Explanatory Memorandum to COM(2005)230 - Establishment, operation and use of the second generation Schengen information system (SIS II) - Main contents
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| dossier | COM(2005)230 - Establishment, operation and use of the second generation Schengen information system (SIS II). |
|---|---|
| source | COM(2005)230  |
| date | 31-05-2005 |
General objective
The main objective of this Decision, together with the Regulation on the establishment, operation and use of the second generation of the Schengen Information System (hereinafter referred to as the “SIS II”) based on Title IV of the Treaty establishing the European Community (hereinafter referred to as “EC 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 Decision together with the aforementioned Regulation (hereinafter referred to as the “Regulation”) 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, this Decision contains specific provisions regarding the processing of SIS II data for supporting police and judicial cooperation in criminal matters, while the Regulation rules on the processing of SIS II data supporting the implementation of policies linked to the movement of persons which are part of the Schengen acquis (e.g. external borders and visa).
This Decision, as well as the Regulation, 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 i (hereinafter referred to as the “Schengen Convention”) taking also into account the Conclusions of the Council and the Resolutions of the European Parliament on SIS II i. In addition, this Decision also aims at better aligning the SIS legal framework with European Union law and enlarge the use of the SIS II, in particular, in the following areas:
- The European Arrest Warrant . This Decision provides for the processing (e.g. entering and sharing) of data necessary for the effective implementation of the Framework Decision on the European Arrest Warrant and surrender procedure between Member States. These data will be directly available in the SIS II improving therefore the current situation where these data are only exchanged bilaterally.
- Better data quality and improved identification performance . This Decision 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 Decision 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 . In order to ensure consistent and homogeneous application of the data protection rules regarding the SIS II, this Decision provides for the application of Regulation (EC) 45/2001 on the protection of individuals with regard to the processing of personal data and entrusts the European Data Protection Supervisor with the monitoring of the personal data processing activities related to the SIS II carried out by the Commission in accordance with this Decision. The advantage is that the same body will be competent for all Commission’s data processing activities under both the first and third pillar. This Decision provides that the Council of Europe Convention No 108 of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data must be respected by Member States when processing SIS II data in the context of this Decision.[4]
- Transfer of personal data to a third party or country . This Decision foresees the possibility of transferring SIS II personal data to third countries or international organisations subject to the appropriate legal instruments, however, this possibility remains as an exception to the general rule.
- 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 European Union institutions (hereinafter referred to as the “EU institutions”) 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 Decision 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 the creation of an area without internal frontiers. To this end, Article 61 of the 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 the 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 Decision is tabled together with a Regulation on the establishment, operation and use of the SIS II, based on Title IV of the EC 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 Decision and the Regulation based on Title IV of the EC 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 Decision will also repeal Council Decision 2004/201/JHA of 19 February 2004 on procedures for amending the SIRENE Manual i.
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.
Legal basis
The Schengen acquis , including the SIS, was integrated in 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 (hereinafter referred to as “EU Treaty”) 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.
The legal bases for this Decision are Articles 30 i (a) and (b), Article 31 i (a) and (b) and Article 34 i (c) of the EU Treaty.
This proposal falls under Article 30 i (a) of the EU Treaty as it aims at improving operational cooperation between the competent authorities in relation to the prevention and detection of criminal offences and under Article 30 i (b) as it regulates the collection, storage, processing, and exchange of relevant information.
This proposal also aims at facilitating cooperation between judicial or equivalent authorities of the Member States in relation to criminal proceedings and the enforcement of criminal decisions, and therefore it falls as well under Article 31 i (a) of the EU Treaty. Article 31 i (b) is relevant to the extent that this proposal intends to facilitate extradition and surrender between Member States.
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 sufficiently 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 the level of the European Union. 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 Decision and limited to the extent that the data are required for the performance of the tasks in accordance with these purposes.
The use of a Decision as the act is warranted in view of the need to apply common rules, in particular in relation to the processing of data in the system. A framework decision is not the appropriate instrument because the proposal involves no approximation of the laws of the Member States.
This Decision has its legal basis in Title VI of the EU 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, Ireland and the Protocol integrating the Schengen acquis into the framework of the European Union.
The proposed Decision develops the provisions of the Schengen acquis, in which the United Kingdom and Ireland 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 i .
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 (Annexes A and B) are implemented and applied by Norway and Iceland. 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 Decision shall only apply in a new Member State pursuant to a Council Decision in conformity with this provision.
As regards Switzerland, this Decision 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 falls within the area referred to in Article 1, point G of Council Decision 1999/437/EC read in conjunction with Article 4 i of the Council decision 2004/849/EC on the signing, on behalf of the European Union, and on the provisional application of certain provisions of this Agreement i.
Contents
- BUDGETARY IMPLICATIONS
- Grounds for and objectives of the proposal
- Specific objectives
- General context
- Existing provisions and related proposals
- Calendar
- Legal aspects
- Subsidiarity and proportionality
- Choice of instruments
- Participation in the SIS II
- a) United Kingdom and Ireland
- b) Norway and Iceland
- c) New Member States
- d) 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 the Regulation proposed under Title IV of the EC Treaty.