Evaluation procedure for implementing the data exchange provisions pursuant to Council Decisions 2008/615/JHA and 2008/616/JHA (Prüm Decisions)

COUNCIL OF THE EUROPEAN UNION

Brussels, 14 April 2009

6661/1/09

LIMITE

CRIMORG 25

ENFOPOL 39

NOTE From : Presidency

To : Ad Hoc Group on Information Exchange

Subject : Evaluation procedure for implementing the data exchange provisions pursuant to Council Decisions 2008/615/JHA and 2008/616/JHA (Prüm Decisions)

I. Background

Article 25(2) of Council Decision 2008/615/JHA states that

«The supply of personal data provided for under this Decision may not take place until the provisions of this Chapter have been implemented in the national law of the territories of the Member States involved in such supply. The Council shall unanimously decide whether this condition has been met.»

Article 20 of the implementing Decision (2008/616/JHA) and chapter 4 of the Annex to the latter Decision set out the different steps of this evaluation procedure.

A distinction should be made between

  the data exchange of chapter 2 (access to DNA, fingerprint and vehicle registration data), which Member States have to implement at the latest by August 2011 and

  the data exchange pursuant to chapters 3 and 4 (supply of information in relation to major events and in order to prevent terrorist offences respectively), for which an implementation deadline of one year, i.e. until August 2009, is set.

This note sets out the detailed arrangements for the evaluation procedure.

II. Steps of the evaluation procedure

The evaluation procedure consists of the following steps:

a) (for all chapters) information by the concerned Member State, pursuant to Article 36(2), that it has implemented the obligations of the concerned chapter(s)

b) (only for chapter 2) questionnaire

c) (only for chapter 2) pilot run

d) (only for chapter 2) evaluation visit and report

e) (for all chapters) decision by the Council

a) information by the concerned Member State

b) questionnaire

According to Article 36(2) of Council Decision 2008/615/JHA, Member States shall inform the Council Secretariat and Commission that it has implemented its obligations and wishes to be evaluated with a view to starting operational data exchange.

With a view to standardising the Member States’ notifications, the above-mentioned information shall be provided to the Council Secretariat and the Commission via relevant questionnaires (see addenda to this document). This will ensure that the information is complete, all formal requirements are fulfilled and, for the evaluation of chapter 2, allows to organise the rest of the evaluation procedure.

The questionnaire on data protection, set out in ADD 1, needs to be filled in together with or prior to the questionnaires on the specific data exchanges as it is a pre-requisite to any data exchange. Specific data protection issues concerning the relevant data exchange categories are included in the subject-related questionnaires.

c) pilot run (only for chapter 2)

A further addendum will set out in detail which tests are included in the pilot run and what results must be delivered, as defined by the relevant DNA, fingerprint and VRD experts.

Essentially, the pilot runs shall serve to establish the readiness of the Member State’s contact points to exchange the information, in particular the technical connections, search capacities and adequate data protection arrangements as well as relevant user-related functionalities.

For data protection reasons, any tests should be performed exclusively with a standardised test set and against a dedicated test system.

d) evaluation visit (only for chapter 2)

Finally, another addendum will set out in detail what aspects are to be covered and checked during the visit, as defined by the relevant DNA, fingerprint and VRD experts.

Essentially, the visit shall serve to establish the readiness of the operators/users, the data protection arrangements and logistics and general logistics for the data exchange.

The experts and the concerned Member State may decide to combine the evaluation visit with (part of) the pilot run and adapt the relevant reports accordingly.

The experts will draw up guidelines on how the evaluation teams should be composed (taking into account the criteria already set out in Council Decision 2008/616/JHA) and specify some practical arrangements as to the organisation of the visit.

Travel and accommodation costs of members of the evaluation team will in principle be covered by their own Member State. However, Member States may wish to apply for Community funding through the existing programmes to cover certain costs of the evaluation team, on a case-by-case basis.

Within one month, the evaluation team will deliver its report and submit it to the concerned Member State for comments. To ensure uniformity of the reports and thereby equal treatment of all Member States, a standard format will be used for the report.

The report as amended to take account of the Member State’s comments will then be submitted to the Ad Hoc Group on Information Exchange.

e) report to Council

A standard format for the report to be brought to Council as well as for the draft decision of Council will be developed.

For the data exchange pursuant to chapter 2 and according to the Prüm Decisions, it will be based upon and include parts of the reply to the questionnaire, the result of the pilot run and the report of the evaluation visit. Particular attention will be paid to the implementation of an appropriate level of data protection.

For the data exchange pursuant to chapters 3 and 4, the report to Council will copy/refer to (parts of) the declarations/questionnaire on this item. The report will be submitted to the Ad Hoc Group on Information Exchange and then transmitted to the Article 36 Committee (if possible as a I-point) with a view to submission to Coreper and Council (where possible as a I/A point).

III. Management

Given the number of evaluations that will need to be organised for each Member State and each type of data exchange, even if some will be combined, it is necessary to ensure a practical and active management of this evaluation process.

To that end, a calendar will be drawn up per data category, which supposes that Member States provide early and systematically even provisional information on their planning and times when they would want the evaluation to take place.

While some coordination of the whole planning will need to be done at a «central level» (via Presidency and leading experts), Member States’ experts will have to be very pro-active and use mail to make practical arrangements.

To arrange the pilot run and in particular to be able to choose the test partner(s), a matrix will be drawn up and kept up-to-date of what data exchanges are operational between which Member States.

Furthermore, a list of experts available for doing the evaluation visits is to be drawn up. To that end, delegations are invited to nominate experts and inform the Council Secretariat.