Legal provisions of COM(2012)81 - Migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (recast)

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dossier COM(2012)81 - Migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) ...
document COM(2012)81 EN
date December 20, 2012

Contents

Article 1 - General purpose

1. The Schengen Information System (SIS), set up pursuant to the provisions of Title IV of the Schengen Convention (SIS 1+), shall be replaced by a new system, the Schengen Information System II (SIS II), the establishment, operation and use of which is regulated by Decision 2007/533/JHA.

2. In accordance with the procedures and the division of tasks set out in this Regulation, SIS II shall be developed by the Commission and the Member States as a single integrated system and shall be prepared for operations.

3. The development of SIS II may be achieved by implementing an alternative technical scenario characterised by its own technical specifications.

Article 2 - Definitions

For the purposes of this Regulation, the following definitions shall apply:

(a)‘Central SIS II’ means the technical support function of SIS II containing a database, the ‘SIS II database’, and a uniform national interface (NI-SIS);

(b)‘C.SIS’ means the technical support function of SIS 1+, containing the reference database for SIS 1+ and the uniform national interface (N.COM);

(c)‘N.SIS’ means the national system of SIS 1+, consisting of the national data systems which communicate with C.SIS;

(d)‘N.SIS II’ means the national system of SIS II, consisting of the national data systems which communicate with Central SIS II;

(e)‘converter’ means a technical tool to allow consistent and reliable communication between C.SIS and Central SIS II, ensuring the functionalities provided for in Article 10(3) and allowing the conversion and synchronisation of data between C.SIS and Central SIS II;

(f)‘comprehensive test’ means the test referred to in Article 71(3)(c) of Decision 2007/533/JHA;

(g)‘test on supplementary information’ means functional tests between the SIRENE Bureaux.

Article 3 - Subject matter and scope

This Regulation defines the tasks and responsibilities of the Commission and the Member States participating in SIS 1+ with respect to the following tasks:

(a)the maintenance and continuation of the development of SIS II;

(b)a comprehensive test of SIS II;

(c)a test on supplementary information;

(d)the continuation of the development and testing of a converter;

(e)the establishment and testing of an interim migration architecture;

(f)the migration from SIS 1+ to SIS II.

Article 4 - Technical components of the interim migration architecture

In order to ensure the migration from SIS 1+ to SIS II, the following components shall be made available to the extent necessary:

(a)the C.SIS and the connection to the converter;

(b)the communication infrastructure for SIS 1+ allowing the C.SIS to communicate with the N.SIS;

(c)the N.SIS;

(d)Central SIS II, NI-SIS and the communication infrastructure for SIS II allowing the Central SIS II to communicate with N.SIS II and the converter;

(e)the N.SIS II;

(f)the converter.

Article 5 - Main responsibilities in the development of SIS II

1. The Commission shall continue to develop the Central SIS II, the communication infrastructure and the converter.

2. France shall make available and operate C.SIS in accordance with the provisions of the Schengen Convention.

3. The Member States shall continue to develop N.SIS II.

4. The Member States participating in SIS 1+ shall maintain N.SIS in accordance with the provisions of the Schengen Convention.

5. The Member States participating in SIS 1+ shall make available and operate the communication infrastructure for SIS 1+.

6. The Commission shall coordinate the activities and provide the necessary support for the implementation of the tasks and responsibilities referred to in paragraphs 1 to 3.

Article 6 - Continuing development

Implementing acts necessary to continue the development of SIS II as referred to in Article 5(1), in particular the measures necessary for the correction of errors, shall be adopted in accordance with the examination procedure defined in Article 17(2).

Implementing acts necessary to continue the development of SIS II as referred to in Article 5(3), in so far as that concerns the uniform national interface ensuring the compatibility of N.SIS II with Central SIS II, shall be adopted in accordance with the examination procedure defined in Article 17(2).

Article 7 - Main activities

1. The Commission together with Member States participating in SIS 1+ shall conduct a comprehensive test.

2. An interim migration architecture shall be set up and a test of that architecture shall be performed by the Commission together with France and the other Member States participating in SIS 1+.

3. The Commission and the Member States participating in SIS 1+ shall perform the migration from SIS 1+ to SIS II.

4. The Member States participating in SIS 1+ shall perform a test on the exchange of supplementary information.

5. The Commission shall provide the necessary support at Central SIS II level for the activities referred to in paragraphs 1 to 4.

6. The activities referred to in paragraphs 1 to 3 shall be coordinated by the Commission and the Member States participating in SIS 1+ acting within the Council.

