REPORT on the proposal for a regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action n°98/700/JHA, Regulation (EU) n° 1052/2013 of the European Parliament and of the Council and Regulation (EU) n° 2016/1624 of the European Parliament and of the Council

8.11.2019 - (COM(2018)0631 – C8‑0150/2019 – 2018/0330B(COD)) - ***I

Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Roberta Metsola


Procedure : 2018/0330B(COD)
Document stages in plenary
Document selected :  
A9-0022/2019

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council on the European Border and Coast Guard and repealing Council Joint Action n°98/700/JHA, Regulation (EU) n° 1052/2013 of the European Parliament and of the Council and Regulation (EU) n° 2016/1624 of the European Parliament and of the Council

(COM(2018)0631 – C8‑0150/2019 – 2018/0330B(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

 having regard to the Commission proposal to Parliament and the Council (COM(2018)0631),

 having regard to the decision by the Conference of Presidents on 21 March 2019 to split the Commission proposal and to authorise the Committee on Civil Liberties, Justice and Home Affairs to draw up a separate legislative report for the provisions pertaining to the False and Authentic Documents Online system (FADO), namely recitals 80 to 83, 102, 114 and 115 and Article 80 of the Commission proposal;

 having regard to Article 294(2) and points (b) and (d) of Article 77(2) and point (c) of Article 79(2) of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0150/2019),

 having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

 having regard to the opinion of the European Economic and Social Committee of 12 December 2018[1],

 having regard to the opinion of the Committee of the Regions of 6 February 2019[2],

 having regard to Rule 59 of its Rules of Procedure,

 having regard to the report of the Committee on Civil Liberties, Justice and Home Affairs (A9-0022/2019),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.


 

Amendment  1

AMENDMENTS BY THE EUROPEAN PARLIAMENT[*]

to the Commission proposal

---------------------------------------------------------

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

 

on the ▌False and Authentic Documents Online system ('FADO')

 

and repealing Council Joint Action 98/700/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 77(2)(b) and (d) and Article 79(2)(c) thereof,

Having regard to the proposal from the European Commission,

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

Having regard to the opinion of the European Economic and Social Committee[3],

Having regard to the opinion of the Committee of the Regions[4],

Acting in accordance with the ordinary legislative procedure,

Whereas:

 

(80) The False and Authentic Documents Online  system (‘FADO’) was established by Joint Action 98/700/JHA[5] within the General Secretariat of the Council. FADO was set up to facilitate the exchange of information between Member States' authorities on specimen documents and on known forgery methods. FADO provides for the electronic storage, rapid exchange and validation of information on genuine and false documents. Given that the detection of false documents is also important for citizens, organisations and businesses, the General Secretariat of the Council has also made authentic documents available in a Public Register of Authentic Travel and Identity Documents Online (PRADO).

 

(81a) This Regulation constitutes the necessary new legislative basis for governing FADO.

 

(81b) While false documents and identity fraud are often detected at the external borders of the Union, the fight against false documents is an area covered by police cooperation. The fraudulent use of documents in the Schengen area has significantly increased in the last years. Document and identity fraud entails the production and use of counterfeit documents, the falsification of genuine documents, and the use of genuine documents obtained by means such as deception or misrepresentation. False documents are a multi-purpose criminal tool because they can be used repeatedly to support different criminal activities, including money laundering and terrorism. The techniques used to produce false documents are increasingly sophisticated and necessitate high-quality information on possible detection points, in particular security features and fraud characteristics, as well as frequent updating. However, false or forged identity documents are, in certain circumstances, also used by asylum seekers when trying to gain access to the territory of a Member State.

 

(81c) FADO is specifically created for the purpose of hosting specimen documents and examples of falsified documents that include descriptions of methods of falsification and forgery provided by Member State. FADO might also host such documents originating from third countries, territorial entities, international organisations and other entities subject to international law. As a direct consequence of the purpose for which FADO was specifically created, personal data should be stored in FADO in the form of different elements appearing in the specimen and falsified documents. Such personal data should be limited to what is strictly necessary for the purposes of FADO. FADO should contain personal data in the form of a facial image or alphanumerical data only insofar as they are related to the security features in a specimen document or the method of falsification of a falsified document. The European Border and Coast Guard Agency (the ‘Agency’) established by Regulation (EU) 2019/... of the European Parliament and of the Council should take the necessary steps to anonymise all elements of personal data which are not necessary in relation to the purposes for which the data are processed in accordance with the principle of data minimisation, provided for in point (c) of Article 4(1) of Regulation of the European Parliament and of the Council (EU) 2018/1725[6]. It should not be possible to retrieve or search any elements of personal data in FADO nor should the data in the specimens or falsified documents be used to identify any natural person.

