EN    EN EN 
 
EN    EN  COMMISSION OF THE E UROPEAN COMMUNITIES 
Brussels, 10.9.2009 
SEC(2009) 937 
COMMISSION STAFF WORKING DOCUMENT 
 
Accompanying document to the 
Amended proposal for a  
 
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
 
concerning the establishment of 'EURODAC' fo r the comparison of fingerprints for the 
effective application of Regu lation (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] 
 
(Recast version) 
 
and to the 
 
Proposal for a 
 
COUNCIL DECISION 
 
on requesting comparisons with EURODAC data by Member States' law enforcement 
authorities and Europol for law enforcement purposes 
   
SUMMARY OF THE IMPACT ASSESSMENT  
   
{COM(2009) 342 final} 
{COM(2009) 344 final} 
{SEC(2009) 936} 
 
EN 2   EN 1. PROBLEM  DEFINITION 
The conclusions of the Mixed Committee of th e JHA Council of 12-13 June 2007 considered 
that, in order to fully achieve the aim of impr oving security and to enhance the fight against 
terrorism, access under certain conditions to ‘Eur odac’ should be granted to Member States' 
police and law enforcement authorities, as well as Europol, in the cour se of their duties in 
relation to the prevention, detection and investig ation of terrorist offe nces and other serious 
criminal offences. It therefore invited the Commission to present as  soon as possible the 
necessary proposals to achieve this aim. 
The absence of the possibility for law enforcem ent authorities to access ‘Eurodac’ to combat 
terrorism and other serious crime was also reported as a shortcom ing in the Commission 
Communication to the Council and the European  Parliament on improved effectiveness, 
enhanced interoperability and synergies among Eu ropean databases in the area of Justice and 
Home Affairs of 24 November 20051.  
‘Eurodac’ is a Community-wide system for th e comparison of the fingerprints of asylum 
applicants. It was established by the ‘Euroda c’ Regulation which came into force on 15 
December 2000 and which serves all the States that implement the Dublin acquis . The 
purpose of ‘Eurodac’ is to facilitate the application of the Dublin Regulation2, which is aimed 
at establishing a clear and workable mechanism for determining responsibility for asylum 
applications, to prevent asylum shopping a nd to guarantee effective access to relevant 
procedures. This purpose is achieved by a system of fingerprint identific ation of third country 
nationals who fall under the scope of the Regul ation under strictly defined and harmonised 
rules in relation to the storage, comp arison and deletion of fingerprints.  
The database contains only the following inform ation: the fingerprints, the Member State of 
origin, place and date of application for asylum, sex, the reference number used in the Member State of origin, the date on which finge rprints were taken and the date on which they 
were submitted to the Central Unit. 
In law enforcement, while Member States su ccessfully access asylum seekers fingerprints on 
a national level, it seems that access to asylum  seekers fingerprint data bases of other Member 
States is more problematic. 
Even though there are currently some EU instruments that perm it consultation of fingerprints 
and other law enforcement data held by one Member State by another Member State, a 
structural information and verification gap  was identified as regards cross-border exchange of 
data of asylum seekers, which results in timely and burdensome procedures  for such 
cooperation. 
The structural information and ve rification gap is identified in the fact that currently no single 
system exists that is accessible to law enforcement authorities which enables to determine the Member State that has information on an asylum  seeker. If a query of a national AFIS using 
the Council Decision 2008/615/JHA on the st epping up of cross-border cooperation, 
particularly in combating terrorism and cross- border crime (Prüm Deci sion) does not result in 
a “hit”, it is not certain that no information is  available in a Member State. Therefore, law 
enforcement authorities will not only remain ignorant about whether or not information is 
available at all and in which Member State, but often also whether this information relates to 
the same person. Law enforcement officials will  only know whether information is available 
                                                
