Opinion of the European Data Protection Supervisor on the Proposal for a Council Decision on the establishment, operation and use of the Second Generation Schengen Information System (SIS II) (COM(2005)230 final)
Date: 2005-10-19
Institutions: European Data Protection Supervisor
Subjects: EU police cooperation, European Data Protection Supervisor, Schengen Information System, biometrics, data processing

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EUROPEAN DATA PROTECTION SUPERVISOR

Opinion of the European Data Protection Supervisor

— on the Proposal for a Council Decision on the establishment, operation and use of the Second

Generation Schengen Information System (SIS II) (COM(2005)230 final);

— the Proposal for a Regulation of the European Parliament and of the Council on the establish-
ment, operation and use of the Second Generation Schengen Information System (SIS II)
(COM(2005)236 final), and

— the 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 (COM(2005)237 final)

(2006/C 91/11)

THE EUROPEAN DATA PROTECTION SUPERVISOR,

on persons and objects at the external borders or on the terri-
tory, as well as for the issuance of visas and residence permits.

Having regard to the Treaty establishing the European Com-
munity, and in particular its Article 286,

Having regard to the Charter of Fundamental Rights of the
European Union, and in particular its Article 8,

Having regard to Directive 95/46/EC of the European Parlia-
ment 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,

Having regard to Regulation (EC) No 45/2001 of the European
Parliament and of the Council of 18 December 2000 on the
individuals with regard to the processing of
protection of
personal data by the Community institutions and bodies and
on the free movement of such data, and in particular its Article
41,

Having regard to the request for an opinion in accordance with
Article 28 (2) of Regulation (EC) No 45/2001 received on 17
June 2005 from the Commission;

HAS ADOPTED THE FOLLOWING OPINION:

1. INTRODUCTION

1.1. Background

The Schengen Convention entered into force in 1995, as an
intergovernmental agreement. The SIS, as part of the Schengen
Convention, was later on integrated into the EU framework by
the Amsterdam Treaty.

A new ‘second generation’ Schengen Information System II will
replace the current system, so allowing the enlargement of the
Schengen area to the new EU Member States. It will also intro-
duce new functionalities in the system. The Schengen provi-
sions elaborated in an intergovernmental framework will be
fully transformed in classic European law instruments.

On 1 June 2005, the European Commission presented three
proposals for establishing the SIS II. These proposals consist of:

— a proposed Regulation based on Title IV EC Treaty (visas,
asylum immigration and other policies related to the free
movement of persons) which will govern the first pillar
(immigration) aspects of the SIS II, hereinafter referred to as
‘the proposed Regulation’;

— a proposed Decision based on Title VI EU Treaty (police
and judicial cooperation in criminal matters) which will
govern the use of SIS for third pillar purposes, further
referred to as ‘the proposed Decision’;

— a proposed Regulation based on Title V (Transport)
regarding specifically the access to the SIS data by authori-
ties in charge of vehicle registration; this proposal will be
addressed separately (see below, point 4.6).

The Schengen information system (the SIS) is an EU large scale
IT system created as a compensatory measure following the
abolition of controls at internal borders within the Schengen
area. The SIS allows competent authorities in Member States to
exchange information which is used for performing controls

It is worth mentioning in this context that the Commission will
issue in the coming months a communication on interoper-
ability and increased synergies between EU information
Systems (SIS, VIS, Eurodac).

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The SIS II consists of a central database called the ‘Central
Schengen Information System’ (CS-SIS) for which the Commis-
sion will ensure the operational management connected to
national access points defined by each Member State (NI-SIS).
SIRENE authorities shall ensure the exchange of all supplemen-
tary information (information connected to the SIS II alerts but
not stored in the SIS II).

4. It is also obvious that great care has been devoted to the
drafting of the proposals; they are complex, but this reflects
the inherent complexity of the system they govern. Most of
the comments in this opinion aim at clarifying or supple-
menting provisions, but will not
require a complete
redrafting.

Members States will contribute data to the SIS II on people
wanted for arrest, surrender or extradition, people wanted for
judicial procedures, people to be placed under surveillance or
subject to specific checks, people to be refused entry at external
border and lost or stolen items. A set of data called ‘alerts’
entered in the SIS allows the competent authority to identify a
person or an object.

The SIS II develops new characteristics: widened access to the
SIS (Europol, Eurojust, national prosecutors, vehicle licensing
authorities), interlinking of alerts, addition of new categories of
data, including biometric data (fingerprints and photographs),
as well as a technical platform to be shared with the Visa Infor-
mation System. These additions have stirred discussions for
years about a shift of purpose of the SIS, from a control tool to
a reporting and investigation system.

However, despite this globally positive appreciation, some
reservations
the
expressed about,
following:

in particular,

can be

1. It is in many respects difficult to know what the intention
behind the text is; the absence of an explanatory memor-
andum is highly regrettable. Given the very complex nature
of these documents, that would have been a basic require-
ment. The lack of it in some cases gives the reader no
option but guesswork.

2. Moreover, one can only regret there has been no impact
the
assessment study. The fact
system is already in place does not justify this, since there
are considerable differences between both. Among others,
the impact of the introduction of biometric data should
have been better thought through.

the first version of

that

1.2. General assessment of the proposals

1. The EDPS welcomes the fact that he is consulted on the
basis of Article 28 (2) of Regulation (EC) No 45/2001.
However, in view of the mandatory character of Article 28
the present opinion should be mentioned in the
(2),
preamble of the texts.

2. For several reasons, the EDPS welcomes the proposals. The
transformation of an intergovernmental structure into Euro-
pean law instruments brings several positive consequences:
the legal value of the rules governing SIS II will be clarified,
the Court of Justice will have competence for the interpreta-
tion of the first pillar legal instrument), the European Parlia-
ment will be at least partly involved (albeit a little late in the
process).

3. Moreover, on substance, the proposals contain a significant
part devoted to data protection, some of which being
welcome improvements compared to the current situation.
In particular, one can mention the measures in favour of
victims of identity theft, the extension of Regulation (EC) No
45/2001 to data processing activities of the Commission in
the Title VI activities, a better definition of the grounds for
alerting individuals for the purpose of refusing entry.

3. The legal data protection framework is very complex; it is
based on the combined application of lex generalis and lex
specialis. It should be ensured that even when a specific legis-
lation is developed, the existing data protection framework
in Directive 95/46/EC and Regulation (EC) No 45/2001
remains
fully applicable. The combined application of
different legal instruments should lead neither to discrepan-
cies between national regimes on fundamental aspects, nor
to a watering down of the present level of data protection.

4. Access by many new authorities which do not fit in with
‘purpose of controls on persons and objects’

the original
should be accompanied by more stringent safeguards.

5. The proposals are for a significant part based on other legal
instruments which are still in the making (sometimes not
even proposed). The EDPS understands the difficulties of
legislating in a complex and constantly evolving environ-
ment; however, in view of the consequences for the persons
concerned and of the legal uncertainty it creates, he deems
it not acceptable.

6. There is some fuzziness in the attribution of competences
between Member States and the Commission. Clarity is
is not only necessary for the smooth
paramount as it
running of the system, but also a basic requirement
to
ensure a comprehensive supervision of the system.

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1.3. Structure of the opinion

— Article 6(2) of the EU Treaty provides that the Union shall
respect fundamental rights, as guaranteed by the ECHR.

The opinion will be structured as follows: it first clarifies the
legal framework applicable to the SIS II. It then addresses the
definition of the purpose of the SIS II and the elements signifi-
from the current system. Point 5 contains
cantly different
comments on the respective roles of
the Commission and
Member States with regard to the operation of the SIS II. Point
6 concerns the data subject rights while point 7 addresses the
supervision, at national and EDPS level, as well as the coopera-
tion between the supervisors. Point 8 proposes some comments
and possible amendments on security; points 9 and 10 deal
respectively with comitology and interoperability. Finally, a
summary of conclusions highlights the principal conclusions
for each point.

2. RELEVANT LEGAL FRAMEWORK

2.1. Relevant data protection framework of the SIS II

The proposals refer to Directive 95/46/EC, Convention 108
and Regulation (EC) No 45/2001 as their legal data protection
framework. Other instruments are also relevant.

