Select Committee on European Communities Second Report


25.  "EURODAC": PROPOSAL FOR A COUNCIL REGULATION ESTABLISHING EURODAC AS A COMMUNITY INSTRUMENT (9988/99)

Letter from Lord Tordoff, Chairman of the Committee, to the Rt Hon Jack Straw MP, Secretary of State for the Home Department, Home Office

  Thank you for your response to the Committee's Report Fingerprinting Illegal Immigrants: Extending the Eurodac Convention. The Committee has noted your intention to participate in the adoption of the Commission's proposed Regulation establishing Eurodac as a Community instrument.

  Sub-Committee E considered the draft Regulation at its meeting on 20 October. There are a number of points on which it would welcome clarification, particularly as these have not been addressed fully in your Explanatory Memorandum. The first concerns the proposed legal base. You refer to the Eurodac Regulation as a flanking measure. Article 61(a) of the EC Treaty requires such measures to be "directly related" to the free movement of persons and to be in accordance with the relevant Treaty provision, in this case Article 63(1)(a). Article 63(1)(a) requires the Council to adopt "criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States." This provision would seem to allow for the adoption of a measure to give effect, within a Community framework, to the objectives of the Dublin Convention. It is less clear, however, whether it extends to measures designed to facilitate the application of that Convention, particularly in the absence of any Community measure to implement the Dublin obligations. The Sub-Committee would be grateful for a fuller explanation of your reasons for believing that Article 63(1)(a) is an appropriate legal base.

  The Sub-Committee noted that your Explanatory Memorandum does not include an assessment of the compatibility of the draft Regulation with the requirements of Article 5 of the EC Treaty and the Protocol on the application of the principles of subsidiarity and proportionality. It would welcome your views, particularly in the light of the concern expressed in the Committee's Report that the extension of Eurodac to certain categories of illegal entrant would seem to encompass an unquantified number of immigrants who do not claim asylum or who have valid documents proving who they are and where they have come from.

  As regards the choice of legal instrument, the Sub-Committee considered that the use of a directly applicable Regulation could only be justified if the provisions specifying whether and when fingerprints must or may be taken from illegal entrants were clear and precise. The substance of a minutes statement clarifying the circumstances in which the fingerprints of third country nationals found illegally present within a Member State may be sent to Eurodac has been incorporated into Article 11 of the draft Regulation. A separate statement concerning the obligation to fingerprint third country nationals apprehended in connection with an irregular border crossing has not, however, been incorporated into Article 8. The Commission's Explanatory Memorandum merely states that "the Council will need to reflect on whether it wishes to agree on and publish a similar statement". This would seem to fall short of incorporation. Is it the Government's intention to press for the incorporation of the minutes statement or additional text to provide clearer guidance on the circumstances in which fingerprints must be taken?

  Recital 17 of the draft Regulation states that the territorial scope of Eurodac should be aligned with that of the Dublin Convention. The Sub-Committee noted that all EU Member States are parties to the Convention. By contrast, Denmark has opted out of any Community measures, such as Eurodac, based on Title IV of the EC Treaty and the UK and Ireland must activate special opt-in procedures if either wishes to participate. How is it intended to give effect to recital 17 and what are the legal and practical implications if Denmark (or Ireland or the UK) maintains its opt-out?

  Finally, the Sub-Committee would also welcome the Government's views on the proposed changes to the data protection regime.

  I look forward to receiving the information requested. In the meantime, the draft Regulation remains under scrutiny.

21 October 1999

Letter from the Rt Hon Jack Straw MP, Secretary of State for the Home Department, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 21 October conveying the points on which the Committee would like clarification. I am extremely grateful for the contribution made by the Committee.

  The Commission have now circulated a new text of the draft Regulation containing amendments made following discussion at the Council Working Group together with some changes made as a result of Commission proposals. Although this is not a published text, I believe that this is an appropriate stage at which to deposit the current text for scrutiny. Developments since July when the previous text was deposited, which include the Government's decision to exercise its opt-in to the draft Regulation, lead me to believe that this should be done now.

  The European Parliament is due to publish its opinion on the draft Regulation shortly and I understand that a final published text will be available soon after that date. However, the Presidency is driving this very fast now and aims to have the draft Regulation adopted at the Justice and Home Affairs Council on 2 and 3 December.

