EU
SIS II proposals released at last: more data, wider access, less data protection


At the end of May 2005, the European Commission finally released legislative proposals to govern SIS II, the second-generation Schengen Information System. A detailed legal analysis of the proposals, produced by Statewatch for Professor Steve Peers (University of Essex), confirm fears that SIS II will contain more categories of data - including photographs and fingerprints - that will be used for more purposes, more widely available to police and other law enforcement authorities (including for the first time non-EU states and agencies), and stored for longer.

At the same time, there will be no real improvement in the data protection regime for SIS II - the current Schengen rules could even be weakened under the new proposals - and no meaningful improvement in democratic control or accountability.

Statewatch legal analysis of SIS II proposals (June 2005, pdf)

Statewatch's legal analysis examines (key points):

The proposed legislation (links to full-text provided at foot of this page):

- an EC Regulation covering the immigration law aspects of the SIS (to be adopted by qualified majority voting in the Council of national ministers and co-decision with the European Parliament)

- an EU Decision covering the use of the SIS for policing and criminal law data (to be adopted by unanimous voting in the Council and consultation of the EP)

- an EC Regulation (to be adopted by qualified majority voting in the Council and co-decision with the EP) which would govern the access to SIS data by vehicle registration authorities

- these texts would replace Articles 92-119 of the Schengen Convention

- unusually, the Commission has not seen fit to explain any of the complex text in its proposals

Categories of data and alert

- reference to "national security" removed from grounds for including "aliens" under the existing "Article 96" - a "serious threat to public policy and public security" retained as grounds for inclusion

- the now standard list of 32 offences that applies to most recent EU criminal law initiatives has been added to the grounds for registering "aliens" convicted of an offence carrying a maximum sentence of one year or more

- non-EU nationals included on member state's foreign policy lists of banned individuals may be included (retaining this existing discretionary power)

- persons subject to re-entry bans in accordance with the EC's expulsion Directive may also be included (despite the fact that the Commission is yet to produce its proposal on this matter!)

- European Arrest Warrants will be issued as alerts in the SIS and all the data from the Arrest Warrant form will be included

- photographs and fingerprints to be included in SIS records

- new types of object and vehicles to be included; member states will be able to issue surveillance alerts (existing article 99) on vehicles as well as persons (this was agreed in the 2004 Decision on the SIS)

- the existing ban on including "sensitive information" in the SIS (political beliefs, racial origin etc., as defined in the 1981 Council of Europe Convention) under Article 94(3) of the Schengen Convention is dropped

- the notorious proposals to issue alerts on "violent troublemakers" do not appear in the Commission's proposals (though were included in the earlier Council conclusions suggesting that SIS II will have the capacity to facilitate such alerts but that this would require new legislation in the future)

Data storage limits

- for every type of alert the time period for keeping the data in the SIS would be extended (from 3 to 5 years for immigration data; from 3 to 10 years for data on extradition, missing persons and persons wanted for a judicial procedure; from 1 to 3 years for surveillance of persons)

- possible extensions will be allowed for the first time after the 5 or 10 year maxima for data on objects

Access to SIS

- new provisions on access to SIS for Europol and Eurojust (this was agreed in the 2004 Decision on the SIS)

- judicial authorities to have access to all data (this was agreed in the 2004 Decision on the SIS)

- new provisions for access for authorities responsible for asylum and expulsion

- new provisions for access for vehicle licensing authorities

- police will no longer have access to immigration data

- new provisions on the exchange of the police and criminal law data with third countries and international organisations ( as long as the body concerned has an agreement with the EU and maintains a adequate level of protection)

Data protection

- the Regulation is covered by the EC data protection Directive and the Decision is covered by the (weaker) Council of Europe Convention - this means that the European Court of Justice has full jurisdiction over the Directive but only indirect jurisdiction over the Decision (national courts can refer disputes but .member states can opt-out of giving the ECJ that jurisdiction (UK, Ireland, Denmark and all of the new Member States except the Czech republic have opted out))

- the Regulation introduces a new individual right of review and appeal on decisions to include persons the SIS. However, applicants must be in the territory of a member state to launch the review/appeal proceedings which is absurd because the need to challenge these decisions only really arises after the individual has been refused access to the EU! Moreover, there is no obligation to inform an individual that they have been included in the SIS when the alert is issued and the Commission has failed to include any details regarding the review/appeal (such as the right to legal assistance, suspensive effect of appeal or specific provisions for remedy etc.)

- the Regulation introduces clearer individual access rights to SIS data by defining five issues in detail - the identity of the data controller (the state that created the SIS alert); the purpose of the alert; potential recipients of the data; reasons for issuing the alert; and the existence of the right to access and rectification of data. However, there is no mention of the right to the erasure of data or compensation. Moreover, in the absence of an obligation to inform an individual that an SIS record has been created, it is unclear when these provisions apply

- the right of member states to veto individual access to their SIS records on grounds of security or ongoing investigations etc. is dropped in the Regulation (immigration data) but retained in the Decision (policing and judicial data). However, the EC data protection Directive contains a similar veto which could simply be applied to the Regulation

- the Schengen Joint Supervisory Body would be abolished and its brief handed to the new European data protection supervisor, whose powers appear to be weaker than the JSB's in the SIS II proposals but would be stronger if the whole of the provisions in EC data protection regulation concerning the Supervisor applies to these measures

Democratic control

"The legislative process as regards these proposals is in many respects a sham, as the Council has already decided on the key functions of the next version of the SIS without any democratic consultation (or impact assessment) whatsoever and the Commission has already awarded the tender to set up SIS II, following a controversial tender process...

Given this non-existent democratic scrutiny, dubious financial accountability, unjustified extensions of access to data and ambiguous provisions on data protection and the grounds for people to be banned from the entire Schengen area, these proposals represent another step in the construction of a European 'surveillance society."

Documentation

Statewatch legal analysis of SIS II proposals
(June 2005, pdf)

Commission proposals (all dated 31 May 2005)
- draft Regulation on immigration law aspects of SIS (COM(2005) 236 final, pdf)
- draft Decision on police and criminal law aspects of SIS (COM(2005) 230 final, pdf)
- draft Regulation on access to SIS for vehicle licensing authorities (COM(2005) 237 final, pdf)

"SIS II fait accompli? Construction of EU's Big Brother database underway" (Statewatch analysis, May 2005, pdf)

"Three-quarters of a million "illegal aliens" banned from Schengen area" (Statewatch news online, April 2005)


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