Proposal for a COUNCIL DECISION on the conclusion of the Agreement between the European Union and the Swiss Confederation on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, of Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, and of Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities
Date: 2019-01-31
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Switzerland, biometrics, cooperation agreement (EU), cross-border cooperation, exchange of information, genetic database, police cooperation, ratification of an agreement, terrorism, vehicle registration

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 31.1.2019 COM(2019) 26 final 2019/0013 (NLE)  Proposal for a COUNCIL DECISION on the conclusion of the Agreement between the European Union and the Swiss Confederation on the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, of Council Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, and the Annex thereto, and of Council Framework Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Council  Decision  2008/615/JHA  of  23 June  2008  on  the  stepping  up  of  cross-border 
cooperation,  particularly  in  combating  terrorism  and  cross-border  crime1  (‘the  Prüm 
Decision’),  was  adopted  in  order  to  incorporate  into  the  legal  framework  of  the  European 
Union  the  substance  of  the  provisions  of  the  previous  Prüm  Treaty  on  the  stepping  up  of 
cross-border cooperation, particularly on combating terrorism, cross-border crime and illegal 
migration,  which  was  agreed  by  seven  European  Countries  on  27  May  2005.  On  the  same 
day, the Council also adopted Decision 2008/616/JHA of 23 June 2008 on the implementation 
of  Decision  2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation,  particularly  in 
combating terrorism and cross-border crime2 (‘the Prüm Implementing Decision’), which lays 
down the necessary technical provisions for the implementation of Decision 2008/615/JHA.  

The  Prüm  Decision  and  the  Prüm  Implementing  Decision  are  designed  to  improve  the 
exchange  of  information  between  the  authorities  responsible  for  the  prevention  and 
investigation of criminal offences and to enhance cross-border police and judicial cooperation 
among the Member States of the Union. The Prüm  Decision contains,  inter alia, provisions 
whereby Member States grant one another, on a mutual basis, access rights to their automated 
DNA  analysis  files,  automated  dactyloscopic  identification  systems  and  vehicle  registration 
data.  The  information  obtained  by  comparing  data  will  open  up,  indeed,  new  investigative 
approaches  and  thus  play  a  crucial  role  in  assisting  Member  States'  law  enforcement  and 
judicial authorities.  

On 30 November 2009, the Council adopted Council Framework Decision 2009/905/JHA on 
accreditation  of  forensic  service  providers  carrying  out  laboratory  activities3  (‘the  Forensic 
Decision’). This Council Framework Decision lays down the requirements for the exchange 
of DNA and fingerprint data, in order to ensure that the results of laboratory activities carried 
out  by  accredited  forensic  service  providers  in  one  Member  State  are  recognised  by  the 
authorities responsible for the prevention, detection and investigation of criminal offences as 
being  equally  reliable  as  the  results  of  laboratory  activities  carried  out  by  forensic  service 
providers accredited to EN ISO/IEC 17025 within any other Member State.  

In  October  2015,  the  Commission  submitted  the  recommendation  for  a  Council  Decision 
authorising  the  negotiations  for  the  conclusion  of  agreements  with  the  Swiss  Confederation 
and  the  Principality  of  Liechtenstein  on  the  application  of  certain  provisions  of  Council 
Decision  2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation,  particularly  in 
combating  terrorism  and  cross-border  crime,  of  Council  Decision  2008/616/JHA  on  the 
implementation  of  Decision  2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation, 
particularly in combating terrorism and cross-border crime, and the Annex thereto, including 
the Annex (Negotiation Directives), to the Council. 

On 10 June 2016, the Council authorised the Commission to open negotiations with the Swiss 
Confederation and the Principality of Liechtenstein on the application of certain provisions of 
Council Decision 2008/615/JHA, of Council Decision 2008/616/JHA, and the Annex thereto, 
and  of  Council  Framework  Decision  2009/905/JHA  on  accreditation  of  forensic  service 

1 
2 
3 

OJ L 210, 6.8.2008, p. 1. 
OJ L 210, 6.8.2008, p. 12. 
OJ L 322, 9.12.2009, p. 14. 

