Sittings · Document

DRAFT REPORT (COM(2016)0272 – C80179/2016 – 2016/0132(COD)) 2017-02-02

On the proposal for a regulation of the European Parliament and of the Council on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast)

Committee on Civil Liberties, Justice and Home Affairs · Rapporteur: Monica Macovei

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Committee on Civil Liberties, Justice and Home Affairs

2016/0132(COD)

2.2.2017

***I

DRAFT REPORT

PR_COD_1recastingam

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Amendments to a draft act

Amendments by Parliament set out in two columns

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Amendments by Parliament in the form of a consolidated text

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DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast)

(COM(2016)0272 – C80179/2016 – 2016/0132(COD))

(Ordinary legislative procedure – recast)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2016)0272),

– having regard to Article 294(2) and Article 78(2)(e), Article 79(2)(c), Article 87(2)(a), and Article 88(2)(a) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C80179/2016),

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

– having regard to the opinion of the European Economic and Social Committee of 19 October 2016,

– having regard to the opinion of the Committee of Regions of 8 December 2016,

– having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts,

– having regard to the letter of ...2017 from the Committee on Legal Affairs to the Committee on Civil Liberties, Justice and Home Affairs in accordance with Rule 104(3) of its Rules of Procedure,

– having regard to Rules 104 and 59 of its Rules of Procedure,

– having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs and the opinion of the Committee on Budgets (A80000/2017),

A. whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the Commission proposal does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance;

1. Adopts its position at first reading hereinafter set out, taking into account the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

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

Amendment 1

Proposal for a regulation

Title 1

Text proposed by the Commission

Amendment

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person] , for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast)

Or. en

Justification

The initial Commission proposal includes DubliNet and the operational responsibility of eu-LISA in Article 5(5) describing the Eurodac´s architecture, which from the operational point of view is not correct. It would be better to amend Regulation (EU) 1077/2011. Therefore, an amendment is tabled providing for a new chapter containing the Commission text with additional provisions clarifying the operational responsibility (see Amendment 59). The text is relating to an amendment in a non-codified part.

Amendment 2

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5) Biometrics constitute an important element in establishing the exact identity of such persons. It is necessary to set up a system for the comparison of their fingerprint and facial image data.

(5) Biometrics constitute an important element in establishing the exact identity of such persons. It is necessary to set up a system for the comparison of their biometric data.

(This amendment applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Or. en

Amendment 3

Proposal for a regulation

Recital 10

Text proposed by the Commission

Amendment

(10) To assist Member States overcome challenges relating to non-compliance with the fingerprinting process, this Regulation also permits the comparison of a facial image without fingerprints as a last resort, where it is impossible to take the fingerprints of the third-country national or stateless person because his or her fingertips are damaged, either intentionally or not, or amputated. Member States should exhaust all attempts to ensure that fingerprints can be taken from the data-subject before a comparison using a facial image only can be carried out where non-compliance based on reasons not relating to the conditions of the individual's fingertips are given. Where facial images are used in combination with fingerprint data, it allows for the reduction of fingerprints registered while enabling the same result in terms of accuracy of the identification.

(10) To assist Member States overcome challenges, where it is impossible to take the fingerprints of the third-country national or stateless person because his or her fingertips are damaged, either intentionally or not, or amputated, this Regulation also permits the comparison of a facial image without fingerprints. Member States should exhaust all attempts to ensure that fingerprints can be taken from the data-subject before a comparison using a facial image only can be carried out.

Or. en

Amendment 4

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11) The return of third-country nationals who do not have a right to stay in the Union, in accordance with fundamental rights as general principles of Union law as well as international law, including refugee protection and human rights obligations, and in compliance with the provisions of Directive 2008/115/EC26, is an essential part of the comprehensive efforts to address migration and, in particular, to reduce and deter irregular migration. To increase the effectiveness of the Union system to return illegally staying third-country nationals is needed in order to maintain public trust in the Union migration and asylum system, and should go hand in hand with the efforts to protect those in need of protection.

(11) The return of third-country nationals or stateless persons who do not have a right to stay in the Union, in accordance with fundamental rights as general principles of Union law as well as international law, including refugee protection and human rights obligations, and in compliance with the provisions of Directive 2008/115/EC26, is an essential part of the comprehensive efforts to address migration and, in particular, to reduce and deter irregular migration. To increase the effectiveness of the Union system to return illegally staying third-country nationals or stateless persons is needed in order to maintain public trust in the Union migration and asylum system, and should go hand in hand with the efforts to protect those in need of protection.

__________________

26 Directive of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 24,12,2008, p. 98.

Or. en

Amendment 5

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12) National authorities in the Member States experience difficulties in identifying illegally staying third-country nationals who use deceptive means to avoid their identification and to frustrate the procedures for re-documentation in view of their return and readmission. It is therefore essential to ensure that information on third-country nationals or stateless persons who are found to be staying illegally in the EU are collected and transmitted to Eurodac and are compared also with those collected and transmitted for the purpose of establishing the identity of applicants for international protection and of third-country nationals apprehended in connection with the unlawful crossing of the external borders of the Union, in order to facilitate their identification and re-documentation and to ensure their return and readmission, and to reduce identity fraud. It should also contribute to reducing the length of the administrative procedures necessary for ensuring return and readmission of illegally staying third-country nationals, including the period during which they may be kept in administrative detention awaiting removal. It should also allow identifying third countries of transit, where the illegally staying third-country national may be readmitted.

(12) National authorities in the Member States experience difficulties in identifying illegally staying third-country nationals or stateless persons who use deceptive means to avoid their identification and to frustrate the procedures for re-documentation in view of their return and readmission. It is therefore essential to ensure that information on third-country nationals or stateless persons who are found to be staying illegally in the EU are collected and transmitted to Eurodac and are compared also with those collected and transmitted for the purpose of establishing the identity of applicants for international protection and of third-country nationals or stateless persons apprehended in connection with the unlawful crossing of the external borders of the Union, in order to facilitate their identification and re-documentation and to ensure their return and readmission, and to reduce identity fraud. It should also contribute to reducing the length of the administrative procedures necessary for ensuring return and readmission of illegally staying third-country nationals or stateless persons, including the period during which they may be kept in administrative detention awaiting removal. It should also allow identifying third countries of transit, where the illegally staying third-country national or stateless person may be readmitted.

Or. en

Amendment 6

Proposal for a regulation

Recital 13

Text proposed by the Commission

Amendment

(13) In its Conclusions of 8 October 2015 on the future of return policy, the Council endorsed the initiative announced by the Commission to explore an extension of the scope and purpose of Eurodac to enable the use of data for return purposes27. Member States should have the necessary tools at their disposal to be able to detect illegal migration to and secondary movements of illegally staying third-country nationals in the Union. Therefore, the data in Eurodac should be available, subject to the conditions set out in this Regulation, for comparison by the designated authorities of the Member States.

(13) In its Conclusions of 8 October 2015 on the future of return policy, the Council endorsed the initiative announced by the Commission to explore an extension of the scope and purpose of Eurodac to enable the use of data for return purposes27. Member States should have the necessary tools at their disposal to be able to detect illegal migration to and secondary movements of illegally staying third-country nationals or stateless persons in the Union. Therefore, the data in Eurodac should be available, subject to the conditions set out in this Regulation, for comparison by the designated authorities of the Member States.

