EXPLANATORY MEMORANDUM

1. CONTEXT OF THE PROPOSAL

EURODAC was established by Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention[1]. A recast proposal for the amendment of the EURODAC Regulation was adopted by the Commission in December 2008[2] (hereafter the December 2008 proposal).

This proposal was designed to ensure a more efficient support to the application of the Dublin Regulation[3] and to properly address data protection concerns. It also aligned the IT management framework to that of the SIS II and VIS Regulations by providing for the taking over of the tasks of the operational management for EURODAC by the future Agency for the operational management of large-scale IT systems in the area of freedom, security and justice[4] (hereafter: IT Agency). The December 2008 proposal also proposed to repeal the Implementing Regulation and to include its content in the EURODAC Regulation. Finally, changes were introduced to take into account developments in the asylum acquis and technical progress which took place since the adoption of the Regulation in 2000.

The proposal was sent to European Parliament and the Council on 3 December 2008. The European Parliament referred the proposal to its Committee on Civil Liberties, Justice and Home Affairs (LIBE). At its sitting on 7 May 2009, the European Parliament adopted a legislative resolution[5] endorsing the Commission proposal subject to a number of amendments.

The Commission adopted an amended proposal in September 2009 in order to, on the one hand, take into account the resolution of the European Parliament and the results of negotiations in the Council, and, on the other hand, introduce the possibility for Member States' law enforcement authorities and Europol to access the EURODAC central database for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences (the September 2009 proposal).[6]

In particular, that proposal introduced a bridging clause to allow access for law enforcement purposes as well as the necessary accompanying provisions and amended the December 2008 proposal. It was presented at the same time as the Proposal for a Council Decision on requesting comparisons with EURODAC data by Member States' law enforcement authorities and Europol for law enforcement purposes[7] (hereafter: the Council Decision), spelling out the exact modalities of such access.

The European Parliament did not issue a legislative resolution on the September 2009 proposals.

With the entry into force of the Treaty on the Functioning of the European Union (TFEU) and the abolition of the pillar system, the proposal for a Council Decision lapsed. According to the Communication on the consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decision-making procedures,[8] such proposals would be formally withdrawn and replaced with a new proposal to take account of the new framework of the TFEU.

However, with a view to progressing on the negotiations on the asylum package and facilitating the conclusion of an agreement on the EURODAC Regulation, the Commission considered it more appropriate in 2010 to withdraw from the EURODAC Regulation those provisions referring to the access for law enforcement purposes and presented a new proposal on 11.10.2010[9] similar to the 2008 recast of the EURODAC Regulation.

The Commission noted in the Explanatory Memorandum to its 2010 proposal that enabling the swifter adoption of the new EURODAC Regulation would also facilitate the timely set up of the Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, since that Agency is to become responsible for the management of EURODAC as from 1 December 2012.

It has since become clear however that including law enforcement access for EURODAC is needed as part of a balanced deal on the ngeotiations of the Common European Asylum System package with a view to completing the package by the end of 2012. Accordingly the Commission has decided to present again proposals to permit law enforcement access to EURODAC, but on this occasion merged into a single new EURODAC Regulation as this is now possible since the entry into force of the TFEU and it is better legislative practice to present a single instrument.

Regulation (EU) No 1077/2011 of the European Parliament and the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale information systems in the area of freedom, security and justice provides that the Agency should perform the tasks relating to EURODAC conferred on the Commission as the authority responible for the operational management of EURODAC in accordance with Regulations (EC) No 2725/2000 and (EC) No 407/2002 as well as certain tasks related to the communication infrastructure, namely, supervision, security and the coordination of relations between the Member States and the provider. The Agency should take up the tasks entrusted to it under this Regulation and the relevant provisions of Regulation (EU) No 1077/2011 should be amended accordingly. In addition, Europol should be granted observer status in the Management Board of the Agency when a question concerning EURODAC is on the agenda.

The current proposal therefore withdraws the 2010 proposal and replaces it with a new one in order first to take into account the resolution of the European Parliament and the results of negotiations in the Council; second, to introduce the possibility for Member States' law enforcement authorities and Europol to access the EURODAC central database for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences; and third, to introduce the necessary amendments to Regulation (EU) No 1077/2011.

The proposal addresses a structural information and verification gap that currently results from the lack of an EU instrument available to law enforcement authorities to determine the Member State that holds information on an asylum seeker. While data on EU citizens exist in many different databases in Member States which are in general accessible to law enforcement authorities in other Member States, there are no effective possibilities available for law enforcement authorities to exchange information on asylum seekers.

The intention is now to allow 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 get further information on a person who is suspected of a serious crime or a crime victim. Fingerprint data constitute an important element of establishing the exact identity of a person and it is generally acknowledged as an important source of information for prevention, detection and investigation of terrorist offences and other serious criminal offences. On a 'hit'/'no hit' basis, the requesting law enforcement authority will be informed if information on the person is available in the national asylum database of another Member States. In this case, further information on the person can be requested from that Member State by using existing instruments for information exchange, such as Framework Decision 2006/960/JHA on simplifying the exchange of information and intelligence between law enforcement authorities.

Comparison of fingerprints in possession of Member States' designated law enforcement authorities and Europol with those stored in the EURODAC database will only be possible in case of necessity of such comparison in a specific case under well-defined circumstances. Provisions on access to data and data security take into account access for law enforcement purposes. It is therefore necessary to amend the EURODAC Regulation to include this additional purpose.

General context

The Hague Programme called for the improvement of the cross-border exchange of data by law enforcement authorities, also by extending the access to existing data filing systems of the European Union. The Stockholm Programme called for well targeted data collection and a development of information exchange and its tools that is driven by law enforcement needs.

The conclusions of the Mixed Committee of the JHA Council of 12-13 June 2007 invited the Commission to present as soon as possible the necessary proposals to achieve the aim of granting access under certain conditions to EURODAC to Member States' law enforcement authorities and Europol, to assist them in the course of their duties in relation to the prevention, detection and investigation of terrorist offences and other serious criminal offences.

The impacts of the access for law enforcement purposes introduced in the present amended proposal are assessed by an Impact Assessment attached to this proposal.

The current proposal also amends Regulation (EU) No 1077/2011 (the Agency Regulation) in order to align it to the present Regulation.

2. Consistency with other policies

This proposal is fully in line with the Hague programme of 2004 and the Stockholm Programme of 2009, the European Pact on Immigration and Asylum endorsed by the European Council of 15-16 October 2008 and the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum and protection of personal data.

Furthermore, this proposal is in line with the Commission's Communication to the Council and the European Parliament on improved effectiveness, enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs[10], which noted that the Council and the law enforcement community identify the absence of access by internal security authorities to VIS, SIS II immigration and EURODAC data as a shortcoming, which results in a serious gap in the identification of suspected perpetrators of terrorist or serious crimes. Since the adoption of the Communication in 2005, the VIS Decision was adopted in order to grant law enforcement authorities and Europol access to that database.

3. Compliance with the Charter of Fundamental Rights

The respect for fundamental rights is a legal requirement subject to the scrutiny of the European Court of Justice. The institutions, bodies, agencies and offices of the European Union and its Member States when implementing European Union law are bound by the EU Charter of Fundamental Rights which has the same legal value as the Treaties. Respect of fundamental rights is a condition of the lawfulness of EU acts. During the drafting exercise, full account was taken of the impacts on fundamental rights in order to ensure that the proposal complies with the fundamental rights protected by the Charter. Due attention to the right to asylum and the right to the protection of personal data was thoroughly considered in the Impact Assessment attached to the proposal.[11]

As regards the right to asylum, guaranteed by Article 18 of the Charter, amendments to the provisions of the Regulation on the information to be given to asylum seekers on the application of the Dublin system enables them to effectively exercise their right to asylum. The new provision that requires Member States to indicate in EURODAC the fact that they apply the discretionary clauses of the Dublin Regulation, facilitates communication amongst Member States and therefore prevents uncertainty for the asylum seeker, by making clarity about which Member State handles his case. With regard to the special situation of persons seeking international protection, the concern was raised that data extracted from EURODAC for law enforcement purposes could end up in the hands of the countries from which the applicants fled and fear persecution. This could have adverse effects on the applicant, his relatives and friends, thus potentially discouraging refugees from formally applying for international protection in the first place. As a result of this scrutiny, the proposal contains a specific prohibition of sharing personal data obtained pursuant to this proposal with third countries, organisations or entities. In addition, an extensive monitoring and evaluation mechanism of the proposal is foreseen. This evaluation will include whether the operation of the search functionality for law enforcement purposes will have led to the stigmatisation of persons seeking international protection. Consequently, the proposal does not limit the right to asylum as guaranteed by Article 18 of the Charter.

