Summary of the Opinion of the European Data Protection Supervisor on the New pact on Migration and Asylum

(The full text of this Opinion can be found in English, French and German on the EDPS website www.edps.europa.eu)

(2021/C 99/08)

On 23 September 2020, the European Commission presented the New Pact on Migration and Asylum encompassing five legislative proposals: i) an amended Proposal for a Eurodac Regulation; ii) an amended Proposal for Asylum Procedure; iii) a Proposal for an Asylum and Migration Management Regulation; iv) a Proposal for a Screening Regulation; v) a Proposal for a Crisis and Force Majeure Regulation. It also includes a number of non-legislative initiatives.

The EDPS acknowledges the need for a more effective management of migration and asylum. At the same time, as stated in the EDPS Strategy 2020-24, data protection is one of the last lines of defence for vulnerable individuals, such as migrants and asylum seekers approaching the EU external borders. Therefore, the EDPS considers that the proposed comprehensive approach must be based on full respect to the fundamental rights of persons who seek international protection and other migrants, including their right to data protection and privacy.

In general, the EDPS considers that an in-depth fundamental rights and data protection impact assessment should be carried out. He is also of the view that the legislative proposals should clearly allocate the respective responsibilities of the different actors involved for processing personal data. In addition, taking into account the fact that most of the proposals in the New Pact on Migration and Asylum build upon the proposals to reform the Common European Asylum System from 2016, the EDPS considers that the recommendations in his Opinion 07/2016 on the first reform package on the Common European Asylum System, in particular those on Eurodac, remain fully valid.

More specifically, with regard to the amended Proposal for a Eurodac Regulation, the EDPS recommends that the authorities of Member States and the Union bodies continue to be able to see only the data that is relevant for the performance of their specific tasks, even if the data sets are linked in a sequence. The EDPS also recommends that the amended proposal explicitly introduces the single model of coordinated supervision in line with Article 62 of the EUDPR. The EDPS also recommends that before the start of the operational use of the modified system, the security framework for the Eurodac’s business and technical environment is properly updated and that the proposal clarifies what data would be stored in the Common Identity Repository and in the Eurodac Central System, respectively.

With regard to the Proposal for a Screening Regulation, the EDPS underlines that accuracy of the information processed is of key importance and that the right to rectify and/or supplement the personal data of third country nationals should be ensured in all cases. Furthermore, the EDPS considers that the proposal remains very general when it comes to the methods that can be used to gather data provided by or obtained from the third-country national for their identification or verification, especially taking into account the wide range of practices used at national level, with different degrees of intrusiveness and efficacy. The EDPS also recommends clarifying the purpose and modalities related to the processing of personal data for verifying whether the third country nationals constitute a risk to security.

The Opinion provides for some additional recommendations related to data protection that should also be taken into consideration in the legislative process.

1. INTRODUCTION AND BACKGROUND

1. The European Commission presented the New Pact on Migration and Asylum on 23 September 2020 ( 1 ) . It is one of the key policy initiatives of the Commission and has been envisaged in its Work Programme, published on 29 January 2020, under the fifth priority – ‘Promoting our European Way of Life’ ( 2 )

2. The New Pact on Migration and Asylum consists of several legislative proposals as well as non-legislative instruments. It builds upon the Commission proposals to reform the Common European Asylum System (CEAS) presented by the Commission in 2016 and 2018, on which the Parliament and the Council have already found tentative political agreement but have not concluded the negotiations yet.

3. In this context, the Commission presented two amended and three new legislative proposals: — an Amended proposal for a Regulation of the European Parliament and of the Council on the establishment of ‘Eurodac’ for the comparison of biometric data for the effective application of Regulation on Asylum and Migration Management (hereinafter ‘amended Proposal for a Eurodac Regulation’) (3), — an Amended proposal for a Regulation of the European Parliament and of the Council establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU (hereinafter ‘amended Proposal for Asylum Procedure’) (4), — a Proposal on asylum and migration management and amending Council Directive 2003/109/EC and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund] (hereinafter the ‘Proposal for an Asylum and Migration Management Regulation’) (5), — a Proposal for a Regulation of the European Parliament and of the Council introducing a screening of third country nationals at the external borders and amending Regulations (EC) 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817 (hereinafter the ‘Proposal for a Screening Regulation’) (6), — a Proposal for a Regulation of the European Parliament and of the Council addressing situations of crisis and force majeure in the field of migration and asylum (hereinafter the ‘Proposal for a Crisis and Force Majeure Regulation’) (7). In addition, the new Pact includes the following non-legislative initiatives: — a new recommendation on Migration Preparedness and Crisis Blueprint (8), — a new recommendation on Resettlement and Complementary pathways (9), — a new recommendation on Search and Rescue Operations by Private Vessels (10), — a new guidance on the Facilitators Directive (11).

4. The EDPS was consulted by the Commission informally on 27 July 2020 on the amended Proposal for a Eurodac Regulation and communicated his informal comments to the Commission in August. The EDPS welcomes the fact that his views have been sought at an early stage of the procedure and encourages the Commission to continue with this good practice.

