Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Specialised Committee on Law Enforcement and Judicial Cooperation established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the period referred to in Article 540(3) of the EU UK Trade and Cooperation Agreement (Prüm) during which DNA-profiles and fingerprints can be exchanged with the United Kingdom
Date: 2021-08-27
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: DNA, EAEC, United Kingdom, biometrics, cooperation agreement (EU), cross-frontier data flow, joint committee (EU), police cooperation, trade agreement, trade agreement (EU)

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   EUROPEAN COMMISSION  Brussels, 27.8.2021  COM(2021) 495 final 2021/0280 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the Specialised Committee on Law Enforcement and Judicial Cooperation established by the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, regarding the extension of the period referred to in Article 540(3) of the EU UK Trade and Cooperation Agreement (Prüm) during which DNA-profiles and fingerprints can be exchanged with the United Kingdom  
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  decision  establishing  the  position  to  be  taken  on  behalf  of  the 
European Union in the Specialised Committee on Law Enforcement and Judicial Cooperation 
in  connection  with  Article  540(3)  of  the  Trade  and  Cooperation  Agreement  between  the 
European  Union  and  the  European  Atomic  Energy  Community,  of  the  one  part,  and  the 
United  Kingdom  of  Great  Britain  and  Northern  Ireland,  of  the  other  part  (hereafter:  ‘the 
TCA’). 

The  TCA  includes  the  possibility  for  reciprocal  cooperation  between  the  competent  law 
enforcement authorities of the Member States, on the one side, and the United Kingdom, on 
the other side, on the automated comparison of DNA profiles, dactyloscopic data and vehicle 
registration data. In order for the UK to take advantage of these possibilities, it will first need 
to take the necessary implementing measures and undergo an evaluation.  

Prior to the TCA, the United Kingdom  and the Member States were already cooperating by 
automated  comparison  of  DNA-profiles  and  fingerprints,  and  providing  personal  data 
following a hit.  In order to  avoid  a gap in  ongoing cooperation, the TCA stipulates that the 
Member  States  may  supply  such  data  to  the  United  Kingdom  pending  the  outcome  of 
evaluations  required  by  the  TCA  until  30  September  2021.  This  interim  period  can  be 
extended  once  by  a  maximum  of  nine  months,  i.e.  until  30  June  2022,  by  the  Specialised 
Committee on Law Enforcement and Judicial Cooperation.  

2. 

2.1. 

CONTEXT OF THE PROPOSAL 

The  Trade  and  Cooperation  Agreement  between  the  EU  and  the  United 
Kingdom  

The  TCA  establishes  the  basis  for  a  broad  relationship  between  the  EU  and  the  United 
Kingdom, within an area of prosperity and good neighbourliness, characterised by close and 
peaceful relations based on cooperation, respectful of the Parties’ autonomy and sovereignty. 
The  TCA  entered  into  force  on  1  May  2021  and  established,  amongst  others,  a  Specialised 
Committee on Law Enforcement and Judicial Cooperation.  

2.2. 

The Specialised Committee on Law Enforcement and Judicial Cooperation    

The  Specialised  Committee  on  Law  Enforcement  and  Judicial  Cooperation  is  established  to 
address  matters  covered  by Part Three of the TCA, entitled “Law Enforcement and Judicial 
Cooperation in Criminal Matters”. The TCA establishes several Specialised Committees.  

With respect to issues related to their area of competence, Specialised Committees shall have 
the power to, amongst others, monitor and review the implementation and ensure the proper 
functioning of the TCA, assist the overarching Partnership Council in the performance of its 
tasks  and  adopt  decisions,  including  amendments,  and  recommendations  in  respect  of  all 
matters where this Agreement or any supplementing agreement so provides.   

2.3. 

