Europol to be given access to the S.I.S., then custody?
01 March 2002
EU working parties are to begin making preparations to give Europol access to the Schengen Information System (SIS). Both legal changes and technical measures are necessary, and work is to begin immediately. The proposals will not just allow Europol to consult data, but to add and amend it as well. Under the two-stage EU Presidency proposal, phase one covers "immediate access to all information" with a "partial download" facility. Phase two provides for the:
"possibility of updating SIS by adding, deleting and modifying information"
Europol has long wanted access to the SIS and given the failure of several of their "analysis work files" because of a reluctance of member states to share their intelligence data, being able to trawl the SIS for information would give the agency access to extensive EU-wide data. Law enforcement and administrative agencies' access to the SIS is restricted to certain categories of data (see below) but it is presumed that Europol will have full access.
Access or custody?
Allowing Europol to add information to the SIS would give another operational role to the agency, enabling it to enter names of suspects in alerts under Article 99 so that they are subject to "discrete surveillance" and "specific checks" (including passenger checks).
The further possibility that Europol could also delete and modify information would effectively make Europol custodian of the database. At present, data can only be added by authorities in the member states, and only the state which entered information can amend or delete it (although the supervisory body on data protection can order its deletion). If the phase-two proposals are implemented, Europol would be the only law enforcement agency with central executive powers over data on the SIS (since the member states only have jurisdiction over their own data). This would raise a number of highly contentious legal issues with regard to data protection, privacy and civil liberties.
A technical and legal issue, but not a political one?
In June, 1999, an EU action plan on organised crime (9423/99 CRIMORG 80, 21.6.99) called for Europol to have access to the SIS. Six months later, negotiations on SIS II (see below) had just begun and Germany proposed that Europol should feature in the plans for the new system. The new proposal suggests that political agreement was reached in the 1999 action plan and implies that no further debate is necessary. But at the time France objected vehemently, stating that:
"While the possibility of giving Europol access to SIS data has been mentioned, there are currently no plans to give Europol any kind of role within SIS" (5495/00, 19.1.00)
Regardless, the preparation of technical and legal measures is underway. This is an example of how commitments in JHA action plans, which are not subject to parliamentary scrutiny, have far reaching consequences.
Databases to be linked by stealth
Article 6(2) of the 1995 Europol Convention expressly forbids the Europol database to be linked to other law enforcement databases:
"The computerized system of collected information operated by Europol must under no circumstances be linked to other automated processing systems, except for the automated processing systems of the national units."
If Europol is allowed to add data to the SIS, a de facto link between the Europol system and the SIS will be established. Although the two databases are unlikely to be coupled by technical means, centralised access at Europol HQ in the Hague, and the likelihood that Europol officers will enter data from analysis files onto the SIS would have the same effect.
The SIS, Europe's biggest law enforcement database, was created under the Schengen Agreement of 1985 and went online in March 1995. Member states contribute data to the SIS on:
- persons wanted for arrest for the purpose of extradition;
- persons to be refused entry to the Schengen area because of a danger to nation