Explanatory Memorandum to COM(2012)81 - Migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (recast) - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)81 - Migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) ... |
|---|---|
| source | COM(2012)81  |
| date | 30-04-2012 |
• 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 i 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 of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) i and Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) i. These legal acts 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 take place, 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 was therefore designed in Council Regulation (EC) No 1104/2008[5] and Council Decision 2008/839/JHA[6] of 24 October 2008 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (together 'migration instruments').
The objective of this proposal is to recast in a single legal instrument Regulation (EC) No 1104/2008 and Council Decision 2008/839/JHA. This proposal provides for a revised legal regime for the migration from SIS 1+ to SIS II which enables the Member States to use SIS II with all its functionalities from the moment of the switchover from SIS 1+ to SIS II.
Transparency of the SIS II development process for the European Parliament is maintained through the existing reporting obligation.
• Legal base
The legal base of this proposal is Article 74 of the Treaty on the Functioning of the European Union as it concerns measures to ensure cooperation between the relevant departments of the Member States, as well as between those departments and the Commission for policies ensuring a high level of security within the area of freedom, security and justice.
• Subsidiarity principle
This proposal respects the principle of subsidiarity as the main objective of the proposed action, namely the migration from SIS 1+ to SIS II, cannot be achieved by the Member States individually and it can be better achieved on the Union level.
• Proportionality principle
This proposal does not go beyond what is necessary to achieve its objective. It complies with the proportionality principle as its primary impact is the facilitation of migration of the Member States from SIS 1+ to SIS II.
• Choice of instruments
A Council Regulation is the most appropriate legal form to recast Regulation (EC) No 1104/2008 and Decision 2008/839/JHA, as one of the legal acts involved in the recast is a regulation. In addition, uniform rules and processes are needed for the management of SIS II development and migration. The provisions set out in this proposal for a regulation are precise, unconditional and directly applicable and, by their very nature, do not require action by Member States to transpose them into their national laws.
• Committee procedure
As a consequence of the repeal of Council Decision 486/1999 of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission[7], from 1 March 2011, reference has to be made in the provision on committee procedure to the new Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers[8]. The regulatory procedure applied under the former committee procedure in this proposal will be replaced by the examination procedure.
Regulation (EC) No 1987/2006 and Decision 2007/533/JHA establishing the committee contain rules on the former regulatory procedure. However, according to the transitory measures of Regulation (EU) No 182/2011, the existing committees should start to work from 1 March 2011 under the new rules, in the present case under the examination procedure. The formal modification of Regulation (EC) No 1987/2006 and Decision 2007/533/JHA is not required.
Contents
This proposal contains entirely or partially new provisions on the following:
(a) Recast
The most appropriate mean to reflect the principles of better regulation is to apply to the recast legislative technique as
a) a number of substantive amendments are to be made to the migrations instruments and
b) the pillar structure, which led to the existence of two legal instruments with an essentially identical content, is no longer relevant following the entry into force of the Treaty of Lisbon.
Point 2 of the Interinstitutional Agreement of 28 November 2001 between the European Parliament, Council and Commission on a more structured use of the recasting technique for legal acts[9] stipulates that where substantive amendments have to be made to an earlier legal act, the recasting technique permits the adoption of a single legislative text which simultaneously makes the desired amendment, codifies that amendment with the unchanged provision of the earlier act, and repeals that act. In the joint declaration to that point the three institutions stated that the recasting may be either 'vertical' whereby the new legal act replaces a single earlier act with its subsequent amendments or 'horizontal' whereby the new legal act replaces several parallel earlier acts relating to the same subject.
Under the Treaty on the Functioning of the European Union, it would not be possible to modify a former third pillar instrument. Therefore, the only one correct legal technique is to incorporate Regulation (EC) No 1104/2008 and Decision 2008/839/JHA in a single legal act under the same legal base. The recast of the migration instruments therefore combines the elements of a vertical and a horizontal recast.
This proposal indicates clearly the new and the adapted provisions. It contains a repeal clause as well as a correlation table.
(b) Legal regimes for the migration
This proposal applies a differentiated legal approach for the two phases of the migration from SIS 1+ to SIS II. The migration consists of two steps:
a data loading of N.SIS II
The phase of data loading of N.SIS II continues to be governed by the Schengen Convention.
a switchover from N.SIS to N.SIS II
This differentiated approach enables Member States to use SIS II with all its functionalities from the moment of the switchover from SIS 1+ to SIS II by providing for the application of Regulation (EC) No 1987/2006 and Decision 2007/533/JHA.