EN 

1 

  EN 

 
                                                 
providers carrying out laboratory activities. The negotiations have been successfully finalised 
with the both countries by the initialling of the Agreement on 24 May 2018. 

The Commission considers that the objectives set by the Council in its negotiating directives 
were attained and that the draft Agreement is acceptable to the Union.  

This  international  agreement between the EU and the Swiss  Confederation  aims to  improve 
and  simplify  the  automated  exchange  of  information  and  intelligence  between  law 
enforcement  authorities  of  the  Member  States  and  the  associated  countries,  in  order  to 
stimulate international police cooperation. The possibility for all the  Member States to have 
access  to  the  national  databases  of  the  Swiss  Confederation,  regarding  the  DNA, 
dactyloscopic  and  vehicle  registration  data,  and  the  other  way  around,  is  undoubtedly  of 
central importance in order to foster and encourage the cross border police cooperation. The 
improvement  of  law  enforcement  information  exchange  for  maintaining  the  security  in  the 
European Union cannot be sufficiently achieved by the Member States in isolation, due to the 
nature of international crime which is not confined to the EU borders. 

• 

Consistency with existing policy provisions in the policy area 

Council  Framework  Decision  2006/960/JHA  of  18  December  2006  on  simplifying  the 
exchange of information and intelligence between law enforcement authorities of the Member 
States  of the European Union4, the so-called ‘Swedish  Initiative’, constitutes a development 
of  provisions  of  the  Schengen  acquis  within  the  meaning  of  the  Agreement  between  the 
European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation's  association  with  the  implementation,  application  and  development  of  the 
Schengen acquis5. 

The Swedish Initiative is, to a certain extent, related to the Prüm Decision, since it lays down 
rules  whereby  the  law  enforcement  authorities  of  the  Member  States  and  the  associated 
countries  may  exchange  existing  information  and  intelligence  effectively  for  the  purpose  of 
carrying out criminal investigations or criminal intelligence operations. According to Article 
5(1) of the Swedish Initiative, information and intelligence may be requested for the purpose 
of  detection,  prevention  or  investigation  of  an  offence  when  there  are  factual  reasons  to 
believe  that  the  relevant  information  and  intelligence  is  available  in  another  Member  State. 
The  automated  information  exchange  under  the  Prüm  Decision  is  suitable  to  establish  such 
factual reasons.  
Moreover, according to Article 20(1) of Regulation (EU) No 603/20136, prior to making a law 
enforcement access request to Eurodac, Member States must first check fingerprint databases 
available  under  national  law  and  compare  the  fingerprint  dataset  with  the  Automated 
Fingerprint Databases of other Member States under the Prüm Decision. Member States that 

4 
5 
6 

OJ L 386, 29.12.2006, p. 89. 
OJ L 53, 27.2.2008, p. 52. 
Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the 
establishment  of  'Eurodac'  for  comparison  of  fingerprints  for  the  effective  application  of  Regulation 
(EU)  No  604/2013  establishing  the  criteria  and  mechanism  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). 

EN 

2 

  EN 

 
 
                                                 
do  not  fulfil  the  pre-condition  of  undertaking  a  Prüm  check,  which  is  a  compulsory  pre-
requisite, will not be able to make a law enforcement access request to Eurodac.  

On  14  December  2015,  the  Council  authorised  the  Commission  to  open  negotiations  on 
agreements between the Union, on the one part, and Denmark, Iceland, Norway, Switzerland 
and Liechtenstein, on the other part, on the modalities of the participation by these States to 
the procedure for comparison and data transmission for law enforcement purposes laid down 
in the Chapter VI of Regulation (EU) No 603/2013.  

The international agreement between the Union and Iceland and Norway on the application of 
certain  provisions  of  Council  Decision  2008/615/JHA  on  the  stepping  up  of  cross-  border 
cooperation, particularly in combating terrorism and cross-border crime and Council Decision 
2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of cross-
border  cooperation,  particularly  in  combating  terrorism  and  cross-border  crime,  was 
concluded on 26 July 2010. 
In accordance with Article 3 of Protocol No 217 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 shall notify their wish to take part in the adoption and application of this proposal for a 
Council Decision within three months after its adoption by the Commission.  
In accordance with Articles 1 and 2 of Protocol No 228 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. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  for  this  proposal  for  a  Council  Decision  is  Article  82(1)(d)  and  Article 
87(2)(a),  in  conjunction  with  Article  218(6)(a)  of  the  Treaty  on  the  Functioning  of  the 
European Union (TFEU). 

