Select Committee on European Union Minutes of Evidence


Examination of Witnesses (Questions 420-439)

MR JONATHAN FAULL, DR FRANK PAUL AND MRS MARIE-HÉLÈNE BOULANGER

28 NOVEMBER 2006

  Q420  Baroness Bonham-Carter of Yarnbury: Can I put something to Dr Paul. One of the things when I listen to this is, and this is a very basic question, are you concerned about the co-ordination across all these different IT systems, all these different countries? Picking up on what Lord Teverson was saying, if you have got this cloned SIS-plus, or whatever it is called, coming into the middle of your plans, and it sounds to me like throwing off what you have been concentrating on, is there a real concern that this co-ordination of systems will be achieved?

  Dr Paul: Generally speaking, as regards the future management of the system, and that includes the co-ordination, the Commission adopted at the end of 2005, December 2005, a communication on possible synergies when managing large-scale European databases, including the SIS II, the VIS and EURODAC and any other systems that might emerge in our area. This clearly outlined a number of options and issues which are up for discussion with Member States now as to how to achieve a maximum of synergy and simply very efficient management of those systems to avoid those co-ordination issues that you have mentioned. Unfortunately, up to now the subsequent presidencies have not really taken up the issues that were pointed out in this Communication. We hope that this is going to happen very soon now because we have to move forward with this issue. As regards your question relating to the SIS one4all, this project will be managed by the Portuguese administration if it is adopted, of course, and the technical management will continue to happen at the C.SIS in Strasbourg which means the French administration mandated by the Member States. Legally speaking and, indeed, operationally speaking the Commission would not be involved in this SIS one4all project. Of course, speaking overall, especially at national level, the co-ordination will become more difficult and there will be an issue of resources to do the two things in parallel.

  Q421  Lord Avebury: Coming back to the question that I was down to ask initially, can I ask about the power to adopt implementing rules. Will they already have been settled prior to the appointment of the agency or will the agency that manages SIS II have the right and the power to adopt its own implementing rules? Secondly, could you tell us what mechanisms will be adopted to ensure the future accountability of whatever agency is appointed to run SIS II?

  Mr Faull: That is a very important question and it is one which arises frequently when agencies are created. Agencies cannot be given rule making or law making powers. The legislature remains responsible for that or, under delegated authority, the Commission and various comitology procedures, as you know, have been created to regulate all of that. What we cannot do is cede any discretionary policy-making power, let alone legislative authority, to an agency. All that said, and that is the legal position which should not surprise anybody, for an agency to operate particularly in a complex area like this it needs some margin for the taking of decisions to deal with issues that arise. The legislation creating it, therefore, has to be designed carefully so that all foreseeable eventualities are dealt with in some way and rules are laid down very clearly while allowing the agency to grow and deal with such issues as it can when they arise. We will go again into all of this in the impact assessment. It is indeed one of the issues relevant to the question whether an agency is the right solution. Can you craft an agency which can do this job properly? Frankly, I do not know the answer to that today. The whole process of impact assessment and then deliberation will help us answer it. I hope it is possible because I think these are important options which should not be discarded and I hope they are still in the race towards the end, but we will have to see. It is difficult but ways can be found to create a clear enough legislative framework so that the rules are made by the people with the authority to make them and with the democratic legitimacy required to make them, and the agency is given enough space in which to do its work on a day-to-day basis. It is not easy to do, it is a problem which all countries face as well as the Union as a whole, but we have all found ways to deal with the issue in the past. Frank, do you want to add anything to that?

  Dr Paul: Not necessarily, although if you will allow me I would like to come back to the question that was put earlier by Lord Teverson. I understood your question as meaning why has there not been enough strategic forward planning when developing the SIS II, is that correct?

  Q422  Lord Teverson: That is very concisely correct.

