Select Committee on European Union Minutes of Evidence

Examination of Witnesses (Questions 380-399)


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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