Proposal for a Regulation of the European Parliament and of the Council regarding access to the Second Generation Schengen Information System (SIS II) by the services in the Member States responsible for issuing vehicle registration certificates
Date: 2005-05-31
Institutions: European Commission
Subjects: EU Member State, Schengen Agreement, Schengen Information System, access to information, public service, vehicle registration

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 31.05.2005 
COM(2005)237 final 

2005/0104(COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

regarding access to the Second Generation Schengen Information System (SIS II) by the 
services in the Member States responsible for issuing vehicle registration certificates  

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL  

1.1. 

Objective 

On  21  August  2003,  the  Commission  submitted  a  Proposal  for  a  Regulation  amending  the 
Convention implementing the Schengen Agreement (hereinafter referred to as “the Schengen 
Convention”) as regards access to the Schengen Information System (hereinafter referred to 
as  the  “SIS”)  by  the  services  in  the  Member  States  responsible  for  issuing  registration 
certificates  for  vehicles1.  This  proposal  has  been  submitted  to  the  European  Parliament  for 
second reading. 

The main objective of the current proposal is the same as that tabled in August 2003 i.e. to 
reinforce cooperation between Member States, based on an effective exchange of information 
to  combat  fraud  and  illegal  trade  in  stolen  vehicles  in  the  context  of  the  common  transport 
policy,  provided  for  in  Title  V  of  the  Treaty  establishing  the  European  Community 
(hereinafter  referred  to  as  “EC  Treaty”)  and,  more  particularly,  in  the  interest  of  the 
functioning of the internal market. The concrete measure proposed also remains the same, i.e. 
giving  vehicle  registration  services  of  the  Member  States  the  right  to  consult  certain 
categories of data contained in the SIS. 

The  Commission  has  fully  followed  the  line  of  the  aforementioned  proposal  and  has  only 
made formal amendments to it so as to ensure coherence with the new legal instruments for 
the  establishment,  operation  and  use  of  the  second  generation  of  the  Schengen  Information 
System (hereinafter referred to as the “SIS II”). The references to the Schengen Convention 
contained in the former proposal are amended in order to fit into the SIS II legal framework. 
The  purpose  is  to  guarantee  that  the  services  responsible  for  issuing  registration  certificates 
for vehicles shall have access to the same SIS data under the new legal framework for SIS II 
as they will have when the 2003 proposed Regulation enters into force. 2 

1.2. 

General context 

The SIS 

The  SIS  is  an  information  system  set  up  under  the  Schengen  Convention  allowing  the 
Member  States’  competent  authorities  to  cooperate,  by  exchanging  information  for  the 
implementation  of  various  policies  required,  in  order  to  establish  an  area  without  internal 
border  controls  without  jeopardising  the  level  of  security  in  this  area.  It  allows  these 
authorities, through an automatic query procedure, to obtain information related to alerts on 
persons  and  objects.  The  information  is  exchanged  for  police  and  judicial  cooperation  in 
criminal  matters,  in  order  to  carry  out  controls  on  persons  at  the  external  borders  or  on 
national territory, and for the issuance of visas and residence permits. In 2001, in the context 
of  the  enlargement  process,  the  Council  decided  to  develop  the  SIS  II  and  entrusted  the 
Commission  with  this  task.  This  system  should  benefit  from  the  latest  technological 

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COM(2003) 510 final - 2003/0198 (COD)  
Text to be revised in case the Proposal from August 2003 is adopted  

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developments and allow for the easy technical integration of the new Member States and of 
some new functionalities. 

Existing provisions and related proposals 

Articles  92  –  119  of  the  Schengen  Convention  are  the  basic  legal  provisions  governing  the 
SIS. Adopted in an inter-governmental framework, they were incorporated in the institutional 
and  legal  framework  of  the  European  Union  following  the  entry  into  force  of  the  Treaty  of 
Amsterdam3.  However, they differ  from Community law in some aspects.  First of all, since 
they do not take the form of classic EC instruments, such as regulations and directives, some 
ambiguity  about  their  legal  value  could  arise.  In  addition,  they  were  obviously  adopted 
without  the  participation  of  the  Community  Institutions4,  in  particular  the  European 
Parliament. 

