Commission staff working document accompanying the proposal for a regulation of the European Parliament and of the Council concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (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] - Summary of the impact assessment {COM(2008) 825 final} {SEC(2008) 2981}
Date: 2008-12-03
Institutions: European Commission
Subjects: EU Member State, admission of aliens, agreement (EU), biometrics, database management system, foreign national, right of asylum, third country

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 3.12.2008 
SEC(2008) 2982 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying the 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

concerning the establishment of 'Eurodac' for the comparison of fingerprints for the 
effective application of Regulation (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] 

Summary of the Impact Assessment 

{COM(2008) 825 final} 
{SEC(2008) 2981} 

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1. 

INTRODUCTION 

The  Dublin  Regulation  (Council  Regulation  343/2003/EC  of  18  February  2003)  aims  at 
establishing  a  clear  and  workable  mechanism  for  determining  responsibility  for  asylum 
applications lodged in the EU MS and, in an area without controls at the internal borders. It 
was  conceived  to  address  the  phenomenon  of  asylum  shopping,  by  preventing  abuse  of 
asylum procedures in the form of multiple applications for asylum submitted simultaneously 
or  successively  by  the  same  person  in  several  Member  States.  It  also  aims  to  avoid  the 
phenomenon of refugees in orbit (ie. a situation where all MS claim not being responsible for 
examining an asylum application). 

Thus,  Council  Regulation  2725/2000/EC  of  11  December  2000  for  the  establishment  of 
‘EURODAC’  (hereinafter:  EURODAC  Regulation)  came  into  force  on  15  December  2000 
and  the  Community-wide  information  technology  system  for  the  comparison  of  the 
fingerprints of asylum seekers, started operations on 15 January 2003.  

The Dublin acquis is implemented by all MSs of the EU, as well as by Norway and Iceland. 
International  agreements  on  the  accession  of  Switzerland  and  Liechtenstein  to  the  Dublin 
acquis  were  signed  on  28  February  2008,  and  will  enter  into  force  as  soon  as  they  start 
applying the Schengen acquis. (In the present IA, the term "Member States" is used to cover 
all states applying the Dublin acquis.) 

The  Commission  services  conducted  a  comprehensive  evaluation  of  the  Dublin  system 
(hereinafter: Evaluation Report), covering the first 3 years of its operation of the EURODAC 
central  system  (2003-2005).  The  report  has  acknowledged  the  positive  elements  of  the 
operation  of  the  Dublin  system,  while  at  the  same  time  has  pointed  out  shortcomings  and 
problems in transposition. 

Beyond  the  Evaluation  Report,  a  number  of  other  reports  fed  into  the  IA.  A  technical 
evaluation  of  DubliNet  was  carried  out  in  2005.  The  European  Data  Protection  Supervisor 
(hereinafter: EDPS) has been inspecting the application of the EURODAC Regulation from a 
data  protection  point  of  view  and  issued  an  inspection  report  in  July  20071  as  well  as  an 
Activity Report covering the period 2005-2007.2 Additional input was received from Member 
States  during  and  as  a  follow  up  to  the  meeting  of  the  EURODAC  expert  committee  4-5 
October 2007.  

The Commission's Impact Assessment Board (IAB) was consulted on the draft final Impact 
Assessment  report  and  issued  its  opinion  on  26.09.2008.  The  recommendations  of  the  IAB 
were duly taken into account. 

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2 

Eurodac Supervision Coordination Group, Report of the first coordinated inspection, Brussels, 17 July 
2007.  
Coordinated Supervision of Eurodac – Activity Report 2005-2007, 21 April 2008.  

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2. 

PROBLEM DEFINITION 

In accordance with the Policy Plan on Asylum – an integrated approach to protection across 
the EU3 the present Impact Assessment (IA) deals with the following problems identified in 
the Evaluation Report.  

2.1. 

