Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the use of the Schengen Information System for the return of illegally staying third-country nationals
Date: 2016-12-21
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: EU migration policy, Schengen Information System, data collection, data protection, exchange of information, external border of the EU, foreign national, illegal migration, personal data, return migration

   EUROPEAN COMMISSION  Brussels, 21.12.2016  COM(2016) 881 final 2016/0407 (COD)   Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the use of the Schengen Information System for the return of illegally staying third-country nationals   
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

Over  the  course  of  the  last  two  years,  the  European  Union  has  been  working  on 
simultaneously  addressing  the  separate  challenges  of  migration  management,  integrated 
border  management  of  the  EU's  external  borders  and  the  fight  against  terrorism  and  cross-
border crime. Effective information exchange amongst Member States, and between Member 
States  and  the  relevant  EU  agencies,  is  essential  to  providing  a  robust  response  to  those 
challenges and to building an effective and genuine Security Union.  

The  Schengen  Information  System  (SIS)  is  the  most  successful  tool  for  the  effective 
cooperation  of  immigration,  police,  customs  and  judicial  authorities  in  the  EU  and  the 
Schengen  associated  countries.  Competent  authorities  in  the  Member  States  such  as  police, 
border guards and customs officers need to have access to high quality information about the 
persons or objects they are checking, with clear instructions about what needs to be done in 
each case.  This  large-scale  information  system is  at the very heart  of Schengen  cooperation 
and plays a crucial role in facilitating the free movement of people within the Schengen area. 
It  enables  competent  authorities  to  enter  and  consult  data  on  wanted  persons,  persons  who 
may not have the right to enter or stay in the EU, missing persons  – in particular children – 
and  objects  that  may  have  been  stolen,  misappropriated  or  lost.  SIS  not  only  contains 
information  about  a  particular  person  or  object but  also  clear  instructions  for  the  competent 
authorities on what to do with that person or object once found. 

In 2016, the Commission carried out a comprehensive evaluation1 of SIS, three years after the 
entry  into  operation  of  its  second  generation.  This  evaluation  showed  that  SIS  has  been  a 
genuine  operational  success.  In  2015,  national  competent  authorities  checked  persons  and 
objects  against  data  held  in  SIS  on  nearly  2.9  billion  occasions  and  exchanged  over  1.8 
million pieces of supplementary information. Nonetheless, as announced in the Commission 
Work Programme 2017, building on this positive experience, the effectiveness and efficiency 
of the system should be further strengthened. To this end, the Commission is presenting a first 
set of three proposals to improve and extend the use of SIS as result of the evaluation while 
continuing  its  work  to  make  existing  and  future  law  enforcement  and  border  management 
systems  more  interoperable,  following  up  on  the  ongoing  work  of  the  High  Level  Expert 
Group on Information Systems and Interoperability.  

These  proposals  cover  the  use  of  the  system  (a)  for  border  management,  (b)  for  police 
cooperation  and  judicial  cooperation  in  criminal  matters,  and  (c)  for  the  return  of  illegally 
staying third country nationals. The first two proposals together form the legal bases for the 
establishment, operation and use of the SIS. The proposal for the use of SIS for the return of 
illegally staying third country nationals supplements the proposal for border management and 

1 

Report  to  the European  Parliament  and  Council on  the  evaluation of  the  second  generation Schengen 
Information System (SIS II) in accordance with Art. 24 (5), 43 (3) and 50 (5) of Regulation (EC) No 
1987/2006 and Art. 59 (3) and 66(5) of Decision 2007/533/JHA and an accompanying Staff Working 
Document. (OJ…). 

 
 
                                                 
complements  the  provisions  contained  therein.  It  establishes  a  new  alert  category  and 
contributes to the implementation and monitoring of Directive 2008/115/EC2.  

Due  to  the  variable  geometry  in  Member  States'  participation  in  EU  policies  in  the  area  of 
freedom, security and justice, it is necessary to adopt three separate legal instruments which 
will nonetheless work seamlessly together to enable the comprehensive operation and use of 
the system.  

the  necessary 

In parallel, with a view to enhancing and improving information management at EU level, in 
April  2016,  the  Commission  began  a  process  of  reflection  on  "Stronger  and  Smarter 
Information Systems for Borders and Security"3. The overarching objective is to ensure that 
competent  authorities  systematically  have 
information  from  different 
information systems at their disposal. In order to achieve this objective, the Commission has 
been  reviewing  the  existing  information  architecture  to  identify  information  gaps  and  blind 
spots that result from shortcomings in the functionalities of existing systems, as well as from 
fragmentation in the EU's overall architecture of data management. The Commission set up a 
High Level Expert Group on Information Systems and Interoperability to support this work, 
whose interim findings have also informed this first set of proposals as regards issues of data 
quality4. President Juncker's State of the Union address in September 2016 also referred to the 
importance  of  overcoming  the  current  shortcomings  in  information  management  and  of 
improving the interoperability and interconnection between existing information systems. 

