Commission working document on the feasibility of an index of third-country nationals convicted in the European Union
Date: 2006-07-04
Institutions: European Commission
Subjects: European Union, European judicial area, area of freedom, security and justice, criminal record, exchange of information, foreign national, judicial cooperation in criminal matters in the EU, penalty

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 4.7.2006 
COM(2006) 359 final 

COMMISSION WORKING DOCUMENT 

on the feasibility of an index of third-country nationals convicted in the European Union 

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COMMISSION WORKING DOCUMENT 

on the feasibility of an index of third-country nationals convicted in the European Union 

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This working paper forms part of the preparatory work which is necessary in order to 
assess  the  impact  of  any  future  legislative  proposal  on  the  creation  of  an  index  of 
third-country nationals (or persons whose nationality is not known) convicted in the 
EU.  The  preparation  of  such  a  proposal  is  only  one  aspect  of  the  work  being 
undertaken  at  EU  level  in  order  to  improve  access  to  information  on  criminal 
convictions. The first part of this working paper sets out the other aspects of the work 
in this area. The second part presents the main conclusions of a feasibility study on 
the  specific  issue  of  the  index.  Finally,  the  third  part  of  this  paper  outlines  the  key 
issues which need to be discussed in more depth. The answers to the questionnaire 
(annexed to of this  paper) should  enable this debate to take place on the basis of a 
better understanding of the situation in the Member States.  

Any  legislative  proposal  in  this  field  will  be  subject  to  an  in-depth  impact 
assessment. In accordance with the Communication of the Commission of 27 April 
20051,  one  of  its  objectives  will  be  to  assess  its  impact  on  fundamental  rights, 
especially the right to privacy and the protection of personal data as laid down in the 
Charter of Fundamental Rights. 

BACKGROUND 

The  need  to  improve  the  quality  of  information  exchanged  on  criminal  records  has 
become  a  priority  for  the  EU.  The  Hague  Programme,  which  was  adopted  in 
November 20042, called on the Commission to put forward proposals in this regard 
and  these  objectives  are  set  out  in  the  joint  action  plan  which  was  adopted  by  the 
Commission and the Council on 2/3 June 2005. 

Exchanges of information on convictions are currently governed by Articles 13 and 
22  of  the  1959  European  Convention  on  Mutual  Assistance  in  Criminal  Matters 
(Council  of  Europe)3.  These  provisions  govern  the  conditions  for  communicating 
extracts  from  a  criminal  record  between  the  parties  to  the  Convention  and  require 
each party to notify any other party of all convictions in respect of the nationals of 
the  latter  party.  This  exchange  should  take  place  at  least  once  a  year.  In  practice 
however these mechanisms do not yield reliable results and the information held by 
the state of nationality is rarely complete. Moreover, the mechanism for centralising 
information  in  the  state  of  nationality  provided  for  in  Article  22  of  the  Convention 
does not apply to nationals of countries which are not party to the 1959 Convention. 
In the context of the EU, as far as those “third-country” nationals are concerned, it is 

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Communication  from  the  Commission  on  Compliance  with  Charter  of  Fundamental  Rights  in 
Commission legislative proposals. Methodology for systematic and rigorous monitoring. COM (2005). 
172 final of 27.04.2005. 
OJ C 53, 3.3.2005, p.1. 
http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG 

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not  possible  to  determine  whether  there  are  previous  convictions  in  other  Member 
States  without  consulting  all  of  those  states.  For  example,  in  circumstances  where 
Germany  prosecutes  a  third-country  national,  it  has  no  way  of  knowing  that  the 
accused person has already been convicted of similar offences in Denmark without 
consulting 24 Member States.  

