Select Committee on European Communities Tenth Report


APPENDIX 3

1.  DUBLIN CONVENTION

CONVENTION DETERMINING THE STATE RESPONSIBLE FOR EXAMINING APPLICATIONS FOR ASYLUM LODGED IN ONE OF THE MEMBER STATES OF THE EUROPEAN COMMUNITIES

  His Majesty The King of the Belgians, Her Majesty The Queen of Denmark, The President of the Federal Republic of Germany, The President of the Hellenic Republic, His Majesty The King of Spain, The President of the French Republic, The President of Ireland, The President of the Italian Republic, His Royal Highness The Grand Duke of Luxembourg, Her Majesty The Queen of the Netherlands, The President of the Portuguese Republic, Her Majesty The Queen of the United Kingdom of Great Britain and Northern Ireland.

  Having regard to the objective, fixed by the European Council meeting in Strasbourg on 8 and 9 December 1989, of the harmonization of their asylum policies;

  Determined, in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention of 28 July 1951[31], as amended by the New York Protocol of 31 January 1967[32] relating to the Status of Refugees, hereinafter referred to as the "Geneva Convention" and the "New York Protocol" respectively;

  Considering the joint objective of an area without internal frontiers in which the free movement of persons shall, in particular, be ensured, in accordance with the provisions of the Treaty establishing the European Economic Community[33], as amended by the Single European Act[34];

  Aware of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum;

  Desiring to continue the dialogue with the United Nations High Commissioner for Refugees in order to achieve the above objectives;

  Determined to co-operate closely in the application of this Convention through various means, including exchanges of information;

  Have decided to conclude this Convention and to this end have designated as their Plenipotentiaries:

  His Majesty The King of the Belgians,

    Melchior Wathelet

    Deputy Prime Minister, Minister for Justice, Small and Medium-sized Businesses and the Self-Employed

  Her Majesty the Queen of Denmark,

  The President of the Federal Republic of Germany,

    Dr Helmut Rückriegel

    Ambassador of the Federal Republic of Germany at Dublin

    Wolfgang Scha­uble

    Federal Minister for the Interior

  The President of the Hellenic Republic,

    Ioannis Vassiliades

    Minister for Public Order

  His Majesty The King of Spain,

    José Luis Corcuera

    Minister for the Interior

  The President of the French Republic,

    Pierre Joxe

    Minister for the Interior

  The President of Ireland,

    Ray Burke

    Minister for Justice and Minister for Communications

  The President of the Italian Republic,

    Antonio Gava

    Minister for the Interior

  His Royal Highness The Grand Duke of Luxembourg,

    Marc Fischbach

    Minister for Education, Minister for Justice,

    Minister for the Civil Service

  Her Majesty The Queen of the Netherlands,

    Ernst Maurits Henricus Hirsch Ballin

    Minister for Justice and Minister for matters concerning the Netherlands Antilles and Aruba

  The President of the Portuguese Republic,

    Manuel Pereira

    Minister for the Interior

  Her Majesty The Queen of the United Kingdom of Great Britain and Northern Ireland,

    David Waddington

    Secretary of State for the Home Department (Home Secretary)

    Sir Nicholas Maxted Fenn, KCMG

    Ambassador of the United Kingdom of Great Britain and Northern Ireland at Dublin

    Who, having exchanged their Full Powers, found in good and due form,

    Have agreed as follows:

 ARTICLE 1

  1.  For the purposes of this Convention:

    (a)  Alien means: any person other than a national of a Member State;

    (b)  Application for asylum means: a request whereby an alien seeks from a Member State protection under the Geneva Convention by claiming refugee status within the meaning of Article 1 of the Geneva Convention, as amended by the New York Protocol;

    (c)  Applicant for asylum means: an alien who has made an application for asylum in respect of which a final decison has not yet been taken;

    (d)  Examination of an application for asylum means: all the measures for examination, decisions or rulings given by the competent authorities on an application for asylum, except for procedures to determine the State responsible for examining the application for asylum pursuant to this Convention;

    (e)  Residence permit means: any authorisation issued by the authorities of a Member State authorizing an alien to stay in its territory, with the exception of visas and "stay permits" issued during examination of an application for a residence permit or for asylum;

    (f)  Entry visa means: authorisation or decision by a Member State to enable an alien to enter its territory, subject to the other entry conditions being fulfilled;

    (g)  Transit visa means: authorisation or decision by a Member State to enable an alien to transit through its territory or pass through the transit zone of a port or airport, subject to the other transit conditions being fulfilled.

  2.  The nature of the visa shall be assessed in the light of the definitions set out in paragraph 1, points (f) and (g).

ARTICLE 2

  The Member States reaffirm their obligations under the Geneva Convention, as amended by the New York Protocol, with no geographic restriction of the scope of these instruments, and their commitment to co-operating with the services of the United Nations High Commissoner for Refugees in applying these instruments.

ARTICLE 3

  1.  Member States undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum.

  2.  That application shall be examined by a single Member State, which shall be determined in accordance with the criteria defined in this Convention. The criteria set out in Articles 4 to 8 shall apply in the order in which they appear.

  3.  That application shall be examined by that State in accordance with its national laws and its international obligations.

  4.  Each Member State shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto.

  The Member State responsible under the above criteria is then relieved of its obligations, which are transferred to the Member State which expressed the wish to examine the application. The latter State shall inform the Member State responsible under the said criteria if the application has been referred to it.

  5.  Any Member State shall retain the right, pursuant to its national laws, to send an applicant for asylum to a third State, in compliance with the provisions of the Geneva Convention, as amended by the New York Protocol.

  6.  The process of determining the Member State responsible for examining the application for asylum under this Convention shall start as soon as an application for asylum is first lodged with a Member State.

  7.  An applicant for asylum who is present in another Member State and there lodges an application for asylum after withdrawing his or her application during the process of determining the State responsible shall be taken back, under the conditions laid down in Article 13, by the Member State with which that application for asylum was lodged, with a view to completing the process of determining the State responsible for examining the application for asylum.

