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THE EUROPEAN UNION |
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REV 1 |
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SIRIS 113 SCHENGEN 26 COMIX 592 |
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Presidency |
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to: |
Mixed Committee at the level of Senior
Officials COREPER |
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No prev. doc.: |
8797/08 SIRIS 62 SCHENGEN 12 COMIX 337 |
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Subject: |
Proposal
for a Council Decision on migration from the Schengen Information System (SIS
1+) to the second generation Schengen Information System (SIS II) |
Delegations will find below a compromise revised version of the
abovementioned proposal.
At the meeting of the Working Party on the Schengen Acquis held on 18
July 2008, delegations were invited to send in contributions on the recitals.
This version takes those contributions into account as far as possible. They
were also amended in accordance with the changes incorporated into Articles
3(1) and 11(1).
The redraft of Article 3(1) results from informal discussions
which the Presidency held with the Commission to take account of the concerns
expressed by Member States at the last meeting of the Working Party on the
Schengen Acquis, while maintaining the schedule for implementing SIS II,
as endorsed by the Council on 6 June 2008 [1].
The proposed new wording of Article 11(1) with regard to Article
92A(3) of the CISA aims to clarify the obligations of the technical support
function towards the Central SIS II.
Changes to the previous version (12059/08 SIRIS 113 SCHENGEN 26 COMIX
592) are indicated in bold; deletions with "(É)".
A parliamentary reservation from the UK is pending.
The Mixed Committee at the level of Senior Officials is invited to
confirm the general approach on this proposal and to submit it to COREPER for
adoption as a I-item.
COUNCIL DECISION
on migration from the Schengen Information System (SIS 1+) to the
second generation Schengen Information System (SIS II)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on European Union, and in particular
Articles 30(1)(a) and (b), 31(1)(a) and (b) and 34(2)(c) thereof,
Having regard to the proposal from the Commission[2],
Having regard to the opinion of the European Parliament[3],
Whereas:
(1)
The Schengen
Information System (SIS) set up pursuant to the provisions of Title IV of the
Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985
between the Governments of the States of the Benelux Economic Union, the
Federal Republic of Germany and the French Republic on the gradual abolition of
checks at their common borders [4]
(hereinafter the Schengen Convention), and its further development, SIS 1+,
constitute an essential tool for the application of the provisions of the
Schengen acquis as
integrated into the framework of the European Union.
(2)
The
development of the second generation Schengen Information System (SIS II) has
been entrusted to the Commission pursuant to Council Regulation (EC) No
2424/2001 [5] of 6 December 2001 on the
development of the second generation Schengen Information System (SIS II) and Council Decision 2001/886/JHA [6] of 6 December 2001 on the
development of the second generation Schengen Information System (SIS II). Both
legal instruments expire on 31 December 2008. This Decision supplements these
instruments and should expire at the date fixed by the Council acting in
accordance with Article 71(2) of Council Decision 2007/533/JHA of 12 June
2007 [7].
Any reference to Committees established under
Decision 2001/886/JHA should be construed as a reference to the Committee
established by Article 67 of Decision 2007/533/JHA.
(3)
SIS II
was established by Regulation (EC) No 1987/2006[8] (É) and by Council Decision 2007/533/JHA[9].
(4)
This
Decision should be without prejudice to Regulation (EC) No 1987/2006 and
Decision 2007/533/JHA (É).
(4a) Certain SIS II tests are provided for in
Regulation No 189/2008 and Decision 2008/173/JHA of 18 February 2008 on the
tests of the second generation Schengen Information System (SIS II).
(5)
The
development of the SIS II should be continued and should be finalised in the
framework of the SIS II global schedule endorsed by the Council on 6 June
2008 [10].
(6)
A SIS
II comprehensive test should be conducted in full cooperation between the
Member States and the Commission. This test should be executed in accordance
with the provisions of the present Regulation. However, the validation of this test is
regulated by Article 55(3)(c) of Regulation (EC) No 1987/2006 and of Article
71(3)(c) of Decision 2007/533/JHA and should take place at the earliest moment
after the completion of the SIS II comprehensive test. (É)
(6a) Member
States should perform a test on the exchange of supplementary information.
