Explanatory Memorandum to COM(2021)472 - Application of the provisions of the Schengen acquis in the area of Schengen Information System in Cyprus

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dossier COM(2021)472 - Application of the provisions of the Schengen acquis in the area of Schengen Information System in Cyprus.
source COM(2021)472 EN
date 12-08-2021


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

In line with Article 3(1) and (2) of the 2003 Act of Accession to the European Union 1 certain provisions of the Schengen acquis are already applicable in Cyprus from the date of accession, while other provisions only apply pursuant to a Council Decision to that effect after verification that the necessary conditions for the application of all parts of that acquis have been met. This verification is done in accordance with the relevant Schengen evaluation procedures.

Council Regulation (EU) No 1053/2013, establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis 2 , provides for these Schengen evaluation procedures. On 28 May 2019, Cyprus declared its willingness and commitment to apply all parts of the Schengen acquis and to be subject to Schengen evaluations, to the extent possible considering the special circumstances of Cyprus as recognised in Protocol No 10 to the 2003 Act of Accession. In line with Council Regulation (EU) No 1053/2013, the Commission amended the annual 3 and multiannual evaluation programmes 4 on 15 October 2019 to include the evaluation of Cyprus in 2019 and 2020. The geographical scope of the Schengen evaluations in Cyprus takes into consideration the special circumstances of Cyprus.

The Schengen evaluation in the area of the Schengen Information System can only take place when the Schengen Information System has been put into operation in Cyprus. Therefore, it is required that the Council adopts a Decision on putting into effect the provisions of the Schengen acquis in the area of the Schengen Information System in Cyprus.

The Council is only able to take such Decision after Cyprus has made the necessary technical and legal arrangements, including relating to data protection, to process Schengen Information System data and exchange supplementary information. Accordingly, a Schengen evaluation to verify the level of data protection in Cyprus was carried out in November 2019. Following the positive opinion of the Schengen Committee 5 , on 5 November 2020 the Commission adopted, by means of Commission Implementing Decision 6 , the evaluation report confirming that a satisfactory level of data protection is met.

In the meantime, on-site teams have carried out Schengen evaluation visits in Cyprus in other areas of the Schengen acquis, notably on return (November 2020), police cooperation (February 2021) and external borders (February 2021).

In addition, on 3 December 2020, the Schengen Information System II Advisory Group 7 , based on the results from the Test Summary Report (2020-377) produced by the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice, confirmed that from a technical point of view the national system of Cyprus is ready to integrate into the Schengen Information System and its national system is fit for purpose.

It is therefore now possible for the Council to set the date from which the Schengen acquis in the area of the Schengen Information System shall apply in Cyprus. The entry into force of this Decision should allow for Schengen Information System data to be transferred to Cyprus. The use of these data in Cyprus should allow the Commission to verify, in accordance with the Schengen evaluation procedures, that the provisions concerning the Schengen Information System are being applied correctly.

Certain restrictions on the use of the Schengen Information System in Cyprus will be imposed until the Council has decided on the full application of the Schengen acquis in Cyprus and on the lifting of checks at internal borders. Such Decision shall only be taken when it has been verified that the necessary conditions for the application of all parts of the relevant acquis have been met in Cyprus in accordance with Article 3(2) of the Act of Accession.

• Consistency with existing policy provisions in the policy area

This proposal seeks to put into effect the existing provisions in the area of the Schengen Information System in Cyprus.

• Consistency with other Union policies

This proposal has links with the provisions of the Schengen acquis in the area of data protection and police cooperation.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Article 3(2) of the 2003 Act of Accession to the European Union.

• Subsidiarity (for non-exclusive competence)

Article 3(2) of the 2003 Act of Accession stipulates that the provisions of the Schengen acquis not referred to in Article 3(1) of that Act, shall only apply in Cyprus pursuant to a Council decision to that effect.

• Proportionality

Article 15(2) of Council Regulation (EU) No 1053/2013 mirrors the specific powers of the Council in the field of mutual evaluation of the implementation of Union policies within the area of freedom, security and justice.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

n.a.

• Stakeholder consultations

In line with Article 14(5) and Article 21(2) of Council Regulation (EU) No 1053/2013 Member States gave their positive opinion on the evaluation report in the area of data protection in the Schengen Committee of 9 July 2020 The report was adopted on 5 November 2020.

• Collection and use of expertise

n.a.

• Impact assessment

n.a.

• Regulatory fitness and simplification

n.a

• Fundamental rights

The protection of fundamental rights when applying the Schengen acquis is taken into account during the Schengen evaluation process.

4. BUDGETARY IMPLICATIONS

n.a.

5. OTHER ELEMENTS

n.a.