As regards the right to the protection of personal data guaranteed by Article 8 of the Charter, by allowing for efficient management of erasure of data, the proposal ensures that no data should be kept in a form which allows the identification of data subjects for longer than is necessary for the purposes for which data were collected. The same principle underpins the amendment aligning the storage period for data on third country nationals or stateless persons fingerprinted in connection with the irregular crossing of an external border with the period until which the Dublin Regulation allocates responsibility on the basis of that information.

The comparison with EURODAC data for the prevention, detection or investigation of terrorist offences or other serious criminal offences constitutes a limitation of the right to the protection of personal data, as these purposes are not compatible with the purposes for which the data were originally collected and for which EURODAC has been established. Moreover, EURODAC contains data of individuals who in principle are not suspected of committing any crime.

The use of EURODAC data for law enforcement purposes implies a change of purpose of the data processed and constitutes an "interference" with the right to data protection[12]. As stipulated by Article 52(1) of the Charter, any limitation to the right to the protection of personal data must be provided for by law, must respect the essence of the right, must be necessary to achieve an objective of general interest recognised by the Union or to protect the rights and freedoms of others, and must be proportionate, i.e. appropriate for attaining the objective pursued and not going beyond what is necessary to achieve it.

The law imposing such a limitation must be formulated with sufficient precision to allow individuals to adjust their conduct and protect them against arbitrariness. It must also indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise[13]. The prevention, detection or investigation of terrorist offences or other serious criminal offences contributes to the establishment of an area of freedom, security and justice as a general interest recognised by the Union in Article 3(2) TFEU. Article 8(2) of the European Convention of Human Rights also recognises that interference by a public authority with a person's right to privacy may be justified as necessary in the interest of national security, public safety or the prevention of crime. The proposal provides for a more effective and less intrusive measure for competent law enforcement authorities to determine if another Member State holds data on an asylum seeker. Under current rules, Member States' law enforcement authorities have to contact bilaterally all other Member States participating in EURODAC to determine if another Member State holds data on an asylum seeker. This inefficient crime resolution under the current rules requires that law enforcement authorities access more personal data or data on more persons than is necessary to establish whether relevant information exists.

Indeed, the proposal provides for effective safeguards that mitigate the limitation of the right to the protection of personal data. The comparison of EURODAC data for law enforcement purposes follows a two-step approach, as this comparison may only be made after a prior Prüm check under Council Decision 2008/615/JHA and if the Prüm check returns negative results. This means that Member States that have not implemented Council Decision 2008/615/JHA will not be able to conduct searches in EURODAC for law enforcement purposes.

Moreover, the comparison of EURODAC data for law enforcement purposes may only be made for the prevention, detection or investigation of terrorist offences or other serious criminal offences if it is necessary in a specific case as they are defined in Council Framework Decisions 2002/475/JHA on combating terrorism and 2002/584/JHA on the European arrest warrant. This excludes both the comparison of EURODAC data for the crimes that are not serious and a systematic or mass comparison of data. Moreover, designated law enforcement authorities may only request the comparison with EURODAC data if there are reasonable grounds to consider that such comparison will substantially contribute to the prevention, detection or investigation of the criminal offence in question. Upon receipt of such request by a designated law enforcement authority, a verifying authority verifies whether the strict conditions for requesting a comparison with EURODAC data for law enforcement purposes are fulfilled. If the verifying authority agrees with the request, it will transmit the request to the National Access Point which will process it to the EURODAC Central System. Member States may not conduct searches on a systematic and routine basis. Thus, as an additional safeguard, the proposal provides for a three-step approach in relation to the authorities that can consult the EURODAC system. The comparison with EURODAC for law enforcement purposes will provide a result on a 'hit'/'no hit' basis, i.e. it will only determine if another Member State holds data on an asylum seeker. The proposal does not provide for new possibilities to process additional personal information in the follow-up to a 'hit'.

Furthermore, the proposal also lays down strict data security measures to ensure the security of personal data processed and establishes supervision of the processing activities by independent public data protection authorities and documentation of all searches conducted. The proposal also states that the processing of all personal data carried out by law enforcement authorities on EURODAC data once they have been extracted is subject to Council Framework Decision 2008/977/JHA.

Individuals should be given rights of access, correction and redress in particular the right to a judicial remedy, and supervision of processing operations by public independent authorities should be ensured. The European Data Protection Supervisor (as regards all processing activities in EURODAC) and national data protection authorities will supervise the compliance with data protection law and if appropriate will enforce it. Consequently, the limitation of the right to the protection of personal data by the comparison with EURODAC data as provided by this proposal is surrounded with the necessary safeguards to ensure the respect of the fundamental rights.

Databases of asylum seekers might contain fingerprint data from persons as young as 14 years, but children of this age are not criminally responsible in all Member States. Member States have to ensure that the data of children they retrieve by consulting such databases and which, according to their national law, cannot be held criminally responsible, are treated in a legal and non-discriminatory manner (in comparison with the data from children who are citizens of the concerned Member State) while respecting the principle of the best interests of the child.

Therefore, this proposal fully complies with the Charter of Fundamental Rights of the European Union, in particular as regards the right to asylum (Article 18) and protection of personal data (Article 8). The proposal is also in line with Article 16 TFEU, which guarantees everyone the right to the protection of personal data.

4. RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

The present amended proposal reinstates all of the provisions proposed in the lapsed draft Council Decision of 2009. In addition, it introduces two technical provisions relating to the asylum provisions.[14] None of these elements is new and all were explored thoroughly in the Impact Assessments to the previous 2008 and 2009 proposals. Therefore, no new consultation and impact assessment were conducted specifically for the present proposal. However, the Impact Assessments of 2008 and 2009[15] are still valid for its purposes.

The Commission published the Green Paper on the future Common European Asylum System[16] in June 2007, which proposed options concerning the future features of the Dublin and EURODAC Regulations. In the framework of the wide public consultation on the Green Paper, 89 contributions were received from a wide range of stakeholders.

The Commission services discussed the outcome of the Evaluation Report and the outline of the planned amendments to the Regulation with the Member States in the Committee on Immigration and Asylum (CIA) in March 2008 as well as in two informal expert meetings with Member States’ practitioners dedicated to the conclusions of the Evaluation Report in October 2007 and April 2008.

UNHCR, the European Council on Refugees and Exiles (ECRE) as well as the European Data Protection Supervisor (EDPS) were also informally consulted in the preparation of the amendment of the Regulation.

During the drafting of the 2008 proposals concerning improvements to the functioning of EURODAC and to the 2009 amended proposals relating to law enforcement access, the Commission consulted the States applying the Dublin acquis, i.e. the Member States, Iceland, Norway and Switzerland, as well as to Europol by way of two questionnaires and an expert meeting which took place in Brussels on 25-26 September 2007, during which the experts had the opportunity to clarify the replies to the questionnaire and express further views. Several intergovernmental organisations, non-governmental organisations and other experts working in the area of asylum, fundamental rights were consulted during a meeting in Brussels on 8 October 2007. Representatives of the national data protection authorities of the States that implement the Dublin acquis, as well as the Joint Supervisory Body of Europol and the European Data Protection Supervisor were consulted in the framework of a meeting held in Brussels on 11 October 2007. As Liechtenstein has only applied the Dublin acquis very recently, there has not been an opportunity to consult Liechtenstein on this proposal.

A detailed list of consulted parties was included in the Impact Assessment attached to the 2009 proposal.

5. LEGAL ELEMENTS OF THE PROPOSAL

This proposal amends the 2010 Amended proposal for a Commission Proposal for a Regulation of the European Parliament and of the Council concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EC) No […/…] [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] - COM(2010) 555.

This proposal also amends Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice

The present amended proposal uses Article 78(2)(e) of the Treaty on the Functioning of the European Union (TFEU) as legal base concerning criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection, which is the TFEU Article corresponding to the legal base of the original proposal (Article 63(1)(a) of the Treaty establishing the European Community). In addition, it uses Article 87(2)(a) as the legal base concerning the elements related to the collation, storage, processing, analysis and exchange of relevant information for law enforcement purposes; and Article 88(2)(a) as the legal base concerning Europol's field of action and tasks including the collection, storage, processing, analysis and exchange of information.

Title V of the TFEU is not applicable to the United Kingdom and Ireland, unless those two countries decide otherwise, in accordance with the provisions set out in the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on the European Union (TEU) and to the TFEU.

The United Kingdom and Ireland are bound by Council Regulation (EC) No 2725/2000 following their notice of their wish to take part in the adoption and application of that Regulation based on the above-mentioned Protocol. The position of these Member States with regard to the current Regulation does not affect their possible participation with regard to the amended Regulation.

