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Council of the European Union adopts its negotiating mandate on the interoperable Big Brother database - making clear that it will not just cover third-country nationals
17.6.18
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On 14 June the Council of the European Union adopted its negotiating mandate on two separate Regulations - borders and visas, police and legal cooperation - on the creation of a centralised database run by euLISA: Proposal for a Regulation on establishing a framework for interoperability between EU information systems (police and judicial cooperation, asylum and migration) - Mandate for negotiations with the European Parliament (LIMITE doc no: 9670-18, 8 June 2018, pdf).

The Council hopes to complete the legislative process by the end of 2018 (the European Parliament elections are in May 2019 and the procedures will tend to grind to a halt by March):

"Considering the importance and the priority nature of this file, the Presidency has been working intensively in order to reach a compromise on both texts, with a view to starting negotiations with the European Parliament as soon as it is ready."

The changes to the Commission text proposed by the Council may appear to be "technical" but a close reading seems to indicate some highly significant shifts.

The centralised database will cover everyone "processed" in the SIS and by Europol

Recital 12 as amended says:

"The interoperability components should concern persons in respect of whom personal data may be processed in the EU information systems and by Europol, namely [third-country nationals - deleted] persons [inserted] whose personal data is are processed in the EU information systems and by Europol, and including [added] EU citizens whose personal data is are processed in the SIS and by Europol."

This critical change from targeting third country nationals to "persons" (which could cover anyone in the EU) is followed up in the mandate by 17 deletions of the term "third country nationals" and "person" inserted.

It would appear that the Council has in mind its commitment to extend the centralised database to cover all "existing and new databases". For example, ECRIS (European Criminal Records Information System), EU-PNR (Passenger Name Records) and the Prüm system which allows for the exchange of DNA data on individuals (and finger-prints and vehicle data) which is currently nationally-based. Their inclusion in the future would extend the scope of the main database to cover hundreds of millions of EU citizens.

See Statewatch Analysis: The “Point of no return” Interoperability morphs into the creation of a Big Brother centralised EU state database including all existing and future Justice and Home Affairs databases (pdf)

Scope changed from "law enforcement agencies" to "designation authorities"

A total of 39 references to "law enforcement" are deleted and the agencies responsible inserted:

"for the purposes of preventing, detecting or investigating terrorist offences or other serious criminal offences"

There are 10 references to "law enforcement agencies" - the latter are changed to "designated" authorities.

"Designated authorities" could include internal security agencies. The latest: Roadmap to enhance information exchange and information management including interoperability solutions in the Justice and Home Affairs area: - State of play of its implementation (third implementation report) (LIMITE doc no: 7931-18, pdf) includes in target 47:

"Ensure that both law enforcement authorities and security services can quickly enter alerts into the SIS"

Where necessary, change national practice to ensure that both law enforcement authorities and security services can insert alerts in the SIS directly without interference of judicial authorities. (...)

Member States were invited to facilitate as much as possible the creation of SIS alerts by their competent authorities and to reduce as much as possible any remaining barriers (see 6698/17). The action can be considered completed." [emphasis added]

Changes to Article 20 - police checks inside the EU

The overall scope includes:

" b) to contribute to preventing and combating irregular [deleted] illegal [inserted] immigration;

(c) to contribute to a high level of security within the area of freedom, security and justice of the Union including the maintenance of public security and public policy and safeguarding the security in the territories of the Member States;" [emphasis added]

"Article 20

"Access to the common identity repository for identification

1. Where a Member State police authority has been so empowered by national legislative measures as referred to in paragraph 2, it may, solely for the purpose of identifying a person, query the CIR with the biometric data of that person taken during an identity check.

1a. Where a police authority has been so empowered by national legislative measures as referred to in paragraph 2a, it may, for the purpose of identifying unknown persons who are not able to identify themselves or unidentified human remains, in the event of a natural disaster or an accident, query the CIR with the biometric data of those persons. (...)

2a. Member States wishing to avail themselves of the possibility provided for in paragraph 1a shall adopt national legislative measures laying down the procedures, conditions and criteria."

CIR (Common identity Repository): The Impact Assessment describes its significance as follows:

“The common identity repository (CIR) would be the shared component for storing biographical and biometric identity data of third-country nationals recorded in Eurodac, VIS, the future EES, the proposed ETIAS and the proposed ECRIS-TCN system.” [emphasis added]

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