(7)
(É)
(8)
(É)
(9)
As
regards SIS 1+, Article 92 of the Schengen Convention provides for a technical
support function (C.SIS). As regards SIS II, Regulation (EC) No 1987/2006 and
Decision 2007/533/JHA provide for a Central SIS II composed of a technical
support function and a uniform national interface (NI-SIS). The technical
support function of Central SIS II shall be located in Strasbourg (France) and
a back-up in St. Johann im Pongau (Austria).
(10)
In order
to better manage the potential difficulties brought about by the migration from
SIS 1+ to SIS II an interim migration architecture for the Schengen Information
System should be established and tested. The interim migration architecture
should have no impact on the operational availability of SIS 1+. A converter
(É) should be
provided (É) by
the Commission.
(11)
The
Member State issuing an alert should be responsible for ensuring that the data
entered into the Schengen Information System is accurate, up-to-date and
lawful.
(12)
(É)
(13)
The
Commission is and should remain responsible for the Central SIS II and its
communication infrastructure. (É) This responsibility includes the
maintenance and continuation of the development of SIS II and its communication infrastructure,
including (É) at
all times (É)
the correction of errors. The Commission should provide coordination and
support for the joint activities. The Commission should provide, in particular,
the necessary technical and operational support to the Member States at Central
SIS II level including the availability of a helpdesk.
(14)
The
Member States are and should remain responsible for the development and
maintenance of
their national systems (N.SIS II). (É)
(15)
France
is and should remain responsible for the technical support function of SIS 1+.
This responsibility is expressly provided for in the provisions of Article
92(3) of CISA. (É)
(15a) Representatives
of the Member States participating in the SIS 1+ should coordinate their
actions within the framework of the Council. It is necessary to set out a
framework for that organisational action.
(16)
The
Commission has the possibility to contract out to third parties, including
national public bodies, tasks conferred upon it by this Decision and tasks
relating to the implementation of the budget, in accordance with Council
Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial
Regulation applicable to the general budget of the European Communities [11].
(17)
Regulation
(EC) No 45/2001 of the European Parliament and of the Council of 18 December
2000 on the protection of individuals with regard to the processing of personal
data by the Community institutions and bodies and on the free movement of such
data [12] applies to the processing of
personal data by the Commission.
(18)
The
European Data Protection Supervisor, appointed pursuant to Decision 2004/55/EC
of the European Parliament and of the Council of 22 December 2003 appointing
the independent supervisory body provided for in Article 286 of the EC
Treaty [13], is competent to monitor the
activities of the Community institutions and bodies in relation to the
processing of personal data. Articles 126 to 130 of the Schengen Convention
contain specific provisions on the protection of personal data. Article 118 of
the Schengen Convention contains specific provisions on the security of
personal data.
(19)
Since
the objectives of the action to be taken, namely setting up the interim
migration architecture and migrating the data from SIS 1+ to SIS II, cannot be
sufficiently achieved by the Member States and can, therefore, by reason of the
scale and effects of the action, be better achieved at the level of the Union,
it is considered that the adoption of the present measure is in accordance with
the principle of subsidiarity, as set out in Article 5 of the EC Treaty and
referred to in Article 2 of the EU Treaty. In accordance with the principle of
proportionality, this Decision does not go beyond what is necessary to achieve
those objectives.
(20)
This
Decision respects the fundamental rights and observes the principles recognised
in particular by the Charter of Fundamental Rights of the European Union.
(21)
The Schengen
Convention should be amended to allow the integration of SIS 1+ into the
interim migration architecture.
(22)
The
United Kingdom is taking part in this Decision, in accordance with Article 5 of
the Protocol integrating the Schengen acquis into the framework of the European Union
annexed to the EU Treaty and to the EC Treaty, and Article 8(2) of Council
Decision 2000/365/EC of 29 May 2000, concerning the request of the United
Kingdom of Great Britain and Northern Ireland to take part in some of the
provisions of the Schengen acquis [14].
(23)
Ireland
is taking part in this Decision in accordance with Article 5 of the Protocol
integrating the Schengen acquis into the framework of the European Union annexed to the EU Treaty and
to the EC Treaty, and Article 6(2) of Council Decision 2002/192/EC of 28
February 2002 concerning Ireland's request to take part in some of the
provisions of the Schengen acquis [15].