Under the Protocol on the position of Denmark, annexed to the TEU and the TFEU, Denmark does not take part in the adoption by the Council of the measures pursuant to Title V of the TFEU (with the exception of "measures determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States, or measures relating to a uniform format for visas"). Therefore, Denmark does not take part in the adoption of this Regulation and is not bound by it nor subject to its application. However, given that Denmark applies the current Eurodac Regulation, following an international agreement[17] that it concluded with the EC in 2006, it shall, in accordance with Article 3 of that agreement, notify the Commission of its decision whether or not to implement the content of the amended Regulation.

This proposal maintains the changes made in the previous proposals to abolish the Committee provided for in Article 22 of the Regulation.

6. IMPACT OF THE PROPOSAL ON NON-EU MEMBER STATES ASSOCIATED TO THE DUBLIN SYSTEM

In parallel to the association of several non-EU Member States to the Schengen acquis, the Community concluded, or is in the process of doing so, several agreements associating these countries also to the Dublin/EURODAC acquis:

– the agreement associating Iceland and Norway, concluded in 2001[18];

– the agreement associating Switzerland, concluded on 28 February 2008[19];

– the protocol associating Liechtenstein, concluded on 18 June 2011[20].

In order to create rights and obligations between Denmark – which as explained above has been associated to the Dublin/EURODAC acquis via an international agreement – and the associated countries mentioned above, two other instruments have been concluded between the Community and the associated countries.[21]

In accordance with the three above-cited agreements, the associated countries shall accept the Dublin/EURODAC acquis and its development without exception. They do not take part in the adoption of any acts amending or building upon the Dublin acquis (including therefore this proposal) but have to notify to the Commission within a given time-frame of their decision whether or not to accept the content of that act, once approved by the Council and the European Parliament. In case Norway, Iceland, Switzerland or Liechtenstein do not accept an act amending or building upon the Dublin/EURODAC acquis, the "guillotine" clause is applied and the respective agreements will be terminated, unless the Joint/Mixed Committee established by the agreements decides otherwise by unanimity.

The scope of the above-cited association agreements with Iceland, Norway, Switzerland and Liechtenstein as well as the parallel agreement with Denmark does not cover law enforcement access to EURODAC.

The current proposal, as per the 2009 proposal, notes that the comparison of fingerprint data using EURODAC may only be made after national fingerprint databases and the Automated Fingerpirnt Databases of other Member States under Council Decision 2008/615/JHA (the Prüm Agreements) return negative results. This rule means that if any Member State has not implemented the above Council Decision and cannot perform a Prüm check, it also may not make a EURODAC check for law enforcement purposes. Similarly, any associated States that have not implemented or do not participate in the Prüm Agreements may not conduct such a EURODAC check.

7. Detailed explanation of the proposal

References to the "blocking" of data were changed in the 2008 recast to the "marking" of data concerning recognised beneficiaries of international protection. Under the original Regulation, the data of persons granted international protection remained on the EURODAC system but were blocked. As such, the EURODAC system recorded when there were hits concerning the fingerprints of recognised beneficiaries of international protection, but Member States were not informed of these hits. The new proposal was designed to "mark" these data instead in order to inform the Member States if there is a hit for a marked data subject. This is to inform Member States if an existing beneficiary of international protection attempts to put in a fresh claim for asylum.

Several of the amendments to the 2010 proposal are extracted directly from the lapsed September 2009 proposal on law enforcement access to EURODAC. As such, this section has been split into those areas amending the remainder of the proposal and amendments that are largely inspired by the September 2009 proposal, including their article references for ease of comparison.

The elements incorporated from the September 2009 proposal are the following.

Articles 1(2) laying down the conditions – from Article 1 of the September 2009 proposal.

Article 5 on designated authorised to access EURODAC data – from Article 3 of the September 2009 proposal, except for clarified title.

Article 6 on verifying authorities whose purpose is to ensure that the conditions for requesting comparisons of fingerprints with EURODAC data are fulfilled – from Article 4 of the September 2009 proposal.

Article 7 on Europol – from Article 5 of the September 2009 proposal.

Chapter VI (Articles 19-22) on the procedure for comparison and data transmission for law enforcement purposes – from Articles 6-9 of the September 2009 proposal.

Article 33 on data protection, 34 on data security, 35 on prohibition of data transfers, 36 on logging and transfers – from Articles 10-13 of the September 2009 proposal.

Article 39(3) on costs related to the prevention, detection or investigation of any of the criminal offences defined in this Regulation – from Article 14 of the September 2009 proposal.

Article 40(8) and (9) on annual reporting on law enforcement access to EURODAC – modified from Article 17(1) and 17(3) of the September 2009 proposal.

Article 43 on notification of designated and verifying authorities – from Article 16 of the September 2009 proposal.

The elements that were neither in the September 2009 proposal nor the 2010 proposal are the following:

Article 2(1) contains further definitions concerning the IT Agency and Europol and the nature of terrorist and criminal offences.

Article 2(2) and 2(4) clarify for data protection purposes when Directive 95/46/EC and how Framework Decision 2008/977/JHA apply.

Article 29 – the wording on the leaflet has been enhanced to ensure that it is simple and written in a language the applicant can understand.

Chapter VIII (Article 38) makes several amendments to Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice. Article 41 – the words "and Europol" have been included into the article on penalties.

Throughout the recast, the references to the "Management Authority" have been replaced with the "Agency".

8. BUDGETARY IMPLICATION

The present proposal entails a technical amendment to the EURODAC central system in order to provide for the possibility to carry out comparisons for law enforcement purposes. A new functionality to search on the basis of a latent is also proposed.

This proposal retains from the 2010 proposal the improvements of the system as regards new, asylum-focused functionalities regarding information on the status of the data subject (which were the outcome of negotiations in the Council). The financial statement attached to this proposal reflects this change and is also valid for the elements concerning the request for comparison with EURODAC data by Member States' law enforcement authorities and by Europol for the purposes of prevention, detection and investigation of terrorist offences and other serious criminal offences - COM(2009) 344.

The non-administrative cost estimate of 2,415 million EUR (2,771 million EUR including administrative / human resources costs) includes costs of 3 years of technical maintenance, and consists of IT-related services, software and hardware and would cover the upgrade and customisation to allow searches for law enforcement purposes and also the changes for the original asylum purpose unrelated to law enforcement access. The amounts of the EURODAC recast proposal adopted on 10 September 2009 have largely been reproduced in the present financial statement and only altered slightly to reflect the staffing costs in the IT Agency. Given the relatively small overall cost, no extra resources and no rectification of the Home Affairs budget will be sought and funding will be found from within existing budget lines, either of the IT Agency or from the Home Affairs budget.

9. Subsidiarity principle

Due to the transnational nature of the problems related to asylum and refugee protection, the EU is well placed to propose solutions in the framework of the Common European Asylum System (CEAS) to the issues described above as problems regarding the EURODAC Regulation. Although an important level of harmonization was reached in the Regulation adopted in 2000, there is still room for developing the support that EURODAC provides to the implementation of the Dublin Regulation. The need for EU action regarding the management of an EU database which was created for assisting in the implementation of a Regulation dealing with transnational movements of asylum seekers seems clear.

An amendment of the EURODAC Regulation is also required in order to add a secondary purpose thereto, namely allow access for the purpose to fight against terrorism and crime to data stored in the EURODAC central database. This objective cannot be sufficiently achieved by the Member States, since such amendment can only be proposed by the Commission.

10. Proportionality principle

The impact assessments published along with the 2008 and 2009 proposals[22] assessed each sub-option regarding the problems identified so as to represent an ideal proportion between practical value and efforts needed. It concluded that opting for EU action does not go beyond what is necessary to achieve the objective of solving those problems.

The relevant Impact Assessment concluded that access of law enforcement authorities to EURODAC is the only timely, accurate, secure and cost-efficient way to identify whether and if so, where data about asylum seekers are available in the Member States. No reasonable efficient alternative to EURODAC exists to establish or verify the exact identity of an asylum seeker that allows law enforcement authorities to obtain the same result.

ê 2725/2000/EC (adapted)

ð new

2008/0242 (COD)

Amended proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the establishment of 'EURODAC' for the comparison of fingerprints for the effective application of Regulation (EU) No […/…] (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 to request comparisons 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 (Recast version)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union establishing the European Community, and in particular Article 78 point (2)(e) 63 point (1)(a) ð , Article 87 point (2)(a) and Article 88 point (2)(a) ï thereof,

Having regard to the proposal from the Commission[23],

Having regard to the opinion of the European Data Protection Supervisor[24],

Having regard to the opinion of the European Parliament[25]

Ö Acting in accordance with the ordinary legislative procedure, Õ

Whereas:

ò new

(1) A number of substantive changes are to be made to Council Regulation (EC) 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[26] and Council Regulation (EC) No 407/2002 of 28 February 2002 laying down certain rules to implement Regulation (EC) No 2725/2000 concerning the establishment of "Eurodac" for the comparison of fingerprints for the effective application of the Dublin Convention[27]. In the interest of clarity, those Regulations should be recast.

