The inter-institutional trialogue negotiations on the proposal to introduce a centralised ‘ECRIS-TCN’ system to help to carry out rapid checks on whether a member state has information on the convictions of a third country national (see EUROPE 11919) will begin on 7 March.
A working paper from the Bulgarian Presidency of the Council of the EU dated 9 February and examined by EUROPE, announced that a number of difficult trialogue meetings would be held focusing on the three points upon which the co-legislators are clashing: dual nationals, fingerprints and the frequency with which the system is used.
Inclusion of dual nationals. In their respective positions, the Council (see EUROPE 11922) and Parliament (see EUROPE 11957) both agreed on another definition to the “third country nationals” (article 3g) definition proposed by the European Commission and decided that EU nationals who also have the nationality of a third country should not be considered as third country nationals.
Nonetheless, the co-legislators are far from sharing the same position, despite the difference in the text appearing much more nuanced. The Bulgarian Presidency points out that the Council is effectively introducing another provision (article 2a), according to which, the provisions in the regulation that apply to third country nationals should also apply to citizens - the provision that was, “adopted in compliance with the will of a large majority of member states".
Parliament has not introduced a similar provision and during the discussions, the MEPs were also very clear that they do not want European citizens to be covered by the regulation, because there was a risk of the idea of “first and second class citizens” developing (see EUROPE 11937).
The Presidency believes that if it were to align itself on the position of Parliament it would mean agreeing on a less comprehensive system. It warns that, “This could lead to the undesirable situation that a person holding a double nationality (EU and of a third country) whose criminal record has been registered in the Member State of his EU nationality, could - when re-offending - only state that he/she has a third country nationality. In that way the authorities wouldn’t be able to get any information in respect of his/her previous conviction”
Inclusion of fingerprints. This question was the subject of intense discussions at the Council (see EUROPE 11882). The member states finally agreed on limiting the inclusion of digital fingerprints to third country nationals who have served prison sentences of at least six months or who have been convicted of a criminal offence under the national legislation of a member state and have served a prison sentence of at least 12 months.
It should be recalled that in the initial text, the Commission proposed that fingerprints be included in the system in all cases and it said that it was disappointed by the approach adopted by the Council (see EUROPE 11922).
Parliament would like to link the inclusion of fingerprints in the system to national legislation and only to authorise it when the legislation of the member state where a sentence is made allows for the collection and storage of the fingerprints of a convicted person.
Use of the system. Although the Commission was proposing systematic use of the
ECRIS-TCN system, the Council and Parliament both imposed restrictions to the text. The Council has maintained the Commission's text but has introduced a general limitation stipulating that in specific cases the authority requesting information about a legal case can decide that the use of the system is not appropriate. Parliament has decided to make the system obligatory in cases that exclusively involve criminal proceedings.
In this regard, the Presidency considers that this would make the system less efficient because in cases where information is requested, for example, in the context of obtaining a sensitive position, the use of the system would not be obligatory.
The proposal to reduce the power of the European Commission in the adoption of implementing acts or the introduction on several occasions of stricter deadlines by Parliament are some of the other questions still pending.
At this stage, five trialogues have been planned between March and June to help the institutions reach an agreement on a final text. (Original version in French by Marion Fontana)