Examination of Witnesses (Questions 380-399)
MR JONATHAN
FAULL, DR
FRANK PAUL
AND MRS
MARIE-HÉLÈNE
BOULANGER
28 NOVEMBER 2006
Q380 Chairman:
Thank you very much indeed to the three of you for coming. Particular
thanks for coming here to meet us rather than us going to meet
you, it is very good of you. It is very nice to see you again.
If I may say so, you are becoming quite a friend of this Committee.
Mr Faull: I hope you say that afterwards.
Q381 Chairman: I hope the friendship
will last the session!
Mr Faull: Exactly.
Q382 Chairman: Can I say that this meeting
is on the record. If at any point you want to go off the record,
you are entirely welcome, and that busy pen will be put down.
You will be sent a transcript in due course. Just for the record,
this is a Lords sub-committee scrutiny into Schengen II. Can I
also thank you for the written evidence you sent us in July, which
is extremely helpful. I hope you will forgive us if some of our
questions appear ignorant of the things you told us in July but
it is quite helpful sometimes to have things again on the record
and, indeed, to give you the opportunity to add anything you want
to say. Can I start off, please, by asking do you think that the
process of negotiating Schengen II legislation was transparent
enough both in terms of the public and national parliaments? Do
your plans to increase transparency within the European Union
include any initiative to increase transparency as far as the
co-decision process is concerned? Can I just add to that, that
we took evidence yesterday and it sounded to us as though quite
a lot of the information collected from Member States is not published.
Our question is, is publication not essential to enable functioning
of the SIS to be properly evaluated?
Mr Faull: Thank you, and good morning to you
all. It is a pleasure to be here.
Q383 Chairman: For the record, would
you just like to introduce yourself?
Mr Faull: I will introduce myself and my colleagues
with pleasure. My name is Jonathan Faull, I am Director-General
of Justice, Freedom and Security in the European Commission. On
my left is Dr Frank Paul who is Head of Unit in my Directorate-General
dealing with the large-scale computer systems including the Schengen
Information System. On my right is Marie-Hélène
Boulanger who works on the Schengen Information System with Frank
in his unit. If I may go straight into it, the question of transparency
is a very important one and it is not one wholly in our hands.
The transparency of a legislative process is a matter both of
the rules governing it and for the legislative institutions of
the Union, essentially the Council and the Parliament of course.
Therefore, the Commission is not solely responsible, not even
mainly responsible I would say, for the degree of transparency
that can be attained in this area. It may be important also to
preface a more substantive reply with a brief comment recalling
that the Schengen Information System, indeed the Schengen system
more generally, were born as intergovernmental initiatives and,
therefore, outside the mainstream system of making law and policy
in the European Community. That has gradually been changed over
the years as the system has been communitarised, as we say in
our jargon, but there are still some intergovernmental aspects
to it which may explain some of what may be perceived as limited
transparency. The legislative proposals that the Commission made
for the SIS II system are, of course, extremely important and
a certain amount of urgency has been attached to their adoption
because, as you will be aware, there is considerable pressure
on all of the European institutions to get the Schengen Information
System second generation up and running as soon as possible so
that political decisions which will be needed at the end of the
day to admit the new Member States to the Schengen area can be
taken. People rightly want decisions to be made as quickly as
possible. SIS II is an essential part of that process. That is
why we all tried to secure the adoption of the set of legislative
instruments in first reading and, therefore, a certain amount
of pressure was put by others on us, and by us on the Council
and the Parliament, to keep things moving. Discussions in the
Parliament, of course, are held in public and before the voting
and first reading in the Parliament on amendments to the drafts
there was a public debate on 23 November at which the Vice-President
of the Commission, Franco Frattini, spoke. The co-decision process
between the Council and the Parliament really is a matter for
them. We support the maximum transparency in that process consistent
with the law and consistent with what those two institutions believe
is appropriate. Therefore, we supported generally the European
Council's initiative in June 2006 to improve transparency in the
Council and in particular in the co-decision process, and the
Joint Declaration on Practical Arrangements for Co-decision which
dates back now to 1999 and is currently being revised in order
to improve transparency. There are a number of general initiatives
underway and on this specific initiative we have done what we
can.
