Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of a Protocol between the European Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland regarding the access to Eurodac for law enforcement purposes
Date: 2018-12-13
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Liechtenstein, Switzerland, agreement (EU), application of EU law, biometrics, database management system, police cooperation, protocol to an agreement, right of asylum, signature of an agreement

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   EUROPEAN COMMISSION  Brussels, 13.12.2018 COM(2018) 831 final 2018/0421 (NLE)  Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of a Protocol between the European Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement between the European Community and the Swiss Confederation concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Switzerland regarding the access to Eurodac for law enforcement purposes  
 
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

• 
The Regulation  (EU) No. 603/20131  that recasts  Regulation  No 2725/2000  of 11 December 
2000  concerning  the  establishment  of  ‘Eurodac’  for  the  comparison  of  fingerprints  for  the 
effective application of the Dublin Convention was adopted and entered into force on 19 July 
2013. The Regulation is applicable since 20 July 2015. 

The Regulation (EU) No. 603/2013 allows, inter alia, for the consultation of Eurodac by law 
enforcement authorities for the purpose of prevention, detection and investigation of terrorist 
offences  and  other  serious  criminal  offences.  This  aims  at  enabling  law  enforcement 
authorities  to  request  the  comparison  of  fingerprint  data  with  those  stored  in  the  Eurodac 
central database when they seek to establish the exact identity of or obtain further information 
concerning a person who is suspected of a terrorism or serious crime.  

On  26  October  2004,  the  Agreement  between  the  European  Community  and  the  Swiss 
Confederation concerning the criteria and mechanisms for establishing the State responsible 
for examining a request for asylum lodged in a Member State or in Switzerland (hereinafter: 
Agreement of 26 October 2004) was concluded2. On 28 February 2008, the Protocol between 
the European Community, the Swiss  Confederation and the Principality  of  Liechtenstein on 
the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement  between  the  European 
Community  and  the  Swiss  Confederation  concerning  the  criteria  and  mechanisms  for 
establishing  the  State  responsible  for  examining  a  request  for  asylum  lodged  in  a  Member 
State or in Switzerland (hereinafter: Protocol of 28 February 2008) was concluded3. 

Switzerland  and  Liechtenstein  apply  the  asylum  elements  of  the  Regulation  (EU)  No. 
603/2013  in  line  with  the  Agreement  of  26  October  2004  and  the  Protocol  of  28  February 
2008.  However,  the  law  enforcement  access  to  Eurodac  falls  outside  the  scope  of  the  said 
Agreement and Protocol.  

At  a  meeting  on  14  May  2014  with  representatives  from  the  Commission,  Denmark, 
Switzerland,  Liechtenstein,  Norway  and  Iceland  confirmed  their  interest  in  entering  into 
negotiations  with  the  European  Union  to  extend  the  law  enforcement  provisions  of  the 
Regulation (EU) No. 603/2013 to them via an international agreement.  

On  14  December  2015,  the  Council  authorised  the  Commission  to  open  negotiations  on 
agreement  between  the  European  Union,  on  the  one  part,  and,  inter  alia,  Switzerland  and 
Liechtenstein,  on  the  other  part,  on  the  modalities  of  the  participation  by  Switzerland  and 
Liechtenstein  to  the  procedure  for  comparison  and  data  transmission  for  law  enforcement 
purposes foreseen in chapter VI of the Regulation (EU) No 603/2013 on the establishment of 
'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) 

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Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the 
establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation 
(EU)  No  604/2013  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 and on requests for the comparison with Eurodac 
data  by  Member  States'  law  enforcement  authorities  and  Europol  for  law  enforcement  purposes,  and 
amending  Regulation  (EU)  No  1077/2011  establishing  a  European  Agency  for  the  operational 
management of large-scale IT systems in the area of freedom, security and justice (recast) (OJ L 180, 
29.6.2013, p. 1).  
OJ L 53, 27.2.2008, p. 5. 
OJ L 160, 18.6.2011, p. 39. 

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No  604/2013  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  and  on  requests  for  the 
comparison  with  Eurodac  data  by  Member  States'  law  enforcement  authorities  and  Europol 
for law enforcement purposes. 

