EU
Member States reassert support for law enforcement access to proposed new Entry/Exit System
12.10.2013


Immediate access for law enforcement authorities to one of two proposed EU border control databases is favoured by "a large majority" of EU Member States' governments, according to minutes from a meeting of the Council of the EU's Strategic Committee on Immigration, Frontiers and Asylum (SCIFA).

This further confirms the determination of Member States to obtain access to the system, should it be developed, for their law enforcement authorities. Discussions on the Commission's proposal in May saw twenty delegations declaring themselves "in favour of using the EES for law enforcement purposes." [1]

In February the European Commission published the two legislative proposals that make up its "smart borders" package: one for a Registered Traveller Programme, which would allow the "pre-screening and vetting" of frequent travellers to the EU; the other for an EU Entry/Exit System which would "record the time and place of entry and exit of third country nationals travelling to the EU." [2]

The Commission's legislative proposal for the EES foresees the collection of a vast amount of information: names; nationality; gender; travel document numbers; visa information (date of expiry, length of authorised stay, etc.); date, time and location of entry into and exit from the EU; and ten fingerprints from anyone over the age of 12. [3]

It is the potential access to this data that has excited Member States' law enforcement authorities, but the proposal as it stands only permits consideration of whether those authorities should be permitted access two years after the system has come into operation.

If the "large majority of delegations" in the recent meeting of SCIFA have their way, a provision giving access to law enforcement authorities for the purposes of preventing, detecting and investigating terrorism and other serious crimes "should be provided for by introducing it in the proposal as an ancillary/secondary objective." [4]

Access to EES data as a "secondary objective" of the system would mean that "the information generated for the main purposes [of border management] may also be accessed for law enforcement purposes under specified conditions and in a limited manner".

This was chosen over the other option: to provide access for law enforcement authorities as a primary purpose of the system, which would have required two separate legal instruments and thus a new proposal from the Commission. The Lithuanian Presidency therefore suggested that "further exploration of option (a) [access as a secondary objective] consitutes the best way forward". [5]

The current situation

The Commission's proposal currently foresees five purposes for the system:

  • Enhancing checks at external border crossing points and combating irregular immigration;
  • Calculating and monitoring the duration of the authorised stay of third-country nationals admitted for a short stay;
  • Assisting in the identification of persons who may not, or may not longer, fulfil the conditions for entry to or stay on the territory of the Member States;
  • Enabling national authorities of the Member States to identify overstayers and take appropriate measures;
  • To gather statistics on the entries and exits of third country nationals for the purposes of analysis.

There has been some discussion of privacy and data protection amongst delegates in the Working Party on Frontiers, but only to the extent of:

"[Stressing] the need to ensuring the right balance between respect for private life and the protection of personal data on the one hand and the prevention, detection and investigation of terrorism and serious criminal offences on the other hand."

The issue of providing law enforcement access to the EES was taken up earlier this year by the European Data Protection Supervisor (EDPS), in an opinion published in July. [6]

He noted that:

"The proposal provides that the first evaluation of the EES shall specifically deal with the issue of access for law enforcement purposes including conditions of access, retention period and access for authorities of third countries.

"Since a similar provision can be found in the VIS [Visa Information System] Regulation, the EDPS would also recommend the EU legislator to wait for evidence on how the VIS provision is applied in practice."

He was also critical of the provisions in the proposal that foresee the collection of 10 fingerprints "instead of two or four which would in any case be sufficient for verification purposes". The collection of 10 fingerprints from the outset of the system "would only be needed if this pursues a different purpose," he argued, such as "the identification of traces in a law enforcement context":

"The EDPS considers that no such wide collection of biometric data should be foreseen from the beginning, whilst the evaluation of a possible access by law enforcement authorities is not to be done before two years after the entry into force of the system."

The opinion goes beyond particular provisions of the proposal and questions its necessity as a whole:

"[E]ven if the objective pursued could be considered legitimate and necessary in a democratic society, the legislative measures put in place do not fully meet the requirements of Article 8(2) ECHR [European Convention on Human Rights] in relation to necessity and proportionality. The EDPS therefore considers that, without further assessment by the legislators:

"(a) An EES should not be created with the aim of identifying overstayers, without the establishment of a clear European policy on management of overstayers;

"(b) Facilitating calculation of overstay and creating statistics should not lead to the establishment of a large scale database with person data;

"(c) An EES should not be created before a thorough evaluation of existing systems can be performed, in order to ensure consistency and avoid repeating difficulties already encountered in the past."

Negotiations with the European Parliament on the proposal are yet to begin although the rapporteur for the Civil Liberties (LIBE) Committee, German MEP Renate Sommer of the European People's Party, has declared herself in favour of the system as a whole and also considers that "there could be an added value if the EES would provide for law-enforcement access from the beginning." [7]

Recent discussions on the proposals in the LIBE Committee saw disagreement amongst MEPs on the issue of law enforcement access, [8] although a vote on the Commission's proposal is yet to take place. [9]

However, given Parliament's backing earlier this year to give law enforcement authorities access to Eurodac, the EU-wide database of asylum-seekers' and irregular migrants' fingerprints, [10] the outlook is perhaps not too promising for those who would rather limit police and security forces' access to the growing amount of personal data being collected in EU databases.


Sources
[1] EU: Member States want access to the proposed Entry/Exit System for law enforcement and counter-terrorism agencies, Statewatch News Online, May 2013
[2] European Commission, 'Smart borders': enhancing mobility and security', 28 February 2013
[3] European Commission, Proposal for a Regulation of the European Parliament and of the council establishing an Entry/Exit System (EES) to register entry and exit data of third country nationals crossing the external borders of the Member States of the European Union, COM(2013) 95 final
[4] Strategic Committee on Immigration, Frontiers and Asylum, Outcome of proceedings, 14066/13, 1 October 2013
[5] Strategic Committee on Immigration, Frontiers and Asylum,
Outcome of proceedings, 13617/13, 13 September 2013
[6] European Data Protection Supervisor, Opinion on the Proposals for a Regulation establishing an Entry/Exit System (EES) and a Regulation establishing a Registered Traveller Programme (RTP), 18 July 2013
[7] Renate Sommer, Working document on the Entry/Exit System to register entry and exit data of third country nationals crossing the EU Member States' external borders, 25 June 2013
[8] European Parliament, meeting of the Committee on Civil Liberites, Justice and Home Affairs on 17 September 2013
[9] European Parliament, Entry/Exit System (EES) to register entry and exit data of third country nationals
[10] European Parliament, MEPs back deal with Council on police access to saylum seekers' fingerprints, 24 April 2013

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