The  shortcomings  of  the  existing  mechanisms  are  explained  in  the  White  Paper 
which was adopted by the Commission on 25 January 20054. After having analysed 
these deficiencies, the White Paper put forward proposals for improving the current 
situation. In particular, it proposed relying on the Member State of conviction instead 
of  the  Member  State  of  nationality  for  obtaining  complete  and  reliable  information 
on  an  individual’s  criminal  record.  This,  however,  requires  setting  up  a  system  to 
enable easy identification of the Member States in which a person has already been 
convicted. With this in mind, the White Paper set out the framework of a future EU 
computerised  system  for  exchanging  information  on  criminal  convictions  which 
would  enable  the  easy  and  reliable  identification  of  the  Member  State  in  which  a 
person has already been convicted. Such a system would rely on the creation of an 
EU index of offenders (limited to personal identification data) and on the networking 
of national criminal records.  

The  proposals  made  in  the  White  Paper  were  discussed  by  the  Justice  and  Home 
Affairs Council of 14 April, which defined the way forward:  

for  the  purposes  of  obtaining  information  on  convictions  handed  down  against  EU 
nationals,  it  was  decided  to  continue  to  rely  upon  the  Member  State  of  nationality. 
This principle is at the core of an interconnection project which is being carried out 
between  Germany,  France,  Spain  and  Belgium  with  a  view  to  networking  their 
criminal records. In order to remedy the shortcomings identified in the White Paper, 
an in-depth reform of existing mechanisms was however necessary and this led to the 
adoption  by  the  Commission  in  December  2005  of  a  proposal  for  a  framework 
decision  on  the  organisation  and  content  of  exchange  of  information  from  criminal 
records between the Member States5. This proposal aims to ensure that the Member 
State of nationality will be in a position to provide exhaustive information in relation 
to  its  nationals’  criminal  records  upon  request  by  another  Member  State.  It  also 
establishes a framework for the development of a computerised system to allow for 
faster  transmission  of  information  on  criminal  convictions  in  a  form  that  Member 
States  can  understand  and  use  more  easily.  The  proposal  incorporates  a  series  of 
improvements introduced by a preliminary decision on criminal records, which was 
proposed  by  the  Commission  in  October  2005  and  adopted  by  the  Council  on  21 
November 20056.  

as  explained  above,  it  is  not  possible  to  rely  on  the  State  of  nationality  to  obtain 
exhaustive  information  about  convictions  handed  down  in  the  EU  against  third-
country  nationals  (or  persons  whose  nationality  is  not  known).  For  those  persons, 
Member States supported the solution proposed in the White Paper, i.e. the creation 

White  Paper  on  exchanges  of  information  on  convictions  and  the  effect  of  such  convictions  in  the 
European Union, COM (2005) 10. 
COM(2005) 690. 
Council Decision 2005/876/JHA of 21 November 2005 on the exchange of information extracted from 
the criminal record, OJ L 322, 9.12.2005, p. 33. 

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of an index of convicted persons limited to third-country nationals and called on the 
Commission to bring forward legislative proposals in this regard. At the end of 2004 
and in the course of 2005, an initial feasibility study was carried out on the basis of 
the solution proposed in the White Paper. The results of this study were presented to 
the  Member  States  in  an  expert  meeting  which  took  place  on  14  March  2005. 
Following  the  Council  of  14  April  2005,  the  study  was  supplemented  by  further 
examination of the specificities of an index limited to third country nationals.  

- 

the Council of 14 April also reaffirmed the need to base exchanges of information on 
convictions  on  bilateral  communications  between  Member  States  criminal  records’ 
systems.  In  this  regard,  future  work  will  encompass  the  development  of  an  EU 
standardised  format  for  the  exchange  of information, in  order to overcome existing 
difficulties both in terms of language and in terms of differences in legal systems. A 
study  covering  this  aspect  is  currently  being  carried  out.  This  aspect  of  the  work 
covers both EU nationals and “third-country” nationals.  

2. 

ROLE  AND  TECHNICAL  FEASIBILITY  OF  AN  INDEX  LIMITED  TO  THIRD-COUNTRY 
NATIONALS CONVICTED IN THE EU  

2.1. 

Role of the limited index 

7. 

