Council Decision 2005/211/JHA of 24 February 2005 concerning the introduction of some new functions for the Schengen Information System, including in the fight against terrorism
Date: 2005-02-24
Institutions: Council of the European Union
Subjects: EU Member State, Schengen Information System, access to information, disclosure of information, exchange of information, fight against crime, personal data, terrorism

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Official Journal of the European Union

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(Acts adopted under Title VI of the Treaty on European Union)

COUNCIL DECISION 2005/211/JHA

of 24 February 2005

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 on European Union, and in
particular Article 30(1)(a) and (b), Article 31(a) and (b) and
Article 34(2)(c) 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)

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
‘the 1990 Schengen Convention’, constitutes an
as
essential tool for the application of the provisions of
the Schengen acquis as integrated into the framework of
the European Union.

The need to develop a new, second generation Schengen
Information System, hereinafter referred to as ‘SIS II’,
with a view to the enlargement of the European Union
and allowing for the introduction of new functions, while
benefiting from the latest developments in the field of
information technology, 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
in
to the current version of
with respect
particular as far as concerns the provision of access to

the SIS,

(1) OJ C 160, 4.7.2002, p. 7.
(2) OJ C 31 E, 5.2.2004, p. 122.
(3) OJ L 239, 22.9.2000, p. 19.

(4)

(5)

(6)

(7)

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.

between

The Conclusions of the Laeken European Council of 14
and 15 December 2001 and in particular Conclusions 17
counter-terrorism
(cooperation
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.

specialised

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

The provisions in this Decision concerning Europol only
set up the legal framework for access to the Schengen
to
Information System and are without prejudice
adoption in the
the necessary measures
setting out the technical solution and the financial impli-
cations thereof.

future of

The provisions in this Decision concerning the national
members of Eurojust and their assistants only set up the
legal framework for access to the Schengen Information
System and are without prejudice to adoption in the
future of
the
technical solution and the financial implications thereof.

the necessary measures

setting out

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The provisions relating to access to SIS data for Europol
and national members of Eurojust and their assistants
only constitute a first phase and are without prejudice
to further discussions on extending this facility to other
provisions of the 1990 Schengen Convention.

Article 8(2) of Council Decision 2000/365/EC of 29 May
2000, concerning the request of the United Kingdom of
Great Britain and Northern Ireland to take part in some
of the provisions of the Schengen acquis (2).

(8)

(9)

(10)

the purpose of

The amendments
to be made to this end to the
the Schengen acquis dealing with the
provisions of
Schengen Information System consist of two parts: this
Decision and a Council Regulation based on Article 66
of the Treaty establishing the European Community. The
reason for this is that, as set out in Article 93 of the
1990 Schengen Convention,
the
Schengen Information System is
to maintain 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 infor-
mation communicated via the SIS in accordance with the
provisions of
the
provisions of the 1990 Schengen Convention are to be
applied for both purposes at the same time, it is appro-
priate to amend such provisions
terms
through parallel acts based on each of the Treaties.

that Convention. Since some of

in identical

limited to,

such as, but not

This Decision 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,
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, compat-
ibility between alerts and further rules on access to SIS
data and the protection of personal data and their
control.

rules

(11) As regards Iceland and Norway, this Decision constitutes
the Schengen acquis
a development of provisions of
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 (1),
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
that
Agreement.

application of

the

for

(13)

(14)

Ireland is taking part in this Decision in accordance with
Article 5 of the Protocol integrating the Schengen acquis
into the framework of the European Union annexed to
the Treaty on European Union and to the Treaty estab-
lishing the European Community, and Article 6(2) of
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 (3).

This Decision is without prejudice to the arrangements
for the United Kingdom and Ireland’s partial participation
in the
in Decision
2000/365/EC and in Decision 2002/192/EC respectively.

