Initiative of the Federal Republic of Germany with a view to the adoption of a Council Decision 2007/…/JHA of … on the implementation of Decision 2007/…/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime
Date: 2007-11-09
Institutions: Germany
Subjects: EU police cooperation, Germany, cooperation policy, database, disclosure of information, exchange of information, fight against crime, judicial cooperation in criminal matters in the EU, terrorism

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III

(Preparatory Acts)

MEMBER STATES' INITIATIVES

COUNCIL

Initiative of
the Federal Republic of Germany with a view to the adoption of a Council
Decision 2007/…/JHA of … on the implementation of Decision 2007/…/JHA on the stepping up of
cross-border cooperation, particularly in combating terrorism and cross-border crime

(2007/C 267/06)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on European Union, and in particu-
lar Article 30(1)(a) and (b), Article 31(1)(a), Article 32 and the
second sentence of Article 34(2)(c) thereof,

Having regard to Article 33 of Decision 2007/…/JHA (1),

Having regard to the initiative of
Germany,

the Federal Republic of

Having regard to the Opinion of the European Parliament,

Whereas:

(1)

(2)

(3)

On … 2007 the Council adopted Decision 2007/…/JHA.

the French Republic,

By means of Decision 2007/…/JHA, the basic elements
of the Treaty of 27 May 2005 between the Kingdom of
Belgium, the Federal Republic of Germany, the Kingdom
of Spain,
the Grand Duchy of
Luxembourg, the Kingdom of the Netherlands and the
Republic of Austria on the stepping up of cross-border
cooperation,
terrorism,
cross-border crime and illegal migration (hereinafter ‘the
Prüm Treaty’), were transposed into the legal framework
of the European Union.

particularly

combating

in

the level of

Article 33 of Decision 2007/…/JHA provides that the
Council is to adopt the measures necessary to implement
Decision 2007/…/JHA at
the Union in
accordance with the procedure laid down in the second
sentence of Article 34(2)(c) of the Treaty. These measures
are to be based on the Implementing Agreement of
administrative
5 December 2006 concerning
and technical
the
Prüm Treaty.

implementation and application of

the

(4)

those common normative
This Decision establishes
provisions which are indispensable for administrative and

(1) OJ L …

technical implementation of the forms of cooperation set
out in Decision 2007/…/JHA. The Annex contains imple-
menting provisions of a technical nature. Furthermore, a
separate Manual, containing exclusively factual informa-
tion to be provided by the Member States, will be drawn
up and kept up to date by the General Secretariat of the
Council,

HAS DECIDED AS FOLLOWS:

CHAPTER I

GENERAL

Article 1

Aim

The aim of this Decision is to lay down the necessary adminis-
trative and technical provisions for the implementation of Deci-
sion 2007/…/JHA, especially for the automated exchange of
DNA data, dactyloscopic data and vehicle registration data as set
out in Chapter II thereof as well as other forms of cooperation
as set out in Chapter V thereof.

Article 2

Definitions

For the purposes of this Decision:

(a) ‘search’ and ‘comparison’ as referred to in Articles 3, 4 and
9 of Decision 2007/…/JHA mean the procedures by which
it is established whether there is a match between, respec-
tively, DNA data or dactyloscopic data which have been
communicated by one Member State and DNA data or
dactyloscopic data stored in the databases of one, several, or
all of the Member States;

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(b) ‘automated searching’ as referred to in Article 12 of Deci-
sion 2007/…/JHA means an online access procedure for
consulting the databases of one, several, or all of
the
Member States;

(c) ‘DNA reference data’ means a DNA profile and a reference

number;

(d) ‘DNA profile’ means a letter or a number code which repre-
sents a set of identification characteristics of the non-coding
part of an analysed human DNA sample, i.e. the particular
molecular structure at the various DNA locations (loci);

(e) ‘non-coding part of DNA’ means chromosome regions not
i.e. not known to provide for any

genetically expressed,
functional properties of an organism;

(f) ‘reference DNA profile’ means the DNA profile of an identi-

fied person;

(g) ‘unidentified DNA profile’ means the DNA profile obtained
from traces collected during the investigation of criminal
offences and belonging to a person not yet identified;

(h) ‘note’ means a Member State's marking on a DNA profile in
its national database indicating that there has already been a
match for that DNA profile on another Member State's
search or comparison;

(i) ‘dactyloscopic data’ means fingerprint

images of
fingerprint latents, palm prints, palm print latents as well as
templates of such images (coded minutiae), when they are
stored and dealt with in an automated database;

images,

(j) ‘vehicle registration data’ means the data-set as specified in

Chapter III of the Annex to this Decision;

(k) ‘individual case’, as referred to in Article 3(1), second
sentence, Article 9(1), second sentence and Article 12(1),
second sentence, of Decision 2007/…/JHA, means a single
investigation or prosecution file. If such a file contains more
than one DNA profile, or one piece of dactyloscopic data or
vehicle registration data, they may be transmitted together
as one request.

