COUNCIL DECISION (EU) 2018/1600

of 28 September 2018

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 relating to the European Union Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to Article 4 of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union,

Having regard to the request by the Government of the United Kingdom of Great Britain and Northern Ireland, by its letter to the President of the Council of 19 July 2018, to participate in certain provisions of the Schengen acquis, as specified in that letter,

Whereas:

(1) By Decision 2000/365/EC (1) the Council authorised the United Kingdom of Great Britain and Northern Ireland (‘the United Kingdom’) to take part in some of the provisions of the Schengen acquis, in accordance with the conditions set out in that Decision.

(2) Regulation (EU) No 1077/2011 of the European Parliament and of the Council (2) established the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (‘the Agency’), commonly referred to as eu-LISA, in order to ensure the operational management of the second generation Schengen Information System (SIS II), the Visa Information System (VIS) and Eurodac and of certain aspects of their communication infrastructures and potentially that of other large-scale IT systems in the area of freedom, security and justice, on the basis of separate Union legal acts, based on Articles 67 to 89 of the TFEU.

(3) By Decision 2010/779/EU (3) the Council authorised the United Kingdom to take part in Regulation (EU) No 1077/2011 to the extent that it relates to the operational management of the VIS and the parts of the SIS II in which the United Kingdom does not participate.

(4) On 29 June 2017 the European Commission presented a proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011 (‘the proposed Regulation’).

(5) According to the proposed Regulation, the Agency will be replaced and succeeded by the European Union Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA) (‘the proposed Agency’) that will be the legal successor of the Agency. The proposed Agency will be made responsible, as is the case for the Agency, for the operational management of the SIS II, VIS and Eurodac. The proposed Agency will be also responsible for the preparation, development or operational management of the Entry/Exit System (EES), DubliNet and the European Travel Authorisation and Information System (ETIAS) and it might be made responsible for the preparation, development and operational management of other large-scale IT systems in the area of freedom, security and justice if so provided by relevant Union legal acts based on Articles 67 to 89 of the TFEU.

(6) SIS II is part of the Schengen acquis. Regulation (EC) No 1987/2006 of the European Parliament and of the Council (4) and Council Decision 2007/533/JHA (5) govern the establishment, operation and use of SIS II. However, the United Kingdom has only taken part in the adoption of Decision 2007/533/JHA which develops the provisions of the Schengen acquis referred to in Article 1(a)(ii) of Decision 2000/365/EC.

(7) VIS is also part of the Schengen acquis. The United Kingdom did not take part in the adoption of, and is not bound by Council Decision 2004/512/EC (6), Regulation (EC) No 767/2008 of the European Parliament and of the Council (7) and Council Decision 2008/633/JHA (8) which govern the establishment, operation or use of VIS.

(8) Eurodac is not part of the Schengen acquis. The United Kingdom has taken part in the adoption of, and is bound by Regulation (EU) No 603/2013 of the European Parliament and of the Council (9) which governs the establishment, operation and use of Eurodac.

(9) The EES is part of the Schengen acquis. The United Kingdom did not take part in the adoption of, and is not bound by Regulation (EU) 2017/2226 of the European Parliament and of the Council (10) which govern the establishment, operation and use of the EES.

(10) ETIAS is also part of the Schengen acquis. The United Kingdom did not take part in the adoption of, and is not bound by Regulation (EU) 2018/1240 of the European Parliament and of the Council (11) which govern the establishment, operation and use of ETIAS.

(11) DubliNet is not part of the Schengen acquis. The United Kingdom is bound by Commission Regulation (EC) No 1560/2003 (12) which sets up DubliNet, a separate secure electronic transmission channel.

(12) Given its participation in Eurodac, DubliNet and its partial participation in SIS II, the United Kingdom has the right to participate in the activities of the proposed Agency, to the extent that it will be responsible for the operational management of SIS II as governed by Decision 2007/533/JHA, Eurodac and DubliNet, as is the case with regard to the Agency.

(13) The proposed Agency, as is the case for the Agency, should have a single legal personality and be characterised by the unity of its organisational and financial structure. To this end, the proposed Agency should be established by means of a single legislative instrument which should be voted on within the Council in its entirety. Moreover, once adopted, the proposed Regulation should become applicable in its entirety in the Member States bound by it. This excludes the possibility of partial applicability for the United Kingdom.

(14) In order to ensure compliance with the Treaties and the applicable Protocols, and at the same time to safeguard the unity and consistency of the proposed Regulation, the United Kingdom has requested to take part in the proposed Regulation under Article 4 of the Protocol No 19 to the extent that its provisions refer to the responsibility of the Agency for the operational management of SIS II as governed by Regulation (EC) No 1987/2006, and of the VIS, the EES and ETIAS.

(15) The Council recognises the right of the United Kingdom to make, in accordance with Article 4 of the Protocol No 19, a request for participation in the proposed Regulation, to the extent that the United Kingdom will not participate in the proposed Regulation on other grounds.

(16) Participation of the United Kingdom in the proposed Regulation would be without prejudice to the fact that at present the United Kingdom does not and cannot participate in the provisions of the Schengen acquis relating to the free movement of third country nationals, visa policy and the crossing by persons of the external borders of the Member States. This would justify the inclusion of specific provisions in the proposed Regulation reflecting this special position of the United Kingdom, in particular as regards limited voting rights in the Management Board of the Agency.

(17) The Mixed Committee, established pursuant to Article 3 of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application, and development of the Schengen acquis (13), has been informed about the preparation of this Decision in accordance with Article 5 of that Agreement.

(18) The Mixed Committee, established pursuant to Article 3 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 (14), has been informed about the preparation of this Decision in accordance with Article 5 of that Agreement,

HAS ADOPTED THIS DECISION:

Article 1 Further to Decisions 2000/365/EC and 2010/779/EU, the United Kingdom of Great Britain and Northern Ireland shall take part in the Regulation of the European Parliament and of the Council establishing a European Union Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011 to the extent that it relates to the operational management of the VIS, the parts of the SIS II in which the United Kingdom does not participate and the EES and ETIAS.

Article 2 This Decision shall enter into force on the day of its adoption.

Done at Brussels, 28 September 2018. For the Council The President M. SCHRAMBÖCK

(1) 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 (OJ L 131, 1.6.2000, p. 43).

(2) Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 286, 1.11.2011, p. 1).

(3) Council Decision 2010/779/EU of 14 December 2010 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 relating to the establishment of a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 333, 17.12.2010, p. 58).

(4) Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381, 28.12.2006, p. 4).

(5) Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 205, 7.8.2007, p. 63).

(6) Council Decision 2004/512/EC of 8 June 2004 establishing the Visa Information System (VIS) (OJ L 213, 15.6.2004, p. 5).

(7) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).

(8) Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (OJ L 218, 13.8.2008, p. 129).

(9) Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 180, 29.6.2013, p. 1).

(10) Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011 (OJ L 327, 9.12.2017, p. 20).

(11) Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236, 19.9.2018, p. 1).

(12) Commission Regulation (EC) No 1560/2003 of 2 September 2003 laying down detailed rules for the application of Council Regulation (EC) No 343/2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L 222, 5.9.2003, p. 3).

(13) OJ L 176, 10.7.1999, p. 36.

(14) OJ L 53, 27.2.2008, p. 52.