__________________

27 EU Action Plan on return, COM(2015) 453 final.

Or. en

Amendment 7

Proposal for a regulation

Recital 14

Text proposed by the Commission

Amendment

(14) The Commission’s Communication on Stronger and Smarter Information Systems for Borders and Security28 highlights the need to improve the interoperability of information systems as a long-term objective, as also identified by the European Council and the Council. The Communication proposes to set up an Expert Group on Information Systems and Interoperability to address the legal and technical feasibility of achieving interoperability of the information systems for borders and security. This group should assess the necessity and proportionality of establishing interoperability with the Schengen Information Systems (SIS), the Visa Information Systems (VIS), and other relevant databases in the area of Justice and Home Affairs. In particular, the question whether interoperability should be established between EURODAC and the Entry-Exist-System (EES) database to allow consultation between the systems and the automatic transfer from the EES to Eurodac of the data of third-country nationals or stateless persons having exceeded the maximum duration of authorised stay should be assessed. Given the current lack of information sharing between Member States on return decisions, the Expert Group on Information Systems and Interoperability should also assess the potential benefits of registering return decisions and other measures relating to removal in Eurodac.

__________________

28 COM(2016) 205 final

28 COM(2016) 0205

Or. en

Amendment 8

Proposal for a regulation

Recital 19

Text proposed by the Commission

Amendment

(19) Requests for comparison of Eurodac data by Europol should be allowed only in specific cases, under specific circumstances and under strict conditions.

(19) Access for comparisons to Eurodac data by Europol should be allowed only in specific cases, under specific circumstances and under strict conditions.

Or. en

Justification

Amendment linked to Article1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement purposes. However, the current ex-ante control by an independent verifying authority of every access by Europol´s operating unit to Eurodac makes it extremely difficult to implement due to legal, data protection and technical reasons. The deletion of this requirement is counterbalanced by a new paragraph 3b in Article 22 reinforcing the obligation to comply with data protection rules and with the control mechanisms provided for therein.

Amendment 9

Proposal for a regulation

Recital 22

Text proposed by the Commission

Amendment

(22) This Regulation also lays down the conditions under which requests for comparison of fingerprint data with Eurodac data for the purposes of preventing, detecting or investigating terrorist offences or other serious criminal offences should be allowed and the necessary safeguards to ensure the protection of the fundamental right to respect for the private life of individuals whose personal data are processed in Eurodac. The strictness of those conditions reflects the fact that the Eurodac database registers fingerprint data of persons who are not presumed to have committed a terrorist offence or other serious criminal offence.

(22) This Regulation also lays down the conditions under which requests for comparison of biometric or alphanumeric data with Eurodac data for the purposes of preventing, detecting or investigating terrorist offences or other serious criminal offences should be allowed and the necessary safeguards to ensure the protection of the fundamental right to respect for the private life of individuals whose personal data are processed in Eurodac. The strictness of those conditions reflects the fact that the Eurodac database registers biometric and alphanumeric data of persons who are not presumed to have committed a terrorist offence or other serious criminal offence. It is acknowledged that law enforcement authorities and Europol do not always have the biometric data of the perpetrator or victim whose case they are investigating, which may hamper their ability to check biometric matching databases such as Eurodac. In order to contribute further to investigations of those authorities and Europol, search based on alphanumeric data should be allowed in Eurodac in such cases, in particular where those authorities and Europol may possess evidence of the criminal suspect or victim's personal details or identity documents.

Or. en

Justification

Under the proposal, national law enforcement authorities and Europol cannot request comparison with specific alphanumeric data, which is highly detrimental to investigations, especially in the counter-terrorism field, trying to establish the places and dates of entry in the EU of suspects for which a used identity is known, but no fingerprint is available. In this context, and given that Art.1.1(c) of the proposal, extends its scope of Eurodac to law enforcement purposes, it would be essential for national law enforcement authorities and Europol to have access to all data contained in Eurodac in order to properly carry out their tasks.

Amendment 10

Proposal for a regulation

Recital 24

Text proposed by the Commission

Amendment

(24) It is also necessary to require the Member States promptly to take and transmit the fingerprint data of every applicant for international protection and of every third-country national or stateless person who is apprehended in connection with the irregular crossing of an external border of a Member State or is found to be staying illegally in a Member State, if they are at least six years of age.

(24) It is also necessary to require the Member States promptly to take and transmit the biometric data of every applicant for international protection and of every third-country national or stateless person who is apprehended in connection with the irregular crossing of an external border of a Member State or is found to be staying illegally in a Member State, if they are at least six years of age.

Or. en

Amendment 11

Proposal for a regulation

Recital 30

Text proposed by the Commission

Amendment

(30) Member States should refer to the Commission's Staff Working Document on Implementation of the Eurodac Regulation as regards the obligation to take fingerprints adopted by the Council on 20 July 201534, which sets out a best practice approach to taking fingerprints of irregular third-country nationals. Where a Member State's national law allows for the taking of fingerprints by force or coercion as a last resort, those measures must fully respect the EU Charter of Fundamental Rights. Third-country nationals who are deemed to be vulnerable persons and minors should not be coerced into giving their fingerprints or facial image, except in duly justified circumstances that are permitted under national law.

(30) Member States should refer to the Commission's Staff Working Document on Implementation of the Eurodac Regulation as regards the obligation to take fingerprints adopted by the Council on 20 July 201534, which sets out a best practice approach to taking fingerprints of irregular third-country nationals or stateless persons. Where a Member State's national law allows for the taking of fingerprints by force or coercion as a last resort, those measures must fully respect the EU Charter of Fundamental Rights. Third-country nationals or stateless persons who are deemed to be vulnerable persons and minors should not be coerced into giving their fingerprints or facial image, except in duly justified circumstances that are permitted under national law.

__________________

34 COM(2015) 150 final, 27.5.2015

Or. en

Amendment 12

Proposal for a regulation

Recital 31

Text proposed by the Commission

Amendment

(31) Hits obtained from Eurodac should be verified by a trained fingerprint expert in order to ensure the accurate determination of responsibility under Regulation (EU) No […/…], the exact identification of the third-country national or stateless person and the exact identification of the criminal suspect or victim of crime whose data might be stored in Eurodac. Hits obtained from Eurodac based on facial images should also be verified by an official trained in accordance with national practice, in particular where the comparison is made with a facial image only. Where a fingerprint and facial image comparison is carried out simultaneously and a hit is received for both biometric data sets, Member States may check and verify the facial image result, if needed.

Or. en

Amendment 13

Proposal for a regulation

Recital 34

Text proposed by the Commission

Amendment

(34) The storage period should be shorter in certain special situations where there is no need to keep fingerprint and facial data and all other personal data for that length of time. Fingerprint and facial image data and all other personal data belonging to a third-country national should be erased immediately once third-country nationals or stateless persons obtain citizenship of a Member State.

(34) The storage period should be shorter in certain special situations where there is no need to keep fingerprint and facial data and all other personal data for that length of time. Fingerprint and facial image data and all other personal data belonging to a third-country national or a stateless person should be erased immediately once third-country nationals or stateless persons obtain citizenship of a Member State.

