Proposals for a Directive and for a Regulation of the European Parliament and of the Council as regards the exchange of information on third country nationals, as regards the ECRIS and establishing a centralised system to supplement and support the ECRIS

On 19 January 2016, the Commission tabled a proposal for a Directive improving the existing European Criminal Records Information System (ECRIS) with regard to third country nationals (TCN). The proposal was part of the Joint Declaration of the EU’s legislative priorities for 2017.

Under the current system, Member States receive systematically information on convictions of their nationals from other Member States, to store in their criminal records. This enables Member States to obtain complete information on previous convictions of an EU national from the Member State of nationality of that person. However, requesting Member States have to send ‘blanket requests’ to all Member States, which creates a heavy administrative burden.

During the examination of the proposal by the Council, Member States expressed a strong preference for establishing a centralised, rather than decentralised, system for third country nationals at EU level. In light of this, the negotiations on the draft Directive were suspended following the request by the Member States to the Commission, at the Justice and Home Affairs (JHA) Council on 9 June 2016, to evaluate the legislative framework and present a proposal for establishment of a central database for convicted third country nationals.

The proposal for a Regulation to establish a central database was submitted by the Commission on 29 June 2017. Following that, the Presidency submitted a revised text for the accompanying Directive on 31 July 2017, which takes into consideration the proposal for a Regulation tabled by the Commission. The Regulation will regulate all issues related to central database, while the Directive will complement the existing Framework Decision on matters of general nature related to functioning of ECRIS. On 11 September the supplementary file was referred to the LIBE Committee and Daniel Dalton was appointed as rapporteur.

Within the Council, the Working Party for Cooperation in Criminal Matters (COPEN) examined these proposals at several meetings between July and November. Some of the issues were also discussed by the Coordinating Committee in the area of police and judicial cooperation in criminal matters (CATS) in September 2017. Finally, on 8 December 2017, the Council reached a general approach on the proposed Directive and the proposed Regulation.

On 12 December 2017, the European Data Protection Supervisor (EDPS) issued its opinion on the proposal for a Regulation on the ECRIS-TCN centralised system. The EDPS pointed out that, as ECRIS is a system adopted by the EU prior to the Lisbon Treaty, the new proposals for a Directive and a Regulation must bring the system up to the standards required by Article 16 TFEU and the EU Charter of Fundamental Rights, including meeting the requirements for any lawful limitation on fundamental rights.