Explanatory Memorandum to COM(2021)96 - Amending regulations on information systems on conviction information (ECRIS-TCN), police and judicial cooperation, asylum and migration, and on screening at external borders - Main contents
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| dossier | COM(2021)96 - Amending regulations on information systems on conviction information (ECRIS-TCN), police and judicial cooperation, asylum ... |
|---|---|
| source | COM(2021)96  |
| date | 02-03-2021 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
On 23 September 2020, the Commission adopted a Communication on a New Pact on Migration and Asylum that aims, inter alia, to put in place a common framework for asylum and migration management at EU level and to promote mutual trust between the Member States. One of the legislative proposals accompanying that Communication is the proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 (‘proposed Screening Regulation’ 1 ).
The proposed Screening Regulation addresses the challenges of managing mixed flows of migrants, by introducing a pre-entry screening at external borders, as an important step towards closing the gaps between external border controls and asylum and return procedures. The objective of the pre-entry screening is to ensure that the identity of the third-country nationals who cross the external border without authorisation as well as any health and security risks are quickly established and that the third-country nationals concerned are swiftly referred towards the applicable procedure (asylum, or procedures respecting Directive (EU) 2008/115/EC (Return Directive)) 2 . The proposed Screening Regulation also creates an EU framework for the screening of irregular migrants apprehended within the territory of the Member States and who eluded border controls on entering the Schengen area, with a view to better protecting the Schengen area.
The security checks as part of the screening should be at least of a similar level as the checks performed in respect of third country nationals that apply beforehand for an authorisation to enter the Union for a short stay, whether they are under a visa obligation or not.
It follows from the above that the automated verifications for security purposes in the context of the screening should be carried out against the same systems as for applicants for a visa or for a travel authorisation under the European Travel Information and Authorisation System (ETIAS) 3 , the Visa Information System (VIS) 4 , the Entry/Exit System (EES) 5 and the Schengen Information System (SIS) 6 . Persons submitted to the screening should also be checked against the European Criminal Records Information System for Third Country Nationals (ECRIS-TCN) 7 as regards persons convicted in relation to terrorist offences and other forms of serious criminal offences, Europol data, the Interpol Stolen and Lost Travel Documents database (SLTD) and Interpol Travel Documents Associated with Notices databases (TDAWN).
Since access to the Entry/Exit System (‘EES’), the European Travel Information and Authorisation System (‘ETIAS’), the Visa Information System (‘VIS’) and the European Criminal Records Information System for third country nationals (‘ECRIS-TCN’) is necessary for the authorities designated to carry out the screening, the regulations establishing those databases need to be amended to provide for this additional access right. The proposed Screening Regulation amends the Regulations establishing the VIS, the EES and ETIAS. Those regulations are all developments of the Schengen acquis regarding borders, as is the proposed Screening Regulation as a whole.
In view of the fact that Regulation (EU) No 2019/816, which establishes ECRIS-TCN, is not a development of the Schengen acquis, its amendment could not be part of the proposed Screening Regulation. Therefore, there is a need for a self-standing amendment of Regulation 2019/816 to provide for access rights in view of the proposed Screening Regulation.
In addition, the proposed Screening Regulation introduces an obligation to check the biometric data of the third country nationals concerned against the Common Identity Repository (CIR) established by Regulations (EU) 2019/817 8 and (EU) 2019/818 9 . The purpose of consulting CIR in the context of the screening is to allow checking identity data present in the EES, VIS, ETIAS, Eurodac and ECRIS-TCN in one go, in a fast and reliable manner, while ensuring a maximum protection of the data and avoiding unnecessary processing of or duplication of data.
While the proposed Screening Regulation provides for changes to Regulation (EU) 2019/817 which applies to the EES, VIS, ETIAS, due to variable geometry, the amendment to Regulation 2019/818 which applies to ECRIS-TCN and Eurodac was not part of the proposed Screening Regulation.
It follows from this that in order to provide access to all data stored in the Common Identity Repository (CIR) for the designated authorities in the context of screening, it is also necessary to amend Regulation (EU) 2019/818.
• Consistency with existing policy provisions in the policy area
The proposal contributes to achieving the objective of offering Union citizens an area of freedom, security and justice without internal frontiers, where appropriate measures are taken to prevent and combat crime, including organised crime and terrorism.
