EUROPEAN COMMISSION

Strasbourg, 19.1.2016

COM(2016) 7 final

2016/0002(COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA

{SWD(2016) 4 final}
{SWD(2016) 5 final}

EXPLANATORY MEMORANDUM

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

Efficient cooperation between Member States and exchange of information extracted from criminal records of convicted persons is a necessary cornerstone of a properly functioning common area of justice and security.

The European Council and the Justice and Home Affairs Council of Ministers have stated on several occasions the importance of improving the existing European Criminal Records Information System (ECRIS). The Riga Statement of 29 January 2015 issued by the Justice and Home Affairs Ministers stressed that exchanging information on criminal convictions is important in any strategy to combat crime and counter terrorism 1 . On 20 November 2015, the Justice and Home Affairs Council of Ministers concluded that it would contribute to the criminal justice response to radicalisation leading to terrorism and violent extremism if Member States used ECRIS to its full potential and if the Commission submitted a proposal for the extension of ECRIS to cover third country nationals 2 . In its Conclusions on Counter-Terrorism of the same day, the Council of Ministers committed the Member States to using ECRIS to its full potential and welcomed the Commission's intention to submit by January 2016 an ambitious proposal to extend ECRIS to cover third country nationals 3 . The European Council of 17 and 18 December 2015 reiterated that the recent terrorist attacks demonstrated in particular the urgent need to share more information on terrorist activity, notably as regards the extension of European Criminal Records Information System (ECRIS) to third country nationals 4 .

Improving ECRIS is also part of the European Agenda on Security 5 .The Commission emphasised the added value of EU measures for exchanging information, operational cooperation and other support and undertook to accelerate the work already under way to improve ECRIS for non-EU nationals and ensure it is implemented effectively.

ECRIS is an electronic system for exchanging information on previous convictions handed down against a specific person by criminal courts in the EU for the purposes of criminal proceedings against a person and, if so permitted by national law, for other purposes. The system is based on Council Framework Decision 2009/315/JHA and Council Decision 2009/316/JHA 6 .

Standardised electronic formats 8 allow for efficient and immediately understandable communication in all EU languages and within short deadlines 9 . Designated central authorities in every Member State are the contact points in the ECRIS network, dealing with all tasks such as notifying, storing, requesting and providing criminal record information.

As TCN have no Member State of nationality, in order to obtain a complete overview of the criminal records history of a particular individual requests must be sent to all the convicting Member State(s). Generally, a requesting Member State does not know in which Member State(s) a particular TCN has previously been convicted.

If one Member State would want to have this information, it would have to send requests to all Member States (‘blanket requests’). This creates an administrative burden in all Member States, including in (the majority of) the countries not holding the requested information. The administrative burden of ‘blanket requests’ would amount to an estimated EUR 78 million per year if Member States were to request information each time a TCN faced conviction. The costs of replying to ‘blanket requests’ are not compensated by an equivalent benefit and are, in fact, lost because the majority of the replies will not return results. This is especially detrimental to smaller Member States that are required to respond to all requests without being necessarily well equipped to do so. Moreover, a flood of unnecessary requests undermines confidence in the reliability and functioning of the ECRIS network as a whole, as users may conclude that the inefficiency of ECRIS-TCN is indicative of the inefficiency of ECRIS as a whole.

In practice, Member States avoid sending ‘blanket requests’ and often rely only on information stored in their own national criminal record registers. This means that complete information on the criminal records history of TCN is often not available to the responsible authorities in the Member States. In fact, although in 2014 558000 TCN were convicted in 19 Member States, only 23000 requests (from 25 Member States participating in ECRIS today) related to TCN convictions were made in ECRIS.

The objective of the proposal is fully in line with the Commission´s priority of combating cross-border crime and terrorism as a common European responsibility in an Area of Freedom, Security and Justice. This is one of the initiatives of the European Agenda on Security. It will ensure that ECRIS covers both EU nationals and TCN criminal record information.

•Consistency with existing policy provisions in the policy area

•Consistency with other Union policies

2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

•Legal basis

The proposed legal instrument is a Directive based on Article 82(1)(d) of the Treaty on the Functioning of the European Union. Article 82(1)(d) is the legal basis for the Union’s right to act in the field of judicial cooperation in criminal matters to facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions. The proposed action falls squarely within this area. The proposal amends the existing EU legislation in this area.