The Commission has, therefore, decided to submit two proposals given the cross-pillar nature 
of the SIS: a Regulation based on Title IV of the EC Treaty and a Decision based on Title VI 
of  the  Treaty  on  the  European  Union  (hereinafter  referred  to  as  the  “EU  Treaty”),  for  the 
establishment, operation and use of the SIS II. These two instruments, which are intended to 
replace  Article  92  to  119  of  the  Schengen  Convention,  needed  to  be  completed  by  an 
instrument allowing the access to the SIS II by vehicle registration services. This latter, based 
on Title V of the Treaty will thus complete the SIS II legal framework and will replace Article 
102a to be inserted in the Schengen Convention following the adoption of the Commission’s 
proposal of August 2003. 

The present proposal, although providing for access to the SIS II, refers only to the Decision 
on the establishment, operation and use of the SIS II in the framework of judicial and police 
cooperation,  since  that  instrument,  establishes  the  alerts  on  stolen,  misappropriated  or  lost 
objects,  including  the  rules  governing  the  purpose  of  the  alerts  and  identification  of  the 
authorities with right of access to these alerts. The references of the current proposal to this 
Decision are coherent with the position of the United Kingdom and Ireland which participate 
in both legal instruments. 

Calendar 

The  legal  instruments  regulating  the  SIS  II  should  be  adopted  in  due  time  for  allowing  the 
necessary preparations for this new system and, in particular, the migration from the current 
system to the SIS II. 

2. 

LEGAL ASPECTS 

2.1. 

Legal basis 

The legal basis for the proposal is Article 71(1)(d) EC Treaty. This article stipulates that for 
the purpose of implementing the common transport policy, the Council shall adopt “any other 
appropriate provisions”, in accordance with the procedure referred to in article 251 EC Treaty 
and after consultation of the European Economic and Social Committee and the Committee of 

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See the Protocol integrating the Schengen acquis into the framework of the European Union, annexed to 
the EC and EU Treaties by the Treaty of Amsterdam.  
The Commission did, however, have observer status in the Schengen bodies. 

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the Regions. The access of vehicle registration services to the SIS II is to be considered as an 
appropriate provision to further implement the common transport policy, more specifically by 
allowing these services to check the status of a vehicle before registering it. 

The same legal basis was chosen for the August 2003 Proposal for a Regulation amending the 
Schengen  Convention  as  regards  access  to  the  SIS  by  the  services  in  the  Member  States 
responsible for issuing registration certificates for vehicles.  

According to Article 5(1) of the Protocol integrating the Schengen acquis into the framework 
of the European Union, proposals and initiatives building upon the Schengen acquis shall be 
subject  to  the  relevant  provisions  of  the  Treaties,  even  if,  according  to  paragraph  2  of  the 
same  article,  the  Council  has  not  adopted  the  measures  referred  to  in  Article  2(1),  second 
subparagraph  of  that  Protocol.  This  is  currently  the  case  for  Articles  92  to  119  of  the 
Schengen Convention. The choice of Article 71 EC Treaty as a legal basis for this proposal 
signifies that access to the SIS by vehicle registration services has a basis in the EC Treaty. 

2.2. 

Subsidiarity and proportionality  

In accordance with the principle of subsidiarity, the objective of the proposed action, namely 
providing  for  access  by  the  services  responsible  for  issuing  registration  certificates  for 
vehicles to SIS II, could only be achieved by measures at Community level. Common rules 
are  necessary  for  governing  the  right  of  access  to  a  system  where  Member  States  put  in 
common  information  on  persons  and  objects  that  supports  the  implementation  of  several 
policies in the context of police and judicial cooperation as well as external borders, visas and 
other policies linked to the movement of persons.  

Consultation of the SIS II data is restricted to competent services in each Member State on the 
basis  of  the  purposes  as  defined  in  this  Regulation  and  limited  to  the  extent  the  data  is 
required for the performance of the tasks in accordance with these purposes.  

2.3. 

Choice of the legal instrument 

The  Regulation  instrument  is  warranted  in  view  of  the  need  to  apply  uniform  and  directly 
applicable rules, in particular in relation to the access to data in the system. The provisions set 
out  in  this  Regulation  must  constitute  a  set  of  precise,  unconditional  provisions  that  are 
directly  and  uniformly  applicable  in  a  mandatory  way  and,  by  their  very  nature,  require  no 
action by Member States to transpose them into national law.  

2.4. 

Participation of Norway, Iceland and Switzerland 

With regard to the position of Norway and Iceland, Article 1 point G of the 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, 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  acquis5  determines  that  the  SIS,  including  the  relevant 
provisions on protection and security of data, the provisions on the operation of the national 
sections  of  the  SIS  and  the  exchange  of  information  between  those  national  sections 
(SIRENE), and the effect of the alerts in the SIS for persons wanted for arrest for extradition 
purposes, is one of the areas of the Schengen acquis in which these two countries participate. 