Or. en

Amendment 14

Proposal for a regulation

Recital 41

Text proposed by the Commission

Amendment

(41) For the purposes of protection of personal data, and to exclude systematic comparisons which should be forbidden, the processing of Eurodac data should only take place in specific cases and when it is necessary for the purposes of preventing, detecting or investigating terrorist offences or other serious criminal offences. A specific case exists in particular when the request for comparison is connected to a specific and concrete situation or to a specific and concrete danger associated with a terrorist offence or other serious criminal offence, or to specific persons in respect of whom there are serious grounds for believing that they will commit or have committed any such offence. A specific case also exists when the request for comparison is connected to a person who is the victim of a terrorist offence or other serious criminal offence. The designated authorities and Europol should thus only request a comparison with Eurodac when they have reasonable grounds to believe that such a comparison will provide information that will substantially assist them in preventing, detecting or investigating a terrorist offence or other serious criminal offence.

(41) For the purposes of protection of personal data, and to exclude systematic comparisons which should be forbidden, the processing of Eurodac data should only take place in specific cases and when it is necessary for the purposes of preventing, detecting or investigating terrorist offences or other serious criminal offences. A specific case exists in particular when the request for comparison is connected to a specific and concrete situation or to a specific and concrete danger associated with a terrorist offence or other serious criminal offence, or to specific persons in respect of whom there are serious grounds for believing that they will commit or have committed any such offence. A specific case also exists when the request for comparison is connected to a person who is the victim of a terrorist offence or other serious criminal offence. The designated authorities should thus only request a comparison with Eurodac when they have reasonable grounds to believe that such a comparison will provide information that will substantially assist them in preventing, detecting or investigating a terrorist offence or other serious criminal offence.

Or. en

Justification

Amendment 15

Proposal for a regulation

Recital 50

Text proposed by the Commission

Amendment

(50) Transfers of personal data obtained by a Member State or Europol pursuant to this Regulation from the Central System to any third country or international organisation or private entity established in or outside the Union should be prohibited, in order to ensure the right to asylum and to safeguard applicants for international protection from having their data disclosed to a third country. This implies that Member States should not transfer information obtained from the Central System concerning: the name(s); date of birth; nationality; the Member State(s) of origin or Member State of allocation; the details of the identity or travel document; the place and date of application for international protection; the reference number used by the Member State of origin; the date on which the fingerprints were taken as well as the date on which the Member State(s) transmitted the data to Eurodac; the operator user ID; and any information relating to any transfer of the data subject under [Regulation (EU) No 604/2013]. That prohibition should be without prejudice to the right of Member States to transfer such data to third countries to which [Regulation (EU) No 604/2013] applies [in accordance with Regulation (EU) No […/2016] respectively with the national rules adopted pursuant to Directive [2016/…/EU] ], in order to ensure that Member States have the possibility of cooperating with such third countries for the purposes of this Regulation.

______________________

1a Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA.

Or. en

Justification

Amendment linked to Article1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement purposes. This provision foresees the possibility for Europol to transmit data obtained from Eurodac to third Parties, under specific conditions and in accordance with the applicable rules on external relations of the Europol Regulation. In fact, one of Europol’s added values is to create synergies between law enforcement information originating within and outside the EU. Internal and external dimensions of the security of the Union are very much interlinked.

Amendment 16

Proposal for a regulation

Recital 51

Text proposed by the Commission

Amendment

(51) In individual cases, information obtained from the Central System may be shared with a third-country in order to assist with the identification of a third-country national in relation to his/her return. Sharing of any personal data must be subject to strict conditions. Where such information is shared, no information shall be disclosed to a third-country relating to the fact that an application for international protection has been made by a third-country national where the country the individual is being readmitted to, is also the individual's country of origin or another third-country where they will be readmitted. Any transfer of data to a third-country for the identification of a third-country national must be in accordance with the provisions of Chapter V of Regulation (EU) No. […2016].

(51) In individual cases, information obtained from the Central System may be shared with a third-country in order to assist with the identification of a third-country national in relation to his/her return. Sharing of any personal data must be subject to strict conditions. Where such information is shared, no information shall be disclosed to a third-country relating to the fact that an application for international protection has been made by a third-country national or a stateless person where the country the individual is being readmitted to, is also the individual's country of origin or another third-country where they will be readmitted. Any transfer of data to a third-country for the identification of a third-country national or a stateless person must be in accordance with the provisions of Chapter V of Regulation (EU) No. [679/2016].

Or. en

Amendment 17

Proposal for a regulation

Article 1 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) assist with the control of illegal immigration to and secondary movements within the Union and with the identification of illegally staying third-country nationals for determining the appropriate measures to be taken by Member States, including removal and repatriation of persons residing without authorisation.

(b) assist with the control of illegal immigration and secondary movements within the Union and with the identification of illegally staying third-country nationals and stateless persons for determining the appropriate measures to be taken by Member States, including removal, repatriation and return measures for third-country nationals and stateless persons staying illegally.

Or. en

Amendment 18

Proposal for a regulation

Article 1 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c) lay down the conditions under which Member States' designated authorities and the European Police Office (Europol) may request the comparison of fingerprint and facial image data with those stored in the Central System for law enforcement purposes for the prevention, detection or investigation of terrorist offences or of other serious criminal offences.

(c) lay down the conditions under which Member States' designated authorities may request the comparison of biometric data and alphanumeric data with those stored in the Central System for law enforcement purposes for the prevention, detection or investigation of terrorist offences or of other serious criminal offences, as well as the conditions under which the European Police Office (Europol) may make comparisons against Eurodac data for the purpose of the performance of its tasks.

Or. en

Justification

The purpose allowing Europol to use Eurodac data for comparisons differ from the purpose of national law enforcement authorities. Europol does not have law enforcement coercive powers. Its mandate is not to prevent, detect and investigate terrorist and other serious criminal offences but to support the competent national authorities of MSs to do so. Therefore, a separate indication of the purpose for the processing of Eurodac data by Europol is needed.

Amendment 19

Proposal for a regulation

Article 2 – paragraph 2

Text proposed by the Commission

Amendment

2. Taking fingerprints and facial images of minors from the age of six shall be carried out in a child-friendly and child-sensitive manner by officials trained specifically to enrol minor's fingerprints and facial images. The minor shall be informed in an age-appropriate manner using leaflets and/or infographics and/or demonstrations specifically designed to explain the fingerprinting and facial image procedure to minors and they shall be accompanied by a responsible adult, guardian or representative at the time their fingerprints and facial image are taken. At all times Member States must respect the dignity and physical integrity of the minor during the fingerprinting procedure and when capturing a facial image.

2. Taking biometric data of minors from the age of six shall be carried out in a child-friendly and child-sensitive manner by officials trained specifically to enrol minor's fingerprints and to capture facial images. The minor shall be informed in an age-appropriate manner, both orally and in writing, using leaflets and/or infographics and/or demonstrations specifically designed to explain the fingerprinting and facial image procedure to minors and they shall be accompanied by a responsible adult, guardian or legal representative at the time their biometric data are taken. At all times Member States must respect the dignity and physical integrity of the minor during the fingerprinting procedure and when capturing a facial image.

