EUROPEAN
COMMISSION

Strasbourg, 19.1.2016
COM(2016) 7 final
2016/0002 (COD)

Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Council Framework Decision 2009/315/JHA, as regards the exchange of
information on third country nationals and as regards the European Criminal Records
Information System (ECRIS), and replacing Council Decision 2009/316/JHA
{SWD(2016) 4 final}
{SWD(2016) 5 final}

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EXPLANATORY MEMORANDUM
1.

CONTEXT OF THE PROPOSAL

•

Reasons for and objectives of the proposal

Efficient cooperation between Member States and exchange of information extracted from
criminal records of convicted persons is a necessary cornerstone of a properly functioning
common area of justice and security.
The European Council and the Justice and Home Affairs Council of Ministers have stated on
several occasions the importance of improving the existing European Criminal Records
Information System (ECRIS). The Riga Statement of 29 January 2015 issued by the Justice
and Home Affairs Ministers stressed that exchanging information on criminal convictions is
important in any strategy to combat crime and counter terrorism1. On 20 November 2015, the
Justice and Home Affairs Council of Ministers concluded that it would contribute to the
criminal justice response to radicalisation leading to terrorism and violent extremism if
Member States used ECRIS to its full potential and if the Commission submitted a proposal
for the extension of ECRIS to cover third country nationals2. In its Conclusions on CounterTerrorism of the same day, the Council of Ministers committed the Member States to using
ECRIS to its full potential and welcomed the Commission's intention to submit by
January 2016 an ambitious proposal to extend ECRIS to cover third country nationals3. The
European Council of 17 and 18 December 2015 reiterated that the recent terrorist attacks
demonstrated in particular the urgent need to share more information on terrorist activity,
notably as regards the extension of European Criminal Records Information System (ECRIS)
to third country nationals4.
Improving ECRIS is also part of the European Agenda on Security5.The Commission
emphasised the added value of EU measures for exchanging information, operational
cooperation and other support and undertook to accelerate the work already under way to
improve ECRIS for non-EU nationals and ensure it is implemented effectively.
ECRIS is an electronic system for exchanging information on previous convictions handed
down against a specific person by criminal courts in the EU for the purposes of criminal
proceedings against a person and, if so permitted by national law, for other purposes. The
system is based on Council Framework Decision 2009/315/JHA and Council Decision
2009/316/JHA6.
The underlying principle of ECRIS is that complete information on previous convictions of an
EU national can be obtained from the Member State of nationality of that person. Convicting
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4
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Riga Statement of the European Ministers of Justice and Home Affairs of 29 January 2015, doc
5855/15.
Conclusions of the Council of the EU on enhancing the criminal justice response to radicalisation
leading to terrorism and violent extremism, 20 November 2015, doc 14419/15.
Conclusions of the Council of the EU on Counter-Terrorism of 20 November 2015, doc 14406/15.
Conclusions of the European Council meeting of 17 and 18 December 2015, doc EUCO 28/15.
‘European Agenda on Security’ - Communication from the Commission to the European Parliament,
the Council, the European Economic and Social Committee and the Committee of the Regions of 28
April 2015, COM(2015)185 final.
Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of
the exchange of information extracted from the criminal record between Member States (Framework
Decision), OJ L 93, 7.4.2009, p. 23, and Council Decision 2009/316/JHA of 6 April 2009 on the
establishment of the European Criminal Records Information System (ECRIS) in application of Article
11 of Framework Decision 2009/315/JHA, OJ L 93, 7.4.2009, p. 33.

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Member States must notify information and updates related to convictions handed down
against a national of another Member State to the Member State of nationality. The Member
State of nationality must store this information and can thus provide exhaustive, up-to-date
information7 on the criminal records of its nationals upon request, regardless of where in the
EU convictions were handed down.
Standardised electronic formats8 allow for efficient and immediately understandable
communication in all EU languages and within short deadlines9. Designated central
authorities in every Member State are the contact points in the ECRIS network, dealing with
all tasks such as notifying, storing, requesting and providing criminal record information.
Although it is possible to exchange information on convictions concerning third country
nationals and stateless persons (hereinafter: TCN) through ECRIS today, there is no
procedure/mechanism in place to do so efficiently for the following reasons:


As TCN have no Member State of nationality, in order to obtain a complete overview
of the criminal records history of a particular individual requests must be sent to all
the convicting Member State(s). Generally, a requesting Member State does not
know in which Member State(s) a particular TCN has previously been convicted.



If one Member State would want to have this information, it would have to send
requests to all Member States (‘blanket requests’). This creates an administrative
burden in all Member States, including in (the majority of) the countries not holding
the requested information. The administrative burden of ‘blanket requests’ would
amount to an estimated EUR 78 million per year if Member States were to request
information each time a TCN faced conviction. The costs of replying to ‘blanket
requests’ are not compensated by an equivalent benefit and are, in fact, lost because
the majority of the replies will not return results. This is especially detrimental to
smaller Member States that are required to respond to all requests without being
necessarily well equipped to do so. Moreover, a flood of unnecessary requests
undermines confidence in the reliability and functioning of the ECRIS network as a
whole, as users may conclude that the inefficiency of ECRIS-TCN is indicative of
the inefficiency of ECRIS as a whole.



In practice, Member States avoid sending ‘blanket requests’ and often rely only on
information stored in their own national criminal record registers. This means that
complete information on the criminal records history of TCN is often not available to
the responsible authorities in the Member States. In fact, although in 2014 558000
TCN were convicted in 19 Member States, only 23000 requests (from 25 Member
States participating in ECRIS today) related to TCN convictions were made in
ECRIS.

The objective of the proposal is fully in line with the Commission´s priority of combating
cross-border crime and terrorism as a common European responsibility in an Area of
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Comprising information on the nature of the offence, the conviction and related sanctions or other
measures.
When exchanging criminal records information via ECRIS Member State refer to codes as laid down in
tables of offences and sanctions, including the parameters relating to the degree of completion and level
of participation and, where applicable, the existence of total or partial exemption from criminal liability.
According to the Framework Decision 2009/315/JHA replies to requests for the purposes of criminal
proceedings shall be transmitted immediately and in any event within 10 working days. For details, see
Article 8 of Framework Decision 2009/315/JHA.

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Freedom, Security and Justice. This is one of the initiatives of the European Agenda on
Security. It will ensure that ECRIS covers both EU nationals and TCN criminal record
information.
•

Consistency with existing policy provisions in the policy area

Other EU measures envisaged in the context of information exchange and cooperation with
regard to combating and preventing crime would not solve or alleviate the problem of the
inefficient criminal record information exchange regarding convicted TCN. There is no
alternative to improve the way of information exchange regarding criminal convictions on
TCN through ECRIS by means of any other instrument of information exchange mentioned in
the European Agenda of Security (such as SIS II, Prüm and Eurodac), as these are designed to
serve different purposes.
•

Consistency with other Union policies

Improving ECRIS with regard to TCN is part of the strategy outlined in the European Agenda
on Security. In addition, the exchange of criminal records information supports the
application of Council Framework Decision 2008/675/JHA10, which stipulates that Member
States judicial authorities should, during criminal proceedings, take into account previous
convictions handed down against the same person for different facts in other Member States,
irrespective of the nationality of the person concerned.
2.

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•

Legal basis

The proposed legal instrument is a Directive based on Article 82(1)(d) of the Treaty on the
Functioning of the European Union. Article 82(1)(d) is the legal basis for the Union’s right to
act in the field of judicial cooperation in criminal matters to facilitate cooperation between
judicial or equivalent authorities of the Member States in relation to proceedings in criminal
matters and the enforcement of decisions. The proposed action falls squarely within this area.
The proposal amends the existing EU legislation in this area.
•

Subsidiarity (for non-exclusive competence)

Improvement of the existing system to exchange criminal record information on convicted
TCN cannot be done at Member State level. A common mechanism aiming at a standardised,
rapid, coordinated and efficient information exchange between Member States requires
concerted action. This can neither be achieved unilaterally at Member State level nor
bilaterally between Member States. It is by its nature a task to be undertaken at EU level.
•

Proportionality

Efficient exchange of criminal record information is instrumental in combating cross-border
crime and contributes considerably to putting into practice the principle of mutual recognition
of judgments and judicial decisions in a common area of justice and security where people
move freely. Action at EU level is therefore proportionate to the objectives of the initiative.
The proposed changes do not go beyond what is necessary to achieve the objective of crossborder judicial cooperation, and build on what is already applied in the existing ECRIS for
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Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the
Member States of the European Union in the course of new criminal proceedings, OJ L 220, 15.8.2008,
p. 32.