The role of the index is very specific: it is to enable a Member State which requires 
information  about  a  person’s  criminal  record  to  receive  immediate  notification  of 
which other Member State(s) hold(s) information about this person. In order for the 
system to function, the following steps should be followed.  

the  nationality 

is  unknown).  Only 

–  the  Member  State  of  conviction  should  provide  the  index  with  information 
enabling  the  identification  of  convicted  third  country  nationals  (or  persons  for 
whom 
the 
identification  of  the  convicted  person  are  communicated  to  the  index,  not  the 
content  of  the  criminal  record  itself.  There  should  be  an  update  mechanism  to 
allow  for  the  deletion  of  obsolete  information.  The  decision  to  have  an  index 
limited to third-country nationals (and persons whose nationality is unknown) will 
require individual Member State to be in a position to communicate to the index 
the identities of these persons only.  

those  elements  enabling 

–  the national criminal record system which wishes to know whether a third-country 
national  has  a  criminal  record  may  then  consult  the  index  on  the  basis  of  the 
person’s identifiers. The database will answer with a simple "hit" and identify in 
which Member State(s) the person has a criminal history.  

–  requests for extracts of criminal records are made bilaterally between the authority 
responsible  for  criminal  records  and  its  counterpart  from  another  Member  State 
which has been identified as holding information on the third-country national in 
question.  

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2.2. 

Results of the study on the feasibility of a limited index 

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The  results  of  the  feasibility  study7  show  that  there  is  little  difference  between  a 
European  Register  of  Convicted  Persons  (hereafter  “ERCP”)  with  a  full  index  or 
with an index limited to third country nationals as far as the complexity of the system 
is  concerned.  There  is  no  fundamental  difference  with  regard  to  the  functional  and 
the  technical  framework.  There  is  little  impact  on  the  organisation  required  at 
national  level,  on  the  viability  of  the  proposed  infrastructure  linking  the  central 
system  (CS)  to  the  national  interface  (NI)  and  on  the  proposed  mechanisms  for 
bilateral information exchanges.  

The  main  difference  between  the  two  versions  is  in  the  sizing  of  the  system.  A 
limited index will require less storage and processing capacity than a full index. The 
study concludes that the costs for a limited-index ERCP are likely to be about 40% 
lower  than  those  for  a  full-index  ERCP.  The  initial  study  had  estimated  that  the 
development  of  an  ERCP  based  on  a  full-index  would  cost  approximately  €  4 
million8.  These  cost  differences  are  mainly  due  to  differences  in  hardware  and 
network infrastructure requirements as a limited index will require less storage space, 
lower computing power and less bandwidth.  

It should be remembered that these estimations only cover the provision of an index 
to  connect  to  a  network  and  the  provision  of  a  secure  communication  channel. 
Member States will, however, be responsible for adjusting their own IT infrastructure 
so that it can communicate with the index (on the basis of interfacing specifications 
to be provided) and for developing an end-user interface which suits their needs. The 
study does not assess these costs9.  

KEY ISSUE: HOW TO ENSURE EFFICIENT FUNCTIONING OF THE LIMITED INDEX?  

It would be pointless to set up an index system which would deliver information that 
can  not  be  relied  upon.  Efficient  functioning  of  the  index  requires  there  to  be  a 
sufficient degree of certainty regarding the data identifying the person who is listed 
in  the  index.  The  absence  of  a  sufficient  degree  of  certainty  would  lead  to 
unacceptable situations. First, certain convictions might not be found and the system 
would  therefore  fail  to  meet  its  objective  of  providing  exhaustive  information. 
Second,  convictions  might  be  attributed  by  mistake  to  a  person  other  than  the  one 

Available upon request. 
In  order  to  benefit  from  economies  of  scale,  the  assumption  made  in  the  feasibility  study  is  that  the 
index would be developed on the basis of the technical platform used for the SIS II, even though both 
systems would be different, with strictly separated data and access. The study assesses first the costs of 
a scenario without biometrics storage for an amount of € 4 million and then a scenario with biometrics 
storage  for  2  additional  millions.  The  implementation  of  searching  capacity  will  require  a 
supplementary expenditure. 
The  Commission’s  communication  COM(2005)122  includes  a  proposal  for  a  Council  decision 
establishing  for  the  period  2007-13  the  specific  programme  “Criminal  Justice”  as  part  of  the  general 
programme “Fundamental Rights and Justice”. This proposal would, if adopted, provide the legal basis 
to  permit  support  from  the  EU  budget  for  the  development  and  implementation  of  a  European 
computerised  system  of  exchange  of  information  on  criminal  records,  which  could  include  direct 
support for the modernisation of national criminal records. 