(24)
This
Decision is without prejudice to the arrangements for the United Kingdom's and
Ireland's partial participation in the Schengen acquis as determined by the Council Decision 2000/365/EC and Decision
2002/192/EC respectively.
(25)
As regards
Iceland and Norway, this Decision constitutes a development of provisions of
the Schengen acquis
within the meaning of the Agreement concluded by the Council of the European
Union and the Republic of Iceland and the Kingdom of Norway concerning the latter's
association with the implementation, application and development of the
Schengen acquis [16], which fall within the area referred to
in Article 1, point G of Council Decision 1999/437/EC of 17 May 1999 on certain
arrangements for the application of that Agreement concluded by the Council of the European Union
and the Republic of Iceland and the Kingdom of Norway concerning the
association of those two States with the implementation, application and
development of the Schengen acquis [17].
(26)
As regards
Switzerland, this Decision constitutes a development of the provisions of the
Schengen acquis within
the meaning of the Agreement between the European Union, the European Community
and the Swiss Confederation on the Swiss Confederation's association with the implementation,
application and development of the Schengen acquis [18], which fall within the area referred to
in Article 1, point G of Council Decision 1999/437/EC read in conjunction with
Article 3 of Council Decision 2008/149/JHA [19]
on the conclusion of
that Agreement on behalf of
the European Union.
(27)
As regards
Liechtenstein, this Decision constitutes a development of the provisions of the
Schengen acquis within
the meaning of the Protocol
between the European Union, the European Community, the Swiss Confederation and
the Principality of Liechtenstein on the accession of the Principality of
Liechtenstein to the Agreement between the European Union, the European
Community and the Swiss Confederation on the Swiss ConfederationÕs association
with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article
1, point G of Council Decision 1999/437/EC of 17 May 1999 read in conjunction
with Article 3 of Council Decision 2008/262/EC of 28 February 2008 on the signature, on behalf of the
European Union, and on the provisional application of certain provisions of the
Protocol between the European Union, the European Community, the Swiss
Confederation and the Principality of Liechtenstein on the accession of the
Principality of Liechtenstein to the Agreement between the European Union, the
European Community and the Swiss Confederation on the Swiss Confederation's
association with the implementation, application and development of the
Schengen acquis [20].
HAS ADOPTED THIS DECISION:
Article 0
General purpose
1. The Schengen
Information System set up pursuant to the provisions of Title IV of the 1990
Schengen Convention (SIS 1+), shall be replaced by a new system, the Schengen
Information System II (SIS II), the establishment, operation and use of which
is regulated by Decision 2007/533/JHA of 12 June 2007.
2. In accordance
with the procedures and the division of tasks set out in this Decision the SIS
II shall be developed by the Commission and the Member States as a single
integrated system and shall be prepared for operations.
Article 0A [21]
Definitions
For
the purposes of this Decision, the following definitions shall apply:
(a) 'Central
SIS II' means the technical support function of SIS II containing a database,
the 'SIS II database', and a uniform national interface (NI-SIS).
(b) 'C.SIS'
means the technical support function of SIS 1+, containing the reference
database for SIS 1+ and the uniform national interface (N.COM).
(c) 'N.SIS'
means the national system of SIS 1+, consisting of the national data systems
which communicate with C.SIS.
(d) 'N.SIS II'
means the national system of SIS II, consisting of the national data systems
which communicate with Central SIS II.
(e) 'converter' means a
technical tool to allow consistent and reliable communication between C.SIS and
Central SIS II, ensuring the functionalities provided for in Article 5(2a).
(f) 'comprehensive
test' means the test referred to in Article 71(3)(c) of Council Decision
2007/533/JHA of 12 June 2007 on the establishment, operation and the use of the
second generation Schengen Information System (SIS II)[22].
(g) 'test on supplementary
information' means functional tests between the SIRENE Bureaux.