  I therefore propose to submit within the next week an Explanatory Memorandum covering the latest text of the draft Regulation, and at the same time to respond to the questions in your letter of 21 October. In the meantime, I thought that the Committee would wish to have this early warning of the pace at which the Eurodac work is now developing.

22 November 1999

Letter from Lord Tordoff, Chairman of the Committee, to the Rt Hon Jack Straw, MP, Secretary of State for the Home Department

  Thank you for your letter of 22 November. I note what you say concerning the speed with which this proposal is now being taken forward by the Finnish Presidency. As your letter acknowledges this is matter which has been the subject of detailed examination by the Committee and clearly we will need a sufficient opportunity to consider the revised texts and your response to the points raised in my letter of 21 October. I feel I must alert you now that it may not be possible for this to be done before next week's Justice and Home Affairs Council.

23 November 1999

Letter from Barbara Roche MP, Minister of State, Home Office, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 21 October with some further questions from your Sub-Committee on the draft Regulation. I am sorry I have not been in a position to provide you with a full response to your letter before now.

  I understand that the Presidency is aiming to gain as much agreement as possible on the draft Regulation at the forthcoming Justice and Home Affairs Council on 2 and 3 December. The Council Working Group has been meeting regularly in order to make the necessary progress and much work has been achieved lately. I have signed an Explanatory Memorandum detailing the background and recent developments on Eurodac and a copy of this is enclosed for your information.

LEGAL BASE

  In your letter, you say that the Sub-Committee would be grateful for a fuller explanation of my reasons for believing that Article 63(1)(a) (of the EC Treaty) is an appropriate legal base.

  Article 63(1)(a) TEC requires the Council to adopt "criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States". The Government is of the view that the Dublin Convention contains some such criteria and mechanisms, while the draft Eurodac Regulation sets out further such mechanisms. An example of such a mechanism under the Dublin Convention is to be found at Article 15(1) of that Convention, which provides for one Member State to communicate to another such information on individual cases as is necessary for determining the Member State which is responsible for examining an application for asylum. The Eurodac Regulation would, when agreed, formalise this mechanism by requiring the exchange of fingerprint data across Member States for the same purpose. The Government therefore considers that Article 63(1)(a) TEC is the correct legal basis for the Eurodac Regulation.

  The Government notes the Sub-Committee's additional concern that there is no Community measure to implement Dublin Convention obligations. It is intended to replace the provisions of the Dublin Convention by a Community measure in the future. In the meantime, the Government considers that the legal base for the Eurodac Regulation is not affected by the fact that the Dublin Convention has not yet been converted into a Community measure. The Regulation still provides a mechanism for the stated purpose.

CLARITY AND LEGAL CERTAINTY

  You ask if it is the Government's intention to press for the incorporation of the minutes statement or additional text (into Article 8) to provide clearer guidance on the circumstances in which fingerprints must be taken.

  In the Government's response to the Sub-Committee's report on the draft Protocol, we stated that the Government understood the Committee's concern that important facets of the agreement should be reflected in the text rather than in a Council minutes statement. At that time, the Government was supporting a Commission proposal that the substance of the minutes statement be incorporated into the text, believing it would further strengthen the text in terms of precision and legal certainty. Since then, the Government has continued to argue for this incorporation at Working Group level but has not received the necessary degree of support from other Member States.

TERRITORIAL SCOPE

  You ask how it is intended to give effect to recital 17 (of the draft Regulation) and what are the legal and practical implications if Denmark (or Ireland or the UK) maintains its opt-out (recital 17 of the draft said "it is appropriate to restrict the territorial scope of the Regulation so as to align it on the territorial scope of the Dublin Convention").

  The Commission has now circulated a fresh recital in the latest version of the draft Regulation reflecting the position following the opt-ins by the United Kingdom and by Ireland. The United Kingdom is in a strong position to play a full part in negotiations on the draft regulation. Unanimity by all Member States is required before the draft regulation can be adopted. The Commission has reported that Denmark has recently repeated its wish to participate in Eurodac but is in a different position.

  As to Danish participation, the Regulation does not build on the Schengen acquis and therefore Article 5 of the Danish Protocol does not facilitate Denmark's participation on an international law basis. If Denmark is otherwise not able to participate, it would continue to be bound by its obligations under the Dublin Convention, as it is now, but would not play any part in Eurodac. Whilst, given their respective purposes, it would be impossible to envisage participation in Eurodac but not in Dublin, the Government cannot see that any difficulty arises where a Member State participates in Dublin but not in Eurodac. Either way, the Government's view is that the recitals will require adjustment in the light of Denmark's eventual position.