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EU nationals. The obligation to store TCN fingerprints is deemed necessary to ensure the
more secure identification of TCN. Establishing the identity of TCN is often particularly
difficult if not impossible, for example because reliable identity documents do not exist or are
missing, or because of widely used common surnames.
Amongst several existing options, the most proportionate option has been chosen: a
decentralised system to identify the Member State(s) holding criminal record information on
TCN, based on an index-filter containing anonymised identity data of convicted TCN
extracted from national criminal record registers and on a hit/no hit search mechanism. A ‘hit’
indicates that criminal record information on the TCN is available and shows the Member
State which can provide the information. The identified Member State(s) can then be
requested to provide complete information through the established ECRIS.
The system will be organised in a decentralised way. Member States will have to extract
identity data from their criminal record and feed it into a separate file. Specific software will
irreversibly convert the personal identity data into locks and keys, the index-filter. The indexfilter will be distributed to all other Member States, enabling them to search independently at
their own premises. The index-filter will thus not contain personal data, but it will allow the
receiving Member States to match their own data against it and to find out whether further
entries in criminal records exist in other Member States. Member States will have to send
updated national index-filters to all other Member States if any data contained in the indexfilters are changed or deleted.
This solution satisfactorily fulfils the objectives of the legislative proposal, as it introduces a
mechanism into the ECRIS framework to efficiently identify Member States holding criminal
record information on TCN. This avoids costly and inefficient ‘blanket’ requests and will thus
eliminate the reason why Member States currently refrain from using ECRIS for TCN.
The decentralised system does not require establishing an additional layer at EU level where
personal data of TCN are centralised, which does not exist for EU nationals either. It does
therefore not require additional data protection and security at EU level.
•

Choice of the instrument

The legislative text to be amended is a Framework Decision, i.e. an instrument which is
binding on the Member States as to the result to be achieved but shall leave to the national
authorities the choice of form and methods. A similar legal instrument, i.e. a directive, has
therefore been chosen for the amending legislative act, since many of the obligations will
have to be enacted in national law.
A directive allows the national authorities to choose the form and method of transposition,
e.g. as regards the information and communication technology and the national registers to be
used to extract identity data for the purpose of subsequent exchange with the other Member
States. Because Member States need to adapt their national criminal record registers to be able
to deal with the new demands placed on them, a directive is more appropriate as a legal
instrument than a regulation, which would be directly applicable in all Member States and
leave the national authorities less flexibility.

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3.

RESULTS
OF
EX-POST
EVALUATIONS,
CONSULTATIONS AND IMPACT ASSESSMENTS

•

Ex-post evaluations/fitness checks of existing legislation

STAKEHOLDER

The first report on the implementation of Council Framework Decision 2009/315/JHA will
provide further information on how the existing system is working, but will not focus
specifically on the exchange of information on TCN. However, consultation with the Member
States has shown clearly the very limited extent to which ECRIS is currently used to exchange
information on convicted TCN, and the reasons why.
•

Stakeholder consultations

In line with the Commission’s minimum standards regarding participation and openness to
stakeholders views presented in the Better Regulation Guidelines11, an extensive consultation
strategy has been developed to ensure a wide participation throughout the policy cycle of this
initiative. This strategy was based on a mix of targeted consultations (bilateral contacts,
stakeholder- and experts meetings, written consultations), providing the Commission with
knowledgeable and representative options. The Commission has sought a wide and balanced
range of views on this issue by giving the opportunity to all relevant parties (Member States,
national authorities, lawyers and academics, fundamental right stakeholder, data protection
stakeholders) to express their opinions, in particular the European Union Agency for
Fundamental Rights (FRA), the European Data Protection Supervisor (EDPS) and the Art.29
Working Party composed of Member States data protection supervisory authorities.
All Member States supported a regulatory option and an index-filter-based hit/no hit
mechanism. A decentralised approach gained substantial support, provided that the
implementation software can be installed, integrated and maintained smoothly at Member
State level and that financial support (grants) would be available. Some Member States
favoured the centralised solution, as they considered that it would demand less
implementation effort at Member State level, would be less costly for Member States and
would better secure a common approach of the Member States. A few Member States were
undecided.
Practical advantages of fingerprints with regard to the secure identification of a person were
acknowledged by many Member States. Indeed, this is the only way to be sure of the identity
of the person. This is extremely important since the judicial authorities are responsible for the
accuracy of the information held in a criminal record. Some Member States expressed
constitutional concerns and drew the attention to problems regarding the practical
implementation of mandatory fingerprints in ECRIS. Many Member States' central authorities
do currently not store fingerprints in their national criminal record registers and are not
connected to the national automated fingerprint identification system (AFIS).Some Member
States are concerned about possible double standards for EU nationals on the one hand and
TCN on the other hand. The situation is different for TCN because some of them come from
countries which do not have any appropriate or any valid civil registry. Against this
background, the inclusion of fingerprints becomes a priority.
Fundamental rights stakeholders acknowledged in general the positive effects of a future
ECRIS-TCN system from an overall justice perspective by helping to ensure appropriate
sentencing and protect children from abuse, as well as the positive effect on TCN by enabling

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SWD(2015) 111

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them to prove a clean criminal record throughout the Union12. They are in favour of a
decentralised system accompanied by adequate anonymisation techniques.
These stakeholders pointed out that introducing a TCN-specific system is possible from the
point of view of equality, provided that it is necessary and proportionate. The EDPS
considered that creating a different regime for the information to be stored and exchanged of
TCN on the one hand and on nationals of the Member States on the other hand needed to be
duly justified. The stakeholders drew attention to the safeguards needed to address the
specific situation of TCN in the context of migration, to aspects related to the creation of an
index-filter and the use of fingerprints, to the rights of the child, as well as to the rights of data
subjects and to the need for effective remedies.
In that context, it should be noted that the current proposal is not meant to be a tool for
regulating migration. It does not change any existing provisions and guarantees in this area.
The recitals of the proposed legal instrument explicitly acknowledge respect of the guarantees
contained in EU and national law on asylum and migration. These are to be upheld in the
future system.
Certain crimes, such as irregular entry or stay, or travelling with false visa or travel
documents are specific to TCN and the future ECRIS-TCN should not impact
disproportionately on the rights of TCN convicted for such offences. The FRA suggested in
this respect that convictions relating to irregular entry and stay should not be processed under
ECRIS-TCN for purposes other than criminal proceedings. However, the Commission
considers that the extent to which criminal record information is processed for purposes other
than criminal proceedings is a matter of national law, as is currently the case for EU nationals.
Fundamental rights stakeholders acknowledged that the secure identification of TCN can be
more difficult than the identification of EU nationals. However, according to the FRA, the
necessity and proportionality of using fingerprints for the index-filter, as well as the
alternatives of using passports and/or residence permits, and the possibilities offered by
existing EU and national databases, need to be taken into account. These need to be
considered in comparison to the inclusion of fingerprints of all or certain categories of TCN.
However, the proposal does provide for the mandatory storage of fingerprints of TCN in order
to overcome the problems in identifying TCN. The problems are different to those
encountered when identifying EU nationals, where information can be more easily gained
from the Member State of nationality.
Stakeholders also identified that TCN children may be particularly exposed to risks stemming
from the exchange of information on their convictions. The FRA suggested that in the light of
the vulnerability of children, consideration should be given to either excluding children from
the scope of ECRIS altogether or from the index-filter, or to limiting exchanges to very
serious crimes committed by children. At the same time, stakeholders would like to ensure
that the proposal should make it possible for employers to verify in an effective manner
whether a particular TCN has been barred from exercising activities involving direct and
regular contacts with children as a result of past criminal convictions.
In this context, it should be noted that ECRIS is a decentralised tool for exchanging
information contained in the Member States' criminal record registers. It is up to the national
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Opinion of the European Union Agency for Fundamental Rights (FRA) concerning the exchange of
information on third-country nationals under a possible future system complementing the European
Criminal Records Information System of 4.12.2015, FRA – 2015/1 – ECRIS.