Article 1
Subject
matter and scope
This Decision defines the tasks and responsibilities of Commission,
France and the other Member States participating in SIS 1+ with respect to the
following tasks:
(a) the maintenance and
continuation of the development of SIS II;
(b) a comprehensive test of
SIS II;
(c) a test on supplementary
information;
(d) the continuation of the
development and testing of a converter;
(e) the establishment and
testing of a provisional migration architecture;
(f) the migration from SIS
1+ to SIS II.
Article 1A
Technical components of the migration architecture
In order to ensure the migration from SIS 1+ to SIS II, the following
components are necessary:
(a) the C.SIS and the
connection to the converter;
(b) the communication
infrastructure for SIS 1+ allowing the C.SIS to communicate with the N.SIS;
(c) the N.SIS;
(d) Central SIS II, NI-SIS
and the communication infrastructure for SIS II allowing the Central SIS II to
communicate with N.SIS II and the converter;
(e) the N.SIS II;
(f) the converter.
Article
1B
Main responsibilities in the
development of SIS II
1. The Commission
shall continue to develop the Central SIS II, the communication infrastructure
and the converter.
2. France shall make
available and operate C.SIS in accordance with the provisions of the Schengen
Convention.
3. The Member States
shall continue to develop N.SIS II.
4. The Member States
participating in SIS 1+ shall maintain N.SIS in accordance with the provisions
of the Schengen Convention.
5. The Member States
participating in SIS 1+ shall make available and operate the communication
infrastructure for SIS 1+.
6. The Commission
shall coordinate the activities and provide the necessary support for the
implementation of the tasks and responsibilities referred to in paragraphs 1 to
3.
Article 1C
Continuing the development
The measures necessary to continue the development of the SIS II as
referred to in Article 1B(1), in particular measures necessary for the
corrections of errors, shall be adopted in accordance with the procedure defined in Article 11A
(2).
The measures necessary to continue the development of the SIS II as
referred to in Article 1B(3), in so far as it concerns the uniform national
interface ensuring
the compatibility of N.SIS II with Central SIS II, shall be adopted in
accordance with the procedure defined in Article 11A (2).
Article 1D
Main activities
1. The Commission
together with Member States participating in SIS 1+ shall conduct a
comprehensive test.
2. An interim SIS
migration architecture shall be set up and a test of that architecture shall be
performed by the Commission together with France and the other Member States
participating in SIS 1+.
3. The Commission
and the Member States participating in SIS 1+ shall perform the migration from
SIS 1+ to SIS II.
4. The Member States
participating in SIS 1+ shall perform a test on the exchange of supplementary
information.
5. The Commission
shall provide the necessary support at Central SIS II level for the activities
in paragraphs 1 to 4.
6. The activities in
paragraphs 1 to 3 shall be coordinated by the
Commission and the Member States participating in SIS 1+ acting within
the Council.
Article 2
deleted
Article 3
Comprehensive test
1.
The
comprehensive test shall not start before the Commission has declared that it considers that the level of
success of the
tests referred to in Article 1 of Council Decision 2008/173/JHA of 18 February
2008 on the tests of the second generation Schengen Information System (SIS II)
is sufficient to begin such a test.
2.
A
comprehensive test aiming at confirming, in particular, the completion by the
Commission and the Member States participating in SIS 1+ of the necessary technical
arrangements to process SIS II data and the demonstration that the level of
performance of SIS II is at least equivalent to that achieved with SIS 1+ shall
be performed.
2a. The comprehensive test
shall be executed by the Member States participating in SIS 1+ for the N.SIS II
and by the Commission for the Central SIS II.
3. The
comprehensive test shall follow a detailed schedule defined by Member States
participating in SIS 1+ acting within the Council in cooperation with the
Commission.
3a. The
comprehensive test shall be based on the technical specifications defined by
the Member States participating in SIS 1 + acting within the Council in
cooperation with the Commission.
3b. The Commission and the
Member States participating in SIS 1+ acting within the Council shall define
the criteria for determining whether the necessary technical arrangements to process
SIS II data are completed and the level of performance of SIS II is at least equivalent to that
achieved with SIS 1+.
4. The
test results shall be analysed using the criteria mentioned in paragraph 3b,
by the Member
States participating in SIS 1+ acting within the Council and the Commission.
The test results shall be validated in accordance with Article 71(3)(c) of
Council Decision 2007/533/JHA of 12 June 2007[23].