Following  the  findings  of  the  High  Level  Expert  Group  on  Information  Systems  and 
Interoperability,  which  will  be  presented  in  the  first  half  of  2017,  the  Commission  will 
consider  a  second  set  of  proposals  to  further  improve  interoperability  of  SIS  with  other  IT 
systems  in  mid-2017.  The  review  of  Regulation  (EU)  No  1077/20115  concerning  the 
European  Agency  for  the  operational  management  of  large-scale  IT  systems  in  the  area  of 
freedom, security and justice (eu-LISA) is an equally important element of this work and is 
likely  to  be  the  subject  of  separate  Commission  proposals  also  in  2017.  Investing  in  swift, 
effective and qualitative information exchange and information management and ensuring the 
interoperability of EU databases and information systems is an important aspect of addressing 
current security challenges. 

Against this background, the purpose of the present proposal is to improve and extend the use 
of  SIS  by  making  it  obligatory  for  Member  States'  authorities  to  enter  in  SIS  all  return 
decisions  issued  in  accordance  with  provisions  respecting  Directive  2008/115/EC,  to  allow 
their EU-wide visibility and thus enhance their enforcement. The proposal widens the scope 
of application of the current SIS by introducing a new alert category for return decisions.  

The proposal for border management already contains the provisions concerning the entry and 
processing of alerts on the basis of entry bans issued in accordance with provisions respecting 
Directive  2008/115/EC  in  SIS.  These  measures  build  upon  the  Schengen  acquis  as  they 
support the checks at the EU's external borders. The entry and processing of alerts related to 
return  decisions  issued  in  accordance  with  provisions  respecting  Directive  2008/115/EC  in 

2 

3 
4 
5 

Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  2008  on 
common  standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country 
nationals (OJ L 348, 24.12.2008, p. 98). 
COM(2016) 205 final of 6.4.2016. 
Commission Decision 2016/C 257/03 of 17.6.2016. 
Regulation  (EU)  No 1077/2011  of  the  European  Parliament  and  of  the  Council  of  25 October  2011 
establishing a European Agency for the operational management of large-scale IT systems in the area of 
freedom, security and justice (OJ L 286, 1.11.2011, p.1). 

 
 
                                                 
SIS  support  EU's  common  immigration  policy  and  are  therefore  laid  down  in  a  separate 
instrument.  The  proposal  for  return  builds  on  the  general  provisions  on  the  establishment, 
operation  and  use  of  SIS  provided  for  in  the  proposal  on  border  management.  Due  to  these 
close  links  it  should  be  adopted,  enter  into  force  and  apply  at  the  same  time  as  the  border 
management instrument.  

The proposal to extend the use of SIS to follow-up the return of illegally staying third-country 
nationals  will  support  and  strengthen  the  European  Union  actions  towards  an  integrated, 
sustainable  and  holistic  EU  migration  policy.  The  return  of  irregular  migrants  who  do  not 
have a right to stay in the EU to their home countries, in full respect of the principle of non-
refoulement, is an essential part of our migration policy as stressed in the European Agenda 
on  Migration6.  However,  the  EU  return  system  works  imperfectly  and  is  not  sufficiently 
effective.  Statistics  available  from  Eurostat  show  that,  during  the  last  years,  only 
approximately  40%  of  irregular  migrants  required  to  leave  the  EU  departed  effectively;  in 
2015,  553  395  third-country  nationals  were  ordered  to  leave,  however  only  226  800  were 
effectively returned. 

With the escalation of the migration and refugee crisis in 2015, the need to take effective steps 
to  tackle  irregular  migration  and  increase  the  rate  of  return  of  irregular  migrants  rose 
considerably. That is why the Commission is implementing all measures announced in the EU 
Action  Plan  on  Return7.  These  measures are  necessary  in  order to  secure  public trust  in  the 
EU  migration  and  asylum  policy  and  to  provide  adequate  support  to  persons  in  need  of 
protection.  Indeed,  a  more  successful  European  system  returning  irregular  migrants  to  their 
home  countries  goes  hand-in-hand  with  the  renewed  efforts  to  protect  those  in  need  of 
protection. 

To  improve  the  efficiency  of  the  EU's  return  policy,  cooperation  with  countries  of  origin  is 
essential. That is why in June 2016 the European Council concluded that the EU needs to put 
in  place  and  swiftly  implement  the  Partnership  Framework  of  cooperation  with  individual 
countries  of  origin  or  transit  based  on  effective  incentives  and  adequate  conditionality.  The 
Commission is actively engaged to develop these partnerships. However, the EU's ability to 
return irregular migrants is not only linked to cooperation with countries of origin or transit. 
The  challenges  of  returning  irregular  migrants  also  stem  from  internal  obstacles  in  national 
return  systems  and  especially  the  difficulties  for  the  Member  States  to  enforce  return 
decisions. 

In  the  EU  Action  Plan  on  Return  and  in  the  Communication  on  "Stronger  and  Smarter 
Information Systems for Borders and Security"8 the Commission identified the need to better 
exploit the large-scale IT systems for the purpose of building a more effective return system. 
In its Conclusions of 25-26 June 2015, the European Council called for the inclusion of return 
decisions in SIS, with a view to enhancing their effectiveness.9 The Justice and Home Affairs 
Council confirmed this call in its conclusions of 8-9 October 201510. 