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law of the Member States to decide whether or not the convictions of children are entered into
the national criminal records and can thus be exchanged between Member States. With regard
to access to criminal record information through ECRIS during recruitment to posts involving
direct and regular contacts with children, the implementation of the Directive will facilitate
the verification of previous convictions of TCN in this area.
Some stakeholders referred to the need to ensure that TCN have the right to access their own
data and have it rectified, since inaccurate criminal records may be more common in cases
involving TCN. However, the ECRIS legal instruments only cover the exchange of criminal
record information, and do not touch upon the rights of individuals to have access to data
concerning themselves stored at national level. This area is governed by data protection law,
both at national and EU levels.
•

Collection and use of expertise

A feasibility study on the ‘Establishment of a European Index of Convicted Third Country
Nationals’ provided a better understanding of future mechanism for exchanges on convicted
TCN and evaluated the impact of an index from a technical, legal and organisational point of
view.13 A study to assess the ICT impact of the legislative proposal for an ECRIS TCN system
provided an overview of the costs which the EU and the Member States would incur in
implementing the various options.14 Eurostat migration and population statistics provided
evidence regarding the size of the problem. In-depth interviews were also held with
representatives of FIU.net15, in particular on the Match software, an intelligent information
and knowledge sharing program based on an anonymous index-filter and developed for
FIU.net.
•

Impact assessment

The Commission conducted an impact assessment. The links to the summary sheet and the
positive opinion of the Regulatory Scrutiny Board have been inserted below:
http://ec.europa.eu/justice/criminal/european-e-justice/ecris/index_en.htm
Three policy alternatives were examined: i) maintaining the status quo; ii) a voluntary
Member State project for a more efficient mechanism to exchange criminal record
information on TCN, co-financed by the Commission; and iii) legislation on a search
mechanism to identify Member States holding criminal record information on TCN consisting
of identity data of convicted TCN (index-filter) that can be searched by a hit-/no-hit search
mechanism. Two sub-options were examined for the latter alternative: either a decentralised
index-filter that would be anonymised and distributed to all other Member States enabling
them to search at their own premises; or an index-filter that would be stored at a central EUbody.

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Project Final Report ‘Feasibility Study: Establishment of a European Index of Convicted Third Country
Nationals’ dated 11 June 2010 (‘Unisys study’).
Study on Assessment of ICT impacts of the legislative proposal for ECRIS TCN system regarding the
exchange of convictions for third country nationals and stateless people (TCN) dated from 04 December
2015 (‘Kurt Salmon study’, to be published)
FIU.net, located in the Netherlands, is a platform connecting Financial Intelligence Units (FIUs) from
the Member States. The purpose of the FIUs is to detect and disrupt terrorist financing and money
laundering activities.

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As regards fingerprints, three sub-options were examined: i) the mandatory storage of
fingerprints for TCN and their inclusion in the index/index-filter; ii) obliging Member States
to verify the identity of a TCN in existing data exchange systems based on fingerprints before
using ECRIS; iii) extending ECRIS to support the voluntary use of fingerprints by Member
States for TCN.
The decentralised index-filter is the preferred option because it offers a mechanism to identify
efficiently which Member States hold criminal record information on a particular TCN. As it
implies a legal obligation for all Member States, it will guarantee a common approach. It does
not require an additional EU-level system, making it more cost-efficient than the centrallystored index-filter. To secure effective identification of third country nationals, fingerprints
should be included in the identification data to be stored in the person's criminal record and in
the index-filter. Establishing the identity of TCN is often particularly difficult if not
impossible, for example because reliable identity documents do not exist or are missing, or
because of widely used common surnames.
There would not be any significant direct impact in economic, social or environmental areas.
Businesses, SMEs and micro-enterprises would not be affected. There would be the following
impact on the EU and national budgets: one-off costs for the EU of approximately EUR 1 089
000, for the Member States approx. EUR 768 000 (a total of approx. EUR 1 857 000); ongoing costs for the EU of approximately EUR 668 000; for the Member States, the on-going
costs are expected to gradually increase over the years, starting at EUR 5 304 000 and
increasing up to a maximum EUR 12 804 000. This means that the total on-going costs are
expected to increase gradually over the years, starting at EUR 5 972 000 and increasing up to
maximum EUR 13 472 000. The additional cost of handling fingerprints will be
approximately EUR 5 million in set up costs for the EU, and EUR
1 million in on-going costs for the EU per year. Set-up costs for Member States would range
from EUR 2 million to EUR 3 million per Member State depending on the volume of TCN
convictions.
Member States currently use ECRIS to search for TCN only in 5% of the cases. The benefits
of the proposed solution are expected to increase the use of ECRIS considerably. If Member
States were to systematically send ‘blanket’ requests, the administrative burden in responding
to them has been identified as the most costly element (estimated up to EUR 78 million) of
the ECRIS-workflow; the proposed solution saves such costs.
•

Fundamental rights

Article 6(1) of the Treaty on European Union states that the Union recognises the rights, freedoms
and principles set out in the Charter of Fundamental Rights.
The proposed measures include legal provisions to ensure that information related to convicted
third-country nationals is exchanged more efficiently. These provisions are in line with relevant
provisions of the Charter, including the protection of personal data; the principle of equality
before the law; and the general prohibition of discrimination.
The proposed measures are without prejudice to the respect of the right to respect for private and
family life, the right to an effective remedy and to a fair trial and the presumption of innocence.
The proposed measures are also without prejudice to the respect of the principle of nonrefoulement, protection in the event of removal, expulsion or extradition and other relevant
standards and guarantees enshrined in EU law on asylum and borders.

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The provisions do not affect fundamental rights, including the right to protection of personal data,
any more than what is strictly necessary to achieve the objective judicial cooperation in criminal
matters, in line with the requirements of Article 52(1) of the Charter. It builds on what is already
applied in the existing ECRIS for nationals of Member States by choosing a decentralised system
to identify the Member States holding criminal record information on TCN and the use of stateof-the-art data minimisation technology. The jurisprudence of the Court of Justice in the cases
Digital Rights Ireland Ltd16 and Maximilian Schrems v. Data Protection Commissioner17 has
thereby been taken into account.
Given the potential impact on fundamental rights of the use of fingerprinting, the use of
anonymisation techniques and of effective tools to avoid at the same time the risk of false matches
shall be ensured, thus preventing any disproportionate interference with fundamental rights,
including the right to protection of personal data and the right to respect for private life.
One of the purposes of the proposed measures is to protect children from the risk of abuse and
exploitation by ensuring that people who work with children undergo proper vetting procedures.
This will enable employers to verify in an effective manner whether someone has been banned
from activities involving direct and regular contacts with children as a result of past criminal
convictions.
Member States are obliged to ensure that the provisions are implemented in full respect of
fundamental rights and principles as enshrined in the Charter.
The implementation and application of the provisions on ECRIS TCN should not interfere
disproportionately with migrants and asylum seekers’ fundamental rights, in particular protection
in the event of removal and expulsion; the right to asylum; and the protection of personal data
(also in light of the need to prevent the risk of data transfers to third countries, especially as far as
persons in need of international protection are concerned). The necessity and proportionality of
any potential negative impact on fundamental rights should be carefully assessed according to EU
law on asylum and migration.
Member States should consider allowing TCN, in certain circumstances, to request and receive
criminal record certificates, using the ECRIS system, particularly in case of bona fide persons
seeking employment where there are no doubts about their previous stay in other Member States.
Member States must also ensure that data subjects have the right to access data in order to have it
rectified, and that effective remedies are in place to allow data subjects to challenge inaccurate
criminal records, in full compliance with the standards stemming from the right to an effective
remedy, including as regards the availability of legal aid, interpretation and translation services.
When reporting on the application of the provisions, the Commission will also assess the impact
of the proposed measures and of their implementation on fundamental rights. Its assessment will
be based in part on an evaluation of the effect on the fundamental rights of third-country nationals
in comparison with the effect on the fundamental rights of EU nationals. The Commission's
review will pay particular attention to the necessity and proportionality of the use of fingerprints,
other biometric data and identification data in light of the experience gained and the tools and
techniques used to ensure anonymisation and avoid the risk of false matches. Any proposals for
the future revision of the system must take the outcome of this assessment into account.
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Judgement of the Court of Justice, 8.4.2014, Digital Rights Ireland Ltd, C-293/12,
ECLI:EU:C:2014:238.
Judgement of the Court of Justice, 6.10.2015, Maximillian Schrems v Data Protection Commissioner,
C-362/14, ECLI:EU:C:2015:650.