  This obligation shall cease to apply if the applicant for asylum has since left the territory of the Member States for a period of at least three months or has obtained from a Member State a residence permit valid for more than three months.

ARTICLE 4

  Where the applicant for asylum has a member of his family who has been recognised as having refugee status within the meaning of the Geneva Convention, as amended by the New York Protocol, in a Member State and is legally resident there, that State shall be responsible for examining the application, provided that the persons concerned so desire.

  The family member in question may not be other than the spouse of the applicant for asylum or his or her unmarried child who is a minor of under eighteen years, or his or her father or mother where the applicant for asylum is himself or herself an unmarried child who is a minor under eighteen years.

ARTICLE 5

  1.  Where the applicant for asylum is in possession of a valid residence permit, the Member State which issued the permit shall be responsible for examining the application for asylum.

  2.  Where the applicant for asylum is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum, except in the following situations:

    (a)  if the visa was issued on the written authorisation of another Member State, that State shall be responsible for examining the application for asylum. Where a Member State first consults the central authority of another Member State, inter alia for security reasons the agreement of the latter shall not constitute written authorisation within the meaning of this provision;

    (b)  where the applicant for asylum is in possession of a transit visa and lodges his application in another Member State in which he is not subject to a visa requirement, that State shall be responsible for examining the application for asylum;

    (c)  where the applicant for asylum is in possession of a transit visa and lodges his application in the State which issued him or her with the visa and which has received written confirmation from the diplomatic or consular authorities of the Member State of destination that the alien for whom the visa requirement was waived fulfilled the conditions for entry into that State, the latter shall be responsible for examining the application for asylum.

  3.  Where the applicant for asylum is in possession of more than one valid residence permit or visa issued by different Member States, the responsibility for examining the application for asylum shall be assumed by the Member States in the following order:

    (a)  the State which issued the residence permit conferring the rights to the longest period of residency or, where the periods of validity of all the permits are identical, the State which issued the residence permit having the latest expiry date;

    (b)  the State which issued the visa having the latest expiry date where the various visas are of the same type;

    (c)  where visas are of different kinds, the State which issued the visa having the longest period of validity, or where the periods of validity are identical, the State which issued the visa having the latest expiry date. This provision shall not apply where the applicant is in possession of one or more transit visas, issued on presentation of an entry visa for another Member State. In that case, the Member State shall be responsible.

  4.  Where the applicant for asylum is in possession only of one or more residence permits which have expired less than two years previously or one or more visas which have expired less than six months previously and enabled him or her actually to enter the territory of a Member State, the provisions of paragraphs 1, 2 and 3 of this Article shall apply for such time as the alien has not left the territory of the Member States.

  Where the applicant for asylum is in possession of one or more residence permits which have expired more than two years previously or one or more visas which have expired more than six months previously and enabled him or her to enter the territory of a Member State and where an alien has not left Community territory, the Member State in which the application is lodged shall be responsible.

ARTICLE 6

  When it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-Member State of the European Communities, the Member State thus entered shall be responsible for examining the application for asylum.

  That State shall cease to be responsible, however, if it is proved that the applicant has been living in the Member State where the application for asylum was made at least six months before making his application for asylum. In that case it is the latter Member State which is responsible for examining the application for asylum.

ARTICLE 7

  1.  The responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member States, except where, after legally entering a Member State in which the need for him or her to have a visa is waived, the alien lodges his or her application for asylum in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In this case, the latter State shall be responsible for examining the application for asylum.

  2.  Pending the entry into force of an agreement between Member States on arrangements for crossing external borders, the Member State which authorises the transit without a visa through the transit zone of its airports shall not be regarded as responsible for control on entry, in respect of travellers who do not leave the transit zone.

  3.  Where the application for asylum is made in transit in an airport of a Member State, that State shall be responsible for examination.

ARTICLE 8

  Where no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first Member State with which the application for asylum is lodged shall be responsible for examining it.

ARTICLE 9

  Any Member State, even when it is not responsible under the criteria laid out in this Convention, may, for humanitarian reasons, based in particular on family or cultural grounds, examine an application for asylum at the request of another Member State, provided that the applicant so desires.

  If the Member State thus approached accedes to the request, responsibility for examining the application shall be transferred to it.

ARTICLE 10

  1.  The Member State responsible for examining an application for asylum according to the criteria set out in this Convention shall be obliged to:

    (a)  Take charge under the conditions laid down in Article 11 of an applicant who has lodged an application for asylum in a different Member State.

    (b)  Complete the examination of the application for asylum.

    (c)  Readmit or take back under the conditions laid down in Article 13 an applicant whose application is under examination and who is irregularly in another Member State.

    (d)  Take back, under the conditions laid down in Article 13, an applicant who has withdrawn the application under examination and lodged an application in another Member State.

    (e)  Take back, under the conditions laid down in Article 13, an alien whose application it has rejected and who is illegally in another Member State.

  2.  If a Member State issues to the applicant a residence permit valid for more than three months, the obligations specified in paragraph 1, points (a) to (e) shall be transferred to that Member State.

  3.  The obligations specified in paragraph 1, points (a) to (d) shall cease to apply if the alien concerned has left the territory of the Member States for a period of at least three months.

  4.  The obligations specified in paragraph 1, points (d) and (e) shall cease to apply if the State responsible for examining the application for asylum following the withdrawal or rejection of the application, takes and enforces the necessary measures for the alien to return to his country of origin or to another country which he may lawfully enter.

ARTICLE 11

  1.  If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Member State to take charge of the applicant.

  If the request that charge be taken is not made within the six-month time limit, responsiblity for examining the application for asylum shall rest with the State in which the application was lodged.

  2.  The request that charge be taken shall contain indications enabling the authorities of that other State to ascertain whether it is responsible on the basis of the criteria laid down in this Convention.

  3.  The State responsible in accordance with those criteria shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State.

