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Document 52018PC0835

Proposal for a COUNCIL DECISION on the conclusion of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement

COM/2018/835 final

Brussels, 14.12.2018

COM(2018) 835 final

2018/0423(NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement


EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

Reasons for and objectives of the proposal

The Regulation (EU) No. 603/2013 1 that recasts Regulation No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention was adopted and entered into force on 19 July 2013. The Regulation is applicable since 20 July 2015.

The Regulation (EU) No. 603/2013 allows, inter alia, for the 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 obtain further information concerning a person who is suspected of a terrorism or serious crime.

In accordance with Articles 1 and 2 of Protocol No 22 on the position of the Kingdom of Denmark (hereinafter referred to as ‘Denmark’), annexed to the TEU and to the TFEU, Denmark does not take part in the adoption of Title V acquis and therefore does not participate in the Regulation (EU) No. 603/2013.

On 8 March 2006, the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (hereinafter referred to as ‘the Agreement of 8 March 2006’) was concluded 2 .

Denmark applies the asylum elements of the Regulation (EU) No. 603/2013 in line with the Agreement of 8 March 2006. However, the law enforcement access to Eurodac falls outside the scope of the said Agreement.

At a meeting on 14 May 2014 with representatives from the Commission, Denmark and the Associate Countries confirmed their interest in entering into negotiations with the European Union to extend the law enforcement provisions of the Regulation (EU) No. 603/2013 to them via an international agreement.

On 14 December 2015, the Council authorised the Commission to open negotiations on agreement between the European Union, on the one part, and Denmark, on the other part, on the modalities of the participation by Denmark to the procedure for comparison and data transmission for law enforcement purposes foreseen in chapter VI of the Regulation (EU) No 603/2013 on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 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 on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes.

The negotiations have been finalised and an Agreement in the form of a Protocol to the Agreement of 8 March 2006, extending the application of the Agreement of 8 March 2006 to law enforcement was initialled.

The extension of the law enforcement provisions of the Regulation (EU) No. 603/2013 to Denmark would enable the law enforcement authorities of Denmark to request a comparison of fingerprint data against the data entered by other participating States and stored in the Eurodac database when they seek to establish the identity or get further information concerning a person who is suspected of a serious crime or terrorism or concerning a victim. On the other hand, it would enable the law enforcement authorities of all other participating States, whether other EU Member States or Associates Countries, to request a comparison of fingerprint data against the data entered by Denmark and stored in the Eurodac database, for the same purposes.

The objective of the present Protocol is to establish legally binding rights and obligations to ensure the effective participation of Denmark in the law enforcement elements of the Regulation (EU) No. 603/2013. The Protocol establishes that all participating States, whether other EU Member States, Associates Countries or Denmark, with access to Eurodac, may also access each other's data for law enforcement purposes.

Consistency with existing policy provisions in the policy area

The proposal is consistent with EU policies regarding access to Eurodac database

Consistency with other Union policies

The proposal is consistent with the EU policies in the area of freedom, security and justice.

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

Legal basis

The legal basis for this proposal for a Council Decision is Article 87(2)(a), Article 88(2)(a) of the Treaty on the Functioning of the European Union (TFEU), in conjunction with Article 218(6)(a) of the TFEU.

Subsidiarity (for non-exclusive competence)

The Agreement of 8 March 2006 is an existing international agreement concluded by the EU and Denmark. In accordance with the principle of subsidiarity set out in Article 5 TEU, the objectives of the Protocol to this Agreement can only be achieved through a proposal from the Commission at EU level.

Proportionality

The proposal complies with the proportionality principle because it does not go beyond what is necessary in order to achieve the objectives of the effective participation of Denmark in the law enforcement elements of the Eurodac Regulation (EU) No. 603/2013.

Choice of the instrument

A Decision of the Council on the conclusion of the Agreement is required under Article 218(6) TFEU

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

Stakeholder consultations

The Council (Asylum Working Party) has been consulted on the content and advancement of the negotiations. The European Parliament (LIBE Committee) has been informed.

4.OTHER ELEMENTS

Detailed explanation of the specific provisions of the proposal

The proposal sets out a decision authorising the conclusion of the Protocol between the EU and Denmark on behalf of the European Union. The TFEU foresees for the Council to adopt a Commission proposal for a decision to authorise the signature and conclusion of an international agreement.

The Protocol establishes the application of Regulation (EU) No 603/2013 to Denmark regarding access to Eurodac for law enforcement purposes. Therefore it enables the designated law enforcement authorities of the other participating States and Europol to request a comparison of fingerprint data against the data transmitted to the Eurodac Central System by Denmark. It also enables the designated law enforcement authorities of Denmark to request a comparison of fingerprint data against the data transmitted to the Eurodac Central System by the other participating States.

