WRITTEN QUESTION P-0022/00

by Bertel Haarder (ELDR) to the Commission

(13 January 2000)

Subject: European register of fingerprints of asylum-seekers (Eurodac)

In view of the Danish reservation on judicial cooperation (Edinburgh agreement), will the Commission state whether or not Denmark may participate in Eurodac, the common fingerprint register?

What conditions does Denmark have to meet if it is to participate in Eurodac on an equal footing with the other countries taking part?

Can the Commission confirm that Denmark may participate in Eurodac only if it fully accepts the jurisdiction of the Court of Justice?

Answer given by Mr Vitorino on behalf of the Commission

(29 February 2000)

The Commission's proposal for a Eurodac regulation(1) has its legal basis in Title IV of the EC Treaty. The Treaty of Amsterdam contains a Protocol on the position of Denmark which governs Denmark's position in relation to measures proposed pursuant to Title IV(2).

Article 1 of the Protocol provides that Denmark shall not take part in the adoption of measures proposed under Title IV. Article 2 provides that no measure adopted under Title IV shall be binding on or applicable in Denmark. Under the provisions of the Treaty as they apply at present, Denmark will therefore not take part in the adoption of the Eurodac regulation and will not be bound by its provisions.

Article 5 of the Protocol is concerned with Denmark's position in relation to proposals or initiatives to build upon the Schengen acquis under the provisions of Title IV of the Treaty. It allows Denmark to decide to implement in its national law a Council decision to build on the Schengen acquis, and in so doing to create an obligation in international law between Denmark and the Schengen States(3) and, where applicable, the United Kingdom and Ireland. The draft Eurodac regulation can not, however, be regarded as an initiative to build on the Schengen acquis, and Article 5 is therefore not applicable.

Article 7 of the Protocol allows Denmark, in accordance with its constitutional requirements, to inform the other Member States that it no longer wishes to avail itself of all or part of the protocol, in which case it would then apply in full all relevant measures then in force. Denmark has not so far announced that it intends to use this procedure. The use of the Article 7 mechanism would however allow Denmark to participate in Eurodac on an identical footing with the other Member States.

The Council has drawn up a draft declaration to the Eurodac regulation to the effect that it would be interested in the conclusion of an agreement between the Community and Denmark, allowing the latter to

be associated with the operation of the Eurodac system, whilst respecting the Protocol on the position of Denmark. The Commission is considering whether a mechanism for Danish participation based on an agreement between the Community and Denmark would be fully consistent with the provisions of the Treaties, including the Protocol on the position of Denmark. This requires intensive legal scrutiny and is certainly an unprecedented situation. Any approach which placed Denmark in a position not equivalent to that of the other Member States, for instance in relation to the jurisdiction of the Court of justice, would however be unacceptable. The Commission is continuing to reflect on this matter.

(1) Proposal for a Council Regulation concerning the establishment of Eurodac for the comparison of the fingerprints of applicants for asylum and certain other aliens, COM(1999) 260 final, Brussels, 26.05.1999.

(2) Protocol on the position on Denmark annexed to the Treaty establishing the European Community and the Treaty on European Union.

(3) The states referred to in Article 1 of the Protocol integrating the Schengen acquis into the framework of the European Union.