Examination of Witnesses (Questions 300-319)
Dr Wolfgang von Pommer Esche
27 NOVEMBER 2006
Q300 Chairman: Can I ask, in your German
identity card system are you now already applying biometrics?
Dr von Pommer Esche: The photo is on there and
we are on the way to introducing fingerprints via the EU legislation.
That was a very crucial point. It is as a result of the anti-terrorism
discussion in our country that we will introduce it.
Q301 Lord Teverson: Are the provisions
in the final SIS II Immigration Regulation on the right to information
sufficient, and also any remedies?
Dr von Pommer Esche: The right to information
is only regulated in the Regulation, not in the decision. I would
say in Article 29 of the Regulation in paragraph one there is
a reference made to the corresponding regulations in the Directive
but in paragraph two there are far-reaching exemptions, so the
question arises whether this right to information in practice
will be of any value for the data subjects.
Q302 Lord Teverson: I take it from the
way you have expressed that that your feeling is it is not satisfactory?
Dr von Pommer Esche: Yes. The exceptions, exemptions,
I do not know exactly the right word—
Lord Teverson: For my benefit, could
you remind me of the exceptions?
Chairman: As an example.
Q303 Lord Teverson: Under headings, briefly,
which you think particularly make this an unsatisfactory exercise?
Dr von Pommer Esche: I am looking for the English
version. This is the German version: "This information will
not be given or if personal data has not been collected from the
data subject", okay, I can understand that, "if the
information to the data subject is impossible or an unreasonable
amount of work is necessary."
Q304 Lord Teverson: Yes, yes.
Dr von Pommer Esche: "If the third state's
national has already got the information or if, according to domestic
law, a restriction to this right to information is provided for,
especially for reasons of national security" and so on. In
most cases, that is the case.
Q305 Chairman: Dr von Pommer Esche, can
I just tell you that I have the English text in front of me and
your translation is perfect.
Dr von Pommer Esche: Nearly perfect!
Q306 Lord Avebury: Can I ask you a more
general question, which is whether you think that there are any
specific provisions in the SIS II text or the SIRENE manual which
need to be changed? Maybe you would want to take notice of that
and let us have a written answer rather than running through the
whole gamut of alterations that you would like to see if the alterations
that you would envisage are at all extensive.
Dr von Pommer Esche: I would say as for the
access to the immigration data, entitled authorities are authorities
competent for border controls but also other police and customs
authorities for making their checks. This enlargement, the second
possibility, was not foreseen in the first draft of the SIS II
Regulations. I would say this was a consequent approach of the
Commission but in the course of the negotiations Member States
have insisted that the normal police forces should have access
to this immigration data, but in my view that is going too far.
Q307 Lord Avebury: I wonder if you have
looked at the report by the European Parliament rapporteur which
details a number of amendments that he would like to see in the
text. I wondered, if you have had an opportunity of considering
those, whether you have any opinion on them.
Dr von Pommer Esche: To be quite frank, I receive
so many documents every day that I cannot cope with all these
documents, it is too much.
Q308 Lord Dubs: I think we understand
that.
Dr von Pommer Esche: Every morning I open my
computer and there is a full range of documents. It seems to be
a short document but then there are all the attachments, it is
awful.
Chairman: Dr von Pommer Esche, I think
on behalf of our Committee I should apologise for having added
to your documents.
Q309 Baroness Bonham-Carter of Yarnbury:
It has been decided that the Commission will not run SIS II but
an agency. Do you have any concerns about the accountability of
this future agency and, indeed, the French and Austrian authorities
who are running it in the meantime?
Dr von Pommer Esche: I am not sure whether that
is a data protection matter. We have been dealing with the Schengen
System since 1995 and at the moment it is in the competence of
the Member States but it is managed by the French Republic. I
have participated in some information and control visits to Strasbourg
and I have not seen any problems arising from France's special
role. I do not see greater problems if SIS II were managed under
the auspices of the Commission via a special agency alone.
Q310 Earl of Caithness: Doctor, do you
think that the Data Protection Directive should be a model for
the Framework Decision on Data Protection?
Dr von Pommer Esche: There are several resolutions
and recommendations of the European Data Protection Conference.
It is also mentioned in the statement of the Schengen JSA and
the statement or opinion of Mr Hustinx of the EDPS. We should
not invent a new kind of data protection for third pillar matters
because that is confusing for the user and it is especially confusing
for data subjects, for European citizens. If we need a third pillar
mechanism, data protection mechanism, we should stick as closely
as possible to the provisions of the Directive. It is clear that
the Directive is applicable to the non-public sector. The relationships
between the data processing bodies and citizens in the private
field are mainly based on treaties, on contracts, whereas in the
public field there is a relationship of highest and lowest, the
highest are the public bodies and lowest the citizens, which is
another relationship. We cannot use the regulations of the Directive
one-to-one in the field of the third pillar but as far as possible
we should use them for the rights of the citizens.
