What changed

PR_COD_1amCom

26.3.2024

Symbols for procedures

Mr Juan Fernando López Aguilar

* Consultation procedure

Chair

*** Consent procedure

Committee on Civil Liberties, Justice and Home Affairs

***I Ordinary legislative procedure (first reading)

BRUSSELS

***II Ordinary legislative procedure (second reading)

Subject: Opinion on the legal basis of the Proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2019/816 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders (COM(2021)0096 – C90088/2021 – 2021/0046(COD))

***III Ordinary legislative procedure (third reading)

Dear Mr Chair,

(The type of procedure depends on the legal basis proposed by the draft act.)

By letter of 15 February 2024, the Chair of the Committee on Civil Liberties, Justice and Home Affairs (LIBE) requested the Committee on Legal Affairs (JURI), pursuant to Rule 40(2) of the Rules of Procedure, to provide an opinion on the appropriateness of the legal basis for the proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2019/816 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders (hereinafter “the proposed Regulation”).

Amendments to a draft act

JURI will consider the above question at its extraordinary meeting on 11 March 2024.

Amendments by Parliament set out in two columns

I - Background

Deletions are indicated in bold italics in the left-hand column. Replacements are indicated in bold italics in both columns. New text is indicated in bold italics in the right-hand column.

In March 2021 the Commission put forward the proposed Regulation for the purpose of introducing a screening of third-country nationals at the external borders and based it on a series of Articles of the Treaty on the Functioning of the European Union (TFEU), that is Article 16(2), Article 74, Article 78(2), point (e), Article 79(2), point (c), Article 82(1), second subparagraph, point (d), Article 85(1), Article 87(2), point (a), and Article 88(2). The proposed Regulation complements another legislative proposal introducing a screening of third-country nationals at the external borders (2020/0278(COD), hereinafter the “Screening Regulation”) which was put forward by the Commission in September 2020 and is a development of the Schengen acquis regarding borders. As a consequence of that Screening Regulation, the proposed Regulation was subsequently put forward to provide for a number of necessary consequential amendments to legal acts applying beyond the Schengen acquis, which, for reasons of the so-called Schengen variable geometry, had to be done in a separate instrument.

The first and second lines of the header of each amendment identify the relevant part of the draft act under consideration. If an amendment pertains to an existing act that the draft act is seeking to amend, the amendment heading includes a third line identifying the existing act and a fourth line identifying the provision in that act that Parliament wishes to amend.

On 28 March 2023, LIBE adopted its reports on both above-mentioned proposals in which it did not dispute the legal basis. Following plenary endorsement, LIBE entered into interinstitutional negotiations. As work on the two files progressed in negotiations, it emerged that the multiple legal basis chosen by the Commission for the proposed Regulation included Treaty Articles which, despite having served as the legal bases for the two instruments being amended – Regulation (EU) 2019/816 and Regulation (EU) 2019/818 – were not relevant for the modifications to be made to those instruments through the proposed Regulation and seemed therefore redundant. Parliament and the Council thus provisionally agreed to remove Article 16(2), Article 74, Article 85(1) and Article 88(2) TFEU from the legal basis of the proposed Regulation.

Amendments by Parliament in the form of a consolidated text

Following those provisionally agreed changes in legal basis of the proposed Regulation, LIBE requested JURI to provide an opinion on the appropriateness of the modified legal basis, pursuant to Rule 40 Rules of Procedure.

New text is highlighted in bold italics. Deletions are indicated using either the ▌symbol or strikeout. Replacements are indicated by highlighting the new text in bold italics and by deleting or striking out the text that has been replaced.

II - The relevant Treaty Articles

By way of exception, purely technical changes made by the drafting departments in preparing the final text are not highlighted.

Title II of Part One TFEU reads, inter alia (emphasis added):

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

Article 16

on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) 2019/816 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders

(ex Article 286 TEC)

(COM(2021)0096 – C90088/2021 – 2021/0046(COD))

1. Everyone has the right to the protection of personal data concerning them.

(Ordinary legislative procedure: first reading)

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.