•Subsidiarity (for non-exclusive competence)

•Proportionality

•Choice of the instrument

3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

•Ex-post evaluations/fitness checks of existing legislation

•Stakeholder consultations

In line with the Commission’s minimum standards regarding participation and openness to stakeholders views presented in the Better Regulation Guidelines 11 , an extensive consultation strategy has been developed to ensure a wide participation throughout the policy cycle of this initiative. This strategy was based on a mix of targeted consultations (bilateral contacts, stakeholder- and experts meetings, written consultations), providing the Commission with knowledgeable and representative options. The Commission has sought a wide and balanced range of views on this issue by giving the opportunity to all relevant parties (Member States, national authorities, lawyers and academics, fundamental right stakeholder, data protection stakeholders) to express their opinions, in particular the European Union Agency for Fundamental Rights (FRA), the European Data Protection Supervisor (EDPS) and the Art.29 Working Party composed of Member States data protection supervisory authorities.

All Member States supported a regulatory option and an index-filter-based hit/no hit mechanism. A decentralised approach gained substantial support, provided that the implementation software can be installed, integrated and maintained smoothly at Member State level and that financial support (grants) would be available. Some Member States favoured the centralised solution, as they considered that it would demand less implementation effort at Member State level, would be less costly for Member States and would better secure a common approach of the Member States. A few Member States were undecided.

Practical advantages of fingerprints with regard to the secure identification of a person were acknowledged by many Member States. Indeed, this is the only way to be sure of the identity of the person. This is extremely important since the judicial authorities are responsible for the accuracy of the information held in a criminal record. Some Member States expressed constitutional concerns and drew the attention to problems regarding the practical implementation of mandatory fingerprints in ECRIS. Many Member States' central authorities do currently not store fingerprints in their national criminal record registers and are not connected to the national automated fingerprint identification system (AFIS).Some Member States are concerned about possible double standards for EU nationals on the one hand and TCN on the other hand. The situation is different for TCN because some of them come from countries which do not have any appropriate or any valid civil registry. Against this background, the inclusion of fingerprints becomes a priority.

Fundamental rights stakeholders acknowledged in general the positive effects of a future ECRIS-TCN system from an overall justice perspective by helping to ensure appropriate sentencing and protect children from abuse, as well as the positive effect on TCN by enabling them to prove a clean criminal record throughout the Union 12 . They are in favour of a decentralised system accompanied by adequate anonymisation techniques.

These stakeholders pointed out that introducing a TCN-specific system is possible from the point of view of equality, provided that it is necessary and proportionate. The EDPS considered that creating a different regime for the information to be stored and exchanged of TCN on the one hand and on nationals of the Member States on the other hand needed to be duly justified. The stakeholders drew attention to the safeguards needed to address the specific situation of TCN in the context of migration, to aspects related to the creation of an index-filter and the use of fingerprints, to the rights of the child, as well as to the rights of data subjects and to the need for effective remedies.

In that context, it should be noted that the current proposal is not meant to be a tool for regulating migration. It does not change any existing provisions and guarantees in this area. The recitals of the proposed legal instrument explicitly acknowledge respect of the guarantees contained in EU and national law on asylum and migration. These are to be upheld in the future system.

Certain crimes, such as irregular entry or stay, or travelling with false visa or travel documents are specific to TCN and the future ECRIS-TCN should not impact disproportionately on the rights of TCN convicted for such offences. The FRA suggested in this respect that convictions relating to irregular entry and stay should not be processed under ECRIS-TCN for purposes other than criminal proceedings. However, the Commission considers that the extent to which criminal record information is processed for purposes other than criminal proceedings is a matter of national law, as is currently the case for EU nationals.

Fundamental rights stakeholders acknowledged that the secure identification of TCN can be more difficult than the identification of EU nationals. However, according to the FRA, the necessity and proportionality of using fingerprints for the index-filter, as well as the alternatives of using passports and/or residence permits, and the possibilities offered by existing EU and national databases, need to be taken into account. These need to be considered in comparison to the inclusion of fingerprints of all or certain categories of TCN.

However, the proposal does provide for the mandatory storage of fingerprints of TCN in order to overcome the problems in identifying TCN. The problems are different to those encountered when identifying EU nationals, where information can be more easily gained from the Member State of nationality.

Stakeholders also identified that TCN children may be particularly exposed to risks stemming from the exchange of information on their convictions. The FRA suggested that in the light of the vulnerability of children, consideration should be given to either excluding children from the scope of ECRIS altogether or from the index-filter, or to limiting exchanges to very serious crimes committed by children. At the same time, stakeholders would like to ensure that the proposal should make it possible for employers to verify in an effective manner whether a particular TCN has been barred from exercising activities involving direct and regular contacts with children as a result of past criminal convictions.

In this context, it should be noted that ECRIS is a decentralised tool for exchanging information contained in the Member States' criminal record registers. It is up to the national law of the Member States to decide whether or not the convictions of children are entered into the national criminal records and can thus be exchanged between Member States. With regard to access to criminal record information through ECRIS during recruitment to posts involving direct and regular contacts with children, the implementation of the Directive will facilitate the verification of previous convictions of TCN in this area.