The Protocol guarantees that the current EU level of protection of personal data is applicable to the processing of personal data pursuant to the Protocol by the authorities of Denmark and of the Member States. Such processing of personal data should be subject to a standard of protection of personal data under their national law which complies with Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA.

The Protocol conditions the access to Eurodac for law enforcement purposes by Denmark by prior legal and technical implementation of Decision 2008/615/JHA with regard to dactyloscopic data.

The Protocol provides that the mechanisms regarding amendments provided for in the Agreement of 8 March 2006 should apply to all amendments regarding the access to Eurodac for law enforcement purposes.

2018/0423 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 87(2)(a) and Article 88(2)(a),in conjunction with Article 218(6)(a) thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament 3 ,

Whereas:

(1)In accordance with the Decision [XXX] of [XXX] 4 , the Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention, extending that agreement to law enforcement was signed on [XXX], subject to its conclusion at a later date.

(2)In order to support and strengthen police cooperation between the competent authorities of the Member States and those of Denmark for the purpose of prevention, detection and investigation of terrorist offences and other serious criminal offences, the involvement of the EU is required to enable Denmark to participate in the law-enforcement-related aspects of Eurodac.

(3)This Protocol should be approved on behalf of the European Union.

(4)In accordance with Article 3 of the Protocol 21 on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, these Member States have notified their wish to take part in the adoption and application of this Decision.

(5)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Decision and is not bound by it or subject to its application,

HAS ADOPTED THIS DECISION:

Article 1

The Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention, extending that agreement to law enforcement (‘the Protocol’) is hereby approved on behalf of the Union.

The text of the Protocol is attached to this Decision.

Article 2

The President of the Council shall designate the person(s) empowered to proceed, on behalf of the European Union, to the notification provided for in Article 4(2) of the Protocol, in order to express the consent of the European Union to be bound by the Protocol.

Article 3

This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Done at Brussels,

     For the Council

   The President

(1)    Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 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 on requests for the comparison 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) (OJ L 180, 29.6.2013, p. 1).
(2)    OJ L 66, 8.3.2006, p. 38.
(3)    OJ C […], […], p. […].
(4)    OJ L […], […], p. […]. 
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Brussels, 14.12.2018

COM(2018) 835 final

ANNEX

to the

Proposal for a COUNCIL DECISION


on the conclusion of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement


ANNEX

to the

Proposal for a COUNCIL DECISION

on the conclusion of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement

THE EUROPEAN UNION

and

THE KINGDOM OF DENMARK,

hereinafter referred to as 'the Parties’,

(1)    CONSIDERING that on 8 March 2006, the Agreement between the European Community and the Kingdom of Denmark (hereinafter referred to as ‘Denmark’) on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention (hereinafter referred to as ‘the Agreement of 8 March 2006’) was concluded 1 .

(2)    RECALLING that on 26 June 2013 the Union adopted Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 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 on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes 2 .

(3)    REFERRING to the Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, pursuant to which Denmark is not taking part in the adoption of Regulation (EU) No 603/2013 and is not bound by it or subject to its application.

(4)    RECALLING that the procedures for comparison and data transmission for law enforcement purposes as laid down in Regulation (EU) No 603/2013 do not constitute an amendment of the provisions of Eurodac Regulation within the meaning of Article 3 of the Agreement of 8 March 2006 and therefore fall outside the scope of the said Agreement.

(5)    CONSIDERING that a Protocol should be concluded between the European Union and Denmark to enable Denmark to participate in the law enforcement related aspects of Eurodac and therefore enable designated law enforcement authorities of Denmark to request the comparison of fingerprint data transmitted to the Eurodac Central System by the other participating States.

(6)    CONSIDERING that the application of Regulation (EU) No 603/2013 for law enforcement purposes to Denmark should also enable designated law enforcement authorities of the other participating States and Europol to request the comparison of fingerprint data transmitted to the Eurodac Central System by Denmark.

(7)    CONSIDERING that the processing of personal data by the authorities of the Member States for the purposes of the prevention, detection or investigation of terrorist offences or of other serious criminal offences pursuant to this Protocol should be subject to a standard of protection of personal data under their national law which complies with Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA 3 .

(8)    CONSIDERING that Directive (EU) 2016/680 constitutes a development of the provisions of the Schengen acquis, under Title V of Part Three of the TFEU, and that Denmark, in accordance with Article 4 of Protocol No 22 on the position of Denmark, on 26 October 2016 has notified that it will implement the said directive in its national law. Denmark should therefore apply Directive (EU) 2016/680 and the further conditions set out in Regulation (EU) No 603/2013 as regards the processing of personal data by the designated authorities of Denmark for the purposes of the prevention, detection or investigation of terrorist offences or of other serious criminal offences.