Chairman: Thank you very much. Your mention
of Commissioner Frattini reminds me to ask you, please, to send
him my warm personal regards. I was very happy to see him in Helsinki
last week.
Q384 Earl of Caithness: Director-General,
you have said that it was a political decision not to publish
a lot of the statistics but there seems to have been a lot more
information that was available when there was the Schengen office
but as soon as it came to the Commission that information was
no longer made public. Was that a political decision or a bureaucratic
decision?
Mr Faull: I am not aware of any policy decision
to withhold information that was previously made available under
the former system. May I ask my colleague, Frank Paul?
Dr Paul: Are you referring to statistics on
the number of alerts, et cetera?
Q385 Earl of Caithness: Yes. From the
evidence that we got yesterday there seemed to be much less information
available.
Dr Paul: The answer is straightforward because
the SIS I, the current system, is already operational so there
are alerts and there are data. Because the SIS II is still under
development there are no data because the system is not yet operational.
By definition, there are no alerts whatsoever in the system which
explains why there are no statistics.
Q386 Earl of Caithness: I am sorry, my
question was not clear to you. The information we got yesterday
was that there was more information available when SIS I was controlled
by the Schengen office but when it moved into the Commission that
information was no longer made public.
Dr Paul: I am not aware of what sort of information
we would not disclose or what sort of information we might withhold
in relation to any information that would have been made public
by the SIS I. The current system is managed by the Council, it
is not managed by the Commission, that has to be made very clear.
We are only managing a system that is currently under development
and I think we have been very transparent in everything we do.
For instance, every six months we publish a report to the European
Parliament and the Council on the development of the SIS II. We
regularly send all the minutes of the SIS II committee, which
is a comitology committee, to the Parliament as well. I think
there is maximum transparency in everything we do related to the
SIS II. I strongly believe that in comparison with the current
system, the SIS I-plus, we have significantly increased transparency.
Q387 Chairman: Can I ask a question.
In your very helpful note of 28 July you say: "The underlying
rationale and nature of the system, ie SIS II, will remain the
same as the current SIS, an impact assessment and public consultation
were therefore not necessary". I do not know whether in the
light of the passage of time you want to add anything further
to that. The question, to which you have given an answer, is why
did you not consider an impact assessment necessary? The second
is, why did the explanatory memorandum of the proposals not explain
the text of the proposals in any way?
Mr Faull: I believe that is still correct. The
essential position we took was that because in most respects,
and I will explain the others, the SIS II responds to the same
needs and policy requirements as SIS I there was no need for an
elaborate new impact assessment. Where there are new features
there will be impact assessments, and I will come to that in a
minute. The purpose and objectives of SIS II, we believe, are
basically unchanged. The current text under negotiation between
Council and Parliament says, "The purpose of SIS II is to
ensure a high level of security within an area of freedom, security
and justice, including the maintenance of public security and
public policy, and the safeguarding of internal security and national
security in the territories of Member States, and to apply the
provision of Title IV of the Treaty relating to the movement of
persons in their territories using information communicated by
this system". That, I think, shows that the underlying rationale
and nature of the system are essentially unchanged as I wrote.
Nevertheless, when drafting our proposals, we took into account
the comments made on SIS I by national experts, by the Schengen
Joint Supervisory Authority and by other organisations as well
as opinions which have been set out by the European Data Protection
Joint Supervisory, the Article 29 Working Party. Where new functions
of considerable importance are involved, the full use of biometric
data and its use for searches, there will be a full prior assessment
by the Commission before that option is made available. That has
been agreed in the discussion between the Council and the European
Parliament: "Before this functionality is implemented in
SIS II, the Commission shall present a report on the availability
and readiness of the required technology on which the European
Parliament shall be consulted". Our conception of that is
that there will be an assessment of the impact as well. I understand
your concern that there was no commentary in the explanatory memorandum
on the actual articles of the three legal proposals. We are under
considerable pressure to keep these explanatory memoranda as short
as possible. We believe that we did provide enough substance for
people to understand and, indeed, to comment on what was proposed.
If we make excessively long texts, that leads to delay because
they all have to be translated, of course.
Chairman: I applaud the aim of that statement.