– having regard to the Commission proposal to Parliament and the Council (COM(2021)0096),

The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 39 of the Treaty on European Union.

– having regard to Article 294(2), Article 16(2), Article 74, Article 78(2)(e), Article 79(2)(c), Article 82(1), second subparagraph, point (d), Article 85(1), Article 87(2)(a) and Article 88(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90088/2021),

Chapter 1 (“General provisions”) of Title V of Part Three TFEU reads:

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

Article 74

– having regard to Rule 59 of its Rules of Procedure,

(ex Article 66 TEC)

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A90000/2021),

The Council shall adopt measures to ensure administrative cooperation between the relevant

1. Adopts its position at first reading hereinafter set out;

departments of the Member States in the areas covered by this Title, as well as between those

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

departments and the Commission. It shall act on a Commission proposal, subject to Article 76, and after consulting the European Parliament.

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Chapter 2 (“Policies on border checks, asylum and immigration”) of Title V of Part Three TFEU reads, inter alia (emphasis added):

Amendment 1

Article 78

Proposal for a regulation

(ex Articles 63, points 1 and 2, and 64(2) TEC)

Title

1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

Text proposed by the Commission

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:

Amendment

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;

Proposal for a

(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;

Proposal for a

(c) a common system of temporary protection for displaced persons in the event of a massive inflow;

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;

amending Regulation (EU) 2019/816 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders

(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;

amending Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders

(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.

Or. en

(...)

Amendment 2

Article 79

Proposal for a regulation

(ex Article 63, points 3 and 4, TEC)

Recital 2

1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

Text proposed by the Commission

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas:

Amendment

(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification;

(2) The Regulation (EU) …/… [Regulation on Screening]17 provides that verifications for security purposes in the framework of the screening should be carried out against the same systems as for applicants for visas or for travel authorisations under the European Travel Information and Authorisation System. In particular, Regulation (EU) …/… [Regulation on Screening]18 provides that the personal data of the persons submitted to the screening should be checked against Europol data, Interpol Stolen and Lost Travel Documents database (SLTD) and Interpol Travel Documents Associated with Notices database (TDAWN), as well as the European Criminal Records Information System for third country nationals (ECRIS-TCN) as regards persons convicted in relation to terrorist offences and other forms of serious criminal offences.

(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;

deleted

(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;

__________________

(d) combating trafficking in persons, in particular women and children.

17 Op. cit. 15.

(...)

18 Op. cit. 15.

Chapter 4 (“Judicial cooperation in criminal matters”) of Title V of Part Three TFEU reads, inter alia (emphasis added):

Or. en

Article 82

Amendment 3

(ex Article 31 TEU)

Proposal for a regulation

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.

Recital 3

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:

Text proposed by the Commission

(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;

Amendment

(b) prevent and settle conflicts of jurisdiction between Member States;

(3) Access to the ECRIS-TCN is necessary for the authorities designated to carry out the screening provided for in Regulation (EU) …/… [Regulation on Screening]19 in order to establish whether a person could pose a threat to internal security or to public policy.

(c) support the training of the judiciary and judicial staff;

deleted

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

__________________

(...)

19 Op. cit. 15.

Article 85

Or. en

(ex Article 31 TEU)

Amendment 4

1. Eurojust's mission shall be to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol. In this context, the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust's structure, operation, field of action and tasks. These tasks may include:

Proposal for a regulation

(a) the initiation of criminal investigations, as well as proposing the initiation of prosecutions conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union;

Recital 4

(b) the coordination of investigations and prosecutions referred to in point (a);

Text proposed by the Commission

(c) the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.

Amendment

(...)

(4) Regulation (EU) …/… [Regulation on Screening]20 , which constitutes a development of the Schengen acquis regarding borders, amends Regulations (EC) No 767/200821 , (EU) 2017/222622 , (EU) 2018/124023 and (EU) 2019/81724 , which likewise constitute developments of the Schengen acquis regarding borders, to grant access rights for the purposes of the screening to the data contained in the Visa Information System (VIS), to the Entry-Exit System (EES) and to European Travel Information and Authorisation System (ETIAS) respectively. However, the parallel amendment of Regulation (EU) No 2019/816 to grant access rights for the purposes of the screening to ECRIS-TCN could not be part of the same regulation for reasons of variable geometry, as the regulation establishing ECRIS-TCN does not constitute a development of the Schengen acquis. Regulation 2019/816 should therefore be amended by a distinct legal instrument.