In order to clarify this context and to remind what the main
points of reference for our examination are, it is useful to list
the following:

— Respect for private life has been ensured in Europe since
the adoption in 1950 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (hereinafter:
‘ECHR’) by the Council of Europe. Article 8 ECHR stipulates
‘the right to respect for private and family life’.

According to Article 8(2) any interference by a public
authority with the exercise of this right is only allowed, if it
is ‘in accordance with the law’ and is ‘necessary in a demo-
cratic society’ for the protection of important interests. In
the case law of the European Court of Human Rights, these
conditions have led to additional requirements as to the
quality of the legal basis for interference, the proportion-
ality of any measure, and the need for appropriate safe-
guards against abuse.

— The right to respect for private life and the protection of
personal data have been laid down more recently in Article
7 and 8 of the Charter of the Fundamental Rights of the
European Union. According to Article 52 of the Charter, it
is recognized that these rights may be subjected to limita-
tions, provided that similar conditions are fulfilled as apply
under Article 8 ECHR.

The three texts explicitly applicable to the SIS II proposals are
the following:

— The Council of Europe Convention No 108 of 28 January
1981 for the Protection of Individuals with regard to Auto-
matic Processing of Personal Data (hereinafter ‘Convention
108’) has developed basic principles for the protection of
individuals with regard to the processing of personal data.
All Member States have ratified Convention 108.
is
applicable also to activities carried out in the framework of
the police and judicial areas. Convention 108 is currently
the data protection regime applicable to the SIS Conven-
tion, together with the Recommendation No R (87) 15 of
17 September 1987 of the Committee of Ministers of the
Council of Europe regulating the use of data in the police
sector.

It

— Directive 95/46/EC of the European Parliament and of the
Council of 24 October 1995 on the protection of indivi-
duals with regard to the processing of personal data and on
the free movement of such data (OJ L 281, p. 31). This
directive will be referred to as ‘Directive 95/46/EC’. It is
worth noting that in most Member State, the national legis-
lation implementing the Directive also covers processing
activities carried out in the area of police and justice.

— Regulation (EC) No 45/2001 of the European Parliament
and of the Council of 18 December 2000 on the protection
of individuals with regard to the processing of personal
data by the Community institutions and bodies and on the
free movement of such data (OJ L 8, p.1). This regulation
will be referred to as ‘Regulation (EC) No 45/2001’.

Interpretation of Directive 95/46/EC and Regulation (EC) No
45/2001 must depend partly on relevant case law from the
European Court of Human Rights pursuant to the 1950 Euro-
pean Convention on Human Rights and Fundamental Freedoms
(ECHR). In other words, the Directive and the Regulation, in so
far as they deal with processing of personal data liable to
infringe fundamental
to
privacy, must be interpreted in the light of fundamental rights.
This also follows from the case law of the European Court of
Justice (1).

in particular

freedoms,

the right

(1) It is useful in this context to refer to the judgment of the Court of
Justice in Österreichischer Rundfunk and Others (Joined Cases C-
465/00, C-138/01 and C-139/01, Judgment of 20 May 2003, Full
Court, (2003) ECR I-4989). The Court dealt with an Austrian law
providing for
salary details on public sector
employees to the Austrian Court of Auditors and their subsequent
publication.
In its judgment the Court lays down a number of
the European Convention on
criteria drawn from Article 8 of
Human Rights, which should be used when applying Directive
95/46/EC in so far as this directive allows for certain restrictions to
the right to privacy.

the transfer of

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On 4 October 2005, the Commission issued a ‘Proposal for a
Council Framework Decision on the protection of personal
data processed in the framework of police and judicial coopera-
tion in criminal matters’ (1) (hereinafter ‘draft Framework Deci-
sion’). This Framework Decision is intended to replace Conven-
tion 108 as the legislation of reference for the draft SIS II Deci-
sion, which is likely to have an impact on the data protection
regime in this context (see below, point 2.2.5).

Regulation) or third pillar (proposed Decision). Recital 21 of
the proposed Decision states that: ‘Regulation (EC) No 45/2001
(…) applies to the processing of personal data by the Commis-
sion when such processing is carried out in the exercise of
activities all or part of which fall within the scope of Com-
munity law. Part of the processing of personal data in the SIS II
is within the scope of Community law’.

2.2. SIS II data protection legal regime

2.2.1. General remark

The legislative basis necessary for governing the SIS II consists
of separate instruments; however, as stated in the Recitals, it
‘does not affect the principle that the SIS II constitutes one
single information system that should operate as such. Certain
provisions of these instruments should therefore be identical’.

The structure of the two documents is basically the same, with
indeed chapters I-III being almost identical in both texts. The
fact that the SIS II is to be seen as a single information system
with two different legal bases is also reflected in the — rather
complex — data protection regime.

The data protection regime is determined partly in the propo-
sals themselves, as a ‘lex specialis’, complemented by a different
legislation of
each sector
(Commission, Member States in first pillar, Member States in
third pillar).

reference

generalis’)

(‘lex

for

This structure raises the question of how to deal with specia-
lised sets of rules in their relationship to general law. In this
case, the EDPS considers the particular rule an application of
the general rule. As a consequence, the lex specialis must always
be in conformity with the lex generalis; it elaborates (specifies or
adds to) the lex generalis but is not conceived as an exception
from it.

As to the question of which rule should be applied in specific
cases, the principle is that the lex specialis applies in priority;
but wherever it is silent or unclear, reference should be made
to the lex generalis.

There are practical reasons for this: it would indeed be extre-
mely difficult, as far as the Commission is concerned, to deter-
mine if the data are processed in the framework of activities
falling under first or third pillar legislation.

Moreover, applying one legal instrument to all activities by the
Commission in the context of the SIS II, not only makes more
sense from a practical point of view, but also improves consis-
tency (ensuring, according to Recital 21 of the proposed Regu-
lation a ‘consistent and homogeneous application of the rules
regarding the protection of individuals' fundamental rights and
freedoms with regard to the processing of personal data’).
Therefore, the EDPS welcomes the recognition by the Commis-
sion that Regulation (EC) No 45/2001 applies to all data
processing activities of the Commission in SIS II.

2.2.3. Applicable regime for the Member States

The situation concerning Member States is more complex. The
processing of personal data in application of the proposed
Regulation is governed by the proposed Regulation itself as
well as by Directive 95/46/EC. The reading of Recital 14 of the
proposed Regulation makes it very clear that the Directive
must be considered as the lex generalis, while the SIS II Regu-
lation will be the lex specialis. This has a number of conse-
quences that will be detailed hereunder.

As to the proposed Decision, the data protection legal instru-
ment of reference (lex generalis) is the Convention 108, which
can make an important difference between the data protection
regimes in first and third pillar on some points.

There are, according to this structure three different combina-
tions of lex generalis and lex specialis. It could be summarized as
follows.

2.2.4. Impact on the level of data protection

2.2.2. Applicable regime for the Commission

Where the Commission is
involved, Regulation (EC) No
45/2001 applies, including the role of the EDPS, whether the
activities are carried out in the framework of the first (proposed

(1) (COM (2005) 475 final).

As a general comment on this architecture of data protection,
the EDPS underlines the following:

— The application of the proposed Regulation as a lex specialis
of Directive 95/46/EC (and similarly, of the proposed Deci-
sion as a lex specialis of the Convention 108) should never
lead to a watering down of the level of data protection
ensured under the Directive or Convention. The EDPS will
make recommendations to this effect (see for instance the
right to remedies).

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— Similarly, the combined application of legal

instruments
can not have as a result that the level of data protection
ensured under the current Schengen Convention will be
lowered (see for instance the remarks hereunder about
Article 13 of Directive 95/46/EC).

2.2.6. Application of Article 13 of Directive 95/46/EC and Article

9 Convention 108

— The application of

two different

instruments, however
necessary because of
the framework of European law,
should not lead to unjustified discrepancies between the
data protection of the individuals concerned according to
them. This is to be
the type of data processed about
avoided as much as possible. The recommendations made
hereunder will also strive to improve consistency as much
as possible (see for instance the powers of the national
supervisory authorities).