(9)    CONSIDERING that the further conditions set out in Regulation (EU) No 603/2013 as regards the processing of personal data by the designated authorities of the participating States, as well as by Europol, for the purposes of the prevention, detection or investigation of terrorist offences or of other serious criminal offences should also apply.

(10)    CONSIDERING that access should be allowed only on condition that comparisons with the national fingerprint databases of the requesting State and with the automated fingerprinting identification systems of all other participating States under Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime 4 did not lead to the establishment of the identity of the data subject. That condition requires the requesting State to conduct comparisons with the automated fingerprinting identification systems of all other participating States under Council Decision 2008/615/JHA which are technically available, unless that requesting State can justify that there are reasonable grounds to believe that it would not lead to the establishment of the identity of the data subject. Such reasonable grounds exist in particular where the specific case does not present any operational or investigative link to a given participating State. That condition requires prior legal and technical implementation of Decision 2008/615/JHA by the requesting State with regard to dactyloscopic data, as it should not be permitted to conduct a Eurodac check for law enforcement purposes where those above steps have not been first taken.

(11)    CONSIDERING that prior to searching Eurodac, designated authorities should also, provided that the conditions for a comparison are met, consult the Visa Information System under Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences 5 .

(12)    CONSIDERING that the mechanisms regarding amendments provided for in the Agreement of 8 March 2006 should apply to all amendments regarding the access to Eurodac for law enforcement purposes.

(13)    CONSIDERING that this Protocol is part of the Agreement of 8 March 2006.

HAVE AGREED AS FOLLOWS:

Article 1

1.    Regulation (EU) No 603/2013 shall be implemented by Denmark as regards the comparison of fingerprint data with those stored in the Eurodac Central System for law enforcement purposes, and shall under international law apply in its relations with the other participating States.

2.    The Member States of the European Union except Denmark shall be considered as participating States within the meaning of paragraph 1. They shall apply the provisions of Regulation (EU) No 603/2013 which relate to law enforcement access to Denmark.

3.    Iceland, Liechtenstein, Norway and Switzerland shall be considered as participating States within the meaning of paragraph 1 to the extent that an agreement similar to the present agreement is in force between them and the European Union.

Article 2

1.    The provisions of Directive (EU) 2016/680 shall apply as regards the processing of personal data by Denmark arising from the application of this Protocol.

2.    In addition to paragraph 1, the conditions set out in Regulation (EU) No 603/2013 as regards the processing of personal data by the designated authorities for the purposes of the prevention, detection or investigation of terrorist offences or of other serious criminal offences shall apply to Denmark.

Article 3

The provisions of the Agreement of 8 March 2006 regarding amendments shall apply to all amendments related to the access to Eurodac for law enforcement purposes.

Article 4

1.    This Protocol shall be ratified or approved by the Parties. Instruments of ratification or approval shall be deposited with the Secretary General of the Council of the European Union, who shall be the depositary of this Protocol.

2.    This Protocol shall enter into force on the first day of the month following notification by the depositary to the Parties that the instrument of ratification or approval of both Contracting Parties has been deposited.

3.    This Protocol shall not apply before the provisions of Chapter 6 of Council Decision 2008/615/JHA have been implemented by Denmark and until the evaluation procedures under Chapter 4 of Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime 6 have been completed with regard to dactyloscopic data with regard to Denmark.

Article 5

1.    Each Party may withdraw from this Protocol by sending a declaration in writing to the depositary. This declaration shall take effect six months after being deposited.

2.    The Protocol shall cease to be effective if either the European Union or Denmark have withdrawn from it.

3.    This Protocol ceases to be effective if the Agreement of 8 March 2006 ceases to be effective.

4.    A withdrawal from or a termination of this Protocol shall not affect the continued application of the Agreement of 8 March 2006.

Article 6

This Protocol shall be drawn up in duplicate in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, each of these texts being equally authentic.

The original shall be deposited with the depositary, who shall establish a certified true copy for each of the Parties.

Done at Brussels on

(1)    OJ L 66, 8.3.2006, p. 38.
(2)    OJ L 180, 29.6.2013, p. 1.
(3)    OJ L 119, 4.5.2016, p. 89.
(4)    OJ L 210, 6.8.2008, p. 1.
(5)    OJ L 218, 13.8.2008, p. 129.
(6)    OJ L 210, 6.8.2008, p. 12.
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