Council Regulation (EC) No 871/2004 of 29 April 2004 concerning the introduction of some new functions for the Schengen Information System, including in the fight against terrorism
Date: 2004-04-29
Institutions: Council of the European Union
Subjects: Schengen Information System, data processing, exchange of information, free movement of persons, terrorism

30.4.2004

EN

Official Journal of the European Union

L 162/29

COUNCIL REGULATION (EC) No 871/2004

of 29 April 2004

concerning the introduction of some new functions for the Schengen Information System,
including in the fight against terrorism

THE COUNCIL OF THE EUROPEAN UNION

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 66 thereof,

Having regard to the initiative of the Kingdom of Spain (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

The Schengen Information System, hereinafter referred
to as ‘SIS’, set up pursuant to the provisions of Title IV
of the Convention of 1990 implementing the Schengen
Agreement of 14 June 1985 on the gradual abolition of
checks at common borders (3), hereinafter referred to as
‘the 1990 Schengen Convention’, constitutes an essential
the
tool
Schengen acquis as integrated into the framework of the
European Union.

the application of

the provisions of

for

The need to develop a new, second generation SIS, here-
inafter referred to as ‘SIS II’, with a view to the enlarge-
ment of the European Union and allowing for the intro-
duction of new functions, while benefiting from the
information tech-
latest developments in the field of
nology, has been recognised and the first steps have
been taken to develop this new system.

Certain adaptations of existing provisions and the intro-
duction of certain new functions can already be realised
with respect to the current version of the SIS, in particu-
lar as far as concerns the provision of access to certain
types of data entered in the SIS for authorities the
proper performance of whose tasks would be facilitated
were they able to search these data, including Europol
and the national members of Eurojust, the extension of
the categories of missing objects about which alerts may
be entered and the recording of
transmissions of
personal data. The technical facilities required for the
purpose first need to be established in each Member
State.

The Conclusions of the Laeken European Council of 14
and 15 December 2001 and in particular Conclusions
17 (cooperation between specialised counter-terrorism
services), 43 (Eurojust and police cooperation with
regard to Europol) and the Action Plan of 21 September
2001 against terrorism refer to the need to enhance the
SIS and improve its capabilities.

(1) OJ C 160, 4.7.2002, p. 5.
(2) OJ C 31 E, 5.2.2004, p.122.
(3) OJ L 239, 22.9.2000, p. 19.

(5)

(6)

(7)

(8)

Moreover, it is useful to enact provisions with respect to
the exchange of all supplementary information through
that purpose in all
the authorities designated for
Member States (Supplementary Information Request at
National Entry), giving these authorities a common legal
E basis within the provisions of the 1990 Schengen
Convention and setting out rules on deletion of data
kept by these authorities.

The amendments to be made to this effect to the provi-
sions of the Schengen acquis dealing with the SIS consist
of two parts: this Regulation and a Council Decision
based on Articles 30(1)(a) and (b), 31(a) and (b) and
34(2)(c) of the Treaty on European Union. The reason
for this is that, as set out in Article 93 of the 1990
Schengen Convention, the purpose of the SIS is to main-
tain public policy and public security, including national
security, in the territories of the Member States and to
apply the provisions of the said Convention relating to
the movement of persons in those territories, by using
information communicated via the SIS in accordance
with the provisions of that Convention. Since some of
the provisions of the 1990 Schengen Convention are to
be applied for both purposes at the same time,
it is
appropriate to modify such provisions in identical terms
through parallel acts based on each of the Treaties.

This Regulation is without prejudice to the adoption in
future of the necessary legislation describing in detail the
legal architecture, objectives, operation and use of SIS II,
such as, but not limited to, rules further defining the
categories of data to be entered into the system, the
purposes for which they are to be entered and the
criteria for their entry, rules concerning the content of
SIS records,
the interlinking of alerts, compatibility
between alerts and further rules on access to SIS data
and the protection of personal data and their control.

As regards Iceland and Norway, this Regulation consti-
the Schengen
tutes a development of provisions of
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 Decision 1999/437/EC (4), on certain arrangements
for the application of that Agreement.

(4) OJ L 176, 10.7.1999, p. 31.

L 162/30

EN

Official Journal of the European Union

30.4.2004

(9)

(10)

(11)

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on
European Union and to the Treaty establishing the Euro-
pean Community, Denmark is not taking part in the
adoption of this Regulation and is not bound by it or
this Regulation
subject
builds upon the Schengen acquis under the provisions of
Title IV of Part Three of the Treaty establishing the Euro-
pean Community, Denmark shall,
in accordance with
Article 5 of the said Protocol, decide within a period of
six months after the Council has adopted this Regulation
whether it will implement it in its national law.

to its application. Given that

This Regulation constitutes a development of the SIS for
the purpose of its application in relation to provisions of
the Schengen acquis
relating to the movement of
persons; the United Kingdom has not applied to and
does not take part in the SIS for these purposes,
in
accordance with Council Decision 2000/365/EC of 29
May 2000 concerning the
the United
Kingdom of Great Britain and Northern Ireland to take
part
the Schengen
acquis (1); the United Kingdom is therefore not taking
part in its adoption and is not bound by it or subject to
its application.

the provisions of

in some of

request of

This Regulation constitutes a development of the SIS for
the purpose of its application in relation to provisions of
the Schengen acquis
relating to the movement of
persons; Ireland has not applied to and does not take
in the Schengen Information System for these
part
purposes,
in accordance with 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 (2); Ireland is therefore not taking part
in its adoption and is not bound by it or subject to its
application.

