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EU: Member States want access to the proposed Entry/Exit System for law enforcement and counter-terrorism agencies

30 May 2013

30.05.13 - Member States are pushing for one of the EU’s proposed border control and migration management systems to be adapted for law enforcement and counter-terrorism purposes as well. If they are successful in their efforts, police and security agencies across the EU could gain access to a wealth of new personal and biometric data on third-country nationals.

At the end of the February, as part of its “smart borders” package, the European Commission published a proposal for an Entry/Exit System (EES) that would allow Member States’ border agencies to take fingerprints and other data from third-country nationals entering the EU in order to “calculate the authorised stay” of those entering the EU with short-term visas; to “assist in the identification of any person who may not, or may no longer, fulfil the conditions for entry to, or stay on the territory of the Member States”; and to “to support the analysis of the entries and exists of third-country nationals.” [1]

On 14 May, Member States’ delegations began discussing the Commission’s proposal in the Council’s Working Party on Frontiers, with a vast number suggesting that access to the data contained in the EES be permitted for a far wider number of state agencies. A significant number are also in favour of widening the scope of the system so that it covers third-country nationals in possession of residence permits and long-term visas, as well as those who have obtained short-term visas.

Twenty delegations taking part in the discussion on 14 May were “in favour of using the EES for law enforcement purposes” [2] and “several delegations shared the view that the EES should also serve the purpose of combating serious crime, including terrorism.”

Responding to this, the Commission “expressed doubts so as to the proportionality test between on one hand all the personal data to be collected and stored in the EES” – which includes amongst other things names, date of birth, place and country of birth, nationality, visa information and fingerprints – “and on the other hand the usefulness of allowing the use of the EES for combating crime.”

In the Commission’s opinion, “it was very difficult to quantify the rate of success for EU [Member States] in combating crime because of the use of the EES…. [the Commission] believed it would be very useful that MS provide estimates for crime prosecution purposes and to take into account the experience gained with the VIS [Visa Information System].”

A Commission impact assessment from 2008 noted that its preferred option for the “next steps in border management in the European Union”, which included an entry/exit system and a Registered Traveller Programme (now also part of the “smart borders” package), did not have significant potential “with respect to reducing terrorism and serious crime”. [3]

Nine Member States – Austria, Cyprus, France, Italy, Latvia, Netherlands, Romania, Slovenia and Spain – are in favour of amending the Commission’s proposal to cover third-country nationals in possession of residence permits and long-stay visas – that is, “all third-country nationals in the Schengen area,” excluding irregular migrants.

The Spanish delegation justified the proposal to extend the EES to those in possession of residence permits by saying that it “would allow Member States to check efficiently the periods of stay outside the host Member State.” France and Austria “suggested that each Member State carries out an impact assessment of the cost of excluding holders of residence permits.”

Some Member States were also “in favour of including a facial image” alongside fingerprints, although the Commission responded that “as biometrics would be enrolled at the external border, if a picture of each third-country national is taken, that would entail longer waiting periods at the border.”

It may be that an EES would entail longer waiting periods at the border with or without border agencies being given the authority to take photographs as well as fingerprints – the recent study Borderline suggests that if all third-country nationals were obliged to use the system, it “could result in the fingerprinting of an additional 57 million ‘whitelist’ TCNs [third-country nationals]… it would add the equivalent 27 years of queuing time per year at the EU borders.” [4]

There was also discussion and disagreement amongst Member States on other aspects of the Commission’s proposal – for example, over specific definitions and further exemptions from recording in the EES for firemen, police officers, and other officials. However, it is discussion over the system’s scope and who is allowed access that are likely to be most controversial.

The Working Party on Frontiers’ meeting covered only the first five articles of the 47-article proposal, and the European Parliament’s civil liberties committee has yet to discuss it and make its own proposals for amendments – there is a long way to go before anything is agreed. The Working Party on Frontiers continued its discussion at its meeting on 28 May, the outcome of which is currently unknown. [5]

Sources
[1] European Commission proposal for an Entry/Exit System (COM 2013 95, 28.2.13); see EU: European Commission: Smart borders proposals published
[2] Czech Republic, France, Spain, Greece, Denmark, Poland, Austria, Portugal, Bulgaria, Cyprus, Latvia, Slovakia, Netherlands, Finland, Italy, Hungary, Lithuania, Estonia, Switzerland and Norway.
[3] Commission Impact Assessment, 13.2.2008
[4] Borderline: The EU 's New Border Surveillance Initiatives, p.54-55
[5] Working Party on Frontiers Notice of Meeting and Provisional Agenda, 22.5.13