Legal provisions of COM(2020)791 - Amendment of regulation on the Schengen Information System (SIS) on police cooperation and judicial cooperation in criminal matters as regards the entry of alerts by Europol

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dossier COM(2020)791 - Amendment of regulation on the Schengen Information System (SIS) on police cooperation and judicial cooperation in criminal ...
document COM(2020)791 EN
date July  6, 2022


Article 1

Regulation (EU) 2018/1862 is amended as follows:

(1)Article 3 is amended as follows:

(a)point 8 is replaced by the following:

‘(8)“flag” means a suspension of the validity of an alert at the national level that may be added to alerts for arrest, alerts on missing and vulnerable persons, alerts for discreet, inquiry and specific checks and to information alerts;’;

(b)the following point is added:

‘(22)“third-country national” means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU with the exception of persons who are beneficiaries of the right of free movement within the Union in accordance with Directive 2004/38/EC or in accordance with an agreement between the Union or the Union and its Member States on the one hand, and a third country on the other hand;’;

(2)Article 20 is amended as follows:

(a)paragraph 1 is replaced by the following:

‘1.   Without prejudice to Article 8(1) or to the provisions of this Regulation providing for the storage of additional data, SIS shall contain only those categories of data which are supplied by each Member State, as required for the purposes laid down in Articles 26, 32, 34, 36, 37a, 38 and 40.’;

(b)in paragraph 2, point (b) is replaced by the following:

‘(b)information on objects referred to in Articles 26, 32, 34, 36, 37a, and 38.’;

(3)in Article 24, paragraph 1 is replaced by the following:

‘1.   Where a Member State considers that to give effect to an alert entered in accordance with Article 26, 32, 36 or 37a is incompatible with its national law, its international obligations or essential national interests, it may require that a flag be added to the alert to the effect that the action to be taken on the basis of the alert will not be taken in its territory. The flag shall be added by the SIRENE Bureau of the issuing Member State.’;

(4)the following Chapter is inserted:

‘CHAPTER IXa

Information alerts on third-country nationals in the interest of the Union

Article 37a

Objectives and conditions for entering alerts

1. Member States may enter information alerts on third-country nationals in the interest of the Union (‘information alerts’) into SIS, as referred to in Article 4(1), point (t), of Regulation (EU) 2016/794, upon a proposal by Europol to enter an information alert on the basis of information received from the authorities of third countries or international organisations. Europol shall notify its Data Protection Officer where it makes such a proposal.

2. Information alerts shall be entered into SIS for the purpose of informing end-users carrying out a search in SIS of the suspected involvement of third-country nationals in terrorist offences or in other serious crime listed in Annex I to Regulation (EU) 2016/794, with a view to obtaining the information set out in Article 37b of this Regulation.

3. Europol shall propose that information alerts be entered into SIS only in the following cases and provided that it has verified that the conditions set out in paragraph 4 are fulfilled:

(a)where there is a factual indication that a person intends to commit or is committing any of the offences referred to in paragraph 2;

(b)where an overall assessment of a person, in particular on the basis of past criminal offences, gives reason to believe that that person may commit an offence referred to in paragraph 2.

4. Europol shall propose that information alerts be entered into SIS only after it has established that the information alert is necessary and justified, by ensuring that both of the following conditions are fulfilled:

(a)an analysis of the information provided in accordance with Article 17(1)(b) of Regulation (EU) 2016/794 confirmed the reliability of the source of information as well as the accuracy of the information on the person concerned, permitting Europol to determine, where necessary, after having carried out further exchanges of information with the data provider in accordance with Article 25 of Regulation (EU) 2016/794, that at least one of the cases set out in paragraph 3 applies;

(b)a search in SIS, carried out in accordance with Article 48 of this Regulation, did not disclose the existence of an alert on the person concerned.

5. Europol shall make available the information it holds on the particular case and the results of the assessment referred to in paragraphs 3 and 4 to the Member States and propose that one or more Member States enter an information alert into SIS.

Where Europol has relevant additional or modified data in relation to its proposal to enter an information alert, or where Europol has evidence suggesting that the data included in its proposal to enter an information alert are factually incorrect or have been unlawfully stored, it shall inform the Member States without delay.

6. The proposal by Europol to enter information alerts shall be subject to the verification and analysis by the Member State to which Europol proposed the entry of such alerts. Such information alerts shall be entered into SIS at the discretion of that Member State.

