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1 September 2000</Date>

PROCEDURAL PAGE 4

LEGISLATIVE PROPOSAL 6

DRAFT LEGISLATIVE RESOLUTION 15

EXPLANATORY STATEMENT 16

At the sitting of 18 November 1999, {17-01-2000}Parliament adopted its position on the proposal for a Council Regulation amending Regulation (EC) concerning the establishment of 'Eurodac' for the comparison of the fingerprints of applicants for asylum and certain other aliens (COM(1999) 260 — C5-0082/1999 - 1999/0116 (CNS)).

By letter of 25 May 2000 the Council decided to reconsult Parliament, pursuant to Article 63(1) of the EC Treaty, on the proposal for a Council Regulation (EC) concerning the establishment of 'Eurodac' for the comparison of fingerprints for the effective application of the Dublin Convention (8417/2000).{21-01-2000}

At the sitting of 13 June 2000 the President of Parliament announced that she had referred the Council text to the {CONT}Committee on Citizens' Freedoms and Rights, Justice and Home Affairs as the committee responsible and to the Committee on Legal Affairs and the Internal Market for its opinion (C5-0256/2000).

At its meeting of 21 June 2000, the Committee on {27-01-2000}Citizens' Freedoms and Rights, Justice and Home Affairs confirmed the appointment of Hubert Pirker as rapporteur.

It considered the Council draft and the draft report at its meetings of 21 June, 12 July and 29 August 2000.

At the last meeting it adopted the draft legislative resolution by 20 votes to 16 with 3 abstentions.

The following were present for the vote: Graham R. Watson, chairman; Robert J.E. Evans, Enrico Ferri and Bernd Posselt, vice-chairmen; Hubert Pirker, rapporteur; Alima Boumdiene-Thiery, Marco Cappato, Michael Cashman, Charlotte Cederschiöld, Carmen Cerdeira Morterero (for Olivier Duhamel), Ozan Ceyhun, Thierry Cornillet, Raffaele Costa (for Rocco Buttiglione, pursuant to Rule 153(2)), Gérard M.J. Deprez, Giuseppe Di Lello Finuoli, Glyn Ford (for Elena Ornella Paciotti), Evelyne Gebhardt (for Martin Schulz), Vitalino Gemelli (for Marcello Dell' Utri, pursuant to Rule 153(2)), Jorge Salvador Hernández Mollar, Anna Karamanou, Margot Keßler, Timothy Kirkhope, Ewa Klamt, Alain Krivine (for Pernille Frahm), Baroness Sarah Ludford, Luis Marinho (for Gianni Vattimo), Juan Andrés Naranjo Escobar (for Daniel J. Hannan), Hartmut Nassauer, William Francis Newton Dunn (for Mary Elizabeth Banotti), Martine Roure (for Sérgio Sousa Pinto), Gerhard Schmid, Ingo Schmitt (for Carlos Coelho), Patsy Sörensen, Joke Swiebel, Fodé Sylla, Anna Terrón I Cusí, Maurizio Turco (for Frank Vanhecke), Christian von Boetticher and Jan-Kees Wiebenga.

{AFET}The Committee on Legal Affairs and the Internal Market decided on 21 June 2000 not to deliver an opinion.

The report was tabled on 1 September 2000.

The deadline for tabling amendments will be indicated in the draft agenda for the relevant part-session.

<LANG:EN><Amend>(Amendment 1<NumAm></NumAm>)

Applies to entire text

</Amend></LANG:EN><LANG:EN><Amend>(Amendment 2<NumAm></NumAm>)

Recital 6

</Amend></LANG:EN><LANG:EN><Amend>(Amendment 3</NumAm>)

Recital 9

<Amend>(Amendment 4<NumAm>ENMIENDA@MODIFNO@</NumAm>)

<TitreAm>Recital 13</TitreAm>

<Amend>(Amendment 5<NumAm>ENMIENDA@MODIFNO@</NumAm>)

<TitreAm>Recital 14</TitreAm>

<Amend>(Amendment 6)

<TitreAm>Article 3 (4)

</Amend></LANG:EN><LANG:EN><Amend>(Amendment 7<NumAm></NumAm>)

Article 4(1)

<Amend>(Amendment 8<NumAm>ENMIENDA@MODIFNO@</NumAm>)