  Dr Paul: I think it is important to recall, and I was there at the time, that this was an historic development moving from the intergovernmental management to Community management. Indeed, the problem was that as early as 1996-97 it was seen that the current system would have some technical limitations, at least then it had technical limitations, which would not enable it to be enlarged to more than 18 Member States. It was already clear then that the European Union would be enlarged by more Member States. There was a very, very long and intensive discussion among Member States that lasted about five years on how to solve this issue. At the time Member States were very reluctant to entrust that enlargement to one single Member State, namely France, because it was already clear that eventually the system would move into the Community framework. It took Member States a long, long time to discuss this and at the end of the day it became clear that there was no other solution than to simply entrust the Commission with doing it because nobody could get agreement on who would do it. Therefore, we only got the mandate to develop the SIS II at the end of 2001. From then on we have moved as fast as we could possibly move. If you take a look at the history of large-scale IT systems, you might want to look at your own National Health System IT system, for example, these are complex systems.

  Q423  Chairman: We might indeed!

  Dr Paul: These are complex systems that take many years to develop. As large-scale IT systems go we have always worked to a very challenging timeframe.

  Q424  Chairman: I should just say on a personal level I have an unhappy history of a relationship with IT systems, but we will not go into that.

  Mr Faull: I do not think I fully answered the question about the role of the European Parliament and the accountability of an agency, again an issue which frequently arises in the whole area. We have comitology, we should have "agency-ology" as well, I think! The impact assessment will go into that. The role of the Parliament is important in all of the options we will consider and the Parliament would remind us of that if we were ever tempted to forget it, which we will not be. The role of the Council and Parliament in establishing the agency, in choosing its members, its chair and in supervising it, will be extremely important issues. Some of you will be familiar with the process we are agonisingly going through to set up a Fundamental Rights Agency at the moment and those issues are, once again, at the heart of one of the major debates about precisely how this agency should be created, to whom it should report, who is responsible for choosing its members and so on. These are very important questions.

  Q425  Baroness Bonham-Carter of Yarnbury: Another accountability question. The Commission has the possibility, as I understand it, to delegate its management of SIS II to Member States for a transitional period. Is this likely to happen? If so, how will the financial and legal accountability of those Member States be ensured, including as regards data protection?

  Mr Faull: Yes, indeed it is a very real possibility and the legislation makes that clear. The Commission would retain overall responsibility and would have to enforce strict compliance and control mechanisms under our financial regulation. We would have to set out in agreement between the Commission and the national bodies concerned all of the complex set of arrangements on legal, financial issues plus on accountability and transparency issues. We would certainly place them very high on our agenda and would want to be sure that the delegation of certain tasks to national bodies in that way would not undermine the roles of the Court of Justice, the Court of Auditors and the European Data Protection Supervisor, to name but a few. This would be a matter of negotiation and agreement between the Commission and the national authorities, and I can assure you that uppermost in our minds would be the issue of proper supervision and accountability.

  Q426  Baroness Bonham-Carter of Yarnbury: Is this process a result of pressure from Member States? What is behind it?

  Mr Faull: Well, no doubt some Member States think this is a good idea but we ourselves see merit in it as well. We have to use the experience that some of our national authorities have built up and where it makes sense for some sort of joint venture of this sort between the Community level and the national level to be set up, why not?

  Q427  Earl of Caithness: Does the Commission believe that there are any circumstances in which the UK should have access to alerts concerning non-admission of third country nationals, for example access for asylum purposes, or access only to alerts concerning persons subjected to an alert because of criminal convictions or alleged criminal activities? If so, how should that access be regulated?

  Mr Faull: As the United Kingdom does not participate in policy areas linked to alerts for the purpose of refusing entry it is not as a general rule to have access to those data. In my written evidence on the question of access for asylum authorities, I said that an ad hoc solution allowing indirect access for UK authorities could be examined once the legal instruments, including provision on access rights, have been adopted. There has been some preliminary discussion among the Member States with the Commission on this issue. The principles of proportionality and reciprocity would be at the heart of any such examination.

  Q428  Earl of Caithness: Would it not be a good thing for Europe if the UK did have access to some of the information in exactly the same way as it would be good for the Schengen countries to have access to some of the UK information? Surely if we are paying our full share, why are we not given access?

