Changes from report parliamentary committee draft to plenary report

Change 25

AddedSHORT JUSTIFICATION

AddedThe rapporteur is of the opinion that the ongoing migration and refugee crisis facing the European Union has exposed significant structural weaknesses in the design and implementation of European asylum and migration policy, including the Dublin and Eurodac systems. Thus, it forces the Union and Member States to rethink and, where appropriate, redesign the Common European Asylum System and to search for ways to better address irregular migration. The Commission’s proposal for a recast Eurodac Regulation is part of a first set of legislative proposals in the context of such a major reform.

AddedOverall, the rapporteur welcomes the Commission’s proposal, which aims to adapt the Eurodac system and extend its present scope for wider migration purposes. This reform should allow Eurodac to continue to provide the biometric and personal data it needs to function and maintain its relevance in a changing migration context. The rapporteur welcomes the fact that the reformed Eurodac system can contribute to the fight against irregular migration by better monitoring secondary movements of irregular migrants within the EU and facilitating the identification and re-documentation of illegally staying third-country nationals and those who have entered the European Union irregularly at the external borders, thus improving the effectiveness of the EU’s return and readmission policies. The rapporteur underlines that this must take place in full respect of existing data protection requirements and the fundamental rights of the individuals concerned.

AddedScope of Eurodac

AddedThe rapporteur proposes to reduce the scope. Currently, as foreseen in Article 14, each Member State shall promptly take the fingerprints of all fingers and capture a facial image of every third-country national or stateless person of at least six years of age who is found illegally staying within its territory. This includes the case of tourists who mistakenly overstayed the three-month period allowed by only a few days and are at the border trying to leave the EU. Therefore, the rapporteur suggests the following derogation: when the third-country national previously crossed the border legally, the Member State could allow a maximum of 15 days of overstay before including the information in Eurodac. Such a derogation would limit the insertion of unnecessary data and avoid unnecessary costs.

AddedThe rapporteur considers that the information regarding third-country nationals for whom there is an ongoing resettlement procedure should be added to Eurodac. In line with the resettlement proposal, Member States should take the fingerprints from the date of resettlement (article 10 of the proposal) and when a Member State excludes a person from resettlement, no other Member State can take this person for 5 years (Article 6 of the proposal). The rapporteur believes that this information should be added to Eurodac.

AddedList of data

AddedTo improve the cooperation between Member States in the field of irregular migration, the rapporteur considers that it will be very useful to indicate in Eurodac the removal measures (voluntary, forced, etc.), rather than the asylum request number. Currently, the problem is that there is no information sharing on return decisions between Member States. Therefore, when a Member State delivers a return decision, the person concerned can simply go to another Member State and restart the entire procedure.

AddedThe rapporteur thinks that eu-LISA should carry out a study to determine whether it is necessary to harmonize combinations of biometric identifiers from the different EU databases in the field of Justice and Home Affairs, in particular, if it is appropriate for Eurodac to reduce the identification elements to four fingerprints and a facial image, as is the case for the Entry/Exit System (EES). The rapporteur calls on the Commission to assess the budgetary impact of such a reduction of the number of data to be stored and collected.

AddedDevelopment and interoperability with other databases

AddedThe rapporteur notes that the intention is to add facial recognition software in the future, thus bringing Eurodac in line with the other systems such as the EES; the rapporteur attaches particular importance to improving the interoperability of information systems on borders and security, which is a stated common objective of all EU institutions.

AddedThe rapporteur is of the opinion that Eurodac must as soon as possible be made interoperable with the Schengen Information Systems (SIS), as well as with the new EES. The EES will take the biometric data of all third-country nationals coming to Europe for a short stay and produce a list of those who overstay. The rapporteur is of the opinion that a connection between the two systems is necessary in order for the data of a third-country national registered in the EES to be automatically transferred to Eurodac if the third-country national exceeds the authorized period of stay by more than 15 days.

AddedThe rapporteur calls on the Commission and eu-LISA to anticipate as much as possible the future addition of facial recognition and the interoperability with other databases, both in administrative and technological terms, within the present recast exercise, in order to be as cost-effective as possible.