 

(81d) Document fraud can ultimately undermine the internal security of the Schengen area as an area without internal border control. The use of FADO as an electronic storage system that describes possible detection points, both in authentic and in false documents, is an important tool in the fight against document fraud, in particular at the external borders of the Schengen area. Given that FADO contributes to maintaining a high level of security within the Schengen area by supporting the fight against document fraud by police, border guard, customs and other law enforcement authorities of the Member States, FADO constitutes an important tool for the application of the provisions of the Schengen acquis as integrated into the Union framework.

 

(81e) FADO should contain information on all types of specimens of travel, identity, residence and civil status documents, driving licenses and vehicle licenses issued by Member States and falsified versions of such documents in their possession, and it should also be possible that it contain other related official documents that might be used when applying for travel, residence or identity documents issued by Member States. It should also be possible that it contain information on any such documents issued by third countries, territorial entities, international organisations and other entities subject to international law.

 

(81f)  While Member States can maintain or develop their own national systems containing information on genuine and false documents, they should be obliged to provide the Agency with information on genuine travel, identity, residence and civil status documents, driving licenses and vehicle licenses which they issue, and falsified versions of such documents in their possession. The Agency should upload that information to FADO in order to guarantee the uniformity and quality of the information. In particular, Member States should provide all security features of new versions of genuine documents issued by Member States that are covered by this Regulation.

 

(81g) In order to ensure that Member States have a high level of control over document fraud, the Member States’ authorities competent in the area of document fraud such as border police and other law enforcement authorities or other third parties should be provided with access to FADO with differing levels of access depending on their requirements. As the conditions and measures for granting such access are non-essential elements supplementing this Regulation, they should be laid down by means of delegated acts. Equally, FADO should enable users to have at their disposal information on any new forgery methods that are detected and on new genuine documents that are in circulation.

 

(82) ▌FADO should provide different stakeholders, including the general public, with different levels of access to documents depending on their need to access the system and the sensitivity of the data to be accessed.

 

(82a) Over the past years, the Agency has developed expertise in the area of document fraud. The Agency is therefore to take over, as provided for in Regulation (EU) 2019/..., the administration as well as the operation and technical management of FADO from the General Secretariat of the Council. Along with the transfer of FADO, the Agency should provide the Member States with near real-time assistance in the detection and identification of falsified documents.

 

(83) It should be ensured that, during the transitional period, ▌FADO remains fully operational until the transfer has been effectively carried out and the existing information has been transferred to the new system. The ownership of the existing data should then be transferred to the Agency.

 

(83a) This Regulation should not affect the competence of Member States relating to the recognition of passports, travel documents, visas or other identity documents.

 

(101a) In order to ensure the effective implementation of FADO, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the setting out the technical specifications for entering information into, and storing information in, FADO in accordance with high standards and the procedures for controlling and verifying the information contained in FADO, in respect of the establishment of measures granting access to FADO to the Member States’ authorities competent in the area of document fraud, in respect of establishing measures granting restricted access to FADO to third parties such as airlines, Union institutions, bodies, offices and agencies, third countries or international organisations, and in respect of the determination of the date of the effective implementation of FADO by the Agency. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making[7]. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council should receive all documents at the same time as Member States' experts, and that their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

 

(102a)  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 Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

 

(102b) The United Kingdom is taking part in this Regulation, in accordance with Article 5(1) of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union and Article 8(2) of Council Decision 2000/365/EC[8].

 

(102c) Ireland is taking part in this Regulation, in accordance with Article 5(1) of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union and Article6(2) of Council Decision 2002/192/EC[9].