Continuing late transmission of fingerprints 

The  Regulation  in  force  only  provides  a  very  vague  deadline  for  the  transmission  of 
fingerprints  to  the  CU:  MS  are  required  to  "promptly  take  the  fingerprints"  and  "promptly 
transmit them". In practice, in the absence of a strict deadline, and without any sanction as to 
the non-respect of the already vague deadline, delay of fingerprints reached 30 days in some 
MSs in the past, while in 2007 the longest delay was almost 12 days. In some Member States, 
little  progress  has  been  observed  since  the  installation  of  EURODAC,  despite  regular 
reminders by the Commission services through the annual activity reports and the meetings of 
the EURODAC expert committee. A delay in transmissions may lead to results contrary to the 
responsibility principles laid down in the Dublin Regulation ("wrong hits" and "missed hits", 
explained in the annual reports on the activities of the EURODAC Central Unit).  

2.2. 

Impossibility  to  filter  asylum  claims  by  persons  already  enjoying  international 
protection in a MS 

Under the Regulation in force, Member States have to request the Central Unit to block the 
data of persons who are recognised as refugees. If a hit occurs against data of a person who 
was fingerprinted as an asylum seeker but whose data was later on blocked by a MS because 
it recognised her/him as a refugee, the Central Unit records the hit for statistical purposes but 
sends a "no-hit" reply to the Member State of origin.  

The Regulation in force stipulates however, that five years after EURODAC starts operations, 
a  decision  would  be  taken  in  accordance  with  the  relevant  provisions  of  the  Treaty,  as  to 
whether the data relating to persons who have been recognised and admitted as refugees in a 
Member State should be stored and compared against CAT1 or should be erased in advance 
once they were recognised as refugees.  

Statistics  gathered  by  the  EURODAC  CU  reveal  that  since  the  start  of  its  activities  (until 
31.12.2007), 24.464 out of 1.005.323 data of asylum seekers (2,4%) was blocked. 414 out of 
the  24.464  have  produced  hits  with  blocked  data.  This  means  that  414  recognised  refugees 
lodged a second asylum application, in the same Member State as the one which granted the 
refugee  status  or  in  another  Member  State.4  This  phenomenon  goes  against  the  underlying 
principles of the Dublin system, since without being able to see the hits against the presently 
blocked  cases,  a  new  asylum  procedure  might  start  in  another  (or  indeed  the  same)  MS 
consuming  additional  resources  concerning  a  person  who  has  already  received  protection 
from  a  MS.  The  information  that  MS  can  obtain  with  the  unblocking  of  these  cases  can  of 
course be decisive in an asylum procedure.  

3 
4 

COM(2008) 360.  
From  the  point  of  view  of  the  asylum-seeker  or  refugee,  asylum  shopping  could  in  theory  have  the 
advantage of multiplying his/her chances of getting a certain level of protection. It has to be underlined 
though,  that  nevertheless,  moving  from  one  Member  State  to  another  entails  financial  costs  for  the 
asylum-seeker, as well as distress and uncertainty. The actual deterring effect of the Dublin system from 
asylum  shopping  is  largely  dependent  on  the  quality  and  level  of  information  asylum-seekers  are 
provided with.  

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2.3. 

Inefficient management of deletions of data  

Under  the  Regulation  in  force,  deletion  of  data  is  automatic  from  the  database  after  10 
(CAT1)  or  2  years  (CAT2)  respectively.  Advance  erasure  of  data  by  the  Member  State  of 
origin  (i.e.  the  Member  State  which  entered  the  data  of  an  asylum  seeker  or  of  a  person 
apprehended  when  irregularly  crossing  an  external  border  in  the  EURODAC  Central 
database)  is  obligatory  as  soon  as  they  become  aware  that  a  data  subject  has  acquired 
citizenship of any Member State (both CAT1 and CAT2) and as soon as they become aware 
that  the  person  has  left  the  territory  of  the  Member  States  or  that  he/she  has  been  issued  a 
residence permit (CAT2). 

Another  concern  relates  to  the  fact  that  Member  States  of  origin  are  often  not  aware  that 
another MS of origin deleted data which corresponded to the fingerprint data it also entered 
into EURODAC at some point, and therefore should be subject to advance data erasure by all 
MSs of origin. This is a serious breach of data protection principles, which require data to be 
deleted when their storage is no longer necessary, and raises doubts about the compliance of 
MSs with data protection obligations. 

2.4. 