5 

OJ L 176, 10.7.1999, p. 31 

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Notwithstanding  its  double  legal  basis,  it  would  be  inconceivable  to  exclude  Norway  and 
Iceland  from  one  of  the  aspects  of  the  development  of  the  SIS  that  is,  after  all,  a  single 
information  and  query  system.  Hence,  Norway  and  Iceland  are  fully  associated  to  its 
development, including the access of vehicle registration services. 

As  regards  Switzerland,  this  Regulation  constitutes  a  development  of  the  provisions  of  the 
Schengen acquis within the meaning of the Agreement signed between the European Union, 
the  European  Community  and  the  Swiss  Confederation  on  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 Council Decision 1999/437/EC 
read  in  conjunction  with  Article  4  (1)  of  Council  Decision  2004/860/EC  on  the  signing,  on 
behalf of the European Community, and on the provisional application of certain provisions 
of this Agreement6 and with Article 4 (1) of Council Decision 2004/849/EC on the signing, on 
behalf of the European Union, and on the provisional application of certain provisions of this 
Agreement7. 

3. 

FINANCIAL CONSEQUENCES 

The  Member  States  must  create  a  connection  between  the  national  vehicle  registration 
services and the SIS II under the responsibility of the SIS II national office to be designated in 
accordance with the proposed Decision on the establishment, operation and use of the SIS II. 

The Commission outlined the main budgetary implication and prepared a common financial 
statement  attached  to  its  proposal  for  a  Regulation  of  the  European  Parliament  and  of  the 
Council on the establishment, operation and use of SIS II.  

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OJ L 370, 17.12.2004, p.78 
OJ L 368, 15.12.2004 p. 26  

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2005/0104(COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

regarding the access to the Second Generation Schengen Information System (SIS II) by 
the services in the Member States responsible for issuing registration certificates for 
vehicles  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
71 thereof, 

Having regard to the proposal from the Commission8, 

Having regard to the opinion of the European Economic and Social Committee9, 

Having regard to the opinion of the Committee of the Regions10, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty11, 

Whereas: 

(1) 

(2) 

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Article  9  of  Council  Directive  1999/37/EC  of  29  April  1999  on  the  registration 
documents for vehicles12 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,  in  the  Member  State  in  which  it  was  previously  registered.  Such 
checking may involve the use of an electronic network. 

Regulation XX/2006/EC of the European Parliament and of the Council13 and Council 
Decision  2006/XX/JHA14  on  the  establishment,  operation  and  use  of  the  second 
generation  of  the  Schengen  Information  System  (hereinafter  "SIS  II")  constitute  the 
legislative basis for governing the SIS II, which constitutes a shared database between 
Member States containing, inter alia, data on motor vehicles with a cylinder capacity 
exceeding 50 cc which have been stolen, misappropriated or lost. 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
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). 
OJ L… 
OJ L… 

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(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Regulation  XX/2006/EC  and  Decision  2006/XX/JHA  replaced  Articles  92  to  119  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  on  the  gradual  abolition  of  checks  at  common 
borders15 (hereinafter referred to as “the Schengen Convention”) with the exception of 
Articles  102a  thereof.  That  article  concerns  access  to  the  Schengen  Information 
System  by  the  authorities  and  services  in  the  Member  States  responsible  for  issuing 
registration certificates for vehicles. 

It is now necessary to adopt a third instrument, based on Title V of the EC Treaty and 
complementing  Regulation  XX/2006/EC  and  Decision  2006/XX/JHA  in  order  to 
allow access to the SIS II by the services in the Member States responsible for issuing 
registration  certificates  for  vehicles,  and  to  replace  Article  102a  of  the  Schengen 
Convention. 

Alerts on objects including motor vehicles are entered in the SIS II for the purposes of 
seizure  or  use  as  evidence 
to  Decision 
2006/XX/JHA. 

in  criminal  proceedings,  pursuant 

According to Decision 2006/XX/JHA, access to alerts on objects entered in the SIS II 
is  reserved  exclusively  to  the  authorities  responsible  for  police,  border  and  custom 
authorities, as well as judicial authorities and Europol. 

Government  or  non-government  services  clearly  identified  for  this  purpose  and 
responsible  in  the  Member  States  for  issuing  registration  certificates  for  vehicles 
should  have  access  to  data  included  in  the  SIS  II  concerning  motor  vehicles  with  a 
cylinder  capacity  exceeding  50cc,  trailers  and  caravans  with  an  unladed  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 
them  for  registration  have  been  stolen 
whether 
misappropriated or lost. 

the  vehicles  presented 

to 

To that end it is necessary to grant those services access to that data, and to allow them 
to use the data for the administrative purposes of properly issuing vehicle registration 
certificates. 