Or. en

Amendment 20

Proposal for a regulation

Article 2 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States may introduce administrative sanctions, in accordance with their national law, for non-compliance with the fingerprinting process and capturing a facial image in accordance with paragraph 1 of this Article. These sanctions shall be effective, proportionate and dissuasive. In this context, detention should only be used as a means of last resort in order to determine or verify a third-country national's identity.

3. Member States shall introduce administrative sanctions, in accordance with their national law, for non-compliance with the fingerprinting process and capturing a facial image in accordance with paragraph 1 of this Article. These sanctions shall be effective, proportionate and dissuasive. In this context, detention should only be used as a means of last resort in order to determine or verify a third-country national's identity.

Or. en

Amendment 21

Proposal for a regulation

Article 3 – paragraph 1 – point o a (new)

Text proposed by the Commission

Amendment

(oa) "biometric data" means fingerprint data and facial image data;

Or. en

Justification

Amendment relating to horizontal Amendment 2 and needed to ensure the internal logic of the text.

Amendment 22

Proposal for a regulation

Article 3 – paragraph 1 – point o b (new)

Text proposed by the Commission

Amendment

(ob) "alphanumeric data" means data represented by letters, digits, special characters, spaces and punctuation marks;

Or. en

Justification

Amendment relating to Amendment 9 and needed to ensure the internal logic of the text.

Amendment 23

Proposal for a regulation

Article 3 – paragraph 1 – point o c (new)

Text proposed by the Commission

Amendment

(oc) 'residence document' means a residence document as defined in point (...) of Article of Regulation ... [COD(2016)0133; Dublin IV];

Or. en

Justification

New definition introduced to a term used in a non-codifed text (Art. 19(5)) to ensure the internal logic of the text

Amendment 24

Proposal for a regulation

Article 3 – paragraph 1 – point o d (new)

Text proposed by the Commission

Amendment

(od) 'interface control document' means a technical document that specifies the necessary requirements to which the national access points referred to in Article 4(3) are to comply with in order to be able to communicate electronically with the Central System, in particular by detailing the form and possible content of the information to be exchanged between the Central System and the national access points.

Or. en

Justification

New definition introduced to a term used in a non-codifed text (Article 23(2)) to ensure internal logic of the text.

Amendment 25

Proposal for a regulation

Article 4 – paragraph 2

Text proposed by the Commission

Amendment

2. The EURODAC Communication Infrastructure will be using the existing 'Secure Trans European Services for Telematics between Administrations' (TESTA) network. A separate virtual private network dedicated to the EURODAC shall be established on the existing TESTA private virtual network to ensure the logical separation of EURODAC data from other data.

2. The EURODAC Communication Infrastructure will be using the existing 'Secure Trans European Services for Telematics between Administrations' (TESTA) network. In order to ensure confidentiality, personal data transmitted to or from Eurodac shall be encrypted.

Or. en

Justification

The amendment aims to ensure data confidentiality (as is the case today, but this is made more explicit) without the need to move to a dedicated virtual private network. The initial paragraph was admitted by COM as contradicting with the intentions of COM, as technical discussions on the topic are ongoing between COM and eu-LISA. The amendment allows to either stay on the Eurodomain network over Testa, or migrate to a dedicated network over Testa as is the case for SIS II, VIS (upon readiness and impact assessment by eu-LISA, but this is not to be tackled in this Regulation.

Amendment 26

Proposal for a regulation

Article 5 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

In such cases, the security measures, access control and logging activities at the testing environment shall be equal to the ones for the Eurodac production system. Real personal data adopted for testing shall be rendered anonymous in such a way that the data-subject is no longer identifiable.

Or. en

Amendment 27

Proposal for a regulation

Article 5 – paragraph 5

Text proposed by the Commission

Amendment

5. A separate secure electronic transmission channel between the authorities of Member States known as the ‘DubliNet’ communication network set-up under [Article 18 of Regulation (EC) No. 1560/2003] for the purposes set out in Articles 32, 33 and 46 of Regulation (EU) No. […/…] shall also be operated and managed by eu-LISA.

deleted

Or. en

Justification

The proposal has included DubliNet and the operational responsibility of eu-LISA in Article 5 (5) which provides for the operational management of Eurodac , which was not entirely correct (see also relevant Amendments 58). The relevant text with additional provisions on the operational responsibility is tabled as amendment to Regulation 1077/2011(see Amendment 59).

Amendment 28

Proposal for a regulation

Article 7 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

2. The verifying authority shall ensure that the conditions for requesting comparisons of fingerprints with Eurodac data are fulfilled.

2. The verifying authority shall ensure that the conditions for requesting comparisons of biometric or alphanumeric data with Eurodac data are fulfilled.

Or. en

Justification

Amendment 29

Proposal for a regulation

Article 7 – paragraph 2 – subparagraph 3

Text proposed by the Commission

Amendment

Only the verifying authority shall be authorised to forward requests for comparison of fingerprints and facial images to the National Access Point.

Only the verifying authority shall be authorised to forward requests for comparison of biometric and alphanumeric data to the National Access Point.

Or. en

Justification

Under the proposal, national law enforcement authorities and Europol cannot request comparison with specific alphanumeric data, which is highly detrimental to investigations, especially in the counter-terrorism field, trying to establish the places and dates of entry in the EU of suspects for which a used identity is known, but no fingerprint is available. In this context, and given that Article 1 (1)(c) of the proposal, extends its scope of Eurodac to law enforcement purposes, it would be essential for national law enforcement authorities and Europol to have access to all data contained in Eurodac in order to properly carry out their tasks.

Amendment 30

Proposal for a regulation

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

1. For the purposes laid down in Article 1(1)(c), Europol shall designate a specialised unit with duly empowered Europol officials to act as its verifying authority, which shall act independently of the designated authority referred to in paragraph 2 of this Article when performing its tasks under this Regulation and shall not receive instructions from the designated authority as regards the outcome of the verification. The unit shall ensure that the conditions for requesting comparisons of fingerprints and facial images with Eurodac data are fulfilled. Europol shall designate in agreement with any Member State the National Access Point of that Member State which shall communicate its requests for comparison of fingerprint and facial image data to the Central System.

deleted

Or. en

Justification

See justification on amendment 8. Moreover, current, Europol’s dependency on a MS’s technical infrastructure in order to access Eurodac data creates unnecessary risk and once used, would be cumbersome and slow. The MS’s system connecting Europol to Eurodac would need to meet Europol’s stringent data security requirements. At present, the connection to Eurodac via the Dutch National Access point could not be successfully established due to technical and data security issues encountered.

Amendment 31

Proposal for a regulation

Article 8 – paragraph 2

Text proposed by the Commission

Amendment

2. For the purposes laid down in Article 1 (1)(c), Europol shall designate an operating unit that is authorised to request comparisons with Eurodac data through its designated National Access Point. The designated authority shall be an operating unit of Europol which is competent to collect, store, process, analyse and exchange information to support and strengthen action by Member States in preventing, detecting or investigating terrorist offences or other serious criminal offences falling within Europol's mandate.

2. For the purposes laid down in Article 1(1)(c), Europol shall designate an operating unit that is authorised to make comparisons with Eurodac data. The designated authority shall be an operating unit of Europol which is competent to collect, store, process, analyse and exchange information to support and strengthen action by Member States in preventing, detecting or investigating terrorist offences or other serious criminal offences falling within Europol's mandate.