Some stakeholders referred to the need to ensure that TCN have the right to access their own data and have it rectified, since inaccurate criminal records may be more common in cases involving TCN. However, the ECRIS legal instruments only cover the exchange of criminal record information, and do not touch upon the rights of individuals to have access to data concerning themselves stored at national level. This area is governed by data protection law, both at national and EU levels.

•Collection and use of expertise

A feasibility study on the ‘Establishment of a European Index of Convicted Third Country Nationals’ provided a better understanding of future mechanism for exchanges on convicted TCN and evaluated the impact of an index from a technical, legal and organisational point of view. 13 A study to assess the ICT impact of the legislative proposal for an ECRIS TCN system provided an overview of the costs which the EU and the Member States would incur in implementing the various options. 14 Eurostat migration and population statistics provided evidence regarding the size of the problem. In-depth interviews were also held with representatives of FIU.net 15 , in particular on the Match software, an intelligent information and knowledge sharing program based on an anonymous index-filter and developed for FIU.net.

•Impact assessment

Member States currently use ECRIS to search for TCN only in 5% of the cases. The benefits of the proposed solution are expected to increase the use of ECRIS considerably. If Member States were to systematically send ‘blanket’ requests, the administrative burden in responding to them has been identified as the most costly element (estimated up to EUR 78 million) of the ECRIS-workflow; the proposed solution saves such costs.

•    Fundamental rights

4.BUDGETARY IMPLICATIONS

The financial envelope foreseen for the implementation of the Directive for the period January 2017 to December 2020 is EUR 10 760 000. 18 The proposed envelope is compatible with the current Multi-annual Financial Framework and costs will be met through the Justice programme. The commitment profile is the result of the expected adjustments needed at EU and national level in the first three years. The maintenance costs will stabilise at EUR 1 602 000 million a year from the third year of implementation. Further details are provided in the legislative financial statement accompanying this proposal.

5.OTHER ELEMENTS

•Implementation plans and monitoring, evaluation and reporting arrangements

Two years after the legislative instrument has been adopted, the Commission will evaluate the extent to which it has been implemented in the Member States, and of the effectiveness of the actions that Member States have taken in terms of achieving the objectives set out above. On the basis of this evaluation, the Commission will decide on the appropriate follow-up.

•Detailed explanation of the specific provisions of the proposal

2016/0002 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

amending Council Framework Decision 2009/315/JHA, as regards the exchange of information on third country nationals and as regards the European Criminal Records Information System (ECRIS), and replacing Council Decision 2009/316/JHA

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(1)(d) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1)The Union has set itself the objective of offering its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to the prevention and combating of crime.

(2)This objective requires that it be possible for information on convictions handed down in the Member States to be taken into account outside the convicting Member State, both in the course of new criminal proceedings, as laid down in Council Framework Decision 2008/675/JHA 19 , and in order to prevent new offences.

(3)This objective presupposes the exchange of information extracted from criminal records between the competent authorities of the Member States. Such information exchange is organised and facilitated by the rules set out in Council Framework Decision 2009/315/JHA 20 and by the European Criminal Record Information System (ECRIS) which has been established in accordance with Council Decision 2009/316/JHA 21 .

(4)The ECRIS legal framework, however, does not sufficiently cover the particularities of requests concerning third country nationals. Although it is now possible to exchange information on third country nationals through ECRIS, there is no procedure or mechanism in place to do so efficiently.

(5)Information on third country nationals is not gathered within the Union in the Member State of nationality as it is for nationals of Member States, but only stored in the Member States where the convictions have been handed down. A complete overview of the criminal history of a particular individual can therefore only be ascertained if information is requested from all Member States.

(6)Such blanket requests impose an administrative burden on all Member States, including those not holding information on the particular third country national. In practice, this negative effect deters Member States from requesting information on third country nationals and leads to Member States limiting the criminal record information on information stored in their national register.

(7)The exchange of information on criminal convictions is important in any strategy to combat crime and counter terrorism. It would contribute to the criminal justice response to radicalisation leading to terrorism and violent extremism if Member States used ECRIS to its full potential.

(8)The recent terrorist attacks demonstrated in particular the urgency of enhancing relevant information sharing, notably as regards the extension of ECRIS to third country nationals.

(9)As a result, a system should be established by which the central authority of a Member State finds out quickly and efficiently in which other Member State criminal record information on a third country national is stored so that the existing ECRIS framework can then be used.

(10)The obligations of Member States as regards convictions of third country nationals should also include fingerprints to secure identification. This obligation includes to store information, including fingerprints, to reply to requests on information from other central authorities, to ensure that a criminal record extract requested by a third country national is supplemented as appropriate with information from other Member States, and to make the technical changes to apply state-of-the-art technologies necessary to make the information exchange system work.