Q311 Earl of Caithness: Can I follow
that up? Do you think that the Schengen II System is making data
protection more difficult and is it adversely affecting the individual
in comparison with the present situation?
Dr von Pommer Esche: The difficulty perhaps
is that in future we will have two or three acts. We will have
the decision and two regulations. We will have three models. At
the moment we have the Schengen Implementation Convention and
the regulations dealing with data protection in the SIS are Articles
92 to 119 for dealing directly with the SIS, and in addition we
have the regulations of Articles 126 to 130 that are the data
protection rules outside the SIS. The latter will be replaced
by the Framework Decision on Data Protection and Articles 92 to
119 will be replaced by the Framework Decision on SIS II and Framework
Regulations on SIS II. Maybe in the future it will be clearer
than it is now. I hope so.
Q312 Lord Dubs: The forthcoming German
Presidency is planning to propose that the Treaty of Prüm
becomes part of EU law. Would this have any implications for SIS
II and the related data protection regime? Could I ask you an
additional question as part of that. Do you have a personal view
on whether seven Member States should agree together and then
impose their agreement on the other Member States? Perhaps that
second question is a bit remote from the first one.
Dr von Pommer Esche: Thank you for that question.
Ten days ago I was at a symposium in Vienna to promote the Treaty
of Prüm and my task was to make a speech on the data protection
aspects of that Treaty. I have heard that it could be an objective
of Germany to make the Treaty into an EU instrument but it seems
to me that is not simple to realise because the Prüm Treaty
deals with first and third pillar material so you must create
several legal acts. It seemed to me rather complicated. As to
your second question, at the moment there are seven signatory
states and in Vienna it was said that four other EU Member States
are very interested in acceding to the Treaty, that would be Italy,
Slovenia, Finland and Portugal, so maybe in the course of next
year there will be 11 states, but it is still the minority of
the EU.
Q313 Chairman: Do you have a text of
your speech? Is it public? Do you have a copy of your speech at
the seminar?
Dr von Pommer Esche: The speech is part of the
documentation but it is in German.
Q314 Chairman: But it is a public document.
Dr von Pommer Esche: I made this speech in Vienna
so I spoke in German.
Q315 Chairman: Of course, but it is a
public document.
Dr von Pommer Esche: You can ask.
Q316 Chairman: Can I ask you to consider
whether it would be helpful for us to see the text of your speech
because it seems to me that a German view on this would be extremely
helpful.
Dr von Pommer Esche: The Treaty of Prüm
was dealt with in the symposium by different aspects.
Q317 Chairman: Indeed, yes, but I think
your views on the data protection implications would be of definite
interest to us.
Dr von Pommer Esche: At the start there were
general statements by the Austrian Minister of the Interior and
then the Netherlands Minister of Justice and the German State
Secretary of the Federal Ministry of the Interior and then the
experts.
Chairman: Dr von Pommer Esche, you have
answered our questions extremely helpfully, it has been very useful.
Q318 Earl of Listowel: I am sorry to
interrupt you, my Lord Chairman, but might I ask our witness if
he has knowledge about the Schengen Evaluation Teams. If so, perhaps
he could say something about the degree to which they co-operate,
particularly those teams that go in to monitor after the first
assessment for acceptance, whether there is sufficient co-operation
between the teams and, I think it is, the national ombudsmen.
I heard some concern that there is not perhaps enough co-operation
on those assessments.
Dr von Pommer Esche: I have never been part
of such a team. Germany was visited by such a team in the late
1990s. We also had a visit from the team at our office. A team
has also visited the Bundeskriminalamt and they have made
inspections on the borders. I do not know very much about the
working methods of these teams. If new countries accede to the
Schengen Treaty via the EU, then the Schengen JSA gives an opinion
and in that capacity and in that context we get knowledge of the
reports from these teams but personally I am not involved.
Q319 Chairman: Doctor, I wonder if I
could ask rather a personal question. We all understand, and I
think perhaps regret, the reasons why the British Government does
not take part in immigration exchange. Can I ask you, does your
agency have bilateral contact with your British opposite numbers
outside the envelope of Schengen? In other words, do you have
a direct bilateral exchange with your British opposite numbers?
Dr von Pommer Esche: We have a good relationship
with David Smith but I would not say it is a special relationship.
It is a good relationship. I would not say we have special topics
to deal with jointly with our British colleagues.
| 