The  consent  of  the  European  Parliament  is  required  for  the  conclusion  of  this  agreement 
pursuant to Article 218(6)(a)(v) of TFEU. 

• 

Subsidiarity (for non-exclusive competence)  

In accordance with the principle of subsidiarity set out in Article 5 of the Treaty on European 
Union, the objectives of this Agreement can only be achieved at Union level. 

• 

Proportionality 

In  order  to  stimulate  international  cooperation  in  this  area,  it  is  of  fundamental  importance 
that all the participants  who exchange data under the Prüm Framework implement the same 
technical, procedural and data protection standards and requirements in order to allow for fast, 
efficient  and  accurate  exchange  of 
the 
proportionality principle because it does not go beyond what is necessary in order to achieve 
the objectives of the effective participation of the Swiss Confederation in the Prüm Decisions 
and the Forensic Decision.  

information.  The  proposal  complies  with 

7 
8 

OJ C 202, 7.6.2016, p. 295. 
OJ C 326, 26.10.2012, p. 299. 

EN 

3 

  EN 

 
                                                 
• 

Choice of the instrument 

This proposal is in accordance with Article 218(6)(a) TFEU, which envisages the adoption by 
the Council of decisions on international agreements, following the consent of the European 
Parliament.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable. 

• 

Stakeholder consultations 

The  Council  has  been  informed  and  consulted  in  the  relevant  Council  Working  Group 
(DAPIX). The European Parliament (LIBE Committee) has been informed. 

• 

Fundamental rights 

The Agreement is fully in line with fundamental rights and data protection principles stated in 
the Prüm Decision (Chapter 6). 

4. 

BUDGETARY IMPLICATIONS 

Recital 8 of the Agreement states that the Swiss Confederation should bear the costs incurred 
by its own authorities in connection with the application of this Agreement. Article 1(1) of the 
Agreement  lists  the  applicable  articles  of  the  Prüm  Decision  including  Article  34,  which 
provides  that  each  Member  State  shall  bear  the  operational  costs  incurred  by  its  own 
authorities  in  connection  with  the  application  of  the  Prüm  Decision.  Article  1(4)  applies 
similar obligation for the Member States concerning the Forensics Decision. Thus, there are 
no budgetary implications for the Union budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  implementation,  including  prior  evaluation  by  the  Council  and  Member  States, 
notifications and declarations are described in the Article 8 of the Agreement. 

• 

Detailed explanation of the specific provisions of the proposal 

The Agreement lists the provisions of the Prüm  Decision, the Prüm  Implementing  Decision 
and the Forensic Decision that shall become applicable to the Swiss Confederation after entry 
into force of the Agreement. 

The Agreement also sets the provisions for uniform application (Article 3), dispute settlement 
(Article 4), amendments (Article 5), notifications and declarations (Article 8). The contracting 
Parties agree to carry out common review of the agreement no later than five years after its 
entry into force (Article 6). The Agreement is concluded for an indefinite period whilst one of 
the Contracting Parties can terminate the Agreement at any time (Article 10). 

EN 

4 

  EN 

 
 
 
2019/0013 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the conclusion of the Agreement between the European Union and the Swiss Confederation on 
the application of certain provisions of Council Decision 2008/615/JHA on the stepping up of 
cross-border cooperation, particularly in combating terrorism and cross-border crime, of Council 
Decision 2008/616/JHA on the implementation of Decision 2008/615/JHA on the stepping up of 
cross-border cooperation, particularly in combating terrorism and cross-border crime, and the 
Annex thereto, and of Council Framework Decision 2009/905/JHA on accreditation of forensic 
service providers carrying out laboratory activities 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular  Article 
82(1)(d) and Article 87(2)(a), in conjunction with Article 218(6)(a) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the consent of the European Parliament, 