CHAPTER II

COMMON PROVISIONS FOR DATA EXCHANGE

Article 3

Technical specifications

Member States shall observe the common technical specifica-
tions in connection with all requests and answers related to
searches and comparisons of DNA profiles, dactyloscopic data
and vehicle registration data. These technical specifications are
laid down in the Annex to this Decision.

Article 4

Communications network

using the Trans European Services for Telematics between
Administrations
communications network and
(TESTA II)
further developments thereof.

Article 5

Availability of automated data exchange

Member States shall take all necessary measures to ensure that
automated searching or comparison of DNA data, dactyloscopic
data and vehicle registration data is possible 24 hours a day and
seven days a week. In the event of a technical fault, the Member
States' national contact points shall
immediately inform each
other and shall agree on temporary alternative information
exchange arrangements in accordance with the legal provisions
applicable. Automated data exchange shall be re-established as
quickly as possible.

Article 6

Reference numbers for DNA data and dactyloscopic data

The reference numbers referred to in Article 2 and Article 8 of
Decision 2007/…/JHA shall consist of a combination of the
following:

1. a code allowing the Member States, in the case of a match,
to retrieve personal data and other information in their data-
bases in order to supply it to one, several or all of the
Member States in accordance with Article 5 or Article 10 of
Decision 2007/…/JHA;

2. a code to indicate the national origin of the DNA profile or

dactyloscopic data; and

3. with respect to DNA data, a code to indicate the type of

DNA profile.

CHAPTER III

DNA DATA

Article 7

Principles of DNA data exchange

1. Member States shall use existing standards for DNA data
exchange, such as the European Standard Set
(ESS) or the
Interpol Standard Set of Loci (ISSOL).

The transmission procedure,

2.
in the case of automated
searching and comparison of DNA profiles, shall take place
within a decentralised structure.

The electronic exchange of DNA data, dactyloscopic data and
vehicle registration data between Member States shall take place

3.
Appropriate measures shall be taken to ensure confidenti-
ality and integrity for data being sent to other Member States,
including their encryption.

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4. Member States shall take the necessary measures to guar-
antee the integrity of the DNA profiles made available or sent
for comparison to the other Member States and to ensure that
these measures comply with international standards such as
ISO 17025.

5. Member States shall use Member State codes in accordance
with the ISO 3166-1 alpha-2 standard.

Article 8

Rules for requests and answers in connection with DNA
data

A request

1.
for an automated search or comparison, as
referred to in Articles 3 or 4 of Decision 2007/…/JHA, shall
include only the following information:

(a) the Member State code of the requesting Member State;

(b) the date, time and indication number of the request;

(c) DNA profiles and their reference numbers;

(d) the types of DNA profiles transmitted (unidentified DNA

profiles or reference DNA profiles);

(e) information required for controlling the database systems
and quality control for the automatic search processes.

The answer (matching report) to the request referred to in

2.
paragraph 1 shall contain only the following information:

(a) an indication as to whether

there were one or more

matches (hits) or no matches (no hits);

(b) the date, time and indication number of the request;

(c) the date, time and indication number of the answer;

(d) the Member State codes of the requesting and requested

Member States;

(e) the reference numbers of

the requesting and requested

Member States;

(f) the type of DNA profiles transmitted (unidentified DNA

profiles or reference DNA profiles);

(g) the requested and matching DNA profiles; and

(h) information required for controlling the database systems
and quality control for the automatic search processes.

3.
Automated notification of a match shall only be provided
if the automated search or comparison has resulted in a match
of a minimum number of
loci. This minimum is set out in
Chapter I of the Annex to this Decision.

Article 9

Transmission procedure for automated search of unidenti-
fied DNA profiles in accordance with Article 3 of Decision
2007/…/JHA

If, in a search with an unidentified DNA profile, no match
1.
has been found in the national database, or a match has been
found with an unidentified DNA profile, the unidentified DNA
profile may then be transmitted to all other Member States'
databases and if, in a search with this unidentified DNA profile,
matches are found with reference DNA profiles and/or unidenti-
fied DNA profiles in other Member States' databases,
these
matches shall be automatically communicated and the DNA
reference data transmitted to the requesting Member State; if no
matches can be found in other Member States' databases, this
shall be automatically communicated to the requesting Member
State.

