Examination of Witnesses (Questions 280-299)
Dr Wolfgang von Pommer Esche
27 NOVEMBER 2006
Q280 Chairman: The same is true of the
Data Framework Directive and negotiation of SIS II?
Dr von Pommer Esche: Yes.
Q281 Chairman: Good. Thank you very much.
Dr von Pommer Esche: We get papers and papers.
It is only a question of the capacity to cope with all of these
papers. In my unit there are only five of us.
Chairman: I can understand the problem.
Q282 Lord Avebury: Within your knowledge
of the regimes of data protection in other Member States, do you
consider that they all have sufficient resources to carry out
the tasks that are expected of them under the current SIS rules
and also under the SIS II legislation?
Dr von Pommer Esche: I am not informed about
the state of knowledge in other countries but I have got the impression
via discussions with my colleagues in other countries that in
most cases in Germany we are better informed than my colleagues
in other countries, although the government is in Berlin and we
are still in Bonn and that means we are 550 kilometres from the
government. Maybe you have heard about the Prüm Treaty. I
had the impression from some colleagues that they were not at
all informed about the negotiations of such a far-reaching Treaty
or far-reaching project like the Treaty of Prüm.
Q283 Baroness Bonham-Carter of Yarnbury:
Can I ask you about access to data. I believe that the Commission
have proposed detailed new rules on access and the Austrian Presidency
has proposed instead simply retaining the Schengen Convention.
In your opinion, is the SIS II legislation sufficiently precise
as regards which authorities can access data and for what purpose
data can be used? Does the third pillar SIS II decision sufficiently
limit the purpose for which data can be used?
Dr von Pommer Esche: Thank you for that question.
In principle I would say that the legislation or the proposals
are clear enough with one exception: at the end of the negotiations
in September/October there was a question as to whether the secret
services shall have access to the SIS, not to all kinds of data
but to certain alerts, and I found the wording of that clause
in the proposals very tricky. It was very difficult to understand
what was behind this wording. It has not been denied. It was approved
by the Council but the Parliament was against the inclusion of
the secret services to get access.
Q284 Baroness Bonham-Carter of Yarnbury:
Are you concerned about the possible access to data for asylum
purposes?
Dr von Pommer Esche: By which authorities?
Q285 Baroness Bonham-Carter of Yarnbury:
By any authorities. Are there sufficient safeguards, I suppose
is what I am asking you.
Dr von Pommer Esche: The access to the immigration
data is regulated in Article 17 of the draft Regulation. As far
as there is a reference to other EU or EC regulations, I do not
find it very clear to define the competent authorities by reference
to other regulations. On the other hand, I must say in the first
draft, in the first version of the Regulation, it was still open
as to whether other authorities will have access to this data
and the police forces also. I think that these possibilities have
been deleted.
Q286 Earl of Caithness: Doctor, is the
relationship between the general data protection rules in EU legislation,
that is the 1995 Directive and the proposed Framework Decision,
and the SIS II legislation sufficiently clear in your view?
Dr von Pommer Esche: That was one of the key
questions when we discussed these proposals in the different bodies.
There are several regulations or several provisions to be taken
into account. As basic regulations we have the Directive of 1995
for the first pillar, then we have the project of a Framework
Decision on third pillar data protection, then we have the two
SIS regulations and we have Regulation 45/2001. In Germany we
have a data protection regime of general law and of specific law.
We have a federal Data Protection Act with general regulations
which is applicable unless there are specific rules. In Germany
we do not have problems with this competition between different
rules. As far as a matter is regulated, and exhaustively regulated,
in a specific act this specific act prevails. The general act
is only applicable insofar as there are no specific regulations.
In the field of the EC and EU Law we feel that will have the same
relationship with competition. There are some problems, for instance
as regards the right of access and the right to information. So
far in the draft Framework Decision on data protection there is
a right of access and a right to information whereas, as far as
I know, in the SIS II decision there is no right to information,
so the question arises if there is no right to information in
the specific legislation. Is the right to information in the general
rule, that means in the Framework Decision or data protection
third pillar, applicable or not? From my point of view I would
say although there is no regulation on the right to information
in SIS II, there is the intention of the legislator that there
should not be a right to information in the field of Schengen.
That means the general rule cannot replace the missing regulation
in the SIS decision. That is my opinion.
Q287 Earl of Caithness: Do you think
your view is the majority view? Do you think that is how it will
be interpreted?
Dr von Pommer Esche: I have not had any discussions
with other colleagues. I have read your questions and I have thought
about the problems. We have discussed these problems in general
and dealt with them in the opinions of the Article 29 Group and
in the Schengen JSA but we did not go so far into the details.
Q288 Lord Dubs: I think my question has
largely been answered but if there is anything left to answer
I will give you the opportunity. My question is this: how would
you assess the current state of negotiations on the Framework
Decision on data protection? To what extent would the Framework
Decision, in the latest available text, affect the standard of
data protection provided for in the SIS II decision, for example
as regards a right to information? I think you have dealt with
a lot of that.