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This proposal in no way precludes Member States' responsibilities under their national laws,
including rules on entering convictions against minors and children into the national criminal
record register. Similarly, it does not prevent the application of Member States' constitutional law
or international agreements to which they are bound, in particular those deriving from the
European Convention on Human Rights and Fundamental Freedoms, to which all Member States
are party.

4.

BUDGETARY IMPLICATIONS

The financial envelope foreseen for the implementation of the Directive for the period January
2017 to December 2020 is EUR 10 760 000.18 The proposed envelope is compatible with the
current Multi-annual Financial Framework and costs will be met through the Justice
programme. The commitment profile is the result of the expected adjustments needed at EU
and national level in the first three years. The maintenance costs will stabilise at EUR 1 602
000 million a year from the third year of implementation. Further details are provided in the
legislative financial statement accompanying this proposal.
5.

OTHER ELEMENTS

•

Implementation plans and monitoring, evaluation and reporting arrangements

Two years after the legislative instrument has been adopted, the Commission will evaluate the
extent to which it has been implemented in the Member States, and of the effectiveness of the
actions that Member States have taken in terms of achieving the objectives set out above. On
the basis of this evaluation, the Commission will decide on the appropriate follow-up.
The implementation of the Directive in the Member States will be monitored continuously by
the existing ECRIS expert group. This group will also act as a forum for exchanging best
practices on the exchange of information on criminal records at EU level, including
information on TCN.
•

Detailed explanation of the specific provisions of the proposal

Article 1
Point 1:
Article 1 of the Framework Decision has been extended with a view to improve the exchange
of information on convictions of TCN. The purpose of the instrument now includes an
obligation of the convicting Member State to store criminal record information on a TCN,
including fingerprints.
Point 2:
The definition of ‘convicting Member State’ in Article 1(a) of the Framework Decision has
been transferred to the Article on definitions, Article 2. This definition now covers
convictions, irrespective of whether they were handed down against a national of another
Member State or a TCN.

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Details are provided in Section 3.2.1 of the legislative financial statement under the total operational
appropriation table.

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A definition of ‘third country national’ is added to clarify that this group of persons includes
stateless persons and persons whose nationality is not known.
Point 3:
Article 4(1) of the current Framework Decision is amended to ensure that Member States’
obligation to add the nationality (or nationalities) of a convicted person to the criminal record
now also applies to the nationality or nationalities of TCN. The information on nationality is
indispensable for central authorities to find out which Member State holds information on the
person concerned.
Point 4:
The new Article 4a lays down the following obligations of a Member State as regards
convictions on TCN handed down in its territory: an obligation to store criminal record
information; the obligation to distribute to the other Member States an anonymised indexfilter with identity information on the TCN convicted in its territory for the purpose of
identifying the Member States holding criminal record information on a TCN; and the
obligation to update the index-filter in line with any deletion or alteration of the data included
in it. A Member State complies with the storage obligation even if the information is stored in
another database than the criminal record database, as long as the central authority has access
to the database in which the information is stored.
Finally, the Article stipulates that it applies regardless of whether a person also holds an EU
nationality in order to ensure that the information can be found whether or not the additional
nationality is known; his/her criminal record and the index-filter will contain the information
stored in his/her quality as a national of a Member State.
Point 5:
The corresponding right of the Member States which receive the index-filter is stipulated, i.e.
the right to search it.
Point 6:
Provisions of the Framework Decision have been deleted if their deadline has elapsed
(paragraph 2 and the introductory part of paragraph 3), to make Article 6 more readable.
In addition, Article 6(3) puts the obligation on a Member State to supplement an extract of a
criminal record for which a TCN has asked (his/her own record) with information from the
other Member States in the same way that it would for EU nationals.
Point 7:
Under the newly inserted paragraph 4a of Article 7, a request for information on a TCN is
treated similarly to a request for information on EU nationals; paragraphs 1 and 4a are
construed in the same way. So the requested central authority has to transmit information on a
conviction handed down in its Member State against the TCN plus any convictions handed
down in third countries that have been entered in its criminal record.
Consequently, the reference to TCN in paragraph 4 of Article 7 of the Framework Decision
has been deleted.

EN

12

EN

Point 8:
The references to personal data are extended to the new provisions on TCN.
Point 9:
Article 11(3) includes an explicit reference to the European Criminal Record Information
System and to the standardised format. The first sentence of Article 11(3) has become
redundant because the deadline has elapsed, and has therefore been deleted.
Article 11(5) sets out the technical obligations of Member States in relation to the tasks to be
fulfilled by the Directive. This concerns both the current information exchange system and the
new ‘hit’/‘no hit’ system based on an anonymised index-filter. The technical and
administrative arrangements for facilitating the exchange of information will be set out in
implementing acts.
Article 11(4) governs the transmission of information if ECRIS is not available; it combines
the current paragraphs 5 and 3 of Article 11. The content of the current Article 11(4) can now
be found in Article 11b (implementing acts).
Article 11(5) replaces the current Article 11(5) and requires Member States to notify the
Commission instead of the Council in future when they are able to use ECRIS and the new
index-filter.
The current Article 11(7) is deleted and the obligation of Member States to carry out the
necessary technical alterations within a fixed deadline can now be found in Article 3(3) of this
Directive.
Point 10:
The new Article 11a incorporates the main points contained in Council Decision
2009/316/JHA, which established ECRIS, in order to organise the exchange of information
from criminal records between the Member States.
Points 11 and 12:
A comitology procedure has been introduced to give the Commission the necessary tools in
order to implement the technical aspects of the exchange of information so it will work in
practice. The procedure chosen is the examination procedure. This will be used in particular
to take implementing measures relating to the standardised format currently provided for in
Council Decision 2009/316/JHA.
Point 13:
The new Article 13a concerns the Commission's reporting and reviewing obligations.
The current reporting requirement of Article 7 of Council Decision 2009/316/JHA, i.e. the
regular report on the exchange of information through ECRIS, is incorporated into the
Framework Decision (Article 13a(4)).
Article 2:

EN

13

EN

This provision replaces Council Decision 2009/316/JHA. The content of the latter has largely
been incorporated in the Framework Decision and will be further taken up in implementing
measures in accordance with Article 11b.
Article 3:
A transposition period of 12 months seems to be adequate given that the Commission and
Member States can build on existing technology and on existing, functioning criminal records
in the Member States.
Article 4 and 5:
These Articles govern the entry into force and the addressees of the Directive (the Member
States).

EN

14

EN

2016/0002 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Council Framework Decision 2009/315/JHA, as regards the exchange of
information on third country nationals and as regards the European Criminal Records
Information System (ECRIS), and replacing Council Decision 2009/316/JHA

THE EUROPEAN PARLIAMENT AND 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) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1)

The Union has set itself the objective of offering its citizens an area of freedom,
security and justice without internal frontiers, in which the free movement of persons
is ensured in conjunction with appropriate measures with respect to the prevention and
combating of crime.

(2)

This objective requires that it be possible for information on convictions handed down
in the Member States to be taken into account outside the convicting Member State,
both in the course of new criminal proceedings, as laid down in Council Framework
Decision 2008/675/JHA19, and in order to prevent new offences.

(3)

This objective presupposes the exchange of information extracted from criminal
records between the competent authorities of the Member States. Such information
exchange is organised and facilitated by the rules set out in Council Framework
Decision 2009/315/JHA20 and by the European Criminal Record Information System
(ECRIS) which has been established in accordance with Council Decision
2009/316/JHA21.

(4)

The ECRIS legal framework, however, does not sufficiently cover the particularities of
requests concerning third country nationals. Although it is now possible to exchange
information on third country nationals through ECRIS, there is no procedure or
mechanism in place to do so efficiently.

19

Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the
Member States of the European Union in the course of new criminal proceedings (OJ L 220, 15.8.2008,
p. 32).
Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of
the exchange of information extracted from the criminal record between Member States (OJ L 93,
7.4.2009, p. 23).
Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal
Records Information System (ECRIS) in application of Article 11 of Framework Decision
2009/315/JHA (OJ L 93, 7.4.2009, p. 33).