SUBSIDIARITY AND PROPORTIONALITY

  The Sub-Committee raised concerns about the extension of Eurodac to cover certain categories of illegal entrant. The Government has already set out its views on the proportionality of fingerprinting these individuals in the ECHR context. I would refer you to the Government's response to the Sub-Committee's report, which referred to Kate Hoey's note to the Sub-Committee of 10 May 1999. The Government would adopt the same reasoning in respect of proportionality in this context. It was agreed in the Government's response that fingerprinting illegal entrants who are detained upon crossing an external EU Border could be considered to be disproportionate. The Government has continued to press for an appropriate form of words in Article 8 of the draft Regulation to cover this, and it has very recently been agreed in principle to include a specific reference to the requirements of the ECHR at this point in the text.

DATA PROTECTION

  The Sub-Committee asked for the Government's views on the proposed changes to the data protection regime.

  I believe there is little that I can usefully add here to the text of the Explanatory Memorandum which points out that the current draft, like the frozen text, is based on and develops the data protection regime established under the TEC (Directive 95/46/EC) which is considered appropriate given that Eurodac is a First Pillar instrument.

29 November 1999

Letter from Lord Tordoff, Chairman of the Committee, to Barbara Roche MP, Minister of State, Home Office

  Thank you for your letter of 29 November responding to a number of points raised by Sub-Committee E with regard to the draft Eurodac Regulation. The Committee has also considered a revised draft Regulation and Explanatory Memorandum submitted shortly before the Justice and Home Affairs Council on 2 December.

  It appears that the Council reached a "political orientation" on all provisions of the Regulation except those concerning territorial scope. I understand that the Council also agreed changes to the regulatory procedure proposed by the Commission and that this matter is to be referred back to the European Parliament. The Committee would be grateful for clarification of what was agreed at the Council. As you know, the draft Regulation remains under scrutiny. If the Council did, in fact, reach a political agreement, the Committee would expect to be informed of the special reasons justifying such action. The Committee would also welcome an account of the Council's proposed changes to the comitology procedure and of any progress made on the question of the territorial application of the Regulation.

  The Committee noted that the revised Regulation specifies in greater detail the type of fingerprint data to be transmitted to the Eurodac Central Unit. As regards asylum seekers and aliens (non-EU nationals) apprehended in connection with the irregular crossing of an external border, Member States are required to take and send to Eurodac the fingerprints of all fingers (Articles 4(1) and 8(1)). Member States may also, if their national law permits, send to Eurodac the fingerprint data of aliens found illegally present in their territory to check if a prior claim for asylum has been lodged elsewhere. Such data must include "all or at least the index fingers, and if those are missing, the prints of all other fingers" (Article 11(2)). The Committee would welcome an explanation of the reasons for distinguishing between the type of fingerprint data to be sent to Eurodac. How does the Government intend to implement Article 11(2)?

  The amended Regulation also sets out a number of detailed requirements for the collation and analysis of statistical data by the Eurodac Central Unit (Article 3(3)). It is not clear whether this data will be included in the Annual Report to the European Parliament, and Council (Article 22). The Committee would be grateful for confirmation that the statistical data collated by the Central Unit pursuant to Article 3(3) will be published.

  The Committee noted that the amended Regulation provides for the erasure of any data held in the Eurodac database on a person who acquires citizenship of a Member State (Articles 7 and 10(2)(c)). The original draft Regulation referred to citizenship of the Union, and status reserved exclusively for nationals of Member States. Can you explain the reasons for, and implications of, the change from Union to Member State citizenship?

  There are two further matters of concern to the Committee. You explain in your letter that the Government has pressed for the incorporation of the Council minutes statement clarifying the scope of the obligation to fingerprint non-EU nationals apprehended in connection with an irregular border crossing, but other Member States are opposed. You will recall the concern expressed by the Committee in its Report that a lack of clarity with regard to the scope of the fingerprinting obligation would undermine legal certainty and produce inconsistencies of practice in the Member States. Your Explanatory Memorandum justifies the use of a Regulation "in order to ensure strict harmonisation between Member States. If Member States were fingerprinting different categories of person, sending different fingerprints to the Central Unit or retaining the fingerprints for a different length of time, the system would not work to best effect". The Committee remains concerned that the need for a minutes statement indicates that the Regulation, as drafted, does not provide the strict harmonisation necessary to ensure consistency and effectiveness. The Committee would therefore welcome an explanation of the reasons given by other Member States for the non-incorporation of the minutes statement, and the Government's view of the status of the minutes statement as an aid to the interpretation and application of Article 8.