— The legal framework is so complex that it is very likely to
engender some confusion in the practical application. It is
in some cases difficult to see how lex generalis and lex
specialis interact, and it would be useful to clarify this in the
proposals. Moreover,
in this complex legal environment,
the suggestion made by the JSA Schengen in its ‘opinion on
the proposed legal basis for the SIS II’ (27 September 2005)
to develop a ‘vademecum’ listing all the rights existing in
relation to the SIS II and providing a clear hierarchy of
applicable legislation is very useful.

Article 13 of Directive 95/46/EC and Article 9 of the Conven-
tion 108 provide for the possibility for Member States to take
legislative measures to restrict the scope of obligations and
rights provided for by them, when such a restriction constitutes
a necessary measure to safeguard other important interests (e.g.
national security, defence, public security) (2).

The Recitals of both the proposed Regulation and proposed
Decision mention that
this possibility could be used by
Member States when implementing the proposals at national
level. A double test should be applied in this case: the applica-
tion of Article 13 of the Directive 95/46/EC must be in compli-
ance with Article 8 ECHR and should not lead to a diminution
of the present data protection regime.

In conclusion, the present opinion will strive to ensure a high
level of data protection, consistency and clarity to provide the
data subject with the necessary legal certainty.

It is even the more crucial in the case of SIS II, since the system
must have a predictable character. As Member States are
sharing data, there must be a possibility to know with reason-
able certainty how they will be processed at national level.

2.2.5. Impact of the Draft Framework Decision on Data Protection

in Third Pillar

The Convention 108 as the data protection instrument of refer-
ence for the draft SIS II Decision will be replaced by the Frame-
work Decision on data protection in the third pillar (1). This is
not mentioned in the proposal, but follows from the proposed
framework decision. Its Article 34.2 states that ‘Any reference
to the Convention No 108 of the Council of Europe of 28
January 1981 for the protection of individuals with regard to
automatic processing of personal data shall be construed as a
reference to this Framework Decision’. The EDPS will issue in
the coming weeks an opinion on the draft Framework Decision
and will not analyse in details its content in this opinion.
However, wherever the application of the Framework Decision
is likely to have a significant impact on the SIS II data protec-
tion regime, this will be mentioned.

(1) It will also replace the general data protection regime of

Schengen Convention (Articles 126 to 130 of
Convention). This regime does not apply to the SIS.

the
the Schengen

There is in particular one worrying element with regard to this,
where the proposals would lead to a lowering of the current
data protection level. Article 102 of the Schengen Convention
provides for a system where the use of the data is strictly regu-
lated and restricted, even in national legislation (‘Any use of the
data which does not comply with paragraphs 1 to 4 shall be
considered as misuse under the national law of the Contracting
Party’). Both Directive 95/46/EC and Convention 108, however,
provide that exceptions, inter alia, to the principle of purpose
limitation can be introduced in national legislation. If this is
done, it would represent a discrepancy with the current system
in the Schengen Convention, where national legislation can not
deviate from the core principle of purpose and use limitation.

The adoption of the Framework Decision would not change
this observation: the problem is much more to maintain a
strict purpose limitation principle for the processing of SIS II
data than to ensure that data would be processed in compliance
with the Framework Decision.

(2) A Member State using this option to restrict rights may only do so

in compliance with Article 8 ECHR, as mentioned before.

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The EDPS suggests to introduce in the SIS II proposals (namely
Article 21 of the proposed Regulation and Article 40 of the
proposed Decision) a provision to the same effect as the
current Article 102.4 of the Schengen Convention, limiting the
possibility for Member States to provide for use of the data not
foreseen in the SIS II texts. Another possibility is to restrict
explicitly in the proposed Decision and proposed Regulation
the scope of the exceptions that can be used under Article 13
Directive or Article 9 Convention, laying down, for instance,
that Member States can only restrict the rights of access and
information, but not the data quality principles.

In conclusion, the proposals have a much broader scope than
the existing framework. This requires additional safeguards. In
this regard, the EDPS will focus his analysis not so much on
the broad definition in Article 1 as such, but on the functional-
ities and other constitutive parts of the SIS II.

4. SIGNIFICANT CHANGES IN THE SIS II

This chapter will focus first on the new elements brought in by
the SIS II, namely the introduction of biometrics, the new
conception of access, with special attention to access by
Europol and Eurojust, to authorities in charge of vehicle regis-
tration, the interlinking of alerts, and access by different autho-
rities to immigration data.

3. PURPOSE

competent authorities of

According to Article 1 of the two documents (‘establishment
and general objective of the SIS II’), the SIS II is established to
‘enable
to
exchange information for the purpose of controls on persons
and objects’, and shall ‘contribute to maintaining a high level of
security within an area without
internal border controls
between Member States’.

the Member States

The purpose of the SIS II is worded in rather broad terms; the
provisions mentioned above are not in themselves a precise
indication of what is covered (meant) by this objective.

4.1. Biometrics

The objective of the SIS II seems much broader than the objec-
tive of the current SIS as laid down in Article 92 of the
Schengen Convention, which referred specifically to ‘(…) access
alerts on persons and property for the purposes of border
checks and other police and customs checks
(…) and
(concerning Article 96 alerts) for the purpose of issuing visas,
residence permits and the administration of
legislation on
aliens (…)’.

This broader purpose also derives from the addition to the SIS
II of new functionalities and accesses which do not fit into the
original purpose of controls on persons and objects, but more
into an investigative tool. In particular, access is foreseen for
authorities who will use the SIS II data for their own purposes,
and not for the realisation of the SIS II purposes (see below);
interlinking of alerts will be generalized while this represents a
typical feature of a police investigative tool.

There are also questions as to the biometric search engine
which is to be developed in the coming years, allowing for
searches in the system, which exceed the needs of a control
system.

The SIS II proposals introduce the possibility to process a new
category of data which deserves specific attention: biometric
data. As already underlined in the EDPS opinion on the Visa
Information System (1),
the inherently sensitive nature of
biometric data requires specific safeguards which have not been
introduced in the SIS II proposals.

As a general comment, the tendency to use biometric data in
EU wide information systems (VIS, EURODAC,
Information
System on driving licences etc.) is growing steadfastly, but is
not accompanied by a careful consideration of risks involved
and required safeguards.

This need for a deeper reflection has been also highlighted in
the recent resolution on biometrics issued by the International
Conference of Data Commissioners in Montreux (2). Until now,
the added value for developing standards has been only focused
on the growing interoperability between systems and not on
the improvement of the quality of the biometric processes.

(1) Opinion of the EDPS on the Proposal for a Regulation of the Euro-
pean Parliament and of the Council concerning the Visa Information
System and the exchange of data between Member States on short
stay visas, 23 March 2005, pt 3.4.2.

(2) 27th International Conference of Data Protection and Privacy
Commissioners, Montreux, 16 September 2005, Resolution on the
use of biometrics in passports, identity cards and travel documents.

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It would be useful to build a set of common obligations or
requirements related to the specificity of such data as well as a
common methodology
implementation. These
common requirements could contain in particular the following
elements (the need of which is illustrated by the SIS II propo-
sals):

their

for

The possible use of SIS II data for investigation purposes entails
serious risks for the data subject if one gives an increased or
over-estimated role to biometric evidence as it has been illu-
strated in previous cases (2).

Therefore, the proposals should recognise and raise awareness
on the
identification
purposes.

capabilities of biometrics

real

for

— Targeted impact assessment: It has to be underlined that
the proposals have not been subjected to an impact assess-
ment on the use of biometrics (1).

— Emphasis on the enrolment process: The source of
biometric data and the way they will be collected are not
detailed. Enrolment is a critical step in the overall process
of biometric identification and cannot be only defined by
annexes or further sub-group discussions as it will directly
condition the end-result of the process i.e. the level of False
Rejection Rate or False Acceptance Rate.

4.2. Access to SIS II data

4.2.1 A new vision of access

— Highlight the level of accuracy: The use of biometrics for
identification (comparison of one to many) presented in the
proposal as a future implementation of a ‘biometrics search
engine’ are more critical because the results of this process
are less accurate than the use for authentication or control
(one to one comparison). Biometric identification should
not therefore constitute the unique way of identification or
unique access key to further information.

— Fallback procedure: Readily available fallback procedures
shall be implemented in order to respect the dignity of
persons who could have been wrongly identified and to
avoid transferring onto them the burden of the system
imperfections.

