Sittings · Document

DRAFT REPORT (COM(2021)0096 – C90088/2021 – 2021/0046(COD)) 2021-11-16

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

Committee on Civil Liberties, Justice and Home Affairs · Rapporteur: Birgit Sippel

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DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

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

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

(Ordinary legislative procedure: first reading)

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

– 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),

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

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

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

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

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

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

Amendment 1

Proposal for a regulation

Title

Text proposed by the Commission

Amendment

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

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

Or. en

Amendment 2

Proposal for a regulation

Recital 2

Text proposed by the Commission

Amendment

(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.

deleted

__________________

17 Op. cit. 15.

18 Op. cit. 15.

Or. en

Amendment 3

Proposal for a regulation

Recital 3

Text proposed by the Commission

Amendment

(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.

deleted

__________________

19 Op. cit. 15.

Or. en

Amendment 4

Proposal for a regulation

Recital 4

Text proposed by the Commission

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.

deleted

__________________

20 Op. cit. 15.

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.

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.

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).

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.

Or. en

Amendment 5

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(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.

deleted

__________________

25 Op. cit. 15.

Or. en

Amendment 6

Proposal for a regulation

Article 1

Regulation (EU) 2019/816

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

Text proposed by the Commission

Amendment

Article 1

deleted

Amendments to Regulation (EU) 2019/816

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

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

‘(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]*.’

_________

* 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 …)

2. Article 2 is replaced by the following:

“Article 2

Scope

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.

This Regulation also:

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

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

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

(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;

4. Article 5 is amended as follows:

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

‘(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).’;

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

‘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;

(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

___________

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.