(12)

This Regulation constitutes an act building on the
Schengen acquis or otherwise related to it within the
meaning of Article 3(2) of the Act of Accession,

HAS ADOPTED THIS REGULATION:

Article 1

The provisions of the 1990 Schengen Convention are hereby
amended as follows:

1. the following paragraph shall be added to Article 92:

‘4. Member States shall in accordance with national legis-
lation exchange through the authorities designated for that
purpose (Sirene) all supplementary information necessary in
connection with the entry of alerts and for allowing the
appropriate action to be taken in cases where persons in

(1) OJ L 131, 1.6.2000, p. 43.
(2) OJ L 64, 7.3.2002, p. 20.

respect of whom, and objects in respect of which, data have
been entered in the Schengen Information System, are
found as a result of searches made in this System. Such
information shall be used only for the purpose for which it
was transmitted.’

2. points (a) to (i) of the first paragraph of Article 94(3) shall

be replaced by the following:

‘(a) surname and forenames, any aliases possibly entered

separately;

(b) any specific objective physical

characteristics not

subject to change;

(c) (...);

(d) place and date of birth;

(e) sex;

(f) nationality;

(g) whether the persons concerned are armed, violent or

have escaped;

(h) reason for the alert;

(i) action to be taken;’

3. the following sentence shall be added at the end of Article

101(1):

‘However, access to data entered in the SIS and the right to
search such data directly may also be exercised by national
judicial authorities, inter alia, those responsible for the initia-
tion of public prosecutions in criminal proceedings and
judicial inquiries prior to indictment, in the performance of
their tasks, as set out in national legislation.’

4. Article 101(2) shall be replaced by the following:

In addition, access to data entered in accordance with
‘2.
Article 96 and data concerning documents relating to
persons entered in accordance with Article 100(3)(d) and (e)
and the right to search such data directly may be exercised
by the authorities responsible for issuing visas, the central
authorities responsible for examining visa applications and
the authorities responsible for issuing residence permits and
for the administration of legislation on aliens in the context
of
this Convention
relating to the movement of persons. Access to data by
these authorities shall be governed by the national law of
each Member State.’

the application of

the provisions of

5. the second sentence of Article 102(4) shall be replaced by

the following:

‘By way of derogation, data entered under Article 96 and
data concerning documents relating to persons entered
under Article 100(3)(d) and (e) may be used in accordance
with the national law of each Member State for the purposes
of Article 101(2) only.’

30.4.2004

EN

Official Journal of the European Union

L 162/31

6. Article 103 shall be replaced by the following:

8. the following Article shall be inserted:

‘Article 103

Each Member State shall ensure that every transmission of
personal data is recorded in the national section of the
Schengen Information System by the data file management
authority for the purposes of checking whether the search is
admissible or not. The record may only be used for this
purpose and shall be deleted at the earliest after a period of
one year and at the latest after a period of three years.’

7. the following Article shall be inserted:

‘Article 112 A

Personal data held in files by the authorities referred to
1.
in Article 92(4) as a result of
information exchange
pursuant to that paragraph, shall be kept only for such time
as may be required to achieve the purposes for which they
were supplied. They shall
in any event be deleted at the
latest one year after the alert or alerts concerning the person
or object concerned have been deleted from the Schengen
Information System.

2.
Paragraph 1 shall not prejudice the right of a Member
State to keep in national files data relating to a particular
alert which that Member State has issued or to an alert in
connection with which action has been taken on its terri-
tory. The period of time for which such data may be held in
such files shall be governed by national law.’

‘Article 113 A

1.
Data other than personal data held in files by the
authorities referred to in Article 92(4) as a result of informa-
tion exchange pursuant to that paragraph, shall be kept
only for such time as may be required to achieve the
purposes for which they were supplied. They shall in any
event be deleted at the latest one year after the alert or
alerts concerning the person or object concerned have been
deleted from the Schengen Information System.

2.
Paragraph 1 shall not prejudice the right of a Member
State to keep in national files data relating to a particular
alert which that Member State has issued or to an alert in
connection with which action has been taken on its terri-
tory. The period of time for which such data may be held in
such files shall be governed by national law.’

Article 2

1.
This Regulation shall enter into force on the 20th day
following that of its publication in the Official Journal of the
European Union.

It shall apply from a date to be fixed by the Council,
2.
acting unanimously, as soon as the necessary preconditions
have been fulfilled. The Council may decide to set different
dates for the application of different provisions.

Any Decision of the Council

in accordance with para-
3.
graph 2 shall be published in the Official Journal of the European
Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Luxembourg, 29 April 2004.

For the Council

The President

M. McDOWELL