Select Committee on European Communities Tenth Report


Annex 1

DRAFT STATEMENT FOR THE COUNCIL MINUTES RELATING TO THE CONVENTION

1.  AD ARTICLE 8(3)

  "When adopting the implementing rules concerning the compilation of the statistics referred to in Article 8(3) of the Convention establishing Eurodac for the comparison of fingerprints of applicants for asylum, the Council will take due account of the following:

  1.  As soon as a person has been recognised and admitted as a refugee in a Member State, that State will inform the Central Unit of Eurodac which will:

      (i)  give the data relating to that person an appropriate identification mark;

      (ii)  separate them, by appropriate technical means, from the data relating to applicants for asylum which have been registered in the central database.

  2.  The data relating to refugees which is thus blocked in the central database will continue to be subjected to comparisons requested by the Member States. However, the results of those comparisons will not be forwarded to the Member State of origin; appropriate technical means must guarantee that the results of their comparison are not forwarded even in circumstances where technical conditions allow the results of the comparison to be transmitted directly to the Member State of origin pursuant to Article 4(5) of the Convention.

  3.  The Central Unit, under the responsibility of the Commission and under the control of the joint supervisory authority/Central Unit supervisory authority referred to in Article 15 of the Eurodac Convention, will take all useful and necessary technical measures to prevent any access to data relating to refugees.

  4.  If a comparison of data relating to refugees results in a hit, the Central Unit will attach the hit information to the data.

  5.  After the periods provided for in Article 8(2), the Central Unit will, in accordance with Article 8(2), compile statistics on:

      (i)  the number of persons who, having been recognised and admitted as refugees in a Member State, have lodged a further application for asylum in another Member State;

      (ii)  the number of persons who have been recognised and admitted as refugees in more than one Member State;

      (iii)  the Member States in which the refugees have lodged a further applicants for asylum, with:

—  per Member State, the number of applications for asylum who, having the status of refugee in that State, have applied for asylum in another Member State and the number of such persons for each of the latter Member States;

—  per Member State, the number of applicants for asylum who already have the status of refugee in another Member State, and the number of such persons for each of the latter Member States."

2.  AD ARTICLE 12

  "The purpose of Article 12 is to allocate responsibility between the Member States and the Community for damage arising from the operation of the Eurodac system. The provisions of Article 12 are without prejudice to liability incurred by a Member State in accordance with its national law for the unlawful taking of fingerprints, for the unlawful transmission of fingerprints to the Central Unit and for the unlawful taking, transmission and use of personal data."

3. EURODAC PROTOCOL

PROTOCOL DRAWN UP ON THE BASIS OF ARTICLE K.3 OF THE TREATY ON EUROPEAN UNION, EXTENDING THE SCOPE RATIONE PERSONAE OF THE CONVENTION CONCERNING THE ESTABLISHMENT OF "EURODAC" FOR THE COMPARISON OF FINGERPRINTS OF APPLICANTS FOR ASYLUM

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

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

  RECOGNISING that the Convention signed at Dublin on 15 June 1990, determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, is a measure relating to the free movement of persons in accordance with the objective set out in Article 7a of the Treaty establishing the European Community;

  RECALLING that for the purposes of applying the Dublin Convention, and in particular Article 15 thereof, the Council has drawn up a Convention concerning the establishment of "Eurodac" for the comparison of fingerprints of applicants for asylum;

  WHEREAS it is also necessary in order effectively to apply the Dublin Convention, and in particular Article 6 thereof, to make provision for communicating to "Eurodac" the fingerprints of persons apprehended in connection with the irregular crossing of the external border of a Member State;

  WHEREAS it is also desirable in order effectively to apply the Dublin Convention, and in particular Article 10, paragraph 1 (c) and (e) thereof, to allow for each Member State to use "Eurodac" for checking whether an alien found illegally present on its territory has applied for asylum in another Member State.

  Have Agreed on the Following Provisions:

 ARTICLE 1

Extension of "Eurodac"

  The provisions of the Convention concerning the establishment of "Eurodac" for the comparison of fingerprints of applicants of asylum, hereinafter referred to as "the Eurodac Convention", shall be extended, subject to the provisions of this Protocol, to fingerprint data on certain other aliens, for the purpose of assisting in determining the Member State which is responsible under the Dublin Convention of 15 June 1990 for examining an application for asylum lodged in a Member State, as well as for the purpose of otherwise facilitating the application of the latter Convention.

ARTICLE 2

Definitions

  Unless otherwise stated, the terms defined in Article 2 of the Eurodac Convention and in Article 1 of the Dublin Convention of 15 June 1990 shall have the same meaning in this Protocol.

ARTICLE 3

Collection and communication of fingerprint data on aliens who irregularly cross an external border

  1.  Each Member State shall promptly take the fingerprints of every alien of at least 14 years of age who is apprehended by the competent control authorities in connection with the irregular crossing by land, sea or air of the border of that Member State having come from a third country and who is not turned back.