The proposal is in line with the purposes of the ECRIS-TCN as provided for in Article 7 of Regulation (EU) 2019/816, in particular paragraph 1 of that Article provides that authorities can use ECRIS-TCN in the context of “visa, acquisition of citizenship and migration procedures, including asylum procedures”.
It is without prejudice to the mechanism of exchanging criminal records information on Union citizens between Member States through the European Criminal Records Information System (ECRIS), as established by the Framework Decision 2009/315/JHA 10 and Decision 2009/316/JHA 11 .
• Consistency with other Union policies
The proposal enables the comprehensive verification of the relevant databases during the screening at the external borders and within the territory in line with the proposed Screening Regulation. As such, it contributes to the protection of the external borders and the prevention of unauthorised movements within the Schengen area. It is also consistent with the objectives of Regulation (EU) 2019/816 to improve the European Criminal Records Information System with regard to third country nationals and to contribute to the development of interoperability between all centralised EU information systems for security, border and migration management.
The proposal is also consistent with the modifications to be made by the proposed Screening Regulation in the interoperability framework as established by Regulations (EU) 2019/817 12 and (EU) 2019/818 13 by ensuring the same access rights to the European Criminal Records Information System for third country nationals during the screening as to the other relevant databases, such as the Entry/Exit System (EES), the European Travel Information and Authorisation System (ETIAS), and the Visa Information System (VIS).
The proposal also takes into consideration the interoperability framework established by Regulations (EU) 2019/817 and (EU) 2019/818.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal is based on Article 82(1), second subparagraph, point (d) of the Treaty on the Functioning of the European Union (‘TFEU’) which concerns facilitation of cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. That is the Treaty provision which served as legal basis for the regulations which it is proposed to amend.
• Subsidiarity (for non-exclusive competence)
Action in the area of freedom, security and justice falls within an area of competence shared between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, the subsidiarity principle is applicable by virtue of Article 5(3) of the Treaty on European Union: the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States (either at central level or at regional and local level), but rather at Union level (by reason of the scale or effects of the proposed action).
The objectives of this proposal cannot be sufficiently achieved by the Member States acting alone, and can be better achieved at the level of the Union. This is because they concern the access to information contained in an EU database and the facilitation of cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
• Proportionality
The proposal is proportionate to the identified objectives.
The proposal aims at aligning the access rights to the European Criminal Records Information System for third country nationals (ECRIS-TCN) with other databases automatically verified for security purposes during the screening at the external borders and within the territory to the access rights already granted in the context of the screening of applicants for a visa or of the screening of applicants for a travel authorisation under the European Travel Information and Authorisation System.
In line with the proposed Screening Regulation, the security checks including the consultation of the the European Criminal Records Information System for Third Country Nationals (ECRIS-TCN) database will be limited to identification of terrorist offences and other forms of serious criminal offences. Article 1 of the proposal reflects the modification made in Article 5(1)(c) of Regulation 2019/816 by the Proposal COM/2019/3 final 14 (ETIAS consequential) which introduces a special flag for terrorist offences and other forms of serious criminal offences. Based on this modification, it will be possible to limit access to data records of third country nationals convicted of terrorism offences and other forms of serious criminal offences, only to those records which are relevant for security checks under the proposed screening Regulation. The consultation of the ECRIS-TCN database should indeed be conducted in a manner that ensures that only data necessary for carrying out the security checks is retrieved from this database. This proposal reflects these requirements.
The necessary changes to Regulation (EU) 2019/818 are limited to providing access rights to data stored in the Common Identity Repository (CIR) for the designated authorities in the context of the screening.
• Choice of the instrument
This proposal specifies the conditions of accessing the European Criminal Records Information System for third country nationals (ECRIS-TCN) database which has been set up by an EU regulation with a view to ensure uniform application across the Union and legal certainty by avoiding divergent interpretations in the Member States with regard to the use of this central database.
The proposal also complements the uniform rules on security checks during the screening as set out in the proposed Screening Regulation.
It follows that a regulation is the appropriate instrument.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The evidence-based document prepared in relation to the legislative proposals adopted together with the New Pact on Migration and Asylum remains relevant for this proposal which complements the proposed Screening Regulation.