Article 8 - Comprehensive test

1. The comprehensive test shall not start before the Commission has declared that it considers that the level of success of the tests referred to in Article 1 of Decision 2008/173/JHA is sufficient to begin such a test.

2. A comprehensive test aiming at confirming, in particular, the completion by the Commission and the Member States participating in SIS 1+ of the necessary technical arrangements to process SIS II data and the demonstration that the level of performance of SIS II is at least equivalent to that achieved with SIS 1+ shall be performed.

3. The comprehensive test shall be executed by the Member States participating in SIS 1+ for the N.SIS II and by the Commission for the Central SIS II.

4. The comprehensive test shall follow a detailed schedule defined by the Member States participating in SIS 1+ acting within the Council in cooperation with the Commission.

5. The comprehensive test shall be based on the technical specifications defined by the Member States participating in SIS 1+ acting within the Council in cooperation with the Commission.

6. The Commission and the Member States participating in SIS 1+ acting within the Council shall define the criteria for determining whether the necessary technical arrangements to process SIS II data are completed and the level of performance of SIS II is at least equivalent to that achieved with SIS 1+.

7. The test results shall be analysed using the criteria referred to in paragraph 6 of this Article, by the Commission and the Member States participating in SIS 1+ acting within the Council. The test results shall be validated in accordance with Article 71(3)(c) of Decision 2007/533/JHA.

8. Member States not participating in SIS 1+ may participate in the comprehensive test. Their results shall not affect the overall validation of that test.

Article 9 - Test on supplementary information

1. The Member States participating in SIS 1+ shall conduct functional SIRENE tests.

2. The Commission shall make available Central SIS II and its communication infrastructure during the execution of the test on supplementary information.

3. The test on supplementary information shall follow a detailed schedule defined by the Member States participating in SIS 1+ acting within the Council.

4. The test on supplementary information shall be based on the technical specifications defined by the Member States participating in SIS 1+ acting within the Council.

5. The test results shall be analysed by the Member States participating in SIS 1+ acting within the Council. The Member States participating in SIS 1+ shall ensure that the global test result is transmitted to the European Parliament.

6. Member States not participating in SIS 1+ may participate in the test on supplementary information. Their results shall not affect the overall validation of that test.

Article 10 - Interim migration architecture

1. An interim migration architecture shall be set up, consisting of the components as set out in points (a) to (f) of Article 4. The converter connects Central SIS II and C.SIS for a transitional period. The N.SIS are connected to C.SIS, the N.SIS II to Central SIS II.

2. The Commission shall provide a converter, the Central SIS II and its communication infrastructure as part of the interim migration architecture.

3. To the extent necessary, the converter shall convert data in two directions between the C.SIS and Central SIS II and keep C.SIS and Central SIS II synchronised.

4. The Commission shall test the communication between Central SIS II and the converter.

5. France shall test the communication between C.SIS and the converter.

6. The Commission and France shall test the communication between Central SIS II and C.SIS via the converter.

7. France, together with the Commission, shall connect C.SIS via the converter to Central SIS II.

8. The Commission, together with France and the other Member States participating in SIS 1+, shall test the interim migration architecture as a whole in accordance with a test plan provided by the Commission.

9. France shall make available data for test purpose, if necessary.

Article 11 - Migration from SIS 1+ to SIS II

1. For the migration from C.SIS to Central SIS II, France shall make available the SIS 1+ database and the Commission shall introduce the SIS 1+ database into Central SIS II. Data of SIS 1+ database referred to in Article 113(2) of the Schengen Convention shall not be introduced into Central SIS II.

2. The Member States participating in SIS 1+ shall migrate from N.SIS to N.SIS II using the interim migration architecture, with the support of France and of the Commission.

3. The migration of the national system from SIS 1+ to SIS II shall start with the data loading of N.SIS II, when that N.SIS II is to contain a data file, the national copy, containing a complete or partial copy of the SIS II database.

The data loading as described in the first subparagraph shall be followed by a switchover from N.SIS to N.SIS II for each Member State. The switchover shall start on the date to be fixed by the Council, acting in accordance with Article 71(2) of Decision 2007/533/JHA, after the conditions of Article 71(3) of that Decision are met. The switchover from N.SIS to N.SIS II for all Member States shall be completed within no more than 12 hours. The national applications for the exchange of supplementary information shall migrate to s-TESTA network in parallel with the switchover.

