Explanatory Memorandum to COM(2005)236 - Establishment, operation and use of the second generation Schengen information system (SIS II) - Main contents
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| dossier | COM(2005)236 - Establishment, operation and use of the second generation Schengen information system (SIS II). |
|---|---|
| source | COM(2005)236  |
| date | 31-05-2005 |
General objective
The main objective of this Regulation, together with the Decision on the establishment, operation and use of the second generation of the Schengen Information System (hereinafter referred to as “SIS II”) based on Title VI of the Treaty on the European Union (hereinafter referred to as the “EU Treaty”) is to establish the legal framework that shall govern the SIS II. The availability of the SIS II as a compensatory measure that contributes to maintain a high level of security within an area without internal border controls is crucial so that the new Member States can fully apply the Schengen acquis and that their citizens can benefit from all the advantages of an area of free movement.
In this context, the Council laid down in December 2001 the first foundations for the SIS II by assigning its technical development to the Commission and allocating the necessary financial resources from the Budget of the European Union i. This Regulation together with the aforementioned Decision (hereinafter referred to as the “Decision”) represent now the second legal step, both instruments lay down common provisions on the architecture, financing, responsibilities and general data processing and data protection rules for the SIS II. Apart from these common rules, the Decision contains specific provisions regarding the processing of SIS II data for supporting police and judicial cooperation in criminal matters, while this Regulation rules on the processing of SIS II data supporting the implementation of policies linked to the movement of persons part of the Schengen acquis (e.g. external borders and visa).
This Regulation, as well as the Decision, is largely based on the current provisions on the Schengen Information System (hereinafter referred to as the “SIS”) contained in the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the governments of the States of the Benelux economic union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (hereinafter referred to as the “Schengen Convention”) i taking also into account the Conclusions of the Council and the Resolutions of the European Parliament on SIS II i. In addition, this Regulation also aims to better align the SIS legal framework with EU law and enlarge the use of the SIS II, in particular, in the following areas:
- Alerts issued to third country nationals for the purpose of refusing entry . The current rules on these alerts have been reviewed in order to further harmonise the grounds for issuing such alerts in the SIS II. This is due to the current diverging practices in the Member States for issuing such alerts.
- Additional access to the alerts issued to third country nationals . The Regulation has enlarged the scope of these alerts so that the authorities responsible for asylum and immigration will also gain access to these alerts in certain cases and in accordance with their competencies. These new uses are foreseen in the context of the fight against illegal immigration and more in particular for the return of illegal third country nationals, as well as, for the implementation of provisions of the asylum acquis related to public order and security or determination of the responsibility of the Member State for an asylum application.
- Better data quality and improved identification performance . This Regulation lays down the possibility, subject to the consent of the individual, of entering in the SIS II information on persons whose identity has been abused in order to avoid further inconveniences caused by misidentifications. This Regulation also allows for the processing of biometrics that will result in more accurate identifications and improved quality of the personal data entered in the system.
- Data protection . The Regulation confirms the competence of the European Data Protection Supervisor to monitor the SIS II data processing carried out by the Commission and the application of the Community acquis relevant to this field.
- Inter-governmental origin of the current SIS provisions . These provisions developed in an inter-governmental framework will be replaced by classic European law instruments. The advantage is that the different institutions of the European Union will be this time associated in the adoption and implementation of these new instruments and the legal value of the rules governing the SIS will be reinforced.
- Operational management of the SIS II. This Regulation entrusts the Commission with the operational management of the system. The operational management of the Central Part of the current SIS is carried out by one Member State.
The SIS
The progressive establishment of an area of freedom, security and justice involves creating an area without internal frontiers. To this end, Article 61 of the Treaty establishing the European Community (hereinafter, referred to as “EC Treaty”) requires the adoption of measures aimed at ensuring the free movement of persons, in accordance with Article 14 of the EC Treaty, in conjunction with flanking measures on external border controls, asylum and immigration, as well as measures to prevent and combat crime.
