Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 73-79)

Professor Kees Groenendijk, Ms Evelien Brouwer, Professor Theo de Roos and Professor Elspeth Guild

18 OCTOBER 2006

  Q73  Chairman:Good morning, ladies and gentleman, to be joined by another gentleman shortly; I understand that he is on his way. Welcome to all of you. If I may say, Ms Brouwer, a special welcome to Professor Groenendijk and to Elspeth Guild who are longstanding friends of this Committee, or at least I hope you regard yourselves in that way. This session is on the record and you will in due course be sent a transcript of the evidence for you to check that we have it correctly recorded. It is being broadcast but not televised. It is very good of you to come and particularly good of you to come from some way away. Do any of you want to make any opening statement or opening comment?

  Professor Groenendijk: First of all, I would like to thank you for the invitation and once again commend this subcommittee for its very important contribution to democracy and rule of law in Europe by holding these kinds of hearings. It is the only national parliament which does so. I think that the issue of SIS is especially important because the questions you have formulated and the issues you are discussing now arise in regard to the Schengen Information System that contains personal data of about 700,000 to 800,000 third country nationals but the same questions will arise or are on the table with regard to the Visa Information System which will contain the data on millions of third country nationals. So, the theme is a very important one. If you will allow me to draw one more parallel, I remember that, during the negotiations on the Schengen Implementing Agreement in 1989, there was a great deal of pressure put on discussions around issues such as remedies and protection of privacy, but then we had to rush because everything had to be agreed in 1990 in order that the system could be in place in 1992. Eventually SIS became operative only in 1995. Now, we have exactly the same pressure again, that everything should be decided within a few months and even now there is talk about SIS II being operative in 2008. Why do we not take some time to discuss these very important issues and why do we allow ourselves to be rushed—and I will not say by the politicians because that may be a bad thing to say in this House?

  Q74  Chairman: Thank you very much for that. Incidentally, I should have thanked Elspeth Guild and Ms Brouwer for your written evidence.

  Professor Groenendijk: May I introduce Ms Brouwer? She is a PhD student at the Radboud University Nijmegen. She is writing her dissertation on the functioning of the Schengen Information System in France, Germany and the Netherlands. That is why we are very happy to have her on our Committee. Professor de Roos will arrive at any moment; he is on another plane.

  Q75  Chairman: When it is written, I hope that you will send us a copy. I think that my first question leads on very much from what Professor Groenendijk has said because it is a rather speculative question and that is, what improvements could have been made to the process of negotiating the SIS II legislative instruments? Are you satisfied with the transparency of the process and should there have been an impact assessment or public consultation? All three of you—and the same will of course apply to Professor de Roos when he is here—are welcome to answer any or all of the questions. Who would like to have a shot at that one?

  Ms Brouwer: The Meijers Committee welcomes the fact that the European Parliament has been much better involved in the decision making on SIS II and not only with regard to the Regulation on SIS II but also with regard to the Decision. As we have seen in the last weeks, the LIBE Committee was able to decide or take a part in the package deal on two decisions. I think that is an improvement and you could say that this is a start for more transparent decision making. We are concerned however that there have been many decisions adopted between 2001 and 2006 on the actual use of SIS, extending the use, giving new authorities access to SIS, and broadening the functioning of SIS. This has already been incorporated now in the decision making on SIS II. This piecemeal approach, as it is called, is making for opaque decision making on this issue. Secondly, national parliaments and the UK Parliament have found it very difficult to cope with the different amendments since the European Commission published the proposal in 2005. As you probably know better than we do, there have been many amendments from the Member States and, every time there is a new proposal from one Member State, it makes it very difficult to see what is really happening to such an important issue like SIS, as Professor Groenendijk mentioned. So, we are not very happy with the actual decision making.

  Q76  Chairman: What about impact assessment? Why do you think that none was done in this case?

  Ms Brouwer: That is a good question because, in 2004, the European Council decided that, for large IT databases such as SIS, there should be an extended impact assessment and there has not been one on SIS II. Professor Peers knows the decision-making process better in the third pillar framework but I think it would have been a good opportunity to make such an extended impact assessment. If you would allow me to say one more thing, the Meijers Committee has commented on the extended impact assessment on the Visa Information System. You cannot say that there was a proper balancing of the positive and the negative aspects of VIS. You could have doubts about whether this was the perfect assessment before reaching a decision on the Visa Information System, but it is a start.

  Professor Guild: I would like to add a few comments as well from the perspective of ILPA. We note from the proposed Regulation and the Decision on SIS II which have now been agreed with the European Parliament that, rather than more transparency by the involvement of Parliament, what seems to be happening is that the European Parliament is being taken into the shadows with everybody else. They are agreeing in private negotiations and then what will happen is that the Regulation and the Decision will be adopted at first reading by the European Parliament. Therefore, instead of the Parliament necessarily increasing transparency, it in fact seems to be being drawn into negotiations behind closed doors and while we have a much better system of releasing documents, I am not sure that transparency is what is happening.

  Q77  Chairman: May I interrupt you there and ask you: are you aware of complaints from the European Parliament at this lack of transparency?

  Professor Guild: I do not know about complaints by them because they are involved. It is us—we are excluded. They are in, so they have stopped complaining, but we are not in. It is all very well and good but it does not solve the problem from the perspective of civil society. On public consultation, we notice that the European Data Protection Supervisor and national data protection supervisors in fact made a number of comments in respect of both of these proposals, but we do not notice that their comments having been received actually made much impact. We are somewhat concerned about whether, even if there is public consultation, consultation is being taken sufficiently into account. Is sufficient weight being given to those who are going to have the duty of enforcement? There seems to be a very heavy obligation on data protection supervisors to provide an intermediary control of SIS II. On impact assessments, I would certainly support what Evelien Brouwer has said. In my view, the problem about impact assessments is that so far they are done by the same people who are writing the proposal, so they are not independent, and they are designed to justify the proposal. Therefore, I am not quite sure why we are calling them "impact assessments", they are explanatory memoranda.

  Q78  Earl of Caithness: Do you have any evidence that the current SIS has proved its efficiency and added value for maintaining a high level of security in an area without internal border control and, if so, what is the evidence?

  Ms Brouwer: Your question is as to whether the current use of SIS works for improving security. That is a very good question and you would have thought this would be the first question to answer, when starting with the development of the second generation SIS. Is the current SIS actually functioning? I have not seen any document at the EU level or the national level where Member States or national police organisations are saying that security is much higher now and SIS works. I think that if you ask immigration law officers, they will tell you that it works because it is sort of efficient. From an immigration law point of view, I do not say that it works—and we will come on later to that—because there are a number of deficiencies. I think that immigration law authorities will tell you that we have a good system: that you put persons into the system and another authority in another country will know that this person has to be refused entrance. For policing and law enforcement authorities, at this moment, I have not seen evidence that SIS is giving added value and, from my research, I think that immigration law authorities will say that it is a very useful tool but only in a restricted sense.

  Q79  Lord Avebury: Can you say anything about the impact of the multidisciplinary group on organised crime and its work on the European data protection framework on SIS II? To what extent does the work of this multidisciplinary group have an effect on the data protection regime to be adopted for SIS II? How did such a group come into being to look at these aspects of the European data protection framework?

  Ms Brouwer: I think that would be a good question to ask Professor de Roos when he arrives. Do you mean the actual framework decision on data protection that has now been drafted and how that will work?

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