PROTOCOL

Between the European Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement Between the European Community and the Swiss Confederation Concerning the Criteria and Mechanisms for Establishing the State Responsible for Examining a Request for Asylum Lodged in a Member State or in Switzerland Regarding Access to Eurodac for law Enforcement Purposes

THE EUROPEAN UNION

and

THE SWISS CONFEDERATION

and

THE PRINCIPALITY OF LIECHTENSTEIN,

hereinafter jointly referred to as ‘the Parties’,

CONSIDERING that on 26 October 2004 the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (1) (hereinafter referred to as ‘the Agreement of 26 October 2004’) was signed;

CONSIDERING that on 28 February 2008 the Protocol between the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland (2) (hereinafter referred to as ‘the Protocol of 28 February 2008’) was signed;

RECALLING that on 26 June 2013 the European Union (hereinafter referred to as ‘the Union’) adopted Regulation (EU) No 603/2013 of the European Parliament and of the Council (3);

RECALLING that the procedures for comparison and data transmission for law enforcement purposes as laid down in Regulation (EU) No 603/2013 do not constitute a development amending or building upon the provisions of the Eurodac acquis within the meaning of the Agreement of 26 October 2004 and the Protocol of 28 February 2008;

CONSIDERING that a protocol should be concluded between the Union and the Swiss Confederation (hereinafter referred to as ‘Switzerland’) and the Principality of Liechtenstein (hereinafter referred to as ‘Liechtenstein’) to enable Switzerland and Liechtenstein to participate in the law-enforcement-related aspects of Eurodac and therefore enable designated law enforcement authorities in Switzerland and Liechtenstein to request the comparison of fingerprint data transmitted to the Central System of Eurodac by the other participating States;

CONSIDERING that the application of Regulation (EU) No 603/2013 for law enforcement purposes to Switzerland and Liechtenstein should also enable designated law enforcement authorities of the other participating States and Europol to request the comparison of fingerprint data transmitted to the Central System of Eurodac by Switzerland and Liechtenstein;

CONSIDERING that the processing of personal data by the designated law enforcement authorities of the participating States for the purposes of the prevention, detection or investigation of terrorist offences or of other serious criminal offences pursuant to this Protocol should be subject to a standard of protection of personal data under their national law which complies with Directive (EU) 2016/680 of the European Parliament and of the Council (4);

CONSIDERING that the further conditions set out in Regulation (EU) No 603/2013 as regards the processing of personal data by the designated authorities of the participating States, as well as by Europol, for the purposes of the prevention, detection or investigation of terrorist offences or of other serious criminal offences should also apply;

CONSIDERING that access for the designated authorities of Switzerland and Liechtenstein should be allowed only on condition that comparisons with the national fingerprint databases of the requesting State and with the automated fingerprinting identification systems of all other participating States under Council Decision 2008/615/JHA (5) did not lead to the establishment of the identity of the data subject. That condition requires the requesting State to conduct comparisons with the automated fingerprinting identification systems of all other participating States under that Decision which are technically available, unless that requesting State can demonstrate that there are reasonable grounds to believe that it would not lead to the establishment of the identity of the data subject. Such reasonable grounds exist in particular where the specific case does not present any operational or investigative link to a given participating State. That condition requires prior legal and technical implementation of that Decision by the requesting State with regard to dactyloscopic data, as it should not be permitted to conduct a Eurodac check for law enforcement purposes where those above steps have not first been taken;

CONSIDERING that prior to searching Eurodac, designated authorities of Switzerland and Liechtenstein should also, provided that the conditions for a comparison are met, consult the Visa Information System under Council Decision 2008/633/JHA (6);

CONSIDERING that the mechanisms regarding new legislation and new acts or measures as provided for in the Agreement of 26 October 2004 and the Protocol of 28 February 2008, including the role of the Mixed Committee established under the Agreement of 26 October 2004, should apply to all new legislation and new acts or measures regarding access to Eurodac for law enforcement purposes,

HAVE AGREED AS FOLLOWS:

Article 1 1. Regulation (EU) No 603/2013 shall be implemented by Switzerland as regards the comparison of fingerprint data with those stored in the Central System of Eurodac for law enforcement purposes, and shall apply in Switzerland's relations with Liechtenstein and with the other participating States. 2. Regulation (EU) No 603/2013 shall be implemented by Liechtenstein as regards the comparison of fingerprint data with those stored in the Central System of Eurodac for law enforcement purposes, and shall apply in Liechtenstein's relations with Switzerland and with the other participating States. 3. The Member States of the Union except Denmark shall be considered to be participating States within the meaning of paragraphs 1 and 2 of this Article. They shall apply the provisions of Regulation (EU) No 603/2013 which relate to law enforcement access to Switzerland and Liechtenstein. 4. Denmark, Iceland and Norway shall be considered to be participating States within the meaning of paragraphs 1 and 2 to the extent that agreements similar to this Protocol are applied between them and the Union which recognise Switzerland and Liechtenstein as participating States.