(11)In order to compensate the lack of a single Member State where information on a particular third country national is stored, decentralised information technology should enable the central authorities of the Member States to find out in which other Member State criminal record information is stored. For this purpose, each central authority should distribute to the other Member States an index-filter which includes, in an anonymised form, the identification data of the third country nationals convicted in its Member State. The personal data should be rendered anonymous in such a way that the data subject is not identifiable. The receiving Member State may then match these data with their own information on a ‘hit’/‘no hit’ basis, thus finding out whether or not criminal record information is available in other Member States and, in case of a ‘hit’, in which Member States. The receiving Member State should then follow up a ‘hit’ using the ECRIS framework. With respect to third country nationals who also hold the nationality of a Member State, the information included in the index should be limited to information available as regards nationals of Member States.

(12)Council Framework Decision 2008/977/JHA 22 should apply in the context of computerised exchange of information extracted from criminal records of Member States, providing for an adequate level of data protection when information is exchanged between Member States, whilst allowing for Member States to require higher standards of protection to national data processing.

(13)The common communication infrastructure used for the exchange of criminal record information should be the secure Trans European Services for Telematics between Administrations (sTESTA) or any further development thereof or any alternative secure network.

(14)Notwithstanding the possibility of using the Union’s financial programmes in accordance with the applicable rules, each Member State should bear its own costs arising from the implementation, administration, use and maintenance of its criminal records database, and from the implementation, administration, use and maintenance of the technical alterations needed to be able to use ECRIS.

(15)This Directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including the right to protection of personal data, the principle of equality before the law and the general prohibition of discrimination. This Directive should be implemented in accordance with these rights and principles.

(16)Since the objective of this Directive, namely to enable rapid and efficient exchange of criminal record information on third country nationals, cannot be sufficiently achieved by the Member States, but can rather, by reason of the necessary synergy and interoperability, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve that objective.

(17)In order to ensure uniform conditions for the implementation of Framework Decision 2009/315/JHA, the principles of Council Decision 2009/316/JHA should be incorporated in the Framework Decision, and implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and the Council 23 .

(18)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

(19)In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application.

[or]

In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, those Member States have notified their wish to take part in the adoption and application of this Directive.

(20)The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council 24 and delivered an opinion on … 25 .

(21)Framework Decision 2009/315/JHA should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Framework Decision 2009/315/JHA is amended as follows:

(1)Article 1 is replaced by the following:

"Article 1

Subject Matter

This Framework Decision

(a)    defines the ways in which a convicting Member State shares information on convictions with other Member States;

(b)    defines storage obligations for the convicting Member State, and specifies the methods to be followed when replying to a request for information extracted from criminal records;

(c)    establishes a decentralised information technology system for the exchange of information on convictions based on the criminal records databases in each Member State, the European Criminal Record Information System (ECRIS).";

(2)in Article 2, the following points are added:

"(d)‘convicting Member State’ means the Member State where a conviction is handed down;

(e)‘third country national’ means a national of a country other than a Member State, or a stateless person, or a person whose nationality is unknown to the Member State where a conviction is handed down against the person.";

(3)in Article 4, paragraph 1 is replaced by the following:

"1.Each Member State shall take the necessary measures to ensure that when convictions handed down within its territory are entered into its criminal records, information on the nationality or nationalities of the convicted person is included if the person is a national of another Member State or a third country national.";

(4)the following article is inserted:

"Article 4a

Obligations of the convicting Member State concerning convictions of third country nationals

1. The Member State where a conviction is handed down against a third country national shall store the following information, unless, in exceptional individual cases, this is not possible:

(a)information on the convicted person (full name, date of birth, place of birth (town and country), gender, nationality and – if applicable – previous name(s);

(b)information on the nature of the conviction (date of conviction, name of the court, date on which the decision became final);

(c)information on the offence giving rise to the conviction (date of the offence underlying the conviction and name or legal classification of the offence as well as reference to the applicable legal provisions);

(d)information on the contents of the conviction (notably the sentence as well as any supplementary penalties, security measures and subsequent decisions modifying the enforcement of the sentence);

(e)the convicted person's parents' names;

(f)the reference number of the conviction;

(g)the place of the offence;

(h)if applicable, disqualifications arising from the conviction;

(i)the convicted person's identity number, or the type and number of the person's identification document;

(j)fingerprints of the person;

(k)if applicable, pseudonym and/or alias name(s).

2. The central authority shall create an index-filter containing anonymised information of the types referred to in points (a), (e), (i), (j) and (k) of paragraph 1 concerning third country nationals convicted in its Member State. The central authority shall transmit this index-filter, and any updates to it, to all Member States.