7. Where information alerts are entered into SIS in accordance with this Article, the issuing Member State shall inform the other Member States and Europol about that entry through the exchange of supplementary information.

8. Where Member States decide not to enter the information alert upon the proposal by Europol and where the respective conditions are met, they may decide to enter another type of alert on the same person.

9. Member States shall inform the other Member States and Europol on the outcome of the verification and analysis of the data in Europol’s proposal, as referred to in paragraph 6, and on whether data has been entered into SIS, within a period of 12 months after Europol has proposed the entry of an information alert.

For the purposes of the first subparagraph, Member States shall put in place a periodic reporting mechanism.

10. Where Europol has relevant additional or modified data in relation to an information alert, it shall transmit those data without delay, through the exchange of supplementary information, to the issuing Member State to enable the latter to complete, modify or delete the information alert.

11. Where Europol has evidence suggesting that data entered into SIS in accordance with paragraph 1 are factually incorrect or have been unlawfully stored, it shall, through the exchange of supplementary information, inform the issuing Member State as soon as possible and not later than two working days after that evidence has come to its attention. The issuing Member State shall check the information and, if necessary, correct or delete the data in question without delay.

12. Where there is a clear indication that the objects referred to in Article 38(2), points (a), (b), (c), (e), (g), (h), (j) and (k), or non-cash means of payment are connected with a person who is the subject of an information alert pursuant to paragraph 1 of this Article, alerts on those objects may be entered in order to locate the person. In such cases, the information alert and the alert on the object shall be linked in accordance with Article 63.

13. Member States shall put in place the necessary procedures for entering, updating and deleting information alerts in SIS in accordance with this Regulation.

14. Europol shall keep records relating to its proposals for entering information alerts into SIS under this Article and provide reports to Member States every six months on the information alerts entered into SIS and on the cases where Member States did not enter the information alerts.

15. The Commission shall adopt implementing acts to lay down and develop rules necessary for entering, updating, deleting and searching the data referred to in paragraph 11 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 76(2).

Article 37b

Execution of the action based on an information alert

1. In the event of a hit on an information alert, the executing Member State shall collect and communicate to the issuing Member State all or some of the following information:

(a)the fact that the person who is the subject of an information alert has been located;

(b)the place, time and reason for the check;

(c)the route of the journey and destination;

(d)the persons accompanying the subject of the information alert who can reasonably be expected to be associated with the subject of the information alert;

(e)objects carried, including travel documents;

(f)the circumstances in which the person was located.

2. The executing Member State shall communicate the information referred to in paragraph 1 to the issuing Member State through the exchange of supplementary information.

3. Paragraph 1 of this Article shall apply also where the person who is the subject of an information alert is located in the territory of the Member State that entered into SIS the information alert for the purpose of informing Europol in accordance with Article 48(8), point (b).

4. The executing Member State shall ensure the discreet collection of as much information described in paragraph 1 as possible during routine activities carried out by its national competent authorities. The collection of such information shall not jeopardise the discreet nature of the checks and the subject of the information alert shall in no way be made aware of the existence of such alert.’;

(5)in Article 43, paragraph 3 is replaced by the following:

‘3.   Dactyloscopic data in SIS in relation to alerts entered in accordance with Articles 26, 32, 36, 37a, and 40 may also be searched using complete or incomplete sets of fingerprints or palm prints discovered at the scenes of serious crimes or terrorist offences under investigation, where it can be established to a high degree of probability that those sets of prints belong to a perpetrator of the offence and provided that the search is carried out simultaneously in the Member State’s relevant national fingerprints databases.’;

(6)Article 48 is amended as follows:

(a)paragraph 8 is replaced by the following:

‘8.   Member States shall inform Europol through the exchange of supplementary information of:

(a)any hit on information alerts entered into SIS under Article 37a;

(b)when the person who is the subject of the information alert has been located in the territory of the issuing Member State in accordance with Article 37b(3); and

(c)any hit on alerts related to terrorist offences which are not entered into SIS under Article 37a.