Article 2 1. This Protocol shall not enter into force with regard to Switzerland before the provisions of Directive (EU) 2016/680 regarding the processing of personal data, as well as the conditions set out in Regulation (EU) No 603/2013 as regards such processing, are implemented and applied by Switzerland in relation to the processing of personal data by its designated authorities for the purposes laid down in Article 1(2) of that Regulation. 2. This Protocol shall not enter into force with regard to Liechtenstein before the provisions of Directive (EU) 2016/680 regarding the processing of personal data, as well as the conditions set out in Regulation (EU) No 603/2013 as regards such processing, are implemented and applied by Liechtenstein in relation to the processing of personal data by its designated authorities for the purposes laid down in Article 1(2) of that Regulation.

Article 3 The provisions of the Agreement of 26 October 2004 and of the Protocol of 28 February 2008 regarding new legislation and new acts or measures, including those concerning the Mixed Committee established under the Agreement of 26 October 2004, shall apply to all new legislation and new acts or measures related to access to Eurodac for law enforcement purposes.

Article 4 1. This Protocol shall be ratified or approved by the Parties. Ratification or approval shall be notified to the Secretary-General of the Council of the European Union, who shall be the depositary of this Protocol. 2. This Protocol shall enter into force on the first day of the month following receipt, by the depositary, of the notification referred to in paragraph 1 by the Union and at least one of the other Parties. 3. This Protocol shall not apply with regard to Switzerland before Chapter 6 of Decision 2008/615/JHA has been implemented by Switzerland and the evaluation procedures under Chapter 4 of the Annex to Council Decision 2008/616/JHA (7) have been completed with regard to dactyloscopic data with regard to Switzerland. 4. This Protocol shall not apply with regard to Liechtenstein before Chapter 6 of Decision 2008/615/JHA has been implemented by Liechtenstein and the evaluation procedures under Chapter 4 of the Annex to Decision 2008/616/JHA have been completed with regard to dactyloscopic data with regard to Liechtenstein.

Article 5 1. Each Party may withdraw from this Protocol by sending a declaration in writing to the depositary. That declaration shall take effect six months after being deposited. 2. This Protocol shall cease to be effective if either the Union or both Switzerland and Liechtenstein withdraw from it. 3. This Protocol shall cease to be effective with respect to Switzerland if the Agreement of 26 October 2004 ceases to be effective with respect to Switzerland. 4. This Protocol shall cease to be effective with respect to Liechtenstein if the Protocol of 28 February 2008 ceases to be effective with respect to Liechtenstein. 5. A withdrawal from this Protocol by one Party or its suspension or termination with respect to one Party shall affect neither the Agreement of 26 October 2004 nor the Protocol of 28 February 2008.

Article 6 This Protocol shall be drawn up in a single original in the Bulgarian, Croatian, Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak, Slovenian, Spanish and Swedish languages, each of these texts being equally authentic. The original shall be deposited with the depositary, who shall establish a certified true copy for each of the Parties.

Съставено в Брюксел на двадесет и седми юни две хиляди и деветнадесета година. Hecho en Bruselas, el veintisiete de junio de dos mil diecinueve. V Bruselu dne dvacátého sedmého června dva tisíce devatenáct. Udfærdiget i Bruxelles den syvogtyvende juni to tusind og nitten. Geschehen zu Brüssel am siebenundzwanzigsten Juni zweitausendneunzehn. Kahe tuhande üheksateistkümnenda aasta juunikuu kahekümne seitsmendal päeval Brüsselis. Έγινε στις Βρυξέλλες, στις είκοσι εφτά Ιουνίου δύο χιλιάδες δεκαεννέα. Done at Brussels on the twenty seventh day of June in the year two thousand and nineteen. Fait à Bruxelles, le vingt sept juin deux mille dix-neuf. Sastavljeno u Bruxellesu dvadeset sedmog lipnja godine dvije tisuće devetnaeste. Fatto a Bruxelles, addì ventisette giugno duemiladiciannove. Briselē, divi tūkstoši deviņpadsmitā gada divdesmit septītajā jūnijā. Priimta du tūkstančiai devynioliktų metų birželio dvidešimt septintą dieną Briuselyje. Kelt Brüsszelben, a kétezer-tizenkilencedik év június havának huszonhetedik napján. Magħmul fi Brussell, fis-sebgħa u għoxrin jum ta’ Ġunju fis-sena elfejn u dsatax. Gedaan te Brussel, zevenentwintig juni tweeduizend negentien. Sporządzono w Brukseli dnia dwudziestego siódmego czerwca roku dwa tysiące dziewiętnastego. Feito em Bruxelas, em vinte e sete de junho de dois mil e dezanove. Întocmit la Bruxelles la douăzeci și șapte iunie două mii nouăsprezece. V Bruseli dvadsiateho siedmeho júna dvetisícdevätnásť. V Bruslju, dne sedemindvajsetega junija leta dva tisoč devetnajst. Tehty Brysselissä kahdentenakymmenentenäseitsemäntenä päivänä kesäkuuta vuonna kaksituhattayhdeksäntoista. Som skedde i Bryssel den tjugosjunde juni år tjugohundranitton.

(1) OJ L 53, 27.2.2008, p. 5.

(2) OJ L 160, 18.6.2011, p. 39.

(3) Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 180, 29.6.2013, p. 1).

(4) Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).

(5) Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 1).

(6) Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (OJ L 218, 13.8.2008, p. 129).

(7) Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 12).