Currently there is no EU-wide system for sharing information about return decisions issued by 
Member  States  in  accordance  with  provisions  respecting  Directive  2008/115/EC,  and  for 

6 
7 
8 
9 
10 

COM(2015) 240 final. 
COM(2015) 453 final. 
COM(2016) 205 final. 
European Council Conclusions of 25 and 26 June 2015 (ST 22 2015 INIT). 
Council Conclusions on the future of the return policy, available at: 
http://www.consilium.europa.eu/press-releases-pdf/2015/10/40802203341_en.pdf  

 
 
                                                 
monitoring  whether  third-country  nationals  subject  to  these  decisions  have  in  fact  left  the 
territory of the Member States. This situation makes it easier for irregular migrants to avoid or 
prevent the enforcement of an existing decision by simply moving to another Member State. 
In such situations, public authorities of the Member State apprehending the irregular migrant 
are  not  aware  that  a  return  decision  had  already  been  issued  in  accordance  with  provisions 
respecting Directive 2008/115/EC by another Member State. The apprehending Member State 
would  therefore  need  to  re-launch  return  procedures  from  scratch,  further  prolonging  the 
illegal stay and delaying the return of the irregular migrant. 

The visibility of other Member States' return decisions through a SIS alert, coupled with the 
possibility  for  the  exchange  of  supplementary  information  via  a  national  single  point  of 
contact, such as the SIRENE Bureaux, can help address this information gap. Having greater 
knowledge  as  to  the  individual  circumstances  of  the  person  concerned  empowers  Member 
State authorities to take the most appropriate action in a swift and timely manner. Awareness 
of all circumstances related to the irregular migrant in question may justify, for instance, not 
granting a period of voluntary departure or to use measures to prevent the risk of absconding. 
Moreover, awareness of the existence of a return decision issued by another Member State in 
accordance  with  provisions  respecting  Directive  2008/115/EC  would  facilitate  mutual 
recognition  of  these  decisions  amongst  migration  authorities,  in  compliance  with  the  EU 
acquis11; an option that is seldom used due to the current lack of information. 

In addition, Member States are often unaware of the number of irregular migrants that comply 
with return decisions. This is the case particularly for those irregular migrants who leave the 
EU  voluntarily,  for  example  without  obtaining  voluntary  return  assistance  or  without  being 
subject  to  a  forced  removal.  With  the  systematic  inclusion  of  return  decisions  issued  in 
accordance with provisions respecting Directive 2008/115/EC in SIS and with the appropriate 
action taken following a hit on a return alert, SIS can help verify compliance with such return 
decisions  and  better  inform  the  actions  of  competent  authorities.  When  a  third-country 
national subject to a return decision issued in accordance with provisions respecting Directive 
2008/115/EC will be checked while exiting the territory of the Member States, the competent 
national  authorities  will  be  able  to  report  departure  and  confirm  the  voluntary  or  enforced 
compliance with the obligation to return. 

 The  confirmation  of  return  will  in  turn  reduce  the  need  for  public  authorities  to  invest 
resources  in  tracing  irregular  migrants  who  have  actually  already  left  the  EU.  In  case  of  a 
third-country national whose departure has not been confirmed, and following a notification 
from  SIS  that  the  period  of  voluntary  departure  has  expired,  public  authorities  will  also  be 
aware  that  follow-up  actions  must  be  taken  in  order  to  trace  the  individuals  concerned,  to 
ensure  their  removal  and  issue  an  entry  ban  in  accordance  with  Article  11(1)  of  Directive 
2008/115/EC. This system will provide an additional tool to Member States for meeting their 
obligation to take all necessary measures to ensure the enforcement of return decisions in an 
in  accordance  with  Article  8(1)  of  Directive 
effective  and  proportionate  manner, 
2008/115/EC. A more effective monitoring of the compliance with return decisions issued in 
accordance  with  provisions  respecting  Directive  2008/115/EC  would  help  bring  to  light  a 
number of cases of non-compliance, which can be expected to lead to an increased number of 
returns and entry bans. 

11 

Council Directive 2001/40/EC of 28 May 2001 on the mutual recognition of decisions on the expulsion 
of  third-country  nationals,  OJ  L  149,  2.6.2001,  p.  34;  and  Council  Decision  2004/191/EC  of  23 
February 2004 setting out the criteria and practical arrangements for the compensation of the financial 
imbalances  resulting  from  the  application  of  Directive  2001/40/EC  on  the  mutual  recognition  of 
decisions on the expulsion of third-country nationals, OJ L 60, 27.2.2004, p. 55. 

 
 
                                                 
SIS  will  therefore  help  provide  more  reliable  data  and  statistics  on  the  number  of  return 
decisions issued in accordance with provisions respecting Directive 2008/115/EC, and on the 
rate of compliance. 