The  negotiations  have  been  finalised  and  an  Agreement  in  the  form  of  a  Protocol  to  the 
Agreement  of  26  October  2004,  extending  the  application  of  the  Agreement  of  26  October 
2004 to law enforcement was initialled.  

The  extension  of  the  law  enforcement  provisions  of  the  Regulation  (EU)  No.  603/2013  to 
Switzerland  and  Liechtenstein  would  enable  the  law  enforcement  authorities  of  Switzerland 
and Liechtenstein to request a comparison of fingerprint data against the data entered by other 
participating  States  and  stored  in  the  Eurodac  database  when  they  seek  to  establish  the 
identity or get further information concerning a person who is suspected of a serious crime or 
terrorism  or  concerning  a  victim.  On  the  other  hand,  it  would  enable  the  law  enforcement 
authorities  of  all  other  participating  States,  whether  other  EU  Member  States  or  Associates 
Countries, to request a comparison of fingerprint data against the data entered by Switzerland 
and Liechtenstein and stored in the Eurodac database, for the same purposes.  

The objective of the present Protocol is to establish legally binding rights and obligations to 
ensure  the  effective  participation  of  Switzerland  and  Liechtenstein  in  the  law  enforcement 
elements of the Regulation (EU) No. 603/2013. The Protocol establishes that all participating 
States,  whether  other  EU  Member  States,  Associates  Countries  or  Switzerland  and 
Liechtenstein, with access to Eurodac, may also access each other's data for law enforcement 
purposes. 

• 

Consistency with existing policy provisions in the policy area 

The proposal is consistent with EU policies regarding access to Eurodac database 

• 

Consistency with other Union policies 

The proposal is consistent with the EU policies in the area of freedom, security and justice.    

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The legal basis for this proposal for a Council Decision is Article 87(2)(a), Article 88(2)(a) of 
the  Treaty  on  the  Functioning  of  the  European  Union  (TFEU),  in  conjunction  with  Article 
218(5) of the TFEU.  

• 

Subsidiarity (for non-exclusive competence)  

The Agreement of 26 October 2004 is an existing international agreement concluded by the 
EU and Switzerland. In accordance with the principle of subsidiarity set out in Article 5 TEU, 
the objectives of the Protocol to this Agreement can only be achieved through a proposal from 
the Commission at EU level. 

• 

Proportionality 

In order to support and strengthen police cooperation between the competent authorities of the  
Member  States  and  those  of  Switzerland  and  Liechtenstein  for  the  purpose  of  prevention, 
detection  and  investigation  of  terrorist  offences  and  other  serious  criminal  offences,  the 
involvement  of  the  EU  is  required  to  enable  Switzerland  and  Liechtenstein  to  participate  in 
the 
the 
law-enforcement-related  aspects  of  Eurodac.  The  proposal  complies  with 
proportionality principle because it does not go beyond what is necessary in order to achieve 

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the  objectives  of  the  effective  participation  of  Switzerland  and  Liechtenstein  in  the  law 
enforcement elements of the Eurodac Regulation (EU) No. 603/2013.  

• 

Choice of the instrument 

A  Decision  of  the  Council  authorising  the  signature  of  the  Agreement  is  required  under 
Article 218(5) TFEU 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

The Council (Asylum Working Party) has been consulted on the content and advancement of 
the negotiations. The European Parliament (LIBE Committee) has been informed.  

4. 

• 

OTHER ELEMENTS 

Detailed explanation of the specific provisions of the proposal 

The proposal sets out a decision authorising the signature of the Protocol between the EU and 
Switzerland and Liechtenstein on behalf of the European Union. The TFEU foresees for the 
Council  to  adopt  a  Commission  proposal  for  a  decision  to  authorise  the  signature  and 
conclusion of an international agreement. 

The Protocol establishes the application of Regulation (EU) No 603/2013 to Switzerland and 
Liechtenstein regarding access to Eurodac for law enforcement purposes. Therefore it enables 
the  designated  law  enforcement  authorities  of  the  other  participating  States  and  Europol  to 
request  a comparison of  fingerprint data against the data transmitted to  the Eurodac Central 
System  by  Switzerland  and  Liechtenstein.  It  also  enables  the  designated  law  enforcement 
authorities  of  Switzerland  and  Liechtenstein  to  request  a  comparison  of  fingerprint  data 
against the data transmitted to the Eurodac Central System by the other participating States. 