Schengen acquis

defined

as

(15)

This Decision 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 DECIDED AS FOLLOWS:

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
legislation, 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 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.’;

(12)

The United Kingdom is taking part in this Decision, in
accordance with Article 5 of the Protocol integrating the
Schengen acquis into the framework of
the European
Union annexed to the Treaty on European Union and
to the Treaty establishing the European Community, and

2. Article 94(2)(b) shall be replaced by the following:

‘(b) objects referred to in Articles 99 and 100.’;

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

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

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3.

the first paragraph of Article 94(3) shall be replaced by the
following:

7. Article 100(3) shall be replaced by the following:

For persons, the information shall be no more than

‘3.
the following:

The following categories of readily identifiable objects

‘3.
shall be entered:

(a) surname and forenames, any aliases possibly entered

separately;

(a) motor vehicles with a cylinder capacity exceeding 50
cc, boats and aircraft which have been stolen, misap-
propriated or lost;

(b) any specific objective physical characteristics not subject

to change;

(c)

(…);

(d) place and date of birth;

(e) sex;

(f) nationality;

(b) trailers with an unladen weight exceeding 750 kg,
caravans,
industrial equipment, outboard engines and
containers which have been stolen, misappropriated
or lost;

(c)

firearms which have been stolen, misappropriated or
lost;

(d) blank official documents which have been stolen,

misappropriated or lost;

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

have escaped;

(e)

issued identity papers such as passports, identity cards,
driving
travel
documents which have been stolen, misappropriated,
lost or invalidated;

residence

licences,

permits

and

(h) reason for the alert;

(i) action to be taken;

(f) vehicle registration certificates and vehicle number
lost
plates which have been stolen, misappropriated,
or invalidated;

(j)

in cases of alerts under Article 95:
offence(s)’;

the type of

(g) banknotes (registered notes);

4. Article 99(1) shall be replaced by the following:

shall be

‘1.
Data on persons or vehicles, boats, aircraft and
entered in accordance with the
containers
national
for
the purposes of discreet surveillance or of specific checks
in accordance with paragraph 5.’;

law of the Member State issuing the alert,

5.

the last sentence of Article 99(3) shall be replaced by the
following:

‘The Member State issuing the alert pursuant
to this
paragraph shall be obliged to inform the other Member
States thereof.’;

(h) securities and means of payment such as cheques, credit
cards, bonds, stocks and shares which have been stolen,
misappropriated or lost.’;

8.

the following sentence shall be added at the end of Article
101(1):

‘However, access to data entered in the Schengen Infor-
mation System and the right to search such data directly
may also be exercised by national judicial authorities, inter
alia, those responsible for the initiation of public prose-
cutions
inquiries
in criminal proceedings and judicial
prior to indictment, in the performance of their tasks, as
set out in national legislation.’;

9.

the following Articles shall be inserted:

6.

the first sentence of Article 99(5) shall be replaced by the
following:

‘Article 101A

‘5.
During the specific checks referred to in paragraph 1,
persons, vehicles, boats, aircraft, containers and objects
carried may be searched in accordance with national law
for the purposes referred to in paragraphs 2 and 3.’;

1.
The European Police Office (Europol) shall within its
mandate and at its own expense have the right to have
access to, and to search directly, data entered into the
Schengen Information System in accordance with Articles
95, 99 and 100.

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Europol may only search data which it requires for

2.
the performance of its tasks.

The national members of Eurojust and their assistants
the

2.
may only search data which they require
performance of their tasks.

for

3. Where a search by Europol reveals the existence of an
alert in the Schengen Information System, Europol shall
inform,
Europol
via
defined by
Convention,
the Member State which issued the alert
thereof.

channels

the

the

4.
Use of information obtained from a search in the
Schengen Information System is subject to the consent of
the Member State concerned. If the Member State allows
the use of such information, the handling thereof shall be
governed by the Europol Convention. Europol may only
communicate such information to third States and third
bodies with the consent of the Member State concerned.

5.
Europol may request supplementary information from
the Member State concerned in accordance with the
provisions set out in the Europol Convention.

6.

