EUROPEAN COMMISSION Brussels, 21.12.2016 COM(2016) 882 final 2016/0408(COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, amending Regulation (EU) No 515/2014 and repealing Regulation (EC) No 1987/2006



EXPLANATORY MEMORANDUM 1.CONTEXT OF THE PROPOSAL •Reasons for and objectives of the proposal Over the course of the last two years, the European Union has been working on simultaneously addressing the separate challenges of migration management, integrated border management of the EU's external borders and the fight against terrorism and cross-border crime. Effective information exchange amongst Member States, and between Member States and the relevant EU agencies, is essential to providing a robust response to those challenges and to building an effective and genuine Security Union. The Schengen Information System (SIS) is the most successful tool for the effective cooperation of immigration, police, customs and judicial authorities in the EU and the Schengen associated countries. Competent authorities in the Member States such as police, border guards and customs officers need to have access to high quality information about the persons or objects they are checking, with clear instructions about what needs to be done in each case. This large-scale information system is at the very heart of Schengen cooperation and plays a crucial role in facilitating the free movement of people within the Schengen area. It enables competent authorities to enter and consult data on wanted persons, persons who may not have the right to enter or stay in the EU, missing persons – in particular children – and objects that may have been stolen, misappropriated or lost. SIS not only contains information about a particular person or object but also clear instructions for the competent authorities on what to do with that person or object once found. In 2016, the Commission carried out a comprehensive evaluation of SIS, three years after the entry into operation of its second generation. This evaluation showed that SIS has been a genuine operational success. In 2015, national competent authorities checked persons and objects against data held in SIS on nearly 2.9 billion occasions and exchanged over 1.8 million pieces of supplementary information. Nonetheless, as announced in the Commission Work Programme 2017, building on this positive experience, the effectiveness and efficiency of the system should be further strengthened. To this end, the Commission is presenting a first set of three proposals to improve and extend the use of SIS as result of the evaluation while continuing its work to make existing and future law enforcement and border management systems more interoperable, following up on the ongoing work of the High Level Expert Group on Information Systems and Interoperability. These proposals cover the use of the system (a) for border management, (b) for police cooperation and judicial cooperation in criminal matters, and (c) for the return of illegally staying third country nationals. The first two proposals together form the legal bases for the establishment, operation and use of the SIS. The proposal for the use of SIS for the return of illegally staying third country nationals supplements the proposal for border management and complements the provisions contained therein. It establishes a new alert category and contributes to the implementation and monitoring of Directive 2008/115/EC. Due to the variable geometry in Member States' participation in EU policies in the area of freedom, security and justice, it is necessary to adopt three separate legal instruments which will nonetheless work seamlessly together to enable the comprehensive operation and use of the system. In parallel, with a view to enhancing and improving information management at EU level, in April 2016, the Commission began a process of reflection on "Stronger and Smarter Information Systems for Borders and Security". The overarching objective is to ensure that competent authorities systematically have the necessary information from different information systems at their disposal. In order to achieve this objective, the Commission has been reviewing the existing information architecture to identify information gaps and blind spots that result from shortcomings in the functionalities of existing systems, as well as from fragmentation in the EU's overall architecture of data management. The Commission set up a High Level Expert Group on Information Systems and Interoperability to support this work, whose interim findings have also informed this first set of proposals as regards issues of data quality. President Juncker's State of the Union address in September 2016 also referred to the importance of overcoming the current shortcomings in information management and of improving the interoperability and interconnection between existing information systems. Following the findings of the High Level Expert Group on Information Systems and Interoperability, which will be presented in the first half of 2017, the Commission will consider a second set of proposals to further improve interoperability of SIS with other IT systems in mid-2017. The review of Regulation (EU) No 1077/2011 concerning the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA) is an equally important element of this work and is likely to be the subject of separate Commission proposals also in 2017. Investing in swift, effective and qualitative information exchange and information management and ensuring the interoperability of EU databases and information systems is an important aspect of addressing current security challenges. The current legal framework of the second generation of SIS – concerning its use for the purposes of border checks of third-country nationals is based upon a former first pillar instrument, namely Regulation (EC) No 1987/2006. This proposal replaces the current legal instrument in order to: make it compulsory for Member States to enter an alert in SIS in all cases where an entry ban has been issued to an illegally staying third country national in accordance with provisions respecting Directive 2008/115/EC; harmonise national procedures for the use of SIS with regard of the consultation procedure to avoid that a third-country national who is subject to an entry ban, holds a valid residence permit issued by a Member State; introduce technical changes to improve security and help reduce administrative burdens; address the complete end-to-end use of SIS, covering not only the central and national systems, but also the needs of the end-user by ensuring that end-users receive all necessary data to perform their tasks and they comply with all security rules when they process SIS data. The proposals develop and improve the existing system, rather than establishing a new one. The revision of the SIS will support and strengthen the European Union actions under the European Agendas of Migration and Security, and implements: (1)consolidation of the results of the work on the implementation of SIS carried out in the last three years entailing technical amendments to the Central SIS in order to extend some of the existing alert categories and provide new functionalities; (2)recommendations for technical and procedural changes resulting from a comprehensive evaluation of the SIS; (3)requests from SIS end-users for technical improvements; and

(4)the interim findings of the High Level Expert Group on Information Systems and Interoperability as regards data quality. In light of the fact that this proposal is intrinsically linked to the Commission proposal for a Regulation on the establishment, operation and use of the SIS in the field of police cooperation and judicial cooperation in criminal matters, a number of provisions are common to both texts. These include measures covering the end-to-end use of SIS, including not only the operation of the central and national systems, but also end-user needs; strengthened measures for business continuity; measures addressing data quality, data protection and data security, and provisions concerning monitoring, evaluation and reporting arrangements. Both proposals also extend the use of biometric information. With the escalation of the migration and refugee crisis in 2015, the need to take effective steps to tackle irregular migration rose considerably. In its EU Action plan on return, the Commission announced that it would propose to make it compulsory for Member States to introduce all entry bans in SIS to help prevent the re-entry into the Schengen area of third country nationals who are not allowed to enter and stay on the territory of the Member States. Entry bans issued in accordance with provisions respecting Directive 2008/115/EC have a Schengen-wide effect; hence they can be enforced at the external borders also by authorities of a Member State other than the one that issued the ban. The existing Regulation (EC) No 1987/2006 only allows but does not require Member States to introduce alerts for refusal of entry and stay on the basis of entry bans in SIS. A greater level of effectiveness and harmonisation may be achieved by making it mandatory to enter all entry bans in the SIS. •Consistency with existing policy provisions in the policy area as well as with existing and future legal instruments This proposal is fully consistent and aligned with the provisions of Directive 2008/115/EC on the issuance and enforcement of entry bans. It therefore complements the existing provisions on entry bans and contributes to the effective enforcement of these bans at the external border, facilitating the application of the obligations defined by the Return Directive and successfully preventing the re-entry of third country nationals concerned in the Schengen area. •Consistency with other Union policies This proposal is closely linked with and complements other Union policies, namely: (1)Internal security in relation to the role of SIS for preventing the entry of third-country nationals posing a security threat. Data protection insofar as this proposal ensures the protection of fundamental rights of individuals whose personal data is processed in SIS. This proposal is also closely linked with and complements existing Union legislation, namely: External border management insofar as this proposal assists Member States in controlling their portion of the EU's external borders and in strengthening the effectiveness of the EU system of external border controls. An effective EU returns policy contributing to and enhancing the EU system to detect and prevent the re-entry of third-country nationals following their return. This proposal would help reducing incentives to irregular migration to the EU, one of the main objectives of the European Agenda on Migration. European Border and Coast Guard as regards (i) the possibility for the Agency staff conducting risk analyses and (ii) the access to SIS of the ETIAS Central Unit within the Agency for the purposes of the proposed European Travel Information and Authorisation System (ETIAS), as well as (iii) for providing a technical interface for SIS access to European Border and Coast Guard Teams, teams of staff involved in return-related tasks and members of the migration management support teams to, within their mandate, have the right to access and search data entered in SIS. Europol - broader rights to access and search the SIS data, within its mandate, is proposed. This proposal is also closely linked with and complements future Union legislation, namely Entry/Exit System which proposed a combination of fingerprint and facial image as biometric identifiers for the operation of the Entry/Exit System (EES); an approach that this proposal seeks to reflect. ETIAS which proposed a thorough security assessment, including a verification in SIS, of visa-exempted third country nationals who intend to travel in the EU. 2.LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY •Legal basis The proposal uses Articles 77(2)(b) and (d) as well as 79(2)(c) of the Treaty on the Functioning of the European Union as the legal bases for provisions in the field of integrated border management and illegal immigration.