Chapter 5 (“Police cooperation”) of Title V of Part Three TFEU reads, inter alia (emphasis added):

deleted

Article 87

__________________

(ex Article 30 TEU)

20 Op. cit. 15.

1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.

21 Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) OJ L 218, 13.8.2008, p. 60–81.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:

22 Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, OJ L 327, 9.12.2017, p. 20.

(a) the collection, storage, processing, analysis and exchange of relevant information;

23 Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236, 19.9.2018, p. 1).

(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;

24 Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa and amending Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA, OJ L 135, 22.5.2019, p. 27.

(c) common investigative techniques in relation to the detection of serious forms of organised crime.

Or. en

(...)

Amendment 5

Article 88

Proposal for a regulation

(ex Article 30 TEU)

Recital 5

(...)

Text proposed by the Commission

2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:

Amendment

(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;

(5) Since the objective of this Regulation, namely to enable access to the ECRIS-TCN for the purposes of the security checks established by Regulation (EU) …/… [Regulation on Screening]25 , which in turn aims at the strengthening of the control of persons who are about to enter the Schengen area and their referral to the appropriate procedures, cannot be sufficiently achieved by the Member States, but can only be 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 Regulation does not go beyond what is necessary to achieve that objective.

(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.

deleted

(...)

__________________

III – CJEU case law on the choice of legal basis

25 Op. cit. 15.

The Court of Justice has traditionally viewed the question of the appropriate legal basis as an issue of constitutional significance, guaranteeing compliance with the principle of conferred powers (Article 5 of the Treaty on European Union) and determining the nature and scope of the Union’s competence.

Or. en

According to well-established case law, the legal basis of a Union act does not depend on an institution's conviction as to the objective pursued, but must be determined according to objective criteria amenable to judicial review, including in particular the aim and the content of the measure. Furthermore, the legal basis for an act must be determined having regard to its own aim and content.

Amendment 6

If examination of a measure reveals that it pursues a twofold purpose or that it has a twofold component and if one of those is identifiable as the main or predominant purpose or component, whereas the other is merely incidental, that measure must be based on a single legal basis, namely that required by the main or predominant purpose or component. Only exceptionally, if it is established that the act simultaneously pursues a number of objectives, inextricably linked, without one being secondary and indirect in relation to the other, may such an act be founded on the various corresponding legal bases. This would however only be possible if the procedures laid down for the respective legal bases are not incompatible with and do not undermine the right of the European Parliament.

Proposal for a regulation

IV – Aim and content of the proposed Regulation

Article 1

As explained in the explanatory memorandum to the proposed Regulation, in September 2020 the Commission adopted a Communication on a New Pact on Migration and Asylum aiming, inter alia, to put in place a common framework for asylum and migration management at Union level and to promote mutual trust between the Member States. The Communication encompassed the Screening Regulation and announced the proposed Regulation - both intrinsically linked.

Regulation (EU) 2019/816

The Screening Regulation establishes, at the external borders of the Member States, a screening of third-country nationals who, without fulfilling entry conditions, have crossed the external borders in an unauthorised manner, have applied for international protection during border checks or have been disembarked after a search and rescue operation. It also provides for the screening of third-country nationals illegally staying within the territory of the Member States where there is no indication that they have been subject to controls at the external borders.

Article 1(e) – Article 2 – Article 3(6) – Article 5 – Article 7 – Article 7a (new) – Article 24(1)

The Commission also explains in the explanatory memorandum that the security checks as part of the screening should be at least of a similar level as the checks performed in respect of third-country nationals that apply beforehand for an authorisation to enter the Union for a short stay, whether they are under a visa obligation or not. It follows that the automated verifications for security purposes in the context of the screening should be carried out against the same systems as for applicants for a visa or for a travel authorisation under the European Travel Information and Authorisation System (ETIAS), the Visa Information System (VIS), the Entry/Exit System (EES) and the Schengen Information System (SIS).