The use of biometric data without a proper preliminary assess-
ment also reveals an overestimation of
the reliability of
biometrics. Biometric data are ‘live’ data which evolve with
time; the samples which are stored in the database constitute
only a snapshot of a dynamic element. Its permanency is not
absolute and need to be controlled. The accuracy of biometrics
always has to be put into perspective of other elements as it
will never be absolute.

The authorities with access to SIS data are defined for each
alert. In principle, a double test is applied for granting access to
the SIS data: access must be granted to authorities in full
compliance with the general purpose of the SIS and with the
specific purpose of each alert.

This follows from the definition of alerts found both in the
proposed Regulation and the proposed Decision (Art.3.1.a of
both instruments: ‘Alert’ means a set of data entered in the SIS II
allowing the competent authorities to identify a person or an object,
in view of a specific action to be taken). Article 39.3 of the
proposed Decision reinforces that view by stipulating that ‘the
data referred to in paragraph 1 shall only be used for the purpose of
identifying a person in view of a specific action to be taken in accord-
ance with this decision’. In this respect, the SIS II still has the
features of a hit-no hit system, where each alert is inserted for
a specific purpose (surrender, refusing entry,…).

The authorities with access to the SIS data have a de facto use
limitation for these data, since they can in principle only have
access to them to perform a specific action.

However, some accesses provided for in the new proposals are
not consistent with this logic: indeed, they aim at providing the
authority with information, but not at allowing it to identify a
person and take the action foreseen in the alert.

(1) The assessment could be based on the so-called seven pillars of
biometric wisdom in‘Biometrics at
the frontiers: Assessing the
impact on Society’ IPTS, DG-JRC, EUR 21585 EN, part 1.2, page
32.

(2) In June 2004, a Lawyer from Portland (US) was jailed for two weeks
because the FBI successfully matched his fingerprint with one found
in the Madrid terrorist bombing (on the plastic bag which contained
the detonator).
the matching
It was finally demonstrated that
process was flawed and resulted to a misinterpretation.

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More specifically, this concerns:

4.2.2 Conditions for granting access

— access to immigration data by asylum authorities;

— access to immigration data by authorities in charge of

granting refugees status;

1. Access can in any case be granted only when it is compa-
tible with the general purpose of the SIS II, and consistent
with its legal basis.

— access to alerts on extradition, discreet surveillance and

stolen documents for seizure for Europol;

— access to data on extradition and localisation for Eurojust.

in practice that access to immigration data
This means,
pursuant
the
implementation of policies linked to the movement of
persons part of the Schengen acquis.

to the proposed Regulation must support

All these authorities share the same characteristics with regard
to the SIS II data:

Similarly, access to alerts laid down by the Decision shall
aim at supporting operational cooperation between police
authorities and judicial authorities in criminal matters.

they are not able to take the specific action mentioned by the
definition of the alerts. Access is granted to them as a source of
information for their own purposes.

Even between these authorities, there is a distinction to be
made between the ones having access for their own purposes,
but with a rather specific objective, and the ones (namely
Europol and Eurojust), for which there is no specification at all
of the purpose of the access. Asylum authorities, for instance
have access for a specific purpose, even if it is not the purpose
mentioned in the alert. They can have access to immigration
data ‘for the purpose of determining whether an asylum appli-
cant has stayed illegally in another Member State’. Europol and
Eurojust, however, have access to the data contained in certain
categories of alerts, ‘which is necessary for the performance of
their tasks’.

To summarize, access to SIS II data is granted in three cases:

— access for realisation of the alert;

— access for a purpose other than SIS II, but well circum-

scribed in the proposals;

— access for a purpose other than SIS II, but not precisely

described.

The EDPS takes the view that, the more general the purpose for
access, the more stringent the safeguards which need to be
implemented should be. The general safeguards are detailed
hereunder; then, the specific situation of Europol and Eurojust
will be addressed.

In this regard, the EDPS draws the attention to the chapter
related to access to SIS II by services responsible for issuing
registration certificates (see below, pt 4.6).

2. The need for access to SIS II data must be demonstrated, as
well as the impossibility or great difficulty to obtain the data
by other, less intrusive means. This should have been done
in an explanatory memorandum, whose absence is, as
already said, very regrettable.

3. The use that will be made of data must be defined explicitly

and restrictively.

For instance, asylum authorities have access to immigration
data ‘for the purpose of determining whether an asylum
applicant has stayed illegally in another Member State’.
Europol and Eurojust, however, have access to the data
contained in certain categories of alerts, ‘which is necessary
for the performance of their tasks: this is not sufficiently
detailed (see below)’.

4. The conditions of the access must be well defined and
restricted. In particular, only the services inside these organi-
sations which have to deal with the SIS II data, should get
an access to it. This obligation laid down in Article 40 of
the proposed Decision and Article 21.2 of the proposed
Regulation should be supplemented by an obligation for the
national authorities to keep an up-to-date list of persons
entitled to access the SIS II. The same should apply to
Europol and Eurojust.

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5. The fact that these authorities are granted access to SIS II
data can never be a ground for entering or maintaining data
in the system if they are not useful for the specific alert they
are part of. New categories of data may not be added
because they would benefit other information systems. For
example, Article 39 of the proposed Decision provides for
the introduction in alerts of data concerning the issuing
authority. These data are not needed to perform an action
(arrest, surveillance,…), and the only reason why they could
be introduced is probably to benefit Europol or Eurojust. A
clear rationale for the processing of this data should be
provided.

6. The retention period of the data may not be extended where
it is not necessary for the purpose for which the data was
entered. That means that even if Europol or Eurojust have
an access to these data, this is not sufficient ground for
maintaining them in the system (for instance, once a wanted
person has been extradited, the data should be deleted, even
if they could be useful for Europol). Here again, careful
supervision will be needed to ensure this is applied by the
national authorities.

4.2.3 Access by Europol and Eurojust

a. Grounds for access

The access by Europol and Eurojust to some SIS data has
already been debated before their
introduction by the
Council Decision of 24 February 2005 (1). Among all the
authorities having access for their own purposes,
they
benefit from an access granted in the most open terms.
Although the use of these data is described in Chapter XII of
the Decision, the grounds for granting access in the first
place are not sufficiently developed. This is even the more
so considering that Europol and Eurojust's tasks are likely to
evolve over time.

The EDPS urges the Commission to define restrictively the
tasks for the performance of which access by Europol and
Eurojust would be justified.

b. Restriction of data

tasks’,

In order to avoid ‘fishing expeditions’ by Europol and Euro-
just, and to make sure they only access data ‘necessary for
the JSA Schengen in its opinion of 27
their
September 2005 on the SIS II proposals, suggested to
restrict Europol and Eurojust access to data about indivi-
duals whose name already appear in their files. This would

(1) Council Decision 2005/211/JHA of 24 February 2005 concerning
the introduction of some new functions for the Schengen Informa-
tion System,
including the fight against terrorism, OJ L 68/44,
15.3.2005

guarantee that only alerts relevant for them are consulted.
The EDPS supports this recommendation.

c. Security aspects

The EDPS welcomes the obligation of logging all transac-
tions made in connection by Europol and Eurojust, as well
as the interdiction of copying or downloading parts of the
system.

Article 56 of the proposed Decision envisages ‘one to two’
access points for Europol and Eurojust. However under-
standable it could be for a Member State to need more than
one access point, due to a decentralised situation of its
competent authorities, the status and activities of Europol
and Eurojust do not justify this request. It has to be under-
lined as well that from a security point of view, the multipli-
cation of access points increases the risk of misuse and
should therefore be precisely justified with more consistent
elements. Therefore, in the absence of convincing argumen-
tation, the EDPS suggests to grant only one access point in
the cases of Europol and Eurojust.

4.3. Interlinking of alerts

Article 26 of the Regulation and Article 46 of the Decision
provide that Member States may create links between alerts in
accordance with their national legislation, in order to establish
a relationship between two or more alerts.

Although links between alerts can certainly be useful
to
controls (for instance, an arrest warrant on a car thief can be
linked to a stolen vehicle), the introduction of links between
alerts is a very typical feature of a police investigative tool.