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against  whom  they  had  been  handed  down  -  this  situation  would  be  particularly 
detrimental to the person whose identity has been mistaken. 

3.1. 

Existing IT systems at EU level 

12. 

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– 

– 

Currently, there are several large-scale IT systems and ongoing projects at EU level 
which are of relevance in the present context: 

The  Schengen  Information  System  (SIS)  is  an  information  system  that  allows 
competent authorities in the Member States to obtain, through an automatic request 
procedure,  information  related  to  alerts  on  persons  and  property.  In  particular,  it  is 
used in the context of police and judicial cooperation in criminal matters, as well as 
on  national  territories  and  for  external  border  control  and  for  the  issuance  of  visas 
and residence permits. It has been operational since March 1995. The current version 
of SIS does not contain biometrics. The second generation of SIS (SIS II), which will 
integrate the new Member States, will allow the storage of biometric data but not the 
use of biometrics as a search criterion. It will however offer central search facilities 
on individuals’ names which will contribute to a higher accuracy in the searches. It 
will become operational in March 2007.  

The Europol Information System aims to centralise all information available in the 
Member  States  on  organised  crime  including  for  each  individual  (amongst  other 
things):  his/her  identity,  physical  characteristics,  fingerprints,  DNA  profile  and  the 
criminal  offence  in  respect  of  which  he  or  she  appears  in  the  system  (e.g.  on 
suspicion of having committed that offence, following conviction, etc). The Europol 
Information  System  software  has  been  available  in  all  25  Member  States  since  10 
October 2005. Data is entered in the System by each Member State and falls under 
the responsibility of the Europol National Unit.  

On 12 October 2005, the Commission adopted a proposal for a Framework Decision 
on  exchange  of  information  under  the  principle  of  availability10.  The  aim  of  this 
proposal is to make certain types of existing law enforcement information which is 
available  in  one  Member  State  also  available  to  authorities  with  equivalent 
competences  of  other  Member  States  or  Europol.  It  provides  that  available 
information  should  be  shared  either  by  online  access,  or  by  transfer  based  on  an 
'information demand'  after  matching solicited information with index data provided 
by Member States in respect of information that is not accessible online. The types of 
information  covered  include  DNA-profiles,  fingerprints,  ballistics  reports,  vehicle 
registration  information,  telephone  numbers  and  other  communication  data,  and 
names contained in civil registers. In this context, reference should also be made to 
the  Treaty  signed  on  27  May  2005  in  Prüm  between  Germany,  Austria,  the 
Netherlands,  Belgium,  Luxembourg,  Spain  and  France  on  enhancing  cross-border 
cooperation which deals within particular, combating terrorism, cross-border crime, 
and illegal immigration. This instrument, which has not yet been ratified, will inter 
alia introduce far-reaching measures to improve information exchange, especially in 
the field of fingerprints and DNA profiles, such as an index system and direct access 
to national databases. 

10 

Proposal  for  a  Council  Framework  Decision  on  the  exchange  of  information  under  the  principle  of 
availability, COM (2005) 490 of 12.10.2006.  