Text proposed by the Commission

The screening also comprises measures to establish or verify the identity of the person concerned and a security check. For the purposes of the identification and verification of identity, the screening authorities should query the common identity repository (CIR) established under Regulations (EU) 2019/817 and (EU) 2019/818; consulting the CIR would allow checking in one source the identity data present in all of the above-mentioned systems, as well as in Eurodac and ECRIS-TCN. For the purpose of the security check, the screening authorities should also be able to consult ECRIS-TCN itself.

Amendment

However, since Union databases can only be used if prior access has been granted by law and since access to the EES, ETIAS, VIS and ECRIS-TCN is necessary for the authorities designated to carry out the screening, the Union Regulations establishing those systems, as well as CIR, need to be amended to provide for this additional access right for screening authorities.

Article 1

The Screening Regulation amends Regulations establishing the EES, ETIAS and VIS, which are all developments of the Schengen acquis regarding borders, as is the Screening Regulation as a whole.

deleted

In view of the fact that Regulation establishing ECRIS-TCN is not a development of the Schengen acquis, its amendment could not be part of the Screening Regulation and there was a need for a self-standing amendment of that Regulation.

Amendments to Regulation (EU) 2019/816

In addition, the CIR was established by two Regulations, (EU) 2019/817 and (EU) 2019/818, and while the Screening Regulation could provide for amendments to Regulation (EU) 2019/817, which applies to the EES, VIS and ETIAS, due to the so-called Schengen variable geometry, the necessary amendment to Regulation (EU) 2019/818, which applies to Eurodac and ECRIS-TCN, could not be part of the Screening Regulation either.

Regulation (EU) 2019/816 is amended as follows:

Consequently, the Commission put forward the proposed Regulation in necessary observance of the Schengen variable geometry.

1. In Article 1, the following point (e) is added:

V – Analysis

‘(e) the conditions under which ECRIS-TCN shall be used by the competent authorities in order to perform a security check in accordance with Regulation (EU) …/…28 [Regulation on Screening]*.’

It follows from the above that the aim of the proposed Regulation, as provisionally agreed by the co-legislators, is to provide the screening authorities with the necessary access rights to ECRIS-TCN and to the CIR for the purpose of applying the measures to establish or verify the identity of the person concerned, as well as the security checks that form part of screening. It thus ensures that the aims pursued by the ECRIS-TCN and the CIR can also be achieved during screening.

_________

To enable that, the proposed Regulation contains necessary amendments to Regulation establishing ECRIS-TCN in order to grant access of the screening authorities to that system and provide under what conditions a hit with data in ECRIS-TCN may result in a security flag in the screening form that is drawn up at the end of screening.

* Regulation (EU) …/… [Regulation introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817] (OJ …)

In so far as the amendments of Regulation (EU) 2019/818 are concerned, the proposed Regulation inserts a new Article providing for access to the CIR for the purpose of the establishment or verification of the identity of persons subject to screening. Other amendments ensure that existing provisions of Regulation (EU) 2019/818 on the keeping of logs also apply to queries by the screening authorities.

2. Article 2 is replaced by the following:

The proposed Regulation supports the aims of Regulation establishing ECRIS-TCN, which it amends. That Regulation was based on Article 82(1), second subparagraph, point (d), TFEU.

“Article 2

The amendments to Regulation (EU) 2019/818 reinforce the exchange of information between police authorities. It would therefore be appropriate to base the proposed Regulation also on Article 87(2), point (a), TFEU, which provides legal basis for measures concerning the collection, storage, processing, analysis and exchange of relevant information for the purposes of establishing police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.

Scope

Finally, in so far as the amendments of Regulation (EU) 2019/818 also allow for access to Eurodac identity data in the CIR, it would be appropriate to base the proposed Regulation also on Article 78(2), point (e), and Article 79(2), point (c), TFEU. Both provisions are among the legal bases for the new Eurodac Regulation that has also been provisionally agreed by the co-legislators.

