Explanatory Memorandum to COM(2012)254 - Establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EU) 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) and to request comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (Recast version) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)254 - Establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EU) No […/…] ... |
|---|---|
| source | COM(2012)254  |
| date | 30-05-2012 |
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 (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 (hereafter: 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 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).[6]
In particular, that proposal introduced a bridging clause to allow access for law enforcement purposes as well as the necessary accompanying provisions and amended 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[7] (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,[8] such proposals 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 considered it more appropriate in 2010 to withdraw from the EURODAC Regulation those provisions referring to the access for law enforcement purposes and presented a new proposal on 11.10.2010[9] similar to the 2008 recast of the EURODAC Regulation.
The Commission noted in the Explanatory Memorandum to its 2010 proposal that enabling the swifter adoption of the new EURODAC Regulation would 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 to become responsible for the management of EURODAC as from 1 December 2012.
It has since become clear however that including law enforcement access for EURODAC is needed as part of a balanced deal on the ngeotiations of the Common European Asylum System package with a view to completing the package by the end of 2012. Accordingly the Commission has decided to present again proposals to permit law enforcement access to EURODAC, but on this occasion merged into a single new EURODAC Regulation as this is now possible since the entry into force of the TFEU and it is better legislative practice to present a single instrument.
Regulation (EU) No 1077/2011 of the European Parliament and the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale information systems in the area of freedom, security and justice provides that the Agency should perform the tasks relating to EURODAC conferred on the Commission as the authority responible for the operational management of EURODAC in accordance with Regulations (EC) No 2725/2000 and (EC) No 407/2002 as well as certain tasks related to the communication infrastructure, namely, supervision, security and the coordination of relations between the Member States and the provider. The Agency should take up the tasks entrusted to it under this Regulation and the relevant provisions of Regulation (EU) No 1077/2011 should be amended accordingly. In addition, Europol should be granted observer status in the Management Board of the Agency when a question concerning EURODAC is on the agenda.
The current proposal therefore withdraws the 2010 proposal and replaces it with a new one in order first to take into account the resolution of the European Parliament and the results of negotiations in the Council; second, to 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; and third, to introduce the necessary amendments to Regulation (EU) No 1077/2011.
The proposal addresses a structural information and verification gap that currently results from the lack of an EU instrument available to law enforcement authorities to determine the Member State that holds information on an asylum seeker. While data on EU citizens exist in many different databases in Member States which are in general accessible to law enforcement authorities in other Member States, there are no effective possibilities available for law enforcement authorities to exchange information on asylum seekers.
The intention is now to allow consultation of EURODAC by law enforcement authorities for the purpose of prevention, detection and investigation of terrorist offences and other serious criminal offences. This aims at enabling law enforcement authorities to request the comparison of fingerprint data with those stored in the EURODAC central database when they seek to establish the exact identity of or get further information on a person who is suspected of a serious crime or a crime victim. Fingerprint data constitute an important element of establishing the exact identity of a person and it is generally acknowledged as an important source of information for prevention, detection and investigation of terrorist offences and other serious criminal offences. On a hit/'no hit' basis, the requesting law enforcement authority will be informed if information on the person is available in the national asylum database of another Member States. In this case, further information on the person can be requested from that Member State by using existing instruments for information exchange, such as Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities.
Comparison of fingerprints in possession of Member States' designated law enforcement authorities and Europol with those stored in the EURODAC database will only be possible in case of necessity of such comparison in a specific case under well-defined circumstances. Provisions on access to data and data security take into account access for law enforcement purposes. It is therefore necessary to amend the EURODAC Regulation to include this additional purpose.
The Hague Programme called for the improvement of the cross-border exchange of data by law enforcement authorities, also by extending the access to existing data filing systems of the European Union. The Stockholm Programme called for well targeted data collection and a development of information exchange and its tools that is driven by law enforcement needs.