AddedForced fingerprinting

AddedEven if the budgetary impact is non-existent, the rapporteur supports an EU procedure for forced fingerprinting. The rapporteur considers it necessary to add in an annex the best practices presented in the Commission staff working document on Implementation of the Eurodac Regulation as regards the obligation to take fingerprints and to add the obligation for Member States to respect this annex.

AddedCost of the proposal

AddedThe rapporteur notes that the cost of the proposal is estimated at EUR 29.872 million, spread over four years. This sum, which is to cover the costs of the technical upgrade and increased storage and throughput of Eurodac’s Central System, as well as the addition of two posts to eu-LISA’s establishment plan, seems proportionate to the intended ambition and scope of the recast. It is important to note, however, that the financial statement attached to the proposal is purely indicative and does not bind the budgetary authority, which is free to determine the appropriations to be used to reform the system as part of the annual budgetary procedure.

AddedAMENDMENTS

AddedThe Committee on Budgets calls on the Committee on Civil Liberties, Justice and Home Affairs, as the committee responsible, to take into account the following amendments:

AddedRecital 11 a (new): (11a) In order to improve cooperation between Member States in the management of irregular migration, third-country nationals found illegally staying within the territory of a Member State should provide the competent authorities with the type of removal measure taken by the Member State which entered the data in Eurodac rather than the unique application number of the application for international protection.

AddedThere are many kinds of removal measures taken against illegally residing persons, such as voluntary returns, orders to leave the territory, deportation, repatriation or expulsion. Each measure entails different procedures and deadlines. It is therefore important for Member States to be aware of what expulsion measures have been taken against illegally residing persons by other Member States, for the purposes of enhanced cooperation. This amendment fits in with the series of new recitals (9-14) proposed by the Commission, and is therefore covered by Rule 104(2), second subparagraph, of Parliament’s Rules of Procedure.

AddedRecital 12 a (new): (12a) Member States should have a reasonable deadline of 15 days after the end of authorised periods of stay for fulfilling their obligations under this Regulation as regards comparing, collecting and transmitting the fingerprint and facial image data of illegally staying third-country nationals who entered the territory of the Union by lawfully crossing the external borders of the Schengen area.

AddedData concerning illegally residing third-country nationals will be logged in Eurodac for five years. This is why Member States should have a margin of discretion and be able to give third-country nationals – who have only recently exceeded their permitted length of stay, will shortly leave the territory of their own accord or for whom a regularisation procedure is under way and present no flight risk – a reasonable deadline for leaving the territory or regularisation before registering their data for such a long period of time. Only the data of persons entering the territory of a Member State illegally should be entered directly into Eurodac; those entering legally should therefore be afforded a reasonable deadline of 15 days. This amendment fits in with the series of new recitals (9-14) proposed by the Commission, and is therefore covered by Rule 104(2), second subparagraph, of Parliament’s Rules of Procedure.

AddedRecital 13 a (new): (13a) Regulation (EU) No.../... of the European Parliament and of the Council1a obliges Member States to take the fingerprints and a facial image of every third-country national of at least six years of age for whom they intend to conduct the resettlement procedure. That Regulation also provides that persons whom Member States have refused to resettle in the last five years are to be excluded from Union resettlement schemes. Information regarding third-country nationals for whom there is an ongoing resettlement procedure should therefore be collected and recorded in Eurodac. / 1a Proposal for a regulation of the European Parliament and of the Council establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council, COM(2016)0468.

AddedThis amendment fits in with the series of new recitals (9-14) proposed by the Commission, and is therefore covered by Rule 104(2), second subparagraph, of Parliament’s Rules of Procedure.

AddedRecital 14: (14) The Commission’s Communication on Stronger and Smarter Information Systems for Borders and Security28 highlights the need to improve the interoperability of information systems as a long-term objective, as also identified by the European Council and the Council. The Communication proposes to set up an Expert Group on Information Systems and Interoperability to address the legal and technical feasibility of achieving interoperability of the information systems for borders and security. This group should assess the necessity and proportionality of establishing interoperability with the Schengen Information Systems (SIS) and the Visa Information Systems (VIS), and examine if there is a need to revise the legal framework for law enforcement access to EURODAC. Such interoperability should respect the balance between personal freedoms and collective security.

AddedRecital 14 a (new): (14a) In order to enable interoperability between Eurodac and the EES, eu-LISA should establish a secure communication channel between the EES Central System and the Eurodac Central System. It is necessary to connect the two systems so that the data of a third-country national registered in the EES can be automatically transferred to Eurodac where that third-country national exceeds the authorised period of stay by more than 15 days.