The SIS is a common information system allowing the competent authorities in the Member States to cooperate, by exchanging information for the implementation of various policies required, in order to establish an area without internal border controls. It allows these authorities, through an automatic query procedure, to obtain information related to alerts on persons and objects. The information obtained is used, in particular, for police and judicial cooperation in criminal matters, as well as for controls of persons at the external borders or on national territory and for the issuance of visas and residence permits. The SIS, therefore, is an indispensable component of the Schengen area for applying the Schengen provisions on the movement of persons and in ensuring a high level of security in this area. Consistency with a wide range of policies linked to control of external borders, visa, immigration and also police and judicial cooperation in criminal matters is, therefore, essential.
Articles 92 – 119 of the Schengen Convention are the basic legal provisions governing the SIS. Adopted in an inter-governmental framework, they were incorporated in the institutional and legal framework of the European Union following the entry into force of the Treaty of Amsterdam.
This Regulation is tabled together with a Decision on the establishment, operation and use of the SIS II, based on Title VI of the EU Treaty. A third proposal based on Title V EC Treaty (Transport) regarding the specific issue of access to the SIS II by the authorities and services in the Member States responsible for issuing registration certificates for vehicles will complete these two proposals.
This Regulation and the Decision based on Title VI of the EU Treaty will replace Articles 92-119 of the Schengen Convention and the Decisions and Declarations of the Schengen Executive Committee which are related to the SIS.
In addition, this Regulation will also repeal Regulation (EC) No 378/2004 i of 19 February 2004 on procedures for amending the SIRENE Manual.
The legal instruments regulating the SIS II should be adopted in due time for allowing the necessary preparations to this new system and, in particular, the migration from the current system to the SIS II.
The Schengen acquis , including the SIS, was integrated into the EU framework on 1 May 1999 by the Protocol annexed to the Amsterdam Treaty. The Council defined the parts of the Schengen acquis integrated in the Union framework in its Decision of 20 May 1999. These included the arrangements regarding the SIS i.e. Articles 92 to 119 of the Schengen Convention and the relevant Executive Committee decisions and declarations.
Council Decision 1999/436/EC of 20 May 1999 i determined the legal basis in the Treaties for each of the provisions or decisions which constitute the Schengen acquis. Nevertheless, the Council did not reach a decision on the provisions regarding the SIS. Therefore, the provisions of the Schengen acquis concerning the SIS are “regarded as acts based on Title VI of the Treaty on European Union” on the basis of Article 2 i of the Schengen Protocol. However, under Article 5 i of the Protocol, any new proposal concerning the Schengen acquis must be based on the appropriate legal basis in the Treaties.
In terms of a legal instrument which aims at establishing procedures for the systematic exchange of information between Member States and at defining the architecture of the information system (SIS II) that shall support them, the appropriate legal base is Article 66 of the EC Treaty. The exchange of information is an action of cooperation between Member States’ relevant departments, as laid down in Article 66. The legal base of Article 66 can also cover provisions on what authorities have access to the SIS II; thus, the proposal allows for the access of the authorities responsible for external borders, visas, asylum and immigration.
Article 62 i (a) also constitutes a pertinent legal base for this Regulation in that substantive rules are laid down which affect the policy on the control at external borders; this particularly relates to the nature of the alerts which can be issued and the action to be taken thereon by the authorities responsible for the control of external borders. These authorities must, as part of the checks at the external borders, search the person wishing to enter Community territory against the SIS.
In accordance with the principle of subsidiarity, the objective of the proposed action, namely the sharing of information regarding certain categories of persons and objects through a computerised information system, cannot be achieved by the Member States. Because of the very nature of a common information system and by reason of the scale and impact of the action, it can be better achieved at Community level. The present initiative does not go beyond what is necessary to achieve its objective.
The activities of the Commission are limited to the operational management of the SIS II comprising a central database, national access points and the communication infrastructure connecting both. Member States are competent for the national systems, for their connection to the SIS II and will enable the competent authorities to process SIS II data. The consultation of the data is restricted to competent authorities of each Member State, specified for each of the purposes as defined in this Regulation and limited to the extent the data are required for the performance of the tasks in accordance with these purposes.
The Regulation instrument is warranted in view of the need to apply fully-harmonised rules, in particular in relation to the processing of data in the system. The provisions set out in this Regulation must constitute a set of precise, unconditional provisions that are directly and uniformly applicable in a mandatory way and, by their very nature, require no action by Member States to transpose them into national law.