4a. deleted
5. Member
States not participating in SIS 1+ may participate in the comprehensive test.
Their results shall not affect the overall validation of the test.
Article 4
Test on supplementary information
1.
The
Member States participating in SIS 1+ shall conduct functional SIRENE tests.
1a. The
Commission shall make available Central SIS II and its communication
infrastructure during the execution of the test on supplementary information.
2.
The
test on supplementary information shall follow a detailed schedule defined by
Member States participating in SIS 1+ acting within the Council.
2a. The
test on supplementary information shall be based on the technical
specifications defined by the Member States participating in SIS 1+ acting
within the Council.
3.
The
test results shall be analysed by the Member States participating in SIS 1+
acting within the Council.
4.
Member
States not participating in SIS 1+ may participate in the test on supplementary
information. Their results shall not affect the overall validation of the test.
Article 5
Interim migration architecture
1.
An
interim SIS migration architecture shall be set up. The converter connects
Central SIS II and C.SIS for a transitional period. The N.SIS are connected to
C.SIS, the N.SIS II to Central SIS II.
2.
The
Commission shall provide a converter, the Central SIS II and its communication
infrastructure as part of the interim SIS migration architecture.
2a. The
converter shall convert data in two directions between the C.SIS and Central
SIS II and keep C.SIS and Central SIS II synchronised.
2b. The Commission shall test the
communication between Central SIS II and the converter.
2c. France shall test the
communication between C.SIS and the converter.
2d. The Commission and France
shall test the communication between Central SIS II and C.SIS via the
converter.
2e. France, together with
the Commission, shall connect C.SIS via the converter to Central SIS II.
3. The Commission,
together with France and the other Member States participating in SIS 1+, shall
test the interim SIS migration architecture as a whole in accordance with a
test plan provided by the Commission.
3a. France shall make
available data for test purpose, if necessary.
Article
6
Migration
from SIS 1+ to SIS II
0. For the migration
from C.SIS to Central SIS II, France shall make available the SIS 1+ database
and the Commission shall introduce the SIS 1+ database into Central SIS II.
1.
The
Member States participating in SIS 1+ shall migrate from N.SIS to N.SIS II
using the interim migration architecture, with the support of France and of the
Commission, by 30 September 2009 at the latest. If necessary, this date may be
changed in accordance with the procedure defined in Article 11A(2).
2.
The
migration of the national system from SIS 1+ to SIS II consists of the data
loading of N.SIS II, when that N.SIS II is to contain a data file (a 'national
copy'), containing a complete or partial copy of the SIS II database, followed
by a switchover from N.SIS to N.SIS II for each Member State. The migration
shall follow a detailed schedule provided by the Commission and the Member States participating in SIS
1+ acting within the Council.
3.
The
Commission shall assist in coordination and support of the common activities
during the migration.
4. The switchover
foreseen in the migration process shall be carried out after the validation
mentioned in Article 3(4).
Article
6A
Substantive legal framework
During the migration, the provisions of Title IV of the 1990 Schengen
Convention shall continue to apply to the Schengen Information System.
Article 7
deleted
Article 8
Cooperation
1.
The
Member States and the Commission shall cooperate for the execution of all the
activities covered by this Decision in accordance with their respective
responsibilities.
1a. The Commission shall in
particular provide the necessary support at Central SIS II level for the
testing and migration of N.SIS II.
1b. Member States shall in
particular provide the necessary support at N.SIS II level for the testing of
the interim migration infrastructure.
Article
9
Keeping of records in Central SIS
II
1. Without prejudice
to the relevant provisions of Title IV of the Schengen Convention, the
Commission shall ensure that every access to and all exchanges of personal data
within Central SIS II are recorded for the purposes of checking whether or not
the search is lawful, monitoring the lawfulness of data processing and ensuring
the proper functioning of Central SIS II and of national systems, data
integrity and security.
2. The records shall
show, in particular, the date and time of the data transmitted, the data used
to perform searches, the reference to the data transmitted and the name of the
competent authority responsible for processing the data.
3. The records may
only be used for the purposes referred to in paragraph 1 and shall be deleted
at the earliest one year, and at the latest three years after their creation.