The  envisaged  act  of  the  Specialised  Committee  on  Law  Enforcement  and 
Judicial Cooperation 

Article 540(3) of the TCA provides that the Specialised Committee on Law Enforcement and 
Judicial  Cooperation  can  extend  the  period  during  which  Member  States  may  continue  to 
compare  data  as  referred  to  in  Articles  530,  531  and  534  and,  in  case  of  a  match,  supply 
further  available  personal  data  under  domestic  law,  including  legal  assistance  rules,  as 
referred to in Article 536 of the TCA. This period will end on 30 September 2021, unless the 

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Specialised Committee on Law Enforcement and Judicial Cooperation decides to extend it by 
a maximum of nine months.  

The decision of the Specialised Committee on Law Enforcement and Judicial Cooperation to 
extend the above-mentioned period may take any form. The decisions of the co-chairs shall be 
taken by mutual consent (see Article 1(2) of Annex 1 of the TCA). The decision can be taken 
at  any  time,  but  in  order  to  avoid  a  gap  in  cooperation,  it  would  need  to  be  taken  before  1 
October 2021.  

3. 

POSITION TO BE TAKEN ON THE UNION’S BEHALF 

3.1. 

Background 

The  TCA  includes  the  possibility  for  reciprocal  cooperation  between  the  competent  law 
enforcement authorities of the Member States, on the one side, and the United Kingdom, on 
the other side, on the automated comparison of DNA profiles, dactyloscopic data and vehicle 
registration data. In order for the UK to take advantage of these possibilities, it will first need 
to take the necessary implementing measures and undergo an evaluation.  

On the basis of an overall evaluation  report on the evaluation visit  and, where applicable, a 
pilot run, the Union shall determine the date or dates from which such data may be supplied 
by Member States to the United Kingdom.   

Under  the  TCA,  the  United  Kingdom  also  has  to  undergo  an  evaluation  regarding  the 
automated  transfer  of  DNA  and  dactyloscopic  data  for  which  the  connections  with  the  UK 
were already established under the Union’s “Prüm” framework1.  

Under  Article  540(2)  of  the  TCA,  the  Union  shall  determine  the  date  or  dates  from  which 
personal data may be supplied by Member States to the United Kingdom pursuant to the TCA 
on the basis of an overall evaluation report on the evaluation visit and, where applicable, the 
pilot run. 

In order to avoid a gap in ongoing cooperation concerning DNA and dactyloscopic  data, the 
TCA  stipulates  that  Member  States  may  supply  data  to  the  United  Kingdom  pending  the 
outcome of these evaluations and the decision referred to in Article 540(2) of the TCA until 
30 September 2021. This interim period can be extended once by a maximum of nine months, 
i.e.  to  30  June  2022,  by  the  Specialised  Committee  on  Law  Enforcement  and  Judicial 
Cooperation. 

3.2. 

Need for a Council Decision  

The evaluation of the UK under the TCA is at a very early stage. Past evaluation procedures 
carried  out  under  the  Union’s  “Prüm”  framework  have  taken  at  least  six  months. 
Subsequently, additional time is required to allow the Council to process the evaluation report 
and  to  decide  formally  that  such  data  may  be  exchanged.  For  these  reasons,  it  is  highly 
unlikely  that  the  abovementioned  process  will  be  finalised  by  September  2021.  This  means 
that  there  is  a  significant  risk  that  a  gap  in  cooperation  concerning  DNA  and  dactyloscopic 
data  would  arise  from  1  October  2021.  This  would  present  concrete  risks  for  the  internal 
security  of  the  Union.  As  the  Specialised  Committee  on  Law  Enforcement  and  Judicial 
Cooperation can extend the interim period only once, it is proposed to do so for the maximum 
period of nine months, i.e. until 30 June 2022. 

1 

Council  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.  1)  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 (OJ L 210, 6.8.2008, p. 12). 