In accordance with Article 12 of the migration instruments as worded until now, the migration from SIS 1+ into SIS II is to take place pursuant to Title IV of the Schengen Convention. This rule, however, prevents Member States from using SIS II with its full functionalities from the moment that a Member State successfully switches from SIS 1+ into SIS II. As a consequence, the Member States have to disable all SIS II features that are not in SIS 1+ until the Council decides on the date of application of Regulation (EC) No 1987/2006 and Decision 2007/533/JHA.
On 23 February 2011 the Member States in the SIS-VIS Committee invited the Commission to initiate without delay the process of adapting the migration legal framework to reflect the technical migration approach outlined in the Migration Plan. The Migration Plan describes that, within one shot switchover period, all Member States will perform the individual switchovers of their national application from SIS I into SIS II one after the other. It is desirable that a Member State that has switched over should be able to use SIS II fully as from the time of the switchover and it does not have to wait until other Member States have also switched over. Therefore, it is necessary to apply Regulation (EC) No 1987/2006 and Decision 2007/533/JHA from the time of the initiation of the switchover by the first Member State. The period of migration should be kept as short as possible. The application of Regulation (EC) No 1987/2006 and Decision 2007/533/JHA does not prevent Member States which have not switched over yet or which have a fallback during the intensive monitoring period from using SIS II in functionalities limited to SIS 1+.
The proposal not only enables Member States to take full advantage of all the advanced applications available by SIS II but also represents considerable savings for the Member States.
(c) Interim migration architecture
The application of Regulation (EC) No 1987/2006 and Decision 2007/533/JHA will replace Article 64 and Articles 92 to 119 of the Schengen Convention, with the exception of Article 102a thereof, as it is laid down in Article 52 paragraph 1 and Article 68 paragraph 1 respectively of the said legal acts. As article 92a of the Schengen Convention contains detailed rules on the interim migration architecture, it is desirable to keep it in force during the entire duration of the migration process.
The interim migration architecture for the operations of SIS 1+ allows that SIS 1+ and certain technical parts of the architecture of SIS II, which need to be in use to make possible an incremental migration from one system to another, operate in parallel during a limited transitional period.
It is therefore necessary to incorporate the relevant provisions of Article 92a of the Schengen Convention into the migration legal framework.
• Existing provisions in the area covered by this 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[10] (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)[11];
– Council Decision 2001/886/JHA of 6 December 2001[12] on the development of the second generation Schengen Information System (SIS II);
– 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[13];
– Commission Decisions 2007/170/EC and 2007/171/EC of 16 March 2007 laying down the network requirements for the Schengen Information System II[14];
– Council Regulation (EC) No 189/2008 of 18 February 2008 on the tests of the second generation Schengen Information System (SIS II)[15];
– Council Decision 2008/173/EC of 18 February 2008 on the tests of the second generation Schengen Information System (SIS II)[16];
– 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)[17];
– 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) [18];
– Commission Decision 2009/724/JHA of 17 September 2009 laying down the date for the completion of migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II)[19].
• 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 and the Global Programme Management Board. In addition, SIS II developments are continuously discussed in the Council preparatory bodies.
European Data Protection Supervisor is also involved in the consultation given that personal data will also be uploaded the in the course of the migration.
• Summary of responses and how they have been taken into account
This proposal takes into account the result of extensive discussions with Member States within the Council, especially within the framework of the SIS-TECH and SIS-SIRENE Council working groups, as well as of the views expressed by the members of the Global Programme Management Board. It, furthermore, responds to an invitation made to the Commission by the Member States to align the legal framework governing the migration with the technical scenario retained by their experts.
• Collection and use of expertise
External expertise was not used to prepare this proposal.
• Impact assessment
No impact assessment is required for this proposal as it is the continuation of a technical project without clearly identifiable economic, social and environmental impacts.
Regulation (EC) No 2424/2001 and Decision 2001/886/JHA laid down that the expenditure involved in the development of the SIS II is to be charged to the general budget of the Union. Under Article 5 of Regulation (EC) No 1987/2006 and under Article 5 of Council Decision 533/2007/JHA 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 Union. The costs of testing, operating and maintaining each N.SIS II shall be borne by the Member State concerned.