 

(102d) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis[10], which fall within the area referred to in Article 1, point H, of Council Decision 1999/437/EC[11].

 

(102e) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis[12], which fall within the area referred to in Article 1, point H, of Decision 1999/437/EC read in conjunction with Article 4(1) of Council Decision 2004/849/EC and Article 4(1) of Council Decision 2004/860/EC.

 

(102f) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point H, of Council Decision1999/437/EC read in conjunction with Article 3 of Council Decision 2011/349/EU[13] and Article 3 of Council Decision 2011/350/EU[14].

 

(113a) This Regulation is without prejudice to the obligations deriving from the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967.

 

(114)  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 on 7 November 2018[15] and delivered ▌an opinion on 30 November 2018.

 

(115) This Regulation aims to ▌adapt Council Joint Action 98/700/JHA to the institutional framework set by the TFEU. Since the amendments to be made are substantial in number and nature, that Joint Action should, for the sake of clarity, be repealed.

 

HAVE ADOPTED THIS REGULATION:

Article 80a
Subject matter and purpose of FADO

 

This Regulation establishes the False and Authentic Documents Online system ('FADO').

 

The purpose of FADO is to provide up-to-date information on authentic and false documents and to contribute to the fight against document and identity fraud by sharing information on security features and potential fraud characteristics in authentic and false documents between the competent national authorities, with third parties, such as Union institutions, bodies, offices and agencies, and, where applicable, with third countries, territorial entities, international organisations, other entities subject to international law and private entities, and on authentic documents with the general public.

 

Article 80b
Scope

 

FADO shall contain information on specimen travel, identity, residence and civil status documents, driving licenses and vehicle licenses issued by Member States and falsified versions of such documents in their possession. FADO may also contain other related official documents that are used when applying for travel, residence or identity documents issued by Member States, and, where applicable, by third countries, territorial entities, international organisations and other entities subject to international law, and information on falsifications thereof.

 

Article 80c
Categories of documents and data contained in FADO

 

1. FADO shall include the following:

 

(a) information, including images, on specimen documents and their security features;

 

(b) information, including images, on false, forged, counterfeit or pseudo documents and their fraud characteristics;

 

(c) summary information on forgery techniques;

 

(d) summary information on the security features of the genuine documents;

 

(e) statistics on detected false documents;

 

(f) recommendations on effective ways of detecting specific methods of forgery.

 

FADO may also contain handbooks, contact lists and information on valid travel documents and on their recognition by Member States, as well as other useful related information.

 

2. Member States shall transmit without delay to the European Border and Coast Guard Agency (the ‘Agency’) all the data on specimen and fraudulent travel, identity, residence and civil status documents, driving licenses and vehicle licenses in relation to which they are data controller under the applicable Union data protection law. When the Member States become data controller in respect of additional data on such documents and licenses, they shall also transmit them without delay to the Agency. Member States may also transmit to the Agency data on other specimens of official documents that are used when applying for travel, residence or identity documents issued by Member States or data on falsifications of any of those documents.

 

Member States shall ensure that individuals whose personal data are used on specimen and falsified documents are protected in accordance with the relevant applicable rules, including as regards the processing of their personal data in FADO. It shall not be possible to identify a person from personal data without additional information or to search for personal data in FADO.

 

3. FADO may contain the documents referred to in paragraph 1 issued by third countries, territorial entities, international organisations and other entities subject to international law, and information on falsifications thereof.

 

Article 80d
Responsibilities of the Agency

 

1. The Agency shall be responsible for establishing FADO in accordance with this Regulation. The Agency shall ensure the functioning of FADO 24 hours a day, 7 days a week and provide for the its maintenance and updating.

 

2. The Agency shall provide the Member States’ competent authorities with near real-time assistance in the detection and identification of falsified documents.

 

3. The Agency shall be responsible for uploading the information received from the Member States in a timely and efficient manner in order to guarantee the uniformity and quality of the data while ensuring the respect for the principle of data minimisation provided for in point (c) of Article 4(1) of Regulation (EU) 2018/1725.

 

4. The Agency shall be responsible for uploading the information on documents they obtain from third countries, territorial entities, international organisations and other entities subject to international law, and information on falsifications thereof.