This Regulation applies to the processing of identity information of third-country nationals who have been subject to convictions in the Member States for the purpose of identifying the Member States where such convictions were handed down [as well as for the purposes of border management]29. With the exception of point (b)(ii) of Article 5(1), the provisions of this Regulation that apply to third-country nationals also apply to citizens of the Union who also hold the nationality of a third country and who have been subject to convictions in the Member States.

As for the other four Treaty Articles that the Commission envisaged as legal bases of the proposed Regulation, their inclusion does not appear to be in accordance with the case-law set out in point III above.

This Regulation also:

While the amendments to Regulation (EU) 2019/818 extend the existing obligation to keep logs of data processing activities under that act to the queries of screening authorities, the impact of the proposed Regulation on the data protection provisions of Regulation (EU) 2019/818 is clearly not the main aim or component, but is merely of an ancillary nature. Article 16(2) TFEU should therefore not be used for the proposed Regulation.

(a) facilitates and assists in the correct identification of persons in accordance with this Regulation and with Regulation (EU) 2019/818;

Furthermore, the proposed Regulation does not contain any elements that would require the use of Article 74 TFEU, which allows the Council to adopt certain measures, as a legal basis.

(b) supports the objectives of Regulation (EU) …/… [Regulation on Screening] as regards the carrying out of the security checks.

Lastly, there does not seem to be any justification for the use of Articles 85(1) and 88(2)TFEU among the legal bases either. Those Articles provide a legal basis for the determination of the structure, operation, field of action and tasks of Eurojust and Europol respectively. However, the proposed Regulation does not contain any amendments that directly or indirectly concern Eurojust nor Europol. The main and sole purpose of the proposed Regulation is to authorise and regulate access of the screening authorities to ECRIS-TCN and the CIR.

3. In Article 3, point 6 is replaced by the following:

VI – Conclusion and recommendation

(6) ‘competent authorities’ means the central authorities and Eurojust, Europol, the EPPO [, the ETIAS Central Unit established within the European Border and Coast Guard Agency]30 and the authorities referred to in Article 6(7) subparagraph 1 of Regulation (EU) …/… [Regulation on Screening], which are competent to access or query ECRIS-TCN in accordance with this Regulation;

At its meeting of 11 March 2024 the Committee on Legal Affairs accordingly decided, by 16 votes in favour, none against and one abstention, to recommend to the Committee on Civil Liberties, Justice and Home Affairs that reference to Article 16(2), Article 74, Article 85(1) and Article 88(2) TFEU should rightly be deleted from the legal basis of the proposed Regulation and that it be based on the remaining Article 78(2), point (e), Article 79(2), point (c), Article 82(1), second subparagraph, point (d), and Article 87(2), point (a), TFEU.

4. Article 5 is amended as follows:

Yours sincerely,

(a) in paragraph 1, the following point is added:

Adrián Vázquez Lázara

‘(c) a flag indicating, for the purpose of [Regulation (EU) 2018/1240 and of Article 11 and 12 of Regulation (EU) …/… [Regulation on Screening], that the third-country national concerned has been convicted for a terrorist offence or any other criminal offence listed in the annex to Regulation (EU) 2018/1240 if they are punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years, and in those cases the code of the convicting Member State(s).’;

ANNEX: ENTITIES OR PERSONS FROM WHOM THE RAPPORTEUR HAS RECEIVED INPUT

(b) the following paragraph 7 is added after paragraph 6:

The rapporteur declares under his exclusive responsibility that he did not receive input from any entity or person to be mentioned in this Annex pursuant to Article 8 of Annex I to the Rules of Procedure.

‘7. Where hits are identified following the security checks referred to in Articles 11 and 12 of Regulation (EU) …/… [Regulation on Screening] flags and the code(s) of convicting Member State(s) as referred to in point (c) of paragraph 1 of this article shall be accessible and searchable only, respectively, by the competent authorities referred to in Article 6(7) of Regulation (EU) …/… [Regulation on Screening] for the purpose of that Regulation.’