We will come back to biometrics later on, if we may.
Q388 Lord Avebury: I wonder if the Commission
is happy with the texts which are currently under negotiation
between the Council and the Parliament in the light of the considerable
amendments to the initial proposals. Have you any comments to
make in particular about the report from the European Parliament
issued by the rapporteur on 13 October, which presumably was the
subject of the debate on 23 October to which you referred in your
previous answer?
Mr Faull: Is the Commission ever happy? That
is an interesting question. As usual, we had a high level of ambition
in the proposals we initially made but in the legislative process
as it unfolds it usually turns out to be the case that more realism
prevails. While we can at the end of the day be satisfied that
the Community interest in which we make legislative proposals
is served by the text to which the Council and Parliament agree,
we may also believe that the Community interest would have been
better served if a higher level of ambition had been reached.
In this case we do believe that we have the requisite basis for
a successful Schengen Information System to be set up. If I may
take a series of points to comment on, I think we can say we are
satisfied overall. Regarding alerts for refusals of entry, the
conditions for issuing alerts have been tightened when dealing
with cases of threats to public policy or public security. An
individual assessment will have to be carried out before an alert
is entered on a third country national in the SIS II, which means
that collective decisions concerning several people will not be
allowed. We have taken account of recent case law from the Court
of Justice on the situation of family members of citizens of the
European Union. Directive 2004/38 came out and account had to
be taken of that. The new legal framework will allow the issuing
of SIS alerts on the basis of restrictive measures taken in accordance
with Article 15 of the Treaty on the European Union intended to
"prevent entry into or transit through the territory of Member
States, for example common positions reached to implement UN Security
Council travel bans for terrorist groups". All of that is
important and has been taken into account. We believe the data
protection regime is satisfactory. We have applied the Community's
data protection rules to the processing of SIS II data for the
purposes of refusing entry or stay. We have secured central supervision
in the sense that supervision of data processing done at the central
site will be under the responsibility of the European Data Protection
Supervisor in co-operation with national data protection authorities.
The European Data Protection Supervisor will, for this purpose,
replace the Schengen Joint Supervisory Authority. Individual data
protection rights have been secured, such as the right to information
for the data subject where now specific information is provided
for that purpose. Regarding the operational management of SIS
II we believe that the solution found by the co-legislators is
consistent with the Community's approach because in the first
instance management will be carried out by the Commission and
in the second phase, after a thorough debate, one of the options,
and the one we tend to favour at this stage, will be the devolution
of this responsibility to a European agency.
Q389 Lord Avebury: Are these amendments
that you have just been talking about incorporated in a consolidated
text or is that still to be published?
Mr Faull: Yes, there is a consolidated text
now.
Q390 Lord Avebury: Since the 23 November
meeting of the Parliament?
Mrs Boulanger: There is no formal adoption of
the text yet. I do not know exactly what is published yet but
the adopted text will incorporate all the points that have been
mentioned by Mr Jonathan Faull.
Q391 Lord Avebury: Could we have a copy
of that, do you think?
Mr Faull: It is a matter for the Council Secretariat,
not for me, but I am sure one can see what can be done.
Chairman: Thank you very much indeed.
Q392 Baroness Bonham-Carter of Yarnbury:
Picking up on what you were just saying, originally, according
to your paper of 28 July, you proposed that the Commission should
be responsible to ensure continuity between development and operation
of SIS II. Why do you think so many Member States are so insistent
that it be devolved to an agency? How would you assess the Commission's
record of managing the SIS II project up to this date?
Mr Faull: Overall I think we are reasonably
satisfied with the way the project is going. We regret that it
has been necessary to reschedule because of delays that have occurred.
They have caused frustration, and a lot of political concern particularly
in the new Member States of the Union. Most of the causes of delay,
and I am happy to go into them in detail if you like, have been
outside our control and I have to say that they are not uncommon
in very complex projects of this sort in Member States and elsewhere
in the world. This is a very complex, large-scale IT project involving
a whole set of national systems as well as the central system.
