applicant for whom they would not normally be responsible under the criteria of the Dublin Regulation.
In order to ensure consistency with the asylum acquis evolved since the adoption of the Regulation, the Commission proposes to extend its scope to cover subsidiary protection and align the terminology of the Regulation with that of the other asylum instruments on the definition of foreigners ("third country nationals and stateless persons"). Consistency with the Dublin Regulation (as well as data protection concerns, notably the principle of proportionality) will be ensured by aligning the storage period for data on third country nationals or stateless persons fingerprinted in connection with the irregular crossing of an external border with the period until which Article 14 i of the Dublin Regulation allocates responsibility on the basis of that information (i.e. one year).
It is also important to update some provisions taking account of factual developments since the adoption of the Regulation. Hence, factual developments such as the change of the legal instrument the application of which the EURODAC Regulation facilitates (Dublin Convention to the Dublin Regulation), the taking over of the tasks of the Joint Supervisory Authority by the later established EDPS and the initially foreseen but now obsolete practice of transmitting data to the Central Unit by means other than digital transmission (eg. on DVD or on paper) are reflected in the proposal.
In order to address data protection concerns, better respect of personal data is facilitated by amending the provision on the designation of responsible national authorities (specification of the exact responsible unit as well as the connection between its work and the purpose of EURODAC is required). In the spirit of transparency, the list of these authorities will be published in the Official Journal of the European Union, thereby adhering to the data protection concerns of stakeholders.
The proposal includes updating of and clearer definitions for the different stages of management of the database (Commission, Management Authority, Central System). SIS II and VIS already share a technical platform and it is envisaged that the biometric matching functionality (BMS) will, in the future, be common to SIS II, VIS and EURODAC. Until a Management Authority for the management of the three systems is established, the Commission shall remain responsible for operating the Central Unit and ensuring the security of data transmission to/from EURODAC.
At the time of the adoption of the EURODAC Regulation, it was decided that some provisions would be adopted in an implementing regulation, for which the Council reserved to itself the power of adoption. The Commission considers the nature of the provisions in the two instruments as similar. Furthermore, the procedure for their adoption is the same (ie. codecision). Therefore, the proposal envisages to repeal the Implementing Regulation and to include its content in the EURODAC Regulation .
The only provision[19] for which a comitology procedure was foreseen proved to be of insignificant nature, therefore during the more than five years of operation of the system, the Commission has not called for a meeting of this committee. Hence it is proposed to abolish the committee provided for by the Regulation.
This proposal amends Council Regulation (EC) No 2725/2000/EC and uses the same legal base as that act, namely Articles 63(1)(a) of the Treaty establishing the European Community.
Title IV of the Treaty is not applicable to the United Kingdom and Ireland, unless those two countries decide otherwise, in accordance with the provisions set out in the Protocol on the position of the United Kingdom and Ireland attached to the Treaties.
The United Kingdom and Ireland are bound by Council Regulation (EC) No 343/2003/EC following their notice of their wish to take part in the adoption and application of that Regulation based on the above-mentioned Protocol. The position of these Member States with regard to the current Regulation does not affect their possible participation with regard to the amended Regulation.
In accordance with Articles 1 and 2 of the Protocol on the position of Denmark attached to the Treaties, Denmark does not take part in the adoption of this Regulation and is not bound by it nor subject to its application. However, given that Denmark applies the current Dublin Regulation, following an international agreement i that it concluded with the EC in 2006, it shall, in accordance with Article 3 of that agreement, notify the Commission of its decision whether or not to implement the content of the amended Regulation.
In parallel to the association of several non-EU Member States to the Schengen acquis, the Community concluded, or is in the process of doing so, several agreements associating these countries also to the Dublin/EURODAC acquis:
-the agreement associating Iceland and Norway, concluded in 2001 i;
-the agreement associating Switzerland, concluded on 28 February 2008 i;
-the protocol associating Liechtenstein, signed on 28 February 2008 i.
In order to create rights and obligations between Denmark –which as explained above has been associated to the Dublin/EURODAC acquis via an international agreement – and the associated countries mentioned above, two other instruments have been concluded between the Community and the associated countries i.
In accordance with the three above-cited agreements, the associated countries shall accept the Dublin/EURODAC acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision whether or not to accept the content of that act, once approved by the Council and the European Parliament. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/EURODAC acquis, the 'guillotine' clause is applied and the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise by unanimity.
Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the Common European Asylum System (CEAS) to the issues described above as problems regarding the EURODAC Regulation. Although an important level of harmonization was reached in the Regulation adopted in 2000, there is still room for developing the support that EURODAC provides to the implementation of the Dublin Regulation. The need for EU action regarding the management of an EU database which was created for assisting in the implementation of a Regulation dealing with transnational movements of asylum seekers seems clear.
The impact assessment on the amendment of the EURODAC Regulation assessed each suboption regarding the problems identified so as to represent an ideal proportion between practical value and efforts needed. It concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems.
ê 2725/2000/EC (adapted)