Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement
Date: 2018-12-14
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Denmark, 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, 14.12.2018 COM(2018) 836 final 2018/0424 (NLE)  Proposal for a COUNCIL DECISION on the signing, on behalf of the European Union, of a Protocol to the Agreement between the European Community and the Kingdom of Denmark on the criteria and mechanisms for establishing the State responsible for examining a request for asylum lodged in Denmark or any other Member State of the European Union and 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention extending that agreement to law enforcement   
 
 
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.  

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  the  Kingdom  of 
Denmark  (hereinafter  referred  to  as  ‘Denmark’),  annexed  to  the  TEU  and  to  the  TFEU, 
Denmark  does  not  take  part  in  the  adoption  of  Title  V  acquis  and  therefore  does  not 
participate in the Regulation (EU) No. 603/2013.  

On  8  March  2006,  the  Agreement  between  the  European  Community  and  the  Kingdom  of 
Denmark on the criteria and mechanisms for establishing the State responsible for examining 
a request for asylum lodged in Denmark or any other Member State of the European Union 
and  ‘Eurodac’  for  the  comparison  of  fingerprints  for  the  effective  application  of  the  Dublin 
Convention (hereinafter referred to as ‘the Agreement of 8 March 2006’) was concluded2. 

Denmark applies the asylum elements of the Regulation (EU) No. 603/2013 in line with the 
Agreement of 8 March 2006. 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 and the 
Associate Countries 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 Denmark, on the other part, on 
the  modalities  of  the  participation  by  Denmark  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 

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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 66, 8.3.2006, p. 38. 

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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 8 March 2006, extending the application of the Agreement of 8 March 2006 to 
law enforcement was initialled.  

The  extension  of  the  law  enforcement  provisions  of  the  Regulation  (EU)  No.  603/2013  to 
Denmark would enable the law enforcement authorities of Denmark 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 Denmark 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  Denmark  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 Denmark, 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 8 March 2006 is an existing international agreement concluded by the EU 
and Denmark. 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 the Kingdom of Denmark 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 Denmark 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 
Denmark in the law enforcement elements of the Eurodac Regulation (EU) No. 603/2013.  

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• 

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 
Denmark  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  Denmark 
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 Denmark. It also enables the designated law enforcement authorities of Denmark 
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 Denmark 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 Denmark 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 8 March 2006 should apply to all amendments regarding the access to Eurodac 
for law enforcement purposes. 

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2018/0424 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the signing, on behalf of the European Union, of a Protocol to the Agreement between 
the European Community and the Kingdom of Denmark on the criteria and 
mechanisms for establishing the State responsible for examining a request for asylum 
lodged in Denmark or any other Member State of the European Union and 'Eurodac' 
for the comparison of fingerprints for the effective application of the Dublin Convention 
extending that agreement to law enforcement 

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) 

On 14 December 2015, the Council authorised the Commission to  open negotiations 
with Denmark on the modalities of the participation by Denmark 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.3  

Negotiations  were  concluded  and  the  Protocol  to  the  Agreement  of  8  March  2006 
between the European Community  and the Kingdom  of Denmark on the criteria and 
mechanisms for establishing the State responsible for examining a request for asylum 
lodged in Denmark or any other Member State of the European Union and ‘Eurodac’ 
for  the  comparison  of  fingerprints  for  the  effective  application  of  the  Dublin 
Convention was initialled on 11 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.  

(5) 

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 

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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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European Union, Denmark is not taking part in the adoption of this Decision and is not 
bound by it or subject to its application,  

HAS ADOPTED THIS DECISION:  

Article 1 

The  signing  of  the  Protocol  to  the  Agreement  between  the  European  Community  and  the 
Kingdom  of  Denmark  on  the  criteria  and  mechanisms  for  establishing  the  State  responsible 
for  examining  a  request  for  asylum  lodged  in  Denmark  or  any  other  Member  State  of  the 
European Union and 'Eurodac' for the comparison of fingerprints for the effective application 
of the Dublin Convention extending that agreement to law enforcement 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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