The conclusions of the Mixed Committee of the JHA Council of 12-13 June 2007 invited the Commission to present as soon as possible the necessary proposals to achieve the aim of granting access under certain conditions to EURODAC to Member States' law enforcement authorities and Europol, to assist them in the course of their duties in relation to the prevention, detection and investigation of terrorist offences and other serious criminal offences.
The impacts of the access for law enforcement purposes introduced in the present amended proposal are assessed by an Impact Assessment attached to this proposal.
The current proposal also amends Regulation (EU) No 1077/2011 (the Agency Regulation) in order to align it to the present Regulation.
This proposal is fully in line with the Hague programme of 2004 and the Stockholm Programme of 2009, the European Pact on Immigration and Asylum endorsed by the European Council of 15-16 October 2008 and the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum and protection of personal data.
Furthermore, this proposal is in line with the Commission's Communication 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[10], which noted that the Council and the law enforcement community identify the absence of access by internal security authorities to VIS, SIS II immigration and EURODAC data as a shortcoming, which results in a serious gap in the identification of suspected perpetrators of terrorist or serious crimes. Since the adoption of the Communication in 2005, the VIS Decision was adopted in order to grant law enforcement authorities and Europol access to that database.
The respect for fundamental rights is a legal requirement subject to the scrutiny of the European Court of Justice. The institutions, bodies, agencies and offices of the European Union and its Member States when implementing European Union law are bound by the EU Charter of Fundamental Rights which has the same legal value as the Treaties. Respect of fundamental rights is a condition of the lawfulness of EU acts. During the drafting exercise, full account was taken of the impacts on fundamental rights in order to ensure that the proposal complies with the fundamental rights protected by the Charter. Due attention to the right to asylum and the right to the protection of personal data was thoroughly considered in the Impact Assessment attached to the proposal.[11]
As regards the right to asylum, guaranteed by Article 18 of the Charter, 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 State handles his case. With regard to the special situation of persons seeking international protection, the concern was raised that data extracted from EURODAC for law enforcement purposes could end up in the hands of the countries from which the applicants fled and fear persecution. This could have adverse effects on the applicant, his relatives and friends, thus potentially discouraging refugees from formally applying for international protection in the first place. As a result of this scrutiny, the proposal contains a specific prohibition of sharing personal data obtained pursuant to this proposal with third countries, organisations or entities. In addition, an extensive monitoring and evaluation mechanism of the proposal is foreseen. This evaluation will include whether the operation of the search functionality for law enforcement purposes will have led to the stigmatisation of persons seeking international protection. Consequently, the proposal does not limit the right to asylum as guaranteed by Article 18 of the Charter.
As regards the right to the protection of personal data guaranteed by Article 8 of the Charter, by allowing for efficient management of erasure 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 underpins 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.
The comparison with EURODAC data for the prevention, detection or investigation of terrorist offences or other serious criminal offences constitutes a limitation of the right to the protection of personal data, as these purposes are not compatible with the purposes for which the data were originally collected and for which EURODAC has been established. Moreover, EURODAC contains data of individuals who in principle are not suspected of committing any crime.
The use of EURODAC data for law enforcement purposes implies a change of purpose of the data processed and constitutes an 'interference' with the right to data protection[12]. As stipulated by Article 52 i of the Charter, any limitation to the right to the protection of personal data must be provided for by law, must respect the essence of the right, must be necessary to achieve an objective of general interest recognised by the Union or to protect the rights and freedoms of others, and must be proportionate, i.e. appropriate for attaining the objective pursued and not going beyond what is necessary to achieve it.