This Regulation has its legal basis in Title IV of the EC Treaty and constitutes a development of the Schengen acquis. It must, therefore, be proposed and adopted in compliance with the Protocols annexed to the Amsterdam Treaty on the position of the United Kingdom and Ireland and on the position of Denmark and the Protocol integrating the Schengen acquis into the framework of the European Union.
The proposed Regulation develops the provisions of the Schengen acquis, in which the United Kingdom and Ireland do not participate, in accordance with Council Decision 2000/365/EC of 29 May 2000, concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis i , and with Council Decision 2002/192/EC of 28 February 2002, concerning Ireland’s request to take part in some of the provisions of the Schengen acquis.[7] The United Kingdom and Ireland are, therefore, not parties to the adoption of the Regulation, which neither binds nor applies to them.
In accordance with the Protocol on the position of Denmark annexed to the EC Treaty, Denmark does not participate in the Council’s adoption of measures pursuant to Title IV of the EC Treaty. When these proposals develop the Schengen acquis, in accordance with Article 5 of the Protocol, “Denmark shall decide within a period of six months after the Council has decided on a proposal or initiative to develop the Schengen acquis under the provisions of Title IV of the EC Treaty, whether it will implement this decision in its national law”.
In addition, in accordance with the first paragraph of Article 6 of the Protocol integrating the Schengen acquis, an agreement was signed on 18 May 1999 between the Council, Norway and Iceland in order to associate those two countries with the implementation, application and development of the Schengen acquis.
Article 1 of the Agreement provides that Norway and Iceland are to be associated with the activities of the European Community and the European Union in the fields covered by the provisions referred to in Annexes A (provisions of the Schengen acquis) and B (provisions of European Community acts which have replaced corresponding provisions of, or were adopted pursuant to, the Schengen Convention) to the Agreement and further developments.
Pursuant to Article 2, the acts and measures adopted by the European Union to amend or supplement the Schengen acquis which has been integrated into the framework of the European Union (Annexes A and B) are implemented and applied by Norway and Ireland. The proposal presented develops the Schengen acquis as defined in Annex A to the Agreement.
Since the initiative constitutes an act building upon the Schengen acquis or otherwise related to it within the meaning of Article 3 i of the Act of Accession, the Regulation shall only apply in a new Member State pursuant to a Council decision in conformity with this provision.
As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement signed by the European Union, the European Community and the Swiss Confederation on the latter's association with the implementation, application and development of the Schengen acquis i which fall within the area referred to in Article 1 point g of Council decision 1999/437/EC i read in conjunction with Article 4 i of the Council Decision 2004/860/EC on the signing, on behalf of the European Community, and on the provisional application of certain provisions of this Agreement i.
Contents
- BUDGETARY IMPLICATIONS
- 1.1. Grounds for and objectives of the proposal
- Specific objectives
- 1.2. General context
- Existing provisions and related proposals in this area
- Calendar
- 2. LEGAL ASPECTS
- 2.1. Legal basis
- 2.2. Subsidiarity and proportionality
- 2.3. Choice of instruments
- 2.4. Participation in the SIS II
- a) United Kingdom and Ireland
- b) Denmark
- c) Norway and Iceland
- d) New Member States
- e) Switzerland
Council Regulation (EC) No 2424/2001 and Council Decision 2001/886/JHA on the development of the second generation of the Schengen Information System i laid down that the expenditure involved in the development of the SIS II is to be charged to the budget of the European Union. The present proposal establishes that the cost incurred for the operation of the SIS II shall continue to be covered by the budget of the European Union. Although the biggest expenditure will be made during the development phase (design, construction and testing of the SIS II), the operational phase, starting in 2007, will constitute a long-term budgetary commitment that must be examined in the light of the new financial perspectives. Adequate human and financial resources will have to be allocated to the Commission, which is responsible for the operational management of the system during a first transitional or interim phase. For the mid to long-term the Commission will assess the different externalisation options, taking into account the synergy effects resulting from the operation of several other large-scale IT systems such as the VIS (Visa Information system) and EURODAC.
The Commission has prepared a common financial statement annexed to this Regulation valid also for the Decision proposed under Title VI of the EU Treaty.