The Council
welcomes the spirit of cooperation which prevailed with the European
Parliament during the negotiations. The text of the common position reflects
a compromise reached during the discussions between the European Parliament,
the Commission and the Council and can be summarised
as follows:
- fingerprinting
age: the proposal of the Commission provided
that for the purpose of visa applications, fingerprints should be taken
from children from the age of six years. However, the European
Parliament did not agree with this approach, and, by way of compromise,
the text provides as a first step that fingerprints are taken only from
the age of twelve years. The Commission shall present, three
years after the VIS is brought into operation and every four years
thereafter, a report on the implementation of the Regulation. The first
report shall address the issue of the sufficient reliability for identification
and verification purposes of fingerprints of children below the age of 12
years, and in particular how fingerprints evolve with age, based on the
results of a study carried out under the responsibility of the
Commission;
- cooperation
with ESP ("outsourcing"): the aim of the proposal from the
Commission is in particular to create a common legal framework for
"outsourcing", a form of organisation already practiced by several
Member States. The Commission has indicated in its proposal that a
common legal framework is necessary taking into account in particular
data protection requirements. "Outsourcing" is not proposed as
a general solution but as a possibility which may be used in certain
diplomatic missions or consular posts depending on the local situation.
An important benefit of setting up a legal framework is that it becomes
clear that the Member States remain the "controller" and the
ESP the "processor" in the meaning of Article 16 and 17 of
Directive 95/46/EC on data protection. In this sense, the contractual
terms with the ESP must contain the obligations for the processing of
data in the sense of the directive. The provisions of the common position
provide that only in particular circumstances or for reasons
relating to the local situation (high number of applicants or
territorial coverage of the third country concerned) and only where the
other forms of cooperation prove not to be appropriate, a Member State
may, as a last resort, cooperate with an ESP;
- additional
fees (service fees): the Commission states
in the explanatory memorandum to its proposals that, when using the
possibility of outsourcing, the total amount of fees charged to the
applicant for processing the visa application shall not be higher than
the normal visa fee (the fee set out in Annex 12 to the CCI). Thus, no
additional costs could be charged to the applicant. This approach was
supported by the European Parliament in its opinion. However, the
Council was not able to agree to that. By way of compromise, the common
position provides that the ESP may charge a service fee in addition to
the normal visa fee, but that this service fee shall not exceed half
of the amount of the normal visa fee, irrespective of the possible
exemptions from the visa fee;
- transfer
of data: in order to ensure that all
relevant data protection provisions are respected, the proposal from the
Commission provides for data protection and security rules when a transfer
of data occurs between two Member States in the framework of
"limited representation" (see Article 1(1) of the proposal)
and between a Member State and an ESP in the case of outsourcing.
Therefore, Member States have to ensure that the contract to be concluded
with the ESP includes relevant data protection clauses, the implementation
of which shall be supervised by consular officers. Member States in this
regard remain liable for the compliance with data protection rules also
in case of outsourcing. Based on concerns expressed by the European
Parliament, the common position reinforces the provisions relating to
the safety of the transfer of data between, on the one hand, the
representing Member State and the represented Member State and, on the other hand, between the Member State and the ESP concerned.
It should be
noted that this text was the subject of discussion between the institutions,
the Chair of the LIBE committee of the European Parliament has since in a
letter to the Chairman of Coreper indicated that if the compromise text is
transmitted to the European Parliament as a common position of the Council,
he will recommend to the Members of the LIBE and subsequently to the plenary
that the common position be accepted without amendments in Parliament's
second reading, subject to verification by the lawyer linguists of both
institutions.