20

21

EN

15

EN

EN

(5)

Information on third country nationals is not gathered within the Union in the Member
State of nationality as it is for nationals of Member States, but only stored in the
Member States where the convictions have been handed down. A complete overview
of the criminal history of a particular individual can therefore only be ascertained if
information is requested from all Member States.

(6)

Such blanket requests impose an administrative burden on all Member States,
including those not holding information on the particular third country national. In
practice, this negative effect deters Member States from requesting information on
third country nationals and leads to Member States limiting the criminal record
information on information stored in their national register.

(7)

The exchange of information on criminal convictions is important in any strategy to
combat crime and counter terrorism. It would contribute to the criminal justice
response to radicalisation leading to terrorism and violent extremism if Member States
used ECRIS to its full potential.

(8)

The recent terrorist attacks demonstrated in particular the urgency of enhancing
relevant information sharing, notably as regards the extension of ECRIS to third
country nationals.

(9)

As a result, a system should be established by which the central authority of a Member
State finds out quickly and efficiently in which other Member State criminal record
information on a third country national is stored so that the existing ECRIS framework
can then be used.

(10)

The obligations of Member States as regards convictions of third country nationals
should also include fingerprints to secure identification. This obligation includes to
store information, including fingerprints, to reply to requests on information from
other central authorities, to ensure that a criminal record extract requested by a third
country national is supplemented as appropriate with information from other Member
States, and to make the technical changes to apply state-of-the-art technologies
necessary to make the information exchange system work.

(11)

In order to compensate the lack of a single Member State where information on a
particular third country national is stored, decentralised information technology should
enable the central authorities of the Member States to find out in which other Member
State criminal record information is stored. For this purpose, each central authority
should distribute to the other Member States an index-filter which includes, in an
anonymised form, the identification data of the third country nationals convicted in its
Member State. The personal data should be rendered anonymous in such a way that
the data subject is not identifiable. The receiving Member State may then match these
data with their own information on a ‘hit’/‘no hit’ basis, thus finding out whether or
not criminal record information is available in other Member States and, in case of a
‘hit’, in which Member States. The receiving Member State should then follow up a
‘hit’ using the ECRIS framework. With respect to third country nationals who also
hold the nationality of a Member State, the information included in the index should
be limited to information available as regards nationals of Member States.

16

EN

(12)

Council Framework Decision 2008/977/JHA22 should apply in the context of
computerised exchange of information extracted from criminal records of Member
States, providing for an adequate level of data protection when information is
exchanged between Member States, whilst allowing for Member States to require
higher standards of protection to national data processing.

(13)

The common communication infrastructure used for the exchange of criminal record
information should be the secure Trans European Services for Telematics between
Administrations (sTESTA) or any further development thereof or any alternative
secure network.

(14)

Notwithstanding the possibility of using the Union’s financial programmes in
accordance with the applicable rules, each Member State should bear its own costs
arising from the implementation, administration, use and maintenance of its criminal
records database, and from the implementation, administration, use and maintenance
of the technical alterations needed to be able to use ECRIS.

(15)

This Directive respects the fundamental rights and freedoms and observes the
principles recognised in particular by the Charter of Fundamental Rights of the
European Union, including the right to protection of personal data, the principle of
equality before the law and the general prohibition of discrimination. This Directive
should be implemented in accordance with these rights and principles.

(16)

Since the objective of this Directive, namely to enable rapid and efficient exchange of
criminal record information on third country nationals, cannot be sufficiently achieved
by the Member States, but can rather, by reason of the necessary synergy and
interoperability, be better achieved at Union level, the Union may adopt measures, in
accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on
European Union. In accordance with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is necessary to achieve that objective.

(17)

In order to ensure uniform conditions for the implementation of Framework Decision
2009/315/JHA, the principles of Council Decision 2009/316/JHA should be
incorporated in the Framework Decision, and implementing powers should be
conferred on the Commission. Those powers should be exercised in accordance with
Regulation (EU) No 182/2011 of the European Parliament and the Council23.

(18)

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 Directive and is
not bound by it or subject to its application.

(19)

In accordance with Articles 1 and 2 and Article 4a(1) 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, and without prejudice to Article 4 of that

22

Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data
processed in the framework of police and judicial cooperation in criminal matters (OJ L 350,
30.12.2008, p. 60).
Regulation (EU) No 182/2011 of the European Parliament and the Council of 16 February 2011 laying
down the rules and general principles concerning mechanisms for control by Member States of the
Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p.13).

23

EN

17

EN

Protocol, those Member States are not taking part in the adoption of this Directive and
are not bound by it or subject to its application.
[or]
In accordance with Article 3 and Article 4a(1) 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 Directive.
(20)

The European Data Protection Supervisor was consulted in accordance with Article
28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council24
and delivered an opinion on …25.

(21)

Framework Decision 2009/315/JHA should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:
Article 1
Framework Decision 2009/315/JHA is amended as follows:
(1)

Article 1 is replaced by the following:
"Article 1
Subject Matter
This Framework Decision

(2)

(a)

defines the ways in which a convicting Member State shares information on
convictions with other Member States;

(b)

defines storage obligations for the convicting Member State, and specifies the
methods to be followed when replying to a request for information extracted
from criminal records;

(c)

establishes a decentralised information technology system for the exchange of
information on convictions based on the criminal records databases in each
Member State, the European Criminal Record Information System (ECRIS).";

in Article 2, the following points are added:
"(d) ‘convicting Member State’ means the Member State where a conviction is
handed down;
(e)

(3)

in Article 4, paragraph 1 is replaced by the following:
"1.

24

25

EN

‘third country national’ means a national of a country other than a Member
State, or a stateless person, or a person whose nationality is unknown to the
Member State where a conviction is handed down against the person.";
Each Member State shall take the necessary measures to ensure that when
convictions handed down within its territory are entered into its criminal

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on
the protection of individuals with regard to the processing of personal data by the Community
institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p.1).
OJ C …

18

EN

records, information on the nationality or nationalities of the convicted person
is included if the person is a national of another Member State or a third
country national.";
(4)

the following article is inserted:
"Article 4a
Obligations of the convicting Member State concerning convictions of third
country nationals
1.

EN

The Member State where a conviction is handed down against a third country
national shall store the following information, unless, in exceptional individual
cases, this is not possible:
(a)

information on the convicted person (full name, date of birth, place of
birth (town and country), gender, nationality and – if applicable –
previous name(s);

(b)

information on the nature of the conviction (date of conviction, name of
the court, date on which the decision became final);

(c)

information on the offence giving rise to the conviction (date of the
offence underlying the conviction and name or legal classification of the
offence as well as reference to the applicable legal provisions);

(d)

information on the contents of the conviction (notably the sentence as
well as any supplementary penalties, security measures and subsequent
decisions modifying the enforcement of the sentence);

(e)

the convicted person's parents' names;

(f)

the reference number of the conviction;

(g)

the place of the offence;

(h)

if applicable, disqualifications arising from the conviction;

(i)

the convicted person's identity number, or the type and number of the
person's identification document;

(j)

fingerprints of the person;

(k)

if applicable, pseudonym and/or alias name(s).

2.

The central authority shall create an index-filter containing anonymised
information of the types referred to in points (a), (e), (i), (j) and (k) of
paragraph 1 concerning third country nationals convicted in its Member State.
The central authority shall transmit this index-filter, and any updates to it, to all
Member States.

3.

Any alteration or deletion of the information referred to in paragraph 1 shall
immediately entail identical alteration or deletion of the information stored in
accordance with paragraph 1 and contained in the index-filter created in
accordance with paragraph 2 by the central authority of the convicting Member
State.

4.

Paragraph 2 and paragraph 3 apply with respect to the index-filter also
regarding third country nationals who hold the nationality of a Member State,
to the extent that the information referred to in points (a), (e), (i), (j) and (k) of

19

EN

paragraph 1 is stored by the central authority in respect of nationals of Member
States.
5.

Paragraph 1 shall apply to convictions handed down after [12 months after
adoption].
Paragraph 2 shall apply to information already included in the criminal record
on [12 months after adoption] and to information on convictions handed down
after [12 months after adoption].";

(5)

the following article is inserted:
"Article 4b
Use of the index-filters

(6)

1.