Difficulties in identifying irregular migrants and the lack of valid travel documents issued by 
the  third-country  of  destination  of  the  returnees  are  major  obstacles  to  successful  return. 
Illegally  staying  third-country  nationals  may  be  holding  identification  or  travel  documents 
when they are apprehended and subject to return procedures in a Member State, but they may 
get  rid  of  such  documents  at  a  later  stage  to  hinder  return  or  to  move  illegally  to  another 
Member  State.  In  these  cases,  the  information  on  the  identification  or  travel  document  at 
disposal  of  the  Member  State  that  first  apprehended  the  illegally  staying  third-country 
national  can  facilitate  identification  and  issuance  of  a  valid  travel  document  by  the  third 
country of destination to migrants who absconded to another Member State. For this purpose, 
it  is  necessary  to  allow  the  transfer  of  relevant  data  available  in  SIS  to  the  competent 
authorities  of  third  countries  under  strict  conditions.  Such  transfer  must  be  limited  to  the 
information  that  is  strictly  necessary  in  order  to  ensure  the  identification  and  re-
documentation  of  the  migrant,  and  shall  comply  with  the  provisions  of  Regulation  (EU) 
2016/679 on the protection of natural persons with regard to the processing of  personal data 
and  on  the  free  movement  of  such  data12,  notably  Chapter  V  of  that  Regulation  that  sets 
detailed  rules  and  conditions  for  the  transfers  of  personal  data  to  third  countries  or 
international  organisations.  When  such  transfer  is  conducted  by  the  Member  States  that  did 
not introduce the information on the document in the SIS alert and is not the owner of such 
data,  the  previous  authorisation  of  the  Member  State  that introduced  the  information  in  SIS 
should be required. 

This  proposal  will  also  enhance  rules  on  the  consultation  process  that  Member  States  must 
follow  when  they  encounter  alerts  on  return,  or  are  willing  to  enter  such  alerts,  that  collide 
with other Member States' decisions, such as for instance a valid residence permit. Such rules 
should prevent the emergence of, or resolve, the conflicting instructions that these situations 
may  create,  while  offering  clear  guidance  to  end-users  on  the  actions  to  be  taken  in  such 
situations and to Member States authorities on whether an alert should be deleted. 

In  order  to  work  correctly,  the  designed  system  requires  systematic  checks  at  exit  at  the 
external borders, in order to ensure that all third-country nationals concerned will be reported 
as  having  left  the  territory.  The  proposal13  amending  Regulation  (EU)  2016/399  (Schengen 
Borders  Code)14  aims  at  aligning  the  obligation  to  systematically  check  third-country 
nationals against databases on entry and exit.  

Considering  the  transnational  nature  and  the  challenges  in  ensuring  effective  cross  border 
information exchange, the recommendations in the European Interoperability Framework are 
of particular interest for these proposals and should be respected when designing or delivering 
digital  public  services.  The  European  Interoperability  Framework  is  currently  undergoing  a 
revision, and the new version is in the process of adoption. 

12 

13 
14 

Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the 
protection of natural persons with regard to the processing of personal data and on the free movement of 
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, 
p. 1). 
COM(2015) 670 final. 
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union 
Code on the rules governing the movement of persons across borders (Schengen Borders Code) OJ L 
77, 23.3.2016, p. 1. 

 
 
                                                 
• 

Consistency with existing policy provisions in the policy area 

This proposal complies with and builds upon the provisions of Directive 2008/115/EC which 
sets common standards and procedures for returning illegally staying third-country nationals. 
It  seeks  to  create  a  greater  level  of  compliance  with  and  increase  the  visibility  of  return 
decisions  issued  by  the  competent  authority  in  accordance  with  provisions  respecting 
Directive 2008/115/EC. By making it mandatory to enter such decisions in SIS, this proposal 
will support the enforcement of these decisions. 

• 

Consistency with other Union policies 

This proposal is closely linked with other existing Union policies and Commission legislative 
proposals, namely: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

2. 

• 

An effective EU return policy, so as to contribute to and enhance the EU system to 
return  third-country  nationals  who  have  no  right  to  stay  in  the  territory  of  the 
Member  States.  This  proposal  would  contribute  to  reducing  incentives  to  irregular 
migration  to  the  EU,  one  of  the  main  objectives  of  the  European  Agenda  on 
Migration15; 

Eurodac  and  Dublin  system  as  the  introduction  of  return  decisions  in  SIS  will 
support Member States in following up whether rejected asylum seekers have left the 
territory of the Member States and returned to a third-country in compliance with a 
return decision. It will also complement the Commission proposal16 to extend the use 
of  Eurodac  to  identify  illegally  staying  third-country  nationals  who  do  not  claim 
asylum and who may move around the EU undetected;  
Entry/Exit  system  as  it  will  complement  the  Commission  proposal17  on  the 
Entry/Exit  system  and  its  use  to  identify  and  detect  overstayers  (also  within  the 
territory of the Member States); 
ETIAS18 which proposed a thorough security assessment, including a check in SIS, 
of visa-exempted third-country nationals who intend to travel in the EU; 

Schengen  Borders  Code  as  it  will  complement  the  amendment  of  the  Schengen 
Borders  Code  related  to  the  obligation  to  systematically  check  third-country 
nationals against databases on exit; 

