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EU: European Parliament's Civil Liberties Committee adopts proposal giving law enforcement authorities and Europol access to Eurodac (1)

19 December 2012

19.12.2012 - On 17 December 2012, the European Parliament's Civil Liberties (LIBE) Committee adopted a highly controversial Commission proposal that gives law enforcement authorities and Europol access to Eurodac, the Europe-wide database containing the fingerprints of asylum-seekers and intercepted irregular migrants. [1]

Access to Eurodac will be granted during prevention, detection or investigations of serious crimes or terrorist offences (as defined in Framework Decisions 2002/475/JHA on combating terrorism and 2002/584/JHA on the European arrest warrant) if checks in national fingerprint databases and the Prüm system (that networks EU Member State fingerprint databases) return negative results.

The rejection of the text by the LIBE committee would have resulted in its removal from the Common European Asylum package, which is supposed to be completed by the end of 2012. So far, only one of five pieces of legislation - the revised Qualification Directive - has been agreed, and it has been suggested that negotiations on the four other texts have been delayed in order to put pressure on opponents of the Eurodac proposal.

Steve Peers, Professor of Law at Essex University, commented recently that:

"It must be concluded that the Council (in the form of the Presidency and/or the General Secretariat) is either (a) simply incompetent, or (b) deliberately delaying the formal adoption of these measures, in order to place political pressure on the EP as regards the other proposals particularly as regards law enforcement authorities access to Eurodac, the EU database of asylum-seekers fingerprints." [2]

Despite serious concerns that this decision may stigmatise asylum-seekers and that the necessity and proportionality of access to Eurodac for law enforcement authorities has not been demonstrated, the European People's Party (EPP) supported the adoption of the amended proposal submitted by the rapporteur on the issue, EPP MEP Monica Macovei.

The EPP were followed by the Liberal Democrats (ALDE), seemingly in total contradiction of the principle that "fundamental rights are non-negotiable and cannot under any circumstances be circumscribed." [3]

The proposal, which was first submitted by the Commission in 2007 then withdrawn and put again on the table in May 2012, has been subjected to stinging criticism from experts in the field of asylum and civil liberties.

In September 2012, the European Data Protection Supervisor warned that:

"To intrude upon the privacy of individuals and risk stigmatising them requires strong justification and the Commission has simply not provided sufficient reason why asylum seekers should be singled out for such treatment." [4]

A month later, the Meijers Committee, made up of experts in immigration, asylum and criminal law stressed that the proposal:

"Violates fundamental rights of the asylum seekers, including the right to privacy and data protection, the right to asylum and protection against torture and inhuman treatment, and will lead to stigmatisation of this particular group." [5]

The Committee highlighted that the European Court of Human Rights has recognised that the use of fingerprints of asylum-seekers for law enforcement and counter-terrorism purposes entails a significant risk of stigmatisation.

In November 2012, the United Nations High Commissioner on Refugees joined the growing chorus of criticism and expressed grave concerns at a proposal which "may result in the stigmatisation of asylum-seekers as a group by associating them with criminal activity." The Commissioner recommended an evaluation on the potential for the stigmatisation of asylum-seekers.

So far, the Commission's proposal only provides for an ex-post evaluation, although it will be subject to further amendment by the European Parliament now that it has been approved by the LIBE Committee.

The risk is all the greater that the proposal - which makes no reference to the 1951 Convention on the rights of refugees - does not restrict searches of fingerprint data to persons who are suspects, increasing the risk of implicating innocent persons, said the UNHCR.

As a result, the UNHCR fears that:

"People registered in Eurodac with no criminal record would face greater likelihood of being subject to criminal investigation than other members of the community whose fingerprints are not collected or stored on a systematic basis. "

The changing nature of Eurodac constitutes what is often described as "function creep", namely a gradual widening of the use of a system or database beyond the purpose for which it was originally intended, according to the EDPS, who in his criticism of the proposal warned against "the erosion of fundamental rights."

The adoption of this proposal by the LIBE committee will mark the start of trilogue negotiations between the European Parliament, the Council of the EU and the Commission.

The Council, which so far has blocked the formal adoption of the Reception Directive and the Procedure Directive, is now expected to be more cooperative in the completion of negotiations of the Common European Asylum System.

Sources
[1] LIBE Committee, MEPs call for strict rules on use of asylum seekers' fingerprint database, 18 December 2012
[2] Statewatch Analysis: The Common European Asylum System: State-of-play update, Steve Peers, 5 December 2012
[3] ALDE website, Civil Liberties page
[4] EDPS, EURODAC: erosion of fundamental rights creeps along, 5 September 2012
[5] Meijers Committee, Note Meijers Committee on the EURODAC proposal (COM(2012) 254), CM 1216, 10 October 2012
[6] UNHCR, An efficient and protective Eurodac, November 2012