Or. en

Justification

Amendment linked to Article1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement purposes. Europol’s dependency on a MS’s technical infrastructure in order to access Eurodac data creates unnecessary risk and once used, would be cumbersome and slow. The MS’s system connecting Europol to Eurodac would need to meet Europol’s stringent data security requirements. At present, the connection to Eurodac via the Dutch National Access point could not be successfully established due to technical and data security issues encountered.

Amendment 32

Proposal for a regulation

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2. The monthly statistical data for persons referred to in paragraph 1(a) to (h) shall be published and made public by each month. At the end of each year, the yearly statistical data for persons referred to in paragraph 1(a) to (h) shall be published and made public by eu-LISA . The statistics shall contain a breakdown of data for each Member State.

2. The monthly statistical data for persons referred to in paragraph 1(a) to (h) shall be broken down by sex and age in order to understand how many minors are affected and shall be published and made public by each month. At the end of each year, the yearly statistical data for persons referred to in paragraph 1(a) to (h) shall be published and made public by eu-LISA.The statistics shall contain a breakdown of data for each Member State.

Or. en

Amendment 33

Proposal for a regulation

Article 9 – paragraph 3

Text proposed by the Commission

Amendment

3. At the request of the Commission, eu-LISA shall provide it with statistics on specific aspects for research and analysis purposes without allowing for individual identification as well as the possibility to produce regular statistics pursuant to paragraph 1. These statistics shall be shared with other Justice and Home Affairs Agencies if they are relevant for the implementation of their tasks.

3. At the request of the Commission, eu-LISA shall provide it with statistics on specific aspects relating to the implementation of this Regulation as well as statistics drawn up pursuant to paragraph 1, and make it available, upon request, to Member States.

Eu-LISA shall also establish, implement and host a central repository in its technical sites containing the data referred to in paragraphs 1 and 2 of this Article, for analysis purposes, which does not allow for the identification of individuals but which does allow eu-LISA, the Commission and the authorities of Member States, which have been listed as the authorities designated pursuant to Article 28(2), to obtain customised reports and statistics. Eu-LISA shall grant secured access to the central repository through TESTA, providing for control of access and specific user profiles that are used solely for the purpose of reporting and statistics. Access may also be granted to authorised users of other Justice and Home Affairs Agencies if such access is relevant for the implementation of their tasks.

Or. en

Justification

Eu-LISA has been providing predefined statistics. However, there is a need for a number of ad hoc statistics, both of technical nature (e.g. measuring the performance and availability of the system) as well as of business nature that cannot be included in an exhaustive list as they are relevant with the everyday conditions (e.g. crisis) and an increased interest or relevance for the stakeholders of this regulation (COM, MS, other JHA Agencies) under certain circumstances such as weekly registrations in the Hotspots, increase of frequency of certain predefined statistics etc.

Amendment 34

Proposal for a regulation

Article 10 – paragraph 3

Text proposed by the Commission

Amendment

3. Fingerprint data may also be taken and transmitted by members of the European Border [and Coast] Guard Teams or by Member State asylum experts when performing tasks and exercising powers in accordance with [Regulation on the European Border [and Coast] Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC] and [Regulation (EU) No. 439/2010].

3. Where requested by the Member State concerned, the biometric data may also be taken and transmitted by members of the European Border and Coast Guard Teams or by Member State asylum experts when performing tasks and exercising powers in accordance with Regulation (EU) 2016/1624 of the European Parliament and of the Council1a.

_________________

1a Regulation.(EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p.1).

Or. en

Amendment 35

Proposal for a regulation

Article 12 – point s a (new)

Text proposed by the Commission

Amendment

(sa) details of family members (such as name and passport or identification card number), and a particular indication where the person is an unaccompanied minors.

Or. en

Justification

The best interest of the child should be an essential part of this Regulation. This Amendment is linked to Article 2 (non-codified text).

Amendment 36

Proposal for a regulation

Article 13 – paragraph 7

Text proposed by the Commission

Amendment

7. Fingerprint data may also be taken and transmitted by members of the European Border [and Coast] Guard Teams when performing tasks and exercising powers in accordance with [Regulation on the European Border [and Coast] Guard and repealing Regulation (EC) No 2007/2004, Regulation (EC) No 863/2007 and Council Decision 2005/267/EC].

7. Where requested by the Member State concerned, the biometric data may also be taken and transmitted by members of the European Border and Coast Guard Teams when performing tasks and exercising powers in accordance with Regulation (EU) 2016/1624.

Or. en

Amendment 37

Proposal for a regulation

Article 14 – paragraph 4

Text proposed by the Commission

Amendment

4. Non-compliance with the 72-hour time-limit referred to in paragraph 3 of this Article shall not relieve Member States of the obligation to take and transmit the fingerprints to the Central System. Where the condition of the fingertips does not allow the taking of fingerprints of a quality ensuring appropriate comparison under Article 26, the Member State of origin shall retake the fingerprints of persons apprehended as described in paragraph 1 of this Article, and resend them as soon as possible and no later than 48 hours after they have been successfully retaken.

4. Non-compliance with the 72-hour time-limit referred to in paragraph 3 of this Article shall not relieve Member States of the obligation to take and transmit the biometric data to the Central System. Where the condition of the fingertips does not allow the taking of fingerprints of a quality ensuring appropriate comparison under Article 26, the Member State of origin shall retake the fingerprints of persons apprehended as described in paragraph 1 of this Article, and resend them as soon as possible and no later than 48 hours after they have been successfully retaken.

Or. en

Amendment 38

Proposal for a regulation

Chapter 5 – title

Text proposed by the Commission

Amendment

PROCEDURE FOR COMPARISON OF DATA FOR APPLICANTS FOR INTERNATIONAL PROTECTION AND THIRD-COUNTRY NATIONALS APPREHENDED CROSSING THE BORDER IRREGULARLY OR ILLEGALLY STAYING IN THE TERRITORY OF A MEMBER STATE

PROCEDURE FOR COMPARISON OF DATA FOR APPLICANTS FOR INTERNATIONAL PROTECTION AND THIRD-COUNTRY NATIONALS AND STATELESS PERSONS APPREHENDED CROSSING THE BORDER IRREGULARLY OR ILLEGALLY STAYING IN THE TERRITORY OF A MEMBER STATE

Or. en

Amendment 39

Proposal for a regulation

Article 15 – paragraph 3

Text proposed by the Commission

Amendment

3. The Central System shall automatically transmit the hit or the negative result of the comparison to the Member State of origin following the procedures set out in Article 26(4) . Where there is a hit, it shall transmit for all data sets corresponding to the hit the data referred to in Article 12, 13(2) and 14(2) along with, where appropriate, the mark referred to in Article 19(1) and (4) . Where a negative hit result is received, the data referred to in Article 12, 13(2) and 14(2) shall not be transmitted.

3. The Central System shall automatically transmit the hit or the negative result of the comparison to the Member State of origin following the procedures set out in Article 26(4). Where there is a hit, it shall transmit for all data sets corresponding to the hit the data referred to in Article 12, 13(2) and 14(2) along with, where appropriate, the mark referred to in Article 19(1) and (4). Where a negative result is received, the data referred to in Article 12, 13(2) and 14(2) shall not be transmitted.

