Amended 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] (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}
Date: 2009-07-08
Institutions: European Commission
Subjects: EU Member State, admission of aliens, biometrics, database management system, foreign national, right of asylum, third country

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COMMISSION OF THE EUROPEAN 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' 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] 

(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} 

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1. 

PROBLEM DEFINITION 

The conclusions of the Mixed Committee of the JHA Council of 12-13 June 2007 considered 
that, in order to fully achieve the aim of improving security and to enhance the fight against 
terrorism, access under certain conditions to ‘Eurodac’ should be granted to Member States' 
police  and  law  enforcement  authorities,  as  well  as  Europol,  in  the  course  of  their  duties  in 
relation  to  the  prevention,  detection  and  investigation  of  terrorist  offences  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 enforcement authorities to access ‘Eurodac’ to combat 
terrorism  and  other  serious  crime  was  also  reported  as  a  shortcoming  in  the  Commission 
Communication  to  the  Council  and  the  European  Parliament  on  improved  effectiveness, 
enhanced interoperability and synergies among European databases in the area of Justice and 
Home Affairs of 24 November 20051.  

‘Eurodac’  is  a  Community-wide  system  for  the  comparison  of  the  fingerprints  of  asylum 
applicants.  It  was  established  by  the  ‘Eurodac’  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  and  to  guarantee  effective  access  to  relevant 
procedures. This purpose is achieved by a system of fingerprint identification of third country 
nationals  who  fall  under  the  scope  of  the  Regulation  under  strictly  defined  and  harmonised 
rules in relation to the storage, comparison and deletion of fingerprints.  

The database contains only the following information: 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 fingerprints were taken and the date on which they 
were submitted to the Central Unit. 

In law enforcement, while Member States successfully access asylum seekers fingerprints on 
a national level, it seems that access to asylum seekers fingerprint databases of other Member 
States is more problematic. 

Even though there are currently some EU instruments that permit 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 verification 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  stepping  up  of  cross-border  cooperation, 
particularly in combating terrorism and cross-border crime (Prüm Decision) 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 
2 

COM(2005) 597, p. 6.  
OJ L 50, 25.2.2003, p. 1. 

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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  Matters3. 
Framework  Decision  2006/960/JHA  on  simplifying  the  exchange  of  information  and 
intelligence between law enforcement 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  available  choice  for  a  Member  State  is  to  issue  mutual  legal 
assistance requests to all other Member States. Without efficient means to determine whether 
or  not  information  is  available  in  another  Member  State  the  action  of  public  authorities 
becomes  prohibitively  expensive,  is  time  consuming  and  hence  seriously  jeopardises  the 
application of the law. Timely availability of information is particularly relevant to avert harm 
to  persons  or  goods,  or  to  prevent  damage  to  critical  infrastructures.  Rapid  access  is  also 
necessary  to  forestall  destruction  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  enshrined  in  Title  VI  of  the  Treaty  on  European 
Union on Police and Judicial Cooperation in Criminal Matters. The current EU instruments on 
police  cooperation  are  insufficient  to  facilitate  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  efficient  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  impossible,  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 for 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  independently,  a  harmonised 
level of safeguards will be difficult to achieve.  

Even though the potential number of asylum seekers that might be involved in cross-border 
terrorist offences or other serious criminal offences might not be very large, the mere fact of 
the  gravity  of  such  offences  and  their  impact  on  society  and  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 investigation of terrorism and other serious crime 

•  The protection of victims of terrorism 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  criminal  matters  between  the  Member  States  of  the 
European Union (OJ C 197, 12.7.2000, p. 1). 

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Specific objectives: 

•  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  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. 

4.1. 

POLICY OPTIONS 

Refraining  from  addressing  the  issue  on  an  EU  level  –  Maintaining  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  for  a  Council  Decision.  A  hit  reply  would  be 
accompanied  with  the  types  of  data  contained  in  ‘Eurodac’.  Requests  for  supplementary 
information  following  a  hit  would  not  be  regulated  in  the  proposed  Council  Decision  but 
rather  be  covered  by  existing  instruments,  like  the  FWD  2006/960  and  mutual  legal 
assistance.  

There are 2 possible sub-options: (i) to provide search possibilities of 'Eurodac' merely on the 
basis of fingerprints, or (ii) on the basis of fingerprints and latents. Currently, 'Eurodac' does not 
provide  the  possibility  of  searching  on  the  basis  of  latents  and  this  feature  would  have  to  be 
added  on  the  'Eurodac'  system.  However,  searching  on  the  basis  of  latents  is  a  fundamental 
function for law enforcement cases, where in crime scenes there 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  for  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. 

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4.4. 

Regulating  access  to  national  data  about  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 seekers databases of all the other Member States 
in an automated manner. Member States should provide for separate national databases which 
would be used only for law enforcement, as well 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  model  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  disproportional.  It  would  entail  the  creation  of 
special  databases  in  each  Member  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, complicated technical architecture for the only reason 
to  enable  law  enforcement  authorities  to  search  for  information  already  held  in  an  existing 
database.  For  these  reasons,  this  policy  option  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  facilitating  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 Member 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 the 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 certain 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 security in the EU. Maintaining the status quo 
would mean that law enforcement 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  information  relates  to  the  same  person,  and  will  remain  unable  to 
obtain such data. The alternative of requesting hypothetical mutual legal assistance from all 
Member States is too timely and too burdensome to present a realistic option.  

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The  Policy  Options  B  and  C  on  introducing  the  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  instrument  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  conditions  that  are  in  place  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 asylum seekers. Furthermore, there seems to be no 
reason for which a new (costlier) organisational and technical architecture is established for 
the  exchange  of  the  supplementary  information,  when  current  systems  are  adequate  and 
appropriate for this purpose. It is the preferred policy option. 

This policy option could have several sub-options. The choice between these  sub-options is 
not made in this impact assessment and is left to the political decision makers.  

One such sub-option relates to the scope of the instrument. The scope would be limited to the 
prevention,  detection  and  investigation  of  terrorist  and  other  serious  criminal  offences.  It  is 
being suggested that the term “serious criminal offences” could refer: (i) to the list of serious 
criminal  offences  as  described  in  the  European  Arrest  Warrant  Framework  Decision,  as  per 
the  preference  of  the  Member  States,  (ii)  it  could  be  a  more  limited  list  of  offences  which 
would be adopted specifically for this instrument and which would exclude any kind of crime 
which might be specifically relevant to asylum seekers, like illegal entry, 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 could 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  case  the  Member  States  should  inform  the 
Commission.  

A  third  set  of  sub-options  relates  to  the  duration  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  evaluations  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. 

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