  4.  The Member State shall pronounce judgment on the request within three months of receipt of the claim. Failure to act within that period shall be tantamount to accepting the claim.

  5.  Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory.

  6.  Measures taken under Article 18 may subsequently determine the details of the process by which applicants shall be taken in charge.

ARTICLE 12

  Where an application for asylum is lodged with the competent authorities of a Member State by an applicant who is on the territory of another Member State, the determination of the Member State responsible for examining the application for asylum shall be made by the Member State on whose territory the applicant is. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purpose of applying this Convention, be regarded as the Member State with which the application for asylum was lodged.

ARTICLE 13

  1.  An applicant for asylum shall be taken back in the cases provided for in Article 3(7) and in Article 10 as follows:

    (a)  the request for the applicant to be taken back must provide indications enabling the State with which the request is lodged to ascertain that it is responsible in accordance with Article 3(7) and with Article 10;

    (b)  the State called upon to take back the applicant shall give an answer to the request within eight days of the matter being referred to it. Should it acknowledge responsibility, it shall then take back applicant for asylum as quickly as possible and at the latest one month after it agrees to do so.

  2.  Measures taken under Article 18 may at a later date set out the details of the procedure for taking the applicant back.

ARTICLE 14

  1.  Member States shall conduct mutual exchanges with regard to:

    —  national legislative or regulatory measures or practices applicable in the field of asylum;

    —  statistical data on monthly arrivals of applicants for asylum, and their breakdown by nationality. Such information shall be forwarded quarterly through the General Secretariat of the Council of the European Communities, which shall see that it is circulated to the Member States and the Commission of the European Communities and to the United Nations High Commissioner for Refugees.

  2.  The Member States may conduct mutual exchanges with regard to:

    —  general information on new trends in applications for asylum;

    —  general information on the situation in the countries of origin or of provenance of applicants for asylum.

  3.  If the Member State providing the information referred to in paragraph 2 wants it to be kept confidential, the other Member States shall comply with this wish.

ARTICLE 15

  1.  Each Member State shall communicate to any Member State that so requests such information on individual cases as is necessary for:

    —  determining the Member State which is responsible for examining the application for asylum;

    —  examining the application for asylum;

    —  implementing any obligation arising under this Convention.

  2.  This information may only cover:

    —  personal details of the applicant, and, where appropriate, the members of his family (full name—where appropriate, former name—, nicknames or pseudonyms, nationality—present and former—, date and place of birth);

    —  identity and travel papers (references, validity, date of issue, issuing authority, place of issue etc);

    —  other information necessary for establishing the identity of the applicant;

    —  places of residence and routes travelled;

    —  residence permits or visas issued by a Member State;

    —  the place where the application was lodged;

    —  the date any previous application for asylum was lodged, the date the present application was lodged, the stage reached in the proceedings and the decision taken, if any.

  3.  Furthermore, one Member State may request another Member State to let it know on what grounds the applicant for asylum bases his or her application and, where applicable, the grounds for any decisions taken concerning the applicant. It is for the Member State from which the information is requested to decide whether or not to impart it. In any event, communication of the information requested shall be subject to the approval of the applicant for asylum.

  4.  This exchange of information shall be effected at the request of a Member State and may only take place between authorities the designation of which by each Member State has been communicated to the Committee provided for under Article 18.

  5.  The information exchanged may only be used for the purposes set out in paragraph 1. In each Member State such information may only be communicated to the authorities and courts and tribunals entrusted with:

    —  determining the Member State which is responsible for examining the application for asylum;

    —  examining the application for asylum;

    —  implementing any obligation arising under this Convention.

  6.  The Member State that forwards the information shall ensure that it is accurate and up-to-date.

  If it appears that this Member State has supplied information which is inaccurate or which should not have been forwarded, the recipient Member State, shall be immediately informed thereof. They shall be obliged to correct such information or to have it erased.

  7.  An applicant for asylum shall have the right to receive, on request, the information exchanged concerning him or her, for such time as it remains available.

  If he or she establishes that such information is inaccurate or should not have been forwarded, he or she shall have the right to have it corrected or erased. This right shall be exercised in accordance with the conditions laid down in paragraph 6.

  8.  In each Member State concerned, the forwarding and receipt of exchanged information shall be recorded.

  9.  Such information shall be kept for a period not exceeding that necessary for the ends for which it was exchanged. The need to keep it shall be examined at the appropriate moment by the Member State concerned.

  10.  In any event, the information thus communicated shall enjoy at least the same protection as is given to similar information in the Member State which receives it.

  11.  If data are not processed automatically but are handled in some other form, every Member State shall take the appropriate measures to ensure compliance with this Article by means of effective controls. If a Member State has a monitoring body of the type mentioned in paragraph 12, it may assign the control task to it.

  12.  If one or more Member State wish to computerise all or part of the information mentioned in paragraphs 2 and 3, such computerisation is only possible if the countries concerned have adopted laws applicable to such processing which implement the principles of the Strasbourg Convention of 28 February 1981[35] for the Protection of Individuals, with regard to Automatic Processing of Personal Data and if they have entrusted an appropriate national body with the independent monitoring of the procesing and use of data forwarded pursuant to this Convention.

ARTICLE 16

  1.  Any Member State may submit to the Committee referred to in Article 18 proposals for revision of this Convention in order to eliminate difficulties in the application thereof.

  2.  If it proves necessary to revise or amend this Convention pursuant to the achievement of the objectives set out in Article 8a of the Treaty establishing the European Economic Community, such achievement being linked in particular to the establishment of a harmonised asylum and a common visa policy, the Member State holding the Presidency of the Council of the European Communities shall organise a meeting of the Committee referred to in Article 18.

  3.  Any revision of this Convention or amendment hereto shall be adopted by the Committee referred to in Article 18. They shall enter into force in accordance with the provisions of Article 22.