Commission  proposal  on  the  establishment,  operation  and  use  of  the  Schengen 
Information  System  (SIS)  in  the  field  of  border  checks  and  repealing  Regulation 
(EC)  No  1987/2006  as  it  will  complement  the  provisions  related  to  entering  entry 
bans in SIS following the return of the third-country national concerned. 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

Article  79(2)(c)  Treaty  on  the  Functioning  of  the  European  Union  empowers  the  European 
Parliament  and the Council, acting in accordance with the ordinary legislative procedure, to 
adopt  measures  in  the  field  of  illegal  immigration  and  unauthorised  residence,  including 

15 
16 
17 
18 

COM(2015) 240 final. 
COM(2016) 272 final. 
COM(2016) 194 final. 
COM(2016) 731 final. 

 
 
                                                 
 
removal and repatriation of persons residing without authorisation. Hence, this Article is the 
suitable legal basis for using SIS for the return of illegally staying third-country nationals. 

• 

Variable geometry 

With  regard  to  variable  geometry,  this  proposal  follows  a  comparable  regime  to  Directive 
2008/115/EC.  

According  to  Article  4  of  Protocol  22  on  the  position  of  Denmark  annexed  to  the  Treaties, 
Denmark  shall  decide,  within  a  period  of  six  months  after  the  Council  has  decided  on  this 
Regulation, whether it will implement this proposal, which builds upon the Schengen acquis, 
in its national law.  

With  regard  to  the  United  Kingdom  and  Ireland,  the  Return  Directive  presents  a  hybrid 
character,  as  reflected  in  its  recitals  (26)  and  (27).  It  follows  that  both  Protocol  19  on  the 
Schengen acquis integrated in the framework of the European Union annexed to the Treaties, 
and Protocol 21 on the position of the United Kingdom and Ireland in respect of the area of 
freedom, security and justice annexed to the Treaties, apply to this proposal. Pursuant to the 
latter,  non-Schengen  protocol,  the  United  Kingdom  and  Ireland  are  not  taking  part  in  the 
adoption  of  this  Regulation  and  are  not  bound  by  it  or  subject  to  its  application;  they  may 
however notify to the Council that they wish to take part in this instrument.  

the  basis  of 

On 
the 
implementation,  application  and  development  of  the  Schengen  acquis,  Iceland,  Norway, 
Switzerland and Liechtenstein are to be bound by the Regulation proposed. 

the  respective  agreements  associating 

those  countries  with 

• 

Subsidiarity (for non-exclusive competence)  

The aim of the proposal is to establish a system for sharing information about return decisions 
issued in accordance with provisions respecting Directive 2008/115/EC by the Member States 
in  view  of  facilitating  their  enforcement  and  to  monitor  the  compliance  of  illegally  staying 
third-country nationals with their obligation to return. This cannot be sufficiently achieved by 
the Member States acting alone. There is currently no system in place allowing the systematic 
sharing  of  information  on  return  decisions  issued  by  the  Member  States  in  accordance  with 
provisions respecting Directive 2008/115/EC; therefore, national authorities cannot be aware 
of  return  decisions  issued  in  respect  of  third-country  nationals  by  other  Member  States, 
including where irregular migrants are apprehended while moving illegally across the EU and 
transiting on their territories. The aim of this proposal can, therefore, be better achieved by the 
European Union. 

• 

Proportionality 

Article  5  of  the  Treaty  on  the  European  Union  states  that  action  by  the  Union  shall  not  go 
beyond what is necessary to achieve the objectives of the Treaty. The form chosen for this EU 
action must enable the proposal to achieve its objective and be implemented as effectively as 
possible.  

The  proposed  Regulation  intends  to  facilitate  the  enforcement  and  monitoring  of  return 
decisions issued in accordance with provisions respecting Directive 2008/115/EC in relation 
to illegally staying third county nationals, in view of ensuring a more effective and successful 
return policy. It therefore provides the Member States with an additional tool for meeting their 
obligation to take all necessary measures to ensure the enforcement of return decisions in an 
effective and proportionate manner in accordance with Article 8(1) of the Return Directive.  

 
 
To achieve these objectives, and in accordance with the principle of proportionality as set out 
in Article 5 of the Treaty on the European Union, this Regulation does not go beyond what is 
necessary in order to achieve those objectives. 

• 

Choice of the instrument 

In  order  to  establish  uniform  and  harmonised  procedures  that  are  directly  applicable,  it  is 
appropriate to adopt this act in the form of a Regulation. In addition, this proposal relates to 
the use of a centralised European information system. Therefore, the rules on its use need to 
be established in a Regulation. 