  Mr Faull: We believe that there are indeed good arguments for believing there is mutual benefit among the Schengen members on the one hand, and on the other the United Kingdom and Ireland, in sharing some information. We believe it would be of greater benefit to Europe if the Schengen area extended to the whole of the European Union but we understand at the moment that is not on the agenda. This is not simply a case of the United Kingdom seeking to have its cake and eat it, and I do not think the other Member States see it in that simplistic light either. The United Kingdom and Ireland have contributions to make to the overall security of the European Union and the others, I believe, through the Schengen Information System have contributions to make to the security of the United Kingdom and Ireland. Ways have been found in the past pragmatically to square these circles. As I said in my written evidence, by making the proper distinction between the uses to which information is put ad hoc solutions can be found.

  Q429  Lord Dubs: Can I ask a supplementary. I think that is very encouraging because we accept that not being in the club means we are not entitled to the benefits of the club, but I think this is rather different, this is a matter of dealing with possibly the link between criminal behaviour and movement across frontiers. Therefore, I would have thought that the Schengen countries have as much to benefit from as the UK if what you suggest were to happen. How likely is it to happen?

  Mr Faull: That is hard to predict and I do not really want to speculate. What I can say is that I think there is a perception in many quarters of the sort that you have described and there is mutual benefit. The United Kingdom, not being part of the Schengen, area should not have information relating to entry for the sole purpose of regulating entry because the United Kingdom has other arrangements in place regarding entry to its territory, but the wider security implications of some of this information need to be taken into account. I cannot tell you how this will come out but based on the past record I think there is some evidence that there is understanding of that position in London and also in continental capitals as well.

  Chairman: That is very helpful. I think I can confidently say that the implications of the partial opt-in or partial opt-out, depending on whether the glass is half full or half empty, for both the United Kingdom and Schengen countries will be an important part of our report and your explanation has been extremely helpful for us.

  Q430  Lord Dubs: What is the timetable for, and likely content of, further SIS II proposals concerning the harmonisation of alerts for non-admission of third country nationals, the rules on "flagging" certain criminal law and policing alerts, and the rules on remedies in the context of data protection? I know it is a mouthful.

  Mr Faull: I understand. We have to make an assessment within three years of what is called the go-live decision which is essentially when the SIS II system is plugged in and the existing Schengen countries can plug into it and the new Member States can be integrated into it. Within three years of go-live—my colleagues should correct me if I get this wrong, it is technical—we have to assess the impact of the new legal rules and evaluate the urgency with which a review should be carried out and the scale of the review to be carried out in order to see whether a further higher level of harmonisation is necessary and appropriate. We will do that exercise within three years of go-live.

  Q431  Baroness Henig: In the light of the judgment in Commission v Spain, is the Commission still monitoring the use of Schengen data by all Member States to ensure that no Member States breach EC free movement law or immigration or asylum law when they act upon an alert? Is the Commission also monitoring the issuing of alerts by Member States?

  Mr Faull: First of all, if there are complaints about failure to comply with Directive 2004/38 we of course take them very seriously. If there are complaints about refusal of entry or refusal of visas because of issues arising under that Directive we look at them very carefully as well and use both our informal powers of persuasion and formal powers to bring infringement proceedings against Member States where necessary. We also have an alternative dispute resolution mechanism known as SOLVIT, which is run by our Internal Market Directorate-General but we are associated with it for areas under our responsibility. It seeks to resolve very quickly problems in individual cases by asking the national authorities to move quickly. Overall that is a very satisfactory system and is often used as a preliminary phase before the lodging of a formal complaint which then triggers more formal proceedings.

  Q432  Earl of Listowel: Director-General, in relation to SIS is any information available on the number of complaints made about inaccurate data and other exercises of data protection rights?

  Mr Faull: We do not have those data. The Joint Supervisory Authority, or perhaps the national data protection authorities, would have them. From what we know it appears that the number of complaints is very small in comparison with the number of alerts stored in the SIS, but we do not have a figure. Is that right?

  Dr Paul: No, we do not.

  Q433  Lord Teverson: The Treaty of Prüm, which is again a group of Member States moving off in their own way, and we understand the German Presidency would like to see a movement towards that becoming part of the wider Community Acquis, what implications would that have for SIS II? Indeed, is the Commission in favour of this happening?