ARTICLE 17

  1.  If a Member State experiences major difficulties as a result of a substantial change in the circumstances obtaining on conclusion of this Convention, the State in question may bring the matter before the Committee referred to in Article 18 so that the latter may put to the Member States measures to deal with the situation or adopt such revisions or amendments to this Convention as appear necessary, which shall enter into force as provided for in Article 16(3).

  2.  If, after six months, the situation mentioned in paragraph 1 still obtains, the Committee, acting in accordance with Article 18(2), may authorise the Member State affected by that change to suspend temporarily the application of the provisions of this Convention, without such suspension being allowed to impede the achievement of the objectives mentioned in Article 8a of the Treaty establishing the European Economic Treaty or contravene other international obligations of the Member Sates.

  3.  During the period of suspension, the Committee shall continue its discussions with a view to revising the provisions of this Convention, unless it has already reached an agreement.

ARTICLE 18

  1.  A Committee shall be set up comprising one representative of the Government of each Member State.

  The Committee shall be chaired by the Member State holding the Presidency of the Council of the European Communities.

  The Commission of the European Communities may participate in the discussions of the Committee and the working parties referred to in paragraph 4.

  2.  The Committee shall examine, at the request of one or more Member States, any question of a general nature concerning the application or interpretation of this Convention.

  The Committee shall determine the measures referred to in Article 11(6) and Article 13(2) and shall give the authorisation referred to in Article 17(2).

  The Committee shall adopt decisions revising or amending the Convention pursuant to Articles 16 and 17.

  3.  The Committee shall take its decisions unanimously, except where it is acting pursuant to Article 17(2), in which case it shall take its decisions by a majority of two-thirds of the votes of its members.

  4.  The Committee shall determine its rules of procedure and may set up working parties.

  The Secretariat of the Committee and of the working parties shall be provided by the General Secretariat of the Council of the European Communities.

ARTICLE 19

  As regards the Kingdom of Denmark, the provisions of this Convention shall not apply to the Faroe Islands nor to Greenland unless a declaration to the contrary is made by the Kingdom of Denmark. Such a declaration may be made at any time by a communication to the Government of Ireland which shall inform the Governments of the other Member State thereof.

  As regards the French Republic, the provisions of this Convention shall apply only to the European territory of the French Republic.

  As regards the Kingdom of the Netherlands, the provisions of the Convention shall apply only to the territory of the Kingdom of the Netherlands in Europe.

  As regards the United Kingdom the provisions of this Convention shall apply only to the United Kingdom of Great Britain and Northern Ireland. They shall not apply to the European territories for whose external relations the United Kingdom is responsible unless a declaration to the contrary is made by the United Kingdom. Such a declaration may be made at any time by a communication to the Government of Ireland, which shall inform the Governments of the other Member States thereof.

 ARTICLE 20

  This Convention shall not be the subject of any reservations.

ARTICLE 21

  1.  This Convention shall be open for the accession of any State which becomes a member of the European Communities. The instruments of accession will be deposited with the Government of Ireland.

  2.  It shall enter into force in respect of any State which accedes thereto on the first day of the third month following the deposit of its instrument of accession.

ARTICLE 22

  1.  This Convention shall be subject to ratification, acceptance or approval. The instruments of ratification, acceptance or approval shall be deposited with the Government of Ireland.

  2.  The Government of Ireland shall notify the Governments of the other Member States of the deposit of the instruments of ratification, acceptance or approval.

  3.  This Convention[36] shall enter into force on the first day of the third month following the deposit of the instrument of ratification, acceptance or approval by the last signatory State to take this step.

  The State with which the instruments of ratification, acceptance or approval are deposited shall notify the Member States of the date of entry into force of this Convention.

  In witness whereof, the undersigned Plenipotentiaries have hereunto set their hands.

  Done at Dublin this fifteenth day of June in the year one thousand nine hundred and ninety, in a single original, in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese and Spanish languages, the texts drawn up in each of these languages being equally authentic and being deposited in the archives of the Government of Ireland which shall transmit a certified copy to each of the other Member States.

2.  EURODAC CONVENTION

CONVENTION DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION CONCERNING THE ESTABLISHMENT OF "EURODAC" FOR THE COMPARISON OF FINGERPRINTS OF APPLICANTS FOR ASYLUM

  THE HIGH CONTRACTING PARTIES to this Convention, Member States of the European Union,

  REFERRING to the Act of the Council of the European Union of..........................................

  RECALLING the objective of harmonization of the Member States' asylum policies, set by the Strasbourg European Council on 8 and 9 December 1989 and further developed by the Maastricht European Council on 9 and 10 December 1991 and the Brussels European Council on 10 and 11 December 1993 as well as in the Commission communication on 23 February 1994 on immigration and asylum policies;

  DETERMINED, in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention of 28 July 1951, as amended by the New York Protocol of 31 January 1967, relating to the Status of Refugees, and to continue the dialogue begun with the United Nations High Commissioner for Refugees on any issues relating to application of this Convention;

  CONSIDERING the joint objective of an area without internal frontiers in which the free movement of persons is ensured, in accordance with Article 7a of the Treaty establishing the European Community;

  AWARE of the need, in pursuit of this objective, to take measures to avoid any situations arising which would result in applicants for asylum being left in doubt for too long as to the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum;

  CONSIDERING that the specific aim of the Dublin Convention of 15 June1990 determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities[37] is to meet that concern;

  CONSIDERING that for the purposes of applying the Dublin Convention it is necessary to establish the identity of applicants for asylum;

  CONSIDERING that fingerprints constitute an important element in establishing the exact identity of such persons and considering that it is necessary to set up a system for the comparison of their fingerprints.

  WHEREAS the provisions of this Convention may only be applied in compliance with the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on4 November 1950;

  CONSIDERING that the processing of such data must observe the strictest standards of confidentiality and is only possible with due regard for the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, signed at Strasbourg on 28 January 1981,

  Have Agreed on the Following Provisions:

Purpose of "Eurodac"

  1.  A system known as "Eurodac" is hereby established, the sole purpose of which shall be to assist in determining the Member State which is responsible pursuant to the Dublin Convention for examining an application for asylum lodged in a Member State.