Unclear specification of national authorities having access to EURODAC which 
hinders the monitoring role of the Commission and the EDPS 

The EURODAC Regulation requests that Member States communicate to the Commission the 
list of authorities having access to data recorded in the EURODAC central database, for 
the purposes laid down in the EURODAC Regulation. From a data protection point of view, 
the  relevant  provisions  in  force  can  be  considered  too  vague,  since  Member  States  may 
communicate  an  indefinite  list of "authorities" without  any  detail on the  exact  nature of the 
authority's national competences and on the relevant departments. The Commission can only 
take note of the notifications and administer the list of authorities but cannot properly exercise 
its monitoring role.  

This  issue  was  raised  on  several  occasions  by  the  EDPS  and  national  data  protection 
authorities (DPAs) which rightly fear they cannot correctly assess whether all data protection 
rules are correctly applied in the context of the EURODAC Regulation, as they do not know 
who exactly is accessing data in each Member State.  

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3. 

POLICY OBJECTIVES 

3.1. 

General objectives 

3.1.1.  Enabling  more  efficient  determination  of  the  Member  State  responsible  for  the 

assessment of asylum applications  

3.1.2.  Better addressing data protection concerns  

3.2. 

Specific objectives 

3.2.1.  Ensuring truly prompt transmission of fingerprints 

3.2.2.  To prevent asylum shopping by avoiding processing of asylum claims of refugees 

3.2.3. 

Improving the compulsory deletion of data 

3.2.4.  Enabling  effective  monitoring  by  the  Commission,  the  EDPS  and  national  data 
protection  authorities  of  management  of  access  to  data  in  EURODAC  by  national 
authorities designated for the implementation of the EURODAC Regulation 

3.3. 

Fundamental rights 

Positive and negative impacts on relevant fundamental rights have also been considered. 

The  EURODAC  Regulation  being  a  technical  instrument  providing  for  the  effective 
implementation  of  some  criteria  of  the  Dublin  Regulation,  impacts  on  fundamental  rights 
have been assessed as regards the right to asylum and protection of personal data.  

4. 

THE PREFERRED POLICY OPTION 

Given the level of complexity of the proposed policy sub-options, this summary is limited to 
an  enumeration  of  the  main  elements  composing  the  preferred  policy  option.  The  preferred 
policy  option  is  made  both  of  legislative  options  and  of  options  focused  on  fostering 
practical cooperation between Member States. 

4.1. 

Problem 1: Continuing late transmission of fingerprints  

Option C) Legislation – specifying a clearer deadline in the Regulation  

Drawing upon the consultation of MSs in the framework of the EURODAC expert committee 
on 4-5 October 2007, the possible solution could be to keep the time-limit somewhat flexible 
but  at  the  same  time  strike  an  end  date.  Proposing  a  wording  referring  to  the  obligation  to 
send data as soon as possible, but not later than a certain number of days (the exact number of 
which  is  to  be  determined)  could  accommodate  the  need  to  find  a  final  deadline  but  at  the 
same  time  ensure  that  MSs  which  are  currently  sending  data  in  a  shorter  period  than  the 
number  of  days  which  would  be  agreed  upon  as  a  deadline  would  still  keep  up  their  good 
performances.  

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4.2. 

Problem  2:  Impossibility  to  filter  asylum  claims  by  persons  already  enjoying 
international protection in a MS  

Option Bb) Store and attribute a mark to data previously submitted as CAT1 

Upon  action  of  the  MS  having  granted  international  protection  to  a  third  country  national 
whose data has been stored in EURODAC as a CAT1, the CU could attribute a mark meaning 
that the person was recognised as eligible for international protection.  

4.3. 

Problem 3: Inefficient management of deletions of data 

Option C) Automated information provided by the CU 

When  a  MS  deletes  fingerprints  (along  with  the  other  data  recorded  with  it)  which  produce 
hits with the fingerprints that were introduced to EURODAC by the other MSs of origin, an 
automated message could be sent to these latter MSs.  

4.4. 

Problem  4:  Unclear  specification  of  national  authorities  having  access  to 
EURODAC  which  hinders  the  monitoring  role  of  the  Commission  and  the 
EDPS 

Option A) Legislation on obligation to notify relevant details on the designated authority 
to the Commission 

Legislation granting the Commission the chance to monitor the designation of authorities by 
requiring  MSs  to  provide  in  their  official  notification  details  on  the  exact  nature  of  the 
authority's national competences and on the relevant departments within the authority which 
deal with the application of the EURODAC Regulations. 