•Variable geometry This proposal builds upon the provisions of the Schengen acquis related to border checks. Therefore the following consequences in relation to the various protocols and agreements with associated countries have to be considered: Denmark: According to Article 4 of Protocol 22 on the position of Denmark annexed to the Treaties, Denmark shall decide, within a period of six months after the Council has decided on this Regulation, whether it will implement this proposal, which builds upon the Schengen acquis, in its national law. United Kingdom and Ireland: In accordance with Articles 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland, and 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, the United Kingdom and Ireland do not take part in Regulation (EU) 2016/399 (Schengen Borders Code) nor in any other of the legal instruments which are commonly known as the "Schengen acquis", viz. the legal instruments organising and supporting the abolition of controls at internal borders and the flanking measures regarding the controls at external borders. This Regulation constitutes a development of this acquis, and therefore, the United Kingdom and Ireland are not taking part in the adoption of this Regulation and are not bound by it or subject to its application. Bulgaria and Romania: This Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis, within the meaning of Article 4(2) of the 2005 Act of Accession. This Regulation has to be read in conjunction with Council Decision 2010/365/EU of 29 June 2010 which rendered applicable, subject to some restrictions, the provisions of the Schengen acquis related to the Schengen Information System in Bulgaria and Romania. Cyprus and Croatia: This Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis within, respectively, the meaning of Article 3(2) of the 2003 Act of Accession and Article 4(2) of the 2011 Act of Accession. Associated Countries: On the basis of the respective agreements associating those countries with the implementation, application and development of the Schengen acquis, Iceland, Norway, Switzerland and Liechtenstein are to be bound by the Regulation proposed. •Subsidiarity This proposal will develop and build upon the existing SIS, which has been operational since 1995. The original intergovernmental framework was replaced by Union instruments on 9 April 2013 (Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA). A full subsidiarity analysis has been carried out in previous occasions; this initiative aims at further refining the existing provisions, addressing identified gaps and improving operational procedures. This considerable level of information exchange between Member States cannot be achieved via decentralised solutions. By reason of the scale, effects and impacts of the action, this proposal can be better achieved at Union level. The objectives of this proposal encompass, inter alia, technical improvements to enhance the efficiency of SIS, as well as efforts to harmonise the use of the system across all participating Member States. Due to the transnational nature of these aims and of the challenges in ensuring effective information exchange to counter ever diversifying threats, the EU is well placed to propose solutions to these issues, which cannot be sufficiently achieved by the Member States alone. If existing limitations to SIS are not addressed, there is a risk that numerous opportunities for maximised efficiency and EU added value are missed and that there are blind spots impeding the work of competent authorities. As an example, the lack of harmonised rules on the deletion of redundant alerts within the system can lead to the hindrance of free movement of persons as a fundamental principle of the Union. •Proportionality Article 5 of the Treaty on the European Union states that action by the Union shall not go beyond what is necessary to achieve the objectives set out in the Treaty. The form chosen for this EU action must enable the proposal to achieve its objective and be implemented as effectively as possible. The proposed initiative constitutes a revision of SIS in relation to border checks. The proposal is driven by the privacy by design principles. In terms of the right to protection of personal data, this proposal is proportionate as it provides for specific alert deletion rules and does not require the collection and storage of data for longer than is absolutely necessary to allow the system to function and meet its objectives. SIS alerts contain only the data that is required to identify and locate a person or an object and to enable appropriate operational action to be taken. All other additional details are provided via the SIRENE Bureaux enabling the exchange of supplementary information. In addition, the proposal provides for the implementation of all necessary safeguards and mechanisms required for the effective protection of the fundamental rights of the data subjects; particularly the protection of their private life and personal data. It also includes provisions designed specifically to strengthen the security of individuals' personal data held in SIS. No further processes or harmonisation will be necessary at EU level to make the system work. The envisaged measure is proportionate in that it does not go beyond what is necessary in terms of action at EU level to meet the defined objectives. •Choice of the instrument The proposed revision will also take the form of a Regulation and will replace Regulation (EC) No 1987/2006. This approach has also been followed in relation to Council Decision 2007/533/JHA and, as both instruments are intrinsically linked, it has to be applied in relation to Regulation (EC) No 1987/2006 as well. Decision 2007/533/JHA was adopted as a so-called 'third pillar instrument' under the former Treaty on the European Union. Such 'third pillar' instruments were adopted by the Council without the European Parliament as co-legislator. The legal basis of this proposal is in the Treaty on the Functioning of the European Union (TFEU) since the pillar structure ceased to exist with the entry into force of the Lisbon Treaty on 1 December 2009. The legal basis commands the use of the ordinary legislative procedure. The form of a Regulation (of the European Parliament and of the Council) has to be chosen because the provisions are to be binding and directly applicable in all Member States. The proposal will build on and enhance an existing centralised system through which Member States cooperate with each other, something which requires a common architecture and binding operating rules. Moreover, it lays down mandatory rules on access to the system including for the purpose of law enforcement which are uniform for all Member States as well as the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA). Since 9 May 2013, eu-LISA is responsible for the operational management Central SIS, which consists of all tasks necessary to ensure the full operation of Central SIS 24 hours a day, 7 days a week. This proposal builds on the responsibilities of eu-LISA in relation to SIS.

Furthermore, the proposal provides for directly applicable rules enabling data subjects' access to their own data and remedies without requiring further implementing measures in this respect. As a consequence, only a Regulation can be chosen as a legal instrument. 3.RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS •Ex-post evaluations/fitness checks of existing legislation In accordance with the Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA, three years after its entry into operation, the Commission carried out an overall evaluation of the central SIS II system as well as of the bilateral and multilateral exchange of supplementary information between Member States. The evaluation specifically targeted the review of the application of Article 24 of Regulation (EC) No 1987/2006 with the purpose of making necessary proposals to modify the provisions of this Article to achieve a greater level of harmonisation of the criteria for entering alerts. The results of the evaluation highlighted the need for changes to the SIS legal basis in order to provide a better response to new security and migration challenges. This includes for example a proposal for the mandatory entry of entry bans into SIS to better enforce them, the mandatory consultation between Member States to avoid the co-existence of an entry ban and a residence permit, the option to identify and locate individuals on the basis of their fingerprints through the use of a new automated fingerprint identification system, and expanding the biometric identifiers in the system. The evaluation results also showed the need for legal amendments in order to improve the technical functioning of the system and to streamline national processes. These measures will enhance the efficiency and effectiveness of SIS by facilitating its use and reducing unnecessary burden. Further measures are designed to enhance the data quality and transparency of the system by more clearly describing the specific reporting tasks of member States and eu-LISA. The results of the comprehensive evaluation (the evaluation report and the related Staff Working Document were adopted on 21 December 2016) have formed the basis of the measures contained within this proposal. Furthermore, in accordance with Article 19 of the Return Directive 2008/115/EC, the Commission published a Communication on EU Return Policy in 2014, which reports on the application of that Directive. It concluded that the potential of SIS in the field of return policy should be further enhanced; it indicates that the review of SIS II is an opportunity to improve consistency between the return policy and SIS II, and it suggests introducing an obligation on Member States to enter a refusal of entry alert in SIS II for entry bans issued under the Return Directive. •Stakeholder consultations During the Commission's evaluation of SIS, feedback and suggestions were sought from relevant stakeholders, including delegates to the SISVIS Committee under the procedure established in Article 51 of Regulation (EC) No 1987/2006. This Committee includes the Member States’ representatives on both operational SIRENE matters (cross-border cooperation in relation to SIS) and technical matters in the development and maintenance of SIS and the related SIRENE application. Delegates responded to detailed questionnaires as part of the evaluation process. Where further clarification was necessary or the subject needed to be further developed this was achieved through email exchange or targeted interview. This iterative process allowed issues to be raised in a comprehensive and transparent way. Throughout 2015 and 2016, delegates to the SISVIS Committee discussed these issues in dedicated meetings and workshops. The Commission also consulted specifically with Member State national data protection authorities and members of the SIS II Supervision Coordination Group in the field of data protection. Member States shared their experiences on subject access requests and the work of national data protection authorities by responding to a dedicated questionnaire. The responses to this questionnaire from June 2015 have informed the development of this proposal. Internally, the Commission set up an Inter-service Steering Group including the Secretariat-General and the Directorates-General for Migration and Home Affairs, Justice and Consumers, Human Resources and Security, and Informatics. This steering group monitored the evaluation process and provided guidance as needed. The evaluation's findings also took into account evidence collected during on-site evaluation visits to Member States, examining in detail how SIS is being used in practice. This includes discussions and interviews with practitioners, SIRENE Bureau staff and national competent authorities. Feedback and suggestions of Member States' competent return authorities, notably on the consequences of a possible obligation to introduce alerts in SIS for all entry bans issued in accordance with Directive 2008/115/EC, were also sought in the context of the Commission's Contact Group Return Directive, during its meetings on 16 November 2015, 18 March and 20 June 2016. In light of this feedback, this proposal makes provision for measures to improve the technical and operational efficiency and effectiveness of the system. •Collection and use of expertise

