Explanatory Memorandum to COM(2022)158 - EU position with respect to the UK regarding the determination of the date from which personal data may be supplied by Member States to the UK - Main contents
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| dossier | COM(2022)158 - EU position with respect to the UK regarding the determination of the date from which personal data may be supplied by ... |
|---|---|
| source | COM(2022)158  |
| date | 06-04-2022 |
1. Subject matter of the proposal
This proposal concerns a decision of the Council, in order for the Union to make a declaration setting out the date from which Member States may supply personal data relating to DNA profiles and dactyloscopic data to the United Kingdom, in acordance with Article 540 i of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland (hereafter: “United Kingdom”), of the other part (hereafter: “the Trade and Cooperation Agreement”).
2. Context of the proposal
2.1.The TCA
The Trade and Cooperation Agreement (hereafter: “TCA”) establishes the basis for a broad relationship between the Union and the United Kingdom, within an area of prosperity and good neighbourliness, characterised by close and peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty. It was provisionally applied since 1 January 2021 and entered into force on 1 May 2021.
The TCA provides for cooperation between the Parties on the automated comparison of DNA profiles, dactyloscopic data and vehicle registration data. Such cooperation may however begin only once the Union has verified that the United Kingdom has fulfilled the condions set out in Article 539 of and Annex 39 to the TCA. Following an evaluation visit to the United Kingdom on 24 and 25 November 2021, the EU evaluation team concluded in its reports that the cooperation with the United Kingdom on DNA profiles and dactyloscopic data meets the relevant requirements. These reports were submitted to the Council on 17 March 2022.
The United Kingdom has so far not indicated that it is ready to be evaluated regarding vehicle registration data.
2.2.The envisaged act of the Union
Article 540 i of the TCA provides that the Union is to determine the date from which Member States may supply personal data to the United Kingdom pursuant to Title II (‘Exchange of DNA, fingerprints and vehicle registration data’), on the basis of an overall evaluation report on the evaluation visit and, where applicable, a pilot run.
Pursuant to Annex 39 to the TCA, the Council is to decide on the basis of an evaluation whether the United Kingdom has met the required conditions for automated data exchange. The decision is to be based on an overall evaluation report, summarising the results of a relevant questionnaire, an evaluation visit and, where applicable, a pilot run.
That decision becomes binding, under international law, on the United Kingdom by way of a unilateral declaration by the Union, as is clear from Article 540 i of the TCA. The unilateral declaration of the Union needs to be notified to the United Kingdom.
3. Position to be taken on the Union’s behalf
3.1.Background
The TCA makes it possible to cooperate on the automated comparison of DNA profiles, fingerprints and vehicle registration data. In order to take advantage of these possibilities, the United Kingdom first needed to undergo an evaluation.
Following an evaluation visit to the United Kingdom on 24 and 25 November 2021, the EU evaluation team concluded in its reports that the cooperation with the United Kingdom on DNA profiles and dactyloscopic data meets the relevant requirements. These reports were submitted to the Council on x March 2022 and paved the way for the Council to allow the Union to declare that Member States may supply personal data regarding DNA profiles and dactyloscopic data to the United Kingdom as referred to in Article 540 i of the TCA.
3.2.Proposed position
In view of the above, the Commission proposes to set XXXXX as the date from which Member States may supply, to the United Kingdom, personal data regarding DNA profiles and dactyloscopic data as referred to in Articles 530, 531, 534 and 536 of the Trade and Cooperation Agreement.
During its membership of the Union, the United Kingdom participated in the exchange of DNA profiles and dactyloscopic data between Member States, in accordance with Council Decisions 2008/615/JHA 1 and 2008/616/JHA 2 . In order to avoid a gap in the ongoing cooperation concerning DNA profiles and dactyloscopic data, the TCA provides for an interim period, during which Member States may supply such data to the United Kingdom pending the outcome of the evaluations provided for in Art 540(1) TCA. That interim period lasted initially until 30 September 2021 and was extended to 30 June 2022 by decision of the Specialised Committee on Law Enforcement and Judicial Cooperation of 28 September 2021 3 . It may however not be further extended. Therefore, to avoid a gap in the ongoing cooperation, the Union will have to make the required unilateral declaration by 30 June 2022.
4. Legal basis
4.1.Procedural legal basis
Contents
Article 218(9) of the TFEU provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 4 .
Article 540(1) and i of the TCA provides that where the United Kingdom has met the conditions set out in Article 539 and Annex 39 of the TCA, the Union shall determine the date or dates from which Member States may supply, to the United Kingdom, personal data regarding DNA profiles and dactyloscopic data. Whilst such determination is a unilateral act of the Union and not an act to be adopted by any of the bodies set up by the TCA, it nevertheless produces legal effects. Therefore, the Union position underlying that determination should be established in accordance with Article 218(9) TFEU, applied by analogy.
The legal effects of the declaration are binding under international law and fall completely on the Union, as a party to the TCA. Therfore, in accordance with Article 3 i TFEU, the Union has exclusive competence in this matter.
The determination of the relevant date as referred to in Article 540 i of the TCA does not lead to the framework of that agreement being supplemented or amended.
4.2.Substantive legal basis
The substantive legal basis for a decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the Union’s behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
With regard to an envisaged act that simultaneously pursues a number of objectives, or that has several components, which are inseparably linked without one being incidental to the other, the substantive legal basis of a decision under Article 218(9) TFEU will have to include, exceptionally, the various corresponding legal bases.
The determination of the date or dates referred to in Article 540 i of the Trade and Cooperation Agreement pursues objectives and has components in the area of data protection and police cooperation.
Therefore, the substantive legal basis of the proposed decision is Article 16 i and Article 87(2)(a) TFEU.
The Trade and Cooperation Agreement is binding on all the Member States by virtue of Decision (EU) 2021/689 5 , which is based on Article 217 TFEU as its substantive legal basis.
4.3.Conclusion
The legal basis of the proposed decision should be Articles 16 i and 87(2)(a) TFEU, in conjunction with Article 218(9) TFEU.