Letter from Joyce Quin MP, Minister of
State at the Home Office to Lord Tordoff, Chairman of the Select
Committee on the European Communities
Thank you for your letter of 2 April requesting
further information about the draft Convention. From its content
I assume it crossed with my letter of 31 March which outlined
the position following the Justice and Home Affairs Council in
As I explained in my letter of 31 March the
Council commissioned a feasibility study to examine the legal
and technical implications of a possible extension of the Eurodac
Convention to cover illegal immigrants to enable the Council to
make an informed decision on the question in May. I mentioned
that any such extension would be most likely to be effected by
way of a subsequent instrument.
You suggested in your letter that the Committee
would find it helpful to have a note setting out the background
to and reasons for the propsoal that Eurodac should be extended
and certain other information about the implications of any such
amendment. I therefore attach a short note as requested. It sets
out the key points for the Committee.
In my letter of 18 March I had mentioned that
the possibility had been raised that the Central Unit of the Eurodac
system should be run by the Commission rather than by a Member
State. You enquired about the implications of substituting the
Commission for a headquarters Member State in terms of the obligations
and liabilities which would thereby be transferred to the Commission.
The Eurodac Working Group considered at its
last meeting the drafting changes which would need to be made
to the text if a decision were taken that the Central Unit should
be run by the Commission rather than by a headquarters state.
I attach the latest draft of the Convention which integrates the
changes which would be likely to be required. As you will see
for the most part the changes would appear to be minor consequential
drafting amendments. However further consideration would need
to be given to these before the draft Convention could be signed.
In effect it is suggested that the Commission
would take on the responsibilities that would otherwise have fallen
to the headquarters Member State. It would, for example, be for
the Commission to adopt measures to ensure that persons working
in the Central Unit did not use the data recorded in the central
unit in a way contrary to the purpose of Eurodac (Article 7).
Where the Convention did not make particular provision otherwise
the operation of the Central Unit would be governed by the national
law of the Member State in which the Central Unit was located.
This would be the laws of Belgium if the Central Unit were to
be located there.
The proposed revisions to Article 10, which
deals with liability, are intended to make the European Community
liable for any damage to persons or other Member States caused
by persons working in the Central Unit in breach of their duties.
This would replicate the situation which exists in respect of
a number of other databases already run by the Commission. There
would be certain practical advantages for individuals if any action
had to be brought before the European Court of Justice rather
than the national courts of one of the Member States. One example
is the standardised procedures. These would allow lawyers anywhere
in the EU to bring a case with confidence. Were the Central Unit
to be run by a Member State any proceedings for damages would
need to be pursued in the courts of the relevant Member State
in accordance with the provisions of its national law.
You also mention the position of other Member
States in respect of the draft Convention. As you note I did not,
in my earlier letter, go into any detail about whether States
other than Austria and Germany had difficulties with the text.
Instead I simply indicated that one or more Member States might
not be in a position to signify political agreement in March for
a range of reasons. One of the Member States I had in mind was
Spain; similar issues to those raised in the other Third Pillar
matters you mention arise in Eurodac. The issue is being addressed
There have not been any signficant changes to
the text of the draft Convention since the version I deposited
with the Committee in January, apart from those of which the Committee
has already been made aware. There have, of course, been some
other amendments made as a result of ongoing discussions in the
working group but which do not make any difference of substance.
It may be helpful if I mention two such amendments which I understand
have come to the attention of the Committee.
The first is an amendment to Article 4(1). The
version of the text which was submitted to the Committee in January
contained a reference to Member States taking the fingerprints
of asylum seekers in accordance with the European Convention for
the Protection of Rights and Fundamental Freedoms. The reference
has subsequently been removed. Instead there is a reference to
the fact that the procedure for taking prints is to be determined
in accordance with the national practice of Member States. A reference
has also been added to the need to inform the applicant for asylum
of the purpose of taking the prints. (This was already contained
in Article 11(1)). The new text does not imply that Member States
are not required to comply with the ECHR when taking prints. All
Member States are signatories to the ECHR and are therefore bound
to comply with its provisions regardless of the wording of Article
4(1). The reference to national practice which has been inserted
is simply intended to recognise that Member States may, within
the constraints of the ECHR, have procedures which quite reasonably
differ in some respects. The central contentionthat all
Member States should take the fingerprints of all applicants for
The second change to the text is in respect
of Article 16, which deals with preliminary rulings. The version
of the text submitted to the Committee in January contained a
wording which would have given a compulsory jurisdiction to the
European Court of Justice. It was, however, made clear in the
supplementary Explanatory Note I submitted with the text that
such a jurisdiction was not acceptable to the United Kingdom;
but that the United Kingdom would be prepared to accept optional
preliminary rulings. The latest version of Article 16 would provide
for such a jurisdiction. However while most Member States have
indicated a willingness to accept such a formulation I would say
that this is not an issue on which agreement has yet been reached.