<TitreAm>Article 4(7)</TitreAm>

</Amend></LANG:EN><LANG:EN><Amend>(Amendment 9</NumAm>)

Article 7

</Amend></LANG:EN><LANG:EN><Amend>(Amendment <NumAm>10</NumAm>)

Article 8(1)

</Amend></LANG:EN><LANG:EN><Amend>(Amendment <NumAm>11</NumAm>)

Article 10(2)(ca) (new)

</Amend></LANG:EN><LANG:EN><Amend>(Amendment <NumAm>12</NumAm>)

Article 11(1), first subparagraph

</Amend></LANG:EN><LANG:EN><Amend>(Amendment <NumAm>13</NumAm>)

Article 12(1)

<Amend>(Amendment 14<NumAm>ENMIENDA@MODIFNO@</NumAm>)

<TitreAm>Article 12(5)</TitreAm>

<Amend>(Amendment 15<NumAm>ENMIENDA@MODIFNO@</NumAm>)

<TitreAm>Article 22(1)</TitreAm>

<Amend>(Amendment 16<NumAm>ENMIENDA@MODIFNO@</NumAm>)

<TitreAm>Article 22(2)</TitreAm>

<Amend>(Amendment 17<NumAm>ENMIENDA@MODIFNO@</NumAm>)

<TitreAm>Article 23</TitreAm>

• having regard to the Council draft Regulation (8417/2000),

• having regard to the proposal from the Commission to the Council (COM(1999)260)

• having regard to its position of 18 November 1999,

• having been reconsulted by the Council pursuant to Article 63(1) of the EC Treaty (C5-0256/2000),

• having regard to Rule 67 of its Rules of Procedure,

• having regard to the report of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (A5-0219/2000),

1. Approves the amended Council draft Regulation;
2. Calls on the Council to amend its draft accordingly;
3. Calls on the Council to inform it if it intends to depart from the text approved by Parliament;
4. Asks to be consulted again should the Council intend to amend the draft;
5. Instructs its President to forward this opinion to the Council and Commission.

By letter of 25 May 2000 the Council reconsulted Parliament on Articles 22 and 23 of the proposal for a Council Regulation (EC) concerning the establishment of ‘Eurodac’ for the comparison of fingerprints of applicants for asylum and certain other aliens for the effective application of the Dublin Convention.

This is the fourth time Parliament has considered this matter. On 6 October 1997 it received the proposal for a Convention concerning the establishment of Eurodac for the comparison of fingerprints of applicants for asylum, followed on 27 November 1998 by a proposal for a Protocol to the Convention extending the scope of Eurodac to certain illegal immigrants. Neither the Convention nor the Protocol was signed by the Member States. At its meetings of 3 and 4 December 1998 and 12 March 1999 the Justice and Home Affairs Council decided to shelve both proposals and called on the Commission to submit a proposal for a Community legal instrument after the entry into force of the Treaty of Amsterdam under which the legal basis would be changed as the matter now came under another ‘pillar’. The Commission complied with this request and submitted a proposal for a Regulation covering both the Convention and the Protocol. The Council consulted Parliament by letter of 29 July 1999 and Parliament delivered its opinion on 18 November 1999. The provisions governing the implementing powers have subsequently been changed to such an extent as to constitute a substantial amendment, which required the present reconsultation of Parliament on Articles 22 and 23.

For the purpose and substance of the Regulation as a whole please refer to the brief summary contained in report A5-0059/1999 (point 3 ‘Brief summary of the regulation’). For an assessment of the Regulation see point 4 of the same report. In considering the regulatory substance of the regulation the rapporteur will therefore confine himself to the relationship between Eurodac and the Dublin Convention. As the rapporteur has repeatedly pointed out in the numerous debates on the subject in the committee, Eurodac’s sole purpose is the effective application of the Dublin Convention. Fortunately this is now abundantly clear from the new title of the regulation which itself was the result of a Parliament amendment.

After the Treaty of Amsterdam the Council is required by Article 63(1)(a) of the EC Treaty to adopt ‘criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States’ within a period of five years. This implies a commitment on the part of the Council to revise the Dublin Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Union.