There is a great deal of effort made to co-ordinate the progress
of the national projects and the central European project. We
have two sites, one in Strasbourg and a back-up site near Salzburg
in Austria. Frankly, my Directorate-General is still a rather
small one in the scheme of Commission things. Where we have perhaps
failed to exercise supervision as well as we could, has been in
our relations with the main contractor for the central system
where there were some delays and we regret that very much. We
also had a bout of litigation against various awards of contracts,
both in my Directorate-General and another Directorate-General
of the Commission responsible for a network that we have to use
and there has been litigation in Member States. Again, this is
not unusual as these are large, rather juicy contracts. The bidders
who are not successful in getting the contract often go to court
and even if cases are won or settled at the end of the day, as
they were, there are delays. All of those things, I am afraid,
occurred and therefore a certain amount of delay, not of extraordinary
proportions but a certain amount of delay, has occurred and we
have therefore rescheduled the project. When I say "we",
essentially the Member States came to an agreement on a new schedule
for the project. They, by the way, took advantage of that rescheduling
process to add further months on for their own testing purposes
back at home. I think by its very nature this is a project where
a certain amount of learning takes place in doing. The project
has changed in nature in its short life. The computer specialists
working on it, both at our level and at the Member State level,
came up with new ideas, discovered new problems, asked for changes
in the way things were being done, a lot of the time perfectly
reasonably, and we had no problem in giving our consent to that,
but sometimes things were speeded up and sometimes they were not.
For all of these reasons there has been delay and it is regrettable.
I do not think that the Commission's management of the project,
and please remember that the Commission's management is limited
to the central part of it which is only one section of a much
wider set of projects, has been called into question to the extent
that people want to rush to an agency to implement the project
immediately. The agency idea is certainly a very important one,
and has our favour for that matter, for subsequent stages of this
project once it is up and running. The important thing now is
to get it ready so that the central system is ready to "go
live", as we say, the national systems are ready to plug
into it, the old systems adapting to it and the new Member State
systems newly created for that purpose, and then once we have
completed the Schengen evaluation inspections and reports in the
candidate countries for full membership of Schengen the Council
will be able to take the political decision to lift the internal
borders.
Q393 Baroness Bonham-Carter of Yarnbury:
But the agency was not your preference?
Mr Faull: The agency is not our preference at
this stage of the project, no.
Q394 Baroness Bonham-Carter of Yarnbury:
Can I just ask you one thing about the litigations that have held
things up which you mentioned. As I understand it, those were
about a perceived lack of transparency in the tender process.
Would you accept that?
Mr Faull: That was one of the arguments in one
of the cases, which is not uncommon.
Q395 Baroness Bonham-Carter of Yarnbury:
Is that something you regret?
Mr Faull: No. We had very good arguments to
respond to that allegation and we believe that we complied fully
with all the requirements in the procurement process.
Dr Paul: May I add something as regards the
reasons for the delay. As the Director-General mentioned, at times
there has been a temporary lack of performance or a slight under-performance
by the main contractor and an internal audit found had we supervised
the contract better then probably this under-performance would
not have happened. At the same time, the audit very clearly conceded,
as was indicated in the audit statement, that there was a structural
under-staffing and with the level of staffing we had at the time
we could not properly supervise the contract. What is very important
is to point out that under-performance in itself did not cause
the delay. The delay in the SIS II project was triggered by the
inability of the French administration to prepare the site on
time. That triggered the delay and then led to a broader discussion
about the rescheduling of the project and it was then that Member
State experts said, "Yes, and by the way we also need much
more time for testing our own systems". There is not a single
expert from Member States who has told us they need less time;
on the contrary, some of them insist even until today that they
would very much like to have more time to implement the national
systems.
Chairman: I think Lady Bonham-Carter
may want to move on to another question but can I first ask Lord
Teverson to come in.
Q396 Lord Teverson: I should explain
to you that I am new to this Committee. I would like to ask a
rather more question on the question of delay. Schengen became
part of the Acquis in 1999 and by 1999 we already knew that the
regatta approach to accession of new Member States was going to
stop and all ten were going to join in around 2004 and we knew
that Schengen I could only cope with 18 Member States, so in some
ways we have had getting on for eight years to prepare for this
now. From a general strategic point of view, and this is not particularly
a Commission point but more a broader EU issue, I do not understand
why we are where we are at the moment given the fact that we knew
we would be where we are eight years ago.
