Common Position (EC) No 15/2005 of 22 December 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council amending the Convention implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders, as regards access to the Schengen Information System by the services in the Member States responsible for issuing registration certificates for vehicles   (Text with EEA relevance)
Date: 2004-12-22
Institutions: Council of the European Union
Subjects: Schengen Agreement, Schengen Information System, border control, internal border of the EU, vehicle registration

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COMMON POSITION (EC) No 15/2005

adopted by the Council on 22 December 2004

with a view to adopting Regulation (EC) No …/2005 of the European Parliament and of the
Council of … amending the Convention implementing the Schengen Agreement of 14 June 1985
on the gradual abolition of checks at common borders, as regards access to the Schengen Informa-
tion System by the services in the Member States responsible for issuing registration certificates
for vehicles

(Text with EEA relevance)

(2005/C 111 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 71(1)(d) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty (2),

Whereas:

(1)

(2)

Article 9 of Council Directive 1999/37/EC of 29 April
1999 on the registration documents for vehicles (3)
provides that Member States are to assist one another in
the implementation of that Directive and may exchange
information at bilateral or multilateral level in particular
so as to check, before any registration of a vehicle, the
latter's legal status, where necessary in the Member State
in which it was previously registered. Such checking
may in particular
involve the use of an electronic
network.

The Schengen Information System (or the ‘SIS’), set up
under Title IV of the Convention of 1990 implementing
the Schengen Agreement of 14 June 1985 on the
gradual abolition of checks at common borders (4) (here-
inafter ‘the 1990 Schengen Convention’) and integrated
into the framework of the European Union pursuant to
the Protocol annexed to the Treaty on European Union
and the Treaty establishing the European Community,
constitutes an electronic network between the Member
States and contains,
inter alia, data on motor vehicles
with a cylinder capacity exceeding 50 cc which have

(1) OJ C 110, 30.4.2004, p. 1.
(2) Opinion of the European Parliament of 1 April 2004 (OJ C 103 E,

29.4.2004, p. 794) and Council Decision of …

(3) OJ L 138, 1.6.1999, p. 57. Directive as last amended by Commis-

sion Directive 2003/127/EC (OJ L 10, 16.1.2004, p. 29).

(4) OJ L 239, 22.9.2000, p. 19. Convention as last amended by
Council Regulation (EC) No 871/2004 (OJ L 162, 30.4.2004, p. 29).

(3)

(4)

(5)

(6)

been stolen, misappropriated or lost. Pursuant to Article
100 of the 1990 Schengen Convention, data on such
motor vehicles sought for the purposes of seizure or use
as evidence in criminal proceedings are entered in the
SIS.

The initiative of the Kingdom of the Netherlands with a
view to adopting a Council Decision on tackling vehicle
crime with cross-border implications (5) includes the use
of the SIS as an integral part of the law enforcement
strategy against vehicle crime.

to Article 101(1) of

Pursuant
the 1990 Schengen
Convention, access to data entered in the SIS and the
right to search such data directly is reserved exclusively
to the authorities responsible for border checks and
other police and customs checks carried out within the
country, and the coordination of such checks.

Article 102(4) of
provides that data may not,
administrative purposes.

the 1990 Schengen Convention
in principle, be used for

in

States

responsible

the Member

Services
for
issuing registration certificates for vehicles and clearly
identified for this purpose should have access to data
entered in the SIS concerning motor vehicles with a
cylinder capacity exceeding 50 cc, trailers and caravans
with an unladen weight exceeding 750 kg and vehicle
registration certificates and vehicle number plates which
have been stolen, misappropriated, lost or invalidated, in
order to enable them to check whether the vehicles
presented to them for registration have been stolen,
misappropriated or lost. To that end it is necessary to
adopt rules granting those services access to those data,
and to allow them to use those data for the administra-
tive purpose of properly issuing registration certificates
for vehicles.

(5) OJ C 34, 7.2.2004, p. 18.

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(7)

(8)

(9)

Member States should take the necessary measures to
ensure that, in case of a hit, the measures provided for
under Article 100(2) of the 1990 Schengen Convention
are taken.

The European Parliament
recommendation to the
Council of 20 November 2003 on the second-generation
Schengen Information System (SIS II) outlines a number
of important concerns and considerations in relation to
the development of the SIS, particularly as regards access
to the SIS by private bodies such as vehicle registration
services.

To the extent that services in the Member States respon-
sible for issuing registration certificates for vehicles are
not government services, access to the SIS should be
granted indirectly,
is to say through the inter-
mediary of an authority as referred to in Article 101(1)
the 1990 Schengen Convention responsible for
of
ensuring compliance with the measures taken by these
Member States pursuant to Article 118 of that Conven-
tion.

that

(10) Directive 95/46/EC of the European Parliament and of
the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal
data and on the free movement of such data (1), and the
specific rules on data protection in the provisions of the
1990 Schengen Convention, which supplement or
clarify the principles set out in that Directive, apply to
the processing of personal data by the services respon-
sible in the Member States for issuing registration certifi-
cates for vehicles.

(11)

in order

to facilitate their

Since the objective of this Regulation, namely granting
access to the SIS to services in the Member States
responsible for issuing registration certificates for vehi-
cles,
tasks under Direc-
tive 1999/37/EC, cannot be sufficiently achieved by the
Member States by reason of the very nature of the SIS as
a joint information system, and can therefore only be
achieved at Community level,
the Community may
adopt measures,
in accordance with the principle of
In
subsidiarity as set out in Article 5 of the Treaty.
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 that objective.

(12) Member States should have a sufficient period within
which to take the practical measures necessary to apply
this Regulation.