  Finally, your Explanatory Memorandum does not indicate the view taken by the Council on the amendments proposed by the European Parliament. In particular, the EP recommended raising the minimum age for fingerprinting to 18 and incorporating references to safeguards in the ECHR and UN Convention on the Rights on the Child. The Committee's Report stated that "due consideration should be given to the special needs of children" in determining both the scope of the fingerprinting obligation and the detailed rules for its application. The Committee would be grateful for an explanation of the Government's view on the EP's amendments and the Council's reasons for rejecting the EP proposal to raise the minimum age to 18.

  The Committee looks forward to receiving your response to the points raised above. It intends, in the meantime, to hold the draft Regulation under scrutiny.

16 December 1999

Letter from Barbara Roche MP, Minister of State, Home Office, to Lord Tordoff, Chairman of the Committee

  Thank you for your letter of 16 December 1999, with further comments from the Select Committee on the Draft Regulation. You asked for clarification of a number of issues. The Government's response is set out below.

  "It appears that the Council reached a `political orientation' on all provisions of the Regulation except those concerning territorial scope. The Committee would be grateful for clarification of what was agreed at the Council. As you know, the draft Regulation remains under scrutiny. If the Council did, in fact, reach a political agreement, the Committee would expect to be informed of the special reasons justifying such action".

  You will be aware that Jimmy Hood recently raised the same concern in his letter to the Home Secretary of 15 December. The Council Press Release in which this form of words appeared is not of course a matter for which we have any responsibility. It does not seem particularly clear that by "political orientation" the Release meant any more than some level of progress towards eventual agreement. Our Parliamentary scrutiny reserve was registered clearly. The Home Secretary was not asked for, and did not give, assent to "political agreement" and the Council could not have reached it, not only because of our Parliamentary scrutiny reserve, but because the European Parliament (EP) is to be reconsulted.

  "I understand that the Council also agreed changes to the regulatory procedure proposed by the Commission and that this matter is to be referred back to the European Parliament. The Committee would also welcome an account of the Council's proposed changes to the comitology procedure".

  Member States have now agreed that Article 22 should be amended to reflect that the Council should adopt this role, having decided that the Council should not be seen to be abrogating its responsibilities in an area which touches upon the freedom of the individual. As a result, the Commission has entered a reservation, on the basis that such a retention of powers by the Council does not comply with the criteria in the EC Treaty and Council Decision 1999/468/EC. It argues that such a retention has not been properly substantiated as required by Article 1 of the Decision, meaning that the Council would be in breach of the Decision and past EC rulings in this area. As the latest text now differs from the one commented upon by the EP, the EP will need to be re-consulted before the Regulation can be adopted. This may take some months.

  "The Committee would welcome any progress made on the question of the territorial application of the Regulation".

  Under Article 299(4) of the Treaty Establishing the European Community (TEC) measures under Title IV apply to Gibraltar. However, the draft Eurodac Regulation would build on the Dublin Convention, which determines the State responsible for examining applications for asylum lodged on one of the member states. The Dublin Convention does not currently apply to Gibraltar. So, in this case, the Draft Regulation can only apply to Gibraltar once the Dublin Convention applies there. The wording in the Draft Regulation provides for this. However it is one of a number of EC measures currently blocked by Spain on the question of the designation of Gibraltar competent authorities. Discussions on this issue have been continuing for several months with Spain and the Government of Gibraltar in the context of discussion of issues relating to the United Kingdom application to participate in Schengen. We shall inform the Committee of the outcome of these discussions.

  "As regards asylum seekers and aliens (non-EU nationals) apprehended in connection with the irregular crossing of an external border, Member States are required to take and send to Eurodac the fingerprints of all fingers (Article 4(1) and 8(1). Member States may also, if their national law permits, send to Eurodac the fingerprint data of aliens found illegally present in their territory to check if a prior claim for asylum has been lodged elsewhere. Such data must include `all or at least the index fingers, and if those are missing, the prints of all other fingers' (Article 11(2)). The Committee would welcome an explanation of the reasons for distinguishing between the type of fingerprint data to be sent to Eurodac. How does the Government intend to implement Article 11(2)?"