For the purpose of identifying those Member States holding criminal record
information on a third country national, the central authorities of the Member
States may search the index-filters transmitted in accordance with Article 4a in
order to match any information in these index-filters with their own
information of the types referred to in Article 4a(2). The index-filters shall not
be used for other purposes than those referred to in Article 6.

2.

This Article applies also regarding a third country national who holds the
nationality of a Member State.";

Article 6 is amended as follows:
(a)

paragraph 2 is deleted;

(b)

paragraph 3 is replaced by the following:
"3.

Whenever a national of a Member State asks the central authority of a
Member State other than the Member State of the person’s nationality for
information on his own criminal record, that central authority shall,
provided that the person concerned is or was a resident or a national of
the requesting or requested Member State, submit a request to the central
authority of the Member State of the person’s nationality for information
and related data to be extracted from the criminal record in order to be
able to include such information and related data in the extract to be
provided to the person concerned.
Where a third country national who does not hold the nationality of a
Member State asks the central authority of a Member State for
information on his own criminal record, that central authority shall
submit a request only to those central authorities of the Member States
which hold information on the criminal record of this person for
information and related data to be extracted from the criminal record in
order to be able to include such information and related data in the
extract to be provided to the person concerned.";

(7)

in Article 7, paragraph 4 is replaced by the following:
"4.

EN

When information extracted from the criminal record on convictions handed
down against a national of a Member State is requested under Article 6 from
the central authority of a Member State other than the Member State of the
person’s nationality, the requested Member State shall transmit information on
convictions handed down in the requested Member State to the same extent as

20

EN

provided for in Article 13 of the European Convention on Mutual Assistance in
Criminal Matters.
4a.

When information extracted from the criminal record on convictions handed
down against third country nationals is requested under Article 6 for purposes
of criminal proceedings, the requested Member State shall transmit information
to the central authority of the requesting Member State on any conviction
handed down in the requested Member State and on any conviction handed
down in third countries and subsequently transmitted to it and entered in the
criminal record.
If such information is requested for any purpose other than that of criminal
proceedings, paragraph 2 of this Article shall apply accordingly.";

(8)

(9)

(10)

Article 9 is amended as follows:
(a)

in paragraph 1, the phrase "Article 7(1) and (4)" is replaced by "Article 7(1),
(4) and (4a)";

(b)

in paragraph 2, the phrase "Article 7(2) and (4)" is replaced by "Article 7(2),
(4) and (4a)";

(c)

in paragraph 3, the phrase "Article 7(1), (2) and (4) is replaced by "Article 7(1),
(2), (4) and (4a)";

in Article 11, paragraphs 3 to 7 are replaced by the following:
"3.

Central authorities of Member States shall transmit the information referred to
in Article 4, the index-filter referred to in Article 4a, requests referred to in
Article 6, replies referred to in Article 7 and other relevant information
electronically using ECRIS and a standardised format in accordance with the
standards laid down in implementing acts.

4.

If the mode of transmission referred to in paragraph 3 is not available and for
as long as it is not available, central authorities of Member States shall transmit
all information referred to in paragraph 3, with the exception of the index-filter
referred to in Article 4a, by any means capable of producing a written record
under conditions allowing the central authority of the receiving Member State
to establish the authenticity thereof.

5.

Each Member State shall carry out the necessary technical alterations to be able
to use the standardised format referred to in paragraph 3 and the index-filter
referred to in Articles 4a and 4b and to electronically transmit all information
referred to in paragraph 3 to other Member States via ECRIS. It shall notify the
Commission of the date from which it will be able to carry out such
transmissions and use the index-filter referred to in Articles 4a and 4b.";

the following article is inserted:
"Article 11a
European Criminal Records Information System (ECRIS)
1.

EN

In order to exchange information extracted from criminal records in accordance
with this Framework Decision electronically, a decentralised information
technology system based on the criminal records databases in each Member
State, the European Criminal Records Information System (ECRIS), is
established. It is composed of the following elements:

21

EN

(a)

interconnection software built in compliance with a common set of
protocols enabling the exchange of information between Member States'
criminal record databases;

(b)

index-filter software built in compliance with a common set of protocols
enabling the central authorities to match their data pursuant to Articles 4a
and 4b with that of other central authorities while ensuring full protection
of personal data;

(c)

a common communication infrastructure between central authorities that
provides an encrypted network.

ECRIS shall ensure the confidentiality and integrity of criminal record
information transmitted to other Member States.
2.

All criminal records data shall be stored solely in databases operated by the
Member States.

3.

Central authorities of the Member States shall not have direct online access to
criminal records databases of other Member States.

4.

The software and databases storing, sending and receiving information
extracted from criminal records shall operate under the responsibility of the
Member State concerned.

5.

The common communication infrastructure shall be operated under the
responsibility of the Commission. It shall fulfil the necessary security
requirements and fully meet the needs of ECRIS.

6.

The Commission shall provide the software referred to in paragraph 1, general
support and technical assistance, including the collection and drawing up of
statistics.

7.

Each Member State shall bear its own costs arising from the implementation,
administration, use and maintenance of its criminal records database and the
software referred to in paragraph 1.
The Commission shall bear the costs arising from the implementation,
administration, use, maintenance and future development of the common
communication infrastructure of ECRIS, together with the implementation and
future development of the interconnection software and the software referred to
in paragraph 1.";

(11)

the following article is inserted:
"Article 11b
Implementing Acts
1.

EN

The Commission shall lay down the following in implementing acts:
(a)

the standardised format referred to in Article 11(3), including as regards
information on the offence giving rise to the conviction and information
on the content of the conviction;

(b)

the rules concerning the technical implementation of ECRIS, the indexfilter referred to in Articles 4a and 4b and the exchange of fingerprints;

(c)

any other means of organising and facilitating exchanges of information
on convictions between central authorities of Member States, including:

22

EN

2.
(12)

(i)

the means of facilitating the understanding and automatic
translation of transmitted information;

(ii)

the means by which information may be exchanged electronically,
particularly as regards the technical specifications to be used and, if
need be, any applicable exchange procedures.

The implementing acts referred to in paragraph 1 shall be adopted in
accordance with the examination procedure referred to in Article 12a(2).";

the following article is inserted:
"Article 12a
Committee procedure

(13)

1.

The Commission shall be assisted by a committee. That committee shall be a
committee within the meaning of Regulation (EU) No 182/2011 of the
European Parliament and of the Council26.

2.

Where reference is made to this Article, Article 5 of Regulation (EU) No
182/2011 shall apply.";

the following article is inserted:
"Article 13a
Reporting by the Commission and review
1.

By [24 months after implementation], the Commission shall submit a report on
the application of this Framework Decision to the European Parliament and the
Council. The report shall assess the extent to which the Member States have
taken the necessary measures to comply with this Framework Decision,
including the technical implementation.

2.

The report shall be accompanied, where appropriate, by relevant legislative
proposals.

3.

The Commission services shall regularly publish a report concerning the
exchange, through ECRIS, of information extracted from the criminal record
based in particular on the statistics referred to in Article 11a(6). This report
shall be published for the first time one year after the report referred to in
paragraph 1 is submitted.".
Article 2
Replacement of Decision 2009/316/JHA

Decision 2009/316/JHA is replaced with regard to the Member States bound by this Directive,
without prejudice to the obligations of those Member States with regard to the date for
implementation of that Decision into national law.

26

EN

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011
laying down the rules and general principles concerning mechanisms for control by Member States of
the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

23

EN

Article 3
Transposition
1.

Member States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by [12 months after adoption] at
the latest. They shall forthwith communicate to the Commission the text of those
provisions.
When Member States adopt those provisions, they shall contain a reference to this
Directive or be accompanied by such a reference on the occasion of their official
publication. Member States shall determine how such reference is to be made.

2.

Member States shall communicate to the Commission the text of the main provisions
of national law which they adopt in the field covered by this Directive.

3.

Member States shall carry out the technical alterations referred to in Article 11(5) by
[12 months after adoption].
Article 4
Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.
Article 2 shall apply from [the date for transposition of this Directive]
Article 5
Addressees
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Strasbourg,

For the European Parliament
The President

EN

For the Council
The President

24

EN

LEGISLATIVE FINANCIAL STATEMENT
1.