(13) As regards Iceland and Norway, this Regulation consti-
the Schengen

tutes a development of provisions of

acquis which fall within the area referred to in Article 1,
point G, of Council Decision 1999/437/EC of 17 May
1999 on certain arrangements for the application of 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 (2).

This Regulation respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union.

This Regulation constitutes an act building on the
Schengen acquis or otherwise related to it within the
meaning of Article 3(2) of the 2003 Act of Accession,

(14)

(15)

HAVE ADOPTED THIS REGULATION:

Article 1

The following Article shall be inserted in Title IV of the 1990
Schengen Convention:

‘Article 102a

Notwithstanding Articles 92(1), 100(1), 101(1) and (2),
1.
102(1), (4) and (5), the services in the Member States respon-
sible for issuing registration certificates for vehicles, as referred
to in Council Directive 1999/37/EC of 29 April 1999 on the
registration documents for vehicles (*), shall have the right to
have access to the following data entered into the Schengen
Information System, for the sole purpose of checking whether
vehicles presented to them for registration have been stolen,
misappropriated or lost:

(a) data concerning motor vehicles with a cylinder capacity
exceeding 50 cc which have been stolen, misappropriated
or lost;

(b) data concerning trailers and caravans with an unladen
weight exceeding 750 kg which have been stolen, misap-
propriated or lost;

(c) data concerning registration certificates for vehicles and
vehicle number plates which have been stolen, misappro-
priated, lost or invalidated.

Subject to paragraph 2, the national law of each Member State
shall govern access to those data by those services.

(1) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

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

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2.
The services referred to in paragraph 1 that are govern-
ment services shall be entitled to search directly the data
entered in the Schengen Information System referred to in that
paragraph.

The services referred to in paragraph 1 that are not government
services shall have access to data entered in the Schengen Infor-
mation System referred to in that paragraph only through the
intermediary of an authority as referred to in Article 101(1).
That authority shall be entitled to search directly the data and
to pass them on to those services. The Member State concerned
shall ensure that those services and their employees are obliged
to respect any limitations on the permissible use of data passed
on to them by the authority.

3.
Article 100(2) shall not apply to a search made in accord-
ance with this Article. The communication by services as
referred to in paragraph 1 to the police or judicial authorities
of information brought to light by a search of the Schengen
Information System which gives rise to suspicion of a criminal
offence shall be governed by national law.

(*) OJ L 138, 1.6.1999, p. 57. Directive as last amended by
Commission Directive 2003/127/EC (OJ L 10, 16.1.2004,
p. 29).’

Article 2

1.
This Regulation shall enter into force on the twentieth
day following its publication in the Official Journal of the Euro-
pean Union.

2.

It shall apply from … (*).

For those Member States in which the provisions of the
3.
Schengen acquis relating to the SIS do not yet apply, this Regu-
lation shall apply within six months after the date on which
those provisions are put into effect for them, as specified in the
Council Decision … adopted to that effect in accordance with
the applicable procedures.

4.
The content of this Regulation shall become binding for
Norway 270 days after the date of its publication in the Official
Journal of the European Union.

5.
Notwithstanding the notification requirements laid down
in Article 8(2)(c) of the Schengen Association Agreement with
Norway and Iceland (1), Norway shall, before the date referred
to in paragraph 4, notify the Council and the Commission that
the constitutional requirements for becoming bound by the
contents of this Regulation have been fulfilled.

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

Done at Brussels,

For the European Parliament

The President

For the Council

The President

(*) Six months from the day of publication of this Regulation.
(1) OJ L 176, 10.7.1999, p. 36.

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STATEMENT OF THE COUNCIL'S REASONS

INTRODUCTION

1. On 3 September 2003, the Commission forwarded to the Council a proposal for a Regulation of the
European Parliament and of the Council amending the provisions of the Convention implementing the
Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders as
regards access to the Schengen Information System by the authorities and by the services in the
Member States responsible for issuing registration certificates for vehicles.

2. Coreper has confirmed the political agreement on this draft Regulation on 9 November 2004. Following

legal/linguistic revision, the Council will adopt its common position of 22 December 2004.

AMENDMENTS

3. The Parliament delivered its opinion (1) on 1 April 2004, proposing 10 amendments (2).

4. All amendments proposed by the Parliament and acceptable to the Commission (amendments nr. 1, 2,
3, 5, 6 and 7) have been integrated in the text. Amendment 8, which is reported as being unacceptable
by the Commission (3) but of which the Commission services have indicated that it is acceptable, has
also been taken up in the common position.

5. The other amendments (amendments 4, 10 and 11), which were not acceptable to the Commission,
have not been included in the common position because it is considered that the current draft Regu-
lation does not provide the correct and sufficient legal basis for these provisions.

6. Concerning amendment 4, however, the Council is aware of the fact that the current drafting of the
Regulation supposes that the relevant provisions of the draft Council Decision concerning the introduc-
including in the fight against
tion of some new functions for the Schengen Information System,
terrorism, have become applicable before the Regulation enters into force. As there is agreement on the
draft Council Decision and its adoption is only subject to the lifting of one outstanding parliamentary
reservation, the Council wishes to maintain the current text. This issue will be carefully examined again
in the second reading, in light of the progress made on the abovementioned draft Council Decision at
that time.

(1) OJ C 103 E, 29.4.2004, p. 794.
(2) The outcome of the Parliament's first reading is set out in document 7965/04 CODEC 485 SIRIS 49 COMIX 231.
(3) See document 7965/04 CODEC 485 SIRIS 49 COMIX 231.