3.Any alteration or deletion of the information referred to in paragraph 1 shall immediately entail identical alteration or deletion of the information stored in accordance with paragraph 1 and contained in the index-filter created in accordance with paragraph 2 by the central authority of the convicting Member State.

4.Paragraph 2 and paragraph 3 apply with respect to the index-filter also regarding third country nationals who hold the nationality of a Member State, to the extent that the information referred to in points (a), (e), (i), (j) and (k) of paragraph 1 is stored by the central authority in respect of nationals of Member States.

5.Paragraph 1 shall apply to convictions handed down after [12 months after adoption].

Paragraph 2 shall apply to information already included in the criminal record on [12 months after adoption] and to information on convictions handed down after [12 months after adoption].";

(5)the following article is inserted:

"Article 4b

Use of the index-filters

1.For the purpose of identifying those Member States holding criminal record information on a third country national, the central authorities of the Member States may search the index-filters transmitted in accordance with Article 4a in order to match any information in these index-filters with their own information of the types referred to in Article 4a(2). The index-filters shall not be used for other purposes than those referred to in Article 6.

2.This Article applies also regarding a third country national who holds the nationality of a Member State.";

(6)Article 6 is amended as follows:

(a)paragraph 2 is deleted;

(b)paragraph 3 is replaced by the following:

"3.Whenever a national of a Member State asks the central authority of a Member State other than the Member State of the person’s nationality for information on his own criminal record, that central authority shall, provided that the person concerned is or was a resident or a national of the requesting or requested Member State, submit a request to the central authority of the Member State of the person’s nationality for information and related data to be extracted from the criminal record in order to be able to include such information and related data in the extract to be provided to the person concerned.

Where a third country national who does not hold the nationality of a Member State asks the central authority of a Member State for information on his own criminal record, that central authority shall submit a request only to those central authorities of the Member States which hold information on the criminal record of this person for information and related data to be extracted from the criminal record in order to be able to include such information and related data in the extract to be provided to the person concerned.";

(7)in Article 7, paragraph 4 is replaced by the following:

"4.When information extracted from the criminal record on convictions handed down against a national of a Member State is requested under Article 6 from the central authority of a Member State other than the Member State of the person’s nationality, the requested Member State shall transmit information on convictions handed down in the requested Member State to the same extent as provided for in Article 13 of the European Convention on Mutual Assistance in Criminal Matters.

4a.When information extracted from the criminal record on convictions handed down against third country nationals is requested under Article 6 for purposes of criminal proceedings, the requested Member State shall transmit information to the central authority of the requesting Member State on any conviction handed down in the requested Member State and on any conviction handed down in third countries and subsequently transmitted to it and entered in the criminal record.

If such information is requested for any purpose other than that of criminal proceedings, paragraph 2 of this Article shall apply accordingly.";

(8)Article 9 is amended as follows:

(a)in paragraph 1, the phrase "Article 7(1) and (4)" is replaced by "Article 7(1), (4) and (4a)";

(b)in paragraph 2, the phrase "Article 7(2) and (4)" is replaced by "Article 7(2), (4) and (4a)";

(c)in paragraph 3, the phrase "Article 7(1), (2) and (4) is replaced by "Article 7(1), (2), (4) and (4a)";

(9)in Article 11, paragraphs 3 to 7 are replaced by the following:

"3.Central authorities of Member States shall transmit the information referred to in Article 4, the index-filter referred to in Article 4a, requests referred to in Article 6, replies referred to in Article 7 and other relevant information electronically using ECRIS and a standardised format in accordance with the standards laid down in implementing acts.

4.If the mode of transmission referred to in paragraph 3 is not available and for as long as it is not available, central authorities of Member States shall transmit all information referred to in paragraph 3, with the exception of the index-filter referred to in Article 4a, by any means capable of producing a written record under conditions allowing the central authority of the receiving Member State to establish the authenticity thereof.

5. Each Member State shall carry out the necessary technical alterations to be able to use the standardised format referred to in paragraph 3 and the index-filter referred to in Articles 4a and 4b and to electronically transmit all information referred to in paragraph 3 to other Member States via ECRIS. It shall notify the Commission of the date from which it will be able to carry out such transmissions and use the index-filter referred to in Articles 4a and 4b.";

(10)the following article is inserted:

"Article 11a

European Criminal Records Information System (ECRIS)

1.In order to exchange information extracted from criminal records in accordance with this Framework Decision electronically, a decentralised information technology system based on the criminal records databases in each Member State, the European Criminal Records Information System (ECRIS), is established. It is composed of the following elements:

(a)interconnection software built in compliance with a common set of protocols enabling the exchange of information between Member States' criminal record databases;

(b)index-filter software built in compliance with a common set of protocols enabling the central authorities to match their data pursuant to Articles 4a and 4b with that of other central authorities while ensuring full protection of personal data;

(c)a common communication infrastructure between central authorities that provides an encrypted network.

