DNA and Fingerprints a la carte

The Convention on the stepping up of cross-border co-operation, particularly in combating terrorism, cross-border crime and illegal migration, the so-called Prum Treaty was designed outside the legal framework of the EU by seven Member States, nor the Commission or the other Member States took part in the Treaty negotiations. However, in 2007, it has been incorporated into EU law. It is obvious that the Contracting States designed the Treaty with the aim of incorporating its provisions into EU law. Therefore, this Treaty sets an alarming precedent as a group of Member States have reached an agreement between themselves, which subsequently is incorporated in the EU framework.

The most important aspect of the treaty is the enhanced organised procedures for the exchange of information on the basis of the ‘principle of availability’ related to personal data such as DNA records and fingerprints. The principle of availability means “information for law enforcement purposes needed by the authorities of one Member State should be made available by the authorities of another Member State, subject to certain conditions.

The Council Decision on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime, incorporates in the framework of the European Union the main provisions of the Prum Treaty. The UK was invited to take part in the treaty negotiations but refused to do so. The former Parliamentary Under-Secretary of State at the Home Office, Joan Ryan, explained to the House of Commons European Scrutiny Committee that the Government decided not to be a party to the Prüm Treaty because of “Treaty's provisions on immigration and some other matters.” However, the Labour Government could have vetoed the Council Decision incorporating the Prum Treaty but it didn’t.


The Council Decision is aiming at introducing “procedures for promoting fast, efficient and inexpensive means of data exchange.” Therefore, a "hit/no hit" system is being created to allow Member States to access data from other Member States' national DNA analysis files and automatic dactyloscopic identification systems. Therefore, under the Decision, for instances Britain has to ensure the availability of reference data from its national DNA analysis files to the law enforcement authorities of the other EU Member States. The reference data shall not contain any information from which the data subject can be directly identified. Hence, for the investigation of criminal offences Member States law enforcement officers have automatic access to reference data in their DNA analysis files DNA, fingerprint identification systems, they have the power to conduct automated searches by comparing DNA and dactyloscopic data (fingerprints). Searches must be conducted in compliance with the national law of the requesting Member State. However, the identity of a person can only be revealed if there is a match between DNA profiles or dactyloscopic data.

Furthermore, the law enforcement authorities have access to national vehicle registration with the power to conducted automated searches on data related to owners and operators as well as vehicles. However, only in possession of the full chassis or registration number.

In order to prevent criminal offences and to maintain public order and security for major events with a cross-border dimension such as big sport events and Council summits, Member States able to share personal data if there are circumstances given reason to believe that the data subjects will perpetrate a crime at the event or creates a threat to security. In so far as providing such data is permitted under the national law of the supplying Member State. The Decision also foresees, under certain conditions, supplying of information in order to prevent terrorist offences.

The Council Decision also allows closer cooperation between police authorities by means of joint security operations and cross border interventions. Therefore, each Member State might, as a host State, in observance of its national law and with the seconding Member State’s permission, confer executive powers on officers from the seconding Member States, involved in join operations. Hence, it is possible police officers from a Member State entering in the territory of another Member State and participate in a joint operation carrying their usual service weapons and wearing their own national uniforms with a distinctive sign. Obviously, such provisions raise sovereignty concerns.

The Council Decision on the Prum Treaty has been criticized, by Peter Hustinx, European Data Protection Supervisor, for breaching privacy rights of European citizens. There is no harmonised approach within the EU on collection and retention of data. Therefore, Member States collect DNA and fingerprints on different grounds and the retaining period of these data is also different among the Member States. Thus, it should be borne in mind, that UK keeps DNA and fingerprints for all crimes while in the majority of the EU’s Member States they are kept just for serious crimes. It should also be recalled that UK DNA database is the Europe largest database, hence the UK is very likely to exchange DNA date more broadly than other Member States.

Member States are, therefore, required to implement the provisions on information exchange of the "Prüm Decisions" (Council Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly terrorism and cross-border crime and Council Decision 2008/616/JHA on the implementation of the Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly terrorism and cross-border crime).

Member States were required to take all the necessary measures to comply with the Decision’s provisions relating to information exchange on major events and in order to prevent terrorist offences as well as on joint operations and assistance in connection with mass gatherings, disaster and serious accidents by 26 August 2009.

Member States will have to comply with the provisions of the "Prüm Decisions" relating to information exchange concern automated searching of DNA profiles, dactyloscopic data and vehicle registration data (VRD) by 26 August 2011.

The former Government has not conduct a proper impact assessment before allowing the Prüm Decisions to be incorporated into EU law. According to a provisional estimative the start up costs for the exchange of DNA, fingerprint and vehicle registration data would be around £31 million. However, no clear figures have been provide yet on the annual cost of running the Prüm system. According to the House of Lords European Union Committee “the cost to the United Kingdom of supplying information to other States may be one of the highest, given the size of its DNA database.” The UK taxpayers are likely to face a huge bill for the implementation and operation of the Prum systems.