The law imposing such a limitation must be formulated with sufficient precision to allow individuals to adjust their conduct and protect them against arbitrariness. It must also indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise[13]. The prevention, detection or investigation of terrorist offences or other serious criminal offences contributes to the establishment of an area of freedom, security and justice as a general interest recognised by the Union in Article 3 TFEU. Article 8 of the European Convention of Human Rights also recognises that interference by a public authority with a person's right to privacy may be justified as necessary in the interest of national security, public safety or the prevention of crime. The proposal provides for a more effective and less intrusive measure for competent law enforcement authorities to determine if another Member State holds data on an asylum seeker. Under current rules, Member States' law enforcement authorities have to contact bilaterally all other Member States participating in EURODAC to determine if another Member State holds data on an asylum seeker. This inefficient crime resolution under the current rules requires that law enforcement authorities access more personal data or data on more persons than is necessary to establish whether relevant information exists.
Indeed, the proposal provides for effective safeguards that mitigate the limitation of the right to the protection of personal data. The comparison of EURODAC data for law enforcement purposes follows a two-step approach, as this comparison may only be made after a prior Prüm check under Council Decision 2008/615/JHA and if the Prüm check returns negative results. This means that Member States that have not implemented Council Decision 2008/615/JHA will not be able to conduct searches in EURODAC for law enforcement purposes.
Moreover, the comparison of EURODAC data for law enforcement purposes may only be made for the prevention, detection or investigation of terrorist offences or other serious criminal offences if it is necessary in a specific case as they are defined in Council Framework Decisions 2002/475/JHA on combating terrorism and 2002/584/JHA on the European arrest warrant. This excludes both the comparison of EURODAC data for the crimes that are not serious and a systematic or mass comparison of data. Moreover, designated law enforcement authorities may only request the comparison with EURODAC data if there are reasonable grounds to consider that such comparison will substantially contribute to the prevention, detection or investigation of the criminal offence in question. Upon receipt of such request by a designated law enforcement authority, a verifying authority verifies whether the strict conditions for requesting a comparison with EURODAC data for law enforcement purposes are fulfilled. If the verifying authority agrees with the request, it will transmit the request to the National Access Point which will process it to the EURODAC Central System. Member States may not conduct searches on a systematic and routine basis. Thus, as an additional safeguard, the proposal provides for a three-step approach in relation to the authorities that can consult the EURODAC system. The comparison with EURODAC for law enforcement purposes will provide a result on a hit/'no hit' basis, i.e. it will only determine if another Member State holds data on an asylum seeker. The proposal does not provide for new possibilities to process additional personal information in the follow-up to a hit.
Furthermore, the proposal also lays down strict data security measures to ensure the security of personal data processed and establishes supervision of the processing activities by independent public data protection authorities and documentation of all searches conducted. The proposal also states that the processing of all personal data carried out by law enforcement authorities on EURODAC data once they have been extracted is subject to Council Framework Decision 2008/977/JHA.
Individuals should be given rights of access, correction and redress in particular the right to a judicial remedy, and supervision of processing operations by public independent authorities should be ensured. The European Data Protection Supervisor (as regards all processing activities in EURODAC) and national data protection authorities will supervise the compliance with data protection law and if appropriate will enforce it. Consequently, the limitation of the right to the protection of personal data by the comparison with EURODAC data as provided by this proposal is surrounded with the necessary safeguards to ensure the respect of the fundamental rights.
Databases of asylum seekers might contain fingerprint data from persons as young as 14 years, but children of this age are not criminally responsible in all Member States. Member States have to ensure that the data of children they retrieve by consulting such databases and which, according to their national law, cannot be held criminally responsible, are treated in a legal and non-discriminatory manner (in comparison with the data from children who are citizens of the concerned Member State) while respecting the principle of the best interests of the child.