  2.  To that end, Eurodac shall consist of:

    —  the Central Unit referred to in Article 3;

    —  a computerised central database in which the data referred to in Article 5(1) are recorded and stored for the purpose of comparing the fingerprints of applicants for asylum;

    —  means of transmission between the Member States and the central database.

  The rules governing Eurodac shall also apply to operations effected by the Member States as from the transmission of data to the Central Unit until use is made of the results of the comparison.

  3.  Without prejudice to the use of data intended for Eurodac by the Member State of origin in databases set up under the latter's national law, fingerprints and other personal data may be processed in Eurodac only for the purposes set out in Article 15(1) of the Dublin Convention.

 ARTICLE 2

Definitions

  For the purposes of this Convention:

  1.  "The Dublin Convention" shall mean the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed at Dublin on 15 June 1990.

  2.  Unless stated otherwise, the terms defined in Article 1 of the Dublin Convention shall have the same meaning in this Convention.

  3.  An "applicant for asylum" shall mean an alien who has made an application for asylum or on whose behalf such an application has been made.

  4.  "Transmission of data" shall mean:

    —  communication of personal data from Member States to the Central Unit for recording in the central database and communication to Member States of the results of the comparison made by the Central Unit; and

    —  recording of personal data directly by Member States in the central database and direct communication of the results of the comparison to such Member States.

  5.  "Personal data" shall mean any information relating to an identified or identifiable natural person; an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical identity.

  6.  "Member State of origin" shall mean the Member State which transmits the personal data to the Central Unit and receives the results of the comparison.

 ARTICLE 3

Central Unit

  1.  A Central Unit shall be established within the Commission which shall be responsible for operating the central database of fingerprints of applicants for asylum on behalf of the Member States. The Central Unit shall be equipped with a computerised fingerprint recognition system.

  2.  Data on applicants for asylum which are processed at the Central Unit shall be processed on behalf of the Member State of origin.

  3.  The Commission shall submit to the Council and the European Parliament an annual report on the activities of the Central Unit.

ARTICLE 4

Procedure

  1.  Each Member State shall promptly take the fingerprints of every applicant for asylum of at least 14 years of age and shall promptly transmit the data referred to in Article 5(1), points 1 to 6, to the Central Unit. The procedure for taking fingerprints shall be determined in accordance with the national practice of the Member State concerned. The applicant for asylum shall be informed of the purpose of taking his/her fingerprints as provided for in Article 13(1).

  2.  The data referred to in Article 5(1) shal be immediately recorded in the central database:

    (i)  by the Central Unit or,

    (ii)  insofar as the technical conditions for such purposes are met, directly by the Member State of Origin.

  3.  Fingerprint data within the meaning of point 2 of Article 5(1) transmitted by any Member State shall be compared by the Central Unit with the fingerprint data transmitted by other Member States and already recorded in the central database.

  4.  Any Member State may request that the comparison referred to in paragraph 3 should cover the fingerprint data previously transmitted by it, in addition to the data from other Member States.

  5.  The Central Unit shall forthwith communicate the results of the comparison to the Member State of origin, together with the data referred to in Article 5(1), relating to those fingerprints which, in the opinion of the Central Unit, are so similar as to be considered as matching with the fingerprints which were transmitted by that Member State. Direct transmission to the Member State of origin of the results of the comparison shall be permissible where the technical conditions for such purpose are met.

  6.  The results of the comparison shall be immediately checked in the Member State of origin. Final identification shall be made by the Member State of origin in co-operation with the Member States concerned, pursuant to Article 15 of the Dublin Convention. Information received from the Central Unit relating to any data mismatch or other data found to be unreliable shall be erased by the Member State of origin as soon as the mismatch or unreliability of the data is established.

  7.  The Council shall adopt the implementing rules which are necessary to give effect to the procedures provided for in this Article.

ARTICLE 5

Recording of data

  1.  Only the following data shall be recorded in the central database:

    (1)  Member State of origin, place and date of the application for asylum;

    (2)  fingerprints[38] pursuant to the rules for implementing this Convention adopted by the Council;

    (3)  sex;

    (4)  reference number used by the Member State of origin;

    (5)  date on which the fingerprints were taken;

    (6)  date on which the data were transmitted to the Central Unit;

    (7)  date on which the data were entered in the central database;

    (8)  details in respect of the recipient(s) of the data transmitted and the date(s) of transmission(s).

  2.  After recording the data in the central database, the Central Unit shall destroy the media used for transmitting the data, unless the Member State of origin has requested their return.

Data storage

  Each set of data, as referred to in Article 5(1), shall be stored in the central database for ten years from the date on which the fingerprints were last taken. Upon expiry of this period, the Central Unit shall automatically erase the data from the central database.

ARTICLE 7

Advance data erasure

  Notwithstanding the provisions of Article 6, data relating to a person who has acquired citizenship of a Member State shall be erased from the central database. In conformity with Article 11(3), such erasure shall be carried out by the Member State of origin either directly or, at the request of the latter, by the Central Unit, as soon as that Member State becomes aware that the person has acquired citizenship of a Member State.

ARTICLE 8

Blocking of data

  1.  Notwithstanding the provisions of Article 6, data relating to a person who in accordance with the Geneva Convention of 28 July 1951, as amended by the New York Protocol of 31 January 1967, has been recognised and admitted as a refugee in a Member State shall be blocked in the central database. Such blocking shall be carried out by the Central Unit on the instructions of the Member State of origin.