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

• 
In accordance with the SIS II Regulation19 and Council Decision 2007/533/JHA20, three years 
after its entry into operation, the Commission carried out an overall evaluation of the central 
SIS  II  system  as  well  as  of  the  bilateral  and  multilateral  exchange  of  supplementary 
information  between  Member  States.  The  evaluation  specifically  targeted  the  review  of  the 
application of Article 24 of the SIS II Regulation, establishing the conditions for issuing alerts 
for the purpose of refusing entry and stay in respect of third-country nationals. The proposals 
resulting from the evaluation  are included in  the Proposal for a Regulation of the European 
Parliament  and  of  the  Council  on  the  establishment,  operation  and  use  of  the  Schengen 
Information System (SIS) in the field of border checks and the Proposal for a Regulation of 
the  European  Parliament  and  of  the  Council  on  the  establishment,  operation  and  use  of  the 
Schengen Information System (SIS) in the field of police cooperation and judicial cooperation 
in criminal matters. 

Furthermore,  in  accordance  with  Article  19  of  the  Return  Directive  2008/115/EC,  the 
Commission  published  a  Communication  on  EU  Return  Policy  in  201421,  which  reports  on 
the  application  of  the  Directive  2008/115/EC.  It  concluded  that  the  potential  of  SIS  in  the 
field of return policy should be further  enhanced; it indicates that the review of SIS II is an 
opportunity to improve consistency between the return policy and SIS II, as well as to suggest 
introducing an obligation on Member States to enter a refusal of entry alert in SIS II for entry 
bans issued under the Return Directive.  

• 

Stakeholder consultations 

Feedback  and  suggestions  on  the  potential  use  of  SIS  for  return  were  sought  from  relevant 
stakeholders, including delegates to the SISVIS Committee and the Return Directive Contact 
Group. Discussions took place in several meetings of the SISVIS Committee (10 May 2016 
and  30  June  2016)  and  the  Return  Directive  Contact  Group  (16  November  2015,  18  March 
and  20  June  2016).  On  5  February  2016  a  joint  workshop  with  delegates  to  the  SISVIS 
Committee  and  the  Return  Directive  Contact  Group  was  held.  The  workshop  was  also 
attended  by  representatives  of  EU  Agencies  such  as  the  European  Union  Agency  for 
Fundamental Rights.  

19 

20 

21 

Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on 
the  establishment,  operation  and  use  of  the  second  generation  Schengen  Information  System  (SIS II) 
(OJ L 381, 28.12.2006, p. 4). 
Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second 
generation Schengen Information System (SIS II) (OJ L 205, 7.8.2007, p. 63). 
COM(2014) 199 final. 

 
 
                                                 
Collection and use of expertise 

• 
In October 2015 the Commission launched an external study22 with the purpose of assessing 
the  feasibility  and  technical  and  operational implications  of  setting  up  within the context  of 
SIS  an  EU  wide  system  for  exchanging  data  on  and  monitoring  compliance  with  return 
decisions issued in accordance with provisions respecting Directive 2008/115/EC. The study 
was finalised in April 2016.  

• 

Impact assessment 

No  impact  assessment  was  conducted.  However,  the  proposal  is  based  on  the  results  of  the 
feasibility study referred to above. 

The  study  concluded  that  entering  return  decisions  issued  in  accordance  with  provisions 
respecting Directive 2008/115/EC as alerts in SIS would be technically feasible and result in 
tangible benefits, especially with regard to the visibility of information across Member States 
and streamlining follow-up actions.  

It would support authorities to: 

– 

– 

– 

– 

– 

– 

enforce the decision in case of non-compliance; 

monitor for each decision whether the obligation to return has been complied with; 

verify  whether  a  third-country  national  who  is  found  illegally  on  the  territory  is 
subject to a decision issued by another Member State; 

enforce decisions on behalf of other Member States; 

identify  illegally  staying  third-country  nationals  based  on  information  about 
enforceable decisions; 

collect statistics on complied and non-complied decisions. 

On the other hand, the study concluded that a number of necessary technical and operational 
changes would impact current practices, organisation and infrastructures. The implications of 
introducing  return  decisions  issued  in  accordance  with  provisions  respecting  Directive 
2008/115/EC in SIS include new/amended operational procedures, additional data categories 
in alerts on return and new SIS functions (such as the function to notify the issuing authority 
when  the  period  for  voluntary  departure  has  expired).  The  changes  would  require  the 
establishment  of  adequate  infrastructure  in  Member  States  to  enter  and  manage  alerts  on 
return in SIS and additional storage capacities in the Central SIS. 

A workload analysis revealed that all players concerned (especially border guards and police 
officers and the authorities issuing return decisions in accordance with provisions respecting 
Directive  2008/115/EC)  would  face  additional  workload  resulting  from  having  to  manage 
alerts on return and follow up an increased number of hits. Finally, the study pointed to the 
need for a minimum level of harmonisation across Member States when dealing with persons 
who are already subject to a return decision issued in accordance with provisions respecting 
Directive 2008/115/EC by another Member State. 