In addition to the stakeholder consultations, the Commission also sought external expertise via four studies, the findings of which have been incorporated in the developments of this proposal: SIS Technical Assessment (Kurt Salmon) This assessment identified the key issues in the functioning of SIS and future needs that should be addressed, primarily identifying concerns with regards to maximising business continuity and ensuring that the overall architecture can adapt to increasing capacity requirements. ICT Impact Assessment of Possible Improvements to the SIS II Architecture (Kurt Salmon) This study assessed the current cost of operating the SIS at national level and to evaluated two possible technical scenarios for the improvement of the system. Both scenarios include a set of technical proposals focusing on improvements to the central system and overall architecture. "ICT Impact Assessment of the technical improvements to the SIS II architecture – Final Report",10 November 2016, (Wavestone) This study assessed the cost impacts on Member States of the implementation of a national copy by analysing three scenarios (a fully centralised system, a standardised N.SIS implementation developed and provided by eu-LISA to Member States and a distinct N.SIS implementation with common technical standards). Study on the feasibility and implications of setting up within the framework of the Schengen Information System an EU-wide system for exchanging data on and monitoring compliance with return decisions (PwC) This study assesses the feasibility and the technical and operational implications of the proposed changes to the SIS with the purpose of enhancing its use for the return of irregular migrants and for preventing their re-entry. •Impact assessment The Commission did not carry out an impact assessment. The three independent assessments mentioned above formed the basis of consideration for the impacts of changes to the system from a technical perspective. In addition, the Commission has concluded two reviews of the SIRENE Manual since 2013, i.e. since SIS II entered into operation on 9 April 2013 and Decision 2007/533/JHA became applicable. This includes a mid-term review assessment which resulted in the launch of a new SIRENE Manual on 29 January 2015. The Commission also adopted a Catalogue of Best Practices and Recommendations. Moreover, eu-LISA and the Member States carry out regular, iterative technical improvements to the system. It is considered that these options have now been exhausted, requiring more wholesale amendment to the legal basis. Clarity in areas such as application of end-user systems as well as detailed rules on alert deletion cannot be achieved through improved implementation and enforcement alone. The Schengen evaluation mechanism, laid down in Regulation (EU) No. 1053/2013 allows the periodic legal and operational assessment of the functioning of SIS in the Member States. The evaluations are jointly carried out by the Commission and Member States. Through this mechanism, the Council makes recommendations to individual Member States, based on the evaluations carried out as part of multi-annual and annual programmes. As a result of their individual nature, these recommendations cannot replace legally binding rules which are applicable at the same time to all Member States using the SIS. The SISVIS Committee regularly discusses practical operational and technical issues. Although these meetings are instrumental in the cooperation between the Commission and the Member States, the outcome of these discussions (absent legislative changes) cannot remedy issues emerging due to diverging national practices, for example. The changes proposed in this Regulation do not present a significant economic or environmental impact. However, these changes are expected to have a significantly positive social impact, as they provide for increased security by allowing for better identification of persons using false identities, criminals whose identity remains unknown after having committed a serious crime as well irregular migrants taking advantage of the area without internal border controls. The impact of these changes on fundamental rights and data protection has been considered and set out in more detail in the next section ("Fundamental rights"). The proposal has been drawn up making use of the substantial body of evidence collected to inform the overall evaluation of the second generation of SIS, which explored the functioning of the system and possible areas for improvement. In addition, a cost impact assessment study was carried out, to ensure that the national architecture chosen was the most appropriate and proportionate. •Fundamental rights and data protection This proposal develops and improves an existing system, rather than establishing a new one, and hence builds upon. important and effective safeguards that have already been put in place. Nevertheless, as the system continues to process personal data, and will process further categories of sensitive biometric data, there are potential impacts on an individual's fundamental rights. These have been thoroughly considered, and additional safeguards have been put in place to limit the collection and further processing of data to what is strictly necessary and operationally required, and restricting access to that data to those who have an operational need to process it. Clear data retention timeframes have been set out in this proposal, and there is explicit recognition of and provision for individuals' rights to access and rectify data relating to them and to request erasure in line with their fundamental rights (see section on data protection and security).

In addition, the proposal strengthens measures to protect fundamental rights, as it sets out in legislation the requirements for an alert to be deleted and introduces a proportionality assessment if an alert is being extended. The proposal defines extensive and robust safeguards for the use of biometric identifiers to avoid innocent persons being inconvenienced. The proposal also requires the end-to-end security of the system, ensuring greater protection for the data stored within it. With the introduction of a clear incident management procedure, as well as improved business continuity for the SIS, this proposal fully complies with the Charter of Fundamental Rights of the European Union not only as regards the right to the protection of personal data. The development and continued effectiveness of SIS will contribute to the security of persons within society. The proposal envisages significant changes concerning biometric identifiers. In addition to fingerprints, palm prints should also be collected and stored if the legal requirements are met. Fingerprint logs are attached to alphanumeric SIS alerts as provided for in Article 24. It should be possible in the future to search these dactylographic data (fingerprints and palm prints) with fingerprints found at a scene of crime provided that the offence qualifies as serious crime or terrorist offence and that it can be to a high degree of probability that they belong to the perpetrator. In case of uncertainty concerning a person's identity based upon his documents, the competent authorities should carry out a fingerprint against the fingerprints stored in the SIS database. The proposal requires the collection and storage of additional data (such as details of the personal identification documents) that facilitate the work of the officers on the ground to establish the identity of a person. The proposal guarantees the data subject's right to effective remedies available to challenge any decisions, which shall in any case include an effective remedy before a court or tribunal in line with Article 47 of the Charter of Fundamental Rights. 4.BUDGETARY IMPLICATIONS SIS constitutes one single information system. Consequently, the expenditures foreseen in two of the proposals (the current one and the Proposal for a Regulation on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters) should not be considered as two separate amounts but as a single one. The budgetary implications of the changes required for the implementation of both proposals are included in one legislative financial statement. Due to the complementary nature of the third proposal (concerning the return of illegally staying third country nationals) the budgetary implications are dealt with separately and in an independent financial statement addressing only the establishment of this specific alert category. On the basis of an assessment of the various aspects of the work required in relation to the network, the Central SIS by eu-LISA and the national developments in the Member States, the two proposals for Regulations will require a global amount of EUR 64.3 million for the period 2018-2020. This covers an increase of the TESTA-NG bandwidth due to the fact that in accordance with the two proposals, the network will transmit fingerprint files and facial images requiring higher throughput and capacity (EUR 9.9 million). It also covers eu-LISA’s costs in relation to staff and operational expenditure (EUR 17.6 million). eu-LISA informed the Commission that the recruitment of 3 new contract agents is planned to take place in January 2018 to start the development phase in due time to ensure entry into operations of the updated functionalities of SIS in 2020. The present proposal entails technical amendments to the Central SIS in order to extend some of the existing alert categories and provide new functionalities. The financial statement attached to this proposal reflects these changes. Furthermore, the Commission carried out a cost impact assessment study to assess the costs of the national developments necessitated by this proposal. The estimated cost is EUR 36.8 million which should be distributed via a lump sum to the Member States. Hence, each Member State will receive the amount of EUR 1.2 million to upgrade its national system in accordance with the requirements set out in this proposal, including for setting up a partial national copy where this is not yet the case or for a back-up system. A re-programming of the remainder of the Smart Borders envelope of the Internal Security Fund is planned in order to carry out the upgrades and implement the functionalities foreseen in the two proposals. The ISF Borders Regulation is the financial instrument where the budget for the implementation of the Smart Borders package has been included. Article 5 of the Regulation provides that EUR 791 million shall be implemented through a programme for setting up IT systems supporting the management of migration flows across the external border under the conditions laid down in Article 15. Out of the above-mentioned EUR 791 million, EUR 480 million is reserved for the development of the Entry-Exit System and EUR 210 million for the development of the European Travel Information and Authorisation System (ETIAS). The remainder will be partly used to cover the costs of the changes foreseen in the two proposals concerning SIS. 5.OTHER ELEMENTS •Implementation plans and monitoring, evaluation and reporting arrangements The Commission, Member States and eu-LISAwill regularly review and monitor the use of SIS, to ensure that it continues to function effectively and efficiently. The Commission will be assisted by the SISVIS Committee to implement technical and operational measures as described in the proposal. In addition, this proposed Regulation includes provision in Article 54(7) and (8) for a formal, regular review and evaluation process. Every two years, eu-LISA is required to report to the European Parliament and the Council on the technical functioning – including security – of SIS, the communication infrastructure supporting it, and the bilateral and multilateral exchange of supplementary information between Member States. Furthermore, every four years, the Commission is required to conduct, and share with the Parliament and the Council, an overall evaluation of SIS and the exchange of information between Member States. This will: examine results achieved against objectives; assess whether the underlying rationale for the system remains valid;