Dr von Pommer Esche: As for the state of discussion
on the Framework Decision, I find it disappointing. The Member
States in the MDG have brought themselves to a negotiation situation
where it is difficult to find a way out.
Q289 Chairman: Are you talking about
the Council or the—
Dr von Pommer Esche: The Framework Decision
on data protection is discussed in the Council and in the Parliament.
Q290 Lord Avebury: Do you have access
to any of the working papers of the MDG? How do you know what
is going on there?
Dr von Pommer Esche: I do not have all the papers
which are tabled in the MDG but for each meeting the Federal Government
prepares a joint position for further discussions in the MDG and
in other Council working groups. As far as data protection legislation
or questions are concerned, we are involved in most cases. I do
not have any comments on that because I am outside the Federal
Government.
Q291 Baroness Henig: Do you believe that
the United Kingdom should have access to immigration data, at
least for some purposes, such as asylum, or at least to come categories
of that data, such as persons who are listed because they have
committed criminal offences or are believed to have committed,
or to be intending to commit, such offences?
Dr von Pommer Esche: I do not know whether you
want to hear this or not, but my opinion is that the United Kingdom
Government should not get access to the immigration data because
the file with immigration data is a collection that for me is
a compensatory mechanism for the abolition of the border controls.
As the United Kingdom is insisting on the border controls I would
find it out of proportion if the United Kingdom got access to
this data for whatever purpose.
Q292 Baroness Henig: So is this quite
a principled response from you?
Dr von Pommer Esche: Yes, for me it is a principled
question.
Q293 Baroness Henig: So you would not
take a pragmatic view that—
Dr von Pommer Esche: In that case I would say
that this is not an official opinion of the Data Protection Committee,
it is my opinion.
Q294 Baroness Henig: Can I just ask how
widely shared is your opinion, do you think?
Dr von Pommer Esche: How wide is it?
Q295 Baroness Henig: Yes. If we talked
to a cross-section of people who hold important positions such
as you, would that be a general view do you think?
Dr von Pommer Esche: I have not had an exchange
of views with the Federal Government, so it is not in discussion.
Q296 Baroness Henig: I meant people within
the EU, people who are perhaps holding positions as you are, not
necessarily German but other nationalities. I just wondered whether
there were many of you who had discussed this and come to that
view.
Dr von Pommer Esche: We discussed the access
of the United Kingdom to the Schengen data files but that was
years ago. I do not remember the details.
Q297 Lord Dubs: I understand, of course,
that if the United Kingdom is not prepared to join Schengen then
we should not get the benefits of Schengen membership. I think
that is clear and I would not argue with that. However, it seems
to me that some of the immigration data, because of the fact that
international criminals and terrorists frequently cross borders,
is important in dealing with criminal activity. Is there not a
loss of information to the Schengen countries through not having
the UK's information and similarly there is a loss of information
for the UK in not having the Schengen countries' information as
part of the build-up of dealing with criminal activity?
Dr von Pommer Esche: I am aware that the United
Kingdom is one of the favourite targets of asylum seekers and
refugees from third countries and it is clear that international
criminality and cross-border terrorism is without frontiers, it
is a worldwide danger, but how will you limit or restrain the
access of the United Kingdom for what purposes or for which criminal
acts and so on? You must find a definition of "international
terrorism".
Q298 Chairman: Of course, it is not for
us to defend the British Government's decisions in this matter.
To some extent the position of the United Kingdom, and indeed
the position of Ireland, is a factor of our geography, would you
not agree? We do not have either the benefits, or perhaps the
disbenefits, of Germany. I cannot remember how many borders you
have but you have got a very large number. I think you have more
than any other member of the EU, do you not?
Dr von Pommer Esche: Yes, I think so.
Q299 Earl of Listowel: Doctor, does the
SIS II legislation provide sufficient safeguards in respect of
the biometric data and, if not, what should those safeguards be?
Dr von Pommer Esche: In the course of the negotiations
the regulations have been improved. For a long time it has been
crucial whether the biometric data should or should not be used
in the SIS but now it has been decided that the biometric data,
that means photographs and fingerprints, shall be used as features
in the SIS. For me it is understandable that biometric data are
used for a better identification and for reliable and fast identification
on the borders. The use of these biometric data and their involvement
is now regulated in Article 14a(c) of the regulation of both proposals.
At the moment the purpose of their use is to make one-to-one searches.
From my point of view, I do not have great objections to that
method but if you look at Article 14a(c), paragraph three, there
is an opening clause that in the long run these biometric data
should also be used for one-to-many searches. That means in that
case if the Schengen Information System was not used for control
purposes only, it would change its character to a kind of investigative
tool or method. That would be a new quality and in the long run
if Member States insist on that possibility, which I cannot exclude,
then we must reconsider additional safeguards. The use of biometrics
is combined with some risks, it is not 100 per cent sure, and
if you test the different methods of biometric features you have
high false rejection rates. That means at the moment the methods
are not reliable enough but the technique is going on and the
methods will be better and better in the future.
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