Unfortunately the Commission has tackled the review of the Dublin Convention and Eurodac separately, all the more so as not only would a joint revision in a single document have been desirable for the sake of legal clarity, but would also have illustrated the purpose of and need for Eurodac from the outset, which would have made it more acceptable. The Commission did not take this course. There is now political agreement between the Member States on Eurodac; the revision of the Dublin Convention is only at a preliminary stage (Parliament has now received a Commission working paper on the subject). As joint revision is now ruled out on grounds of efficiency, the Institutions now need to make Eurodac operational at the earliest opportunity so that the Dublin Convention may finally be put into practice. However, the rapporteur would ask the Commission in future wherever possible to seek overall solutions regarding immigration and asylum, thus avoiding piecemeal measures.

Parliament has been explicitly reconsulted on Articles 22 and 23. The original Commission proposal on which Parliament was first consulted provided for the application of the regulatory committee procedure pursuant to Council Decision 87/373/EEC of 13 July 1987 laying down the procedures for the exercise of implementing powers conferred on the Commission to all the implementing powers to be exercised here. This article needed to be adjusted as that decision had now been superseded by Council Decision 1999/468/EC.

The new text does not however confine itself to this adjustment, but undertakes a far-reaching change which made reconsultation necessary. The power to adopt the main implementing provisions is no longer to be conferred on the Commission but retained by the Council; they are the implementing provisions regarding the collection, transmission and comparison of fingerprints (Article 4(1)-(6) of the Eurodac regulation) and those for the blocking of the data concerning applicants for asylum who are subsequently recognised as refugees and for drawing up the statistics on applicants for asylum already recognised as refugees in another Member State (Article 12(1) and (2) of the Eurodac regulation).

There are several objections to this change. Article 202 of the EC Treaty establishes the principle that the Council shall confer on the Commission, in the acts which the Council adopts, powers for the implementation of the rules which the Council lays down. Only in ‘specific cases’ may the Council reserve the right to exercise implementing powers itself. According to the case law of the Court of Justice there have to be adequate grounds for involving that exception. The Council deploys the following argument, in Recital 13: the Council should reserve for itself the exercise of implementing powers as the Member States alone are responsible for identifying and classifying the results of comparisons and for blocking data concerning refugees and this responsibility concerns the particularly sensitive area of the processing of personal data and thus might affect the exercise of individual freedoms. This does not hold water. There is no obvious reason why the Commission should not be equally capable of drawing up adequate safeguards for the processing of undeniably sensitive data. On the contrary, it might be supposed that the Commission, which may not take account of specific national interests, might tackle the problem in a more unprejudiced and impartial way. Nor should it be forgotten that the procedure originally laid down did in any case provide for the Commission to be aided by a regulatory committee, which implies substantial influence by the Member States. There is therefore no obvious reason for departing from the rule of conferring implementing powers on the Commission.

Another consideration is that Parliament would see its rights whittled away if implementing provisions in certain areas are taken out of the commitology process. Pursuant to the new Council Decision on commitology (999/468/EC), supplemented by the Interinstitutional Agreement between the Commission and Parliament, under the committee procedure the Commission is required to keep Parliament regularly informed of committee proceedings and whenever the Commission transmits to the Council measures or proposals for measures to be taken (Article 7 of the commitology decision). Under the regulatory committee procedure Parliament’s position is also strengthened by the fact that it is entitled to receive draft implementing measures submitted to the committees pursuant to a basic instrument adopted under Article 251 of the Treaty, and, if the implementing powers provided for in the basic instrument are exceeded, to require the Commission to re-examine the draft measures (Article 8 of the commitology decision). Although the latter may not affect Eurodac, as codecision does not at present apply to asylum law, this may change after expiry of the five-year period from the entry into force of the Treaty of Amsterdam, and should therefore be borne in mind in the debate on the principle of transferring implementing powers. In the present case, however, the right of Parliament to receive information under the committee procedure is certainly relevant. If the Council keeps the implementing powers in the most sensitive areas to itself, as provided for in the current proposal, Parliament will lose its right to information and then be reliant on the Council’s goodwill. The Council’s interests would be safeguarded by the application of the regulatory procedure under which the Member States have the greatest say in the decision-making process.

The rapporteur cannot therefore support the new wording of Articles 22 and 23 and favours an arrangement under which the implementing powers are unreservedly conferred on the Commission, aided by a regulatory committee as provided for in the original proposal.