 
1 COM(2005) 597, p. 6.  
2 OJ L 50, 25.2.2003, p. 1. 
 
EN 3   EN in a database of another Member State if their judicial authorities issue a request for mutual 
legal assistance requesting the other Member States to query their databases and send the relevant information under the Convention on  Mutual Assistance in Criminal Matters
3. 
Framework Decision 2006/960/JHA on simplifyi ng the exchange of information and 
intelligence between law enforcem ent authorities (FWD 2006/960)  could only be used when 
the Member States which holds the data of an asylum seeker is known. 
Cooperation is further hampered by the fact that  current instruments do not make it possible to 
exchange such information in a timely and non-burdensome manner. If a Prüm search does 
not produce a hit, the only ava ilable choice for a Member State is to issue mutual legal 
assistance requests to all othe r Member States. Without effici ent means to determine whether 
or not information is available in another Member State the action of public authorities 
becomes prohibitively expensive, is time c onsuming and hence seriously jeopardises the 
application of the law. Timely availability of in formation is particularly relevant to avert harm 
to persons or goods, or to prevent damage to cr itical infrastructures. Rapid access is also 
necessary to forestall destruc tion of evidence of a serious crime or attempt to commit a 
serious crime.  
2. ANALYSIS  OF SUBSIDIARITY 
The right of the EU to act in this field is en shrined in Title VI of the Treaty on European 
Union on Police and Judicial Coope ration in Criminal Ma tters. The current EU instruments on 
police cooperation are insufficient to facil itate cooperation between  Member States in 
consulting and exchanging fingerprints of asylum seekers. Without appropriate measures at an 
EU level, law enforcement authorities will not be able to overcome the existing structural 
information and verification gap.  
Cross-border crime is increasing and presents one of the most serious threats to our society as 
reported by Europol. Without adequate and e fficient cooperation between law enforcement 
authorities of Member States, including access to  relevant information held in other Member 
States, it will be very difficult, if not impossi ble, for these authorities to fight such cross-
border crime effectively. Because of the very nature of these crimes, instruments on an EU 
level are required to set the ground fo r cooperation between Member States. 
In addition, action at the EU level will help to  ensure harmonised provisions on safeguarding 
data protection, whereas if Member States are left to legislate inde pendently, a harmonised 
level of safeguards will be difficult to achieve.  
Even though the potential number of asylum s eekers that might be i nvolved in cross-border 
terrorist offences or other serious criminal offen ces might not be very large, the mere fact of 
the gravity of such offences and their impact on society an d every day life should provide 
adequate justification for action on an EU level. 
3. OBJECTIVES  OF THE  INITIATIVE 
The general objectives:  
• The prevention, detection and investigati on of terrorism and other serious crime 
• The protection of victims of terro rism and other serious crime. 
                                                 
3 Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European 
Union the convention on mutual assistance in crim inal matters between the Member States of the 
European Union (OJ C 197, 12.7.2000, p. 1). 
 
EN 4   EN Specific objectives: 
• Increasing security in the EU by facilitating the verification of the identity of certain 
categories of third country nationals and clos ing the structural information gap and by 
ensuring timely and less burdensome procedures for verification of the identity of such 
persons. 
• Facilitating the identification of victims using the same means. 
The above policy objectives should be pursued  while ensuring that fundamental rights are 
always protected, especially the right to asylum and the right to  protection of personal data, by 
imposing conditions and safeguards for the access. 
4. POLICY  OPTIONS 
4.1. Refraining from addressing the issue on  an EU level – Main taining the status 
quo (Policy Option A) 
This policy option entails no action to be taken by the EU. The identification and verification 
processes would therefore remain lengthy; the procedures would remain disproportionally 
burdensome and their outcome would remain uncertain.  
4.2. Regulating the access to 'Eurodac' for law enforcement purposes (Policy Option 
B) 
This policy option establishes the basis for conditional access by Member States' law 
enforcement authorities as well as Europol to ‘Eurodac’ on the basis of an amendment of the 
'Eurodac' Regulation and by regulating the actual access and use of the personal data held in 
'Eurodac' in an accompanying proposal fo r a Council Decision. A hit reply would be 
accompanied with the types of data containe d in ‘Eurodac’. Requests for supplementary 
information following a hit would not be re gulated in the proposed  Council Decision but 
rather be covered by existing instrument s, like the FWD 2006/960 and mutual legal 
assistance.  
There are 2 possible sub-options: (i) to provide search possibilitie s of 'Eurodac' merely on the 
basis of fingerprints, or (ii) on the basis of fing erprints and latents. Currently, 'Eurodac' does not 
provide the possibility of searching on the basis of  latents and this feat ure would have to be 
added on the 'Eurodac' system. However, search ing on the basis of latents is a fundamental 
function for law enforcement case s, where in crime scenes ther e is usually only the possibility 
to recover latents. 
4.3. Regulating the access to ‘Eurodac’ for law enforcement purposes as well as the 
exchange of supplementary information on asylum seekers (Policy Option C) 
This policy option establishes the basis for conditional access by Member States' law 
enforcement authorities as well as Europol to ‘Eurodac’ on the basis of an amendment of the 
'Eurodac' Regulation and by regulating the actual access and use of the personal data held in 
'Eurodac' in an accompanying proposal fo r a Council Decision. A hit reply would be 
accompanied with the types of data contained in  ‘Eurodac’. The proposal would also establish 
a specific process whereby, following a hit,  the requesting Member  State can request 
supplementary information from the Member State of origin about the asylum seeker to whom 
the fingerprint belong, rather that making such a request using existing instruments as in the 
case of Policy Option B.  
There are 2 possible sub-options, as  in the Policy Option B: (i) to  provide search  possibilities of 
'Eurodac' merely on the basis of fingerprints, or  (ii) on the basis of fingerprints and latents. 
 