  It is intended that Eurodac data should be kept for different purposes, but all relating to support of the Dublin Convention, without going beyond the needs of that Convention. Prints from asylum applicants are to be used for comparison purposes with data already on the central unit database and stored there. Prints from aliens apprehended in connection with the irregular crossing of an external border are taken to be stored in the central database for comparison later against the prints of asylum seekers subsequently transmitted, and full prints are to be taken in case, at some future stage, fewer prints are available. However, under Article 11(2), the prints which may be taken from those found illegally present in a Member State will be compared only against the prints of asylum seekers already stored—and cannot be stored themselves if no match is made. It appears that an accurate match can be established using only a limited number of fingers using fingerprint technology currently available. Because the prints in this third category are to be used for comparison purposes only, two prints as a minimum will be sufficient and index fingers have been selected. No decision has yet been taken on how to implement Article 11(2) but it is not expected that its implementation will cause any difficulty domestically and it will be considered alongside current plans to computerise the existing fingerprinting arrangements.

  "The amended Regulation also sets out a number of detailed requirements for the collation and analysis of statistical data by the Eurodac Central Unit (Article 3(3)). It is not clear whether this data will be included in the Annual Report to the European Parliament and Council (Article 22). The Committee would be grateful for confirmation that the statistical data collated by the Central Unit pursuant to Article 3(3) will be published".

  The Commission has indicated that, although there is no legal requirement to include the statistical data in the Annual Report which the Commission will be required to submit to the European Parliament and the Council, it envisages that this material would be included. The "pre-defined quantitative indicators" referred to in Article 23(1) have yet to be considered but the Commission considers it likely that these would be based on statistical data.

  "The Committee noted that the amended Regulation provides for the erasure of any data held in the Eurodac database on a person who acquires citizenship of a Member State (Articles 7 and 10(2)(c)). The original draft Regulation referred to citizenship of the Union, a status reserved exclusively for nationals of Member States. Can you explain the reasons for, and implications of, the change from Union to Member State citizenship?"

  The overall view here was that reference to citizenship of a Member State had more clarity of meaning than the term Membership of the Union, although it was accepted that the use of one term rather than another would have no practical difference.

  "You will recall the concern expressed by the Committee in its report that a lack of clarity with regard to the scope of the fingerprinting obligation would undermine legal certainty and would produce inconsistencies of practice in the Member States. Your Explanatory Memorandum justifies the use of a Regulation `in order to ensure strict harmonisation between Member States. If Member States were fingerprinting different categories of person, sending different fingerprints to the Central Unit or retaining the fingerprints for a different length of time, the system would not work to best effect'. The Committee remains concerned that the need for a minutes statement indicates that the Regulation, as drafted, does not provide the strict harmonisation necessary to ensure consistency and effectiveness. The Committee would therefore welcome an explanation of the reasons given by other Member States for the non-incorporation of the minutes statement, and the Government's view of the status of the minutes statement as an aid to the interpretation and application of Article 8".

  The text of the draft Protocol (which contained the previous version of Article 8) was "frozen" in March 1999 and, under the Finnish Presidency's direction, amendments to the text were agreed by Member States with the sole purpose of ensuring compatibility with First Pillar procedures. With the exception of the United Kingdom, Member States did not consider that incorporation of the minutes statement in the text met this criterion. The Government has continued to press for the incorporation of the Minutes Statement in Working Group discussions but has been unsuccessful. The United Kingdom has, of course, maintained its scrutiny reservation over the draft as a whole given outstanding Parliamentary scrutiny. It would however be unrealistic to assume at this stage we shall be able to secure any further textual change.

  This is disappointing especially in view of the Committee's concerns. We will reflect on the possibility of providing greater legal certainty in the course of implementation, although this may give rise to legal problems in view of the status of Eurodac as a Regulation.