A combination of policy options 1C, 2Bb, 3C, 4A has been identified as the preferred policy 
option through the comparative analysis.  

Preferred option: combination of policy options 1C, 2Bb, 3C and 4A 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy option 
necessary to achieve the impact 

Relevance 

Ensuring  truly  prompt  transmission  of 
fingerprints  

√√√ 

With  a  precise  deadline  established  by  the  Regulation,  MSs  shall 
better conform to their obligations to take and transmit fingerprints 
in  time  in  order  to  allow  appropriate  determination  of  the  MS 
responsible.  Since  the  deadline  would  be  clear  and  objective,  the 
Commission  would  have  the  possibility  to  follow-up  on  eventual 
mass delays by MS by launching infringement procedures.  

To prevent asylum shopping by avoiding 
processing of asylum claims of refugees  

√√√ 

Knowing that a person is already enjoying international protection 
in  a  MS  is  decisive  for  national  asylum  authorities,  which  can 
therefore  spare  time  and  resources  on  the  assessment  of  these 
claims. . 

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Preferred option: combination of policy options 1C, 2Bb, 3C and 4A 

Assessment Criteria  

Rating 

Motivation of the rating and aspects of the policy option 
necessary to achieve the impact 

Improving  the  compulsory  deletion  of 
data 

Enabling  effective  monitoring  by  the 
Commission,  the  EDPS  and  national 
data 
of 
protection 
management  of  access 
in 
EURODAC  by  national  authorities 
designated for the implementation of the 
EURODAC Regulation 

authorities 

to  data 

Transposition feasibility  

- Under existing treaty 

- Under new treaty  

When a MS deletes fingerprints (along with the other data recorded 
with  it)  which  produce  hits  with  the  fingerprints  that  were 
introduced  to  EURODAC  by  the  other  MSs  of  origin,  an 
automated message would be sent to these latter MSs. This way it 
is  expected  to  ensure  that  the  data  to  be  deleted  is  effectively 
deleted  by  MSs,  therefore  no  data  would  be  kept  longer  in  the 
database than justified.  

Specification by MSs in their official notification of the details on 
the exact nature of the authority's national competences and of the 
relevant  departments  within  the  authority  which  deals  with  the 
application  of  the  EURODAC  Regulations  would  enable  proper 
monitoring of MSs activities concerning EURODAC. 

No difficulties or risks are foreseen regarding the combination of 
the preferred suboptions. 

No difficulties or risks are foreseen regarding the combination of 
the preferred suboptions. 

√√√ 

√√√ 

√√√ 

√√√ 

Implementation costs 

√√√ 

C.f. Annex 2. 

5. 

 MONITORING AND EVALUATION 

The  monitoring  of  the  fulfilment  of  operational  objectives  as  described  in  3.3.1.  (avoiding 
"wrong hits" and "missed hits"), 3.3.2. (ensuring that asylum applications of refugees are not 
processed)  and  3.3.3.  (ensuring  deletion  of  data  in  circumstances  foreseen  by  the  current 
EURODAC Regulation) is to be performed by the statistics drawn up by the EURODAC CU. 
Concerning the first two points, relevant statistics are already being produced at present as a 
well-established  practice,  every  month.  Concerning  3.3.3.,  the  preferred  solution  consists  of 
action  by  the  CU,  therefore  monitoring  of  the  automated  provision  of  information  will  be 
equally unproblematic. 

The fulfilment of operational objective 3.3.4. (enabling the Commission and EDPS to know 
who  exactly  is  accessing  data  in  each  Member  State)  will  be  regularly  monitored  by  the 
Commission. 

Moreover,  in  order  to  monitor  if  the  revised  Regulation  is  effectively  followed  by  Member 
States,  regular  evaluation  within  the  framework  of  the  overall  assessment  of  the  Dublin 
system is suggested. With a view to enhance the effects of the combination of the preferred 
suboptions, organisation of further regular EURODAC expert meetings are foreseen.  

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