Therefore, this proposal fully complies 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). The proposal is also in line with Article 16 TFEU, which guarantees everyone the right to the protection of personal data.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- General context
- 2. Consistency with other policies
- 3. Compliance with the Charter of Fundamental Rights
- 6. IMPACT OF THE PROPOSAL ON NON-EU MEMBER STATES ASSOCIATED TO THE DUBLIN SYSTEM
- 7. Detailed explanation of the proposal
- 9. Subsidiarity principle
- 10. Proportionality principle
- ê 2725/2000/EC (adapted)
The present amended proposal reinstates all of the provisions proposed in the lapsed draft Council Decision of 2009. In addition, it introduces two technical provisions relating to the asylum provisions.[14] None of these elements is new and all were explored thoroughly in the Impact Assessments to the previous 2008 and 2009 proposals. Therefore, no new consultation and impact assessment were conducted specifically for the present proposal. However, the Impact Assessments of 2008 and 2009[15] are still valid for its purposes.
The Commission published the Green Paper on the future Common European Asylum System[16] 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 European Data Protection Supervisor (EDPS) were also informally consulted in the preparation of the amendment of the Regulation.
During the drafting of the 2008 proposals concerning improvements to the functioning of EURODAC and to the 2009 amended proposals relating to law enforcement access, the Commission consulted the States applying the Dublin acquis, i.e. the Member States, Iceland, Norway and Switzerland, as well as to Europol by way of two questionnaires and an expert meeting which took place in Brussels on 25-26 September 2007, during which the experts had the opportunity to clarify the replies to the questionnaire and express further views. Several intergovernmental organisations, non-governmental organisations and other experts working in the area of asylum, fundamental rights were consulted during a meeting in Brussels on 8 October 2007. Representatives of the national data protection authorities of the States that implement the Dublin acquis, as well as the Joint Supervisory Body of Europol and the European Data Protection Supervisor were consulted in the framework of a meeting held in Brussels on 11 October 2007. As Liechtenstein has only applied the Dublin acquis very recently, there has not been an opportunity to consult Liechtenstein on this proposal.
A detailed list of consulted parties was included in the Impact Assessment attached to the 2009 proposal.
This proposal amends the 2010 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(2010) 555.
This proposal also amends Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice
The present amended proposal uses Article 78(2)(e) of the Treaty on the Functioning of the European Union (TFEU) as legal base concerning criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection, 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). In addition, it uses Article 87(2)(a) as the legal base concerning the elements related to the collation, storage, processing, analysis and exchange of relevant information for law enforcement purposes; and Article 88(2)(a) as the legal base concerning Europol's field of action and tasks including the collection, storage, processing, analysis and exchange of information.
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 Eurodac Regulation, following an international agreement[17] 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.
This proposal maintains the changes made in the previous proposals to abolish the Committee provided for in Article 22 of the 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[18];
– the agreement associating Switzerland, concluded on 28 February 2008[19];
– the protocol associating Liechtenstein, concluded on 18 June 2011[20].
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.[21]
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.
The scope of the above-cited association agreements with Iceland, Norway, Switzerland and Liechtenstein as well as the parallel agreement with Denmark does not cover law enforcement access to EURODAC.
The current proposal, as per the 2009 proposal, notes that the comparison of fingerprint data using EURODAC may only be made after national fingerprint databases and the Automated Fingerpirnt Databases of other Member States under Council Decision 2008/615/JHA (the Prüm Agreements) return negative results. This rule means that if any Member State has not implemented the above Council Decision and cannot perform a Prüm check, it also may not make a EURODAC check for law enforcement purposes. Similarly, any associated States that have not implemented or do not participate in the Prüm Agreements may not conduct such a EURODAC check.
References to the 'blocking' of data were changed in the 2008 recast to the 'marking' of data concerning recognised beneficiaries of international protection. Under the original Regulation, the data of persons granted international protection remained on the EURODAC system but were blocked. As such, the EURODAC system recorded when there were hits concerning the fingerprints of recognised beneficiaries of international protection, but Member States were not informed of these hits. The new proposal was designed to 'mark' these data instead in order to inform the Member States if there is a hit for a marked data subject. This is to inform Member States if an existing beneficiary of international protection attempts to put in a fresh claim for asylum.