2.
If, in a search with an unidentified DNA profile, a match
is found in other Member States' databases, each Member State
concerned may insert a note to this effect in its national data-
base.

Article 10

Transmission procedure for automated search of reference
DNA profiles in accordance with Article 3 of Decision
2007/…/JHA

If, in a search with a reference DNA profile, no match has been
found in the national database with a reference DNA profile or
a match has been found with an unidentified DNA profile, this
reference DNA profile may then be transmitted to all other
Member States' databases and if, in a search with this reference
DNA profile, matches are found with reference DNA profiles
and/or unidentified DNA profiles in other Member States' data-
bases, these matches shall be automatically communicated and
the DNA reference data transmitted to the requesting Member
State; if no matches can be found in other Member States' data-
bases, it shall be automatically communicated to the requesting
Member State.

Article 11

Transmission procedure for automated comparison of
unidentified DNA profiles in accordance with Article 4 of
Decision 2007/…/JHA

If,

1.
in a comparison with unidentified DNA profiles,
matches are found in other Member States' databases with refer-
ence DNA profiles and/or unidentified DNA profiles,
these
matches shall be automatically communicated and the DNA
reference data transmitted to the requesting Member State.

The Member States shall ensure that requests comply with
4.
the declarations issued in accordance with Article 2(3) of Deci-
sion 2007/…/JHA. These declarations shall be reproduced in the
Manual referred to in Article 18(2) of this Decision.

If,

2.
in a comparison with unidentified DNA profiles,
matches are found in other Member States' databases with
unidentified DNA profiles or
reference DNA profiles, each
Member State concerned may insert a note to this effect in its
national database.

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CHAPTER IV

DACTYLOSCOPIC DATA

Article 12

CHAPTER V

VEHICLE REGISTRATION DATA

Article 15

Principles for the exchange of dactyloscopic data

Principles of automated searching of vehicle registration
data

1.
The digitalisation of dactyloscopic data and their transmis-
sion to the other Member States shall be carried out in accord-
ance with a uniform data format specified in Chapter II of the
Annex to this Decision.

2.
Each Member State shall ensure that the dactyloscopic
data it transmits are of sufficient quality for a comparison by
the automated fingerprint identification systems (AFIS).

The transmission procedure for the exchange of dactylo-

3.
scopic data shall take place within a decentralised structure.

4.
Appropriate measures shall be taken to ensure the confi-
dentiality and integrity of dactyloscopic data being sent to other
Member States, including their encryption.

The Member States shall use Member State codes in

5.
accordance with the ISO 3166-1 alpha-2 standard.

Article 13

Search capacities for dactyloscopic data

1.
Each Member State shall ensure that its search requests do
not exceed the search capacities specified by the requested
Member State. Member States shall submit declarations as
referred to in Article 18(2) to the General Secretariat of the
Council in which they lay down their maximum search capaci-
ties per day for dactyloscopic data of identified persons and for
dactyloscopic data of persons not yet identified.

2.
The maximum numbers of candidates accepted for verifi-
cation per transmission are set out in Chapter II of the Annex
to this Decision.

Article 14

Rules for requests and answers in connection with dactylo-
scopic data

1.
The requested Member State shall check the quality of the
transmitted dactyloscopic data without delay by a fully auto-
mated procedure. Should the data be unsuitable for an auto-
mated comparison, the requested Member State shall inform the
requesting Member State without delay.

The requested Member State shall conduct searches in the
2.
order in which requests are received. Requests shall be processed
within 24 hours by a fully automated procedure. The requesting
Member State may,
law so prescribes, ask for
accelerated processing of its request and the requested Member
State shall conduct the search without delay. If deadlines cannot
be met for reasons of force majeure, the comparison shall be
carried out without delay as soon as the impediments have been
removed.

if its national

1.
For automated searching of vehicle registration data
Member States shall use a version of the European Vehicle and
Driving
(EUCARIS)
software application especially designed for the purposes of
Article 12 of Decision 2007/…/JHA, and amended versions of
this software.

Information

Licence

System

Automated searching of vehicle registration data shall take

2.
place within a decentralised structure.

The information exchanged via the EUCARIS system shall

3.
be transmitted in encrypted form.

4.
The data elements of the vehicle registration data to be
exchanged are specified in Chapter III of the Annex to this Deci-
sion.

In the

implementation of Article 12 of Decision
5.
2007/…/JHA, Member States may give priority to searches
related to combating serious crime in the event of limited tech-
nical capacities.