 

5. Where appropriate, the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice shall provide technical support to the Agency in the exercise of its task under this Regulation.

 

Article 80e
FADO’s architecture and access thereto

 

1. FADO’s architecture shall enable different levels of access rights to FADO. Only document experts from the Member States’ authorities competent in the area of document fraud, such as border police and other law enforcement authorities, shall have access to FADO in an unrestricted manner.

 

2. The following shall have restricted access to FADO:

 

(a) Member States’ authorities that do not require detailed information regarding the security features and falsification of documents;

 

(b) Union institutions, bodies, offices and agencies;

 

(c) third parties, such as third countries, territorial entities or international organisations;

 

(d) private entities, such as airlines and other carriers;

 

(e) the general public.

 

The Commission shall adopt delegated acts in accordance with Article 80h concerning the definition of the access rights under this paragraph. The delegated acts shall set out for each group referred to in this paragraph the part of the system to which access is to be granted and any specific procedures and conditions that may be necessary.

 

3. The Member States shall notify the Commission and the Agency of the national authorities referred to in paragraph 1.

 

Three months after the date of the effective implementation of the system by the Agency, the Agency shall publish a consolidated list of the authorities referred to in paragraph 1 in the Official Journal of the European Union. Member States shall also notify the Commission and the Agency of any changes of those authorities without delay. In the event of such changes, the Agency shall publish an updated consolidated version of that information once a year. The Agency shall maintain a continuously updated public website containing that information.

 

Article 80f
Processing of personal data by the Agency

 

The Agency shall apply Regulation (EU) 2018/1725 when processing personal data. The Agency shall only process personal data where such processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in it pursuant to point (a) of Article 5(1) of Regulation (EU) 2018/1725.

 

FADO may contain personal data only in as much as they appear on specimen and falsified documents. The Agency shall only upload personal data to the extent that they are strictly necessary to describe or illustrate the features or method of falsification. The Agency shall ensure that such data are adequately anonymised and minimised in line with the purpose of FADO to the extent that is possible in a way that prevents the identification of any individual through FADO without additional data. The identification of any individual through FADO shall be prohibited.

 

Third parties and private entities referred to in points (c) and (d) of Article 80e(2) of this Regulation that have access to FADO other than the access referred to in point (e) of Article 80e(2) of this Regulation shall enter into necessary agreements with the Agency pursuant to Articles 9 and 48 of Regulation (EU) 2018/1725, as applicable, which shall provide for, inter alia, the prevention of the identification of individuals whose personal data are contained in FADO.

 

Article 80g
Delegated acts

 

The Commission shall adopt delegated acts in accordance with Article 80h concerning:

 

(a) the establishment of the technical specifications for entering information into, and storing information in, FADO in accordance with high standards;

 

(b) the establishment of the procedures for controlling and verifying the information contained in FADO.

 

(c) the establishment of measures granting access to FADO to Member States’ authorities competent in the area of document fraud;

 

(d) the establishment of measures granting restricted access to FADO to third parties such as airlines, Union institutions, bodies, offices and agencies, third countries or international organisations;

 

(e) the determination of the date of the effective implementation of FADO by the Agency.

 

Article 80h
Exercise of delegation

 

1. The power to adopt delegated acts is conferred on to the Commission subject to the conditions laid down in this Article.

 

2. The power to adopt delegated acts referred to in the second subparagraph of Article 80e(2) and Article 80g(1) shall be conferred on the Commission for an indeterminate period of time from … [date of entry into force of this Regulation].

 

3. The delegation of power referred to in the second subparagraph of Article 80e(2) and Article 80g(1) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

 

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

 

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

 

6. A delegated act adopted pursuant to the second subparagraph of Article 80e(2) or Article 80g(1) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

 

Article 80j
Repeal and transitional provisions

 

1. Joint Action 98/700/JHA is repealed with effect from the date of the effective implementation of the system by the Agency, to be determined by means of a delegated act as provided for in point (e) of Article 80g.

 

2. The General Secretariat of the Council shall transfer the current data on specimen and false documents in FADO as set up by Joint Action 98/700/JHA to FADO as established by this Regulation.