ê 2725/2000/EC recital 1

(1) Member States have ratified the Geneva Convention of 28 July 1951, as amended by the New York Protocol of 31 January 1967, relating to the Status of Refugees.

ê 2725/2000/EC recital 2 (adapted)

(2) Member States have concluded the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed in Dublin on 15 June 1990 (hereinafter referred to as "the Dublin Convention").

ò new

(2) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek international protection in the Union.

(3) The European Council of 4 November 2004 adopted The Hague Programme which sets the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010. The European Pact on Immigration and Asylum endorsed by the European Council of 15-16 October 2008 called for the completion of the establishment of a Common European Asylum System by creating a single asylum procedure comprising common guarantees and a uniform status for refugees and the beneficiaries of subsidiary protection.

ê 2725/2000/EC recital 3 (adapted)

ð new

(4) For the purposes of applying the Dublin Convention Ö Council Regulation (EU) No […/…] [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][28]Õ, it is necessary to establish the identity of applicants for asylum ð international protection ï and of persons apprehended in connection with the unlawful crossing of the external borders of the Community. It is also desirable, in order effectively to apply the Dublin Convention Ö Council Regulation (EU) No […/…] [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] Õ, and in particular points (c) and (e) (b) and (d) of Article 10(1)18(1) thereof, to allow each Member State to check whether an alien Ö third country national or stateless person Õ found illegally present Ö staying Õ on its territory has applied for asylum ð international protection ï in another Member State.

ê 2725/2000/EC recital 4

(5) Fingerprints constitute an important element in establishing the exact identity of such persons. It is necessary to set up a system for the comparison of their fingerprint data.

ê 2725/2000/EC recital 5

ð new

(6) To this end, it is necessary to set up a system known as "EurodacEURODAC", consisting of a Central Unit ð System ï, to be established within the Commission and which will operate a computerised central database of fingerprint data, as well as of the electronic means of transmission between the Member States and the central database ð Central System, hereinafter the "Communication Infrastructure". ï

ò new

(7) The Hague Programme called for the improvement of access to existing data filing systems in the European Union. In addition, The Stockholm Programme called for well targeted data collection and a development of information exchange and its tools that is driven by law enforcement needs.

(8) It is essential in the fight against terrorist offences and other serious criminal offences for the law enforcement authorities to have the fullest and most up-to-date information if they are to perform their tasks. The information contained in EURODAC is necessary for the purposes of the prevention, detection and investigation of terrorist offences and other serious criminal offences. Therefore, the data in EURODAC should be available, subject to the conditions set out in this Regulation, for comparison by the designated authorities of Member States and Europol.

(9) The Commission outlined in its Communication to the Council and the European Parliament on improved effectiveness, enhanced interoperability and synergies among European data bases in the area of Justice and Home Affairs[29] of 24 November 2005 that authorities responsible for internal security could have access to EURODAC in well defined cases, when there would be a substantiated suspicion that the perpetrator of a terrorist or other serious criminal offence has applied for asylum. In this Communication the Commission also found that the proportionality principle requires that EURODAC be queried for these purposes only once there is an overriding public security concern, that is, if the act committed by the criminal or terrorist to be identified is so reprehensible that it justifies querying a database that registers persons with a clean criminal record and it concluded that the threshold for authorities responsible for internal security to query EURODAC must therefore always be significantly higher than the threshold for querying criminal databases.

(10) Moreover, Europol has 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 data within the framework of its tasks and in accordance with the Decision establishing the European Police Office (Europol) No (2009/371/JHA).[30]

(11) Since EURODAC has been established to facilitate the application of Council Regulation (EU) No […/…] [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], access to EURODAC for the purposes of preventing, detecting or investigating terrorist offences and other serious criminal offences constitutes a change of the original purpose of EURODAC, which interferes with the right to respect the private life of individuals whose personal data are processed in EURODAC. Any such interference must be in accordance with the law, which must be formulated with sufficient precision to allow individuals to adjust their conduct and it must protect individuals against arbitrariness and indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise. Any interference must be necessary in a democratic society to attain a legitimate and proportionate interest and proportionate to the legitimate objective it aims to achieve.

(12) Even though the original purpose for the establishment of EURODAC did not require the facility of requesting comparisons of data with the database on the basis of a latent which is the dactyloscopic trace which may be found at a crime scene, such a facility is a fundamental one in the field of police cooperation. The possibility to compare a latent with the fingerprint data which is stored in EURODAC will provide the designated authorities of the Member States with a very valuable tool in preventing, detecting and investigating terrorist offences and other serious criminal offences, when for example the only evidence available at a crime scene are latents.

(13) This Regulation also lays down the conditions under which requests for comparison of fingerprint data with EURODAC data for the purposes of preventing, detecting or investigating terrorist offences and other serious criminal offences should be allowed and the necessary safeguards to ensure the protection of the fundamental right to respect for the private life of individuals whose personal data are processed in EURODAC.

(14) In view of ensuring equal treatment for all applicants and beneficiaries of international protection, as well as in order to ensure consistency with current Union asylum acquis, in particular with Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted[31] and Regulation (EU) No […/…] [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], it is appropriate to extent the scope of this Regulation to order to include applicants for subsidiary protection and persons enjoying subsidiary protection.

ê 2725/2000/EC recital 6 (adapted)

ð new

(15) It is also necessary to require the Member States promptly to take ð and transmit ï fingerprints ð data ï of every applicant for asylum ð international protection ï and of every alien Ö third country national or stateless person Õ who is apprehended in connection with the irregular crossing of an external border of a Member State, if they are at least 14 years of age.

ê 2725/2000/EC recital 7 (adapted)

ð new

(16) It is necessary to lay down precise rules on the transmission of such fingerprint data to the Central Unit ð System ï, the recording of such fingerprint data and other relevant data in the Central Unit ð System ï, their storage, their comparison with other fingerprint data, the transmission of the results of such comparison and the blocking ð marking ï and erasure of the recorded data. Such rules may be different for, and should be specifically adapted to, the situation of different categories of aliens Ö third country nationals or stateless persons Õ.

ò new

(17) Hits obtained from EURODAC should be verified by a fingerprint expert in order to ensure the accurate determination of responsibility under Regulation (EU) No […/…] [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].

ê 2725/2000/EC recital 8 (adapted)

ð new

(18) Aliens Ö Third country nationals or stateless persons Õ who have requested asylum ð international protection ï in one Member State may have the option of requesting asylum ð international protection ï in another Member State for many years to come. Therefore, the maximum period during which fingerprint data should be kept by the Central Unit ð System ï should be of considerable length. Given that most aliens Ö third country nationals or stateless persons Õ who have stayed in the Community Ö European Union Õ for several years will have obtained a settled status or even citizenship of a Member State after that period, a period of ten years should be considered a reasonable period for the conservation of fingerprint data.

ê 2725/2000/EC recital 9 (adapted)

(19) The conservation period should be shorter in certain special situations where there is no need to keep fingerprint data for that length of time. Fingerprint data should be erased immediately once aliens Ö third country nationals or stateless persons Õ obtain citizenship of a Member State.

ò new

(20) It is appropriate to store data relating to those data subjects whose fingerprints were initially recorded in EURODAC upon lodging their applications for international protection and who have been granted international protection in a Member State in order to allow data recorded upon lodging an application for international protection to be compared against them.

(21) The European Agency for the operational management of large-scale information systems in the area of freedom security and justice established by Regulation (EU) n° 1077/2011 of the European Parliament and of the Council of 25 October 2011[32] (the "Agency") has been entrusted with the Commission's tasks relating to the operational management of EURODAC in accordance with this Regulation and with certain taks relating to the communication infrastructure as from the date on which the Agency takes up its responsibilities as of 1 December 2012. The Agency should take up the tasks entrusted to it under this Regulation and the relevant provisions of Regulation (EU) No 1077/2011 should be amended accordingly. In addition, Europol should have observer status at the meetings of the Management Board of the Agency, when a question in relation to the application of this Regulation concerning access for consultation of Eurodac 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 is on the agenda. Europol should be able to appoint a representative to the Eurodac Advisory Group of the Agency.