examine how the Regulation is being applied to the central system; evaluate the security of the central system; explore implications for the future functioning of the system. eu-LISA is also now charged with providing daily, monthly and annual statistics on the use of SIS, ensuring continuous monitoring of the system and its functioning against objectives. •Detailed explanation of the new provisions of the proposal Provisions that are common to this proposal and the proposal for a Regulation on the establishment, operation and use of the SIS in the field of police cooperation and judicial cooperation in criminal matters: General Provisions (Articles 1 – 3) Technical architecture and ways of operating SIS (Articles 4 – 14) Responsibilities of eu-LISA (Articles 15 – 18) Right to access and retention of alerts (Articles 29, 30, 31, 33 and 34) General data processing and data protection rules (Articles 36 – 53) Monitoring and statistics (Article 54) End-to-end use of SIS With over 2 million end-users in the competent authorities across Europe, SIS is an extremely widely used and effective tool for information exchange. These proposals include rules covering the complete end-to-end operation of the system, including Central SIS operated by eu-LISA, the national systems and the end-user applications. It addresses not only the central and national systems themselves, but also the end-users' technical and operational needs. Article 9(2) specifies that end-users must receive the data required to perform their tasks (in particular all data required for the identification of the data subject and to take the required action). It also provides for a common blueprint for Member State implementation of SIS, ensuring harmonisation across all national systems. Article 6 stipulates that each Member State must ensure uninterrupted availability of SIS data to end-users, in order to maximise the operational benefits by reducing the possibility of downtime. Article 10(3) ensures that the security of data processing also includes the data processing activities of the end-user. Article 14 obliges Member States to ensure that staff with access to SIS receive regular and ongoing training about data security and data protection rules. As a result of the inclusion of these measures, this proposal more comprehensively covers the full end-to-end functioning of the SIS, with rules and obligations concerning the millions of end-users across Europe. In order to use SIS to its full effectiveness Member States should ensure that each time their end-users are entitled to carry out a search in a national police or immigration database, they also search SIS in parallel. This way SIS can fulfil its objective as the main compensatory measure in the area without internal border controls and Member States can better address the cross-border dimension of criminality and the mobility of criminals. This parallel search must remain in compliance with Article 4 of Directive (EU) 2016/680. Business continuity The proposals strengthen provisions regarding business continuity, both at national level and for eu-LISA (Articles 4, 6, 7 and 15). These ensure that SIS will continue to remain functional and accessible to staff on the ground, even if there are issues that affect the system. Data quality

The proposal maintains the principle that the Member State, which is the data owner, is also responsible for the accuracy of the data entered in SIS (Article 39). It is, however, necessary to provide for a central mechanism managed by eu-LISA which allows Member States to regularly review those alerts in which the mandatory data fields may raise quality concerns. Therefore Article 15 of the proposal empowers eu-LISA to produce data quality reports to Member States at regular intervals. This activity may be facilitated by a data repository for producing statistical and data quality reports (Article 54). These improvements reflect the interim findings of the High Level Expert Group on Information Systems and Interoperability. Photographs, facial images, dactylographic data and DNA profiles The possibility to search with fingerprints with a view to identify a person is already set out in Article. 22 of Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA. The proposals make this search mandatory if the identity of the person cannot be ascertained in any other way. Currently, facial images can only be used to confirm a person's identity following an alphanumeric search, rather than as the basis for a search. Furthermore, changes to Articles 22 and 28 make provision for facial images, photographs and palm prints to be used to search the system and identify people, when this becomes technically possible. Dactylography refers to the scientific study of fingerprints as a method of identification. Experts in dactylography recognise that palm prints have the characteristic of uniqueness and that they contain reference points that enable accurate and conclusive comparisons just as do fingerprints. Palm prints can be used to establish a person's identity in the same way that fingerprints can be used. The taking of palm prints along with the ten rolled and ten flat prints of a person has been police practice for many decades. There is one main use of palm prints, namely for identification purposes when the subject has intentionally or unintentionally damaged the tips of their fingers. This can be through an attempt to avoid being identified or fingerprinted or through damage caused by accident or heavy manual work. In the course of the discussion on the technical rules of SIS AFIS, Member States reported considerable success in the identification of irregular migrants who had intentionally damaged their fingertips in an attempt to avoid identification. The taking of palm prints by Member State authorities allowed subsequent identification. The use of facial images for identification will ensure greater consistency between SIS and the proposed EU Entry Exit System, electronic gates and self-service kiosks. This functionality will be limited to the regular border crossing points. Access by authorities to SIS – institutional users This sub-section is intended to describe the new elements in access rights with regard to EU Agencies (institutional users). The access rights of competent national authorities have not been amended. Europol (Article 30) and the European Border and Coast Guard Agency – as well as its teams, teams of staff involved in return-related tasks, and members of the migration management support team – and the ETIAS Central Unit within the Agency (Articles 31 and 32) have the access to SIS and SIS data that they need. Appropriate safeguards are put in place to ensure that the data in the system is properly protected (including also the provisions in Article 33, requiring that these bodies may only access the data they need to carry out their tasks). These changes extend access to SIS for Europol to refusal of entry alerts, ensuring that it can make best use of the system as it carries out its duties, and add new provisions that ensure that the European Border and Coast Guard Agency as well as its teams can access the system while carrying out the different operations under their mandate assisting Member States. Furthermore under Commission proposal for a Regulation of the European Parliament and of the Council establishing a European Travel Information and Authorisation System (ETIAS) the ETIAS Central Unit of the European Border and Coast Guard Agency will, via ETIAS, verify against SIS whether the third country national applying for a travel authorisation is subject of a SIS alert. To this end the ETIAS Central Unit will also have access to SIS. Article 29(3) sets out that national visa authorities may also, in the performance of their tasks, access alerts on documents issued in accordance with the Regulation 2008/…. on the establishment, operation and use of the SIS in the field of police cooperation and judicial cooperation in criminal matters. This will allow these bodies to have the access to SIS and SIS data that they need in order to carry out their tasks, while also putting in place appropriate safeguards to ensure that the data in the system is properly protected (including also the provisions in Article 35, requiring that these bodies may only access the data they need to carry out their tasks). Refusal of entry and stay Currently, in accordance with Article 24(3) of the SIS II Regulation, a Member State may insert an alert in SIS in respect of persons subject to an entry ban based on a failure to comply with national migration legislation. The revised Article 24(3) requires that an alert be entered in SIS in any case in which an entry ban has been issued to an illegally staying third country national in accordance with provisions respecting Directive 2008/115/EC. It also establishes the timing and conditions for entering such alerts after the third-country national has left the territories of the Member States in compliance with an obligation to return. This provision is inserted in order to avoid that entry bans are visible in SIS while the third-country national concerned is still present on the EU territory. Since entry bans prohibit the re-entry into the territories of the Member States, they can come into effect only after the return of the third-country nationals concerned. At the same time, Member States should take all necessary measure to ensure that there is no time-gap between the moment of return and the activation of the alert on refusal of entry and stay in SIS. This proposal is closely linked with the Commission proposal concerning the use of SIS for the return of illegally staying third country nationals, laying down the conditions and procedures for entering alert on return decisions in SIS. That proposal includes a mechanism for monitoring whether third-country nationals who are the subject of a return decision effectively leave the EU territory and a warning mechanism in case of non-compliance. Article 26 sets out the consultation process that Member States must follow when they encounter alerts on refusal of entry and stay – or are willing to enter such alerts – that collide with other Member States' decisions, such as for instance a valid residence permit. Such rules should prevent the emergence of, or resolve, the conflicting instructions that these situations may create, while offering clear guidance to end-users on the actions to be taken in such situations and to Member States authorities on whether an alert should be deleted. Article 27 (ex-Article 26 of Regulation (EC) No 1987/2006) is intended to implement the EU sanction regime which affects third-country nationals who are subject of a restriction to be admitted to the EU territory in accordance with Article 29 of the Treaty on the European Union. In order to allow entering such alerts it was necessary to require the minimum data necessary for the identification of the person, namely surname and date of birth. The fact that Regulation (EC) No 1987/2006 waived the requirement to enter the date of birth created significant challenges as without a date of birth, no alert can be created in SIS, in line with the technical rules and the search parameters of the system. As Article 27 is indispensable to have an efficient EU sanction regime the proportionality requirement does not apply in this respect. In order to ensure greater consistency with Directive 2008/115/EC the terminology used when referring to the purpose of the alert ("refusal of entry and stay") has been aligned with the wording used in the Directive. Distinguishing between persons with similar characteristics In order to ensure that data is processed and stored appropriately, and to reduce the risk of duplication and misidentification, Article 41 sets out the process to follow if it appears, on entering a new alert, that there is already an entry in SIS with similar characteristics. Data protection and security This proposal clarifies responsibility for preventing, reporting and responding to incidents that might affect the security or integrity of SIS infrastructure, SIS data or supplementary information (Articles 10, 16 and 40).