Several of the amendments to the 2010 proposal are extracted directly from the lapsed September 2009 proposal on law enforcement access to EURODAC. As such, this section has been split into those areas amending the remainder of the proposal and amendments that are largely inspired by the September 2009 proposal, including their article references for ease of comparison.
The elements incorporated from the September 2009 proposal are the following.
Articles 1 laying down the conditions – from Article 1 of the September 2009 proposal.
Article 5 on designated authorised to access EURODAC data – from Article 3 of the September 2009 proposal, except for clarified title.
Article 6 on verifying authorities whose purpose is to ensure that the conditions for requesting comparisons of fingerprints with EURODAC data are fulfilled – from Article 4 of the September 2009 proposal.
Article 7 on Europol – from Article 5 of the September 2009 proposal.
Chapter VI (Articles 19-22) on the procedure for comparison and data transmission for law enforcement purposes – from Articles 6-9 of the September 2009 proposal.
Article 33 on data protection, 34 on data security, 35 on prohibition of data transfers, 36 on logging and transfers – from Articles 10-13 of the September 2009 proposal.
Article 39 on costs related to the prevention, detection or investigation of any of the criminal offences defined in this Regulation – from Article 14 of the September 2009 proposal.
Article 40(8) and (9) on annual reporting on law enforcement access to EURODAC – modified from Article 17 i and 17 of the September 2009 proposal.
Article 43 on notification of designated and verifying authorities – from Article 16 of the September 2009 proposal.
The elements that were neither in the September 2009 proposal nor the 2010 proposal are the following:
Article 2 i contains further definitions concerning the IT Agency and Europol and the nature of terrorist and criminal offences.
Article 2 and 2 clarify for data protection purposes when Directive 95/46/EC and how Framework Decision 2008/977/JHA apply.
Article 29 – the wording on the leaflet has been enhanced to ensure that it is simple and written in a language the applicant can understand.
Chapter VIII (Article 38) makes several amendments to Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice. Article 41 – the words 'and Europol' have been included into the article on penalties.
Throughout the recast, the references to the 'Management Authority' have been replaced with the 'Agency'.
The present proposal entails a technical amendment to the EURODAC central system in order to provide for the possibility to carry out comparisons for law enforcement purposes. A new functionality to search on the basis of a latent is also proposed.
This proposal retains from the 2010 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). The financial statement attached to this proposal reflects this change and is also valid for the elements concerning the request for comparison with EURODAC data by Member States' law enforcement authorities and by Europol for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences - COM(2009) 344.
The non-administrative cost estimate of 2,415 million EUR (2,771 million EUR including administrative / human resources costs) includes costs of 3 years of technical maintenance, and consists of IT-related services, software and hardware and would cover the upgrade and customisation to allow searches for law enforcement purposes and also the changes for the original asylum purpose unrelated to law enforcement access. The amounts of the EURODAC recast proposal adopted on 10 September 2009 have largely been reproduced in the present financial statement and only altered slightly to reflect the staffing costs in the IT Agency. Given the relatively small overall cost, no extra resources and no rectification of the Home Affairs budget will be sought and funding will be found from within existing budget lines, either of the IT Agency or from the Home Affairs budget.
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.
An amendment of the EURODAC Regulation is also required in order to add a secondary purpose thereto, namely allow access for the purpose to fight against terrorism and crime to data stored in the EURODAC central database. This objective cannot be sufficiently achieved by the Member States, since such amendment can only be proposed by the Commission.
The impact assessments published along with the 2008 and 2009 proposals[22] assessed each sub-option 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.
The relevant Impact Assessment concluded that access of law enforcement authorities to EURODAC is the only timely, accurate, secure and cost-efficient way to identify whether and if so, where data about asylum seekers are available in the Member States. No reasonable efficient alternative to EURODAC exists to establish or verify the exact identity of an asylum seeker that allows law enforcement authorities to obtain the same result.
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