22 March 2022
The French Presidency of the Council has kicked off a discussion on making changes to the Schengen Information System that will make it possible for a greater number of member states to access alerts on the “most dangerous” categories of terrorist, such as foreign terrorist fighters. Any such changes would significantly increase the amount of personal data shared between national authorities, and would require legal amendments to come into force.
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At the beginning of this year, the French Presidency of the Council circulated a document (pdf) to other national delegations proposing to revise the exchange of information between member states on certain Schengen Information System (SIS) alerts on terrorists. The SIS has always been considered as a valuable tool for addressing terrorist threats, either through the expansion of access by Europol and Eurojust post-9/11, the increased use of Article 36 alerts on discreet, inquiry or specific checks regarding foreign terrorist fighters (for an analysis see here), or more recently through the negotiations to expand Europol’s mandate to register terrorist-related alerts in the system, due to be approved at the end of this month.
The French Presidency is now placing emphasis on the post-hit functionalities of the SIS. To date, according to the law, when a search in the SIS leads to a ‘hit’ (i.e. a result), only the issuing state (which registered a specific individual into the SIS) and the checking state, where the individual concerned was detected, have access to information on the related SIS hit – for example, details of where the person was checked, who they were with, and their intended or stated route of travel. Europol must also be informed of any hit on alerts related to terrorist offences. In practice, the issuing state must send this ‘hit’ to Europol and other member states have no access to this data.
Under the revision proposed by the French Presidency, member states would be able to volunteer to be automatically notified of hits on certain terrorist profiles, described as the “most dangerous”:
All member states issuing alerts on these categories of individuals would be obliged to send relevant ‘hits’ to all volunteering member states. The Presidency describes this change as “indispensable” to enable all volunteering member states to disrupt the threat “at the earliest stage by means of concrete measures against these individuals,” and “to conduct precise transnational monitoring of this type of individual (returnees, foreign terrorist fighters [FTFs]), including their travels.”
The proposal is unsurprising considering that France has issued 104,760 Article 36 alerts, amounting to 66% of all individuals registered by the member states, and thus is heavily invested in maximising the function of these alerts. According to the Presidency approximately 13,000 of these alerts concern individuals connected to Sunni terrorism – and some 500 alerts per year are recorded based on information received from non-EU states.
In a second document circulated on 21 February (pdf), the French Presidency provided further clarifications to its proposal, following a meeting of the Council’s Terrorism Working Party in January. The document explains that the checking state (i.e. the state conducting a search in the SIS that leads to a ‘hit’) will not have to undertake any additional action, meaning the EU’s external border states will not have an additional workload. Rather, it will fall to the member state that issued the alert in the first place to send the information to those states that have volunteered to receive it.
The Presidency argues that the added value of this proposal is that voluntary member states will be able to issue “restrictive or surveillance measures where appropriate, based on their own analysis of the threat posed by these individuals”. This is because the “counter-terrorism services [i.e. the security and intelligence agencies] use their own specific databases, which are broader in scope” than those operated by the police.
The document clarifies that proposal only concerns certain types of terrorist profiles, and:
“…the vast majority of alerts on terrorism would not be affected by the reform. For example, individuals monitored for home-grown threats who have no specific European or international contacts with terrorist organisations, although they are registered in the SIS, are not intended to be covered by this mechanism.”
From a technical perspective, the French Presidency has envisaged a process of distinguishing within SIS alerts relating to terrorism network and foreign fighters, but notes that “technical issues will be issues to be addressed at a later stage.”
There is currently no legal basis for the transmission of hits between all member states, and therefore changes to the relevant legislation will be required. In the meantime, a political call for this reform is expected to feature in forthcoming Council Conclusions.
The Presidency’s documents contain no legal assessment of the impact of the reform; arguably it will lead to magnifying and expanding the preventive surveillance powers of the volunteering member states that will receive notifications of hits and it will provide the justification for extensive data collection, for example mass retention of telecommunication metadata under the banner of national security (a possibility that the Court of Justice has confirmed is permissible under EU law).
It is also unclear how this volunteering will take place; it may lead to a de facto expansion of the recipients of supplementary information on the hits, under a broad understanding of the ‘need to know’ principle.
At the same time, it must be considered that if such changes can be made for certain categories of terrorist, other categories of individual subject to Article 36 alerts – for example, political activists – could come into consideration later on. If the changes mooted by the French Presidency are truly necessary, then legal amendments must be drafted in such a way to ensure that any future such changes also require full democratic scrutiny.
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