Mr Faull: Thinking back to 1999 I am not sure
that we did know that ten Member States would join in 2004. It
is true that the regatta approach was beginning to fray and political
decisions perhaps were already being prepared for a big bang,
but I do not think it was clear enough—I was doing something
completely different then—for serious planning for Schengen
expansion to begin immediately. I think that would have been premature.
Nevertheless, I take your general point that this was a challenge
that was bound to come and the earlier we started planning for
it, all of us, the better, there is no doubt about that. All I
can say is we started when we thought it was reasonably necessary
and prudent to do so. We realised from the outset that this was
a project of considerable technical, economic, political, legal
complexity and magnitude and perhaps we did not anticipate all
the obstacles which we would have to jump over or get round, but
we thought very hard about what most of them would be and tried
to devise solutions. I think we expected the legal basis instruments
to be ready earlier than they were. Because it is in the nature
of these large procurement projects, we expected someone to sue
somebody at some stage, but you never know when and where and
how and what the outcome will be, so you cannot provide for all
eventualities. Frankly, we did not expect to have the problems
we encountered on the French site with the preparatory work, and
it came down to such basic issues as getting the air conditioning
right because these are massive computers requiring climate control.
We did not expect to have the difficulties we have had there just
as we are still surprised to be facing problems today, frankly,
about the provision of some of the data needed for the tests to
be carried out which in turn will provide either confirmation
that everything is right or additional problems to be solved in
the detailed design of the system. As I speak to you today we
are still waiting for the French managers of the C.CIS system
down in Strasbourg to provide some of the data necessary for testing
purposes and we have not got them. Yes, there are some unforeseen
problems that one may say we should have worked harder to anticipate.
I think we anticipated as much as we could but this was always
going to be a lengthy project. I regret that it is a little lengthier
than we originally thought it would be but it will be delivered
pretty soon. We all recall the SIS I system which we have all
got used to and seems to be working so happily: that was how many
years late?
Dr Paul: Three years.
Mr Faull: Three years late all those years ago.
We are not complacent and any day's delay is regretted but we
will get SIS II up and running very soon.
Q397 Earl of Caithness: I would like
to take you back to some of the court cases, in particular the
Cap Gemini case where the ECR said that "prima
facie the Commission committed a manifest error of assessment
in awarding the tender". Would you like to comment on that,
please?
Mr Faull: We believe we had very good arguments
for rebutting that prima facie finding by the court. The
President of the Court has to make a prima facie finding
as one of the conditions for issuing an injunction. We had good
arguments against that. They were never tested in court because,
as you know, the case was settled and withdrawn.
Chairman: The next question was going
to be about delays but, if I may say so, you have given us a very
comprehensive and persuasive answer.
Q398 Earl of Caithness: Can I ask a supplementary
on delays. Could you tell me what the update position is with
regard to the claim by various countries like Poland and the Czech
Republic for compensation from the Commission for the delays and
being treated like second-class citizens?
Mr Faull: Nobody has been treated like a second-class
citizen.
Q399 Earl of Caithness: That is what
the Czechs say.
Mr Faull: I know. I am afraid there are allegations
but they are not founded. I regret very much that political perception
which I have to acknowledge is out there. The effort to be made
here and there to bring the new Member States, Poland, the Czech
Republic for example, into the Schengen System is a considerable
one. We are making that effort and I am sure the Poles and the
Czechs are making that effort. There have been delays in Poland
and the Czech Republic, there have been delays elsewhere and there
have been delays centrally and they are all to be regretted. I
do not think there is any intention on anybody's part to treat
any Member State differently from any other. Our only role in
this is to enable the Council to make the decision on lifting
the internal borders as soon as possible knowing that the conditions
in the SIS II system, which is so essential for our security and
for law enforcement within the Schengen area, are properly in
place. That is our responsibility, we are doing that. We are not
getting into name calling or blaming and shaming. There have been
delays in various places but all Member States wanting to join
the Schengen area should have an opportunity to do so as soon
as all the appropriate conditions are met.
Chairman: Thank you very much indeed.
I think we should move on to biometrics.
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