Interlinking of alerts can have a major impact on the rights of
the person concerned, since the person is no longer ‘assessed’
on the basis of data relating only to him/her, but on the basis
of his/her possible association with other persons. Individuals
whose data are linked to those of criminals or wanted persons
are likely to be treated with more suspicion than others. Inter-
linking of alerts furthermore represents an extension of the
investigative powers of the SIS because it will make possible
the registration of alleged gangs or networks (if, for instance,
data on illegal immigrants are linked with data of traffickers).
Finally, since the establishment of links is left to national legis-
lation, it has as a possible consequence that links which are
illegal in one Member State can be established by another one,
thus feeding ‘illegal’ data into the system.

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The Council Conclusions of 14 June 2004 on the functional
requirements on the SIS II stated that each link must have a
clear operational requirement, be based on a clearly defined
relationship and comply with the proportionality principle.
Moreover, it may not affect the access rights. Anyway, since
the interlinking of alerts constitutes a processing operation, it
must comply with the provisions of the national
legislation
implementing Directive 95/46/EC and/or Convention 108.

The improvements reside in a more precise description of the
grounds of inclusion of the data. The current wording of the
Schengen Convention has led to a situation where there were
significant differences between Member States in terms of the
number of persons reported under Article 96 of the Conven-
tion. The JSA Schengen has conducted a comprehensive
study (1) on that matter and came up with recommendations
that ‘policy makers should consider harmonising the reasons
for creating an alert in the different Schengen States’.

The proposals reiterate that
links cannot
change the access rights (indeed, it would otherwise give access
to data the processing of which would not be lawful under
national legislation, in breach of Article 6 of the Directive).

the existence of

The proposed Article 15 is more detailed in its drafting, which
is to be welcomed.

The EDPS stresses the importance of a strict interpretation of
Article 26 of the proposed Regulation and Article 46 of the
proposed Decision: one way to ensure this is to make clear that
authorities with no right of access to certain categories of data
not only cannot have access to links to those categories, but
that they should not even be aware of the existence of these
links. The visualisation of the links must be impossible where
there is no access right to the linked data.

Moreover, the EDPS would like to be consulted on the technical
measures to guarantee this.

4.4. Alerts for the purpose of refusing entry

4.4.1. Grounds for inclusion

The use of ‘alerts issued in respect of third country nationals
for the purpose of refusing entry’ (Article 15 of the Regulation)
has a significant impact on the freedoms of the individual: an
individual reported under this provision has no more access to
the Schengen area for several years. This has been until now
the most often used alert in terms of the number of persons
reported. Seeing the consequences of this alert, as well as the
number of persons concerned, great care must be taken in its
conception, as well as in its implementation. Although this is
also true concerning other alerts,
the EDPS will devote a
specific chapter to this alert, because it poses specific problems
concerning the grounds for inclusion.

The new alert for refusing entry presents improvements with
regards to the present situation, but is also not completely satis-
factory, as it is based in good part on instruments which have
not yet been adopted or even proposed.

Moreover, Article 15.2 gives also a list of cases where persons
cannot be alerted because they are legally residing on the terri-
tory of a Member State,
in application of different statuses.
Although it could be deduced from the present Schengen
Convention, the practice has shown that the application of this
mechanism also was subject
to variation between Member
States. Therefore, clarification is a positive element.

However, this provision is also subject to serious criticism, as it
is based for an important part on a not yet adopted text,
namely the Directive ‘on Return’.

Since the adoption of the SIS II proposals, a ‘Directive on
common standards and procedures in Member States for
returning illegally staying third-country nationals’ has been
proposed by the Commission (on 1 September 2005), but as
long as this text is not final, it cannot be considered as a valid
ground for entering data into a system. It constitutes, in par-
ticular a breach of Art. 8 ECHR, since an intrusion in the
privacy of individuals should be justified by — inter alia — a
clear and accessible legislation.

Therefore, the EDPS urges the Commission to either withdraw
this provision, or redraft it in a way, based on existing legisla-
tion,
that allows the individuals to know which measures
exactly the authorities can take regarding him/her.

4.4.2. Access to Article 15 alerts

Article 18 lays down which authorities have access to these
alerts and for which purposes. Article 18 (1) and (2) determines
which authorities have access to alerts entered on the basis of
the Directive on Return. The same commentary as above
applies.

(1) Report of the Schengen Joint Supervisory Authority on an inspec-
tion of the use of Article 96 alerts in the Schengen Information
System, Brussels, 20 June 2005.

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Article 18 (3) of the proposed Regulation grants access to
authorities responsible for granting refugee status, pursuant to
a Directive which has not yet been even proposed.
In the
the EDPS must reiterate the
absence of an available text,
comments made here above.

persons concerned. This is especially worrying in the case of
alerts on persons for discreet surveillance or specific checks,
since these alerts may be issued on the basis of suspicions.

4.4.3. Retention period of Article 15 alerts

The alert must, according to Article 20 not be kept longer than
the period of refusal of entry laid down in the decision (of
removal or return). This is consistent with data protection
rules. Moreover, it will be erased automatically after five years,
unless the Member State having entered the data in the SIS II
decides otherwise.

Adequate supervision at national level should ensure that there
is no automatic unjustified extension of the retention period,
and that the Member States erase the data before the five year
term if the period of refusal of entry happens to be shorter.

4.5. Retention periods

Although the principle of retention remains the same (as a
general rule, an alert should be erased from the SIS II as soon
as the action requested by the alert is taken), the proposals will
have as a result that the retention period for the alerts has been
generally extended.

The Schengen Convention provided for a review of the need
for continued storage of the data no later than three years after
they were entered (or one year in the case of data entered for
discreet surveillance). The new proposals foresee an automatic
deletion (with possibility to object for the issuing Member
State) after 5 years for immigration data, 10 years for data on
arrest, missing persons and persons wanted for judicial proce-
dures, and 3 years for persons to be put under discreet surveil-
lance.

Even though in principle, the Member States will have to delete
the data when the purpose of the alert is met, this amounts to
a significant increase of the maximum retention period (in
most cases, tripling), without any sort of justification by the
Commission. In the case of immigration data one can only
venture a guess that the 5 years duration is linked with the
duration of the entry ban as proposed in the draft Directive on
Return. In all other cases, there is no rationale that the EDPS is
aware off.

The potential impact on the data subjects being reported in the
SIS can have considerable consequences on the lives of the

The EDPS would like to see serious justification for this exten-
sion of data retention periods. If there is no convincing justifi-
cation, he suggests reducing them to their current duration,
insisting particularly on the case of alerts for the purpose of
discreet surveillance or specific checks.

4.6. Access by authorities in charge of issuing vehicle

registration certificates

The main issue resides in the choice of a more than question-
able legal basis. The Commission fails to make a convincing
case for the use of a First Pillar ‘transport’
legal basis for a
measure which would allow access to the SIS by administrative
authorities for the purposes of preventing and fighting crime
(trafficking of stolen vehicles). The need for a strong justifica-
tion and a solid legal basis for granting access to the SIS II was
detailed in point 4.2.2 of the present opinion.

The EDPS refers to the comments on this subject made by the
JSA Schengen in its opinion on the proposed legal basis for the
SIS II. In particular, the suggestion made by the JSA Schengen
to amend the proposed Decision in order to include in it this
access is to be followed.

5. ROLE OF THE COMMISSION AND THE MEMBER STATES

A clear description and allocation of responsibilities in the
context of the SIS II is paramount, not only for a smooth func-
tioning of the system, but also from a supervision point of
view. The distribution of supervisory competences will follow
from the description of responsibilities, hence a need for abso-
lute clarity.

5.1. Role of the Commission

The EDPS welcomes chapter
III of both proposals which
describes the role and responsibilities of the Commission for
SIS II (as a role of ‘operational management’). Such clarification
was not present in the VIS proposal. However this chapter
alone does not define exhaustively the role of the Commission.
Indeed, as discussed in chapter 9 of this opinion, the Commis-
sion is also involved in the implementation and the manage-
ment of the system through the comitology procedure.

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In terms of data protection, the Commission has a role that is
recognised already in the VIS and Eurodac systems, that of a
responsible for operational management. In combination with
its major role in the development and maintenance of the
system,
this should be seen as the role of a sui generis
controller. It is, as already said in the EDPS'opinion on the VIS,
much more than that of a processor, but also more limited
than that of a normal controller, since the Commission has no
access to the data processed in the SIS II.

