Explanatory Memorandum to COM(2010)555 - Establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] (Recast version) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)555 - Establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] ... |
|---|---|
| source | COM(2010)555  |
| date | 11-10-2010 |
EURODAC was established by Regulation (EC) No 2725/2000 concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention i . A recast proposal for the amendment of the EURODAC Regulation was adopted by the Commission in December 2008 i (hereafter the December 2008 proposal).
This proposal was designed to ensure a more efficient support to the application of the Dublin Regulation and to properly address data protection concerns. It also aligned the IT management framework to that of the SIS II and VIS Regulations by providing for the taking over of the tasks of the operational management for EURODAC by the future Agency for the operational management of large-scale IT systems in the area of freedom, security and justice i (hereinafter: IT Agency). The December 2008 proposal also proposed to repeal the Implementing Regulation and to include its content in the EURODAC Regulation. Finally, changes were introduced to take into account developments in the asylum acquis and technical progress which took place since the adoption of the Regulation in 2000.
The proposal was sent to European Parliament and the Council on 3 December 2008. The European Parliament referred the proposal to its Committee on Civil Liberties, Justice and Home Affairs (LIBE). At its sitting on 7 May 2009, the European Parliament adopted a legislative resolution i endorsing the Commission proposal subject to a number of amendments.
The Commission adopted an amended proposal in September 2009 in order to, on the one hand, take into account the resolution of the European Parliament and the results of negotiations in the Council, and, on the other hand, introduce the possibility for Member States' law enforcement authorities and Europol to access the EURODAC central database for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences (the September 2009 proposal).[5]
In particular, that proposal introduced a bridging clause to allow access for law enforcement purposes as well as the necessary accompanying provisions and amends the December 2008 proposal. It was presented at the same time as the Proposal for a Council Decision on requesting comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes i (hereafter: the Council Decision), spelling out the exact modalities of such access.
The European Parliament did not issue a legislative resolution on the September 2009 proposals.
With the entry into force of the Treaty on the Functioning of the European Union (TFEU) and the abolition of the pillar system, the proposal for a Council Decision lapsed. According to the Communication on the consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decision-making procedures,[7] such proposal would be formally withdrawn and replaced with a new proposal to take account of the new framework of the TFEU.
However, with a view to progressing on the negotiations on the asylum package and facilitating the conclusion of an agreement on the EURODAC Regulation, the Commission considers it more appropriate at this stage to withdraw from the EURODAC Regulation those provisions referring to the access for law enforcement purposes.
The Commission considers that enabling thereby the swifter adoption of the new EURODAC Regulation will also facilitate the timely set up of the Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, since that Agency is planned to be also responsible for the management of EURODAC.
Contents
While the present amended proposal introduces two technical provisions,[8] its main purpose is to amend the previous proposal (ie. from September 2009) by deleting from it the option of access for law enforcement purposes. Therefore, no new consultation and impact assessment were conducted specifically for the present proposal. However, the Impact Assessment of 2008 i is still valid for its purposes.
This proposal amends the Amended proposal for a Commission Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of Eurodac for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] - COM(2009) 342.
The present amended proposal uses Article 78(2)(e) of the Treaty on the Functioning of the European Union (TFEU) as legal base, which is the TFEU Article corresponding to the legal base of the original proposal (Article 63(1)(a) of the Treaty establishing the European Community).
Title V of the TFEU 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 annexed to the Treaty on the European Union (TEU) and to the TFEU.
The United Kingdom and Ireland are bound by Council Regulation (EC) No 2725/2000 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.
Under the Protocol on the position of Denmark, annexed to the TEU and the TFEU, Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (with the exception of 'measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas'). Therefore, 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.
The amendments of the present proposal are the following.
Articles 2(1)c(iv), 5(f)-(j) and 21 i are deleted, since they were introduced to accompany the bridging clause allowing access for law enforcement purposes.
In Article 18 i second indent and in Article 24(1)(b), references to access for law enforcement purposes are deleted.
In Article 3, the bridging clause enabling access for law enforcement purposes is deleted.
In Article 18 i the need for a check of the automated hit result by a fingerprint expert is clarified.
In Article 24 i appropriate provisions are inserted in order to allow the committee under the Dublin Regulation to include information on EURODAC in the leaflet to be prepared under Article 4 i.
The present proposal has important savings on the budgetary planning compared to the previous proposal [COM(2009) 344], which provided for the possibility to carry out comparisons for law enforcement purposes.
This proposal retains from the 2009 proposal the improvements of the system as regards new, asylum-focused functionalities regarding information on the status of the data subject (which were the outcome of negotiations in the Council) and, at the same time, deletes the functionality of law enforcement searches. The financial statement attached to this proposal reflects this change.
The cost estimate of 230.000 EUR consists of IT-related services, software and hardware and would cover the customisations required to the EURODAC central system.
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.[14]
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.
ê 2725/2000/EC (adapted)