22 

Study  on  the  feasibility  and  implications  of  setting  up  within  the  framework  of  the  Schengen 
Information System an EU-wide system for exchanging data on and monitoring compliance with return 
(https://bookshop.europa.eu/en/study-on-the-feasibility-and-implications-of-setting-up-
decisions 
within-the-framework-of-the-schengen-information-system-an-eu-wide-system-for-exchanging-data-
on-and-monitoring-compliance-with-return-decisions-pbDR0116353/)  

 
 
                                                 
• 

Fundamental rights 

This proposal develops and improves an existing system. It widens the scope of application of 
the  current  SIS  by  introducing  a  new  alert  category  for  return  decisions.  Its  impact  on 
fundamental  rights  is,  as  a  result, limited  as  the  solid  functioning  of  the  system  has  already 
been  proven  and  important  and  effective  safeguards  have  already  been  put  in  place. 
Nevertheless,  as  the  proposal  involves  the  processing  of  personal  data,  there  is  a  potential 
impact on an individual's fundamental rights. This has been considered, and safeguards have 
been  put  in  place  in  order  to  respect  the  principles  set  out  in  the  Charter  of  Fundamental 
Rights of the European Union, and in particular Article 8. 

This proposal is supplementary to the proposal for border management which forms, together 
with the proposal for police cooperation and judicial cooperation in criminal matters, the legal 
basis for the establishment, operation and use of SIS. Therefore the safeguards contained in 
the  border  management  proposal  related  to  the  protection  of  fundamental  rights,  and  in 
particular data protection and the rights of the data subject, equally apply to this proposal. 

Furthermore, provisions have  been  put  in  place in  order  to  ensure that return alerts will not 
lead  to  taking  measures  for  the  enforcement  of  return  decisions  issued  in  accordance  with 
provisions respecting Directive 2008/115/EC when the period for voluntary departure is still 
running or when the decision has been suspended or the removal has been postponed (Article 
3(2) and (3)). 

The elements of the return decision issued in accordance with provisions respecting Directive 
2008/115/EC  to  be  entered  in  SIS  are  limited  to  those  that  are  strictly  necessary  to  allow 
competent  authorities  to  identify  the  third-country  national  concerned,  carry  out  return  if 
necessary, and verify that the obligation to return has been complied with (Article 4). 

Data  will  only  be  kept  in  SIS  as  long  as  required  to  achieve  the  purpose  of  return.  As  a 
consequence, it will be required that the issuing Member State deletes the data immediately 
after receipt of the confirmation of return (Article 6), if the decision is no longer valid, if the 
person obtained EU citizenship or the citizenship of a State whose nationals are beneficiaries 
of the right of free movement within the Union or if the person who is the subject of the alert 
can demonstrate that he or she has left the territory of the Member States in compliance with 
the  return  decision  issued  in  accordance  with  provisions  respecting  Directive  2008/115/EC 
(Article 7). 

The  new  provisions  on  SIS  will  make  more  visible  the  situations  where  third-country 
nationals  subject  to  a  return  decision  issued  in  accordance  with  provisions  respecting 
Directive 2008/115/EC by a Member State hold at the same time an authorisation or right to 
stay  granted  by  another  Member  State.  In  such  cases  it  shall  be  mandatory  for  national 
authorities to engage in a consultation procedure. Where necessary the alert on return will also 
be deleted (Article 8).  

4. 

BUDGETARY IMPLICATIONS 

The present proposal widens the scope of application of the current SIS by introducing a new 
alert category for return decisions  issued in accordance with provisions respecting Directive 
2008/115/EC and functions for creating, updating and deleting alerts on return. Furthermore, 
it introduces a new functionality for automatically notifying to the issuing Member States that 
the period for voluntary departure on their alerts has expired. 

Due  to  the complementary  nature  of  this  proposal the  budgetary  implications  are  dealt  with 
separately and in an independent financial statement addressing only the establishment of this 
specific alert category. 

 
 
The financial statement attached to this proposal reflects the changes required for establishing 
this new alert category. The cost-estimate of EUR 3.6 million includes costs for the technical 
upgrade  of  SIS  for  the  purpose  of  return.  The  cost  estimates  concerning  the  overall 
development  of  the  Central  SIS,  the  communication  infrastructure  and  the  upgrades  of  the 
national SIS systems are not included in the Legislative Financial Statement attached to this 
proposal but they are  set out  in  detail in  the Legislative  Financial Statement attached to  the 
Commission  proposal  for  a  Regulation  on  the  establishment,  operation  and  use  of  the 
Schengen  Information  System  (SIS)  in  the  field  of  border  checks  and  the  Commission 
proposal  for  a  Regulation  on  the  establishment,  operation  and  use  of  the  Schengen 
Information  System  (SIS)  in  the  field  of  police  cooperation  and  judicial  cooperation  in 
criminal matters. 

A  re-programming  of  the  remainder  of  the  Smart  Borders  envelope  of  the  Internal  Security 
Fund is planned in order to carry out the upgrades and implement the functionalities foreseen 
in  this  proposal.  The  ISF  Borders  Regulation23  is  the  financial  instrument where  the  budget 
for  the  implementation  of  the  Smart  Borders  package  has  been  included.  Article  5  of  the 
Regulation  provides  that  EUR  791  million  shall  be  implemented  through  a  programme  for 
setting  up  IT  systems  supporting  the  management  of  migration  flows  across  the  external 
border  under  the  conditions  laid  down  in  Article  15.  Out  of  the  above-mentioned  EUR  791 
million, EUR 480 million is reserved for the development of the Entry-Exit System and EUR 
210  million  for  the  development  of  the  European  Travel  Information  and  Authorisation 
System (ETIAS). The remainder will be partly used to cover the costs of the changes foreseen 
in the current proposal. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The review and monitoring provisions included in Articles 53(7) and (8) of the Proposal for a 
Regulation of the European Parliament and of the Council on the establishment, operation and 
use of the Schengen Information System (SIS) in the field of border checks are applicable. 