Article 16

Costs

Member States shall bear the costs arising from the administra-
tion and use of the EUCARIS software application mentioned in
Article 15(1).

CHAPTER VI

POLICE COOPERATION

Article 17

1.
In accordance with Chapter V of Decision 2007/…/JHA,
and in particular with the declarations submitted pursuant to its
Articles 17(4), 19(2), and 19(4), each Member State may specify
its procedures for setting up joint operations, its procedures for
incoming requests from other Member States with regard to
those operations, as well as other practical aspects and opera-
tional modalities in relation to those operations.

2. Member States may also designate appropriate contact
points so as to allow other Member States to address the
competent authorities where there is no specified procedure for
setting up joint operations.

3.
A request to set up a joint operation may be made by the
competent authorities of each Member State. Before the start of
a specific operation, Member States shall make written or verbal
arrangements that may cover details such as:

(a) the competent authorities of the Member States for the

operation;

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(b) the specific purpose of the operation;

Article 20

(c) the host Member State where the operation takes place;

(d) the geographical area of the host Member State where the

Preparation of decisions referred to in Article 25(2) of
Decision 2007…/JHA

operation takes place;

(e) the period covered by the operation;

(f) the specific assistance to be provided by the seconding
Member State(s) to the host Member State, including offi-
cers or other officials, material and financial elements;

(g) the officers participating in the operation;

(h) the officer in charge of the operation;

(i) the powers the officers and other officials of the seconding
Member State(s) may exercise in the host Member State
during the operation;

(j) the particular arms, ammunition and equipment

the
seconding officers may use during the operation in accord-
ance with Decision 2007/…/JHA;

shall

The Council

1.
a decision referred to in
Article 25(2) of Decision 2007/…/JHA on the basis of an
evaluation report which shall be based on a questionnaire as set
out in Chapter IV of the Annex to this Decision.

take

2. With respect to the automated data exchange in accord-
ance with Chapter II of Decision 2007…/JHA, the evaluation
report shall also be based on an evaluation visit and a pilot run
that shall be carried out when the Member State concerned has
informed the General Secretariat in accordance with the first
sentence of Article 36(2) of Decision 2007/…/JHA.

Further details of the procedure are set out in Chapter IV

3.
of the Annex to this Decision.

Article 21

(k) the logistic modalities as regards transport, accommodation

Evaluation of the data exchange

and security;

(l) the allocation of the costs of the joint operation if it differs
from that provided in the first sentence of Article 34 of
Decision 2007/…/JHA;

(m) any other possible elements required.

4.
The declarations, procedures and designations provided for
in this Article shall be reproduced in the Manual referred to in
Article 18(2).

CHAPTER VII

FINAL PROVISIONS

Article 18

Annex and Manual

1.
Further details concerning the technical and administrative
implementation of Decision 2007/…/JHA are set out in the
Annex to this Decision. The Annex may be modified by the
Council, acting by a qualified majority.

2.
A Manual shall be prepared and kept up to date by the
General Secretariat of
the Council, comprising exclusively
information provided by the Member States through
factual
declarations made pursuant to Decision 2007/…/JHA or this
Decision or
to the General
Secretariat of the Council. The Manual shall be in the form of a
Council Document.

through notifications made

Article 19

Independent data protection authorities

Member States shall, in accordance with Article 18(2) of this
Decision, inform the General Secretariat of the Council of the
independent data protection authorities or the judicial authori-
ties as referred to in Article 30(5) of Decision 2007/…/JHA.

An evaluation of the administrative, technical and financial
1.
application of the data exchange pursuant to Chapter II of Deci-
sion 2007/…/JHA shall be carried out on an annual basis. The
evaluation shall relate to those Member States already applying
Decision 2007/…/JHA at the time of the evaluation and shall be
carried out with respect to the data categories for which data
exchange has started among the Member States concerned. The
evaluation shall be based on reports of the respective Member
States.

Further details of the procedure are set out in Chapter IV

2.
of the Annex to this Decision.

Article 22

Relationship with the Implementing Agreement of

the

Prüm Treaty

For the Member States bound by the Prüm Treaty, the relevant
provisions of this Decision and its Annex, once fully imple-
the corresponding provisions
mented, shall apply instead of
contained in the Implementing Agreement of the Prüm Treaty.
Any other provisions of
the Implementing Agreement shall
remain applicable between the contracting parties of the Prüm
Treaty.

Article 23

Application

This Decision shall take effect twenty days following its publica-
tion in the Official Journal of the European Union.

Done at Brussels, on …

For the Council

The President