5. In Article 7, paragraph 7 is replaced by the following:

‘7. In the event of a hit, the central system shall automatically provide the competent authority with information on the Member States holding criminal records information on the third country national, along with the associated reference numbers referred to in Article 5(1) and any corresponding identity information. Such identity information shall only be used for the purpose of verifying the identity of the third country national concerned. The result of a search in the central system may only be used for the purposes of:

(a) making a request according to Article 6 of Framework Decision 2009/315/JHA;

(b) making a request referred to in Article 17(3) of this Regulation;

(c) [border management]31;

(d) assessing whether a third country national subject to screening checks would pose a threat to public policy or public security, in accordance with Regulation (EU) …/… [Regulation on Screening].

6. The following Article 7a is inserted after Article 7:

‘Article 7a

Use of ECRIS-TCN for the purposes of the Screening

‘The competent authorities referred to in Article 6(7) of Regulation (EU) …/… [Regulation on Screening] shall have the right to access and search the European Criminal Records Information System for third country nationals (ECRIS-TCN) database using the European Search Portal provided for in Article 6 of Regulation (EU) 2019/818, for the purpose of performing the tasks conferred upon them by Article 11 of Regulation (EU) …/… [Regulation on Screening].

For the purpose of the security check referred to in Article 11 of Regulation (EU) …/… [Regulation on Screening], the competent authorities referred to in the first subparagraph shall only have access to data records in the CIR to which a flag has been added in accordance with Article 5(1)(c) of this Regulation.

The consultation of national criminal records based on the flagged ECRIS-TCN data shall take place in accordance with national law and using national channels. The relevant national authorities shall provide an opinion to the competent authorties referred to in Article 6(7) of Regulation (EU) …/… [Regulation on Screening] within two days where the screening takes place on the territory of the Member States or within four days where the screening takes place at external borders. The absence of opinion within these deadlines shall mean that there are no security grounds to be taken into account.’

7. In Article 24, paragraph 1 is replaced by the following:

‘1. The data entered into the central system and the CIR shall only be processed for the purposes of:

(a) the identification of the Member States holding the criminal records information of third-country nationals

(b) [border management]32 or

(c) screening pursuant to Article 11 of Regulation (EU) …/… [Regulation on Screening].’

___________

28 OJ …

29 COM/2019/3 final.

30 Op. cit. 29.

31 Op. cit. 29.

32 Op. cit. 29.

Or. en

Justification

The Rapporteur is not convinced that the provisions granting blanket access rights to the competent authorities are necessary to allow for the screening to be carried out effectively.

EXPLANATORY STATEMENT

The Rapporteur will present hereafter the main reasons for the amendments presented in the draft report on the proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) 2019/816 (ECRIS-TCN) and Regulation (EU) 2019/818 interoperability police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders 2021/0046 (COD) adopted by the Commission in March 2021.

With this Regulation, the Commission sought to introduce a self-standing amendment of Regulation 2019/816 to provide for access rights in view of the proposed Screening Regulation and to amend Regulation (EU) 2019/818 due to differing legal basis and variable geometry.

Since the appointment of the Rapporteur on 22 March 2021, several exchanges of views took place, including meetings with the shadow Rapporteurs, as well as meetings with external stakeholders.

The Rapporteur shares the overall objective of the Commission to allow for the use of the Common Identity Repository (CIR) and European Criminal Records Information System for third country nationals (‘ECRIS-TCN’) during the Screening. However, the Rapporteur is not convinced that the provisions granting blanket access rights to the competent authorities are necessary to allow for the screening to be carried out effectively.

The Rapporteur regrets that the Commission did not produce an impact assessment for the Screening proposal and this subsequent proposal. The Rapporteur would like to express her gratitude to the European Parliamentary Research Service Ex-Ante Impact Assessment Unit and the respective contractors for the work on the horizontal substitute impact assessment on the New Pact on Migration and Asylum. The Rapporteur would also like to express her gratitude to the authors of the study by the European Parliament Policy Department for Citizens’ Rights and Constitutional Affairs.