(22) The Staff Regulations of Officials of the European Union (Staff Regulations of Officials) and the Conditions of Employment of Other Servants of the European Union (Conditions of Employment), laid down in Regulation (EEC, Euratom, ECSC) No 259/68 (15) (together referred to as the ‘Staff Regulations’), should apply to all staff working in the Agency on matters pertaining to this Regulation.

ê 2725/2000/EC recital 10 (adapted)

ð new

(23) It is necessary to lay down clearly the respective responsibilities of the Commission ð and the Agency ï, in respect of the Central Unit ð System ï ð and the Communication Infrastructure ï, and of the Member States, as regards data use processing, data security, access to, and correction of, recorded data.

ò new

(24) It is necessary to designate the competent Member States' authorities as well as the National Central Access Point through which the requests for comparison with EURODAC data are done and to keep a list of the operating units within the designated authorities that are authorised to request such comparison for the specific purposes of the prevention, detection and investigation of terrorist offences as referred to in the Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism[33] and of other serious criminal offences as referred to in the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States[34].

(25) Requests for comparison with data stored in the EURODAC central database shall be made by the operating units within the designated authorities to the National Access Point, through the verifying authority and shall be reasoned. The operating units within the designated authorities that are authorised to request comparisons with EURODAC data shall not act as a verifying authority. The verifying authorities should be responsible for ensuring strict compliance with the conditions for access as established in this Regulation.The verifying authorities should then forward the request for comparison through the National Access Point to the EURODAC Central System following verification of whether all conditions for access are fulfilled. In the exceptional case of urgency where early access is necessary to respond to a specific and actual threat related to terrorist offences or serious crime, the verifying authority should process the request immediately and only do the verification afterwards.

(26) For the purposes of protection of personal data, and to exclude systematic comparisons which should be forbidden, the processing of EURODAC data should only take place on a case-by-case basis and when it is necessary for the purposes of preventing, detecting and investigating terrorist offences and other serious criminal offences. In addition access should only be allowed when comparisons with the national databases of the Member State and with the Automated Fingerprint Databases of other Member States under the 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[35] have returned negative results. This condition requires prior implementation of the Council Decision as it shall not be permitted to conduct a EURODAC check for law enforcement purposes where these above steps have not been first undertaken. A specific case exists in particular when the request for comparison is connected to a specific and concrete situation or to a specific and concrete danger associated with a terrorist or other serious criminal offence, or to specific persons in respect of whom there are serious grounds for believing that the persons will commit or have committed terrorist offences or other serious criminal offences. A specific case also exists when the request for comparison is connected to a person who is a victim of a terrorist or other serious criminal offence. The designated authorities and Europol should thus only request a comparison with EURODAC when they have reasonable grounds to believe that such a comparison will provide information that will substantially assist them in preventing, detecting or investigating a terrorist or other serious criminal offence.

(27) In case the requesting Member State establishes that EURODAC data pertains to a minor, these data may only be used for law enforcement purposes by the requesting Member State in accordance with that State’s laws for minors and in accordance with the obligation to give primary consideration to the child's best interest.

ê 2725/2000/EC recital 11

(28) While the non-contractual liability of the Community in connection with the operation of the EurodacEURODAC system will be governed by the relevant provisions of the Treaty, it is necessary to lay down specific rules for the non-contractual liability of the Member States in connection with the operation of the system.

ê 2725/2000/EC recital 12

(29) In accordance with the principle of subsidiarity as set out in Article 5 of the Treaty, the objective of the proposed measures, namely the creation within the Commission of a system for the comparison of fingerprint data to assist the implementation of the Community's asylum policy, cannot, by its very nature, be sufficiently achieved by the Member States and can therefore be better achieved by the Community. In accordance with the principle of proportionality as set out in the said Article, this Regulation does not go beyond what is necessary to achieve that those objectives.

ê 2725/2000/EC recital 15 (adapted)

ð new

(30) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data[36] applies to the processing of personal data by the Member States Ö carried out in application of this Regulation Õ within the framework of the Eurodac system ð unless such processing takes place by Member States' designated authorities for the purposes of the prevention, detection and investigation of terrorist offences and other serious criminal offences ï.

ò new

(31) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters[37] applies to all processing of personal data by Member States' designated authorities for the purposes of the prevention, detection and investigation of terrorist offences and other serious criminal offences pursuant to this Regulation.

ê 2725/2000/EC recital 16

(16) By virtue of Article 286 of the Treaty, Directive 95/46/EC also applies to Community institutions and bodies. Since the Central Unit will be established within the Commission, that Directive will apply to the processing of personal data by that Unit.

ê 2725/2000/EC recital 17

(32) The principles set out in Directive 95/46/EC regarding the protection of the rights and freedoms of individuals, notably their right to privacy, with regard to the processing of personal data should be supplemented or clarified, in particular as far as certain sectors are concerned.

ò new

(33) Transfers of data obtained pursuant to this Decision to third countries or international organisations or private entities should be prohibited, in order to ensure the right to asylum and to safeguard applicants for international protection from having their data disclosed to any third country. This prohibition shall be without prejudice to the right of Member States to transfer such data to third countries to which Regulation (EU) No […/…] [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] applies, in order to ensure that Member States have the possibility of cooperating with such third countries for the purposes of this Regulation.

(34) National competent authorities for the supervision of the processing of personal data should monitor the lawfulness of the processing of personal data by the Member States, and the supervisory authority set up by the Europol Decision should monitor the lawfulness of data processing activities performed by Europol.

(35) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data[38] and in particular Articles 21 and 22 thereof concerning confidentiality and security of processing apply to the processing of personal data by Union institutions, bodies, offices and agencies carried out in application of this Regulation. However, certain points should be clarified in respect of the responsibility for the processing of data and of the supervision of data protection.

(36) It is appropriate that national supervisory authorities monitor the lawfulness of the processing of personal data by the Member States, whilst the European Data Protection Supervisor, as referred to in Article 41 of Regulation (EC) No 45/2001, should monitor the activities of the Union institutions, bodies, offices and agencies in relation to the processing of personal data carried out in application of this Regulation.

ê 2725/2000/EC recital 18

ð new

(37) It is appropriate to monitor and evaluate the performance of EurodacEURODAC ð at regular intervals ï.

ê 2725/2000/EC recital 19 (adapted)

ð new

(38) Member States should provide for a system of Öeffective, proportionate and dissuasiveÕ penalties to sanction the processing use of data ÖenteredÕ in the central database ð Central System ï contrary to the purpose of EurodacEURODAC.

ò new

(39) It is necessary that Member States are informed of the status of particular asylum procedures, with a view to facilitating the adequate application of Regulation (EU) No […/…] [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].

(40) This Regulation respects and has to be applied in accordance with fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Regulation fully respects the individual’s right to protection of his or her personal data and the right to asylum.

(41) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. As regards Denmark, this Regulation, with the exception of the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43, constitutes amendment to the EURODAC Regulation within the meaning of the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention[39]. Consequently, in accordance with Article 3 thereof, Denmark is to notify the Commission whether it will implement the contents of this Regulation and when it does so, this Regulation creates mutual obligations under international law between Denmark and the European Union. Once this Recast Regulation is adopted and subject to a Commission recommendation for a Council Decision authorising the opening of negotiations, Denmark will be consulted as to whether it wishes to enter into negotiations on complementary agreements also covering the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43.

(42) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, the United Kingdom [is not taking part in the adoption of this Regulation and is not bound by it or subject to its application / has notified its wish to take part in the adoption and application of this Regulation].

(43) In accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland [is not taking part in the adoption of this Regulation and is not bound by it or subject to its application / has notified its wish to take part in the adoption and application of this Regulation].

(44) As regards the Republic of Iceland and the Kingdom of Norway, this Regulation, with the exception of the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43, constitutes a new measure related to EURODAC within the meaning of the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway[40]. Consequently, subject to their decision to implement it in their internal legal order, this Regulation shall be applied between the Republic of Iceland and the Kingdom of Norway in their mutual relations and in there relations with the Member States of the European Union. Once this Recast Regulation is adopted and subject to a Commission recommendation for a Council Decision authorising the opening of negotiations, the Republic of Iceland and the Kingdom of Norway will be consulted as to whether they wish to enter into negotiations on complementary agreements also covering the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43.

(45) As regards the Swiss Confederation, this Regulation, with the exception of the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43, constitutes a new measure related to EURODAC within the meaning of 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[41]. Consequently, subject to its decision to implement it in its internal legal order, this Regulation shall be applied between the Swiss Confederation and the Member States of the European Union. Once this Recast Regulation is adopted and subject to a Commission recommendation for a Council Decision authorising the opening of negotiations, the Swiss Confederation will be consulted as to whether it wishes to enter into negotiations on complementary agreements also covering the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43, subject to a separate agreement on the application of relevant provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation.

