Select Committee on European Scrutiny Thirty-Seventh Report

24 Schengen Information System
















Draft Decision on the establishment, operation and use of the second generation Schengen Information System (SIS II)

Revised draft of the proposed Decision

Draft Regulation on the establishment, operation and use of the second generation Schengen Information System (SIS II)

Revised draft of the Regulation

Legal base(a) and (b) Articles 30(1)(a) and (b), 31(1)(a) and (b) and 34(2)(c) EU; consultation; unanimity

(c) and (d) Articles 62(2)(a) and 66 EC; co-decision; QMV

Deposited in Parliament(b) and (d) 20 July 2006
DepartmentHome Office
Basis of consideration(b) and (d) EM of 4 August 2006
Previous Committee Report(a) HC 34-xxxv (2005-06), para 7 (12 July 2006)

(c) HC 34-xxxiii (2005-06), para 6 (28 June 2006)

(b) and (d) None

Discussed in Council24 July 2006
Committee's assessmentPolitically important
Committee's decision(a) and (c) Cleared

(b) and (d) Not cleared; further information awaited

SIS I and II

24.1 The main aim of the Schengen Convention of 1990 was to abolish checks at the borders between the signatory States while strengthening control of the external borders of the Schengen area. In addition, the Convention and subsequent measures contain provisions on police and judicial co-operation for the detection and prosecution of serious cross-border crime. The collective name for the Convention and subsequent agreements is "the Schengen acquis". The UK is not part of the Schengen area and does not participate in the immigration and border control provisions of the acquis, but it does participate in the provisions on police and judicial co-operation.

24.2 The present Schengen Information System (SIS I) dates from 1995. It contains information about, for example, people wanted for arrest or extradition, third-country nationals to be denied entry, missing persons, and stolen vehicles, firearms and other property. It comprises a central database and national databases. The system is capable of serving a maximum of 18 States.

24.3 In 2001, the Commission was given a mandate to develop the second generation of the Schengen Information System (SIS II). The purpose of SIS II is to enable up to 30 States to participate in the System and to include biometric data in the information it holds. In addition to the Member States, Iceland, Norway and Switzerland will take part in SIS II, which is due to become operational in 2007.

Proposals for a Decision and a Regulation

24.4 In May 2005, the Commission presented the draft of a Decision on the police and judicial co-operation aspects of SIS II. It also presented a draft Regulation on the immigration aspects. Separate measures are required because the legal bases for the provisions on police and judicial co-operation are in the EU Treaty, whereas the legal bases for the immigration provisions are in the EC Treaty.

24.5 The UK is excluded from the proposed Regulation because it does not take part in the immigration provisions of the Schengen acquis. But it has an interest in it because the draft Decision and the draft Regulation have common provisions on matters such as the purpose, scope, architecture, management and security of SIS II.

24.6 In addition to those common provisions, the draft Decision includes specific provision on the information which may be entered on SIS II about people wanted for arrest, extradition, or appearance as witnesses in criminal proceedings and about the surveillance of people or objects (such as stolen vehicles, identity papers, money or firearms).

24.7 In addition to the common provisions, the draft Regulation specifies the conditions on which information may be entered on SIS II about third-country nationals to be refused entry or stay in the territory of the Member States and contains provisions about access to the data and the retention, processing and protection of the information.

Previous scrutiny of documents (a) and (c)

24.8 We have considered successive revisions of texts of the draft Decision and Regulation, culminating in our scrutiny of document (a) in July and document (c) in June.[67] The Government told us that it was broadly content with both drafts. We kept the documents under scrutiny pending receipt of the Information Commissioner's views on the data protection provisions (which we had previously asked the Minister to obtain).

Documents (b) and (d)

24.9 The drafts of the Decision and Regulation have been further amended to take account of both the views of the European Parliament and negotiations in the Council. Most of the amendments are minor. For example, provision has been added to the proposed common Article on the exchange of supplementary information to require requests for supplementary information to be answered as soon as possible.

24.10 A few of the amendments are of greater substance. Notably:

  • Article 27AA of document (d) and Article 48 of document (b) would now prohibit the transfer of personal data to third countries or international organisations; and
  • an annex containing a draft Declaration by the Commission, the Council and the European Parliament has been added to both documents. It invites the Commission to make legislative proposals for the creation of a new Agency to be responsible for the operational management of SIS II (in the short term, France and Austria will have the responsibility). The draft proposes a commitment by the Commission to present the draft legislation within two years of documents (b) and (d) coming into effect; and a commitment by the European Parliament and the Council to adopt the legislation in time for the Agency to begin its work within five years.

The Government's view on documents (b) and (d)

24.11 The Parliamentary Under-Secretary of State at the Home Office (Joan Ryan) tells us that the Government supports the creation of a new, independent Agency to be responsible for the operational management of SIS II after a transitional period. However, the Government regrets the proposal for an absolute prohibition on the exchange of personal data with third countries or international organisations even if they have robust data protection arrangements. Otherwise, the Government is content with or welcomes the amendments incorporated in document (b) and (d).


24.12 We are grateful to the Minister for her clear and comprehensive Explanatory Memorandum. We see no need to differ from the Government's assessment of the amendments. As we have made clear repeatedly, we regard the data protection arrangements as crucial and we shall not reach a conclusion on them until the Minister has told us about the views of the Information Commissioner on the proposed arrangements.

24.13 Accordingly, we shall keep documents (b) and (d) under scrutiny. But we clear documents (a) and (c) because they have been superseded by the revised texts.

67   See headnote. Back

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