  Mr Faull: Yes, we are. We believe that the general Community interest would be well served by bringing the Prüm system into the Community's institutional framework and, therefore, we support the intentions of the German Presidency and will work with them to that end. We think that the Treaty of Prüm does not conflict with the scope and objectives of SIS II. In fact, it is consistent with them regarding the implementation of the principle of availability which was laid down in The Hague programme by the European Council. We have asked the incoming German Presidency to make sure that discussions on bringing Prüm into the Community fold are accompanied by discussions on implementation of the principle of availability. We note that the data protection system of the Treaty of Prüm is tailored specifically, of course not surprisingly, for that Treaty and we have no objections to the way in which that was done.

  Q434  Lord Teverson: Could I just interrupt you. Excuse me again for my lack of knowledge, but could you explain the principle of availability to me.

  Mr Faull: The principle of availability at the most general level says that information held by or for a law enforcement authority in a Member State should be made available to the law enforcement authorities of other Member States on the same conditions as those which would apply to making the information available to the law enforcement authority of the first Member State. That is terribly long-winded but you understand what I mean, It is national treatment. It is so general that everybody agrees to it. It is difficult to work out in practice although we are beginning to do that. It has a number of fairly wide-ranging implications, including that information which looks national or even local may be potentially of interest to law enforcement authorities in other Member States. We believe that is the case and that has a number of consequences for the way in which that information is dealt with. That brings me to data protection. One of the problems we have, and Prüm deals with it within its circumscribed scope, is the Union needs a data protection system for the third pillar as long as it remains in place, and the Council is busy working on a proposal for the establishment of a data protection framework decision, which is what Directives called the third pillar to simplify, and we hope very much that the German Presidency will carry that forward and, indeed, secure its adoption by the end of its term in office next year.

  Q435  Chairman: I think it is not irrelevant to this discussion to draw your attention to a report which this Committee produced on the Heiligendamm meeting, that is to say addressing both the accessibility and transparency of decisions taken by a limited number of Member States and the extent to which that applies to the whole European Union. I have just been prompted to ask you a supplementary question on that issue. As a general matter, does the Commission think that a number of Member States agreeing on their own legislation and then exporting it to the rest of the EU is a good way of legislating? If that is not a question expecting the answer "yes" or "no", I do not know what is.

  Mr Faull: Can I give a more long-winded answer?

  Q436  Chairman: Would you.

  Mr Faull: First of all, let me say that we read with great interest your report on Heiligendamm and it was much cited and commented on and I think was a great credit to your Committee.

  Q437  Chairman: Thank you.

  Mr Faull: The best way to legislate in the European Union is for the Commission to make a proposal, the Council and the Parliament to co-legislate and the Court of Justice to adjudicate. That is the good old Community method and we believe that it has served us all well in many areas and has proved robust enough to work in this area as well in perhaps surprisingly successful circumstances. The Data Retention Directive, which the British Presidency did so much to adopt, is a very fine example. We know that there are other ways in which the Union moves forward and one way we have to accept is for groups of Member States to establish an idea which hardens into rules of some sort and which eventually come home into the Community fold. There is nothing necessarily automatic and determinist about that but that is what happened with Schengen, which is why we are here today. Schengen was the dream of Luxembourg and its neighbours to start with and that is why it bears the name of this now very famous village at the borders of Luxembourg, France and Germany.

  Q438  Chairman: Where I have quite frequently lunched.

  Mr Faull: Have you? The local wine is very good. Now it is probably the most famous place in Europe. It is spoken of around the world in the same breath as London, Paris, Caithness, Richmond and various other places.

  Q439  Chairman: Nothing to do with my lunches!

  Mr Faull: It is an example. It is an example that predated the Europe of 27. There is a certain tendency to say that with 27 Member States you are bound to have groups of Member States coming together because of their geographical locations or because of their perception of their size or whatever to do things together. I do not think there is anything inevitable about it. I think the Europe of 27 can be made to work and it does work most of the time, but I also know that long before we were 27 we had cases in which smaller groups of Member States did something which appeared to them to be in their local interest to start with and then others saw would have benefits for everybody else and they all saw together that the best way to run things in the European Union was to use the institutions which have been created for that purpose.


 
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