(46) As regards the Principality of Liechtenstein, this Regulation, with the exception of the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43, constitutes a new measure related to EURODAC within the meaning of 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[42]. Consequently, subject to its decision to implement it in its internal legal order, this Regulation shall be applied between the Principality of Liechtenstein, the Swiss Confederation and the Member States of the European Union. Once this Recast Regulation is adopted and subject to a Commission recommendation for a Council Decision authorising the opening of negotiations, the Principality of Liechtenstein will be consulted as to whether it wishes to enter into negotiations on complementary agreements also covering the procedure for comparison and data transmission for law enforcement purposes laid down in Articles 5, 6, 19-22, 33, 36, 39(3), 40(8) and 43, subject to a separate agreement on their application of relevant provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation.

ê 2725/2000/EC recital 22 (adapted)

(47) It is appropriate to restrict the territorial scope of this Regulation so as to align it on the territorial scope of the Dublin Convention Ö Regulation (EU) No […/…] [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] Õ .

ê 2725/2000/EC (adapted)

ð new

HAVE ADOPTED THIS REGULATION:

CHAPTER I

GENERAL PROVISIONS

Article 1 Purpose of "EurodacEURODAC"

1. A system known as "EurodacEURODAC" is hereby established, the purpose of which shall be to assist in determining which Member State is to be responsible pursuant to the Dublin Convention Ö Regulation (EU) No […/…] [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] Õ for examining an application for asylum ð international protection ï lodged in a Member State ð by a third country national or a stateless person ï, and otherwise to facilitate the application of the Dublin Convention Ö Regulation Õ under the conditions set out in this Regulation.

2. Eurodac shall consist of:

(a) the Central Unit referred to in Article 3;

(b) a computerised central database in which the data referred to in Article 5(1), Article 8(2) and Article 11(2) are processed for the purpose of comparing the fingerprint data of applicants for asylum and of the categories of aliens referred to in Article 8(1) and Article 11(1);

(c) means of data transmission between the Member States and the central database.

2. This Regulation also lays down the conditions under which Member States' designated authorities and the European Police Office (Europol) may request the comparison of fingerprint data with those stored in the EURODAC central database for the purposes of the prevention, detection and investigation of terrorist offences and other serious criminal offences.

ê 2725/2000/EC (adapted)

ð new

3. Without prejudice to the processing use of data intended for EurodacEURODAC by the Member State of origin in databases set up under the latter's national law, fingerprint data and other personal data may be processed in EurodacEURODAC only for the purposes set out in ð this Regulation and ï Article 15(1)32(1) of the Dublin Convention Ö Regulation Õ .

ê 2725/2000/EC (adapted)

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Article 2 Definitions

1. For the purposes of this Regulation:

(a) "the Dublin Convention Ö Regulation Õ " means the Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed at Dublin on 15 June 1990 Ö Regulation (EU) No […/…] [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] Õ;

(b) an "applicant for asylum ð international protection ï" means an alien Ö third-country national or a stateless person Õ who has made an application for asylum or on whose behalf such an application has been made ð international protection as defined in Article 2(g) of Council Directive 2004/83/EC in respect of which a final decision has not yet been taken ï;

(c) "Member State of origin" means:

(i) in relation to an applicant for asylum Ö person covered by Article 6 Õ , the Member State which transmits the personal data to the Central Unit ð System ï and receives the results of the comparison;

(ii) in relation to a person covered by Article 8 11 , the Member State which transmits the personal data to the Central Unit ð System ï;

(iii) in relation to a person covered by Article 11 14 , the Member State which transmits such data to the Central Unit ð System ï and receives the results of the comparison;

ê 2725/2000/EC (adapted)

ð new

(d) "refugee" ð "person granted international protection" ï means a Ö third country national or a stateless Õ person who has been recognised as a refugee in accordance with the Geneva Convention on Refugees of 28 July 1951, as amended by the New York Protocol of 31 January 1967 ð entitled to international protection as defined in point (a) of Article 2 of Council Directive 2004/83/EC ï;

(e) "hit" shall mean the existence of a match or matches established by the Central Unit ð System ï by comparison between fingerprint data recorded in the databank Ö central database Õ and those transmitted by a Member State with regard to a person, without prejudice to the requirement that Member States shall immediately check the results of the comparison pursuant to Article 4(6) 18(4);

ò new

(f) "National Acces Point" means the designated national system which communicates with the Central System;

(g) "Agency" means the Agency established by Regulation (EU) No 1077/2011;

(h) 'Europol' means the European Police Office as established by Decision 2009/371/JHA;

(i) 'EURODAC data' means all fingerprint data stored in the central database in accordance with Article 11 and Article 16(2);

(j) 'terrorist offences' means the offences under national law which correspond or are equivalent to the offences referred to in Articles 1 to 4 of Framework Decision 2002/475/JHA;

(k) 'serious criminal offences' means the forms of crime which correspond or are equivalent to those referred to in Article 2(2) of Framework Decision 2002/584/JHA if they are punishable by a custodial sentence or a detention order for a maximum period of at least three years under national law;

(l) 'fingerprint data' means the data relating to fingerprints of all or at least the index fingers, and if those are missing, the prints of all other fingers of a person, or a latent.

ê 2725/2000/EC (adapted)

ð new

2. The terms defined in Article 2 of Directive 95/46/EC shall have the same meaning in this Regulation ð unless the processing of personal data takes place by Member States' designated authorities for the purposes of the prevention, detection and investigation of terrorist offences and other serious criminal offences ï.

3. Unless stated otherwise, the terms defined in Article 1 2 of the Dublin Convention Ö Regulation Õ shall have the same meaning in this Regulation.

ò new

4. The terms defined in Article 2 of the Framework Decision 2008/977/JHA shall have the same meaning in this Regulation in so far as personal data are processed by Member States' designated authorities for the purposes of the prevention, detection and investigation of terrorist offences and other serious criminal offences pursuant to this Regulation.

ê 2725/2000/EC (adapted)

Article 3 Central Unit Ö System architecture and basic principles Õ

1. A Central Unit shall be established within the Commission which shall be responsible for operating the central database referred to in Article 1(2)(b) on behalf of the Member States. The Central Unit shall be equipped with a computerised fingerprint recognition system.

ò new

1. EURODAC shall consist of:

(a) a computerised central fingerprint database (Central System) composed of

– a Central Unit,

– a Business Continuity System.

(b) a communication infrastructure between the Central System and Member States that provides an encrypted virtual network dedicated to EURODAC data (Communication Infrastructure).

2. Each Member State shall have a single National Access Point.

ê 2725/2000/EC (adapted)

ð new

2.3. Data on applicants for asylum, persons covered by Articles 8 and persons covered by Article 11 9, 14 and 17 which are processed in the Central Unit ð System ï shall be processed on behalf of the Member State of origin under the conditions set out in this Regulation Ö and separated by appropriate technical means Õ.

ê 2725/2000/EC Article 1(2) third subparagraph

ð new

4. The rules governing EurodacEURODAC shall also apply to operations effected by the Member States as from the transmission of data to the Central Unit ð System ï until use is made of the results of the comparison.

ê 2725/2000/EC Article 4(1) second sentence

ð new

5. The procedure for taking fingerprints shall be determined ð and applied ï in accordance with the national practice of the Member State concerned and in accordance with the safeguards laid down in ð the Charter of Fundamental Rights of the European Union, in the Convention for the Protection of Human Rights and Fundamental Freedoms and ï the European Convention on Human Rights and in the United Nations Convention on the Rights of the Child.

ò new

Article 4 Operational management

1. The Agency, shall be responsible for the operational management of EURODAC. The Agency shall ensure, in cooperation with the Member States, that at all times the best available technology, subject to a cost-benefit analysis, is used for the Central System.

2. The Agency shall also be responsible for the following tasks relating to the Communication Infrastructure:

(a) supervision;

(b) security;

(c) the coordination of relations between the Member States and the provider.

3. The Commission shall be responsible for all other tasks relating to the Communication Infrastructure, in particular:

(a) tasks relating to implementation of the budget;

(b) acquisition and renewal;

(c) contractual matters.

4. Before the Agency takes up its responsibilities, the Commission shall be responsible for all tasks attributed to the Agency by this Regulation.

5. Operational management of EURODAC shall consist of all the tasks necessary to keep EURODAC functioning 24 hours a day, 7 days a week in accordance with this Regulation, in particular the maintenance work and technical developments necessary to ensure that the system functions at a satisfactory level of operational quality, in particular as regards the time required for interrogation of the Central System.

