on the signing, on behalf of the European Union, of a 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 the access to Eurodac for law enforcement purposes

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

The Regulation (EU) No. 603/2013 that recasts Regulation No 2725/2000 of 11 December 2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention was adopted and entered into force on 19 July 2013. The Regulation is applicable since 20 July 2015.

The Regulation (EU) No. 603/2013 allows, inter alia, for the consultation of Eurodac by law enforcement authorities for the purpose of prevention, detection and investigation of terrorist offences and other serious criminal offences. This aims at enabling law enforcement authorities to request the comparison of fingerprint data with those stored in the Eurodac central database when they seek to establish the exact identity of or obtain further information concerning a person who is suspected of a terrorism or serious crime.

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 (hereinafter: Agreement of 26 October 2004) was concluded. 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 (hereinafter: Protocol of 28 February 2008) was concluded.

Switzerland and Liechtenstein apply the asylum elements of the Regulation (EU) No. 603/2013 in line with the Agreement of 26 October 2004 and the Protocol of 28 February 2008. However, the law enforcement access to Eurodac falls outside the scope of the said Agreement and Protocol.

At a meeting on 14 May 2014 with representatives from the Commission, Denmark, Switzerland, Liechtenstein, Norway and Iceland confirmed their interest in entering into negotiations with the European Union to extend the law enforcement provisions of the Regulation (EU) No. 603/2013 to them via an international agreement.

On 14 December 2015, the Council authorised the Commission to open negotiations on agreement between the European Union, on the one part, and, inter alia, Switzerland and Liechtenstein, on the other part, on the modalities of the participation by Switzerland and Liechtenstein to the procedure for comparison and data transmission for law enforcement purposes foreseen in chapter VI of the Regulation (EU) No 603/2013 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.

The negotiations have been finalised and an Agreement in the form of a Protocol to the Agreement of 26 October 2004, extending the application of the Agreement of 26 October 2004 to law enforcement was initialled.

The extension of the law enforcement provisions of the Regulation (EU) No. 603/2013 to Switzerland and Liechtenstein would enable the law enforcement authorities of Switzerland and Liechtenstein to request a comparison of fingerprint data against the data entered by other participating States and stored in the Eurodac database when they seek to establish the identity or get further information concerning a person who is suspected of a serious crime or terrorism or concerning a victim. On the other hand, it would enable the law enforcement authorities of all other participating States, whether other EU Member States or Associates Countries, to request a comparison of fingerprint data against the data entered by Switzerland and Liechtenstein and stored in the Eurodac database, for the same purposes.

The objective of the present Protocol is to establish legally binding rights and obligations to ensure the effective participation of Switzerland and Liechtenstein in the law enforcement elements of the Regulation (EU) No. 603/2013. The Protocol establishes that all participating States, whether other EU Member States, Associates Countries or Switzerland and Liechtenstein, with access to Eurodac, may also access each other's data for law enforcement purposes.

•Consistency with existing policy provisions in the policy area

The proposal is consistent with EU policies regarding access to Eurodac database

•Consistency with other Union policies

The proposal is consistent with the EU policies in the area of freedom, security and justice.

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis

The legal basis for this proposal for a Council Decision is Article 87(2)(a), Article 88(2)(a) of the Treaty on the Functioning of the European Union (TFEU), in conjunction with Article 218(5) of the TFEU.