FRAMEWORK OF THE PROPOSAL/INITIATIVE
1.1. Title of the proposal/initiative
1.2. Policy area(s) concerned in the ABM/ABB structure
1.3. Nature of the proposal/initiative
1.4. Objective(s)
1.5. Grounds for the proposal/initiative
1.6. Duration and financial impact
1.7. Management mode(s) planned

2.

MANAGEMENT MEASURES
2.1. Monitoring and reporting rules
2.2. Management and control system
2.3. Measures to prevent fraud and irregularities

3.

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE
3.1. Heading(s) of the multiannual financial framework and expenditure budget
line(s) affected
3.2. Estimated impact on expenditure
3.2.1. Summary of estimated impact on expenditure
3.2.2. Estimated impact on operational appropriations
3.2.3. Estimated impact on appropriations of an administrative nature
3.2.4. Compatibility with the current multiannual financial framework
3.2.5. Third-party contributions
3.3. Estimated impact on revenue

EN

25

EN

LEGISLATIVE FINANCIAL STATEMENT
1.

FRAMEWORK OF THE PROPOSAL/INITIATIVE

1.1.

Title of the proposal/initiative
Directive of the European Parliament and of the Council amending Council
Framework Decision 2009/315/JHA, as regards the exchange of information on third
country nationals and as regards the European Criminal Records Information System
(ECRIS), and replacing Council Decision 2009/316/JHA

1.2.

1.3.

Policy area(s) concerned in the ABM/ABB structure27
Policy area

33

Justice and Consumers

ABB activity

33 03 Justice

Nature of the proposal/initiative
 The proposal/initiative relates to a new action


The proposal/initiative relates to
project/preparatory action28

a new action

following

a pilot

 The proposal/initiative relates to the extension of an existing action
 The proposal/initiative relates to an action redirected towards a new action

1.4.

Objective(s)

1.4.1.

The Commission's
proposal/initiative

multiannual

strategic

objective(s)

targeted

by

the

•
To improve the functioning of a common area of security and justice by
improving information exchange in criminal matters with regard to TCN.
•

To reduce crime and foster crime prevention (also with regard to terrorism).

•
To ensure equal treatment of TCN and EU nationals with regard to an efficient
exchange of criminal record information.
1.4.2.

Specific objective(s) and ABM/ABB activity(ies) concerned
Specific objective
•
To increase the exchanges of criminal record information with regard to TCN
through ECRIS.
ABM/ABB activity(ies) concerned
Activity N° 33 03

27
28

EN

ABM: activity-based management; ABB: activity-based budgeting.
As referred to in Article 54(2)(a) or (b) of the Financial Regulation.

26

EN

1.4.3.

Expected result(s) and impact
Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted.

The initiative is expected to provide for a common mechanism aiming at a
standardised, rapid, coordinated and efficient information exchange between
Member States. The objective to have a common mechanism for the exchange of
criminal convictions cannot be achieved by Member States alone but requires
concerted action of all Member States. It cannot be expected that uncoordinated
action at Member State level would produce sufficient effects of scale to overcome
the deficiencies of the current use of the system.
1.4.4.

Indicators of results and impact
Specify the indicators for monitoring implementation of the proposal/initiative.

Measurement of the level of exchanges of TCN criminal record as compared to the
number of convictions for TCN and convicted TCN.
1.5.

Grounds for the proposal/initiative

1.5.1.

Requirement(s) to be met in the short or long term
Implementation of a technical mechanism which will increase the criminal record
information exchanges through ECRIS with regard to TCN.

1.5.2.

Added value of EU involvement
The initiative is expected to provide for a common mechanism aiming at a
standardised, rapid, coordinated and efficient information exchange of criminal
convictions between Member States. This objective cannot be achieved by Member
States alone but requires concerted action of all Member States. It cannot be
expected that uncoordinated action at Member State level would produce sufficient
effects of scale to overcome the deficiencies of the current use of the system.

1.5.3.

Lessons learned from similar experiences in the past
The ECRIS was successfully established in due time in April 2012. The intention is
to apply the same best practices.

1.5.4.

Compatibility and possible synergy with other appropriate instruments
See paragraphs above ‘Consistency with existing and other Union policies’. The
improvement of information exchange regarding criminal convictions through
ECRIS cannot be replaced by any other instruments of information exchange
mentioned in the agenda (such as SIS II, Prüm and Eurodac), as these are designed to
serve different purposes.

EN

27

EN

1.6.

Duration and financial impact
 Proposal/initiative of limited duration
–  Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY
–  Financial impact from YYYY to YYYY
 Proposal/initiative of unlimited duration
– Implementation with a start-up period from 2017 to 2018,
– followed by full-scale operation.

1.7.

Management mode(s) planned29
 Direct management by the Commission
–  by its departments, including by its staff in the Union delegations;
–  by the executive agencies
 Shared management with the Member States
 Indirect management by entrusting budget implementation tasks to:
–  third countries or the bodies they have designated;
–  international organisations and their agencies (to be specified);
– the EIB and the European Investment Fund;
–  bodies referred to in Articles 208 and 209 of the Financial Regulation;
–  public law bodies;
–  bodies governed by private law with a public service mission to the extent that
they provide adequate financial guarantees;
–  bodies governed by the private law of a Member State that are entrusted with
the implementation of a public-private partnership and that provide adequate
financial guarantees;
–  persons entrusted with the implementation of specific actions in the CFSP
pursuant to Title V of the TEU, and identified in the relevant basic act.
–

If more than one management mode is indicated, please provide details in the ‘Comments’ section.

Comments
-

29

EN

Details of management modes and references to the Financial Regulation may be found on the
BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html

28

EN

2.

MANAGEMENT MEASURES

2.1.

Monitoring and reporting rules
Specify frequency and conditions.

Regular monitoring of programme implementation is planned in accordance with the
principle of sound financial management and the Commission’s administrative
procedures. Monitoring will include annual reporting to the management committee
on progress made in implementing the supported activities.
2.2.

Management and control system

2.2.1.

Risk(s) identified
A continuous risk management process will be established, under the authority of the
Programme management Authority.

2.2.2.

Information concerning the internal control system set up
Existing control methods applied by the Commission will cover appropriations
under the Programme.

2.2.3.

Estimate of the costs and benefits of the controls and assessment of the expected level
of risk of error
A large number of financial and administrative control mechanisms are provided for.
The Programme will be implemented through public procurement in accordance with
the rules and procedures in the Financial Regulation.

2.3.

Measures to prevent fraud and irregularities
Specify existing or envisaged prevention and protection measures.

The rules and procedures of public procurement apply throughout the process; these
include:
– Establishment of the work programme, subject to the opinion of the management
committee, with milestones for the release of funding to ensure the controllability of
achievements and costs;
– Appropriate drafting of tender specifications to ensure the controllability of
achievement of the required results and of incurred costs;
– Qualitative and financial analysis of the tenders;
– Involvement of other Commission departments throughout the process;
– Verification of results and examination of invoices before payment, at several
levels; and
– Internal audit.

EN

29

EN

3.

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE

3.1.

Heading(s) of the multiannual financial framework and expenditure budget
line(s) affected
 Existing budget lines
In order of multiannual financial framework headings and budget lines.
Type of
expenditure

Budget line
MFF
heading

from
EFTA
countries
31

from
candidate
countries32

from third
countries

within the
meaning of
Article 21(2)(b) of
the Financial
Regulation

Diff.

NO

NO

NO

NO

NonDiff.

NO

NO

NO

NO

Diff./Nondiff.30

Number

Contribution

33 03 02
3

Facilitating and supporting judicial
cooperation in civil and criminal matters
33 01 01

5

30
31
32

EN

Expenditure related to officials and
temporary staff in the Justice and
Consumers policy area

Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations.
EFTA: European Free Trade Association.
Candidate countries and, where applicable, potential candidate countries from the Western Balkans.

30

EN

3.2.

Estimated impact on expenditure

3.2.1.