6. Without prejudice to Article 17 of Regulation No 31 (EEC), 11 (EAEC)[43], the Agency shall apply appropriate rules of professional secrecy or other equivalent duties of confidentiality to all its staff required to work with EURODAC data. This obligation shall also apply after such staff leave office or employment or after the termination of their activities.

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Article 5 Designated Authorities for the purpose of law enforcement access

1. Member States shall designate the authorities which are authorised to access EURODAC data pursuant to this Regulation. Designated authorities shall be authorities of the Member States which are responsible for the prevention, detection or investigation of terrorist offences and other serious criminal offences.

2. Every Member State shall keep a list of the designated authorities.

3. At national level, each Member State shall keep a list of the operating units within the designated authorities that are authorised to request comparisons with EURODAC data through the National Access Point.

Article 6 Verifying Authorities

1. Each Member State shall designate a single national body to act as its verifying authority. The verifying authority shall be an authority of the Member State which is responsible for the prevention, detection or investigation of terrorist offences and other serious criminal offences.

2. The verifying authority shall ensure that the conditions for requesting comparisons of fingerprints with EURODAC data are fulfilled.

Only the verifying authority shall be authorised to forward requests for comparison of fingerprints to the National Access Point which communicates with the Central System.

Article 7 Europol

1. Europol shall designate a specialised unit with duly empowered Europol officials to act as its verifying authority and shall designate in agreement with any Member State the National Access Point of that Member State which shall communicate its requests for comparison of fingerprint data to the Central System.

2. Europol shall designate an operating unit that is authorised to request comparisons with EURODAC data through its designated National Access Point.

ê 2725/2000/EC (adapted)

ð new

Article 8 3 Ö Statistics Õ

3. 1. The Central Unit Ö Agency Õ shall draw up statistics on its Ö the Õ work Ö of the Central System Õ every quarter ð month ï, indicating ð in particular ï :

(a) the number of data sets transmitted on persons referred to in Articles 9(1), 8(1) and 11(1) 14(1) and 17(1) ;

(b) the number of hits for applicants for asylum ð international protection ï who have lodged an application for asylum ð international protection ï in another Member State;

(c) the number of hits for persons referred to in Article 8(1) 14(1) who have subsequently lodged an application for asylum ð international protection ï;

(d) the number of hits for persons referred to in Article 11(1) 17(1) who had previously lodged an application for asylum ð international protection ï in another Member State;

(e) the number of fingerprint data which the Central Unit ð System ï had to ð repeatedly ï request a second time from the Member States of origin because the fingerprint data originally transmitted did not lend themselves to comparison using the computerised fingerprint recognition system;.

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(f) the number of requests for marking and unmarking transmitted in accordance with Article 18(1) and (2).

(g) the number of hits for persons referred to in Article 18(1) for whom hits have been recorded under points (b) and (d) of this Article.

ê 2725/2000/EC

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2. At the end of each year, statistical data shall be established in the form of a compilation of the ð monthly ï quarterly statistics drawn up since the beginning of Eurodac's activities ð for that year ï, including an indication of the number of persons for whom hits have been recorded under ð points ï (b), (c), and (d). ð The statistics shall contain a breakdown of data for each Member State. ï

4. Pursuant to the procedure laid down in Article 23(2), the Central Unit may be charged with carrying out certain other statistical tasks on the basis of the data processed at the Central Unit.

ê 2725/2000/EC (adapted)

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CHAPTER II

APPLICANTS FOR ASYLUM Ö INTERNATIONAL PROTECTION Õ

Article 9 4 Collection, transmission and comparison of fingerprints

1. Each Member State shall promptly take the fingerprints of all fingers of every applicant for asylum ð international protection ï of at least 14 years of age and shall promptly ð as soon as possible and no later than 72 hours after the lodging of that application for international protection as defined by Article 20(2) of the Dublin Regulation ï transmit Ö them together with Õ the data referred to in points (a) (b) to (f) (g) of Article 5(1) 11 to the Central Unit ð System ï.

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ð Non compliance with the 72 hours time limit does not relieve Member States of the obligation to take and transmit the fingerprints to the Central System. Where the condition of the fingertips does not allow to take the fingerprints in a quality ensuring appropriate comparison under Article 25 of this Regulation, the Member State of origin shall retake the fingerprints of the applicant and resend them as soon as possible and no later than 48 hours after they have been successfully taken. ï

ê 2725/2000/EC

(2) The data referred to in Article 5(1) shall be immediately recorded in the central database by the Central Unit, or, provided that the technical conditions for such purposes are met, directly by the Member State of origin.

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2. By way of derogation from paragraph 1, where it is not possible to take the fingerprints of an applicant on account of measures taken to ensure the health of the applicant or the protection of public health, Member States shall take and send the fingerprints of the applicant as soon as possible and no later than 48 hours after these grounds no longer prevail.

ê 2725/2000/EC (adapted)

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3. Fingerprint data within the meaning of point (b) (a) of Article 5(1) 11, transmitted by any Member State, Ö with exception to those transmitted in accordance with Article 10 point (b) Õ shall be compared ð automatically ï with the fingerprint data transmitted by other Member States and already stored in the Ccentral database ð System ï.

4. The Central Unit ð System ï shall ensure, on the request of a Member State, that the comparison referred to in paragraph 3 covers the fingerprint data previously transmitted by that Member State, in addition to the data from other Member States.

5. The Central Unit ð System ï shall forthwith ð automatically ï transmit the hit or the negative result of the comparison to the Member State of origin. Where there is a hit, it shall transmit for all data sets corresponding to the hit, the data referred to in Article 5(1) 8(a) to (ð g ï), although in the case of the data referred to in Article 5(1)(b), only insofar as they were the basis for the hit ð along with, where appropriate, the mark referred to in Article 18(1) ï.

Direct transmission to the Member State of origin of the result of the comparison shall be permissible where the technical conditions for such purpose are met.

7. The implementing rules setting out the procedures necessary for the application of paragraphs 1 to 6 shall be adopted in accordance with the procedure laid down in Article 22(1).

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Article 10 Information on the status of the data subject

The following information shall be sent to the Central System in order to be stored in accordance with Article 9 for the purpose of transmission under Article 9(5):

(a) When an applicant for international protection or another person as referred to in point (d) of Article 18(1) of the Dublin Regulation arrives in the responsible Member State following a transfer pursuant to a decision acceding to a request to take him/her back as referred to in Article 24 of the Dublin Regulation, the responsible Member State shall update its dataset recorded in conformity with Article 8 of this Regulation relating to the person concerned by adding their date of arrival .

(b) When an applicant for international protection arrives in the responsible Member State following a transfer pursuant to a decision acceding to a request to take charge of them as referred to in Article 22 of the Dublin Regulation, the responsible Member State shall send a dataset in conformity with Article 11 of this Regulation relating to the person concerned and include their date of arrival.

(c) As soon as the Member State of origin can establish that the person concerned whose data was recorded in EURODAC in accordance with Article 11 of this Regulation has left the territory of the Member States, it shall update its dataset recorded in conformity with Article 11 of this Regulation relating to the person concerned by adding the date when the person left the territory, in order to facilitate the application of Articles 19(2) and 20(5) of the Dublin Regulation.

(d) As soon as the Member State of origin ensures that the person concerned whose data was recorded in EURODAC in accordance with Article 11 has left the territory of the Member States in compliance with a return decision or removal order it issued following the withdrawal or rejection of the application as provided for in Article 19(3) of the Dublin Regulation, it shall update its dataset recorded in conformity with Article 11 relating to the person concerned by adding the date of his/her removal or when the person left the territory.

(e) The Member State which assumes responsibility in accordance with Article 17(1) of the Dublin Regulation shall update its dataset recorded in conformity with Article 11 of this Regulation relating to that applicant by adding the date when the decision to examine the application was taken.

ê 2725/2000/EC

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Article 11 5 Recording of data

1. Only the following data shall be recorded in the cCentral database ð System ï :

(ab) fingerprint data;

(ba) Member State of origin, place and date of the application for asylum ð international protection; in the cases referred to in point (b) of Article 10, the date of application shall be the one entered by the Member State who transferred the applicant ï;

(c) sex;

(d) reference number used by the Member State of origin;

(e) date on which the fingerprints were taken;

(f) date on which the data were transmitted to the Central Unit ð System ï;

(g) date on which the data were entered in the central database ;

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(g) operator user ID.

ê 2725/2000/EC

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(h) details in respect of the recipient(s) of the data transmitted and the date(s) of transmission(s).

(h) where applicable in accordance with Article 10 point (a) or point (b), the date of the arrival of the person concerned after a successful transfer;

(i) where applicable in accordance with Article 10 point (c), the date when the person concerned left the territory of the Member States;

(j) where applicable in accordance with Article 10 point (d), the date when the person concerned left or was removed from the territory of the Member States;

(k) where applicable in accordance with Article 10 point (e), the date when the decision to examine the application was taken.

