European Scrutiny Committee Contents


7 Agency for the management of JHA databases

(a)

(30736)

11709/09

COM(09) 292

+ ADDs 1-2

(b)

(30737)

11722/09

COM(09) 293

(c)

(30738)

11726//09

COM(09) 294


Commission Communication: Legislative package establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

Commission staff working documents: impact assessment and summary of assessment

Draft Regulation establishing an Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

Draft Council Decision conferring upon the Agency established by Regulation XX tasks regarding the operational management of SIS II and VIS in application of Title VI of the EU Treaty

Legal base(a) —

(b) Articles 62(2)(a), 62(2)(b)(ii), 63(3)(b) and 66 EC; co-decision; QMV

(c) Articles 30(1)(a) and (b) and 34(2)(c) EU; consultation; unanimity

Document originated(All) 24 June 2009
Deposited in Parliament(All) 3 July 2009
DepartmentHome Office
Basis of consideration(All) EM of 14 July 2009
Previous Committee ReportNone
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decision(a) cleared (b) and (c) not cleared; further information requested

Background

7.1 The EC has or is developing three large Justice and Home Affairs (JHA) databases:

  • EURODAC, which stores asylum seekers' fingerprints and is used to help Member States decide which of them is responsible for deciding an asylum application;
  • SIS II, which will contain information about, for example, people wanted for arrest and extradition, third country nationals to be denied entry to any of the Schengen states, missing people and stolen property. Its purpose is to help participating states enforce the provisions of the Schengen acquis on the free movement of people and on police and judicial cooperation in criminal matters; and
  • VIS (the Visa Information System), which will store records of all Schengen visa applications received in participating Member States' missions overseas, together with the applicant's photograph and fingerprints. VIS will make it easier for Member States to exchange visa information so as, for example, to detect visa fraud. VIS may be consulted not only by immigration authorities but also by Europol and Member States' law enforcement authorities for the purposes of the prevention and detection of terrorist and other serious offences.

7.2 The Commission is responsible for the operational management of EURODAC. It is also responsible for completing the development of SIS II and VIS and will then be responsible for the operational management of both systems for a transitional period of five years. When approving the legislation to establish SIS II and VIS, the Council of Ministers and the European Parliament invited the Commission to present proposals for legislation to make an agency responsible for the management of the systems.

7.3 Title IV of the EC Treaty provides that, in pursuit of the progressive establishment of an area of freedom security and justice, the Council of Ministers should adopt measures on visas, asylum, immigration and other policies related to the free movement of people within the EU. Article 69 of the Treaty and Protocol 4 provide that the UK is not to take part in the adoption of any Title IV measure, or be bound by it, unless the UK has expressly opted into the measure.

7.4 Title VI of the EU Treaty provides that the EU's objective is to provide citizens with a high level of safety in an area of freedom, security and justice. The objective is to be achieved by preventing and fighting crime through closer cooperation between Member States' law enforcement and judicial authorities.

7.5 Title IV of the EC Treaty provides the legal bases for the legislation on EURODAC and for the legislation on SIS II and VIS relating to visas, asylum and immigration. Title VI of the EU Treaty provides the legal base for legislation on the use of SIS II and VIS for the purposes of police and judicial cooperation in criminal matters.

The documents

7.6 Document (b) is the draft of a Regulation to create an Agency to be responsible for the operational management of SIS II, VIS and EURODAC. It also provides for the Agency to develop and manage other large-scale information technology systems for which Title IV of the EC Treaty provides the legal base.

7.7 Document (c) is the draft of a Decision to make the Agency responsible for managing the parts of SIS II and VIS for which Title VI of the EU Treaty provides the legal base (police and judicial cooperation in criminal matters).

7.8 The Agency would be an EC body with its own legal personality. It would be funded by contributions from the EU budget and the Member States. Article 9 of the draft Regulation lists the powers of the Management Board. They include appointing the Agency's Executive Director, approving the annual work and agreeing the annual estimates of revenue and expenditure. The Management Board would comprise one representative of each Member State and two representatives of the Commission. Europol and Eurojust would have observer status at the Board when matters relevant to their functions were discussed and would be represented on the Agency's SIS II and VIS advisory groups. The Agency would be established in 2011 and take over the management of the databases in 2012. It would employ 120 staff. The Agency's total start-up costs between 2010 and 2013 would be €113 million.

7.9 Document (a) is a Commission Communication which summarises the proposals and the case for them.

7.10 Insofar as it relates to SIS II and VIS, the Regulation builds on provisions of the Schengen acquis in which the UK does not take part. To that extent the UK cannot take part in the Regulation. This is confirmed in recital 26. But, to the extent that the Regulation does not build on those parts of the Schengen acquis, the UK may participate if it decides to opt into the Regulation. It would also be open to the Government to opt into the Regulation insofar as it applies to EURODAC because the UK has opted into the EURODAC Regulation of December 2000.[18]

7.11 Recital 8 of the draft Decision says that:

  • because the Decision, insofar as it applies to VIS, is a development of the Schengen acquis in which the UK does not participate, the UK is not taking part in the adoption of the Decision and will not be bound by it; but
  • the UK is taking part in the Decision so far as its provisions relate to SIS II (for the purpose of police and judicial cooperation in criminal matters).

The Government's view

7.12 In his Explanatory Memorandum of 14 July 2009, the Minister of State at the Home Office (Mr Phil Woolas) tells us that the UK's starting point in the negotiations on documents (b) and (c) is that the UK's involvement in the proposed Agency should reflect the UK's current participation in the JHA databases. The UK is connecting to SIS II for the purposes of police and judicial cooperation in criminal matters. It also participates in EURODAC. The UK is currently excluded from VIS. But the Government is challenging in the European Court of Justice the exclusion of the UK from the Council Decision[19] which give law enforcement authorities access to VIS. The outcome of that case will affect whether the UK could take part in document (c).

7.13 The Government has not yet decided whether to opt into the draft Regulation. The Minister says that there appears to be some merit in bringing together the management of the JHA databases. But the Government is still considering the details of the proposals, such as the financial consequences for the UK of participation in the Agency and the adequacy of the proposals for data protection and security arrangements.

Conclusion

7.14 We recognise the potential benefits of creating a single Agency to manage SIS II, VIS, EURODAC and other large JHA systems. But it is too soon for us to go beyond that tentative view because the negotiations on the draft Regulation and Decision have not yet begun; the Government is still considering the details of the proposals; the Government has not yet decided whether to opt into the Regulation; and it will remain uncertain whether the UK could participate in the proposed Decision until the European Court of Justice decides the UK's challenge to its exclusion from the Council Decision on the access of law enforcement authorities to VIS.

7.15 We ask the Minister to give us progress reports on the negotiations and on the Government's further consideration of the proposals. Meanwhile, we have decided to clear document (a) — the Commission Communication — and to keep documents (b) and (c) under scrutiny.




18   Regulation (EC) No. 2725/2000: OJ No. L 316, 15.12.00, p.1. Back

19   Decision2008/633/JHA: OJ No. L 218,13.8.08, p.129. Back


 
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