Whereas: 

(1) 

In accordance with Council Decision [XXX] of [XXX]1, the Agreement between the European 
Union and the Swiss Confederation on the application of certain provisions of Council Decision 
2008/615/JHA2  on  the  stepping  up  of  cross-border  cooperation,  particularly  in  combating 
terrorism and cross-border crime, of Council Decision 2008/616/JHA3 on the implementation of 
Decision  2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation,  particularly  in 
combating terrorism and cross-border crime, and the Annex thereto, and of Council Framework 
Decision  2009/905/JHA4  on  accreditation  of  forensic  service  providers  carrying  out  laboratory 
activities (‘the Agreement’) was signed on [XXX], subject to its conclusion at a later date. 

(2) 

The  improvement  of  law  enforcement  information  exchange  for  maintaining  security  in  the 
Union  cannot  be  sufficiently  achieved  by  the  Member  States  in  isolation,  due  to  the  nature  of 
international  crime,  which  is  not  confined  to  the  Union  borders.  The  possibility  for  all  the 
Member  States  and  the  Swiss  Confederation  to  have  reciprocal  access  to  national  databases 

1 

2 

3 

4 

Council Decision [XXX] of [XXX] on the signing, on behalf of the European Union, and on provisional application 
of certain provisions of the Agreement between the European Union and the Swiss Confederation on the application 
of certain provisions of Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly 
in  combating  terrorism  and  cross-border  crime,  of  Council  Decision  2008/616/JHA  on  the  implementation  of 
Decision  2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation,  particularly  in  combating  terrorism  and 
cross-border crime, and the Annex thereto, and of Council Framework  Decision 2009/905/JHA on accreditation of 
forensic service providers carrying out laboratory activities (OJ L […], […]. p. […]). 
Council  Decision  2008/615/JHA  of  23  June  2008  on  the  stepping  up  of  cross-border  cooperation,  particularly  in 
combating terrorism and cross-border crime (OJ L 210, 6.8.2008, p. 1). 
Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping 
up  of  cross-border  cooperation,  particularly  in  combating  terrorism  and  cross-border  crime  (OJ  L  210,  6.8.2008, 
p. 12). 
Council  Framework  Decision  2009/905/JHA  of  30  November  2009  on  accreditation  of forensic  service  providers 
carrying out laboratory activities (OJ L 322, 9.12.2009, p. 14). 

EN 

5 

  EN 

 
                                                 
(3) 

(4) 

(5) 

(6) 

regarding DNA analysis files, dactyloscopic identification systems and vehicle registration data 
is of central importance to foster cross-border law enforcement cooperation. 

In  accordance  with  Article  8  of  the  Agreement,  some  of  its  provisions  are  applied  on  a 
provisional basis as from the day of its signature. 

The Agreement should be approved on behalf of the European Union. 

[In  accordance  with  Article  3  of  Protocol  No  21  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  to  the  Treaty  on  the  Functioning  of  the  European  Union,  those  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, 

HAS ADOPTED THIS DECISION:  

Article 1 

The Agreement between the European Union and the Swiss Confederation on the application of certain 
provisions  of  Council  Decision  2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation, 
particularly in combating terrorism and cross-border crime, of Council Decision 2008/616/JHA on the 
implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly 
in  combating  terrorism  and  cross-border  crime,  and  the  Annex  thereto,  and  of  Council  Framework 
Decision 2009/905/JHA on accreditation of forensic service providers carrying out laboratory activities 
(‘the Agreement’) is hereby approved on behalf of the Union. 

The  President  of  the  Council  shall  designate  the  person  empowered  to  proceed,  on  behalf  of  the 
European  Union,  to  give  the  notification  provided  for  in  Article  8(1)  of  the  Agreement,  in  order  to 
express the consent of the European Union to be bound by the Agreement5. 

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 

5 

The date of entry into force of the Agreement will be published in the Official Journal of the European Union by the 
General Secretariat of the Council. 

EN 

6 

  EN