ECRIS shall ensure the confidentiality and integrity of criminal record information transmitted to other Member States.

2.All criminal records data shall be stored solely in databases operated by the Member States.

3.Central authorities of the Member States shall not have direct online access to criminal records databases of other Member States.

4.The software and databases storing, sending and receiving information extracted from criminal records shall operate under the responsibility of the Member State concerned.

5.The common communication infrastructure shall be operated under the responsibility of the Commission. It shall fulfil the necessary security requirements and fully meet the needs of ECRIS.

6.The Commission shall provide the software referred to in paragraph 1, general support and technical assistance, including the collection and drawing up of statistics.

7.Each Member State shall bear its own costs arising from the implementation, administration, use and maintenance of its criminal records database and the software referred to in paragraph 1.

The Commission shall bear the costs arising from the implementation, administration, use, maintenance and future development of the common communication infrastructure of ECRIS, together with the implementation and future development of the interconnection software and the software referred to in paragraph 1.";

(11)the following article is inserted:

"Article 11b

Implementing Acts

1.The Commission shall lay down the following in implementing acts:

(a)the standardised format referred to in Article 11(3), including as regards information on the offence giving rise to the conviction and information on the content of the conviction;

(b)the rules concerning the technical implementation of ECRIS, the index-filter referred to in Articles 4a and 4b and the exchange of fingerprints;

(c)any other means of organising and facilitating exchanges of information on convictions between central authorities of Member States, including:

(i)the means of facilitating the understanding and automatic translation of transmitted information;

(ii)the means by which information may be exchanged electronically, particularly as regards the technical specifications to be used and, if need be, any applicable exchange procedures.

2.The implementing acts referred to in paragraph 1 shall be adopted in accordance with the examination procedure referred to in Article 12a(2).";

(12)the following article is inserted:

"Article 12a

Committee procedure

1.The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011 of the European Parliament and of the Council 26 .

2.Where reference is made to this Article, Article 5 of Regulation (EU) No 182/2011 shall apply.";

(13)the following article is inserted:

"Article 13a

Reporting by the Commission and review

1. By [24 months after implementation], the Commission shall submit a report on the application of this Framework Decision to the European Parliament and the Council. The report shall assess the extent to which the Member States have taken the necessary measures to comply with this Framework Decision, including the technical implementation.

2.The report shall be accompanied, where appropriate, by relevant legislative proposals.

3.The Commission services shall regularly publish a report concerning the exchange, through ECRIS, of information extracted from the criminal record based in particular on the statistics referred to in Article 11a(6). This report shall be published for the first time one year after the report referred to in paragraph 1 is submitted.".

Article 2

Replacement of Decision 2009/316/JHA

Decision 2009/316/JHA is replaced with regard to the Member States bound by this Directive, without prejudice to the obligations of those Member States with regard to the date for implementation of that Decision into national law.

Article 3

Transposition

1.Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [12 months after adoption] at the latest. They shall forthwith communicate to the Commission the text of those provisions.

When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2.Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

3.Member States shall carry out the technical alterations referred to in Article 11(5) by [12 months after adoption].

Article 4

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 2 shall apply from [the date for transposition of this Directive]

Article 5

Addressees

This Directive is addressed to the Member States in accordance with the Treaties.

Done at Strasbourg,

LEGISLATIVE FINANCIAL STATEMENT

1.FRAMEWORK OF THE PROPOSAL/INITIATIVE

1.1.Title of the proposal/initiative

1.2.Policy area(s) concerned in the ABM/ABB structure

1.3.Nature of the proposal/initiative

1.4.Objective(s)

1.5.Grounds for the proposal/initiative

1.6.Duration and financial impact

1.7.Management mode(s) planned

2.MANAGEMENT MEASURES

2.1.Monitoring and reporting rules

2.2.Management and control system

2.3.Measures to prevent fraud and irregularities

3.ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE

3.1.Heading(s) of the multiannual financial framework and expenditure budget line(s) affected

3.2.Estimated impact on expenditure 

3.2.1.Summary of estimated impact on expenditure

3.2.2.Estimated impact on operational appropriations

3.2.3.Estimated impact on appropriations of an administrative nature

3.2.4.Compatibility with the current multiannual financial framework

3.2.5.Third-party contributions

3.3.Estimated impact on revenue

LEGISLATIVE FINANCIAL STATEMENT

1.FRAMEWORK OF THE PROPOSAL/INITIATIVE

1.1.Title of the proposal/initiative

1.2.Policy area(s) concerned in the ABM/ABB structure 27  

1.3.Nature of the proposal/initiative

◻ The proposal/initiative relates to a new action 

◻ The proposal/initiative relates to a new action following a pilot project/preparatory action 28  

✓ The proposal/initiative relates to the extension of an existing action 

◻ The proposal/initiative relates to an action redirected towards a new action 

1.4.Objective(s)

1.4.1.The Commission's multiannual strategic objective(s) targeted by the proposal/initiative

1.4.2.Specific objective(s) and ABM/ABB activity(ies) concerned

1.4.3.Expected result(s) and impact

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted.