 

Article 80k
Entry into force

 

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at Brussels,

For the European Parliament For the Council

The President


PROCEDURE – COMMITTEE RESPONSIBLE

Title

European Border and Coast Guard: false and authentic documents online (FADO) system and repealing Council Joint Action No 98/700/JHA

References

COM(2018)0631 – C8-0150/2019 – 2018/0330B(COD)

Date submitted to Parliament

12.9.2018

 

 

 

Committee responsible

 Date announced in plenary

LIBE

28.3.2019

 

 

 

Committees asked for opinions

 Date announced in plenary

BUDG

28.3.2019

 

 

 

Not delivering opinions

 Date of decision

BUDG

23.7.2019

 

 

 

Rapporteurs

 Date appointed

Roberta Metsola

24.7.2019

 

 

 

Discussed in committee

21.10.2019

 

 

 

Date adopted

7.11.2019

 

 

 

Result of final vote

+:

–:

0:

48

5

7

Members present for the final vote

Konstantinos Arvanitis, Malik Azmani, Katarina Barley, Pernando Barrena Arza, Pietro Bartolo, Vasile Blaga, Saskia Bricmont, Damien Carême, Caterina Chinnici, Tudor Ciuhodaru, Clare Daly, Lena Düpont, Sylvie Guillaume, Antony Hook, Evin Incir, Sophia in ‘t Veld, Patryk Jaki, Marina Kaljurand, Assita Kanko, Fabienne Keller, Peter Kofod, Moritz Körner, Alice Kuhnke, Jeroen Lenaers, Juan Fernando López Aguilar, Magid Magid, Roberta Metsola, Claude Moraes, Javier Moreno Sánchez, Maite Pagazaurtundúa, Kostas Papadakis, Nicola Procaccini, Emil Radev, Paulo Rangel, Terry Reintke, Diana Riba i Giner, Ralf Seekatz, Michal Šimečka, Birgit Sippel, Sylwia Spurek, Annalisa Tardino, Tomas Tobé, Dragoş Tudorache, Milan Uhrík, Tom Vandendriessche, Bettina Vollath, Javier Zarzalejos

Substitutes present for the final vote

Damian Boeselager, Claire Fox, Monika Hohlmeier, Beata Kempa, Jan-Christoph Oetjen, Kris Peeters, Sabrina Pignedoli, Karlo Ressler, Robert Roos, Miguel Urbán Crespo, Petar Vitanov, Irina Von Wiese, Axel Voss

Date tabled

11.11.2019

 


 

FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

48

+

ID

Annalisa Tardino, Tom Vandendriessche

NI

Sabrina Pignedoli, Milan Uhrík

PPE

Vasile Blaga, Lena Düpont, Monika Hohlmeier, Jeroen Lenaers, Roberta Metsola, Kris Peeters, Emil Radev, Paulo Rangel, Karlo Ressler, Ralf Seekatz, Tomas Tobé, Axel Voss, Javier Zarzalejos

RENEW

Malik Azmani, Antony Hook, Sophia in 't Veld, Fabienne Keller, Moritz Körner, Jan-Christoph Oetjen, Maite Pagazaurtundúa, Michal Šimečka, Dragoş Tudorache, Irina Von Wiese

S&D

Katarina Barley, Pietro Bartolo, Caterina Chinnici, Tudor Ciuhodaru, Sylvie Guillaume, Evin Incir, Marina Kaljurand, Juan Fernando López Aguilar, Claude Moraes, Javier Moreno Sánchez, Birgit Sippel, Sylwia Spurek, Petar Vitanov, Bettina Vollath

VERTS/ALE

Damian Boeselager, Saskia Bricmont, Damien Carême, Alice Kuhnke, Magid Magid, Terry Reintke, Diana Riba i Giner

 

5

-

GUE/NGL

Konstantinos Arvanitis, Pernando Barrena Arza, Clare Daly, Miguel Urbán Crespo

NI

Kostas Papadakis

 

7

0

ECR

Patryk Jaki, Assita Kanko, Beata Kempa, Nicola Procaccini, Robert Roos

ID

Peter Kofod

NI

Claire Fox

 

Key to symbols:

+ : in favour

- : against

0 : abstention

 

 

Last updated: 11 November 2019
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