  2.  The Member State concerned shall promptly communicate the fingerprints of any alien as referred to in paragraph 1 above to the Eurodac Central Unit, together with the other relevant data referred to in Article 5(1) of the Eurodac Convention.

 ARTICLE 4

Recording of data on aliens who irregularly cross an external border

  1.  Data communicated to the Central Unit pursuant to Article 3 of this Protocol shall be recorded in the central database for the sole purpose of comparison with data on applicants for asylum transmitted subsequently to the Central Unit. The Central Unit shall therefore not compare data communicated to it pursuant to Article 3 with any data previously recorded in the central database, nor with data subsequently communicated to the Central Unit pursuant to Article 3.

  2.  In so far as the provisions of the Eurodac Convention apply to data on an alien as referred to in Article 3 of this Protocol, references to the "Member State of origin" shall be taken as meaning the Member State which communicates such data to the Central Unit.

ARTICLE 5

Storage of data on aliens who irregularly cross an external border

  1.  Each set of data relating to an alien as referred to in Article 3 of this Protocol shall be stored in the Eurodac central database for [two] years from the date on which the fingerprints of the alien were taken. Upon expiry of this period, the Central Unit shall automatically erase the data from the central database.

  2.  Notwithstanding the provisions of paragraph 1 above, the data relating to an alien as referred to in Article 3 shall be erased from the central database immediately when the Member State of origin becomes aware of either of the following circumstances before the two-year period mentioned in paragraph 1 has expired:

    (a)  the alien has been issued with a residence permit; or

    (b)  the alien has left the territory of the Member States.

 ARTICLE 6

Rights of the data subject

  Article 13(2) of the Eurodac Convention shall not give an alien as referred to in Article 3 of this Protocol the right to be informed by the Member State of origin of the data relating to him/her in the central database, where he/she would not have such a right under the law of the Member State of origin. If in such case the alien seeks in another Member State to be informed of the data relating to him/her in the central database, the latter Member State may do so only if it has previously given the aforementioned Member State of origin an opportunity to state its position.

ARTICLE 7

Comparison of fingerprints of aliens found illegally present in a Member State

  1.  Each Member State may communicate to the Central Unit fingerprints it may have taken of any alien of at least 14 years of age found to be illegally present within its territory with a view to checking whether the said alien has previously lodged an application for asylum in another Member State.

  2.  The fingerprints of an alien as referred to in paragraph 1 shall be communicated to the Central Unit solely for the purpose of comparison with the fingerprints of applicants for asylum transmitted by other Member States and already recorded in the central database. The fingerprints of such an alien shall not be stored in the central database, nor shall they be compared with the data communicated to the Central Unit pursuant to Article 3 of this Protocol.

  3.  The Central Unit shall destroy the fingerprints communicated to it under paragraph 1 above forthwith, once the results of the comparison have been communicated to the Member State of origin.

 ARTICLE 8

Application of provisions of the Eurodac Convention

  Unless otherwise stated in this Protocol or unless a different intention appears from the context, all the provisions of the Eurodac Convention shall apply mutatis mutandis to this Protocol.

ARTICLE 9

Reservations

  This Protocol shall not be subject to any reservations.

ARTICLE 10

Entry into force

  1.  This Protocol 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 Protocol.

  3.  This Protocol shall enter into force on the first day of the third month after 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 Protocol, is the last to complete that formality, provided that the Eurodac Convention enters into force on the same date as this Protocol.

 ARTICLE 11

Accession

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

  2.  The text of this Protocol 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 Protocol 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 this Protocol if it has not already entered into force at the time of expiry of the aforesaid period, provided that the Eurodac Convention enters into force with respect to the acceding Member State on the same date as this Protocol.

ARTICLE 12

Depositary

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

  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 Protocol.

DRAFT STATEMENTS FOR THE COUNCIL MINUTES RELATING TO THE PROTOCOL

1.  AD ARTICLE 3

  "The Member States declare that the obligation to take fingerprints of aliens `apprehended in connection with the irregular crossing of a border' is not limited to the situation where an alien is apprehended at the external border itself. This provision is also intended to include cases where an alien is apprehended near the external border shortly after having crossed it irregularly, as well as cases where an alien is apprehended a substantial distance from the external border, having managed to travel that far after crossing the external border several hours previously. Such cases would include aliens picked up and transported by (high speed) vehicles immediately after crossing the border, aliens on board (high speed) trains detected only subsequently to the crossing of the external border either during on board checks or at destination, as well as those transported in sealed commercial vehicles and apprehended only at the moment of disembarkation from the said vehicle."

2.  AD ARTICLE 7

  "The Member States agree that the cases in which it would be justified to communicate data to the Central Unit under Article 7 of the Protocol include the following:

    —  the alien declares that he (she) has lodged an application for asylum in a Member State;

    —  the alien does not request asylum but objects to being returned to his (her) country of origin by claiming that he (she) would be in danger, or otherwise seeks to prevent his/her return by showing no identity papers."

4.  EUROPEAN CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

ARTICLE 8

Right to respect for private and family life

  1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

  2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 13

Right to an effective remedy

  Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.



 
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