The Coalition Government now has to allocated human and financial resources for the implementation and the running of the Prüm systems, draft manuals for the use of the new legal instruments, training staff and to adapt the national databases and workflows in line with the Prüm requirements. The UK has not notified yet the Council and the Commission of the legal implementation of the Prüm Decisions.

According to the Justice and Home Affairs Council’s Conclusions from 8 November, the majority of member states will implement the "Prum Decisions" by the deadline required. The Council noted that some member states due to IT and financial problems, logistic, legal and political decision making problems might not be able to meet the 26 August 2011 deadline, consequentely the Council agreed “that the member states concerned should intensify their efforts and that those member states which are already operational should increase their efforts to provide technical assistance.

It is important to recall that “Police and Judicial Cooperation in Criminal Matters” (third pillar measures) used to be subject to unanimity and therefore the UK had the right of veto. The Lisbon Treaty has abolished the Maastricht Treaty pillar structure and moved Police and Judicial Cooperation in Criminal Matters” to the Treaty on the Functioning of the European Union. The Lisbon Treaty has several major implications for police and judicial cooperation in criminal matters as this area is no longer intergovernmental but is subjected to the Community method. The co-decision and qualified majority voting have been extended to this area and the ECJ will have full jurisdiction.

The UK has an opt out for all matters of the new Title IV Area of Freedom, Security and Justice of the TFEU, but it will lose protection every time it decides to opt in, transferring jurisdiction from the UK courts to the ECJ jurisdiction.

There is a Protocol annexed to the Treaties on transitional provisions which covers the Court’s jurisdiction and Commission competence overt third pillar matters before the entry into force of the Lisbon Treaty, for instances, the Prum Decisions abovementioned.

According to Article 10 of this Protocol the present Court limited jurisdiction over police and judicial cooperation in criminal matters is retained for existing measures for five years after the Lisbon Treaty enters into force. Under present Article 35 TEU, the ECJ has jurisdiction to give preliminary rulings on interpretation and validity of framework decisions, decisions and conventions, however only to the courts of a Member State which has expressly accepted such jurisdiction. The UK has not accepted the jurisdiction of the Court to give preliminary rulings on such matters.

The UK will be able to keep for five years that its Courts cannot send references over interpretation or validity of existing third pillar measures. Moreover, the Commission will not have powers to initiate infringement procedures against Member States concerning the implementation of these matters in their national law, for a five years period. During the five years period the Court will have full jurisdiction, interpretation of measures over an existing act which is amended. The UK has an opt out over amended acts.

There is a Declaration on Article 10 of the Protocol on transitional provisions which states “The Conference invites the European Parliament, the Council and the Commission, within their respective powers, to seek to adopt, in appropriate cases and as far as possible within the five-year period referred to in Article 10(3) of the Protocol on transitional provisions, legal acts amending or replacing the acts referred to in Article 10(1) of that Protocol.” However, not all the third pillar measures will be amended replace or repeal by the end of the transitional period.

At the end of the transitional period, any Third Pillar measures which have not been transposed will be subject to ECJ jurisdiction. The UK may notify the Council, (at the latest 6 months before the expiring of the transitional period) that it does not accept the Commission and ECJ’s powers over existing EU measures which have not been amended under the Lisbon Treaty. However, in this case, all third pillar legislation which has not been amended will cease to apply to the UK as from the date of expiry of the transitional period. The status quo will not be retained if the UK decides not participate in an amended measure.

The Council, acting by QMV, on a proposal from the Commission, may determine “the necessary consequential and transitional arrangements” but the UK is excluded from the adoption of such decision. Moreover, the Council acting by QMV “may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts.” The UK may, at any time, notify the Council of its wish to participate in acts which have ceased to apply to it meaning, to participate in acts from which it was excluded. However, in that case, it will have to accept the Court’s full jurisdiction and the Commission enforcement powers.

The Provisions of the Schengen Protocol or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice shall apply which, in fact, provide tougher conditions to the UK. The re-participation of the UK in those matters is subject to the approval of the Council but it should be mentioned that according to Article 10 (5) “the Union institutions and the United Kingdom shall seek to re-establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence.

It is important to clarify that the European Commission is allowed to launch infringement procedures against the member states as regards legislation adopted after the Lisbon Treaty has entered into force likewise the ECJ has full jurisdiction as regards legislation adopted before the Lisbon treaty entry into force the Court has full jurisdiction if such acts are amended during the five years transition period.  The UK is not subject to the ECJ jurisdiction as regards existing measures on police and judicial cooperation for a five years period. In 2014 the UK will have to decide whether it accepts the Court’s jurisdiction on such measures or opts out entirely from them. During the five years period the Court will have full jurisdiction, interpretation of measures over an existing act which is amended. It is essential that the Government opt outs of the measures entirely.

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