EN 5   EN 4.4. Regulating access to national data ab out asylum seekers for law enforcement 
purposes (Policy Option D) 
This policy option would create  a decentralised network mechanism that would allow each 
Member State to search the national asylum seek ers databases of all the other Member States 
in an automated manner . Member States should provide fo r separate national databases which 
would be used only for law enforcement, as we ll as for a separate mechanism to network the 
databases of all the Member States together.  This new network would model the content of 
the data that is recorded in 'Eurodac' as well as the functions of 'Eurodac' itself. This model 
would be similar to the search hit/no hit mode l that was established by the Prüm Decision. 
Access to supplementary information would be achieved by special provisions in the Eurodac 
Decision or by using existing instruments.  
The costs of this policy option would be disp roportional. It would en tail the creation of 
special databases in each Memb er State and the setting up of a complicated network that 
would connect these databases of  all Member States together. It would seem unnecessary and 
inappropriate to create an entirely new, comp licated technical architecture for the only reason 
to enable law enforcement author ities to search for informati on already held in an existing 
database. For these reasons, this policy opti on is not considered proportionate and is 
dismissed at this point. 
5. ASSESSMENT  OF IMPACTS 
The impacts of the proposed policy options are assessed under the following criteria: 
– Increasing security in the EU by facilitating the verification of the identity of certain 
categories of third country nationals and closing the structural information gap.  
– Increasing security in the EU and facilitati ng the identification of victims by ensuring 
timely and less burdensome procedures for verification of the identity. 
– Fundamental rights impacts, impact on the right to asylum and to the protection of personal 
data. 
– Implementation costs for Member States' administrations. 
– EU budget. 
Policy Options B and C would have  an equivalent great positive impact in increasing security 
in the EU and the same impacts on fundamental rights. However, the two Policy Options differ as regards implementation costs for Memb er States' administrations, with Policy Option 
C being more expensive. Policy Option C would entail additional costs for creating a new administrative and technical architecture for th e exchange of the supplementary information . 
Such costs may be considerable , since Member States need to ensure that the additional 
information has to be made available within a ce rtain timeframe. It will also be necessary to 
ensure timely availability in cases of urgencies.  
6. COMPARISON
 OF OPTIONS 
The "no action" policy option does not improve s ecurity in the EU. Maintaining the status quo 
would mean that law enforcemen t authorities will continue to remain ignorant about whether 
or not information on a fingerprint  is available at all, in which Member State information is 
available, and whether informa tion relates to the same person, and will remain unable to 
obtain such data. The alternativ e of requesting hypothetical mutu al legal assistance from all 
Member States is too timely and too bur densome to present a realistic option.  
 
EN 6   EN The Policy Options B and C on introducing th e necessary proposals to allow access to 
'Eurodac' by law enforcement authorities possess a clear advantage in that they assist in increasing security in the EU, by facilitating the verification of the identity of certain third 
country nationals and closing the structural information gap, ensuring timely and less 
burdensome procedures for verification of the identity of such persons and ensuring the 
possibility to search 'Eurodac' on the basis of latents.  
Even though the achievement of the objectives would be more effective under Policy Option 
C than Policy Option B, it is considered that the costs of implementing Policy Option C would 
be high in relation to Option B. In addition, currently there are no indications that FWD 
2006/960 would not be a sufficient instrume nt for the exchange of supplementary 
information.  
Policy Option B would still render the exchange  of supplementary information possible and 
simple, while respecting the exceptions and co nditions that are in pl ace about the general 
exchange of law enforcement information. There seems to be no reason to create special rules to regulate the exchange of information on asyl um seekers. Furthermore, there seems to be no 
reason for which a new (costlier) organisational a nd technical architecture is established for 
the exchange of the supplementary informa tion, when current systems are adequate and 
appropriate for this purpose. It  is the prefe rred policy option. 
This policy option could have several sub-opti ons. The choice between these sub-options is 
not made in this impact assessment and is  left to the politic al decision makers.  
One such sub-option relates to the scope of th e instrument. The scope would be limited to the 
prevention, detection and investigat ion of terrorist and other seri ous criminal offences. It is 
being suggested that the term “ser ious criminal offences” could refe r: (i) to the list of serious 
criminal offences as described in the Europ ean Arrest Warrant Fram ework Decision, as per 
the preference of the Member States, (ii) it co uld be a more limited list of offences which 
would be adopted specifically for this instrume nt and which would exclude any kind of crime 
which might be specifically relevant to asylum seekers, like illegal entr y, as per the preference 
of the civil liberties experts, or (iii) it could be the list of crimes of the European Arrest 
Warrant with some special guarantees for crimes  specifically relevant to asylum seekers.  
Another sub-option could relate to the type of public authorities that co uld have access to the 
‘Eurodac’ data. Such authorities should be authorities responsible for the prevention, 
detection and investigation of terrorist offences and serious crime. The designation of such 
authorities could be (i) totally at the discretion of the Member States, or (ii) subject to the 
approval by the Commission. In the latter ca se the Member States should inform the 
Commission.  
A third set of sub-options relates to the dur ation of the instrument. The core difference 
between the three sub-options is whether or not they include a time-limit (sunset clause) and, 
if so, the duration of that limit.  
7. MONITORING
 AND  EVALUATION 
Each Member State will carry out annual eval uations of the effectiveness of consulting 
‘Eurodac’ and the Commission will review the operation of the access to Eurodac after five 
years from its entry into force and submit a report to the Council.