Or. en

Amendment 40

Proposal for a regulation

Article 16 – paragraph 1

Text proposed by the Commission

Amendment

(1) Where the condition of the fingertips does not allow for the taking of fingerprints of a quality ensuring appropriate comparison under Article 26 or where a person referred to in Article 10(1), 13(1) and 14(1) refuses to comply with the fingerprinting process, a Member State may carry out a comparison of facial image data as a last resort.

(1) Where the condition of the fingertips does not allow for the taking of fingerprints of a quality ensuring appropriate comparison under Article 26, a Member State shall carry out a comparison of facial image data.

Or. en

Amendment 41

Proposal for a regulation

Article 20 – paragraph 1

Text proposed by the Commission

Amendment

1. For the purposes laid down in Article 1(1)(c), the designated authorities referred to in Articles 6(1) and 8(2) may submit a reasoned electronic request as provided for in Article 21(1) together with the reference number used by them, to the verifying authority for the transmission for comparison of fingerprint and facial image data to the Central System via the National Access Point. Upon receipt of such a request, the verifying authority shall verify whether all the conditions for requesting a comparison referred to in Articles 21 or 22, as appropriate, are fulfilled.

1. For the purposes laid down in Article 1(1)(c), the designated authorities referred to in Articles 6(1) may submit a reasoned electronic request as provided for in Article 21(1) together with the reference number used by them, to the verifying authority for the transmission for comparison of biometric or alphanumeric data to the Central System via the National Access Point. Upon receipt of such a request, the verifying authority shall verify whether all the conditions for requesting a comparison referred to in Articles 21 or 22, as appropriate, are fulfilled.

Or. en

Amendment 42

Proposal for a regulation

Article 20 – paragraph 2

Text proposed by the Commission

Amendment

2. Where all the conditions for requesting a comparison referred to in Articles 21 or 22 are fulfilled, the verifying authority shall transmit the request for comparison to the National Access Point which will process it to the Central System in accordance with Articles 15 and 16 for the purpose of comparison with the fingerprint and facial image data transmitted to the Central System pursuant to Articles 10(1), 13 (1) and 14(1) .

2. Where all the conditions for requesting a comparison referred to in Articles 21 or 22 are fulfilled, the verifying authority shall transmit the request for comparison to the National Access Point which will process it to the Central System in accordance with Articles 15 and 16 for the purpose of comparison with the biometric or alphanumeric data transmitted to the Central System pursuant to Articles 10(1), 13 (1) and 14(1) .

Or. en

Justification

See justification of Amendment 9.

Amendment 43

Proposal for a regulation

Article 21 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. For the purposes laid down in Article 1(1)(c), designated authorities may submit a reasoned electronic request for the comparison of fingerprint data with the data stored in the Central System within the scope of their powers only if comparisons with the following databases did not lead to the establishment of the identity of the data subject:

1. For the purposes laid down in Article 1(1)(c), designated authorities may submit a reasoned electronic request for the comparison of biometric or alphanumeric data with the data stored in the Central System within the scope of their powers only if comparisons with the following databases did not lead to the establishment of the identity of the data subject:

Or. en

Justification

See justification of Amendment 9.

Amendment 44

Proposal for a regulation

Article 21 – paragraph 2

Text proposed by the Commission

Amendment

2. Requests for comparison with Eurodac data shall be limited to searching with fingerprint or facial image data.

2. Requests for comparison with Eurodac data shall be carried out with biometric or alphanumeric data.

Or. en

Justification

See justification of Amendment 9.

Amendment 45

Proposal for a regulation

Article 22 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. For the purposes laid down in Article 1(1)(c), Europol's designated authority may submit a reasoned electronic request for the comparison of fingerprint data with the data stored in the Central System within the limits of Europol's mandate and where necessary for the performance of Europol's tasks only if comparisons with fingerprint data stored in any information processing systems that are technically and legally accessible by Europol did not lead to the establishment of the identity of the data subject and where the following cumulative conditions are met:

1. For the purposes laid down in Article 1(1)(c), Europol's designated authority shall have the right to access and search directly for comparisons with the data stored in the Central System within the limits of its mandate and where the following conditions are met:

Or. en

Justification

Amendment linked to Article 1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement. However, the current ex-ante control by an independent verifying authority of every access by Europol´s operating unit to Eurodac makes it extremely difficult to implement due to legal, data protection and technical reasons. The deletion of this requirement is counterbalanced by a new paragraph 3b in Article 22 reinforcing the obligation to comply with data protection rules and with the control mechanisms provided for therein.

Amendment 46

Proposal for a regulation

Article 22 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the comparison is necessary in a specific case (i.e. systematic comparisons shall not be carried out); and

(b) the comparison is necessary in a specific case and is carried out only for the purpose of identifying whether the information in the Central System matches the information processed by Europol.

Or. en

Justification

Amendment linked to Article 1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement. However, the current ex-ante control by an independent verifying authority of every access by Europol´s operating unit to Eurodac makes it extremely difficult to implement due to legal, data protection and technical reasons. The deletion of this requirement is counterbalanced by a new paragraph 3b in Article 22 reinforcing the obligation to comply with data protection rules and with the control mechanisms provided for therein.

Amendment 47

Proposal for a regulation

Article 22 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c) there are reasonable grounds to consider that the comparison will substantially contribute to the prevention, detection or investigation of any of the criminal offences in question. Such reasonable grounds exist in particular where there is a substantiated suspicion that the suspect, perpetrator or victim of a terrorist offence or other serious criminal offence falls in a category covered by this Regulation.

deleted

Or. en

Justification

Amendment linked to Article1 (1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement.

Amendment 48

Proposal for a regulation

Article 22 – paragraph 2

Text proposed by the Commission

Amendment

2. Requests for comparison with Eurodac data shall be limited to comparisons of fingerprint and facial image data.

deleted

Or. en

Justification

Under the proposal, national law enforcement authorities and Europol cannot request comparison with specific alphanumeric data, which is highly detrimental to investigations, especially in the counter-terrorism field, trying to establish the places and dates of entry in the EU of suspects for which a used identity is known, but no fingerprint is available. In this context, and given that Article 1 (1)(c) of the proposal, extends its scope of Eurodac to law enforcement purposes, it would be essential for national law enforcement authorities and Europol to have access to all data contained in Eurodac in order to properly carry out their tasks.

Amendment 49

Proposal for a regulation

Article 22 – paragraph 3

Text proposed by the Commission

Amendment

3. Processing of information obtained by Europol from comparison with Eurodac data shall be subject to the authorisation of the Member State of origin. Such authorisation shall be obtained via the Europol national unit of that Member State.

3. Processing of information obtained by Europol from comparison with Eurodac data shall be subject to the authorisation of the Member State of origin.

Or. en

Justification

Article 1(1)(c) of the Commission proposal, extends its scope beyond the mere implementation of the Dublin Regulation to law enforcement purposes. Europol’s dependency on a MS’s technical infrastructure in order to access Eurodac data creates unnecessary risk and once used, would be cumbersome and slow. The MS’s system connecting Europol to Eurodac would need to meet Europol’s stringent data security requirements. At present, the connection to Eurodac via the Dutch National Access point could not be successfully established due to technical and data security issues encountered.

