Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of a Protocol between the European Union, the Republic of Iceland and the Kingdom of Norway to the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway regarding the access to Eurodac for law enforcement purposes
Date: 2018-12-13
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Iceland, Norway, 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) 827 final 2018/0420 (NLE)  Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of a Protocol between the European Union, the Republic of Iceland and the Kingdom of Norway to the Agreement between the European Community and the Republic of Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in a Member State or in Iceland or Norway 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 19 January 2001, the Agreement between the European Community and the Republic of 
Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing 
the  State  responsible  for  examining  a  request  for  asylum  lodged  in  a  Member  State  or  in 
Iceland or Norway (hereinafter: Agreement of 19 January 2001) was concluded2.  

Iceland and Norway apply the asylum elements of the Regulation (EU) No. 603/2013 in line 
with  the  Agreement  of  19  January  2001.  However,  the  law  enforcement  access  to  Eurodac 
falls outside the scope of the said Agreement.  

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, Iceland and Norway, 
on  the  other  part,  on  the  modalities  of  the  participation  by  Iceland  and  Norway  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)  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. 

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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 93, 03.04.2001, p. 40. 

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The  negotiations  have  been  finalised  and  an  Agreement  in  the  form  of  a  Protocol  to  the 
Agreement  of  19  January  2001,  extending  the  application  of  the  Agreement  of  19  January 
2001 to law enforcement was initialled.  

The  extension  of  the  law  enforcement  provisions  of  the  Regulation  (EU)  No.  603/2013  to 
Iceland and Norway would enable the law enforcement authorities of Iceland and Norway 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 Iceland and Norway 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 Iceland and Norway 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 Iceland and Norway, 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 19  January  2001 is  an existing international agreement concluded by the 
EU and Iceland and Norway. 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 Iceland and Norway 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  Iceland  and  Norway  to  participate  in  the  law-enforcement-related 
aspects of Eurodac. The proposal complies with the proportionality principle because it does 
not  go  beyond  what  is  necessary  in  order  to  achieve  the  objectives  of  the  effective 
participation  of  Iceland  and  Norway  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. 

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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 
Iceland and Norway 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  Iceland  and 
Norway 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 Iceland and Norway. It also enables the designated law enforcement authorities of 
Iceland and Norway 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 Iceland and 
Norway 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 Iceland and 
Norway 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  19  January  2001  should  apply  to  all  amendments  regarding  the  access  to 
Eurodac for law enforcement purposes. 

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2018/0420 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing, on behalf of the European Union, of a Protocol between the European 
Union, the Republic of Iceland and the Kingdom of Norway to the Agreement between 
the European Community and the Republic of Iceland and the Kingdom of Norway 
concerning the criteria and mechanisms for establishing the State responsible for 
examining a request for asylum lodged in a Member State or in Iceland or Norway 
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) in conjunction with 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 Iceland and Norway on the modalities of the participation by Iceland and Norway 
in  the  comparison  and  data  transmission  for  law  enforcement  purposes  foreseen  in 
chapter  VI  of  Regulation  (EU)  No  603/2013  of  the  European  Parliament  and  of  the 
Council.3  

Negotiations  were  concluded  and  the  Protocol  to  the  Agreement  of  19  January  2001 
between  the  European  Community  and  the  Republic  of  Iceland  and  the  Kingdom  of 
Norway concerning the criteria and mechanisms for establishing the State responsible 
for examining a request for asylum lodged in a Member State or in Iceland or Norway 
was initialled on 21 December 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  Republic  of  Iceland  and  the 
Kingdom of Norway to the Agreement between the European Community and the Republic of 
Iceland and the Kingdom of Norway concerning the criteria and mechanisms for establishing 
the  State  responsible  for  examining  a  request  for  asylum  lodged  in  a  Member  State  or  in 
Iceland or Norway 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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