5. The EDPS was subsequently formally consulted by the Commission on 5 October 2020 on the amended Proposal for a Eurodac Regulation. However, the consultation does not cover the other elements of the Migration and Asylum package, adopted on 23 September 2020, that might also have impact on the right to data protection and thus fall within the scope of Article 42(1) of Regulation (EU) 2018/1725 (hereinafter the ‘EUDPR’).

6. At the same time, the amended Proposal for a Eurodac Regulation refers to a number of other legislative proposals, part of the New Pact on Migration and Asylum, such as the Regulation on Asylum and Migration Management, Asylum Procedure Regulation, Screening Regulation, etc. Therefore, while the primary focus of this opinion is the amended Proposal for a Eurodac Regulation, it contains also certain comments and recommendations on the other legislative proposals.

5. CONCLUSIONS

The EDPS understands the need for a more coherent and effective management of migration and asylum. At the same time, as already stated in the EDPS Strategy 2020-24, ‘[d]ata protection is one of the last lines of defence for vulnerable individuals, such as migrants and asylum seekers approaching EU external borders.’. Therefore, the proposed comprehensive approach must be based on full respect to the fundamental rights of persons who seek international protection and other migrants, including their right to data protection and privacy.

36. To this end, the EDPS, in his advisory role, provides in this Opinion some specific recommendations in terms of data protection and privacy. While the primary focus of this Opinion is the amended Proposal for a Eurodac Regulation, it also contains a number of comments and recommendations on the other legislative proposals. The comprehensive approach envisaged by the New Pact on Migration and Asylum, together with the potential impact of such framework on fundamental rights, including on privacy and data protection, call for an in-depth fundamental rights and data protection impact assessment.

37. In addition, the integrated approach of the New Pact on Migration and Asylum assigns specific tasks to a variety of actors at national and Union level, including EU agencies, such as the European Border and Coast Guard (Frontex) and the European Asylum Support Office (EASO). Based on his experience of supervising the EU large-scale IT systems, the EDPS considers that the legislative proposals should clearly allocate the respective responsibilities for processing personal data, which is essential for the attribution of controllership pursuant to the EUDPR and the GDPR. Regarding the amended Proposal for a Eurodac Regulation, the EDPS considers that that the recommendations made in his Opinion 07/2016 on the first reform package on the Common European Asylum System (12), in particular those on Eurodac, remain fully valid. In addition, with regard to the novelties introduced by the amended Proposal for a Eurodac Regulation, the EDPS considers important to ensure that the authorities of the Member States and the Union bodies continue to be able to see only the data that is relevant for the performance of their specific tasks, even if the data sets are linked in a sequence. Furthermore, the EDPS recommends to explicitly introduce the single model of coordinated supervision in line with Article 62 of the EUDPR. The EDPS also recommends that before the start of the operational use of the modified system, the security framework for the Eurodac’s business and technical environment is properly updated and that the proposal clarifies what data would be stored in the Common Identity Repository (CIR) and in the Eurodac Central System, respectively.

38. Regarding the other proposals, and in particular the Proposal for a Screening Regulation, the EDPS underlines that accuracy of the information processed is key and that the right to rectify and/or supplement the personal data of third country nationals should be ensured in all cases. Furthermore, the EDPS considers that the proposal remains very general when it comes to the methods that can be used to gather data from the third-country nationals for their identification, especially taking into account the wide range of practices used at national level, with different degrees of intrusiveness and efficacy. The EDPS also recommends clarifying the purpose and modalities related to the processing of personal data for verifying whether the third country nationals constitute a risk to security.

39. Finally, the EDPS notes that the new legislative proposals either lack entirely any substantive legal provisions on personal data protection, or the proposed texts are not fully in line with the relevant Union law. Therefore, the EDPS recommends that the legislative proposals as a minimum refer explicitly to the relevant Union legal framework on data protection, i.e. GDPR, EUDPR and, if relevant, Directive (EU) 2018/680.

Brussels, 30 November 2020. Wojciech Rafał WIEWIÓROWSKI

(1) COM(2020) 609 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?qid=1601287338054&uri=COM:2020:609:FIN

(2) COM(2020) 37 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0037

(3) COM(2020) 614 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:614:FIN

(4) COM(2020) 611 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:611:FIN

(5) COM(2020) 610 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:610:FIN

(6) COM(2020) 612 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:612:FIN

(7) COM(2020) 613 final, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:613:FIN

(8) Commission Recommendation (EU) 2020/1366 of 23 September 2020 on an EU mechanism for preparedness and management of crises related to migration (Migration Preparedness and Crisis Blueprint), https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020H1366

(9) Commission Recommendation (EU) 2020/1364 of 23 September 2020 on legal pathways to protection in the EU: promoting resettlement, humanitarian admission and other complementary pathways, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32020H1364

(10) Commission Recommendation (EU) 2020/1365 of 23 September 2020 on cooperation among Member States concerning operations carried out by vessels owned or operated by private entities for the purpose of search and rescue activities, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2020.317.01.0023.01.ENG&toc=OJ%3AL%3A2020%3A317%3ATOC

(11) Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence, C(2020) 6470 final.

(12) European Asylum System (Eurodac, EASO and Dublin regulations).