Summary of estimated impact on expenditure
EUR million (to three decimal places)

Heading of multiannual financial
framework

3

DG Justice and Consumers

Security and Citizenship

201733

2018

2019

2020

TOTAL

3,247
1,624

3,381
3,314

1,602
3,942

1,602
1,802

10,232
10,681

 Operational appropriations
Number of budget line: 33 03 0234

Commitments

(1)

Payments

(2)

Appropriations of an administrative nature financed from the
envelope of specific programmes35
Number of budget line:

TOTAL appropriations
for DG Justice and Consumers

 TOTAL operational appropriations
33
34

35

EN

(3)

Commitments

=1+3

3,247

3,381

1,602

1,602

10,232

Payments

=2+3

1,624

3,314

3,942

1,802

10,681

Commitments

(4)

3,247

3,381

1,602

1,602

10,232

Year N is the year in which implementation of the proposal/initiative starts.
Member States costs for the extraction of identification information may be compensated by EU funding under the form of co-financing. In addition given that some
Member States are not yet exchanging information through ECRIS, some EU funding may be foreseen for upgrading their national systems. From 2019 on, the
maintenance costs are assessed to stabilise at 0.602 million per year.
Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research,
direct research.

31

EN

(5)

1,624

3,314

3,942

1,802

10,681

(6)

0,000

0,000

0,000

0,000

0,000

Commitments

=4+ 6

3,247

3,381

1,602

1,602

10,232

Payments

=5+ 6

1,624

3,314

3,942

1,802

10,681

Payments

 TOTAL appropriations of an administrative nature
financed from the envelope for specific programmes

TOTAL appropriations
under HEADING 3
of the multiannual financial framework

If more than one heading is affected by the proposal / initiative:
 TOTAL operational appropriations

Commitments

(4)

Payments

(5)

 TOTAL appropriations of an administrative nature
financed from the envelope for specific programmes

TOTAL appropriations
under HEADINGS 1 to 4
of the multiannual financial framework
(Reference amount)

EN

(6)

Commitments

=4+ 6

Payments

=5+ 6

32

EN

Heading of multiannual financial
framework

5

‘Administrative expenditure’
EUR million (to three decimal places)
2017

2018

2019

2020

TOTAL

 Human resources

0,198

0,198

0,066

0,066

0,528

 Other administrative expenditure

0,000

0,000

0,000

0,000

0,000

DG: Justice and Consumers

TOTAL DG Justice and Consumers

Appropriations

0,198

0,198

0,066

0,066

0,528

TOTAL appropriations
under HEADING 5
of the multiannual financial framework

(Total commitments =
Total payments)

0,198

0,198

0,066

0,066

0,528

EUR million (to three decimal places)

TOTAL appropriations
under HEADINGS 1 to 5
of the multiannual financial framework

36

EN

201736

2018

2019

2020

TOTAL

Commitments

3,445

3,579

2,068

1,668

10,760

Payments

1,822

3,512

4,008

1,868

11,209

Year N is the year in which implementation of the proposal/initiative starts.

33

EN

3.2.2.

Estimated impact on operational appropriations
–  The proposal/initiative does not require the use of operational appropriations
–  The proposal/initiative requires the use of operational appropriations, as explained below:
Commitment appropriations in EUR million (to three decimal places)
2017

2018

2019

2020

Indicate
objectives and
outputs

TOTAL

Cost

Cost

No

Cost

No

Cost

No

Cost

No

Cost

No



Avera
ge
cost

No

Type37

No

OUTPUTS

Cost

Total
No

Total
cost

SPECIFIC OBJECTIVE a sper
paragraph 1.4.2
- Increase the
ECRIS
exchanges with
regard to TCN

37

EN

3,247

3,381

2,002

1,602

10,232

Subtotal for specific objective

3,247

3,381

2,002

1,602

10,232

TOTAL COST

3,247

3,381

2,002

1,602

10,232

Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.).

34

EN

3.2.3.

Estimated impact on appropriations of an administrative nature

3.2.3.1. Summary
–  The proposal/initiative does not require the use of appropriations of an
administrative nature
–  The proposal/initiative requires the use of appropriations of an administrative
nature, as explained below:
EUR million (to three decimal places)
201738

2018

2019

2020

TOTAL

0,198

0,198

0,066

0,066

0,528

0,198

0,198

0,066

0,066

0,528

HEADING 5
of the multiannual
financial framework
Human resources
Other administrative
expenditure
Subtotal HEADING 5
of the multiannual
financial framework

Outside HEADING 539
of the multiannual
financial framework

Human resources
Other expenditure
of an administrative
nature
Subtotal
outside HEADING 5
of the multiannual
financial framework

TOTAL

The appropriations required for human resources and other expenditure of an administrative nature will be met by
appropriations from the DG that are already assigned to management of the action and/or have been redeployed within the
DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual
allocation
procedure
and
in
the
light
of
budgetary
constraints.

38
39

EN

Year N is the year in which implementation of the proposal/initiative starts.
Technical and/or administrative assistance and expenditure in support of the implementation of
EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.

35

EN

3.2.3.2. Estimated requirements of human resources
–  The proposal/initiative does not require the use of human resources.
–  The proposal/initiative requires the use of human resources, as explained
below:
Estimate to be expressed in full time equivalent units
2017

2018

2019

2020

1.5

1.5

0.5

0.5

1.5

1.5

0.5

0.5

 Establishment plan posts (officials and temporary staff)
XX 01 01 01 (Headquarters and Commission’s
Representation Offices) - AD
XX 01 01 02 (Delegations)
XX 01 05 01 (Indirect research)
10 01 05 01 (Direct research)
 External staff (in Full Time Equivalent unit: FTE)40
XX 01 02 01 (AC, END, INT from the ‘global
envelope’)
XX 01 02 02 (AC, AL, END, INT and JED in the
delegations)
- at Headquarters

XX 01 04 yy 41

- in Delegations
XX 01 05 02 (AC, END, INT - Indirect research)
10 01 05 02 (AC, END, INT - Direct research)
Other budget lines (specify)
TOTAL

XX is the policy area or budget title concerned.
The human resources required will be met by staff from the DG who are already assigned to management of the
action and/or have been redeployed within the DG, together if necessary with any additional allocation which
may be granted to the managing DG under the annual allocation procedure and in the light of budgetary
constraints.

Description of tasks to be carried out:
Officials and temporary staff

The AD posts cover the management of the Programme: elaboration of the work
Programme, management of the budget, management of the public calls for tender(s)
associated with the execution of the Programme, management of the contract
associated with the execution of the Programme, follow-up of projects, contacts with
Commission services and Member State experts, organisation of expert meetings,
workshops and conferences.

External staff

40

41

EN

AC= Contract Staff; AL = Local Staff; END= Seconded National Expert; INT = agency staff;
JED= Junior Experts in Delegations.
Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines).

36

EN

3.2.4.

Compatibility with the current multiannual financial framework
–  The proposal/initiative is compatible the current multiannual financial
framework.
–  The proposal/initiative will entail reprogramming of the relevant heading in the
multiannual financial framework.
Explain what reprogramming is required, specifying the budget lines concerned and the corresponding
amounts.

–  The proposal/initiative requires application of the flexibility instrument or
revision of the multiannual financial framework.
Explain what is required, specifying the headings and budget lines concerned and the corresponding
amounts.

3.2.5.

Third-party contributions
–  The proposal/initiative does not provide for co-financing by third parties.
–  The proposal/initiative provides for the co-financing estimated below:
Appropriations in EUR million (to three decimal places)
Year
N

Year
N+1

Year
N+2

Year
N+3

Enter as many years as necessary
to show the duration of the
impact (see point 1.6)

Total

Specify the co-financing
body
TOTAL appropriations
co-financed

EN

37

EN

3.3.

Estimated impact on revenue
–  The proposal/initiative has no financial impact on revenue.
–  The proposal/initiative has the following financial impact:
–



on own resources

–



on miscellaneous revenue
EUR million (to three decimal places)

Budget revenue line:

Appropriation
s available for
the current
financial year

Impact of the proposal/initiative42
Year
N

Year
N+1

Year
N+2

Year
N+3

Enter as many years as necessary to show
the duration of the impact (see point 1.6)

Article ………….

For miscellaneous ‘assigned’ revenue, specify the budget expenditure line(s) affected.

Specify the method for calculating the impact on revenue.

42

EN

As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net
amounts, i.e. gross amounts after deduction of 25 % for collection costs.

38

EN