  2.  Five years after Eurodac begins its activities, the Council shall, on the basis of reliable statistics compiled by the Central Unit on persons who have lodged an application for asylum in a Member State after having been recognised and admitted as refugees as defined in paragraph 1 in another Member State, unanimously adopt a procedure enabling it to decide whether the data relating to persons who have been recognised and admitted as refugees in a Member State should either:

    (a)  be unblocked and be stored in accordance with Article 6 for the purpose of the comparison provided for in Article 4(3). In such case, the procedure mentioned in paragraph 1 shall no longer apply; or

    (b)  be erased in advance once a person has been recognised and admitted as a refugee. In such case:

—  data which have been blocked in accordance with paragraph 1 shall be erased immediately by the Central Unit; and

—  with regard to data relating to persons who are subsequently recognised and admitted as refugees, the last sentence of Article 7 shall apply mutatis mutandis.

  3.  The Council shall adopt implementing rules concerning compilation of the statistics referred to in paragraph 2.

ARTICLE 9

Responsibility for data use

  1.  The Member State of origin shall be responsible for ensuring that:

    (a)  fingerprints are taken lawfully;

    (b)  fingerprints and the other data referred to in Article 5(1) are lawfully transmitted, to the Central Unit;

    (c)  data are accurate and up-to date when they are transmitted9 to the Central Unit;

    (d)  without prejudice to the responsibilities of the Commission, data in the central database are lawfully recorded[39], 10 stored, corrected and erased;

    (e)  the results of fingerprint comparisons transmitted by the Central Unit are lawfully used.

  2.  In accordance with Article 10, the Member State of origin shall ensure the security of these data before and during transmission to the Central Unit as well as the security of the data it receives from the Central Unit.

  3.  The Member State of origin shall be responsible for the final identification of the data pursuant to Article 4(6).

  4.  The Commission shall ensure that the Central Unit is operated in accordance with the provisions of the Convention and with the implementing rules adopted by the Council. In particular, the Commission shall:

    (a)  adopt measures ensuring that persons working in the Central Unit do not use the data recorded in the central database in a way contrary to the purpose of Eurodac as laid down in Article 1(1);

    (b)  ensure that persons working in the Central Unit comply with all requests from Member States made pursuant to the Convention in relation to recording, comparison, correction and erasure of data for which they are responsible;

    (c)  take the necessary measures to ensure the security of the Central Unit in accordance with Article 10.

    (d)  ensure that only persons authorised to work in the Central Unit shall have access to data recorded in the central database, without prejudice to Article 15.

  5.  Member States shall ensure that use of data recorded in the central database contrary to the purpose of Eurodac as laid down in Article 1(1) shall be subject to appropriate penalties.

 ARTICLE 10

Security

  1.  The Member State of origin shall take the necessary measure to:

    (a)  prevent any unauthorised person from having access to national installations in which the Member State carries out operations in accordance with the aim of Eurodac (checks at the entrance to the installation);

    (b)  prevent data and data media in Eurodac from being read, copied, modified or erased by unauthorised persons (control of data media);

    (c)   guarantee that it is possible to check and establish a posteriori what data have been recorded in Eurodac, when and by whom, (control of data recording);

    (d)  prevent the unauthorised recording of data in Eurodac and any unauthorised modification or erasure of data recorded in Eurodac (control of data entry);

    (e)  guarantee that, for the use of Eurodac, authorised persons have access only to data which are within their competence (control of access);[40]

    (f)  guarantee that it is possible to check and establish to which authorities data recorded in Eurodac may be transmitted by data transmission equipment (control of transmission);

    (g)  prevent the unauthorised reading, copying, modification or erasure of data during both the direct transmission of data to the central database and vice versa and the transport of data media to the Central Unit and vice versa (control of transport).

  2.  As regards the operation of the Central Unit, the Commission shall be responsible for applying the above-mentioned measures.

Access to and correction of erasure or data recorded in Eurodac

  1.  The Member State of origin shall have access to data which it has transmitted and which are recorded in the central database in accordance with the provisions of this Convention. No Member State may conduct searches in the data transmitted by another Member State, nor may it receive such data apart from data resulting from the comparison referred to in Article 4(5).

  2.  The authorities of Member States which, pursuant to paragraph 1, have access to data recorded in the central database shall be those designated by each Member State. Each Member State shall communicate to the depositary a list of these authorities.

  3.  Only the Member State of origin shall have the right to amend the data it has transmitted to the Central Unit by correcting or supplementing such data, or to erase them, without prejudice to erasure carried out in application of Article 6. Where the Member State of origin records data directly in the central database, it shall amend or erase the data directly, if appropriate. Where the Member State of origin does not record data directly in the central database, the Central Unit shall alter or erase the data at the request of that Member State.

  4.  If a Member State or the Central Unit has evidence to suggest that data recorded in the central database are factually inaccurate, it shall advise the Member State of origin as soon as possible. In addition, if a Member State has evidence to suggest that data were recorded in the central database contrary to this Convention, it shall similarly advise the Member State of origin as soon as possible. The latter shall check the data concerned and, if necessary, amend or erase without delay.

 ARTICLE 12

Damages

  1.  The Member State of origin shall, in accordance with its national law, be liable for any damage caused to persons or other Member States resulting from the illegal use of the results of the fingerprint comparisons transmitted by the Central Unit.

  2.  The European Community shall be liable, in accordance with Article 215, second paragraph, of the Treaty establishing the European Community, for any damage caused to persons or Member States through the fault of persons working in the Central Unit in breach of their duties under this Convention. Article 178 of the Treaty establishing the European Community shall be applicable.

  3.  The European Community shall likewise be liable for damage to the central database. However, if the damage is due to the failure of a Member State to comply with its obligations under this Convention, that Member State shall be liable, unless the Commission failed to take reasonable steps to prevent the damage from happening or to minimise its impact.

  4.  Claims for compensation against a Member State for the damage referred to in paragraphs 1 and 3 shall be governed by the provisions of national law of the defendant Member State.

ARTICLE 13

Rights of the data subject

  1.  Member States shall inform the applicant for asylum, when taking his/her fingerprints, of the purpose, as defined in Article 1(1), of taking the prints and of his/her rights under this Article and their procedural practices.