As the SIS II will be built on complex systems, amongst which
some rely on emerging technologies, the EDPS insists upon
reinforcing the responsibility of the Commission in maintaining
the systems up-to-date by implementing the Best Available
Technologies related to security and data protection.

Directive 95/46. This is a welcome change compared to the
current situation, where there is no right of information expli-
citly foreseen in the Convention. There is, however some room
for improvement, on the following points.

Some information should be added to the list, because it would
contribute to ensuring a fair treatment of the data subject (1).
This information should concern the retention period of the
data, the existence of the right to request a review or appeal of
the decision to issue an alert (in some cases, see Article 15 (3)
of the proposed Regulation), the possibility to obtain assistance
from the data protection authority, and the existence of reme-
dies.

It should be added therefore in the Article 12 of the proposals
that the Commission should regularly propose the implementa-
tion of new technologies which represent the state of the art in
this field and which will enhance data protection and security
levels, as well as facilitate the tasks of the national authorities
which have access to these data.

There is no indication in the proposed Regulation as to the
moment when the information should be provided. This could
make the rights of the data subject impossible to exercise. In
order to make these rights effective, the Regulation should
provide for a precise moment where the information should be
given, depending from the authority who issued the alert.

5.2. Role of the Member States

The situation of Member States is not really clear, as it is rather
difficult to know which authority(ies) is(are) going to be the
data controller(s).

The proposals describe a role for SIS II National Office (to
ensure competent authorities' access to the SIS II) as well as for
SIRENE authorities (to ensure the exchange of all supplemen-
tary information). Member States also have to ensure the func-
tioning and security of their ‘NS’ (‘National System’). It is not
clear if this last responsibility is to be borne by one of the
above mentioned authorities. In any case, clarification is needed
in this regard.

In terms of data protection, the Commission and the Member
States should be considered as joint controllers, each with
specific responsibilities. The recognition of these complemen-
tary missions is the only way to leave no area of the SIS II
activities unsupervised.

6. DATA SUBJECTS RIGHTS

6.1. Information

6.1.1. Proposed Regulation

A practical solution would be to add information about the
alert in the decision which is the ground for the alert in the
first place: either a judicial or administrative decision based on
a threat to public policy (….) or a return decision or removal
order accompanied by a re-entry ban. This should be added to
Article 28 of the Regulation.

6.1.2. Proposed Decision

Article 50 of the Decision stipulates that information is given
on request of the data subject and states the possible grounds
for refusing to grant this information. Limitations to this right
are obviously understandable, considering the nature of the
data and the context in which they are processed.

However, the right of information should not be subjected to a
request of the data subject (that would actually rather be the
definition of a request for access). One can suppose that the
need to ‘request’ information was justified by the cases where
the data subject cannot be informed because he is not located.

This would be better addressed by adding an exception to the
right of information in cases where the provision of informa-
tion proves impossible or involves a disproportionate effort.
Article 50 of the Decision should be amended accordingly.

Article 28 of the proposed Regulation foresees the right of
information of the data subject, following mainly Article 10 of

(1) In the same sense, see EDPS Opinion on the establishment of the

Visa Information System, pt 3.10.1.

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This solution would also be consistent with the application of
the draft Framework Decision on Data protection in third
pillar.

to issue an alert, when this decision is taken by an administra-
tive authority. This is a welcome addition, compared to the
current Schengen Convention.

6.2. Access

The proposed Regulation and Decision both impose deadlines
for answering requests for access, which is a positive evolution.
However, since the procedure for exercising the right of access
is defined at national level, one can wonder how the delays
imposed in the proposals can interact with the existing proce-
dures, especially if the Member States have shorter deadlines to
answer a request for access. It should be made clear that the
deadlines which are the most favourable to the data subject
should be applied.

6.2.1. Proposed Regulation

This underlines the need for complete and timely information
of the data subject as mentioned in point 6.1 above: without
this information this new right would remain theoretical.

6.4. Remedies

Article 30 of the proposed Regulation and Article 52 of the
proposed Decision provide for the right to bring an action or a
complaint before the courts of any Member State, if the data
subject is refused the right of access, rectification or erasure of
data, to obtain information or reparation.

It is worth noting that the restrictions to the right of access
(‘shall be refused if this is indispensable for the performance of
a lawful task in connection with the alert or for the protection
of rights and freedoms of third parties’) which currently exist in
the Schengen Convention do not figure in the proposed Regu-
lation.

However, this is probably due to the applicability of the Direc-
tive 95/46/EC which foresees (in its Article13) the possibility to
implement exceptions in national legislations. In any case, it
should be pointed out that the use of Article 13 in national
legislation for restricting the right of access should always be in
compliance with Article 8 ECHR, only in limited cases.

The wording (‘any person in the territory of a Member State’)
suggests that the complainant must be physically on the terri-
tory to bring his action before courts. This territorial limitation
is not justified and could make the right to remedies ineffective,
as very often, the complainant is likely to introduce an action
precisely because he is not granted access to the Schengen terri-
tory. Moreover, as far as the proposed Regulation is concerned,
since the Directive is the lex generalis, its Article 22 must be
taken into account; it stipulates that ‘every person’ has a right
to a judicial remedy, irrespective of his place of residence. The
proposed Framework Decision does not contain either a terri-
torial
limitation. The EDPS suggests dropping the territorial
limitation in Article 30 and Article 52.

6.2.2. Proposed Decision

The proposed Decision takes up the limitation to the access
right as in the Schengen Convention. The proposed Framework
Decision contains in essence the same limitations to the right
of access; so the adoption of this instrument would not make a
significant difference in this.

Since in several Member States, access to law enforcement data
is ‘indirect’ (which means exercised via the national data protec-
tion authority), it should be useful to provide for an obligation
of data protection authorities to cooperate actively in the exer-
cise of the right of access.

6.3. Right to review or appeal the decision to issue an

alert

7. SUPERVISION

7.1. Introductory remark: sharing of responsibilities

The proposals share out the supervisory task between national
supervisory authorities (1), and the EDPS, each for its own
scope. This is consistent with the approach of the proposals to
applicable law and responsibilities for the operation and use of
the SIS II, and with the need for an effective supervision.

The EDPS therefore welcomes this approach in Article 31 of
the proposed Regulation and Article 53 of the proposed Deci-
sion. However, for a better understanding and a clarification of
the respective tasks, the EDPS proposes to split each article into
several provisions, each of them dedicated to a level of supervi-
sion as had been properly done in the VIS proposal.

Article 15 (3) of the Regulation institutes a right to review or
appeal before a judicial authority with respect to the decision

(1) The supervisory authorities for Europol and Eurojust are also

involved, but to a lesser extent.

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7.2. Supervision by national data protection authorities

7.4. Joint supervision

Pursuant to Article 31 of the proposed Regulation and Article
53 of the proposed Decision, each Member State must ensure
that an independent authority monitors the lawfulness of the
processing of SIS II personal data.

Article 53 of the proposed Decision adds a right for the indivi-
dual to ask the supervisory authority to check the lawfulness of
the processing of the data concerning him. A similar provision
has not been included in the proposed Regulation since the
Directive applies as a lex generalis. Therefore, it must be consid-
ered that national data protection authorities can exercise, with
regard to the SIS II all the competences conferred to them by
Article 28 of the Directive 95/46/EC, including checking the
lawfulness of a data processing. Article 31.1 of the Regulation
is a clarification on their mission but cannot constitute a limita-
tion of these powers. The recognition of these competences
should be clarified in the text of the proposed Regulation.

is different. However,

As to the proposed Decision,
it recognises more extensive
duties to national supervisory authorities because its lex gener-
the situation where supervisory
alis
authorities would have different missions and competences
according to the category of processed data is not sound, and
very difficult to manage in the practice. Therefore, it should be
avoided, either by recognising these authorities
the same
powers in the text of the proposed Decision itself, or by refer-
ring to another lex generalis (namely the Framework Decision
on Data Protection in Third Pillar) giving more competences to
the data protection authorities.