The migration shall be terminated following an intensive monitoring period. That intensive monitoring period shall be limited in time, and shall not exceed 30 days from the date of the switchover of the first Member State.

The migration shall follow a detailed schedule provided by the Commission and the Member States participating in SIS 1+ acting within the Council.

4. The Commission shall assist in coordination and support of the common activities during the migration.

Article 12 - Substantive legal framework

For the data loading phase of the migration referred to in the first subparagraph of Article 11(3), the provisions of Title IV of the Schengen Convention shall continue to apply to the SIS 1+.

As from the switchover of the first Member State from N.SIS to N.SIS II, as referred to in the second subparagraph of Article 11(3) of this Regulation, Decision 2007/533/JHA shall apply.

This Regulation shall continue to apply to the interim migration architecture during the entire migration as referred to in Article 11(3).

Article 13 - Cooperation

1. The Member States and the Commission shall cooperate for the execution of all the activities covered by this Regulation in accordance with their respective responsibilities.

2. The Commission shall in particular provide the necessary support at Central SIS II level for the testing of and migration to N.SIS II.

3. Member States shall in particular provide the necessary support at N.SIS II level for the testing of the interim migration architecture.

Article 14

Replacement of the national sections by N.SIS II

1. The N.SIS II may replace the national section referred to in Article 92 of the Schengen Convention, in which case the Member States need not hold a national data file.

2. If any of the Member States replace their national section by N.SIS II, the compulsory functions of the technical support function towards that national section as referred to in Article 92(2) and (3) of the Schengen Convention shall become compulsory functions towards Central SIS II, without prejudice to the obligations referred to in Article 5(1) and Article 10(1), (2) and (3) of this Regulation.

Article 15 - Processing of data and keeping of records in Central SIS II

1. The Central SIS II database shall be available for the purpose of carrying out automated searches in the territory of each Member State.

2. Central SIS II shall provide the services necessary for the entry and processing of SIS 1+ data, the online update of N.SIS II national copies, the synchronisation of and consistency between N.SIS II national copies and the Central SIS II database and provide operations for initialisation and restoration of N.SIS II national copies.

3. Without prejudice to the relevant provisions of Title IV of the Schengen Convention, the Commission shall ensure that every access to and all exchanges of personal data within Central SIS II are recorded for the purposes of checking whether or not the search is lawful, monitoring the lawfulness of data processing and ensuring the proper functioning of Central SIS II and of national systems, data integrity and security.

4. The records shall show, in particular, the date and time of the data transmitted, the data used to perform searches, the reference to the data transmitted and the name of the competent authority responsible for processing the data.

5. The records may only be used for the purposes referred to in paragraph 3 and shall be deleted at the earliest one year, and at the latest three years after their creation.

6. Records may be kept longer if they are required for monitoring procedures that are already under way.

7. The competent authorities referred to in Article 60(1) and Article 61(1) of Decision 2007/533/JHA in charge of checking whether or not a search is lawful, monitoring the lawfulness of data processing, self-monitoring and ensuring the proper functioning of Central SIS II, data integrity and security, shall, in accordance with the provisions of Decision 2007/533/JHA, have access, within the limits of their competence and at their request, to those records for the purpose of fulfilling their tasks.

Article 16 - Costs

1. The costs arising from migration, the comprehensive test, the test on supplementary information, maintenance and development measures at Central SIS II level or concerning the communication infrastructure shall be borne by the general budget of the Union.

2. The costs arising from installation, migration, testing, maintenance and development of the national systems as well as from the tasks to be performed by the national systems under this Regulation shall be borne by each Member State concerned as it is provided for by Article 119(2) of the Schengen Convention.

3. Complementing the financial assistance provided by the External Borders Fund, the Union may provide a financial contribution to the expenditures of the Member States for their migration and migration related testing activities performed under Articles 8, 9, 10(8) and 11 of this Regulation to cover specific and well-defined activities.

The Union contribution related to the activities referred to in the first subparagraph shall take the form of grants as provided for by Title VI of the Financial Regulation. That contribution shall not exceed 75 % of the eligible expenditures of each Member State and it shall not exceed EUR 750 000 per Member State. The Commission shall appraise, decide and administer the co-financing operation in accordance with the budgetary and other procedures, in particularly those laid down in the Financial Regulation.

Each Member State requesting such a financial contribution shall prepare a financial forecast indicating a breakdown of the operational as well as administrative costs of the activities related to the testing and migration. Where Member States use Union funds for their expenditures, those expenditures shall be reasonable and comply with the principles of sound financial management, in particular, value for money and cost-effectiveness. Member States shall present a report to the Commission on their use of the Union contributionby not later than six months following the date of switchover fixed by the Council, acting in accordance with Article 71(2) of Decision 2007/533/JHA.

