14. EXTENDING THE FUNCTIONS OF THE SCHENGEN
INFORMATION SYSTEM
(a)
(23551)
9407/02
—
(b)
(23552)
9408/02
—
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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.
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| 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
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| Department: | Home Office
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| Basis of consideration: |
Minister's letters of 18 and 19 November 2002 |
| Previous Committee Report:
| HC 152-xl (2001-02), paragraph 8 (30 October 2002)
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| To be discussed in Council:
| 19-20 December 2002 |
| Committee's assessment: | Politically important
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| Committee's decision: | (Both) cleared
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Background
14.1 The documents are concerned with amending and supplementing
the Schengen Information System (SIS), a computerised joint information
system. Document (b) also grants Europol and Eurojust access to
parts of it. 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[18]
instrument covering law enforcement functions (document (b), the
Decision).
14.2 When we last considered these documents (in October),
we decided to keep them under scrutiny until we knew more about
the data protection safeguards regarding Eurojust. We were also
interested to learn that the Government was considering participation
in Article 101.2 of the Schengen Convention,[19]
and asked to be kept in touch with developments.
The Minister's letters
14.3 The Parliamentary Under-Secretary of State at the
Home Office (Mr Bob Ainsworth) has now written twice to update
us — on 18 and 19 November. His second letter reports on
the views of the working group which met on 15 November in relation
to the two items of particular interest to us.
14.4 With regard to the application of the proposals
to the UK, he says:
"When the UK's participation in the extended use of Article
100 data was discussed, the clear view was that the terms of the
UK's participation already permit us to provide access to our
immigration authorities both for the original purpose of Article
100 data (that is, seizure in criminal procedures) and for immigration
purposes, to the extent that the UK participates in Articles 26[20]
and 27[21] of the Schengen
Convention. It is evident that we could not take action in relation
to Schengen provisions in which we do not participate. On this
basis, the Government is satisfied that our basic objective, of
ensuring UK participation in these arrangements to the extent
compatible with our Schengen participation generally, is met without
needing to participate in the Council Regulation. It has been
agreed that this understanding will be confirmed in a preambular
or declaratory phrase at the time of adoption of these instruments."
14.5 With regard to Europol, the Minister reminds us
in his first letter of the data protection safeguards provided
in document (b), and confirms that the Government considers them
satisfactory. He continues:
"At the last meeting of officials the majority view was that
Europol should have access only to Articles 95, 99[22]
and 100 of the Convention. Access to Article 96[23]
is being given further consideration but the Government is content
with the categories of access agreed so far which can directly
be justified in relation to Europol's activities. Broader access
would have to be justified, in the Government's view, through
a change of purpose in the use of Article 96 data and would therefore
require wider amendment to the Schengen Convention."
14.6 Turning to Eurojust , the Minister reports in his
first letter that the current majority view is that it should
have access only to Articles 95 and 98.[24]
The Government believes this is the correct approach, given Eurojust's
current remit. He then addresses the question of data protection,
and tells us :
"Article 22 (2) of the Council Decision establishing Eurojust
requires that the technical and organisational arrangements for
data protection will be addressed by its rules of procedure. They
will be subject to approval by the Eurojust joint supervisory
body which, when it is established shortly, will have general
oversight of Eurojust's handling of personal data. Under Article
14 (2) of the Decision establishing Eurojust, Eurojust also must
guarantee a level of protection for personal data at least equivalent
to that resulting from the application of the principles of the
1981 Council of Europe Convention for the Protection of Individuals
with regard to Automatic Processing of Personal Data and subsequent
amendments which are in force. We intend to press for language
to make Eurojust's access to SIS data explicitly conditional on
the existence of rules of procedure under Article 22 (2) and a
favourable opinion from the Schengen Joint Supervisory Authority.
"It is still not clear how Eurojust's access to the SIS will
operate at a technical level but we shall continue seeking to
ensure in the negotiations that our data protection expectations
are fully reflected in whatever arrangements are settled upon."
14.7 The Minister reminds us that, in addition to the
specific data protection safeguards which will secure access by
Europol and Eurojust, the SIS already has robust data protection
measures in place. These include a Joint Supervisory Authority,
a specific authority that exists solely to supervise data handled
by the technical support function of the SIS. The UK will designate
the Information Commissioner to act in accordance with these measures
and to report directly to Parliament.
14.8 In his second letter, the Minister has more to report
with regard to Eurojust:
"As indicated in my letter of 18 November, the UK raised
specifically the issue of making Eurojust's access to SIS data
dependant on satisfactory opinions from its own and the Schengen
joint supervisory bodies. This was a point of concern to several
other Member States. It was agreed that, as Article 2 of the draft
Council Decision specifically provides for its implementation
to be subject to a second Council Decision which would first evaluate
standards, this point could fully be subsumed into Article 2.
When taken together with the specific data protection safeguards
outlined in my earlier letter, the Government is now satisfied
that the process of Eurojust's access to the SIS is fully safeguarded.
The opinions of the Eurojust and Schengen joint supervisory bodies
are of course elements which the UK will wish specifically to
take into account at the time of the second Council Decision."
14.9 Finally, the Minister reports that the Presidency
currently intends to put these proposals forward for adoption
at the 19-20 December meeting of the Justice and Home Affairs
Council.
Conclusion
14.10 We thank the Minister for his full and helpful
letters. We are pleased that Eurojust's access to Schengen Information
System data will be subject to a second Council Decision, and
ask to see the opinions of the Eurojust and Schengen joint supervisory
bodies when we scrutinise that draft Decision. We underline the
point that all involved will need to be vigilant in ensuring compliance
with data protection provisions, especially in the light of Europol's
extensive agreements with third states and non-EU related bodies.
14.11 We are also pleased to learn that the UK's wish
to have access to Article 100 data without needing to opt in to
the Regulation seems to have been satisfactorily met.
14.12 We now clear the documents.
18 The
third pillar contains provisions on police and judicial co-operation
in criminal matters. The first pillar is the European Communities. Back
19 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
20 This
Article is concerned with carrier liability. Back
21 This
Article is concerned with penalties for assisting unlawful entry. Back
22 These
Articles address information on persons wanted for extradition
(95) and discreet surveillance and specific checks (99). Back
23 This
Article is concerned with data on aliens to be refused entry. Back
24 Article
98 addresses witnesses and others summoned in connection with
criminal proceedings. Back
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