The Protocol guarantees that the current EU level of protection of personal data is applicable 
to the processing of personal data pursuant to the Protocol by the authorities of Switzerland 
and  Liechtenstein  and  of  the  Member  States.  Such  processing  of  personal  data  should  be 
subject to a standard of protection of personal data under their national law which complies 
with  Directive  (EU)  2016/680  of  the  European  Parliament  and  of  the  Council  of  27  April 
2016  on  the  protection  of  natural  persons  with  regard  to  the  processing  of  personal  data  by 
competent  authorities  for  the  purposes  of  the  prevention,  investigation,  detection  or 
prosecution  of  criminal  offences  or  the  execution  of  criminal  penalties,  and  on  the  free 
movement of such data, and repealing Council Framework Decision 2008/977/JHA. 

The Protocol conditions the access to Eurodac for law enforcement purposes by Switzerland 
and  Liechtenstein  by  prior  legal  and  technical  implementation  of  Decision  2008/615/JHA 
with regard to dactyloscopic data. 

The  Protocol  provides  that  the  mechanisms  regarding  amendments  provided  for  in  the 
Agreement  of  26  October  2004  should  apply  to  all  amendments  regarding  the  access  to 
Eurodac for law enforcement purposes. 

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2018/0421 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing, on behalf of the European Union, of a Protocol between the European 
Union, the Swiss Confederation and the Principality of Liechtenstein to the Agreement 
between the European Community and the Swiss Confederation concerning the criteria 
and mechanisms for establishing the State responsible for examining a request for 
asylum lodged in a Member State or in Switzerland regarding the access to Eurodac for 
law enforcement purposes 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 87(2)(a), Article 88(2)(a) and Article 218(5) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

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On 14 December 2015, the Council authorised the Commission to  open negotiations 
with  Switzerland  and  Liechtenstein  on  the  modalities  of  the  participation  by 
Switzerland and Liechtenstein to the procedure for comparison and data transmission 
for  law  enforcement  purposes  foreseen  in  chapter  VI  of  the  Regulation  (EU)  No 
603/2013 of the European Parliament and of the Council.4  

Negotiations were concluded and the Protocol to the Agreement of 26 October 2004 
between  the  European  Community  and  the  Swiss  Confederation  concerning  the 
criteria and mechanisms for establishing the State responsible for examining a request 
for asylum lodged in a Member State or in Switzerland was initialled on 22 November 
2017. 

This  Protocol  should  be  signed  on  behalf  of  the  European  Union,  subject  to  its 
conclusion at a later date.  

In accordance with  Article 3 of the Protocol  on the Position  of the United Kingdom 
and  Ireland  in  respect  of  the  Area  of  Freedom,  Security  and  Justice  annexed  to  the 
Treaty on European Union and the Treaty on the Functioning of the European Union, 
these  Member  States  have  notified  their  wish  to  take  part  in  the  adoption  and 
application of this Decision.  

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, Denmark is not taking part in the adoption of this Decision and is not 
bound by it or subject to its application,  

Regulation (EU) No 603/2013 on the establishment of 'Eurodac' for the comparison of fingerprints for 
the effective application of Regulation (EU) No 604/2013 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 and on requests for 
the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law 
enforcement purposes (OJ L 180, 29.6.2013, p. 1). 

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HAS ADOPTED THIS DECISION:  

Article 1 

The  signing  of  the  Protocol  between  the  European  Union,  the  Swiss  Confederation  and  the 
Principality  of  Liechtenstein  to  the  Agreement  between  the  European  Community  and  the 
Swiss  Confederation  concerning  the  criteria  and  mechanisms  for  establishing  the  State 
responsible for examining a request for asylum lodged in  a Member State or in Switzerland 
regarding the access to Eurodac for law enforcement purposes is hereby approved on behalf 
of the European Union, subject to the conclusion of the said Protocol.  

The  Council  Secretariat  General  shall  establish  the  instrument  of  full  powers  to  sign  the 
Protocol,  subject  to  its  conclusion,  for  the  person(s)  indicated  by  the  negotiator  of  the 
Protocol.  

Article 2 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Article 3 

Done at Brussels, 

For the Council 
The President 

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