The proposals also recognise the need to coordinate the super-
visory activities of the different authorities involved. Article 31
of the proposed Regulation and Article 53 of the proposed
Decision stipulate that ‘the national supervisory authorities and
the European Data Protection Supervisor
shall cooperate
actively with each other. The European Data Protection Super-
visor shall convene a meeting for that purpose at least once a
year’.

The EDPS welcomes this proposal which contains in essence
the necessary elements to create the cooperation — which is
indeed crucial — between the authorities in charge of supervi-
sion at national and European level. It should be underlined
that the proposals provide for a meeting at least once a year,
but that it is to be considered as a minimum.

These provisions (Article 31 of the proposed Regulation and
Article 53 of the proposed Decision) could however benefit
from some clarifications of the content of that coordination.
The existing JSA has the competence to examine difficulties of
interpretation or application of
to study
problems that may occur with the exercise of independent
supervision or of the right of access, and to draw up harmo-
nised proposals for joint solutions to existing problems.

the Convention,

The new proposals cannot lead to a watering down of the
existing scope of the common supervision. If it is clear that
data protection authorities can exercise with regard to the SIS
II all
the supervisory competences they are endowed with
under the Directive, the cooperation of these authorities can
cover broad aspects of the supervision of the SIS II, including
the tasks of the existing JSA as developed in Article 115 of the
Schengen Convention.

7.3. Supervision by the EDPS

However, in order to make this absolutely clear, it would be
useful to reaffirm this explicitly in the proposals.

The EDPS monitors that the data processing activities of the
Commission are carried out in accordance with the proposals.
Similarly, the EDPS should be able to exercise all his compe-
tences under Regulation (EC) No 45/2001, taking into account,
however, the limited powers of the Commission with regard to
the data themselves.

It is useful to add that, according to Article 46 (f) of Regulation
(EC) No 45/2001, the EDPS ‘shall cooperate with the national
supervisory authorities to the extent necessary for the perfor-
respective duties’. The cooperation with
mance of
Member States in the supervision of the SIS II does not stem
only from the proposals, but also from Regulation (EC) No
45/2001.

their

8. SECURITY

the SIS II constitutes a fundamental

The management of and respect for an optimal security level
for
for
ensuring an adequate protection of personal data stored in the
database. In order to obtain this satisfactory level of protection,
proper safeguards have to be implemented for handling the
potential risks related to the infrastructure of the system and to
the persons involved. This subject is now discussed in various
parts of the proposal and deserves some improvement.

requirement

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Articles 10 and 13 of the proposal contain various measures
for data security and specify the kind of misuses that need to
be prevented. The EDPS welcomes
that provisions on
security measures have been
systematic (self-)auditing of
included in these articles.

However Article 59 of the proposed Decision and Article 34 of
the proposed Regulation, which provide for monitoring and
evaluation, should not only concern the aspects of output, cost-
effectiveness and quality of services, but also compliance with
legal requirements, especially in the field of data protection.
The EDPS therefore recommends that the scope of these articles
is extended to monitoring and reporting on the lawfulness of
processing.

Moreover, in complement to Article 10 (1) (f) or Article 18 of
the proposed Decision and Article 17 of the proposed Regu-
lation concerning the duly authorised staff who has access to
the data,
it should be added that Member States (as well as
Europol and Eurojust) should ensure that precise user profiles
are available (that should be kept at the disposal of the national
supervisory authorities for checks). In addition to these user
profiles, a complete list of user identities has to be made and
kept permanently up-to-date by Member States. The same
applies mutatis mutandis to the Commission.

These security measures are completed by monitoring and
organisational safeguards. Article 14 of the proposals describes
the conditions and the purposes for which records of all data
processing operations have to be kept. These records shall not
only be stored for monitoring data protection and ensuring
data security but also for consolidating the regular self-auditing
of the SIS II requested by Article 10. The self-auditing reports
will contribute to the effective execution of the tasks of the
supervisory authorities that will be able to identify the weakest
spots and to focus on them during their own auditing proce-
dure.

— The data concerned by these copies are not well defined;

— The accuracy, quality, and availability requirements of the
article 9 constitute great technical challenges and therefore
increase the cost according to the state of the art of the
available technology;

— The supervision by the national authorities of these copies
will request additional human and financial resources which
might not be always available.

In view of the risks involved, the EDPS is neither convinced of
the necessity (considering the available technologies) nor of the
added value of the use of national copies. He recommends
dropping the possibility for Member States to use national
copies.

However, if the national copies are to be developed, the EDPS
reminds that a strict purpose limitation principle must be
applied to their national use. Similarly, the national copy may
never be queried in other ways than the central database.

The lawfulness of the personal data processing operation is
based on the strict respect of data security and data integrity.
The EDPS will monitor in an efficient way these processes, if
he can not only monitor the security of data, but also their
integrity through the analysis of the available logs. It is thus
necessary to add ‘data integrity’ to Article 14 (6).

9. COMITOLOGY

As it was stated earlier in this opinion, the multiplication of
access points to the system needs to be carefully justified as it
automatically increases the risks of abuses. A concrete demon-
stration of the need for a second access point should therefore
be requested by Article 4 (1) (b) of the proposals.

The proposals envisage comitology procedures in several cases
where technological decisions for the implementation or the
management of the SIS II are required. As it was stated in the
VIS opinion for similar reasons, these decisions will have a
significant impact on the proper implementation of the prin-
ciple of purpose and proportionality.

The proposals do not clearly explain the need for national
copies of
the central system and trigger serious concerns
regarding the overall level of risk and security of the system,
such as:

— The multiplication of copies increases the risks of abuse
(especially taking into account the presence of new data
like biometric data);

The EDPS advises that decisions with a substantial impact on
data protection like for instance access to and introduction of
data, exchange of supplementary information, quality of data
technical compliance of
and compatibility between alerts,
national copies, etc. should be made by way of Regulation or
Decision, preferably involving a co-decision procedure (1).

(1) See in the same sense, EDPS Opinion on the Visa Information
System, Par. 3.12, and EDPS Opinion on the proposal for a Direc-
tive on the retention of data processed in connection of the provi-
sion of public electronic communication services issued on 26
September 2005, pt.60.

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For all other cases with an impact on data protection, the EDPS
should be given the possibility to advice on the choices made
by these committees.

— Interoperability between systems built

for different
purposes or with third country systems is far more
questionable.

The EDPS' advisory role should be included in Articles 60 and
61 of the Decision and Article 35 of the Regulation.

In the more specific case of the technical rules for linking alerts
(Article 26 of the regulation and Article 46 of the Decision),
the need for a different comitology mode (advisory mode for
the Decision and regulatory mode for the Regulation) has to be
explained.

Among the available safeguards used to limit the purpose of
the system and prevent ‘function creep’, the use of different
technological standards can contribute to this limitation. More-
over, any form of interaction between two different systems
should be thoroughly documented.
Interoperability should
never lead to a situation where an authority, not entitled to
access or use certain data, can obtain this access via another
information system. As far as it is possible to discover by the
reading of the proposals, it seems for example that an Auto-
matic Fingerprint
Identification System (AFIS) will not be
present in the first years of the SIS II; only a reference to a
future biometric search engine is given. If a scenario where
AFIS from other EU systems are used is envisaged, this should
be clearly documented with the necessary safeguards required
for such synergies.

10. INTEROPERABILITY

The EDPS wants to stress again that interoperability of the
systems can not be implemented in violation of the purpose
in this matter
limitation principle, and that any proposal
should be submitted to him.

As the communication of the Commission on the interoper-
ability of emerging EU systems is still lacking, it is difficult to
properly evaluate the added value of the foreseen but not yet
defined synergies.

In this context,
the EDPS would also like to refer to the
Declaration of the Council of 25 March 2004 on Combating
Terrorism, in which the Commission is asked to present propo-
sals in order to enhance interoperability and synergies between
information systems (SIS, VIS and Eurodac). He would also like
to refer to the ongoing discussion as to which body could be
entrusted with the management of the different large scale
systems in the future (see also point 3.8 of this opinion).

The EDPS already stated in his opinion on the Visa Information
System that interoperability is a critical and vital requirement
for the efficiency of large scale IT systems as the SIS II. It offers
the possibility to reduce the overall cost in a consistent manner
and to avoid natural redundancies of heterogeneous elements.