  It is to be noted that the alternative course recommended by the European Parliament of adding a specific reference to the European Convention on Human Rights has been adopted, together with a specific reference to the United Nations Convention on the Rights of the Child. This undoubtedly strengthens the individual's rights under the Article. It also overcomes a limitation of the approach adopted in the draft Minutes Statement, which is the difficulty of accommodating all the varied circumstances which exist in different Member States in terms of the character of their borders, transport links and methods of immigration control. As the Committee says, Eurodac aims to achieve necessary degree of harmonisation. But there inevitably comes a point at which Member States will have to decide for themselves how to interpret the scope of this provision as it applies in their particular circumstances. In doing so, they will be subject to the scrutiny of their domestic courts and the European Court of Human Rights in applying the safeguards of the ECHR to Eurodac, and to that of the European Court of Justice in questions arising from Eurodac itself. On balance, the Government is satisfied that this provides a sufficient legal framework.

  "Your Explanatory Memorandum does not indicate the view taken by the Council on the amendments proposed by the European Parliament. In particular, the EP recommended raising the minimum age for fingerprinting to 18 and incorporating references to safeguards in the ECHR and the UN Convention on the Rights of the Child. The Committee's Report stated that `due consideration should be given to the special needs of children' in determining both the scope of the fingerprinting obligation and the detailed rules for its application. The Committee would be grateful for an explanation of the Government's view on the EP's amendments and the Council's reasons for rejecting the EP's proposal to raise the minimum age to 18".

  The European Parliament published its report on 18 November and the Council has not yet responded. The Government believes that is important at this stage for progress to be made towards implementation of the Draft Regulation, and that matters already agreed amongst the Member States should not be re-opened unless they raise new or significant issues not already considered. In general it does not consider that the proposals put forward by the European Parliament raise any issues of this kind and would prefer that the "frozen" text should proceed unchanged in these respects. The issue of a minimum age had already been discussed at an earlier stage. However, amendments have been made to Articles 4 and 8 making it clear that fingerprints shall be taken in accordance with the ECHR and the UN Convention on the Rights of the Child. I believe that these are positive and helpful changes, the point being of course ones recommended by the European Parliament.

  Although no new published draft has yet been prepared by the Council, amended working documents have been drawn up incorporating changes agreed up to the point of the December JHA Council. In view of these agreed changes a Supplementary Explanatory Memorandum will be prepared and circulated in the near future.

Letter from Lord Tordoff, Chairman of the Committee, to Barbara Roche MP, Minister of State, Home Office

  Thank you for your response to my letter of 16 December. Sub-Committee E (Law and Institutions) has considered your letter and Explanatory Memorandum accompanying the Commission's revised proposal for a draft Regulation (document 7079/00, Eurodac 1). There are a number of issues on which the Committee would welcome further clarification of the Government's position.

RELATIONSHIP BETWEEN EURODAC AND THE DUBLIN CONVENTION

  The first concerns the timing of the present initiative. The Committee is aware that a number of policy options for the revision of the Dublin Convention and its replacement by a Community instrument are currently under review. It is not clear how much of the existing Dublin Convention language will survive in the successor instrument. Given this uncertainty, the wisdom of modelling Eurodac on the terms of the present Convention would seem to be questionable. You state in your Explanatory Memorandum that there is likely to be pressure to finalise the draft Regulation. Is it the intention to proceed to the adoption of the Regulation before determining the precise form and content of the successor to the Dublin Convention?

  The revised title of the draft Regulation makes explicit the exclusive link between the Eurodac system and the Dublin Convention. Some of the key provisions (such as the definitions of the categories of third country nationals subject to fingerprinting (Articles 8(1) and 11(1)) mirror language in the Dublin Convention. Other amendments proposed in the Commission's latest draft would seem to go in the opposite direction. For example, the use of the term "third country national" instead of "alien" would signify a departure from the terminology of the Dublin Convention. Your Explanatory Memorandum does not indicate whether the Government attaches any significance to the different wording. Nor do you comment on the risk of divergent interpretations. Although, at present, the Court of Justice has no jurisdiction with regard to the Dublin Convention, it will be able to give interpretative rulings on any Community successor to Dublin and on Eurodac under Article 68 of the EC Treaty. I would welcome your comments on the significance of the difference of wording of similar provisions in the revised Regulation and the Dublin Convention and how you propose to ensure consistency between the two instruments.