Article 12 contains provisions on keeping and searching logs of the history of alerts. Article 15(3) maintains Article 15(3) of Regulation (EC) No 1987/2006 and provides that the Commission remains responsible for the contractual management of the communication infrastructure, including tasks relating to the implementation of the budget and the acquisition and renewal. These tasks will be transferred to eu-LISA in the second suite of SIS proposals in June 2017. Article 21 extends the requirement for Member States to consider proportionality before issuing alerts to also apply to decisions on whether the validity period of an alert should be extended. As a novelty, however, Article 24(2) (c) requires Member States to create an alert in all circumstances, on those persons whose activity falls under Articles 1, 2, 3 and 4 of Council Framework Decision 2002/475/JHA on combating terrorism. Categories of data and data processing In order to provide more and more precise information to the end-users to facilitate and accelerate the required action as well as to allow the better identification of the alert subject this proposal expands the types of information (Article 20) that can be held about people for whom an alert has been issued, to also include: whether the person is involved in any activity falling under Articles 1, 2 , 3 and 4 of Council Framework Decision 2002/475/JHA; whether the alert is related to an EU citizen or other person who enjoys rights of freedom of movement equivalent to those of EU citizens; whether a decision on refusal of entry is based on provisions in Article 24 or in Article 27; the type of offence (for alerts issued under Article 24(2)); details of a person's identity or travel document; colour copy of the person's identity or travel document; photographs and facial images; fingerprints and palm prints. Having appropriate data is essential to ensure the accurate identification of a person who is checked at a border crossing, who is subject to an internal check or who applies for permission to stay. An inaccurate identification can result in fundamental rights issues; it can also lead to a situation in which the appropriate follow-up actions cannot be taken as there is no knowledge of the existence or content of an alert. Concerning the information on the underlying decision, four reasons can be distinguished: a previous conviction as referred to in Article 24 (2)(a), a serious security threat as referred to in Article 24 (2)(b), an entry ban as referred to in Article 24 (3) and a restrictive measure as referred to in Article 27. In order to ensure that appropriate actions are taken in case of a hit it is also necessary to indicate whether the alert is related to an EU citizen or other person who enjoys rights of freedom of movement equivalent to those of EU citizens. Having appropriate data is essential to ensure the accurate identification of a person who is checked at a border crossing, who is subject to an internal check or who applies for permission to stay. An inaccurate identification can result in fundamental rights issues; it can also lead to a situation in which the appropriate follow-up actions cannot be taken as there is no knowledge of the existence or content of an alert. It also (Article 42) expands the list of personal data that may be entered and processed in SIS for the purpose of dealing with misused identities as more data facilitates the victim and the perpetrator of misused identity. The extension of this provision entails no risk as all these data can only be entered upon the consent of the victim of misused identity. This will now also include: facial images; palm prints; details of identity documents; the victim's address;

the names of the victim's father and mother. Article 20 provides for more detailed information in the alerts. It includes categories for the reason of the refusal of entry and stay and the details of the personal identification documents of the data subjects. This enhanced information allows for the better identification of the person concerned, and on the other hand for a more informed decision to be taken by the end-users. For the protection of the end-users carrying out the checks, SIS will also show if the person in relation to whom an alert was issued, falls under any of the categories provided in Articles 1, 2, 3 and 4 of Council Framework Decision 2002/475/JHA on combating terrorism. The proposal makes clear that Member States must not copy data entered by another Member State into other national data files (Article 37). Retention Article 34 sets out the timeframe for reviewing alerts. The maximum retention period of refusal of entry and stay alerts has been aligned with the possible maximum length of entry bans issued in accordance with Article 11 of Directive 2008/115/EC. Thus, the maximum retention period will become 5 years; Member States may, however, set shorter periods. Deletion Article 35 sets out the circumstances under which alerts must be deleted, bringing greater harmonisation to national practices in this area. Article 35 sets out particular provisions for SIRENE Bureau staff to delete alerts that are no longer required proactively that are no longer required if no reply is received from the competent authorities. Rights for data subjects to access data, rectify inaccurate data and erase unlawfully stored data The detailed rules on the data subject's rights remained unchanged as the existing rules already ensure a high level of protection and are in line with Regulation (EU) 2016/679 and Directive 2016/680. In addition to that Article 48 sets out the circumstances under which Member States may decide not to communicate information to data subjects. This must be for one of the reasons listed in this Article, and it must be a proportionate and necessary measure, in line with national law. Statistics In order to maintain an overview of the functioning of remedies, Article 49 makes provision for a standard statistical system providing annual reports on numbers of: data subject's access requests; requests for rectification of inaccurate data and erasure of unlawfully stored data; cases before the courts; cases where the court ruled in favour of the applicant; and observations on cases of mutual recognition of final decisions handed down by the courts or authorities of other Member States on alerts created by the alert-issuing State. Monitoring and statistics Article 54 sets out the arrangements that must be put in place to ensure the proper monitoring of SIS and its functioning against its objectives. To do this, eu-LISA is charged with providing daily, monthly and annual statistics on how the system is being used. Article 54(5) requires euLISA to provide the Member States, the Commission, Europol and the European Border and Coast Guard Agency with statistical reports that it produces and allows the Commission to request additional statistical and data quality reports relating to SIS and SIRENE communication.

Article 54(6) provides for the creation and hosting of a central repository of data, as part of eu-LISA's work on monitoring the functioning of SIS. This will enable authorised staff of Member States, the Commission, Europol and the European Border and Coast Guard Agency to access the data listed in Article 54(3) in order to produce the statistics required. 2016/0408 (COD) Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, amending Regulation (EU) No 515/2014 and repealing Regulation (EC) No 1987/2006 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty the Functioning of the of the European Union, and in particular Articles 77(2)(b) and (d) and 79(2)(c) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Acting in accordance with the ordinary legislative procedure, Whereas: (1)The Schengen Information System (SIS) constitutes an essential tool for the application of the provisions of the Schengen acquis as integrated into the framework of the European Union. SIS is one of the major compensatory measures contributing to maintaining a high level of security within the area of freedom, security and justice of the European Union by supporting operational cooperation between border guards, police, customs and other law enforcement authorities, judicial authorities in criminal matters and immigration authorities. (2)SIS was 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 (the Schengen Convention).The development of the second generation of SIS (SIS II) was entrusted to the Commission pursuant to Council Regulation (EC) No 2424/2001 and Council Decision 2001/886/JHA (SIS) and it was established by Regulation (EC) No 1987/2006 as well as by Council Decision 2007/533/JHA. SIS II replaced SIS as created pursuant to the Schengen Convention. (3)Three years after SIS II was brought into operation, the Commission carried out an evaluation of the system in accordance with Articles 24(5), 43(5) and 50(5) of Regulation (EC) No 1987/2006 and Articles 59 and 65(5) of Decision 2007/533/JHA. The evaluation report and the related Staff Working Document were adopted on 21 December 2016. The recommendations set out in those documents should be reflected, as appropriate, in this Regulation. (4)This Regulation constitutes the necessary legislative basis for governing SIS in respect of matters falling within the scope of Chapter 2 of Title V of the Treaty on Functioning of the European Union. Regulation (EU) 2018/… of the European Parliament and of the Council on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters constitutes the necessary legislative basis for governing SIS in respect of matters falling within the scope of Chapters 4 and 5 of Title V of the Treaty on Functioning of the European Union. (5)The fact that the legislative basis necessary for governing SIS consists of separate instruments does not affect the principle that SIS constitutes one single information system that should operate as such. Certain provisions of these instruments should therefore be identical. (6)It is necessary to specify the objectives of SIS, its technical architecture and its financing, to lay down rules concerning its end-to-end operation and use and to define responsibilities, the categories of data to be entered into the system, the purposes for which the data are to be entered, the criteria for their entry, the authorities authorised to access the data, the use of biometric identifiers and further rules on data processing. (7)SIS includes a central system (Central SIS) and national systems with a full or partial copy of the SIS database. Considering that SIS is the most important information exchange instrument in Europe, it is necessary to ensure its uninterrupted operation at central as well as at national level. Therefore each Member State should establish a partial or full copy of the SIS database and should set up its backup system. (8)It is necessary to maintain a manual setting out the detailed rules for the exchange of certain supplementary information concerning the action called for by alerts. National authorities in each Member State (the SIRENE Bureaux), should ensure the exchange of this information. (9)In order to maintain the efficient exchange of supplementary information concerning the action to be taken specified in the alerts, it is appropriate to reinforce the functioning of the SIRENE Bureaux by specifying the requirements concerning available resources, user training and the response time to the inquiries received from other SIRENE Bureaux.