Amendment 50

Proposal for a regulation

Article 22 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. Europol may request further information from the Member State concerned in accordance with Regulation (EU) 2016/794.

Or. en

Justification

Amendment 51

Proposal for a regulation

Article 22 – paragraph 3 b (new)

Text proposed by the Commission

Amendment

3b. The processing of personal data as a result of the access referred to in paragraph 1 shall be carried out in compliance with the data protection safeguards provided for in Regulation (EU) 2016/794. Europol shall keep records of all searches and access to the Central System and shall make that documentation available, upon request, to the Data Protection Officer appointed pursuant to Regulation (EU) 2016/794 and to the European Data Protection Supervisor for the purpose of verifying the lawfulness of the data processing.

Or. en

Justification

Amendment linked to Article1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement purposes. Europol should have simplified and direct access to EURODAC data and avoid unnecessary procedures that would just slow their capability to undergo its tasks. Paragraph 3b stemming from Article 18(4) of the Europol Regulation, is inserted to reinforce data protection requirements and to counterbalance the removal of the requirement of a double layer control system (priori authorisation by verifying authority)

Amendment 52

Proposal for a regulation

Article 22 – paragraph 3 c (new)

Text proposed by the Commission

Amendment

3 c. The Executive Director of Europol shall duly authorise a limited number of Europol officials to have access to the Central System if it is necessary for the performance of their tasks.

Or. en

Justification

Amendment linked to Article1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement purposes. This wording is taken from Article 17(3) of the Europol Regulation and aims at limiting access to Eurodac data only to a restricted number of duly authorised Europol’s officials, in line with the need to know principle..

Amendment 53

Proposal for a regulation

Article 22 – paragraph 3 d (new)

Text proposed by the Commission

Amendment

3 d. Personal data obtained as a result of a search in the Central System shall not be transferred or made available to any third country, international organisation or private entity established in or outside the Union unless such a transfer is strictly necessary and proportionate in individual cases that falls within Europol's mandate. Any such transfer shall be carried out in accordance with Chapter V of Regulation (EU) 2016/794 and subject to the consent of the Member State of origin.

Or. en

Justification

Amendment linked to Article1(1)(c) of proposal (non-codified) which provides that Eurodac will serve not only the purpose of implementation of the Dublin Regulation, but also law enforcement purposes. This paragraph foresees the possibility for Europol to transmit data obtained from Eurodac to third Parties, under specific conditions and in accordance with the applicable rules on external relations of the Europol Regulation. In fact, one of Europol’s added values is to create synergies between law enforcement information originating within and outside the EU. Internal and external dimensions of the security of the Union are very much interlinked.

Amendment 54

Proposal for a regulation

Article 26 – paragraph 4

Text proposed by the Commission

Amendment

4. The result of the comparison of fingerprint data carried out pursuant to Article 15 shall be immediately checked in the receiving Member State by a fingerprint expert as defined in accordance with its national rules, specifically trained in the types of fingerprint comparisons provided for in this Regulation. For the purposes laid down in Article 1(1)(a) and (b) of this Regulation, final identification shall be made by the Member State of origin in cooperation with the other Member States concerned.

4. The result of the comparison of fingerprint data carried out pursuant to Article 15 shall be immediately checked, in the receiving Member State by a fingerprint expert as defined in accordance with its national rules, specifically trained in the types of fingerprint comparisons provided for in this Regulation. Where the Central System returns a hit based on both fingerprint and facial image data, Member States may check and verify the result of the comparison of facial image data if needed. For the purposes laid down in Article 1(1)(a) and (b) of this Regulation, final identification shall be made by the Member State of origin in cooperation with the other Member States concerned.

Or. en

Justification

Upon the entry into force of this Regulation, comparisons should be based on fingerprints and facial image data.

Amendment 55

Proposal for a regulation

Article 26 – paragraph 5 – subparagraph 1

Text proposed by the Commission

Amendment

The result of the comparison of facial image data carried out pursuant to Article 16 shall be immediately checked and verified in the receiving Member State. For the purposes laid down in Article 1(1)(a) and (b) of this Regulation, final identification shall be made by the Member State of origin in cooperation with the other Member States concerned.

The result of the comparison of facial image data carried out pursuant to Article 16 shall be immediately checked and verified in the receiving Member State, where necessary by a specially trained expert and in accordance with its national rules. For the purposes laid down in Article 1(1)(a) and (b) of this Regulation, final identification shall be made by the Member State of origin in cooperation with the other Member States concerned.

Or. en

Amendment 56

Proposal for a regulation

Article 30 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

Where a person covered by Article 10(1), Article 13(1) and Article 14(1) is a minor, Member States shall provide the information in an age-appropriate manner.

Where a person covered by Article 10(1), Article 13(1) and Article 14(1) is a minor, Member States shall ensure that that person understands the procedure by providing the information in an age-appropriate manner, both orally and in writing, using leaflets, infographics, demonstrations, or a combination of all three, which are specifically designed to explain the fingerprinting and facial image procedure to minors.

Or. en

Justification

The best interest of the child should be an essential part of this Regulation. This Amendment is linked to Article 2 (non-codified text).

Amendment 57

Proposal for a regulation

Article 38 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. By way of derogation from Article 37 of this Regulation, the personal data relating to persons referred to in Articles 10(1), 13(2), 14(1) obtained by a Member State following a hit for the purposes laid down in Article 1(1)(a) or (b) may be transferred or made available to a third-country in accordance with Article 46 of Regulation (EU) No. […/2016], if necessary in order to prove the identity of third-country nationals for the purpose of return, only where the following conditions are satisfied:

1. By way of derogation from Article 37 of this Regulation, the personal data relating to persons referred to in Articles 10(1), 13(2), 14(1) obtained by a Member State following a hit for the purposes laid down in Article 1(1)(a) or (b) may be transferred or made available to a third-country in accordance with Chapter V of Regulation (EU) 2016/679, if necessary in order to prove the identity of third-country nationals or stateless persons for the purpose of return, only where the following conditions are satisfied:

Or. en

Amendment 58

Proposal for a regulation

Article 40 a (new)

Text proposed by the Commission

Amendment

Article 40a

Operational Management of DubliNet and related tasks

1. Eu-LISA shall operate and manage a separate secure electronic transmission channel between the authorities of Member States known as the 'DubliNet' communication network established by Article 18 of Commission Regulation (EC) No 1560/20031a for the purposes set out in Articles 32, 33 and 46 of Regulation (EU) No ...[Dublin IV].

2. The operational management of DubliNet shall consist of all the tasks necessary to ensure its availability five days a week during normal business hours.

3. Eu-LISA shall be responsible for the following tasks relating to DubliNet:

(a) providing technical support to Member States by way of a helpdesk, five days a week during normal business hours, including in relation to problems concerning communication, email encryption and decryption, and problems arising from the signature of forms;

(b) providing IT security services;

(d) the technical evolution of DubliNet;

(e) contractual matters.

4. The Agency shall ensure, in cooperation with the Member States, that at all times the best available and most secure technology and techniques, subject to a cost-benefit analysis, are used for DubliNet.

_________________

1a Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L 222, 5.9.2003, p. 3).