Where the Union contribution is not implemented or is implemented inadequately, partially or late, the Union may reduce, withhold or terminate its financial contribution. Where the Member States do not contribute or contribute only partially or late to the financing of activities referred to in the first subparagraph, the Union may reduce its financial contribution.

4. The Court of Auditors shall be entitled to carry out the appropriate audits in liaison with national audit bodies or with the competent national departments. The Commission shall be empowered to carry out all the checks and inspections necessary to ensure the proper management of the Union funds and to protect the Union’s financial interest against any fraud or irregularity. To this end, the Member States shall make available all the relevant documents and records to the Commission and the Court of Auditors.

5. The costs of installing and operating the technical support function referred to in Article 92(3) of the Schengen Convention, including the cost of lines connecting the national sections of SIS 1+ to the technical support function, and of activities performed in conjunction with tasks conferred upon France for the purpose of this Regulation shall be borne jointly by the Member States as it is provided for by Article 119(1) of the Schengen Convention.

Article 17 - Committee procedure

1. The Commission shall be assisted by the Committee established by Article 67 of Decision 2007/533/JHA (the ‘Committee’). The Committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 applies.

3. Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.

Article 18 - Global Programme Management Board

1. Without prejudice to the respective responsibilities and activities of the Commission, the Committee, France and the Member States participating in SIS 1+, a group of technical experts, called the Global Programme Management Board (the ‘Board’), is hereby set up. The Board shall be an advisory body for assistance to the central SIS II project and shall facilitate consistency between central and national SIS II projects. The Board shall have no decision-making power nor any mandate to represent the Commission or Member States.

2. The Board shall be composed of a maximum of 10 members, meeting on a regular basis. A maximum of 8 experts and an equal number of alternates shall be designated by the Member States participating in SIS 1+ acting within the Council. A maximum of two experts and two alternates shall be designated by the Director-General of the responsible Directorate-General of the Commission from among the Commission officials.

The meetings of the Board may be attended by other experts of Member States and Commission officials directly involved in the development of the SIS II projects, at the expense of their respective administration or institution.

The Board may invite other experts to participate in the Board’s meetings as defined in the terms of reference referred to in paragraph 5, at the expense of their respective administration, institution or company.

3. Experts designated by the Member States acting as Presidency and incoming Presidency shall always be invited to participate in the Board’s meetings.

4. The Board’s secretariat shall be ensured by the Commission.

5. The Board shall draw up its own terms of reference which shall include in particular procedures on:

—alternative chairmanship between the Commission and the Presidency,

—meeting venues,

—preparation of meetings,

—admission of other experts,

—communication plan ensuring full information to non-participating Member States.

The terms of reference shall take effect after a favourable opinion has been given by the Director-General of the responsible Directorate-General of the Commission and by Member States participating in SIS 1+ meeting within the framework of the Committee.

6. The Board shall regularly submit written reports about the progress of the project including advice which has been given, and its justification, to the Committee or, as appropriate, to the relevant Council preparatory bodies.

7. Without prejudice to Article 16(2), the administrative costs and travel expenses arising from the activities of the Board shall be borne by the general budget of the Union, to the extent that they are not reimbursed from other sources. As regards travel expenses of the members in the Board designated by the Member States participating in SIS 1+ acting within the Council and experts invited pursuant to paragraph 3 of this Article which arise in connection with the work of the Board, the Commission’s ‘Rules on the reimbursement of expenses incurred by people from outside the Commission invited to attend meetings in an expert capacity’ shall apply.

Article 19 - Reporting

The Commission shall submit by the end of every six month period, and for the first time by the end of the first six month period of 2009, a progress report to the European Parliament and the Council concerning the development of SIS II and the migration from SIS 1+ to SIS II. The Commission shall inform the European Parliament of the results of the tests referred to in Articles 8 and 10.

Article 20 - Repeal

Decision 2008/839/JHA is repealed.

References to the repealed Decision shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in Annex II.

Article 21 - Entry into force and applicability

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

It shall expire upon the termination of the migration as referred to in the third subparagraph of Article 11(3). If that date cannot be complied with due to outstanding technical difficulties related to the migration process, it shall expire on a date to be fixed by the Council, acting in accordance with Article 71(2) of Decision 2007/533/JHA.

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.