(10)The operational management of the central components of SIS are exercised by the European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (the Agency). In order to enable the Agency to dedicate the necessary financial and personal resources covering all aspects of the operational management of Central SIS, this Regulation should set out its tasks in detail, in particular with regard to the technical aspects of the exchange of supplementary information. (11)Without prejudice to the responsibility of Member States for the accuracy of data entered into SIS, the Agency should become responsible for reinforcing data quality by introducing a central data quality monitoring tool, and for providing reports at regular intervals to the Member States. (12)In order to allow better monitoring of the use of SIS to analyse trends concerning migratory pressure and border management, the Agency should be able to develop a state-of-the-art capability for statistical reporting to the Member States, the Commission, Europol and the European Border and Cost Guard Agency without jeopardising data integrity. Therefore, a central statistical repository should be established. Any statistic produced should not contain personal data. (13)SIS should contain further data categories to allow end-users to take informed decisions based upon an alert without losing time. Therefore alerts for the purpose of refusal of entry and stay should hold information concerning the decision on which the alert is based. Furthermore, in order to facilitate identification and detect multiple identities, the alert should include a reference to the personal identification document or number and a copy of such document, where available. (14)SIS should not store any data used for search with the exception of keeping logs to verify if the search is lawful, for monitoring the lawfulness of data processing, for self-monitoring and for ensuring the proper functioning of N.SIS, as well as for data integrity and security. (15)SIS should permit the processing of biometric data in order to assist in the reliable identification of the individuals concerned. In the same perspective, SIS should also allow for the processing of data concerning individuals whose identity has been misused (in order to avoid inconveniences caused by their misidentification), subject to suitable safeguards; in particular with the consent of the individual concerned and a strict limitation of the purposes for which such data can be lawfully processed. (16)Member States should make the necessary technical arrangement so that each time the end-users are entitled to carry out a search in a national police or immigration database they also search SIS in parallel in accordance with Article 4 of Directive (EU) 2016/680 of the European Parliament and of the Council. This should ensure that SIS functions as the main compensatory measure in the area without internal border controls and better address the cross-border dimension of criminality and the mobility of criminals. (17)This Regulation should set out the conditions for use of dactylographic data and facial images for identification purposes. The use of facial images for identification purposes in SIS should also help ensure consistency in border control procedures where identification and the verification of identity are required by the use of dactylographic data and facial images. Searching with dactylographic data should be mandatory if there is any doubt concerning the identity of a person. Facial images for identification purposes should only be used in the context of regular border controls in self-service kiosks and electronic gates. (18)Fingerprints found at a crime scene should be allowed to be checked against the dactylographic data stored in SIS if it can be established to a high degree of probability that they belong to the perpetrator of the serious crime or terrorist offence. Serious crime should be the offences listed in Council Framework Decision 2002/584/JHA and ‘terrorist offence’ should be offences under national law referred to in Council Framework Decision 2002/475/JHA. (19)It should be possible for Member States to establish links between alerts in SIS. The establishment by a Member State of links between two or more alerts should have no impact on the action to be taken, their retention period or the access rights to the alerts. (20)A greater level of effectiveness, harmonisation and consistency can be achieved by making it mandatory to enter in SIS all entry bans issued by the competent authorities of the Member States in accordance with procedures respecting Directive 2008/115/EC, and by setting common rules for entering such alerts following the return of the illegally staying third country national. Member States should take all necessary measures to ensure that no time-gap exist between the moment in which the third-country national leaves the Schengen area and the activation of the alert in SIS. This should ensure the successful enforcement of entry bans at external border crossing points, effectively preventing re-entry into the Schengen area. (21)This Regulation should set mandatory rules for the consultation of national authorities in case a third country national holds or may obtain a valid residence permit or other authorisation or right to stay granted in one Member State, and another Member State intends to issue or already entered an alert for refusal of entry and stay to the third country national concerned. Such situations create serious uncertainties for border guards, police and immigration authorities. Therefore, it is appropriate to provide for a mandatory timeframe for rapid consultation with a definite result in order to avoid that persons representing a threat may enter to the Schengen area. (22)This Regulation should be without prejudice to the application of Directive 2004/38. (23)Alerts should not be kept in SIS longer than the time required to fulfil the purposes for which they were issued. In order reduce the administrative burden on the authorities involved in processing data on individuals for different purposes, it is appropriate to align the maximum retention period of refusal of entry and stay alerts with the possible maximum length of entry bans issued in accordance with procedures respecting Directive 2008/115/EC. Therefore, the retention period for alerts on persons should be a maximum of five years. As a general principle, alerts on persons should be automatically deleted from SIS after a period of five years. Decisions to keep alerts on persons should be based on a comprehensive individual assessment. Member States should review alerts on persons within the defined period and keep statistics about the number of alerts on persons for which the retention period has been extended. (24)Entering and extending the expiry date of a SIS alert should be subject to the necessary proportionality requirement, examining whether a concrete case is adequate, relevant and important enough to insert an alert in SIS. In cases of offences pursuant Articles 1, 2, 3 and 4 of Council Framework Decision 2002/475/JHA on combating terrorism an alert should always be created on third country nationals for the purposes of refusal of entry and stay taking into account the high level of threat and overall negative impact such activity may result in. (25)The integrity of SIS data is of primary importance. Therefore, appropriate safeguards should be provided to process SIS data at central as well as at national level to ensure the end-to-end security of data. The authorities involved in the data processing should be bound by the security requirements of this Regulation and be subject to a uniform incident reporting procedure. (26)Data processed in SIS in application of this Regulation should not be transferred or made available to third countries or to international organisations. (27)To enhance the efficiency of the work of the immigration authorities when deciding about the right of third country nationals to enter and stay in the territories of the Member States, as well as about the return of illegally staying third country nationals, it is appropriate to grant them access to SIS under this Regulation. (28)Regulation (EU) 2016/679 should apply to the processing of personal data under this Regulation by Member States authorities when Directive (EU) 2016/680 does not apply. Regulation (EC) No 45/2001 of the European Parliament and of the Council should apply to the processing of personal data by the institutions and bodies of the Union when carrying out their responsibilities under this Regulation. The provisions of Directive (EU) 2016/680, Regulation (EU) 2016/679 and Regulation (EC) No 45/2001 should be further specified in this Regulation where necessary. With regard to processing of personal data by Europol, Regulation (EU) 2016/794 on the European Union Agency for Law Enforcement cooperation (Europol Regulation) applies. (29)In so far as confidentiality is concerned, the relevant provisions of the Staff Regulations of officials and the Conditions of Employment of other servants of the European Union should apply to officials or other servants employed and working in connection with SIS.