There have also been changes to Article 6b (where
Article 6b(2) has been simplified); Article 10 (which has been
reworked so that liabilities are clearer); Aritcle 11 (where the
text has been strengthened); Article 13 (where the importance
of the authority having access to specialists on fingerprint data
has been explicitly recognised); and Article 18a (consequent to
the change to Article 6b). I attach the latest version of the
text which contains these minor changes for your information.
As Presidency, our aim will be to achieve political
agreement on the draft Eurodac Convention at the JHA Council meeting
on 28 and 29 May, although given the issues still outstanding
there can be no guarantee that such agreement will be reached.
In the circumstances I would be grateful if the Committee could
give its clearance before the Council meeting. If there are any
outstanding points of concern then I would, of course, be prepared
to deal with them as a matter of urgency.
If the Committee has not cleared the draft Convention
before the Council meeting and political agreement does not prove
to be obtainable I should explain, as I did in my letter of 18
March, that the United Kingdom delegation will not withhold its
agreement on the basis of an outstanding scrutiny reserve. I will,
of course, write to let you know the outcome as soon as possible
after the Council.
I am copying this letter to the Chairman of
the European Legislation Committee in the House of Commons, the
Chairman of the Home Affairs Select Committee in the Commons and
to Doug Henderson.
DRAFT NOTE ON THE POSSIBLE EXTENSION OF THE
CONVENTION TO ILLEGAL IMMIGRANTS
1. The purpose of the Eurodac system, as
set out in Article 1 of the draft Convention, is "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." The requirement to take fingerprints
is currently restricted to those making an application for asylum.
2. Since the Dublin Convention came into
effect on 1 September 1997 there has been a general acknowledgement
that the Convention has not been working as well as it could.
It has been reognised that the most difficult criteria by which
to establish responsibility for an asylum seeker under the Dublin
Convention is illegal entry into the territories of the Member
States (Article 6).
3. In the light of this recognition, and
in the context of the particular difficulties experienced within
the European Union with the influx of migrants from Iraq, some
Member States suggersted that the draft Eurodac Convention ought
to be extended to include the fingerprints of illegal immigrants
(where these could be relevant to decision taking under the provisions
of the Dublin Convention) if it was to be a useful tool for improving
the effectiveness of the operation of Dublin. This is the background
to the decision taken by the Justice and Home Affairs Council
in March that a feasibility study should be undertaken.
4. Consideration is therefore being given
to how Eurodac could be extended to provide additional support
to the successful operation of the Dublin Convention; and if Ministers
decided that it should, whether this should be done by amending
the existing draft Eurodac Convention before it is signed or by
means of a subsequent protocol.
5. If the scope of the draft Eurodac Convention
were to be extended to include relevant illegal immigrants it
would be necessary to reach an agreement on the category of persons
whose fingerprints could properly be included on the system for
the purposes of determining responsibility under the provisions
of the Dublin Convention. Special provision would also need to
be made for the deletion of data on illegals. These are potentially
difficult areas. Other consequential amendments to the text of
the Convention would appear, on a preliminary analysis of what
would be required, to be comparatively straightforward.
6. In reaching a decision on whether to
extend the scope of Eurodac the Council would need to take into
account the provisions of Article 8 of the European Convention
on Human Rights and Article 5 of the Council of Europe Convention
for the Protection of Individuals with regard to Automatic Processing
of Personal Data.
7. There is no practical reason why the
central database could not include data on illegals. For the purposes
of Article 6 of the Dublin convention the fingerprints of illegal
immigrants would simply be added to the database; the data would
become relevant only once the individual had subsequently claimed
asylum. There would, however, be some increase to the costs.
8. Although the fingerprinting of at least
some illegal immigrants is already normal practice within some
Member States a number have indicated that they would require
legislation in order to provide for the routine fingerprinting
of illegal immigrants and the sharing of this data with other
50 A later draft of the Convention is printed in Appendix