1.4.4.Indicators of results and impact

Specify the indicators for monitoring implementation of the proposal/initiative.

1.5.Grounds for the proposal/initiative

1.5.1.Requirement(s) to be met in the short or long term

1.5.2.Added value of EU involvement

1.5.3.Lessons learned from similar experiences in the past

1.5.4.Compatibility and possible synergy with other appropriate instruments

1.6.Duration and financial impact

◻ Proposal/initiative of limited duration

–◻    Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY

–◻    Financial impact from YYYY to YYYY

✓ Proposal/initiative of unlimited duration

–Implementation with a start-up period from 2017 to 2018,

–followed by full-scale operation.

1.7.Management mode(s) planned 29  

✓ Direct management by the Commission

–✓ by its departments, including by its staff in the Union delegations;

–◻    by the executive agencies

◻ Shared management with the Member States

◻ Indirect management by entrusting budget implementation tasks to:

–◻ third countries or the bodies they have designated;

–◻ international organisations and their agencies (to be specified);

–◻the EIB and the European Investment Fund;

–◻ bodies referred to in Articles 208 and 209 of the Financial Regulation;

–◻ public law bodies;

–◻ bodies governed by private law with a public service mission to the extent that they provide adequate financial guarantees;

–◻ bodies governed by the private law of a Member State that are entrusted with the implementation of a public-private partnership and that provide adequate financial guarantees;

–◻ persons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU, and identified in the relevant basic act.

–If more than one management mode is indicated, please provide details in the ‘Comments’ section.

Comments

2.MANAGEMENT MEASURES

2.1.Monitoring and reporting rules

Specify frequency and conditions.

2.2.Management and control system

2.2.1.Risk(s) identified

2.2.2.Information concerning the internal control system set up

2.2.3.Estimate of the costs and benefits of the controls and assessment of the expected level of risk of error

2.3.Measures to prevent fraud and irregularities

Specify existing or envisaged prevention and protection measures.

3.ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE

3.1.Heading(s) of the multiannual financial framework and expenditure budget line(s) affected

Existing budget lines

In order of multiannual financial framework headings and budget lines.

3.2.Estimated impact on expenditure

3.2.1.Summary of estimated impact on expenditure

EUR million (to three decimal places)

If more than one heading is affected by the proposal / initiative:

EUR million (to three decimal places)

EUR million (to three decimal places)

3.2.2.Estimated impact on operational appropriations

–◻    The proposal/initiative does not require the use of operational appropriations

–✓    The proposal/initiative requires the use of operational appropriations, as explained below:

Commitment appropriations in EUR million (to three decimal places)

3.2.3.Estimated impact on appropriations of an administrative nature

3.2.3.1.Summary

–◻    The proposal/initiative does not require the use of appropriations of an administrative nature

–✓    The proposal/initiative requires the use of appropriations of an administrative nature, as explained below:

EUR million (to three decimal places)

The appropriations required for human resources and other expenditure of an administrative nature will be met by appropriations from the DG that are already assigned to management of the action and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of budgetary constraints.

3.2.3.2.Estimated requirements of human resources

–◻    The proposal/initiative does not require the use of human resources.

–✓    The proposal/initiative requires the use of human resources, as explained below:

Estimate to be expressed in full time equivalent units

XX is the policy area or budget title concerned.

The human resources required will be met by staff from the DG who are already assigned to management of the action and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of budgetary constraints.

Description of tasks to be carried out:

3.2.4.Compatibility with the current multiannual financial framework

–✓    The proposal/initiative is compatible the current multiannual financial framework.

–◻    The proposal/initiative will entail reprogramming of the relevant heading in the multiannual financial framework.

–◻    The proposal/initiative requires application of the flexibility instrument or revision of the multiannual financial framework.

3.2.5.Third-party contributions

–✓ The proposal/initiative does not provide for co-financing by third parties.

–◻ The proposal/initiative provides for the co-financing estimated below:

Appropriations in EUR million (to three decimal places)

3.3.Estimated impact on revenue

–✓    The proposal/initiative has no financial impact on revenue.