(30)Both the Member States and the Agency should maintain security plans in order to facilitate the implementation of security obligations and should cooperate with each other in order to address security issues from a common perspective. (31)The national independent supervisory authorities should monitor the lawfulness of the processing of personal data by the Member States in relation to this Regulation. The rights of data subjects for access, rectification and erasure of their personal data stored in SIS, and subsequent remedies before national courts as well as the mutual recognition of judgments should be set out. Therefore, it is appropriate to require annual statistics from Member States. (32)The supervisory authorities should ensure that an audit of the data processing operations in its N.SIS is carried out in accordance with international auditing standards at least every four years. The audit should either be carried out by the supervisory authorities, or the national supervisory authorities should directly order the audit from an independent data protection auditor. The independent auditor should remain under the control and responsibility of the national supervisory authority or authorities which therefore should order the audit itself and provide a clearly defined purpose, scope and methodology of the audit as well as guidance and supervision concerning the audit and its final results. (33)Regulation (EU) 2016/794 (Europol Regulation) provides that Europol supports and strengthens actions carried out by the competent authorities of Member States and their cooperation in combating terrorism and serious crime and provides analysis and threat assessments. In order to facilitate Europol in carrying out its tasks, in particular within the European Migrant Smuggling Centre, it is appropriate to allow Europol access to the alert categories defined in this Regulation. Europol's European Migrant Smuggling Centre plays a major strategic role in countering the facilitation of irregular migration, it should obtain access to alerts on persons who are refused entry and stay within the territory of a Member State either on criminal grounds or because of non-compliance with entry and stay conditions. (34)In order to bridge the gap in information sharing on terrorism, in particular on foreign terrorist fighters – where monitoring of their movement is crucial – Member States should share information on terrorism-related activity with Europol in parallel to introducing an alert in SIS, as well as hits and related information. This should allow Europol's European Counter Terrorism Centre to verify if there is any additional contextual information available in Europol's databases and to deliver high quality analysis contributing to disrupting terrorism networks and, where possible, preventing their attacks. (35)It is also necessary to set out clear rules for Europol on the processing and downloading of SIS data to allow the most comprehensive use of SIS provided that data protection standards are respected as provided in this Regulation and Regulation (EU) 2016/794. In cases where searches carried out by Europol in SIS reveal the existence of an alert issued by a Member State, Europol cannot take the required action. Therefore it should inform the Member State concerned allowing it to follow up the case. (36)Regulation (EU) 2016/1624 of the European Parliament and of the Council provides for the purposes of this Regulation, that the host Member State is to authorise the members of the European Border and Coast Guard teams or teams of staff involved in return-related tasks, deployed by the European Border and Coast Guard Agency, to consult European databases, where this consultation is necessary for fulfilling operational aims specified in the operational plan on border checks, border surveillance and return. Other relevant Union agencies, in particular the European Asylum Support Office and Europol, may also deploy experts as part of migration management support teams, who are not members of the staff of those Union agencies. The objective of the deployment of the European Border and Coast Guard teams, teams of staff involved in return-related tasks and the migration management support teams is to provide for technical and operational reinforcement to the requesting Member States, especially to those facing disproportionate migratory challenges. Fulfilling the tasks assigned to the European Border and Coast Guard teams, teams of staff involved in return-related tasks and to the migration management support teams, necessitates access to SIS via a technical interface of the European Border and Coast Guard Agency connecting to Central SIS. In cases where searches carried out by the team or the teams of staff in SIS reveal the existence of an alert issued by a Member State, the member of the team or the staff cannot take the required action unless authorised to do so by the host Member State. Therefore it should inform the Member States concerned allowing for follow up of the case. (37)In accordance with Regulation (EU) 2016/1624 the European Border and Coast Guard Agency shall prepare risk analyses. These risk analyses shall cover all aspects relevant to European integrated border management, notably threats that may affect the functioning or security of the external borders. Alerts introduced in the SIS in accordance with this Regulation, notably the alerts on refusal of entry and stay are relevant information for assessing possible threats that may affect the external borders and should thus be available in view of the risk analysis which must be prepared by the European Border and Coast Guard Agency. Fulfilling the tasks assigned to the European Border and Coast Guard Agency in relation to risk analysis, necessitates access to SIS. Furthermore, in accordance with Commission proposal for a Regulation of the European Parliament and of the Council establishing a European Travel Information and Authorisation System (ETIAS) the ETIAS Central Unit of the European Border and Coast Guard Agency will perform verifications in SIS via ETIAS in order to perform the assessment of the applications for travel authorisation which require, inter alia, to ascertain if the third country national applying for a travel authorisation is subject of a SIS alert. To this end the ETIAS Central Unit within European Border and Coast Guard Agency should also have access to SIS to the extent necessary to carry out its mandate, namely to all alert categories on third country nationals in respect of whom an alert has been issued for the purposes of entry and stay, and those who are subject to restrictive measure intended to prevent entry or transit through Member States. (38)Owing to their technical nature, level of detail and need for regular updating, certain aspects of SIS cannot be covered exhaustively by the provisions of this Regulation. These include, for example, technical rules on entering data, updating, deleting and searching data, data quality and search rules related to biometric identifiers, rules on compatibility and priority of alerts, the adding of flags, links between alerts, setting the expiry date of alerts within the maximum time limit and the exchange of supplementary information. Implementing powers in respect of those aspects should therefore be conferred to the Commission. Technical rules on searching alerts should take into account the smooth operation of national applications. (39)In order to ensure uniform conditions for the implementation of this Regulation implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011. The procedure for adopting implementing measures under this Regulation and Regulation (EU) 2018/xxx (police and judicial cooperation) should be the same. (40)In order to ensure transparency, a report on the technical functioning of Central SIS and the communication infrastructure, including its security, and on the exchange of supplementary information should be produced every two years by the Agency. An overall evaluation should be issued by the Commission every four years. (41)Since the objectives of this Regulation, namely the establishment and regulation of a joint information system and the exchange of related supplementary information, cannot, by their very nature, be sufficiently achieved by the Member States and can therefore be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty of the European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (42)This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure a safe environment for all persons residing on the territory of the European Union and a protection of irregular migrants from exploitation and trafficking by allowing their identification while fully respecting the protection of personal data. (43)In accordance with Articles 1 and 2 of Protocol No 22 on the Position of Denmark annexed to the Treaty on European Union and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law. (44)This Regulation constitutes a development of provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC; the United Kingdom is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application. (45)This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC; Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application. (46)As regards Iceland and Norway, this Regulation 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 association of those two States 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/ECon certain arrangements for the application of that Agreement. (47)As regards Switzerland, this Regulation constitutes a development of provisions of the Schengen acquis within the meaning of the Agreement signed between the European Union, the European Community and the Swiss Confederation concerning the association of the Swiss Confederation with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point G, of Decision 1999/437/EC read in conjunction with Article 4(1) of Council Decisions 2004/849/EC and 2004/860/EC. (48)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 Confederation’s association with the implementation, application and development of the Schengen acquis, which fall within the area referred to in Article 1, point G, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/349/EU and Article 3 of Council Decision 2011/350/EU. (49)As regards Bulgaria and Romania, this Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis within the meaning of Article Article 4(2) of the 2005 Act of Accession and should be read in conjunction with Council Decision 2010/365/EU on the application of the provisions of the Schengen acquis relating to the Schengen Information System in the Republic of Bulgaria and Romania.

(50)Concerning Cyprus and Croatia this Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis within, respectively, the meaning of Article 3(2) of the 2003 Act of Accession and Article 4(2) of the 2011 Act of Accession. (51)The estimated costs of the upgrade of the SIS national systems and of the implementation of the new functionalities, envisaged in this Regulation are lower than the remaining amount in the budget line for Smart Borders in Regulation (EU) No 515/2014 of the European Parliament and the Council. Therefore, this Regulation should re-allocate the amount, attributed for developing IT systems supporting the management of migration flows across the external borders.in accordance with Article 5(5)(b) of Regulation (EU) No 515/2014. (52)Regulation (EC) No 1987/2006 should therefore be repealed. (53)The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on …,

HAVE ADOPTED THIS REGULATION: CHAPTER I GENERAL PROVISIONS Article 1

General purpose of SIS The purpose of SIS shall be to ensure a high level of security within the area of freedom, security and justice of the Union, including the maintenance of public security and public policy and the safeguarding of security in the territories of the Member States, and to apply the provisions of Chapter 2 of Title V of Part Three of the Treaty on the Functioning of the European Union relating to the movement of persons in their territories, using information communicated via this system. Article 2

Scope 1.This Regulation establishes the conditions and procedures for the entry and processing in SIS of alerts in respect of third-country nationals, the exchange of supplementary information and additional data for the purpose of refusing entry into and stay on the territory of the Member States. 2.This Regulation also lays down provisions on the technical architecture of SIS, the responsibilities of the Member States and of the European Agency on the operational management of large-scale IT systems in the area of freedom, security and justice, general data processing, the rights of the persons concerned and liability. Article 3

Definitions 1.For the purposes of this Regulation, the following definitions shall apply: (a)‘alert’ means a set of data, including biometric identifiers as referred to in Article 22, entered in SIS allowing the competent authorities to identify a person with a view to taking specific action; (b)‘supplementary information’ means information not forming part of the alert data stored in SIS, but connected to SIS alerts, which is to be exchanged: (1)in order to allow Member States to consult or inform each other when entering an alert; (2)following a hit in order to allow the appropriate action to be taken; (3)when the required action cannot be taken; (4)when dealing with the quality of SIS data;

(5)when dealing with the compatibility and priority of alerts; (6)when dealing with rights of access; (c)‘additional data’ means the data stored in SIS and connected with SIS alerts which are to be immediately available to the competent authorities where a person in respect of whom data has been entered in SIS is located as a result of searches made therein; (d)‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20 of the TFEU, with the exception of persons who enjoy rights of free movement equivalent to those of Union citizens under agreements between the Union, or the Union and its Member States on the one hand, and third countries on the other hand; (e)‘personal data’ means any information relating to an identified or identifiable natural person (‘data subject’); (f)‘an identifiable natural person’ is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; (g)‘processing of personal data’ means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, logging, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; (h)a ‘hit’ in SIS means: (1)a search is conducted by a user, (2)the search reveals an alert in entered by another Member State in SIS, (3)data concerning the alert in SIS matches the search data, and (4)further actions are requested as a result of the hit (i)‘issuing Member State’ means the Member State which entered the alert in SIS; (j)‘executing Member State’ means the Member State which takes the required actions following a hit; (k)‘end-users’ mean competent authorities directly searching CS-SIS, N.SIS or a technical copy thereof. (l)‘return’ means return as defined in point 3 of Article 3 of Directive 2008/115/EC; (m)‘entry ban’ means entry ban as defined in point 6 of Article 3 of Directive 2008/115/EC; (n)‘dactylographic data’ means data on fingerprints and palm prints which due to their unique character of uniqueness and the reference points contained therein enable accurate and conclusive comparisons on a person's identity; (o)‘serious crime’ means offences listed in Article 2(1) and (2) of Framework Decision 2002/584/JHA of 13 June 2002; (p)‘terrorist offences’ means offences under national law referred to in Articles, 1-4 of Framework Decision 2002/475/JHA of 13 June 2002.