To  the  extent  that  services  in  the  Member  States  responsible  for  issuing  registration 
certificates  for  vehicles  are  non-government  bodies,  such  access  should  be  granted 
indirectly,  that  is  to  say  through  the  intermediary  of  an  authority  granted  access  in 
accordance  with  Decision  2006/XX/JHA,  responsible  for  ensuring  compliance  with 
the security and confidentiality rules of the Member States.  

(10)  Decision 2006/XX/JHA defines the action to be taken if an access to SIS II brings to 

light an alert for an object entered in the System. 

(11)  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 

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OJ L 239, 22.9.2000, p. 19. Convention as last amended by Regulation (EC) No 871/2004 (OJ L 162, 
30.4.2004, p. 29) and Decision 2005/211/JHA (OJ L 68, 15.3.2005, p. 44). 

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the  free  movement  of  such  data16  applies  to  the  processing  of  personal  data  by  the 
services  in  the  Member  States  responsible  for  issuing  registration  certificates  for 
vehicles.  The  specific  provisions  on  the  protection  of  personal  data  on  security, 
confidentiality  and  keeping  of  log  files  contained  in  Decision  2006/XX/JHA 
supplement  or  clarify  the  principles  set  out  in  that  Directive  when  personal  data  is 
processed by those services in the context of SIS II. 

(12)  Since the objective of the action to be taken, namely to grant access to the SIS II for 
services in the Member States responsible for issuing registration certificates, in order 
to facilitate their tasks under Directive 1999/37/EC, cannot be sufficiently achieved by 
the Member States and can therefore, by reason of the very nature of the SIS as a joint 
information system, only be achieved at Community level, the Community may adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty. 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  that 
objective. 

(13)  As  regards  Iceland  and  Norway,  this  Regulation  constitutes  a  development  of 
provisions of the Schengen 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.17 

(14)  As regards Switzerland, this Regulation constitutes a development of the provisions of 
the  Schengen  acquis  within  the  meaning  of  the  Agreement  signed  between  the 
European  Union,  the  European  Community  and  the  Swiss  Confederation  on  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 Council Decision 1999/437/EC read in conjunction with Article 4 (1) of 
Council Decision 2004/860/EC on the signing, on behalf of the European Community, 
and on the provisional application of certain provisions of this Agreement18 and with 
Article  4  (1)  of  Council  Decision  2004/849/EC  on  the  signing,  on  behalf  of  the 
European  Union,  and  on  the  provisional  application  of  certain  provisions  of  this 
Agreement19. 

(15)  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,  

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19  

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). 
OJ L 176, 10.7.1999, p. 31. 
OJ L 370, 17.12.2004, p.78 
OJ L 368, 15.12.2004 p. 26  

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HAVE ADOPTED THIS REGULATION: 

Article 1 

1. 

2. 

3. 

4. 

Notwithstanding Articles 35, 37 and 40 (1) of Decision 2006/XX/JHA, the services 
in the Member States responsible for issuing registration certificates for vehicles as 
referred to in Directive 1999/37/EC, shall have access to the data entered into the SIS 
II in accordance with Article 35 (a) (b) and (f) of that Decision for the sole purpose 
of  checking  whether  vehicles  presented  to  them  for  registration  have  been  stolen, 
misappropriated or lost. 

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

Services referred to in paragraph 1 that are government services shall have the right 
to access directly the data entered in the SIS II.  

Services  referred  to  in  paragraph  1  that  are  non-government  services  shall  have 
access  to  data  entered  in  the  SIS  II  only  through  the  intermediary  of  an  authority 
referred to in Article 37 of that Decision. That authority shall have the right to access 
the data directly and to pass it on to the service. The Member State concerned shall 
ensure that the service and its employees are required to respect any limitations on 
the permissible use of data conveyed to them by the public authority. 

Article 36 of Decision 2006/XX/JHA shall not apply to access made in accordance 
with this Article. The communication to the police or judicial authorities by services 
referred to in paragraph 1 of any information brought to light by access to the SIS II 
which gives rise to suspicion of a criminal offence shall be governed by national law. 

This  Regulation  replaces  Article  102a  of  the  Convention  Implementing  the  Schengen 
Agreement. 

Article 2 

Article 3 

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

It shall apply from the date set in accordance with Article 65 (3) of Decision 2006/XX/JHA. 

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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 

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