Regulation (EC) No 1104/2008 and Council Decision 2008/839/JHA maintained the same principles of costs distribution as above. However, a new category of costs was introduced, namely those related to the migration from SIS 1 to SIS II. Under Articles 15 of those legal acts the costs for migration at the central level, together with those for testing, maintenance and development measures (Central SIS II and communication infrastructure) had been allocated to the general budget of the Union. The costs associated with the national N.SIS II remained to be borne by the Member States.
Regulation (EC) No 1987/2006 and Decision 2007/533/JHA as well as Decision No 574/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the External Borders Fund for the period 2007 to 2013 as part of the General Programme Solidarity and Management of Migration Flows[20], included SIS II national developments among the eligible actions to be co-financed under the External Borders Fund (EBF). Commission Decision 2007/599/EC of 27 August 2007 implementing Decision No 574/2007/EC of the European Parliament and of the Council as regards the adoption of strategic guidelines for 2007 to 2013[21] further identified SIS II as one of the five strategic priorities under the EBF, recognizing the importance of supporting the coherent and timely development of the national projects alongside the central SIS II.
Since the adoption of all legal acts referred above, the SIS II project received a significant reorientation in the course of 2010, after the completion of an important test campaign, the so-called Milestone 1. Furthermore, the evolutions in the use of SIS by its users (Member States) led to a need to update the SIS II technical requirements concerning performance and storage capacity, which increased significantly after the accession of nine new Member States and Switzerland. The upgraded features were reflected in the new version of the Interface Control Document, the ICD 3.0. All these modifications affected the costs of the project both at central and national level.
With regard to the migration process, the evolution in requirements and the advances made in the completion of the project led to a redefinition of the migration architecture, of the migration calendar and of the testing requirements. An important part of the activities that would now be required at Member State level for the migration to SIS II were not anticipated at the time when Regulation (EC) No 1104/2008 and Council Decision 2008/839/JHA were adopted or at the time when the financial package and the multiannual programmes under the EBF were drawn up.
It is therefore necessary to partly realign the cost distribution principles insofar as the migration from SIS 1 to SIS II is concerned. Certain national activities related to migration, in particular in connection with the participation of Member States in migration-related testing activities could be co-financed from the SISII budget line of the general budget of the Union. This possibility would cover specific and well-defined activities beyond, and not to coincide with, other SIS II related actions which would continue to be supported under the EBF. The financial assistance thus provided under this proposal would therefore be complementary to that provided by the EBF.
As the setting up of the national systems is the primary obligation of Member States, the Union contribution remains optional and this proposal does not intend to create any obligation for the Union. It is also necessary to determine the ceiling of the Union contribution in relation to each Member State. This proposal does not require any additional appropriations as the appropriations still available in 2011 will be used to cover the difference between the total costs in 2012 and the appropriations entered in SIS II budget line for 2012.
The Commission will 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. Member States must comply with the principles of sound financial management, in particular, value for money and cost-effectiveness. The Commission will be entitled 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. The Court of Auditors of the European Union will be empowered to carry out the audits required by Article 287 of the Treaty on the Functioning of the European Union.
The costs arising from activities at SIS 1+ level, including supplementary activities of France, acting on behalf of the Member States participating in 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 proposal recasts Regulation (EC) No 1104/2008 and Decision 2008/839/JHA into a single legal act as a regulation.
• Deletion of the expiry date
Given the complexity of the migration process which, despite extensive preparation by all stakeholders, entails significant technical risks, this proposal provides for the necessary flexibility to respond to unexpected difficulties that the central system or one or several national systems could face with during the migration process; therefore no longer contains an expiry date.
In accordance with Article 55 of Regulation (EC) No 1987/2006 and Article 71 Decision 2007/533/JHA, it is for the Council to determine the dates for the applicability of those legal acts as well as for the migration. As following the migration a one-month fall back period is foreseen in the technical documentation the date of applicability of Regulation (EC) No 1987/2006 and Decision 2007/533/JHA should precede the expiry of the migration instruments with at least one month.
• Timetable
In order to ensure the continuity of the preparations and the timely execution of the migration, this proposal should be adopted at the latest in the second quarter of 2012.