Europol shall:

(a) record every search made by it, in accordance with the

provisions of Article 103;

(b) without prejudice to paragraphs 4 and 5, not connect
parts of the Schengen Information System nor transfer
the data contained therein to which it has access to any
computer system for data collection and processing in
operation by or at Europol nor download or otherwise
copy any parts of the Schengen Information System;

3. Where a search by a national member of Eurojust
reveals the existence of an alert in the Schengen Infor-
mation System, he or she shall inform the Member State
thereof. Any communication of
having issued the alert
information obtained from such a search may only be
communicated to third States and third bodies with the
consent of the Member State having issued the alert.

4.
Nothing in this Article shall be interpreted as affecting
the provisions of the Council Decision setting up Eurojust
concerning data protection and the liability for any
unauthorised or incorrect processing of such data by the
national members of Eurojust or their assistants, or as
affecting the powers of the Joint Supervisory Body set up
pursuant to Article 23 of that Council Decision.

5.
Every search made by a national member of Eurojust
or an assistant shall be recorded in accordance with the
provisions of Article 103 and every use made by them of
data to which they have acceded shall be registered.

6.
No parts of the Schengen Information System shall be
connected nor shall the data contained therein to which the
national members or their assistants have access be trans-
ferred to any computer system for data collection and
processing in operation by or at Eurojust nor shall any
parts of the Schengen Information System be downloaded.

(c)

limit access to data entered into the Schengen Infor-
mation System to specifically authorised staff of
Europol;

7.
The access to data entered into the Schengen Infor-
mation System shall be limited to the national members
and their assistants and not be extended to Eurojust staff.

(d) adopt and apply the measures provided for in Article

118;

8. Measures as provided for in Article 118 shall be
adopted and applied.’;

(e) allow the Joint Supervisory Body, set up under Article
24 of the Europol Convention, to review the activities
of Europol in the exercise of its right to accede to and
to search data entered into the Schengen Information
System.

Article 101B

1.
The national members of Eurojust and their assistants
shall have the right to have access to, and search, data
entered in accordance with Articles 95 and 98 into the
Schengen Information System.

10. Article 103 shall be replaced by the following:

‘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.’;

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11. the following Article shall be inserted:

‘Article 112A

1.
Personal data held in files by the authorities referred
to 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
the latest one year after the alert or alerts
deleted at
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
territory. The period of time for which such data may be
held in such files shall be governed by national law.’;

12. Article 113(1) shall be replaced by the following:

‘1.
Data other than that referred to in Article 112 shall
be kept for a maximum of 10 years and data on objects
referred to in Article 99(1) for a maximum of five years.’;

13. the following Article shall be inserted:

‘Article 113A

1.
Data other than personal data held in files by the
authorities referred to in Article 92(4) as a result of infor-
mation 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
territory. The period of time for which such data may be
held in such files shall be governed by national law.’.

Article 2

1.
Article 1(1), (5) and (8) of this Decision shall take effect
90 days after the date of its publication in the Official Journal of
the European Union.

2.
Article 1(11) and (13) of this Decision shall take effect
180 days after the date of its publication in the Official Journal of
the European Union.

3.
Article 1(1), (5), (8), (11) and (13) of this Decision shall
take effect for Iceland and Norway 270 days after the date of its
publication in the Official Journal of the European Union.

Article 1(2), (3), (4), (6), (7), (9), (10) and (12) shall take
4.
effect from a date to be fixed by the Council, acting unani-
mously, as soon as the necessary preconditions have been
fulfilled.

The Council may decide to fix different dates concerning the
taking effect of:

— Article 1(2), (4) and (6),

— Article 1(3),

— Article 1(7),

— Article 1(9), new Article 101A,

— Article 1(9), new Article 101B,

— Article 1(12).

5.
Any decision of the Council in accordance with paragraph
4 shall be published in the Official Journal of the European Union.

Done at Brussels, 24 February 2005.

For the Council
The President

N. SCHMIT