Migration Law

Schengen Information System

by Konrad Wilk

Schengen Information System

• History and legal background• Schengen Information System (SIS)

functioning• Potential problems about data

protection• Evoluation of the System (SIS II)

SCHENGEN INFORMATION SYSTEM (SIS) – WHAT IS IT?

• Governmental database used by European countries

• Main purposes: -maintain, source and distribute information on individuals and pieces of property of interest in order to protect national security, to control internal bordel and to counter any potential threat

Map of Schengen Area Member States Full Schengen members (EU member states which have implemented the Schengen Agreement) Associated Schengen members (non-EU member states which have implemented the Schengen Agreement) EU member states which are bound to implement the Schengen Agreement but who have not done so yet) EU member states outside the Schengen Area

History and legal background• Treaty of Rome, 1957• Treaty instituting the economic Union of the Benelux

countries, 1958• The Agreement of Saabrucken, 1984• Schengen Agreement of June 14, 1985 (plus Convention implementing the Schengen

Agreement enacted 5 years later)• Amsterdam Treaty, 1997• Directive on the right of citizens of the Union and their

family members to move and reside freely within the territory of the Member States 2004/38/EC

SIS functioning• What types of information are stored in SIS?• Article 94 (from Convention Implementing The

Schengen Agreement)• The Schengen Information System shall contain

only the categories of data which are supplied by each of the Contracting Parties and are required for the purposes laid down in Articles 95 to 100(for instance data relating to persons wanted for arrest for extradition purposes, data relating to aliens who are reported for the purposes of being refused entry)

SIS functioning

• Art.. 94 (2)• Two categories of data: (a) persons reported (b) objects referred to in Article 100- Data

relating to objects sought for the purposes of seizure or of evidence in criminal proceedings, Information System and vehicles referred to in Article 99- Data relating to persons or vehicles for the purposes of discreet surveillance or specific checks

SIS functioning• Art. 94 (3). • The items included in respect of persons, shall be no more than the

following: (a) name and forename, any aliases possibly registered separately; (b) any particular objective and permanent physical features; (c) first letter of second forename; (d) date and place of birth; (e) sex; (f) nationality; (g) whether the persons concerned are armed; (h) whether the persons concerned are violent; (i) reason for the report; (j) action to be taken.

SIS functioning

• Moreover, other references, in particular the data listed in Article 6, first sentence of the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, shall not be authorized (racial origin, political opinions, religious beliefs).

Potential problems about data protection

• LEGISLATION0 WHAT KIND OF PROTECTION?• HOW LONG PERSONAL INFORMATION MAY

BE PROCESSED SIS?• WHO HAS ACCESS TO INFORMATION

PROCESSED IN SIS?• WHAT ARE THE RIGHTS OF INDIVIDUALS IN

RELATION TO THE PROCESSING OF THEIR PERSONAL DATA IN THE SIS?

LEGISLATION

• CONVENTION APPLYING THE SCHENGEN AGREEMENT (art.116,126,127)

- the right to protection of personal data is guaranteed by law as a fundamental right

- additional or auxiliary regulations should not affect or impair the rights or competence of the national supervisory authority of the SIS

Bilateral and multilateral Agreement

- between Member States and third countries- regulated by international law

- all bilateral and multilateral agreements with third countries for the processing of data in the framework of police and judicial cooperation in criminal matters should provide that data must be processed in accordance with the requirements of the Schengen acquis

Obligation to appoint national supervisory authority

• - Art. 114 (1) Each Contracting Party shall designate a supervisory

authority responsible, in compliance with national law, for carrying out independent supervision of the data file of the national section of the Schengen Information System and for checking that the processing and utilization of data included in the Schengen Information System are not in violation of the rights of the person concerned. For this purpose the supervisory authority shall have access to the data file of the national section of the Schengen Information System.

HOW LONG PERSONAL INFORMATION MAY BE PROCESSED IN SCHENGEN INFORMATION

SYSTEM?

• Article 112 • 1. Personal data for the purposes of locating persons shall be kept only

for the time required to achieve the purposes for which they were supplied. No later than three years after their inclusion, the need for their retention must be reviewed by the reporting Contracting Party. This period shall be one year in the case of reports referred to in Article 99(for instance where there are real indications to suggest that the person concerned intends to commit or is committing numerous and extremely serious offences)

• 2. Each of the Contracting Parties shall, where appropriate, set shorter review periods in accordance with its national law.

THE MAXIMUM PERIOD OF TIME WHEN THE PERSONAL INFORMATION MAY BE STORED IN SCHENGEN INFORMATION

SYSTEM• Article 113 (1)

-Data other than those referred to in Article 112 shall be retained for a maximum of ten years, data relating to identity documents issued and to registered bank notes for a-maximum of five years and those relating toymotor vehicles, trailers and caravans for a maximum of three years.

WHO HAS ACCESS TO INFORMATION PROCESSED IN SCHENGEN INFORMATION SYSTEM?

• Art. 101 (1,2,3)• (1) Access to data included in the Schengen

Information System and the right to search such data directly shall be reserved exclusively for the authorities responsible for :

(a) border checks; (b) other police and customs checks carried

out within the country, and the co-ordination of such checks.

WHAT ARE THE RIGHTS OF INDIVIDUALS IN RELATION TO THE PROCESSING OF THEIR

PERSONAL DATA IN THE SIS?

• The right of any person to have access to data relating to him- art. 109 (1)

• Any person may have factually inaccurate data relating to him corrected or have legally inaccurate data relating to him deleted- Article 110

WHAT ARE THE RIGHTS OF INDIVIDUALS IN RELATION TO THE PROCESSING OF THEIR

PERSONAL DATA IN THE SIS?

• Article 111 (1) Any person may, in the territory of each

Contracting Party, bring before the courts or the authority competent under national law an action to correct, delete or provide information or obtain compensation in connection with a report concerning him.

WHAT IS THE SIRENE OFFICE?

• Art. 108 (1,2) Each of the Contracting Parties shall designate

an authority which shall have central responsibility for the national section of SIS.In Poland this function is assigned to The Inspector General for Personal Data Protection.

Evoluation of the systemSIS II

• Currently in progress- should be in operation in second half of 2013

• Proposals:- possibility to use biometrics- new types of alerts- the possibility to link different alerts (such as

an alert on a person and a vehicle)- ensure stronger data protection

Evoluation of the systemSIS II

These two texts lay the legal foundations for the Schengen Information System II

- 2001/886/JHA: Council Decision of 6 December 2001 on the development of the second generation Schengen Information System (SIS II)

- 13.12.2001, p. 1] and Council Regulation (EC) No 2424/2001 of 6 December 2001 on the development of the second generation Schengen Information System (SIS II)

Sources:

• http://www.giodo.gov.pl• http://www.consilium.europa.eu• http://ec.europa.eu/dgs/home-affairs/what-w

e-do/policies/borders-and-visas/schengen-information-system/index_en.htm

• http://en.wikipedia.org/wiki/Schengen_Information_System