Select Committee on European Scrutiny Fortieth Report




Draft Council Regulation concerning the introduction of some new functions for the Schengen Information System, in particular in the fight against terrorism.

Draft Council Decision concerning the introduction of some new functions for the Schengen Information System, in particular in the fight against terrorism.

Legal base:(a) Articles 62,63 and 66 EC; consultation; unanimity
(b) Articles 30(1)(a) and (b), 31(a) and (b), and 34(2)(c) EU; consultation; unanimity
Documents originated:(a) 11 June 2002
(b) 11 June 2002
Deposited in Parliament: (a) 12 June 2002
(b) 12 June 2002
Department:Home Office
Basis of consideration: EM of 27 June 2002 and Minister's letter to Lord Brabazon of 21 August 2002
Previous Committee Report: None
To be discussed in Council: 27-28 November 2002
Committee's assessment:Politically important
Committee's decision:Not cleared; further information requested


  8.1  The Schengen Information System (SIS) is a computerised joint information system. Work has already started on the development of a second generation system (SIS II) to accommodate the increased number of Member States of the European Union after enlargement, and to provide some additional features. (We have considered a number of documents concerned with the development of the new system[10].)

  8.2  At the Justice and Home Affairs Council following the events of 11 September last year, Member States highlighted the potential use of the SIS in the fight against terrorism. As a result, new functions that had previously been considered for SIS II have been brought forward for incorporation into the current system.

The documents

  8.3  As the SIS is used for both immigration and law enforcement purposes, its integration into the framework of EU law necessitates two parallel instruments: a first pillar instrument covering immigration matters (document (a), the Regulation) and a third pillar[11] instrument covering law enforcement functions (document (b), the Decision).

  8.4  Both documents amend the provisions of the Schengen Convention which deal with the access, control and retention of data and expand the categories of data which can be held in the system. Both also set maximum limits (extended from six months to one year) for the storage of data.

  8.5  In addition, document (a) will allow national authorities with responsibility for issuing vias and residence permits access to data on identity papers and other official documents. It also extends access to identity documents.

  8.6  Document (b) provides for the inclusion of additional categories of data (such as travel documents, vehicle registration documents and credit documents such as cheques and credit cards) and for Europol and Eurojust to have access to certain categories of information. For Eurojust, access and search will be permitted only to its national members, not to its staff. It will be limited to data on persons wanted for arrest or extradition and data on witnesses. National standards on data protection will apply.

  8.7  Europol will only be able to search data required for the performance of its tasks, and will have to record every search it makes, and every use it makes of SIS data. It will not be permitted to download any parts of SIS or connect the data to any of its own databases. It will only be able to transfer any data to a third State or body with the permission of the Member State that supplied the information to the system. Only authorised Europol staff will have access. The Joint Supervisory Board (JSB), which monitors the activities of Europol in relation to data protection issues, will have oversight of Europol's use of the SIS.

The Government's view

  8.8  In his Explanatory Memorandum, the Parliamentary Under-Secretary of State at the Home Office (Mr Bob Ainsworth ) says:

    "Each Member State has been given the opportunity to submit proposals for extending the functionality of the system. The UK has done this. The draft Regulation and draft Decision reflect the input of all the EU Member States, together with Norway and Iceland, but the detail of the proposals is still under discussion and subject to amendment. In practice, the changes are likely to lead to an increased use of the Schengen Information System due to inclusion of information that has been identified as operationally useful."

  8.9  The Minister also tells us that Recital 10 of the draft Regulation states that the measure will not apply to the UK as it builds on a part of the Schengen acquis in which the UK does not participate. He says that the Government is considering this issue.

  8.10  Finally, the Minister reports that the Danish Presidency is likely to seek agreement to both measures at the Justice and Home Affairs Council on 28 and 29 November.

  8.11  Our sister Committee in the House of Lords wrote to the Minister in July, asking whether the Government regarded the safeguards in document (b) regarding use of SIS data by other EU bodies as adequate, given the far-reaching implications for data protection. It also asked for further information about the application of the proposals, especially document (a), to the UK.

  8.12  In his reply, copied to us, the Minister reports that the issue of access to the SIS by both Europol and Eurojust had been discussed at length in Brussels. With regard to Europol, he says:

    "The JSB ensures that the storage, processing and utilisation of the data held by Europol do not violate the rights of the individual. The ways in which Europol may hold SIS data are tightly defined and the JSB is specifically authorised to review the activities of Europol in relation to the SIS. Furthermore, the Council Decision commits Europol to adopt measures as envisaged under Article 118 of the Schengen Convention. This provides further safeguards....The Government regards the safeguards provided in the proposed Council Decision regarding access by Europol as satisfactory."

  8.13  Turning to Eurojust, he comments:

    "The Council Decision provides that access to SIS by the UK national member of Eurojust will be safeguarded by the UK's data protection provisions. This ensures that the Information Commissioner will have oversight of the UK national member's usage of SIS data. Each national member of Eurojust will therefore be bound by their own country's data protection laws. The detail of how this access would work in practice is less further developed than the arrangements for Europol and we shall seek to ensure in negotiation that whatever arrangements are settled upon meet our exacting data protection expectations."

  8.14  With regard to the application of the proposals to the UK, the Minister says:

    "As you are aware, the UK (together with Ireland) will not participate in the Schengen arrangements for the removal of external frontier controls and for the common system of issuing visas. This is in accordance with the agreement reached at the Treaty of Amsterdam enabling us to retain ... our internal frontier controls.

    "After further consideration of the terms of the Regulation, we have concluded that it may be in the UK's interests to participate in the amended Article 101.2[12], given its origins in combatting terrorism and the UK's generally positive approach to measures to combat illegal immigration. We therefore intend to explore whether the full implications of the UK's exclusion from it have been understood and whether it can be amended such as to permit our participation in a way consistent with our partial participation in the Schengen acquis and not affecting our position on frontier controls. We shall of course keep the Committee informed of developments."


  8.15  These documents have significant implications for data protection. In that context, we are pleased to learn that the Minister is content with the safeguards regarding Europol, and is continuing to press for appropriate arrangements in relation to Eurojust.

  8.16  We are interested to learn that the Government is considering participation in Article 101.2 of the Schengen Convention. We shall keep the documents under scrutiny until we know more about the progress of negotiations on this issue, especially on the data protection safeguards regarding Eurojust.

10   For example (23180) 5472/02; see HC 152-xxi (2001-02), paragraph 15 ( 13 March 2002). Back

11  The third pillar contains provisions on police and judicial co-operation in criminal matters. The first pillar is the European Communities. Back

12  This amended Article allows access to some data on aliens and on identity documents to authorities responsible for examining vias applications, issuing residence permits and administering legislation on the free movement of aliens.  Back

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