Exchange of Information on Third Country Nationals – European Criminal Records Information System: Initial Appraisal of a European Commission Impact Assessment

17-03-2016

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment accompanying the Commission proposal on the European Criminal Records Information System, submitted on 19 January 2016 and referred to Parliament's Committee on Civil Liberties, Justice and Home Affairs. The European Criminal Records Information System (ECRIS) is an electronic system allowing Member States to exchange information on previous convictions against an individual by criminal courts in the European Union (EU). It is based on the principle that each Member State keeps a record of all convictions against its nationals, including those given in other Member States. The exchange of information is intended to be used in new criminal proceedings against that person, but national laws can widen the scope for such exchange of information for other purposes. The IA provides logical qualitative analysis linking the problem, its underlying drivers, the objectives and the policy options to address it. The qualitative analysis is reasonable, makes concrete arguments and is substantiated with up-to-date statistical data, although one might question the decision not to hold the mandatory 12 week open public consultation. In the discussion of the policy options, it would appear that only options 3 and 4 were actually considered as viable alternatives. In its analysis of the costs, the IA draws considerably on the Kurt Salmon report, which provides a convincing evaluation of options 3 and 4 with regard to substantive compliance costs. Where the IA goes beyond the data and analysis provided in the Kurt Salmon report, however, there are instances where the assessment appears less clear. With regard to the shift in preference from the voluntary use of fingerprints for the identification of TCN (favoured as a preferred sub-option in the IA) to the mandatory use of fingerprints (the sub-option chosen in the proposal), one possibility may be that the weighting of the arguments for and against the different sub-options might have changed prior to adoption of the proposal due to the particularly volatile security situation in the EU.

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment accompanying the Commission proposal on the European Criminal Records Information System, submitted on 19 January 2016 and referred to Parliament's Committee on Civil Liberties, Justice and Home Affairs. The European Criminal Records Information System (ECRIS) is an electronic system allowing Member States to exchange information on previous convictions against an individual by criminal courts in the European Union (EU). It is based on the principle that each Member State keeps a record of all convictions against its nationals, including those given in other Member States. The exchange of information is intended to be used in new criminal proceedings against that person, but national laws can widen the scope for such exchange of information for other purposes. The IA provides logical qualitative analysis linking the problem, its underlying drivers, the objectives and the policy options to address it. The qualitative analysis is reasonable, makes concrete arguments and is substantiated with up-to-date statistical data, although one might question the decision not to hold the mandatory 12 week open public consultation. In the discussion of the policy options, it would appear that only options 3 and 4 were actually considered as viable alternatives. In its analysis of the costs, the IA draws considerably on the Kurt Salmon report, which provides a convincing evaluation of options 3 and 4 with regard to substantive compliance costs. Where the IA goes beyond the data and analysis provided in the Kurt Salmon report, however, there are instances where the assessment appears less clear. With regard to the shift in preference from the voluntary use of fingerprints for the identification of TCN (favoured as a preferred sub-option in the IA) to the mandatory use of fingerprints (the sub-option chosen in the proposal), one possibility may be that the weighting of the arguments for and against the different sub-options might have changed prior to adoption of the proposal due to the particularly volatile security situation in the EU.