• Stakeholder consultations
The consultations carried out by the Commission in relation to the New Pact on Migration and Asylum remain valid. In particular, the Commission consulted the European Parliament, Member States, and stakeholders on a number of occasions to gather their views on the New Pact on Migration and Asylum. In parallel, the Romanian, Finnish and Croatian Presidencies have held both strategic and technical exchanges on the future of various aspects of migration policy, including the screening proposal. These consultations showed support for a fresh start on European asylum and migration policy.
Ahead of the launch of the New Pact on Migration and Asylum, the Commission has engaged in continuous discussions with the European Parliament. Member States acknowledged, among others, the need for strong border protection and interest in having clear and efficient procedures at the external borders, notably to prevent unauthorised movements as well as to contribute to the security of the Schengen area. Some Member States, however, stressed that one must not create any unnecessary administrative burden.
• Fundamental rights
The proposal complies with relevant provisions of the Charter of Fundamental Rights of the European Union, including the protection of personal data, and the principle of non-refoulement, protection in the event of removal, expulsion or extradition and other relevant standards and guarantees enshrined in EU law on asylum, return and borders.
As regards the protection of personal data (Article 8 of the Charter), the proposal affects this right in a manner that is strictly necessary and proportionate to offering EU citizens an area of freedom, security and justice without internal frontiers, where appropriate measures are taken to prevent and combat crime, including organised crime and terrorism.
First, the proposed modification allows to search the European Criminal Records Information System for third country nationals (ECRIS-TCN) database for the purpose of carrying out security checks during the screening, which will complement the existing border management measures. The screening implies the consultation of identity, travel or other documents as well as processing of biometric data of persons subject to the check, and the consultation of databases, including ECRIS-TCN, in the context of security checks. This implies processing of personal data. Such checks are required to verify whether that person would pose a threat to the security of the Member States under the proposed Screening Regulation.
Secondly, the debriefing form to be filled out at the end of the screening, should contain information that is necessary to enable the Member States’ authorities to refer the persons concerned to the appropriate procedure. The filling out and reading of the debriefing form by the authorities thus constitute forms of processing of personal data which are inherent in referring third-country nationals present at the external border without fulfilling entry conditions (or apprehended within the territory) to the appropriate procedures regarding asylum or return. The debriefing form points at the results of the consultation carried out during the screening for security purposes. The results of such consultation are reflected by hit/no hit. In case of a hit, the database which produced the hit and exact reasons for that should be mentioned in the de-briefing form. It should be underlined that in case of a hit in ECRIS-TCN the de-briefing form will include the result of the consultation only in case of a hit with data related to terrorism and other forms of serious criminal offences.
This proposal is without prejudice to the Member States’ responsibilities under their national laws, including rules on entering convictions against minors and children into the national criminal record register. Similarly, it does not prevent the application of Member States' constitutional law or international agreements to which they are bound, in particular those deriving from the European Convention on Human Rights and Fundamental Freedoms, to which all Member States are party.
When reporting on the application of Regulation (EU) 2019/816 in line with Article 36(9) of that Regulation, the Commission will also need to take into account the impact of the use of the European Criminal Records Information System for third country nationals (ECRIS-TCN) database on the fundamental rights of third country nationals in the context of the screening.
The use of this database in the context of the screening should be subject to the monitoring mechanism as set out by the proposed Screening Regulation, to ensure that the fundamental rights of third country nationals are complied with and that the principle of non-refoulement is observed in relation to the screening.
4. BUDGETARY IMPLICATIONS
The proposed Regulation has no implications for the EU budget.
5. OTHER ELEMENTS
• Detailed explanation of the specific provisions of the proposal
Article 1 modifies Regulation (EU) 2019/816 by adding a new provision allowing the designated authorities in the context of the screening to access and search the ECRIS-TCN database for records relating to persons who have been convicted for a terrorist offence or other serious criminal offences and sets out the conditions and safeguards in that respect.
Article 2 modifies Regulation (EU) 2019/818 by adding a new provision allowing the designated authorities in the context of screening to access data stored in the Common Identity Repository (CIR).
Article 3 contains final provisions.