Explanatory Memorandum to COM(2010)15 - Amendment of Decision 2008/839/JHA on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2010)15 - Amendment of Decision 2008/839/JHA on migration from the Schengen Information System (SIS 1+) to the second generation ... |
|---|---|
| source | COM(2010)15  |
| date | 29-01-2010 |
• Grounds for and objectives of the proposal
The Commission is contributing to the availability of the new SIS II functionalities and thus to maintaining a high level of security within the area of justice, freedom and security. It seeks to give SIS II development fresh impetus after the analysis and repair period during which a considerable number of known issues and bugs have been fixed and solutions have been either designed or implemented to remedy them.
This proposal, and a proposal for a Regulation on the same subject, aim to prevent Decision 2008/839/JHA governing the migration from the Schengen Information System in its current form (SIS 1+) to the second generation Schengen Information System (SIS II) from expiring before migration becomes technically feasible. Furthermore, this proposal ensures legal flexibility for the development of SIS II by means of the alternative technical scenario of SIS 1+ RE, in case a switchover to this scenario should take place.
This proposal is being submitted as a Regulation under the appropriate legal basis of the Treaty on the Functioning of the European Union which has recently entered into force.
Simultaneously, in order to ensure efficient management of SIS II development and migration, a Global Programme Management Board (the 'GPMB') is being set up as a group of experts for enhanced management and coordination of the global SIS II programme and related activities as a whole, as well as consistency between the central and national systems' developments. This proposal is congruent with the Council Conclusions of 4-5 of June 2009 which invited the Commission, building upon the experience of and the lessons learned from the global SIS II programme management approach established by the Council Conclusions of 26-27 February 2009 and in compliance with the legal framework, to table an enhanced management approach to the project management structure of SIS II.
Transparency of the SIS II development process for the European Parliament is maintained through the existing reporting obligation.
• General context
The Schengen Information System (SIS) set up pursuant to the provisions of Title IV of 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 France on the gradual abolition of checks at their common borders (the Schengen Convention), and its development, SIS 1+, constitute an essential tool for the application of the provisions of the Schengen acquis as integrated into the framework of the European Union.
The development of the second generation of SIS (SIS II) has been entrusted to the Commission pursuant to Council Regulation (EC) No 2424/2001 and Council Decision 2001/886/JHA of 6 December 2001 on the development of the second generation Schengen Information System (SIS II). SIS II will replace SIS 1+. SIS II development takes into account the latest evolutions in the field of information technology and allows the introduction of added functionalities.
Provisions on the establishment, operation and use of SIS II are laid down in Regulation (EC) No. 1987/2006 of the European Parliament and of the Council i of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) and Council Decision 2007/533/JHA i of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II). These instruments foresee that they will apply to the Member States participating in SIS 1+ only as of dates to be fixed by the Council, acting by the unanimity of its Members representing the governments of the Member States participating in SIS 1+. They will then replace the provisions of the Schengen acquis governing SIS 1+, in particular the relevant provisions in the Schengen Convention.
Before this can happen, the users of the SIS 1+ will have to migrate to the SIS II environment. A legal framework for the migration from SIS 1+ to the SIS II environment was therefore designed. In order to reduce the risks of service disruption during migration an interim technical architecture for the operations of SIS 1+ will allow SIS 1+ and certain technical parts of the architecture of SIS II to operate in parallel for a transitional period.
The time-frame of the current migration instruments, and in particular their date of expiry which is currently set to be 30 June 2010 at the latest, appears no longer realistic. This proposal therefore aims at preventing expiry of Council Decision 2008/839/JHA before migration will take place. The GPMB's role would be to act as a focal point between the actors and stakeholders involved in global SIS II development. In particular, it would allow the Commission and the Member States to coordinate the global programme in keeping with their respective responsibilities and activities regarding the central and national SIS II projects.
While maintaining the basic allocation of responsibility between the Commission, France and participating Member States as already contained in the instruments to be amended, this proposal will streamline management processes.
• Existing provisions in the area covered by the proposal
- 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 France on the gradual abolition of checks at their common borders i (the Schengen Convention);
- Council Regulation (EC) No 2424/2001 of 6 December 2001 on the development of the second generation Schengen Information System (SIS II) i as amended by Council Regulation (EC) 1988/2006 of 21 December 2006 i;
- Council Decision 2001/886/JHA of 6 December 2001 i on the development of the second generation Schengen Information System (SIS II) as amended by Council Decision 2006/1007/JHA of 21 December 2006 i;
- Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) ;
- Council Decision No 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) ;
- Regulation (EC) No 1986/2006 of the European Parliament and of the Council of 20 December 2006 regarding access to the Second Generation Schengen Information System (SIS II) by the services in the Member States responsible for issuing vehicle registration certificates i;
- Commission Decisions 2007/170/EC and 2007/171/EC of 16 March 2007 laying down the network requirements for the Schengen Information System II i;
- Council Regulation (EC) No 189/2008 of 18 February 2008 on the tests of the second generation Schengen Information System (SIS II) i;
- Council Decision 2008/173/EC of 18 February 2008 on the tests of the second generation Schengen Information System (SIS II) i;
- Council Regulation (EC) No 1104/2008 of 24 October 2008 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) i;
- Council Decision 2008/839/JHA of 24 October 2008 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) i.
• Consistency with other policies and objectives of the Union
Not applicable.