  2.  In each Member State any person may, in accordance with the laws, regulations and procedures of the State, exercise a right of access to data concerning him/her recorded in the central database. Such access to data may be granted only by a Member State. The person will be informed of the data relating to him/her recorded in the central database and of the Member State which transmitted them to the Central Unit.

  3.  If the person contests the accuracy of the data or the lawfulness of recording them in the central database, he/she may ask for data which are factually inaccurate to be corrected or for data recorded unlawfully to be erased. The correction and erasure shall be carried out by the Member State which transmitted the data in accordance with its laws, regulations and procedures.

  4.  If the rights of correction and erasure are exercised in a Member State other than that (those) which transmitted the data, the authorities of that Member State shall contact the authorities of the Member State(s) in question so that the latter may check the accuracy of the data and the lawfulness of their transmission and recording in the central database.

  5.  If it emerges that data recorded in the central database are factually inaccurate or have been recorded unlawfully, the Member State which transmitted them shall correct or erase the data in accordance with Article 11(3). That Member State shall confirm in writing to the data subject that it has taken action to correct or erase data relating to him/her.

  6.  If the Member State which transmitted the data does not accept that data recorded in the central database are factually inaccurate or have been recorded unlawfully it shall explain in writing to the data subject why it is not prepared to correct or erase the data. That Member State shall also provide the data subject with information explaining the steps which he/she can take if he/she does not accept the explanation provided. This shall include information about how to bring an action or, if appropriate, a complaint before the competent authorities or courts of that Member State and any financial or other assistance that is available in accordance with the laws, regulations and procedures of that Member State.

  7.  Any request under paragraphs 2 and 3 shall contain all the necessary particulars to identify the data subject, including fingerprints. Such data shall be used exclusively to exercise the rights referred to in paragraphs 2 and 3 and shall be destroyed immediately afterwards.

  8.  Member States shall undertake to ensure that their competent authorities co-operate actively to enforce promptly the rights to correct and erase data laid down in paragraphs 3 to 5.

  9.  In each Member State, the national supervisory authority shall, in accordance with Article 14(3), assist the data subject in exercising his/her right of access to data.

  10.  The national supervisory authority of the Member State which transmitted the data and the national supervisory authority of the Member State in which the person is present shall assist and, where requested, advise him/her in exercising his/her right to correct or erase data. Both the national supervisory authorities shall co-operate to this end. Such assistance shall be granted in accordance with the laws, regulations and procedures of the Member States concerned, giving effect to the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, signed at Strasbourg on 28 January 1981. Requests for such assistance may be made to the national supervisory authority of the Member State in which the person is present, which shall transmit the requests to the authority of the Member State which transmitted the data. The data subject may also apply for assistance and advice to the joint supervisory authority set up in Article 15.

  11.  In each Member State any person may, in accordance with the laws, regulations and procedures of that State, bring an action or, if appropriate, a complaint before the competent authorities or courts of the State if he/she is refused the right of access provided for in paragraph 2.

  12.  Any person may, in accordance with the laws, regulations and procedures of the State which transmitted the data, bring an action or, if appropriate, a complaint before the competent authorities or courts of that State concerning the data relating to him/her recorded in the central database, in order to exercise his/her rights under paragraph 3. The obligation of the national supervisory authorities to assist and, where requested, advise the person, in accordance with paragraph 10, shall subsist throughout these proceedings.

ARTICLE 14

National supervisory authority

  1.  Each Member State shall designate a national supervisory authority or authorities responsible for personal data protection in that Member State. The task of the national supervisory authority shall be to monitor independently, in accordance with its respective national law, the lawfulness of the processing, in accordance with the provisions of this Convention, of personal data by the Member State in question, as well as of their transmission to the Central Unit, and to examine whether this violates the rights of the data subject. For this purpose, the supervisory authority shall have access to the data processed by the Member State concerned. The Member State shall also make available to the national supervisory authority any information which it requests and allow it access to all documents and files, as well as all premises, at all times.

  2.  Each Member State shall ensure that its national supervisory authority has access to advice from persons with sufficient knowledge of fingerprint data.

  3.  Any person may ask the national supervisory authority to ensure that the recording and transmission of data concerning him/her to the Central Unit and the retrieval and use of such data by the Member State in question are lawful. This right shall be exercised in accordance with the national law applicable to the national supervisory body of which the request is made.

ARTICLE 15

Joint supervisory authority

  1.  An independent joint supervisory authority shall be set up, consisting of a maximum of two representatives from the supervisory authorities of each Member State. Each delegation shall have one vote.

  2.  The joint supervisory authority shall have the task of monitoring the activities of the Central Unit to ensure that the rights of data subjects are not violated by the processing or use of the data held by the Central Unit. In addition, it shall monitor the lawfulness of the transmission of personal data to the Member States by the Central Unit.

  3.  The joint supervisory authority shall also be competent for the examination of implementation or interpretation problems in connection with the operation of Eurodac, for the examination of possible difficulties during checks by the national supervisory authorities and for drawing up proposals for common solutions to existing problems.

  4.  In the performance of its duties, the joint supervisory authority shall, if necessary, be actively supported by the national supervisory authorities.

  5.  The joint supervisory authority shall have access to advice from persons with sufficient knowledge of fingerprint data.

  6.  The Commission shall assist the joint supervisory authority in the performance of its tasks. In particular, it shall supply information requested by the joint supervisory body, give it access to all documents and paper files as well as access to the data stored in the system and allow it access to all its premises, at all times.

  7.  The joint supervisory authority shall unanimously adopt its rules of procedure.

  8.  Reports drawn up by the joint supervisory authority shall be forwarded to the bodies to which the national supervisory authorities submit their reports, as well as to the Council for information. In addition, the joint supervisory authority may submit comments or proposals for improvement regarding its remit to the Council at any time.

  9.  In the performance of their duties, the members of the joint supervisory authority shall not receive instructions from any government or body.

  10.  The joint supervisory authority shall be consulted on that part of the draft operating budget of the Eurodac Central Unit which concerns it. Its opinion shall be annexed to the draft budget in question.