2. After recording the data in the central database, the Central Unit shall destroy the media used for transmitting the data, unless the Member State of origin has requested their return.

Article 12 6 Data storage

Each set of data, as referred to in Article 5(1) 11, shall be stored in the Ccentral ð System ï database for ten years from the date on which the fingerprints were taken.

Upon expiry of this period, the Central Unit ð System ï shall automatically erase the data from the Ccentral database ð System ï.

Article 13 7 Advance data erasure

1. Data relating to a person who has acquired citizenship of any Member State before expiry of the period referred to in Article 6 12 shall be erased from the Central Unit ð System ï, in accordance with Article 15(3) 27(4) as soon as the Member State of origin becomes aware that the person has acquired such citizenship.

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2. The Central System shall inform all Member States of origin about the erasure of data for the reason specified in paragraph 1 by another Member State of origin having produced a hit with data which they transmitted relating to persons referred to in Article 9(1) or Article 14(1).

ê 2725/2000/EC (adapted)

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CHAPTER III

ALIENS Ö THIRD COUNTRY NATIONALS or stateless persons Õ APPREHENDED IN CONNECTION WITH THE IRREGULAR CROSSING OF AN EXTERNAL BORDER

Article 14 8 Collection and transmission of fingerprint data

1. Each Member State shall, in accordance with the safeguards laid down in the European Convention on Human Rights and in the United Nations Convention on the Rights of the Child promptly take the fingerprints of all fingers of every alien Ö third country national or stateless person Õ of at least 14 years of age who is apprehended by the competent control authorities in connection with the irregular crossing by land, sea or air of the border of that Member State having come from a third country and who is not turned back ð or who remains physically on the territory of the Member States and who is not kept in custody, confinement or detention during the entirety of the period between apprehension and removal on the basis of the decision to turn them back ï .

2. The Member State concerned shall promptly ðas soon as possible and no later than 72 hours from the date of apprehension ï transmit to the Central Unit ð System ï the following data in relation to any alien Ö third country national or stateless person Õ, as referred to in paragraph 1, who is not turned back:

(ab) fingerprint data;

(ba) Member State of origin, place and date of the apprehension;

(c) sex;

(d) reference number used by the Member State of origin;

(e) date on which the fingerprints were taken;

(f) date on which the data were transmitted to the Central Unit ð System ï;

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(g) operator user ID.

3. By way of derogation from paragraph 2, as regards persons apprehended in the manner described in paragraph 1 who remain physically on the territory of the Member States but are kept in custody, confinement or detention upon their apprehension for a period exceeding 72 hours, the transmission of the data specified in paragraph 2 relating to those persons shall take place before their release from custody, confinement or detention.

4. Non compliance with the 72 hours time limit referred to in paragraph 2 does not relieve Member States of the obligation to take and transmit the fingerprints to the Central System. Where the condition of the fingertips does not allow to take the fingerprints in a quality ensuring appropriate comparison under Article 25, the Member State of origin shall retake the fingerprints of such person and resend them as soon as possible and no later than 48 hours after they have been successfully taken.

5. By way of derogation from paragraph 1, where it is not possible to take the fingerprints of such person on account of measures taken to ensure the health of the person or the protection of public health, the Member State concerned shall take and send the fingerprints of the person, in accordance with the deadline set out in paragraph 2, once these grounds no longer prevail.

ê 2725/2000/EC (adapted)

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Article 15 9 Recording of data

1. The data referred to in Article 5(1)(g) and in Article 8(2) 14(2) shall be recorded in the central database ð Central System ï.

Without prejudice to Article 3(3)8, data transmitted to the Central Unit ð System ï pursuant to Article 8(2) 14(2) shall be recorded for the sole purpose of comparison with data on applicants for asylum ð international protection ï transmitted subsequently to the Central Unit ð System ï.

The Central Unit ð System ï shall not compare data transmitted to it pursuant to Article 8(2) 14(2) with any data previously recorded in the central database ð Central System ï, nor with data subsequently transmitted to the Central Unit ð System ï pursuant to Article 8(2) 14(2).

2. The procedures provided for in Article 4(1), second sentence, Article 4(2) and Article 5(2) as well as the provisions laid down pursuant to Article 4(7) shall apply. As regards the comparison of data on applicants for asylum ð international protection ï subsequently transmitted to the Central Unit ð System ï with the data referred to in paragraph 1, the procedures provided for in Article 4(3), (5) and (6) 9(3) and (5) and in Article 25(4) shall apply.

Article 16 10 Storage of data

1. Each set of data relating to an alien Ö third country national or stateless person Õ as referred to in Article 8(1) 14(1) shall be stored in the central database ð Central System ï for ð one year ï two years from the date on which the fingerprints of the alien Ö third country national or stateless person Õ were taken. Upon expiry of this period, the Central Unit ð System ï shall automatically erase the data from the central database ð Central System ï.

2. The data relating to an alien Ö third country national or stateless person Õ as referred to in Article 8(1) 14(1) shall be erased from the central database ð Central System ï in accordance with Article 15(3) 28(3)Ö as soon as Õ the Member State of origin becomes aware of one of the following circumstances before the two ð one ï-year period mentioned in paragraph 1 has expired:

(a) the alien Ö third country national or stateless person Õ has been issued with a residence permit Ö document Õ ;

(b) the alien Ö third country national or stateless person Õ has left the territory of the Member States;

(c) the alien Ö third country national or stateless person Õ has acquired the citizenship of any Member State.

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3. The Central System shall inform all Member States of origin about the erasure of data for the reason specified in point (a) or (b) of paragraph 2 or by another Member State of origin having produced a hit with data which they transmitted relating to persons referred to in Article 14(1).

4. The Central System shall inform all Member States of origin about the erasure of data for the reason specified in point (c) of paragraph 2 by another Member State of origin having produced a hit with data which they transmitted relating to persons referred to in Article 9(1) or Article 14(1).

ê 2725/2000/EC (adapted)

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CHAPTER IV

ALIENS Ö THIRD COUNTRY NATIONALS or stateless persons Õ FOUND ILLEGALLY PRESENT Ö STAYING Õ IN A MEMBER STATE

Article 17 11 Comparison of fingerprint data

1. With a view to checking whether an alien Ö third country national or a stateless person Õ found illegally present Ö staying Õ within its territory has previously lodged an application for asylum ð international protection ï in another Member State, each Member State may transmit to the Central Unit ð System ï any fingerprint data relating to fingerprints which it may have taken of any such alien Ö third country national or stateless person Õ of at least 14 years of age together with the reference number used by that Member State.

As a general rule there are grounds for checking whether the alien Ö third country national or stateless person Õ has previously lodged an application for asylum ð international protection ï in another Member State where:

(a) the alien Ö third country national or stateless person Õ declares that he/she has lodged an application for asylum ð international protection ï but without indicating the Member State in which he/she made the application;

(b) the alien Ö third country national or stateless person Õ does not request asylum ð international protection ï but objects to being returned to his/her country of origin by claiming that he/she would be in danger, or

(c) the alien Ö third country national or stateless person Õ otherwise seeks to prevent his/her removal by refusing to cooperate in establishing his/her identity, in particular by showing no, or false, identity papers.

2. Where Member States take part in the procedure referred to in paragraph 1, they shall transmit to the Central Unit ð System ï the fingerprint data relating to all or at least the index fingers, and, if those are missing, the prints of all other fingers, of aliens Ö third country nationals or stateless persons Õ referred to in paragraph 1.

3. The fingerprint data of an alien Ö third country national or a stateless person Õ as referred to in paragraph 1 shall be transmitted to the Central Unit ð System ï solely for the purpose of comparison with the fingerprint data of applicants for asylum ð international protection ï transmitted by other Member States and already recorded in the central database ð Central System ï.

The fingerprint data of such an alien Ö third country national or a stateless person Õ shall not be recorded in the central database ð Central System ï, nor shall they be compared with the data transmitted to the Central Unit ð System ï pursuant to Article 8(2) 14(2).

4. As regards the comparison of fingerprint data transmitted under this Article with the fingerprint data of applicants for asylum ð international protection ï transmitted by other Member States which have already been stored in the Central Unit ð System ï, the procedures provided for in Article 4(3) (5) and (6) 9(3) and (5) as well as the provisions laid down pursuant to Article 4(7) shall apply.

5. Once the results of the comparison have been transmitted to the Member State of origin, the Central Unit shall forthwith:

(a) erase the fingerprint data and other data transmitted to it under paragraph 1; and

(b) destroy the media used by the Member State of or