• Consultation of interested parties
Member States' experts are closely involved in the continued development of SIS II, in particular in the framework of the SIS-VIS Committee. In addition, SIS II development has been discussed in the framework of the Council preparatory bodies. The Council Conclusions of 4-5 June 2009 invite the Commission to submit as soon as possible, but by October 2009 at the latest, appropriate legislative proposals to amend the migration instruments.
• Summary of responses and how they have been taken into account
The present proposal takes into account the result of extensive discussions with Member States, especially in the framework of the Article 36 committee.
• Collection and use of expertise
External expertise was not used to prepare this proposal.
• Impact assessment
No Impact Assessment is required for this proposal for a Council Regulation which is not included in the Commission's Annual Legislative and Work Programme (CLWP) and as it is the continuation of a technical project without clearly identifiable economic, social and environmental impacts.
Contents
• Summary of the proposed action
The objective of the present proposal is to prevent expiry of Council Decision 2008/839/JHA before migration, to ensure legal flexibility for an alternative technical scenario to attain SIS II functionalities based on SIS 1+, in case a switchover to this scenario should take place, and to render management of SIS II development and migration, in particular regarding coordination of Commission and Member State projects, as efficient as possible. In order to achieve the latter objective, the GPMB is set up as an expert group at global programme level.
• Legal basis
The legal basis for this Regulation is Article 74 of the Treaty on the Functioning of the European Union as it concerns administrative cooperation between the competent authorities of Member States in relation to the prevention, detection and investigation of criminal offences. Moreover, this proposal has to do with administrative cooperation between competent ministries and judicial or equivalent authorities of the Member States.
• Subsidiarity principle
The proposal respects the principle of subsidiarity in that the main objective of the proposed action, namely the migration from SIS 1+ to SIS II, cannot be achieved by the Member States individually.
• Proportionality principle
The present proposal does not go beyond what is necessary to achieve its objective. It complies with the proportionality principle in that the activities of the Commission remain limited to Central SIS II, coordination activities and the provision of a technical tool allowing for the successful exchange of SIS 1+ data between SIS 1+ and SIS II ('converter'). Furthermore, the GPMB has already been in existence as an informal consultation structure for the coordination purposes required by the existing instruments. Coordination between Commission and Member States is necessary to ensure global success of SIS II.
• Choice of instruments
A Council Regulation is the only available legal form under the Treaty on the Functioning of the European Union to postpone the expiry date of Council Decision 2008/839/JHA as initially phrased. For the remainder of this proposal, a Council Regulation is the most appropriate instrument for the proposed action in view of the need to apply uniform rules and processes to the management of SIS II development and migration. The provisions set out in this Regulation are precise, unconditional, directly applicable and, by their very nature, do not require action by Member States to transpose them into national law.
A framework decision is not the appropriate instrument because the proposal involves no approximation of the laws of the Member States.
Owing to the two-pillar nature of the instruments to be amended, a proposal for a Council Regulation based on Article 74 of the Treaty on the Functioning of the European Union complements the hereby proposed Council Regulation.
Council Regulation (EC) No 2424/2001 and Council Decision 2001/886/JHA on the development of the second generation Schengen Information System laid down that the expenditure involved in the development of the SIS II is to be charged to the general budget of the European Union.
Likewise, under Article 5 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 and under Article 5 of Council Decision 2007/533/JHA of 12 June 2007 the costs of setting up, operating and maintaining Central SIS II and the communication infrastructure are to be borne by the general budget of the European Union. The costs of setting up, operating and maintaining each N.SIS II shall be borne by the Member State concerned.
Under Article 15 of Regulation (EC) No 1104/2008 and Council Decision 2008/839/JHA as they have been phrased heretofore, additional costs for migration, testing, maintenance and development measures at the central level (Central SIS II and Communication Infrastructure) had been allocated to the general budget of the European Union as well. Testing, migration, maintenance and development costs for the national systems, including N.SIS II, have continued to be borne by each Member State concerned.
The present proposal does not modify this basic structure. It will, however, extend the existing legal basis that had already been laid down in Regulation (EC) No 1104/2008 and Council Decision 2008/839/JHA to cover the post-30 June 2010 period until migration. In addition, the cost arising from the meetings of the GPMB which is being set up by this proposal, including expenses for members and experts attending, would be borne by the general budget of the European Union. The necessary appropriations to cover the cost arising from the meetings of the GPMB will come from the appropriations currently foreseen in the Financial Programming 2010-2013 for the Schengen Information System (SIS II).
The costs arising from activities at SIS 1+ level, including supplementary activities of France, acting on behalf of the Member States (of SIS 1+), shall continue to be borne in line with Article 119 of the Schengen Convention. This article provides that the costs of installing and operating the technical support function of SIS 1+, as referred to in Article 92 i of the Convention, including the cost of lines connecting the national sections of the Schengen Information System to the technical support function, are borne jointly by the Member States, while the costs of installing and operating the national section of the Schengen Information System are borne by each Member State individually.
The Commission has prepared a financial statement annexed to this proposal.
• Amendment of existing legislation
The adoption of the proposal will entail the amendment of Council Decision 2008/839/JHA.
• Review/revision/sunset clause
The proposal contains a modified sunset clause. The new date of expiry will be set by the Council, acting in accordance with Article 71 i of Council Decision 2007/533/JHA.
• Timetable
The present Council Regulation needs to be adopted in June 2010 at the latest in order to ensure the continuity of the preparations and the timely execution of activities covered.