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At the same time, it has to be taken into account that the Union already evaluated the UK as 
regards  the  exchange  of  DNA  profiles  and  dactyloscopic  data  under  its  “Prüm”  framework. 
The Commission is not aware of any legislative or regulatory measures taken by the United 
Kingdom  since  these  evaluations  that  would  affect  the  outcome  of  the  ongoing  evaluation 
under  the  TCA.  In  other  words,  prima  facie,  the  Commission  assumes  that  the  United 
Kingdom still applies the same procedures and conditions as it did when it was evaluated in 
2018  (for  DNA-profiles)  and  2019  (for  dactyloscopic  data)  under  the  Union’s  “Prüm” 
framework. 

In these circumstances, it is therefore appropriate to establish the position to be taken on the 
Union’s behalf in the Specialised Committee on Law Enforcement and Judicial Cooperation 
on the possible extension, pursuant to Article 540(3) of the TCA, of the period during which 
Member  States  may  continue  to  exchange  data  as  referred  to  in  Articles  530,  531,  and  534 
and, in case of a match, supply further available personal data under domestic law, including 
legal assistance rules, as referred to in Article 536 of the TCA with the United Kingdom. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law governing the body in question. It also includes instruments that do 
not  have  a  binding  effect  under  international  law,  but  that  are  ‘capable  of  decisively 
influencing the content of the legislation adopted by the EU legislature’2. 

4.1.2.  Application to the present case 

The Specialised Committee on Law Enforcement and Judicial Cooperation is a body set up by 
an agreement, namely the TCA.  

Article 540(3) of the TCA provides for the possibility that the Specialised Committee on Law 
Enforcement  and  Judicial  Cooperation  extend  the  period  during  which  Member  States  may 
continue to exchange data as referred to in Articles 530, 531 and 534 and, in case of a match, 
supply further available personal data as referred to in Article 536 of the TCA with the United 
Kingdom. Therefore, the adoption of a Union position in respect of such decision falls within 
the scope of Article 218(9) TFEU.   

The legal effects of the extension fall completely on the Union, as a party to the TCA. This 
entails  that,  in  accordance  with  Article  3(2)  TFEU,  the  Union  has  exclusive  competence  in 
this matter. 

The decision on an extension of the period referred to in Article 540(3) of the TCA does not 
entail that the framework of the TCA be supplemented or amended.  

Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU. 

2 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v.  Council,  C-399/12, 

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4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union’s behalf. If the envisaged act pursues two aims or has two components and if one of 
those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  other  is  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

With regard to an envisaged act that simultaneously pursues a number of objectives, or that 
has  several  components,  which  are  inseparably  linked  without  one  being  incidental  to  the 
other,  the  substantive  legal  basis  of  a  decision  under  Article  218(9)  TFEU  will  have  to 
include, exceptionally, the various corresponding legal bases. 

4.2.2.  Application to the present case 

The  extension  of  the  period  referred  to  in  Article  540(3)  TCA  pursues  objectives  and  has 
components in the area of police cooperation.  

Therefore, the substantive legal basis of the proposed decision is Article 87(2)(a) TFEU.  

4.3. 

Conclusion 

The legal basis of the proposed decision should be Article 87(2)(a) TFEU, in conjunction with 
Article 218(9) TFEU. 

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2021/0280 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the Specialised 
Committee on Law Enforcement and Judicial Cooperation established by the Trade and 
Cooperation Agreement between the European Union and the European Atomic Energy 
Community, of the one part, and the United Kingdom of Great Britain and Northern 
Ireland, of the other part, regarding the extension of the period referred to in Article 
540(3) of the EU UK Trade and Cooperation Agreement (Prüm) during which DNA-
profiles and fingerprints can be exchanged with the United Kingdom 

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), in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

The  Trade  and  Cooperation  Agreement  between  the  European  Union  and  the 
European  Atomic  Energy  Community,  of  the  one  part,  and  the  United  Kingdom  of 
Great Britain and Northern Ireland, of the other part (hereafter: ‘the TCA’)3 provides 
for reciprocal  cooperation between the competent  law enforcement  authorities of the 
Member  States,  on  the  one  side,  and  the  United  Kingdom,  on  the  other  side,  on  the 
automated  comparison  of  DNA  profiles,  dactyloscopic  data  and  vehicle  registration 
data.  As  a  prerequisite  for  such  cooperation,  the  United  Kingdom  first  needs  to  take 
the necessary implementing measures and undergo an evaluation by the Union.  