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– 

– 

The  Visa  Information  System  (VIS)  aims  to  improve  consular  cooperation  and 
consultation between central consular authorities and improve the administration of 
the common visa policy in order to counter threats to internal security and to prevent 
“visa  shopping”.  In  addition  it  aims  to  facilitate  checks  not  only  at  external  border 
checkpoints but also within the territories of the Member States thereby facilitating 
the fight against fraud. Further, it will assist in the identification and return of illegal 
immigrants  and  facilitate  the  application  of  the  “Dublin  II  Regulation  “EC  N° 
343/200311. It will become operational at the end of 2006. VIS will contain biometric 
and  alphanumeric  information  and  will  allow  the  use  of  biometrics  as  a  search 
criterion. On 24 November 2005, the Commission adopted a proposal for a Council 
Decision  concerning  the  access  to  the  VIS  to  authorities  responsible  for  internal 
security and to Europol in the context of police and judicial cooperation in criminal 
matters12.  

The  purpose  of  Eurodac  is  to  assist  in  determining  which  Member  State  is  to  be 
responsible, pursuant to the Dublin Regulation, for examining an asylum application 
lodged  in  one  of  the  Member  States  by  a  third-country  national.  It  is  a  database 
limited  to  biometric  information  (fingerprints)  which  enables  comparison  of  the 
fingerprints of asylum seekers and illegal immigrants.  

3.2. 

Possible options  

13. 

As far as the limited-index ERCP is concerned, it will be necessary to determine the 
type  of  data  regarding  the  identity  of  the  persons  listed  therein  that  the  index  will 
need  to  contain  in  order  for  it  to  be  an  effective  research  tool.  In  this  regard,  the 
following should be noted:  

–  the index will be fed by national criminal record systems. Most of them contain 
only alphanumeric (i.e. text-based) information, with the exception of the UK and 
Cyprus whose records include fingerprints. Nevertheless, it does seem that even in 
those  countries  which  do  not  include  fingerprints  in  their  criminal  records,  this 
information 
an 
investigation/prosecution (e.g. by the police).  

sometimes 

collected 

earlier 

stage 

an 

in 

at 

is 

–  at  national  level,  establishing  a  person’s  identity  with  a  sufficient  degree  of 
certainty  raises  more  problems  for  third-country  nationals  than  for  EU  nationals 
(absence  of  reliable  identity  documents,  false  identities,  etc).  The  alphanumeric 
information  on  the  identity  of  a  third-country  national  which  is  recorded  in  the 
national criminal record (and which would be transferred to the index once it is set 
up), will therefore be unreliable in a certain number of cases. 

14. 

15. 

There are a number of options that will have to be assessed in light of, in particular, 
the principles of proportionality and necessity. These options will be analysed further 
in the context of the impact assessment prior to any legislative proposal. 

Option  1:  an  index  limited  to  alphanumeric  information.  The  two  main  risks 
associated  with  this  option  are:  i)  incomplete  information  on  a  person's  previous 
convictions  (e.g.  because  he  or  she  has  already  been  convicted  but  under  another 

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OJ L 50 of 25.2.2003. 
COM(2005)600. 

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name/alias); ii) erroneous attribution of a conviction to a person. As the index is only 
a  tool  enabling  the  user  to  determine  where  the  person  has  previously  been 
convicted,  this  second  risk  could  be  limited  by  ensuring  that  the  Member  States 
involved in the exchange of information carefully check the identity of the person (if 
need  be  on  the  basis  of  biometric  data).  However,  this  option  does  not  guarantee 
access to exhaustive information.  

16. 

Option 2: an index containing biometric data. This option involves higher costs (at 
the EU level13 but also for the Member States that would have to be in a position to 
feed  the  index  with  biometric  information).  It  also  raises  different  data  protection 
issues  than  option  1.  There  are  two  possibilities  as  far  of  the  use  of  biometric 
information is concerned:  

•  first, biometric data could be stored in the index but only used for the purposes of 
confirming  a  person's  identity.  It  would  not  then  be  possible  to  conduct  general 
searches  of  the  database  using  biometric  search  criteria.  This  is  how  SIS  II  will 
function.  

•  second, a biometric search engine could be added to the index to allow for general 
searches  on  biometrics  to  take  place.  It  would  give  access  to  exhaustive 
information while avoiding erroneous attribution of a conviction to a person.  