— Interoperability can also contribute to the objective of
maintaining a high level of security within an area without
internal border controls between Member States by imple-
menting the same procedural standard to all the constitutive
elements of this policy. However, it is crucial to distinguish
between two levels of interoperability:

11. SUMMARY OF CONCLUSIONS

11.1. General points

1. The EDPS welcomes several positive aspects of these propo-
sals, which on some points represent an improvement
compared to the present situation. He recognises that provi-
sions on data protection have, generally speaking, been
drafted with great care.

2. The EDPS underlines that the new legal regime, however

complex should

— ensure a high level of data protection,

— be predictable for citizens as well as for authorities

sharing data,

— Interoperability between EU Member States is highly
desirable; indeed the alert sent by one Member State's
authorities have to be interoperable with the ones sent
by any other Member State's authorities.

— be consistent in its application to different (first or third

pillar) contexts.

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3. Moreover,

the addition of new elements in the SIS II,
increasing its possible impact on the lives of the individuals
should be met by more stringent safeguards which are
described in the opinion. In particular,

3. Strict conditions should be applied when granting access

to SIS II data to any authority:

— Access to SIS II data cannot be given to new authorities
without
It should also be
restricted as much as possible, both in terms of acces-
sible data and authorized persons.

the strongest

justification.

— Interlinking of alerts may never lead, even indirectly, to

a change in access rights.

— A non adopted legislation cannot be considered a valid
ground for entering data in the SIS II (alerts for the
purpose of refusing entry).

— The legal basis for access by authorities in charge of
issuing vehicle registration certificates should be recon-
sidered as it is intended mainly to fight crime.

— The EDPS recognises that the use of biometric data can
improve the performance of the system and help the
victims of identity theft. However, the impact of this
insertion doesn't
sufficiently thought
through, and the reliability of these data seems over-
stated.

seem to be

11.2. Specific remarks

1. The EDPS welcomes the recognition by the Commission
that Regulation (EC) No 45/2001 applies to all data
processing activities of the Commission in SIS II, as it will
contribute to ensure a consistent and homogeneous appli-
cation of the rules regarding the protection of individuals'
rights and freedoms with regard to the
fundamental
processing of personal data.

— Access must be compatible with the general purpose of

the SIS II, and consistent with its legal basis.

— The need for access to SIS II data must be demon-

strated.

— The use that will be made of data must be defined

explicitly and restrictively.

— The conditions of the access must be well defined and
restricted. In particular, there should be an up-to-date
list of persons entitled to access the SIS II also for
Europol and Eurojust.

— The fact that these authorities are granted access to SIS
II data can never be a ground for entering or main-
taining data in the system if they are not useful for the
specific alert they are part of.

— The retention period of the data may not be extended
where it is not necessary for the purpose for which the
data was entered.

4. In the specific cases of Europol and Eurojust the EDPS
urges the Commission to define restrictively the tasks for
the performance of which access would be justified. Access
by Europol and Eurojust should moreover be restricted to
data about
individuals whose name already appears in
their files. It is also suggested to grant only one access
point in the cases of Europol and Eurojust.

5. Concerning the alerts for the purpose of refusing entry, the
provisions based on not yet adopted legislation should be
either withdrawn or redrafted in a way -based on existing
legislation-
that allows the individuals to know which
measures exactly the authorities can take regarding him/
her.

2. In order to ensure a strict purpose limitation at national
level, the EDPS recommends to introduce in the SIS II
proposals (namely Article 21 of the proposed Regulation
and Article 40 of the proposed Decision) a provision to
the
the same effect as the current Article 102.4 of
Schengen Convention, limiting the possibility for Member
States to provide for use of the data not foreseen in the SIS
II texts.

6. The retention periods of the data have been extended
without any serious justification being put forward for
this. If there is no convincing justification, they should be
brought back to their current duration, particularly in the
case of alerts for the purpose of discreet surveillance or
specific checks.

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7. The role of the Commission is described as one of a
responsible for operational management. In combination
with its major role in the development and maintenance of
the system, this should be seen as the role of a sui generis
controller. It is much more than that of a processor, but
also more limited than that of a normal controller, since
the Commission has no access to the data processed in the
SIS II.

In application of that role,
it should be added in the
Article 12 of both proposals that the Commission should
regularly propose the implementation of new technologies
which represent the state of the art in this field and which
will enhance data protection and security levels.

8. Concerning the role of the Member States, clarification is

needed as to authorities being controller.

9. Concerning the information of the data subject:

— In the proposed Regulation, some information should
be added to the list: the retention period of the data,
the existence of the right to request a review or appeal
of the decision to issue an alert,
the possibility to
obtain assistance from the data protection authority,
and the existence of remedies.

Moreover, as to the moment when this information is
provided, an obligation to provide information about
the alert in the decision which is the ground for the
alert in the first place.

— In the proposed Decision, Article 50 should be
amended in order not to subject the right of informa-
tion to a request of the data subject.

10. As to the deadlines for answering an access request, the
imposition of deadlines in the proposals is welcome. When
national
it should be
made clear that the deadlines which are the most favour-
able to the data subject should be applied.

legislations also impose deadlines,

Moreover, it would be useful to provide for an obligation
of data protection authorities to cooperate actively in the
exercise of the right of access.

11. As to the right to remedies, the EDPS suggests dropping
the territorial limitation in Article 30 and Article 52.

12. Concerning the powers of the national data protection

authorities:

— in the Regulation: it must be considered that they can
exercise, with regard to the SIS II all the competences
the Directive
conferred to them by Article 28 of

95/46/EC; this should be clarified in the text of the
proposed Regulation.

— As to the proposed Decision: the supervisory authori-
ties should be recognised the same powers as in the
Regulation/Directive.

13. Concerning the competences of

the EDPS
should be able to exercise all his competences under Regu-
lation (EC) No 45/2001, taking into account, however, the
limited powers of the Commission with regard to the data
themselves.

the EDPS:

14. As to coordinated supervision: the proposals also recognise
the need to coordinate the supervisory activities of the
different authorities involved. The EDPS welcomes the fact
that they contain in essence the necessary elements to
create the cooperation between the authorities in charge of
supervision at national and European level. These provi-
sions (Article 31 of the proposed Regulation and Article
53 of the proposed Decision) could however benefit from
some clarifications of the content of that coordination.

15. Articles 10 and 13 of

the proposal contain various
measures for data security; the inclusion of provisions on
systematic (self-)auditing of security measures is welcome.

— However Article 59 of

the proposed Decision and
Article 34 of the proposed Regulation, which provide
should not only
for monitoring and evaluation,
concern the aspects of output, cost-effectiveness and
quality of services, but also compliance with legal
requirements, especially in the field of data protection.
These provisions should be amended accordingly.

— Moreover,

in complement

to Article 10 (1)

(f) or
Article 18 of the proposed Decision and Article 17 of
the proposed Regulation,
it should be added that
Member States, Europol and Eurojust should ensure
that precise user profiles are available (that should be
kept at the disposal of the national supervisory authori-
ties for checks). In addition to these user profiles, a
complete list of user identities has to be made and kept
permanently up-to-date by Member States. The same
applies to the Commission.

— The lawfulness of the personal data processing opera-
tion is based on the strict respect of data security and
data integrity. The EDPS should be enabled to monitor
not only the security of data, but also their integrity
through the analysis of the available logs. It is thus
necessary to add ‘data integrity’ to Article 14 (6).

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16. The use of national copies can entail many additional risks.
The EDPS is neither convinced of the necessity (consid-
ering the available technologies) nor of the added value of
the use of national copies. He recommends avoiding or at
least seriously limiting the possibility for Member States to
use national copies. However, if the national copies are to
be developed, a strict purpose limitation principle must be
applied to their national use. Similarly, the national copy
may never be queried in other ways than the central data-
base.

17. On comitology: decisions with a substantial

impact on
data protection should be made by way of Regulation or
Decision, preferably involving a co-decision procedure.

Where the comitology procedure is actually used,
the
EDPS' advisory role should be included in Articles 60 and
61 of the Decision and Article 35 of the Regulation.

18. Interoperability of the systems can not be implemented in
the purpose limitation principle, and any

violation of
proposal in this matter should be submitted to the EDPS.

Done at Brussels on 19 October 2005.

Peter HUSTINX

European Data Protection Supervisor