Member States may exceptionally not inform Europol of hits on alerts under point (c) of this paragraph if doing so would jeopardise current investigations, the safety of an individual or be contrary to essential interests of the security of the issuing Member State.’;

(b)paragraph 9 is deleted;

(7)Article 53 is amended as follows:

(a)paragraph 4 is replaced by the following:

‘4.   A Member State may enter an alert on a person for the purposes of Article 32(1), points (c), (d) and (e), of Article 36, and of Article 37a, for a period of one year. The issuing Member State shall review the need to retain the alert within that one-year period.’;

(b)paragraphs 6 and 7 are replaced by the following:

‘6.   Within the review period referred to in paragraphs 2, 3, 4 and 5, the issuing Member State may, following a comprehensive individual assessment, which shall be recorded, decide to retain the alert on a person for longer than the review period, where this proves necessary and proportionate for the purposes for which the alert was entered. In such cases, paragraph 2, 3, 4 and 5 shall also apply to the extension. Any such extension shall be communicated to CS-SIS.

7. Alerts on persons shall be deleted automatically after the review period referred to in paragraphs 2, 3, 4 and 5 of this Article has expired, except where the issuing Member State has informed CS-SIS of an extension pursuant to paragraph 6 of this Article. CS-SIS shall automatically inform the issuing Member State and, for information alerts entered into SIS in accordance with Article 37a, also Europol, of the scheduled deletion of data four months in advance. For information alerts entered into SIS in accordance with Article 37a, Europol shall assist the issuing Member State without delay with its comprehensive individual assessment referred to in paragraph 6 of this Article.’;

(8)in Article 54, paragraph 3 is replaced by the following:

‘3.   Alerts on objects entered in accordance with Articles 26, 32, 34, 36 and 37a shall be reviewed pursuant to Article 53 where they are linked to an alert on a person. Such alerts shall only be kept for as long as the alert on the person is kept.’;

(9)Article 55 is amended as follows:

(a)the following paragraph is inserted:

‘4a.   Information alerts pursuant to Article 37a shall be deleted upon:

(a)the expiry of the alert in accordance with Article 53; or

(b)a decision to delete them by the competent authority of the issuing Member State, including where appropriate upon a proposal by Europol;’;

(b)paragraph 7 is replaced by the following:

‘7.   Where it is linked to an alert on a person, an alert on an object entered in accordance with Articles 26, 32, 34, 36 and 37a shall be deleted when the alert on the person is deleted in accordance with this Article.’;

(10)Article 56 is amended as follows:

(a)paragraph 1 is replaced by the following:

‘1.   The Member States shall only process the data referred to in Article 20 for the purposes laid down for each category of alert referred to in Articles 26, 32, 34, 36, 37a, 38 and 40.’;

(b)paragraph 5 is replaced by the following:

‘5.   With regard to the alerts laid down in Articles 26, 32, 34, 36, 37a, 38 and 40, any processing of information in SIS for purposes other than those for which it was entered into SIS has to be linked with a specific case and justified by the need to prevent an imminent and serious threat to public policy and to public security, on serious grounds of national security or for the purposes of preventing a serious crime. Prior authorisation from the issuing Member State shall be obtained for this purpose.’;

(11)in Article 74, the following paragraph is inserted:

‘5a.   Member States, Europol, and eu-LISA shall provide the Commission with the information necessary to contribute to the evaluation and the reports referred to in Article 68 of Regulation (EU) 2016/794.’;

(12)in Article 79, the following paragraph is added:

‘7.   The Commission shall adopt a decision setting the date from which Member States may start entering, updating and deleting information alerts in SIS in accordance with Article 37a of this Regulation, after verification that the following conditions have been met:

(a)the implementing acts adopted pursuant to this Regulation have been amended to the extent necessary for the application of this Regulation as amended by Regulation (EU) 2022/1190 of the European Parliament and of the Council (*1) ;

(b)Member States and Europol have notified the Commission that they have made the necessary technical and procedural arrangements to process SIS data and exchange supplementary information pursuant to this Regulation as amended by Regulation (EU) 2022/1190;

(c)eu-LISA has notified the Commission of the successful completion of all testing activities with regard to CS-SIS and to the interaction between CS-SIS and N.SIS.

That Commission decision shall be published in the Official Journal of the European Union.

(*1)  Regulation (EU) 2022/1190 of the European Parliament and of the Council of 6 July 2022 amending Regulation (EU) 2018/1862 as regards the entry of information alerts into the Schengen Information System (SIS) on third-country nationals in the interest of the Union (OJ L 185, 12.7.2022, p. 1) .’."

Article 2

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

It shall apply from the date determined in accordance with Article 79(7) of Regulation (EU) 2018/1862 with the exception of Article 1, point 12, of this Regulation which shall apply from 1 August 2022.

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