Option  3:  an  index  containing  biometric  data  but  limited  to  certain  categories  of 
serious offences. This is an option chosen at national level by certain Member States 
who have set up separate registers containing biometric information for certain types 
of  offences  (but  without  distinguishing  between  EU  and  third-country  nationals). 
This would imply agreement on the categories of offences to be covered.  

Option 4: no index would be created. In order to determine whether a third-country 
national has already been convicted in another Member State, the requesting Member 
State would rely upon the traditional mechanisms of judicial or police cooperation. In 
the future in particular, the exchange of certain types of information – notably DNA 
profiles  and  fingerprints  -  between  law  enforcement  authorities  could  be  facilitated 
through the implementation of the principle of availability (see paragraph 12).  

17. 

18. 

19. 

The answers to the attached questionnaire should enable the debate on these different 
options  to  take  place  on  the  basis  of  a  better  understanding  of  the  situation  in  the 
Member States 

13 

See footnote 8. 

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ANNEX  

Questionnaire sent to Member States  

I. 

1. 

2. 

INFORMATION COLLECTED AT POLICE LEVEL 

When  you  arrest  a  person  in  the  course  of  a  criminal  investigation,  do  you 
generally encounter difficulties in establishing his/her nationality?  

yes - approximate %            

no 

When  you  arrest  a  person  in  the  course  of  a  criminal  investigation,  do  you 
generally encounter difficulties in establishing his/her identity?  

yes - approximate %            

no 

3. 

If yes, what are the main reasons:  

the person does not possess any identity documents 

the documents produced are not reliable 

the  person  refuses  or  is  unable  to  (e.g.  linguistic  difficulties…)  produce  any 

evidence as to his / her identity 

other, please specify            

How do you establish his or her identity ? 

Which kind(s) of biometric information do you collect from an arrested person?  

fingerprints 

photographs 

  DNA 

other, please specify            

If it is established that the arrested person is a third-country national, i.e. a non-
EU  national,  do  you  routinely  contact  the  third  country  in  order  to  verify  the 
person’s identity and statements regarding his/her personal circumstances?  

yes - approximate %            

no 

4. 

5. 

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7. 

If yes, is the answer satisfactory?  

yes - approximate %            

no, please specify the reasons            

8. 

Is it possible to collect biometric information after the police investigation stage 
or when a person is convicted?  

yes. Please specify            

no 

II. 

9. 

INFORMATION AVAILABLE AFTER THE POLICE INVESTIGATION STAGE  

Is  the  information  on  a  person’s  identity  (including  biometrics)  which  is 
collected  at  the  police  stage  automatically  transferred  to  the  prosecution 
authorities?  

yes  

no 

only partially. Please specify            

10. 

Once  the  person  has  been  convicted,  is  the  information  on  his  /  her  identity 
which  has  been  collected  at  the  police  stage  automatically  transferred  to  that 
person’s criminal record?  

yes 

no 

only partially. Please specify            

11. 

If no, please specify: 

– 

whether there are legal requirements which make this transfer impossible 

yes. Please specify            

no 

– 

whether  the  criminal  record  contains  a  link  or  references  to  the  police  file 
which ensures that this information is easily accessible  

yes  

no 

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12. 

When you prosecute a non-national, do you systematically address a request to 
the  national  criminal  record  to  check  whether  the  person  has  already  been 
convicted? 

yes - approximated %            

no 

13. 

14. 

If yes, what are the main problems encountered? 

Where the convicted person uses an alias, will details of this alias be included in 
the criminal record? 

yes  

no 

15. 

To  the  extent  that  biometric  data  are  collected  at  a  certain  stage  of  the 
proceedings, are they kept in searchable databases? 

yes 

no 

16. 

If your answer to question 15 is yes, please specify whether these databases are 
limited to certain types of offences (e.g. sexual offences):  

yes. Please specify            

no 

17. 

Do  you  collect  statistics  regarding  convictions  handed  down  on  your  territory 
against third-country nationals? If so, please provide the relevant information.  

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