Or. en

Justification

The initial proposal had included DubliNet and the operational responsibility of eu-LISA in the Article describing the Eurodac architecture, which was not really correct .This new chapter contains relevant text with additional descriptions clarifying what Operational responsibility means is now included as amendment to eu-LISA’s establishing Regulation.

Amendment 59

Proposal for a regulation

Chapter VIII a (new)

Text proposed by the Commission

Amendment

CHAPTER VIIIa

AMENDMENTS TO REGULATION (EU) NO 1077/2011

Article 40 b

Regulation 1077/2011 is amended as follows:

(1) In Article 1(2), the following subparagraph is added:

"The Agency shall also be responsible for the operational management of a separate secure electronic transmission channel between the authorities of Member States, known as the 'DubliNet' communication network, established by Article 18 of Commission Regulation (EC) No 1560/2003, for the exchange of information under Regulation (EU) No... *[Dublin IV].

_____________

* Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L 222, 5.9.2003, p. 3).”.

(2) The following Article is inserted:

"Article 5a

Tasks relating to DubliNet

1. In relation to DubliNet, the Agency shall perform:

(a) the tasks conferred on it by Article [...] of Regulation (EU) No ...[Eurodac];

(b) tasks relating to training with regard to the technical use of DubliNet.".

Or. en

Justification

See justification of Amendment 58.

Amendment 60

Proposal for a regulation

Article 45 – paragraph 2

Text proposed by the Commission

Amendment

2. By […] , Europol shall notify the Commission of its designated authority, of its verifying authority and of the National Access Point which it has designated, and shall notify without delay any amendment thereto.

2. By […] , Europol shall notify the Commission of its designated authority, and it shall notify any amendment thereto without delay.

Or. en

Justification

EXPLANATORY STATEMENT

The current proposal for a second recast of Eurodac is part of the first package of proposals reforming the Common European Asylum System (CEAS), put forward by the Commission in May 2016, in response to the migration and refugees crisis of 2015. The proposal supports the practical implementation of the reformed Dublin system and adapts and reinforces the Eurodac system in order to meet the current immigration challenges.

The ongoing migration and refugee crisis has revealed serious gaps in the existing CEAS, with national authorities in the Member States often experiencing difficulties in identifying illegally staying third-country nationals, who use deceptive means to avoid their identification and to frustrate the procedures for re-documentation in view of their return and readmission. The rapporteur therefore welcomes the extension of the scope of Eurodac, which would allow the Member States to transmit and compare data on illegally staying third-country nationals or stateless persons who do not claim asylum and who may move within the Union undetected. In this way, the Eurodac system will no longer serve only for the purpose of assisting in determining which Member State is responsible under the Dublin Regulation but will also become a system providing for wider immigration purposes, including removal and repatriation measures.

The Commission proposal also emphasizes that comparisons of data with those stored in the Central System may be used for law enforcement purposes for the prevention, detection or investigation of terrorist offences or other serious criminal offences. In this regard, the rapporteur underlines the importance of law enforcement access to Eurodac, and proposes a set of amendments aimed at facilitating Europol´s performance of its tasks. Europol is currently unable to connect due to technical difficulties and strict conditions provided in the Regulation in force. The proposed amendments, aimed at granting simplified and direct access of Europol to Eurodac, are counterbalanced by amendments to reinforce data protection requirements also proposed by the Rapporteur.

The Commission proposal allows for comparisons of fingerprint and facial image data together and facial images separately under defined conditions. This rule also applies for law enforcement purposes. Therefore, under the Commission proposal, national law enforcement authorities and Europol would not be able to request comparison with specific alphanumeric data, which would be highly detrimental to investigations, especially in the counter-terrorism field, and in particular when trying to establish the places and dates of entry into the EU of suspects for which a used identity is known, but no fingerprint is available. In this context, the rapporteur proposes that law enforcement authorities and Europol should are allowed to make comparisons based on alphanumeric data, in particular where they may possess evidence of the criminal suspect or victim´s personal details or identity documents.

Another important element in the Commission proposal is to lower the age at which children’s fingerprints are taken to six years old. The rapporteur welcomes this proposal as it would facilitate tracking of unaccompanied minors in cases where they are separated from their families or abscond from care institutions. It would also be of critical help in keeping track of vulnerable children and protecting them from exploitation or smuggling. In order to ensure the welfare and the best interest of minors, the minors themselves need to understand the procedure. Therefore, to facilitate the procedure, the rapporteur introduces an obligation to provide information in an age-appropriate manner, both orally and in writing, using leaflets, infographics, demonstrations or a combination of all three, which are specifically designed to explain the procedure to minors. With a view to increase the system’s potential to trace and reunite missed family members, and should additional alphanumeric data of applicants for international protection be included in the future version of Eurodac, the rapporteur proposes to also record family links and a particular indication if a minor is unaccompanied.

Finally, the rapporteur proposes improvements relating to the security electronic transmission channel between the Member States and the Commission known as DubliNet and its operational management by eu-LISA. This provision is moved in a separate article and the tasks of eu-LISa relating to the operational management of DubliNet are clarified. A corresponding amendment of Regulation (EU) No 1077/2011 on eu-LISA is also proposed to reflect this amendment.

ANNEX: LETTER FROM THE COMMITTEE ON LEGAL AFFAIRS

ANNEX: OPINION OF THE CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES OF THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION

CONSULTATIVE WORKING PARTY

OF THE LEGAL SERVICES

Brussels, 12 January 2017

OPINION

FOR THE ATTENTION OF THE EUROPEAN PARLIAMENT

THE COUNCIL

THE COMMISSION

Proposal for a regulation of the European Parliament and of the Council on the establishment of 'Eurodac'for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes (recast)

COM(2016)0272 of 4.5.2016 – 2016/0132(COD)

Having regard to the Inter-institutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts, and in particular to point 9 thereof, the Consultative Working Party consisting of the respective legal services of the European Parliament, the Council and the Commission met on 31 May and 7 July 2016 for the purpose of examining, among others, the aforementioned proposal submitted by the Commission.

At those meetings , an examination of the proposal for a Regulation of the European Parliament and of the Council recasting Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice resulted in the Consultative Working Party’s establishing, by common accord, as follows.

1. The following should have been marked with the grey-shaded type generally used for identifying substantive changes:

- in the first citation, the proposed adding of a reference to Article 79(2)(c) of the Treaty on the Functioning of the European Union;

- in recital 46, the adding of the words 'and migration';

- in Article 9(1)(b), the adding of the word 'subsequently';

- the entire text of Article 15;

- in Article 26(6), the proposed deletion of the final words 'pursuant to Article 34 of Regulation (EU) No 604/2013';

- in Article 37(2), the proposed replacement of the words 'serious risk' with 'real risk'.

2. In the title of Article 14, the word 'Comparison' should have been marked with 'double-strikethrough'.

In consequence, examination of the proposal has enabled the Consultative Working Party to conclude, without dissent, that the proposal does not comprise any substantive amendments other than those identified as such. The Working Party also concluded, as regards the codification of the unchanged provisions of the earlier act with those substantive amendments, that the proposal contains a straightforward codification of the existing legal text, without any change in its substance.

F. DREXLER H. LEGAL L. ROMERO REQUENA

Jurisconsult Jurisconsult Director General