ERASURE OF FINGERPRINT DATA OF RECOGNISED REFUGEES

  Article 7(b) requires the erasure of the fingerprint data of asylum seekers once refugee status has been granted. The case for retaining such data was to produce a statistical assessment of the scale and frequency of "secondary movements" of persons granted asylum in one Member State who subsequently move to another and claim asylum as a means of acquiring legal status. Under the revised Regulation, such an assessment could not be undertaken. The alternative proposed by the Commission is to include refugees in the scope of a further instrument defining the circumstances in which third country nationals legally residentin one Member State may reside in another. Does the Government accept the Commission's analysis that facilitating the free movement of legally resident third country nationals, including refugees, would reduce the incentive to claim asylum in more than one Member State and thus relieve some of the pressures on immigration authorities?

RELATIONSHIP WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS

  The Committee notes that the revised Regulation includes the requirement that mandatory fingerprinting (under Articles 4(1) and 8(1)) complies with the European Convention on Human Rights (ECHR) and the UN Convention on the Rights of the Child. Implementing rules covering, inter alia, the procedure for taking fingerprints are to be agreed by committee. You state in your letter that the way in which Member States interpret the Regulation and, in particular, their application of the ECHR safeguards, will be subject to scrutiny in their domestic courts and in the European Court of Human Rights. In addition, questions arising from Eurodac itself will be subject to review in the European Court of Justice.

  While the Committee shares the commitment to respect international human rights standards, it is not clear how the reference to the two Conventions would strengthen in a practical way the rights of the individual under Articles 4(1) and 8(1). A consequence of the Regulation would seem to be that the European Court of Justice would be the ultimate arbiter of the extent to which national practice, in implementation of the rules, was as a matter of Community law compliant with the ECHR (and indeed, the UN Convention). There would be no possibility of a further appeal to the Strasbourg Court. Moreover, Community Regulations and rules made under them take effect in the Member States as directly applicable law. Even if the procedure for fingerprinting at the national level were susceptible to challenge in a domestic court and from there up to the Strasbourg Court, it appears at first sight that a situation similar to that in the Matthews case might arise. Is it possible that a Member State might find itself in breach of the ECHR but incapable, without the unanimous agreement of the Council, to effect a change in practice or procedure to make it compliant? The Committee would welcome further clarification of the options for action available to an aggrieved individual alleging a breach of ECHR rights in the procedures for taking fingerprints under the draft Regulation and, in particular, the relationship between the Strasbourg and Luxembourg Courts.

COMMITTEE PROCEDURES

  You explain that the Council wishes to reserve to itself the right to adopt certain implementing measures on the grounds that "the Council should not be seen to be abrogating its responsibilities in an area which touches on the freedom of the individual". This issue is of some importance, not least because the implementing rules will include the safeguards to ensure compliance with the ECHR and the Convention on the Rights of the Child. The Commission draws attention to a possible reduction in democratic oversight as there would be no obligation on the Council to inform the European Parliament of draft implementing measures.

  In our Report on committee procedures (Delegation of Powers to the Commission: Reforming Comitology) we stated that "special provisions may be needed to safeguard human rights and fundamental freedoms", especially in areas such as immigration and asylum. We placed particular emphasis on the need for democratic legitimacy, accountability and transparency. The apparent absence of any parliamentary supervision of implementing measures adopted by the Council under the Eurodac Regulation is a matter of concern. The Committee would welcome an explanation of how the Government intends to ensure democratic legitimacy, accountability and transparency in the adoption by the Council of implementing rules. In particular, would you accept that there would be a role for the parliamentary scrutiny committees prior to the adoption of such measures?

PENALTIES

  The Committee would be grateful for further explanation of the Council's reasons for opposing the text proposed by the Commission on the penalties to be imposed for the misuse of Eurodac data.

IMPLEMENTATION

  Your Explanatory Memorandum (at paragraph 26) indicates that implementation of the Regulation would require amendment of the Immigration and Asylum Act 1999 as regards mandatory fingerprinting. We have already raised with you our doubts as to whether the draft Regulation provides a sufficient degree of legal certainty to ensure consistency of implementation in the Member States. You state in your letter that the Government will "reflect on the possibility of providing greater legal certainty in the course of implementation, although this may give rise to legal problems in view of the status of Eurodac as a Regulation". The Committee would welcome your views on the extent of the discretion, if any, the Government would enjoy to issue practice guidelines on the implementation of obligations set out in the Regulation.

  The Committee intends to hold the revised draft Regulation (document 7079/00. Eurodac 1) under scrutiny pending your response. This letter clears from scrutiny two earlier drafts (documents 9988/99 COM(99) 260 and (P)13052/99).

9 June 2000


 
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