On  the  basis  of  an  overall  evaluation  report  on  the  evaluation  visit  and,  where 
applicable,  a  pilot  run,  the  Union  is  to  determine  the  date  or  dates  from  which  such 
data may be supplied by Member States to the United Kingdom pursuant to TCA.   

The  United  Kingdom  also  has  to  undergo  an  evaluation  regarding  searching  and 
comparing  DNA  profiles  and  dactyloscopic  data  for  which  the  connections  with  the 
United Kingdom were already established under the Union’s “Prüm” framework4. 

Under  Article  540(2)  of  the  TCA,  the  Union  shall  determine  the  date  or  dates  from 
which personal data may be supplied by Member States to the United Kingdom on the 
basis of an overall evaluation report on the evaluation visit and, where applicable, the 
pilot run. 

(5) 

Pending the outcome of the evaluation and the decision referred to in Article 540(2) of 
the TCA, in order to avoid a gap in ongoing cooperation concerning DNA profiles and 

3 
4 

OJ L 149, 30.4.2021, p. 10–2539. 
Council  Decision  2008/615/JHA  on  the  stepping  up  of  cross-border  cooperation,  particularly  in 
combating  terrorism  and  cross-border  crime  (OJ  L210,  6.8.2008,  p.  1)  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 (OJ L210, 6.8.2008, p. 12). 

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(6) 

(7) 

(8) 

(9) 

dactyloscopic  data,  Article  540(3)  of  the  TCA  provides  that  Member  States  may 
supply such data to the United Kingdom until 30 September 2021.  

Article 540(3) of the TCA empowers the Specialised Committee on Law Enforcement 
and  Judicial  Cooperation  to  extend  that  period  once  by  a  maximum  of  nine  months, 
i.e. until 30 June 2022. 

The process  referred to in recitals 3 to  6 is unlikely to be finalised by 30 September 
2021. Therefore, there is a significant risk that a gap in cooperation concerning DNA 
profiles and dactyloscopic data would arise from 1 October 2021. This would present 
concrete risks for the internal security of the Union.  

At the same time, the Union has already evaluated the United Kingdom as regards the 
exchange  of  DNA  profiles  and  dactyloscopic  data  in  the  context  of  the  Union’s 
“Prüm” framework when the United Kingdom was still a Member State. The Union is 
not  aware  of  any  legislative  or  regulatory  measures  taken  by  the  United  Kingdom 
since these evaluations that would affect the outcome of the ongoing evaluation under 
the TCA.  

In these circumstances, it is appropriate to establish the position to be adopted on the 
Union’s  behalf  in  the  Specialised  Committee  on  Law  Enforcement  and  Judicial 
Cooperation to the effect of the Union agreeing to an extension until 30 June 2022 of 
the period during which Member states may continue to exchange data as referred to 
in Articles 530, 531 and 534 and, in case of a match, supply further available personal 
data as referred to in Article 536 of the TCA,  

HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken  on  the  Union’s  behalf  in  the  Specialised  Committee  on  Law 
Enforcement and Judicial Cooperation pursuant to Article 540(3) TCA shall be to agree to an 
extension  until  30  June  2022  of  the  period  during  which  Member  States  may  continue  to 
exchange  personal  data  as  referred  to  in  Articles  530,  531  and  534,  and  supply  further 
available personal data as referred to in Article 536 of the TCA with the United Kingdom. 

This Decision is addressed to the Commission. 

Article 2  

Done at Brussels, 

For the Council 
The President 

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