  11.  The joint supervisory authority shall be disbanded upon the establishment of the Central Unit supervisory authority under Article 286(2) of the EC Treaty as inserted by the Treaty of Amsterdam. The independent supervisory authority shall take over the tasks of the joint supervisory authority and shall exercise for the purposes of the supervision of the Central Unit all the powers attributed to it by virtue of the act under which the independent supervisory authority is established. For the purpose of this Convention, the independent supervisory authority shall be referred to as the "Central Unit supervisory authority".

  12.  The Council may adopt such supplementary measures as it considers necessary to enable the Central Unit supervisory authority to perform its duties.

ARTICLE 16

Costs

  1.  The costs incurred in connection with the establishment and operation of the Central Unit shall be borne by the budget of the European Communities.

  2.  The costs incurred by national units and for their connection to the central database shall be borne by each Member State.

  3.  The costs of transmission of data from the Member State of origin and of the findings of the comparison to that State shall be borne by the State in question.

 ARTICLE 17

Jurisdiction of the Court of Justice

  1.  The Court of Justice shall have jurisdiction to rule on any dispute between Member States regarding the interpretation or the application of this Convention whenever such dispute cannot be settled by the Council within six months of its being referred to the Council by one of its members.

  2.  The Court of Justice shall have jurisdiction to rule on any dispute between one or more Member States and the Commission of the European Communities regarding the interpretation or the application of this Convention whenever such dispute cannot be settled through negotiation.

  3.  Any court in a Member State may ask the Court of Justice to give a preliminary ruling on a matter concerning the interpretation of this Convention.

  4.  The competence of the Court of Justice provided for in paragraph 3 shall be subject to its acceptance by the Member State concerned in a declaration to that effect made at the time of the notification referred to in Article 20(2) or at any subsequent time.

  5.  A Member State making a declaration under paragraph 4 may restrict the possibility of asking the Court of Justice to give a preliminary ruling to those of its courts against the decisions of which there is no judicial remedy under national law.

  6.  (a)  The Statute of the Court of Justice of the European Community and its Rules of Procedure shall apply.

    (b)  In accordance with that Statute, any Member State, whether or not it has made a declaration under paragraph 4, shall be entitled to submit statements of case or written observations to the Court of Justice in cases which arise under paragraph 3.

  7.  After the entry into force of the Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts:

    —  paragraphs 1 to 5 and paragraph 6(b) of this Article shall cease to apply; and

    —  all the relevant provisions of the Treaty establishing the European Community as amended by the Treaty of Amsterdam, concerning the powers of the Court of Justice, including Article 68, shall apply mutatis mutandis and for such purposes, references to "this Treaty" in the said provisions or in provisions to which they refer, and references to "this Title" in the case of Article 68, shall be taken as meaning references to "this Convention".

ARTICLE 18

Supervision of implementation

  The Council shall supervise the implementation and application of the provisions of this Convention to ensure that Eurodac operates effectively. To this end, the Commission shall inform the Council of measures taken under Article 9(4) of this Convention and of the practical arrangements adopted for the technical management of the Central Unit.

  The Council, acting by a two-thirds majority of the High Contracting Parties, shall adopt the necessary implementing rules.

ARTICLE 19

Reservations

  This Convention shall not be subject to any reservations.

 ARTICLE 20

Entry into force

  1.  This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.

  2.  Member States shall notify the Secretary-General of the Council of the European Union of the completion of the procedures necessary under their constitutional requirements for adopting this Convention.

  3.  Article 4(7) and Article 8(3) of this Convention shall enter into force on the day following the notification referred to in paragraph 2 by the State which, being a member of the European Union on the date of adoption by the Council of the Act drawing up this Convention, is the last to complete that formality. The other provisions of this Convention shall enter into force on the first day of the third month after that notification, provided that a Protocol extending the scope ratione personae of this Convention for the purpose of further facilitating the application of the Dublin Convention, enters into force on the same date.

  4.  Without prejudice to paragraph 3, Eurodac shall not begin its activities pursuant to this Convention until the implementing rules referred to in Articles 4(7) and 8(3) have been adopted:

ARTICLE 21

Territorial scope

  As regards the United Kingdom, the provisions of this Convention shall apply only to the United Kingdom of Great Britain and Northern Ireland.

 ARTICLE 22

Accession

  1.  This Convention shall be open to accession by any State that becomes a member of the European Union.

  2.  The text of this Convention in the language of the acceding Member State, drawn up by the Council of the European Union, shall be authentic.

  3.  Instruments of accession shall be deposited with the depositary.

  4.  This Convention shall enter into force with respect to the acceding Member State on the first day of the third month after the deposit of its instrument of accession or on the date of entry into force of the Convention if it has not already entered into force at the time of expiry of the aforesaid period, provided that a protocol extending the scope ratione personae of this Convention for the purpose of further facilitating the application of the Dublin Convention, enters into force with respect to the acceding Member State on the same date.

ARTICLE 23

Depositary

  1.  The Secretary-General of the Council of the European Union shall act as depositary of this Convention.

  2.  The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, together with declarations and any other notification concerning this Convention.


31   Treaty Series No. 39 (1954), Cmd. 9171. Back

32   Treaty Series No. 15 (1969), Cmnd. 3370. Back

33   Treaty Series No. 47 (1988), Cm 455. Back

34   Treaty Series No. 31 (1988), Cm 372. Back

35   Treaty Series 86 (1990), Cm 1329. Back

36   The Convention entered into force on 1 September 1997. Back

37   OJ No C 254, 19.8.1997, p.1. ARTICLE 1 Back

38   "Fingerprints" here refers to both the prints themselves and data relating to them. ARTICLE 6 Back

39   Transmission pursuant to the second indent of Article 2(4) already includes recording. Back

40   The possibility of recording unauthorised attempts at access to data should be spelt out either in the implementing rules, or when drawing up the specifications. ARTICLE 11 Back


 
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