–◻    The proposal/initiative has the following financial impact:

–◻    on own resources

–◻    on miscellaneous revenue

EUR million (to three decimal places)

For miscellaneous ‘assigned’ revenue, specify the budget expenditure line(s) affected.

Specify the method for calculating the impact on revenue.

(1) Riga Statement of the European Ministers of Justice and Home Affairs of 29 January 2015, doc 5855/15.

(2) Conclusions of the Council of the EU on enhancing the criminal justice response to radicalisation leading to terrorism and violent extremism, 20 November 2015, doc 14419/15.

(3) Conclusions of the Council of the EU on Counter-Terrorism of 20 November 2015, doc 14406/15.

(4) Conclusions of the European Council meeting of 17 and 18 December 2015, doc EUCO 28/15.

(5) ‘European Agenda on Security’ - Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 28 April 2015, COM(2015)185 final.

(6) Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (Framework Decision), OJ L 93, 7.4.2009, p. 23, and Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA, OJ L 93, 7.4.2009, p. 33.

(7) Comprising information on the nature of the offence, the conviction and related sanctions or other measures.

(8) When exchanging criminal records information via ECRIS Member State refer to codes as laid down in tables of offences and sanctions, including the parameters relating to the degree of completion and level of participation and, where applicable, the existence of total or partial exemption from criminal liability.

(9) According to the Framework Decision 2009/315/JHA replies to requests for the purposes of criminal proceedings shall be transmitted immediately and in any event within 10 working days. For details, see Article 8 of Framework Decision 2009/315/JHA.

(10) Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings, OJ L 220, 15.8.2008, p. 32.

(11) SWD(2015) 111

(12) Opinion of the European Union Agency for Fundamental Rights (FRA) concerning the exchange of information on third-country nationals under a possible future system complementing the European Criminal Records Information System of 4.12.2015, FRA – 2015/1 – ECRIS.

(13) Project Final Report ‘Feasibility Study: Establishment of a European Index of Convicted Third Country Nationals’ dated 11 June 2010 (‘Unisys study’).

(14) Study on Assessment of ICT impacts of the legislative proposal for ECRIS TCN system regarding the exchange of convictions for third country nationals and stateless people (TCN) dated from 04 December 2015 (‘Kurt Salmon study’, to be published)

(15) FIU.net, located in the Netherlands, is a platform connecting Financial Intelligence Units (FIUs) from the Member States. The purpose of the FIUs is to detect and disrupt terrorist financing and money laundering activities.

(16) Judgement of the Court of Justice, 8.4.2014, Digital Rights Ireland Ltd, C-293/12, ECLI:EU:C:2014:238.

(17) Judgement of the Court of Justice, 6.10.2015, Maximillian Schrems v Data Protection Commissioner, C-362/14, ECLI:EU:C:2015:650.

(18) Details are provided in Section 3.2.1 of the legislative financial statement under the total operational appropriation table.

(19) Council Framework Decision 2008/675/JHA of 24 July 2008 on taking account of convictions in the Member States of the European Union in the course of new criminal proceedings (OJ L 220, 15.8.2008, p. 32).

(20) Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States (OJ L 93, 7.4.2009, p. 23).

(21) Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA (OJ L 93, 7.4.2009, p. 33).

(22) Council Framework Decision 2008/977/JHA of 27 November 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters (OJ L 350, 30.12.2008, p. 60).

(23) Regulation (EU) No 182/2011 of the European Parliament and the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p.13).

(24) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p.1).

(25) OJ C …

(26) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). 

(27) ABM: activity-based management; ABB: activity-based budgeting.

(28) As referred to in Article 54(2)(a) or (b) of the Financial Regulation.

(29) Details of management modes and references to the Financial Regulation may be found on the BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html

(30) Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations.

(31) EFTA: European Free Trade Association.

(32) Candidate countries and, where applicable, potential candidate countries from the Western Balkans.

(33) Year N is the year in which implementation of the proposal/initiative starts.

(34) Member States costs for the extraction of identification information may be compensated by EU funding under the form of co-financing. In addition given that some Member States are not yet exchanging information through ECRIS, some EU funding may be foreseen for upgrading their national systems. From 2019 on, the maintenance costs are assessed to stabilise at 0.602 million per year.

(35) Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.

(36) Year N is the year in which implementation of the proposal/initiative starts.

(37) Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.).

(38) Year N is the year in which implementation of the proposal/initiative starts.

(39) Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.

(40) AC= Contract Staff; AL = Local Staff; END= Seconded National Expert; INT = agency staff; JED= Junior Experts in Delegations.

(41) Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines).

(42) As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net amounts, i.e. gross amounts after deduction of 25 % for collection costs.