Article 4

Technical architecture and ways of operating SIS 1.SIS shall be composed of: (a)a central system (Central SIS) composed of: –a technical support function (‘CS-SIS’) containing a database, the ‘SIS database’, –a uniform national interface (NI-SIS); (b)a national system (N.SIS) in each of the Member States, consisting of the national data systems which communicate with Central SIS. An N.SIS shall contain a data file (a ‘national copy’), containing a complete or partial copy of the SIS database as well as a backup N.SIS. The N.SIS and its backup may be used simultaneously to ensure uninterrupted availability to end-users; (c)a communication infrastructure between CS-SIS and NI-SIS (the Communication Infrastructure) that provides an encrypted virtual network dedicated to SIS data and the exchange of data between SIRENE Bureaux as referred to in Article 7(2). 2.SIS data shall be entered, updated, deleted and searched via the various N.SIS. A partial or a full national copy shall be available for the purpose of carrying out automated searches in the territory of each of the Member States using such a copy. The partial national copy shall contain at least the data listed in Article 20(2) (a)-(v) of this Regulation It shall not be possible to search the data files of other Member States' N.SIS. 3.CS-SIS shall perform technical supervision and administration functions and have a backup CS-SIS, capable of ensuring all functionalities of the principal CS-SIS in the event of failure of this system. CS-SIS and the backup CS-SIS shall be located in the two technical sites of the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by Regulation (EU) No 1077/2011(‘the Agency’). CS-SIS or backup CS-SIS may contain an additional copy of the SIS database and may be used simultaneously in active operation provided that each of them is capable to process all transactions related to SIS alerts. 4.CS-SIS shall provide the services necessary for the entry and processing of SIS data, including searches in the SIS database. CS-SIS shall: (a)provide online update of the national copies; (b)ensure synchronisation of and consistency between the national copies and the SIS database; (c)provide the operation for initialisation and restoration of the national copies; (d)provide uninterrupted availability. Article 5

Costs 1.The costs of operating, maintaining and further developing Central SIS and the Communication Infrastructure shall be borne by the general budget of the European Union. 2.These costs shall include work done with respect to CS-SIS that ensures the provision of the services referred to in Article 4(4). 3.The costs of setting up, operating, maintaining and further developing each N.SIS shall be borne by the Member State concerned. CHAPTER II RESPONSIBILITIES OF THE MEMBER STATES

Article 6

National systems Each Member State shall be responsible for setting up, operating, maintaining and further developing its N.SIS and connecting its N.SIS to NI-SIS. Each Member State shall be responsible for ensuring the continuous operation of the N.SIS, its connection to NI-SIS and the uninterrupted availability of SIS data to the end-users. Article 7

N.SIS Office and SIRENE Bureau 1.Each Member State shall designate an authority (the N.SIS Office), which shall have central responsibility for its N.SIS. That authority shall be responsible for the smooth operation and security of the N.SIS, shall ensure the access of the competent authorities to the SIS and shall take the necessary measures to ensure compliance with the provisions of this Regulation. It shall be responsible for ensuring that all functionalities of SIS are appropriately made available to the end-users. Each Member State shall transmit its alerts via its N.SIS Office. 2.Each Member State shall designate the authority which shall ensure the exchange and availability of all supplementary information (the SIRENE Bureau) in accordance with the provisions of the SIRENE Manual, as referred to in Article 8. Those Bureaux shall also coordinate the verification of the quality of the information entered in SIS. For those purposes they shall have access to data processed in SIS. 3.The Member States shall inform the Agency of their N.SIS II Office and of their SIRENE Bureau. The Agency shall publish the list of them together with the list referred to in Article 36(8). Article 8

Exchange of supplementary information 1.Supplementary information shall be exchanged in accordance with the provisions of the SIRENE Manual and using the Communication Infrastructure. Member States shall provide the necessary technical and personal resources to ensure the continuous availability and exchange of supplementary information. In the event that the the Communication Infrastructure is unavailable, Member States may use other adequately secured technical means to exchange supplementary information. 2.Supplementary information shall be used only for the purpose for which it was transmitted in accordance with Article 43 unless prior consent is obtained from the issuing Member State. 3.The SIRENE Bureaux shall carry out their task in a quick and efficient manner, in particular by replying to a request as soon as possible but not later than 12 hours after the receipt of the request. 4.Detailed rules for the exchange of supplementary information shall be adopted by means of implementing measures in accordance with the examination procedure referred to in Article 55(2) in the form of a manual called the ‘SIRENE Manual’. Article 9

Technical and functional compliance 1.When setting up its N.SIS, each Member State shall comply with common standards, protocols and technical procedures established to ensure the compatibility of its N-SIS with CS-SIS for the prompt and effective transmission of data. Those common standards, protocols and technical procedures shall be laid down and developed by means of implementing measures in accordance with the examination procedure referred to in Article 55(2). 2.Member States shall ensure, by means of the services provided by CS-SIS, that data stored in the national copy are, by means of automatic updates referred to in Article 4(4), identical to and consistent with the SIS database, and that a search in its national copy produces a result equivalent to that of a search in the SIS database. End-users shall receive the data required to perform their tasks, in particular all data required for the identification of the data subject and to take the required action. Article 10

Security – Member States 1.Each Member State shall, in relation to its N.SIS, adopt the necessary measures, including a security plan, a business continuity plan and a disaster recovery plan, in order to:

(a)physically protect data, including by making contingency plans for the protection of critical infrastructure; (b)deny unauthorised persons access to data-processing facilities used for processing personal data (facilities access control); (c)prevent the unauthorised reading, copying, modification or removal of data media (data media control); (d)prevent the unauthorised input of data and the unauthorised inspection, modification or deletion of stored personal data (storage control); (e)prevent the use of automated data-processing systems by unauthorised persons using data communication equipment (user control); (f)ensure that persons authorised to use an automated data-processing system have access only to the data covered by their access authorisation, by means of individual and unique user identities and confidential access modes only (data access control); (g)ensure that all authorities with a right of access to SIS or to the data processing facilities create profiles describing the functions and responsibilities of persons who are authorised to access, enter, update, delete and search the data and make these profiles available to the national supervisory authorities referred to in Article 50(1) without delay upon their request (personnel profiles); (h)ensure that it is possible to verify and establish to which bodies personal data may be transmitted using data communication equipment (communication control); (i)ensure that it is subsequently possible to verify and establish which personal data have been input into automated data-processing systems, when, by whom and for what purpose the data were input (input control); (j)prevent the unauthorised reading, copying, modification or deletion of personal data during transfers of personal data or during transportation of data media, in particular by means of appropriate encryption techniques (transport control); (k)monitor the effectiveness of the security measures referred to in this paragraph and take the necessary organisational measures related to internal monitoring (self-auditing). 2.Member States shall take measures equivalent to those referred to in paragraph 1 as regards security in respect of the processing and exchange of supplementary information, including securing the premises of the SIRENE Bureau. 3.Member States shall take measures equivalent to those referred to in paragraph 1 as regards security in respect of the processing of SIS data by the authorities referred to in Article 29. Article 11

Confidentiality – Member States Each Member State shall apply its rules of professional secrecy or other equivalent duties of confidentiality to all persons and bodies required to work with SIS data and supplementary information, in accordance with its national law. That obligation shall also apply after those persons leave office or employment or after the termination of the activities of those bodies. Article 12

Keeping of logs at national level 1.Member States shall ensure that every access to and all exchanges of personal data within CS-SIS are logged in their N.SIS for the purposes of checking whether or not the search is lawful, monitoring the lawfulness of data processing, self-m