Smart borders: "no sufficient evidence" to justify law enforcement access to proposed Entry/Exit System travel database

The European Commission has told EU Member States "no sufficient evidence has been gathered so far" that would justify providing access for law enforcement authorities to the proposed Entry/Exit System, which would see fingerprints and other data collected from all non-EU nationals entering EU territory.

The Entry/Exit System (EES) is one part of the 'smart borders package', which also contains proposals for a Registered Traveller Programme that would allow pre-vetted travellers swifter access through border control points.

The Commission's point is contained in minutes obtained by Statewatch of a meeting in mid-July this year of the Council's Working Party on Frontiers .

The discussion at the meeting centred on a document prepared by the current Italian Presidency of the Council. This was based on the results of a questionnaire issued by the Greek Presidency to Member States and "was drawn up with a view to making progress in the questions around the access for law enforcment purposes."

The Italian document and the Greek questionnaire remain secret, although Statewatch has obtained the previously-censored summary of responses to a questionnaire drawn up by the Lithuanian Presidency, which ran from July to December 2013. The questionnaire focused on law enforcement authorities' access to national entry/exit systems.

At the mid-July meeting of the Working Part on Frontiers, the Italian Presidency presented Member States' responses to its questionnaire "with emphasis on the way forward towards the negotiations with the European Parliament on this highly important issue" - that is, law enforcement access to the proposed Entry/Exit System.

In response, the Council's Legal Service "drew the particular attention of the delegation to the implications of the recent caselaw (the tests of necessity and proportionality - the 'need to know' principle)".

This is presumably a reference to the Court of Justice's April judgement on the Data Retention Directive. Member States have been attempting to ensure that their demands for law enforcement access to the Entry/Exit System are compatible with the ruling, which laid out a number of requirements with regard to retention of and access to data.

Following on from the Council's Legal Service:

"Cion [the Commission] reiterated its position that no sufficient evidence has been gathered so far, which would justify the access to the LEA [law enforcement authorities] in the light of the two above tests. In this vein, Cion asked delegations to report on possible experiences with regard to LEA for VIS [the Visa Information System], which would be useful to assess the relevant requests in the context of the EES."

Member States are also arguing amongst themselves on how to approach the Commission's pilot project for the smart borders proposals, in particular over what to include in the project and potential costs.


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