AddedThe purpose of the entry/exit system will be to register the entry and exit of non-EU nationals entering the Schengen area for a short stay and report any unauthorised overstays. Third-country nationals outstaying their authorised period of stay are therefore residing illegally and their data should therefore be recorded in Eurodac, in accordance with Article 14. Interoperability between the two systems serves to avoid duplication. The aim here is to improve interoperability, as referred to in the new recital 14 proposed by the Commission. This amendment is therefore in line with that recital.

AddedRecital 18: (18) Moreover, Europol plays a key role with respect to cooperation between Member States’ authorities in the field of cross-border crime investigation in supporting Union-wide crime prevention, analyses and investigation. Consequently, Europol should also have access to Eurodac within the framework of its tasks and in accordance with Council Decision 2009/371/JHA31, in a manner which is proportionate and respects the balance between personal freedoms and collective security.

AddedCooperation between Eurodac and Europol, which is motivated by the desire of the Commission to have tools which will help it to respond to the new security challenges, must be governed by strict conditions in order to avoid any abuse which might jeopardise the protection of civil and individual liberties.

AddedRecital 30: (30) Member States should comply with the best practices set out in Annex Ia to this Regulation, which are based on the Commission’s Staff Working Document on Implementation of the Eurodac Regulation as regards the obligation to take fingerprints adopted by the Council on 20 July 201534, which sets out a best practice approach to taking fingerprints of irregular third-country nationals. Where a Member State’s national law allows for the taking of fingerprints by force or coercion as a last resort, those measures must fully respect the EU Charter of Fundamental Rights. Third-country nationals who are deemed to be vulnerable persons and minors should not be coerced into giving their fingerprints or facial image, except in duly justified circumstances that are permitted under national law. / 34 SWD(2015) 150 final, 27.5.2015

AddedThis amendment pertains to the new recital 30 proposed by the Commission, and is therefore covered by Rule 104(2), second subparagraph, of Parliament’s Rules of Procedure. Instead of merely referring to the method set out in SWD(2015) 150, an obligation should be imposed on Member States in this regard.

AddedRecital 33: (33) In view of successfully preventing and monitoring unauthorised movements of third-country nationals or stateless persons who have no right to stay in the Union, and of taking the necessary measures for returning third-country nationals and enforcing effective readmission to third countries in accordance with Directive 2008/115/EC35 and the right to protection of personal data, a period of five years should be considered a necessary period for the storage of fingerprint and facial data.

AddedArticle 1 – paragraph 1 – point b: (b) assist with the control of illegal immigration to and secondary movements within the Union and with the identification of illegally staying third-country nationals for determining the appropriate measures to be taken by Member States, including removal and repatriation of third-country nationals residing without authorisation.

AddedArticle 2 – paragraph 3: 3. Member States shall introduce administrative sanctions, in accordance with their national law, for non-compliance with the fingerprinting process and capturing a facial image in accordance with paragraph 1 of this Article. These sanctions shall be effective, proportionate and dissuasive. In this context, detention should only be used as a means of last resort in order to determine or verify a third-country national’s identity.

AddedArticle 2 – paragraph 5: 5. The procedure for taking fingerprints and a facial image shall be determined and applied in accordance with the national practice of the Member State concerned, in accordance with the safeguards laid down in the Charter of Fundamental Rights of the European Union, in the Convention for the Protection of Human Rights and Fundamental Freedoms and in the United Nations Convention on the Rights of the Child, and in accordance with the best practices for fingerprinting set out in Annex Ia.

AddedThis amendment is in line with, and therefore directly linked to, amendment 6 (see Rule 104(2), third subparagraph, of Parliament’s Rules of Procedure).

AddedArticle 13 – paragraph 2 – point i a (new): (ia) return decision taken, or removal order issued, by the Member State of origin;

AddedThis amendment is in line with, and therefore directly linked to, amendment 2 (see Rule 104(2), third subparagraph, of Parliament’s Rules of Procedure). See also the detailed justification relating to amendment 2.