4. Records may be
kept longer if they are required for monitoring procedures that are already
underway.
5. The competent
authorities in charge of checking whether or not a search is lawful, monitoring
the lawfulness of data processing, self-monitoring and ensuring the proper
functioning of Central SIS II, data integrity and security, shall have access,
within the limits of their competence and at their request, to those records
for the purpose of fulfilling their tasks.
Article 10
Costs
1.
The
costs arising from migration, the comprehensive test, the test on supplementary
information, maintenance and development measures at Central SIS II level or
concerning the communication infrastructure shall be borne by the general
budget of the European Union.
2.
The
costs arising from migration, testing, maintenance and development of the
national systems shall be borne by each Member State concerned.
3.
The
costs arising from activities at SIS 1+ level, including supplementary
activities of France, acting on behalf of the Member States participating in
SIS 1+, shall be borne in accordance with the provisions of Article 119 of the
Schengen Convention.
Article 11
Amendment of the provisions of
the Schengen Convention
The provisions of the Schengen Convention are amended as follows.
1. The following Article is
inserted:
"Article
92A
1.
As
from the entry into force of Council Regulation (EC) No É/2008 and Council
Decision 2008/É/JHA and relying on the definitions contained in its Article 0A
the technical architecture of the Schengen Information System may be
supplemented by:
(a) an additional
central system composed of:
– technical
support function (Central SIS II), located in France and backup Central SIS II
located in Austria, containing the SIS II database and a uniform national
interface (NI-SIS);
– a
technical connection between the C.SIS and the Central SIS II via the converter
allowing the conversion and synchronisation of data between the C.SIS and the
Central SIS II;
(b) deleted
(c) a
national system (N.SIS II), consisting of the national data systems, which communicates with the
Central SIS II;
(d) an
infrastructure for communication between Central SIS II and the N.SIS II
connected to the NI-SIS.
2.
The
N.SIS II may replace the national section referred to in Article 92 in which
case the Member States need not hold a national data file.
2a. The central SIS II
database shall be available for the purpose of carrying out automated searches
in the territory of each Member State.
3.
In
case any of the Member States replace their national section by N.SIS II, the
obligations of
(É) the
technical support function towards the national sections as mentioned in
Article 92(2) and (3) become obligations towards Central SIS II, without
prejudice to the obligations referred to in Articles 1B(1), (1), (2) and 2a) of
Council Decision 2008/É/JHA.
3a. The
Central SIS II shall provide the services necessary for the entry and
processing of SIS data, the on-line update of N.SIS II national copies, the
synchronisation of and consistency between N.SIS II national copies and the
Central SIS II database and provide operations for initialisation and
restoration of N.SIS II national copies.
4.
France,
responsible for the technical support function, the other Member States and the
Commission shall cooperate to ensure that a search in the data files of N.SIS
II or in the SIS II database produces a result equivalent to that of a search
in the data file of the national sections referred to in Article 92 (2)."
2. In
Article 119 first paragraph, the first sentence is replaced by the following:
"The costs of installing and
operating the technical support function referred to in Article 92(3),
including the cost of lines connecting the national sections of the Schengen
Information System to the technical support function, and of activities
performed in conjunction with tasks conferred upon France in application of
Council Decision (JHA) 2008/É/JHA and of Council Regulation (EC) No É/2008
shall be borne jointly by the Member States."
3. In
Article 119, the second paragraph is replaced by the following:
"The costs of installing and
operating the national section of the Schengen Information System and of tasks
conferred upon national systems under Council Regulation (EC) No É/2008 and
Council Decision 2008/É/JHA shall be borne by each Member State individually."
Article 11A
1. The
Commission shall be assisted by the Committee established by Article 67(1) of
Decision 2007/533/JHA.
2. Where
reference is made to this paragraph, the procedure set out in Article 67 of
Decision 2007/533/JHA shall apply.
Article 12
Entry
into force and applicability
This Decision shall enter into force on the third day following its
publication in the Official Journal of the European Union. It shall expire on the date to be
fixed by the Council, acting in accordance with Article 71(2) of Council
Decision 2007/533/JHA.
Done at Brussels, [É]
For
the Council
The
President
[É]
____________