AddedArticle 14 – paragraph 2 – point i a (new): (ia) return decision taken, or removal order issued, by the Member State of origin;

AddedThis amendment pertains to the new Article 14 proposed by the Commission, and is therefore covered by Rule 104(2), second subparagraph, of Parliament’s Rules of Procedure. See also the detailed justification relating to amendment 2.

AddedArticle 14 – paragraph 2 a (new): 2a. Member States may derogate from paragraphs 1 and 2 in the case of illegally residing third-country nationals who entered the territory of the Union by lawfully crossing the external borders of the Schengen area and have overstayed the authorised period of stay by no more than 15 days.

AddedThis amendment pertains to the new Article 14 proposed by the Commission, and is therefore covered by Rule 104(2), second subparagraph, of Parliament’s Rules of Procedure. See also the detailed justification relating to amendment 3.

AddedChapter 4 a (new): Chapter IVa / Third-country nationals for whom there is an ongoing resettlement procedure / Article 14a / Collection and transmission of fingerprint and facial image data, in accordance with Regulation (EU) No.../... 1a / 1. Each Member State shall take, upon their identification, the fingerprints of all fingers and capture a facial image of every third-country national or stateless person of at least six years for whom there is an ongoing resettlement procedure. / 2. The Member State concerned shall record in the Central System the following data in relation to any third-country national or stateless person referred to in paragraph 1 who has not been turned back, within 72 hours of his or her identification: / (a) fingerprint data; / (b) a facial image; / (c) surname(s) and forename(s), name(s) at birth and previously used names and any aliases, which may be entered separately; / (d) nationality(ies); / (e) place and date of birth; / (f) Member State of origin; / (g) sex; / (h) type and number of identity or travel document; three letter code of the issuing country and validity; / (i) reference number used by the Member State of origin; / (j) date on which the fingerprints and/or facial image were taken; / (k) date on which the data were transmitted to the Central System; / (l) operator user ID; / (m) where applicable, in accordance with Article 13(6), the date when the person concerned left or was removed from the territory of the Member States / 3. By way of derogation fro…

AddedThis amendment is in line with, and therefore directly linked to, amendment 4 (Rule 104(2), third subparagraph, of Parliament’s Rules of Procedure).

AddedArticle 41 – paragraph 1: 1. The costs incurred in connection with the establishment and operation of the Central System and the Communication Infrastructure shall be borne by the general budget of the European Union, in accordance with the principles of sound financial management.

AddedThe EU budget must be used and administered in accordance with the general interest.

AddedArticle 42 – paragraph 2 a (new): 2a. In order to enable interoperability between Eurodac and the EES, eu-LISA shall establish a secure communication channel between the EES Central System and the Eurodac Central System. It is necessary to connect the two systems so that the data of a third-country national registered in the EES can be automatically transferred to Eurodac where that third-country national exceeds the authorised period of stay by more than 15 days.

AddedThis amendment pertains to the establishment of procedures (Article 42(2), and the improvement of interoperability referred to in amendment 5. See also the detailed justification relating to amendment 5.

AddedAnnex I a (new): Annex Ia / Practices as regards the obligation to take fingerprints / The following best practices, which are based on the Commission staff working document on Implementation of the Eurodac Regulation as regards obligation to take fingerprints1a, and which are in line with the provisions of the Charter of Fundamental Rights of the European Union aim at facilitating systematic fingerprinting. In cases where a Eurodac data subject does not initially cooperate in the fingerprinting process, all reasonable and proportionate steps shall be taken to compel such cooperation. To that end, and in order to ensure that Union law is respected, Member States shall follow the approach set out below: / 1. The Member State shall inform the data subject of the obligation to be fingerprinted under Union law, and may explain to him/her that it is in his/her interests to fully and immediately cooperate and provide his/her fingerprints. In particular, it may be explained to the data subject that, if he/she applies for asylum in another Member State, according to Regulation (EU) [.../...] of the European Parliament and of the Council1b (the Dublin Regulation) it will be possible to use either fingerprints or other circumstantial evidence as a basis for effecting his/her transfer to the Member State responsible for his/her asylum application. The Member State may also explain to the data-subject that, if he/she subsequently applies for asylum, there will likewise be an obligation to be fingerprinte…

AddedThis amendment is in line with amendments 6 and 7 pertaining to Commission Staff Working Document(2015) 150 final. It is therefore directly linked to those amendments.