• 

Detailed explanation of the specific provisions of the proposal 

The proposal aims at setting out the conditions and procedures for the use of SIS for the return 
of  illegally  staying  third-country  nationals  in  respect  of  whom  a  return  decision  has  been 
issued  in  accordance  with  provisions  respecting  Directive  2008/115/EC  by  the  competent 
national authorities. The proposal requires entering and processing data in SIS, in the form of 
alerts, on third-country nationals, subject to a return decision, and exchanging supplementary 
information  on  such  alerts.  The  use  of  SIS  for  return  is  aimed  at  supporting  immigration 
authorities to follow up and enforce the return of third-country nationals who have no right to 
stay  in  the  Member  States,  to  help  to  prevent  and  deter  irregular  migration  and  to  enhance 
information sharing and cooperation between immigration authorities. 

Scope (Article 1) 

To ensure the effective functioning of the system, it is key that all return decisions issued by 
Member  States  in  accordance  with  provisions  respecting  Directive  2008/115/EC  are 
introduced in SIS. This means that Member States should enter alerts on (a) return decisions 
issued  in  application  of  Article  6(1)  of  the  Directive  2008/115  and  (b)  decisions  stating  an 

23 

Regulation  (EU)  No 515/2014  of  the  European  Parliament  and  of  the  Council  of  16 April  2014 
establishing,  as  part  of  the  Internal  Security  Fund,  the  instrument  for  financial  support  for  external 
borders and visa (OJ L 150, 20.5.2014, p. 143). 

 
 
                                                 
obligation  to  return  issued  to  irregular  migrants  subject  to  a  refusal  of  entry  at  a  border 
crossing point or those apprehended in connection with the irregular crossing of the external 
border  and  who  did  not  receive  an  authorisation  to  stay  (Article  2(2)(a)  of  Directive 
2008/115/EC),  as  well  as  (c)  decisions  stating  an  obligation  to  return  issued  as  a  criminal 
sanction (Article 2(2)(b) of Directive 2008/115/EC).  

Entering alerts on return (Article 3) 

Article  3  sets  out  the  purpose  and  rules  for  entering  alerts  on  return  in  SIS  to  allow  the 
competent  authorities  to  verify  that  the  obligation  to  return  has  been  complied  with  and  to 
support the enforcement of return decisions issued in accordance with provisions respecting 
Directive 2008/115/EC. The alert should be without delay entered as soon as the decision has 
been  issued  to  the  illegally  staying  third-country  national  concerned,  in  order  to  allow  the 
verification referred to above. The alert should indicate if a period for voluntary departure is 
still running or if a decision has been suspended or removal has been postponed.  

Where  there  are  no  reasons  to  believe  that  it  would  undermine  the  purpose  of  return 
procedures, voluntary return should be preferred over forced return and a period for voluntary 
departure  should  be  granted  to  the  returnee,  in  accordance  with  Article  7  of  Directive 
2008/115/EC.  The  duration  of  the  period  for  voluntary  departure,  and  any  prolongation 
thereof,  should  be  indicated  in  the  alert  to  allow  public  authorities  to  decide  whether  it  is 
appropriate to take action in the individual case.  

Categories of data (Article 4) 

Article 4 establishes the data elements that can be contained in a return alert which are similar 
to those included in Article 20 of the proposal for border management.  

The data in relation to the period for voluntary departure, whether the return decision issued 
in  accordance  with  provisions  respecting  Directive  2008/115/EC  has  been  suspended  or  the 
enforcement of the decision has been postponed are specific for alerts on return. 

Effective and timely exchange of supplementary information (Article 5) 

Effective  and  timely  cooperation  and  exchange  of  supplementary  information  between 
Member  States  requires  the  set-up  of  single  point  of  contact.  Article  6  provides  that  each 
Member  State  must  designate  an  authority  responsible  for  the  exchange  of  supplementary 
information  on  alerts  entered  on  third-country  nationals  within  the  context  of  return  and 
illegal stay. The provisions of the SIRENE Manual referred to in Article 8 of the proposal for 
a Regulation on the establishment, operation and use of the SIS in the field of border checks 
are applicable to the designated authority.  

In  order  to  meet  the  requirements  laid  down  in  Article  8  of  the  above-mentioned  proposal 
concerning the continuous availability and timing for replying to requests (within maximum 
12 hours), it is necessary that Member States ensure that the authorities competent for taking 
decisions related to the stay of third-country nationals on their territory are closely involved in 
the exchange of supplementary information. 

Confirmation of return (Article 6) 

Article  6  introduces  the  obligation  on  Member  States  to  confirm  the  departure  of  the  third-
country national subject to an alert on return to the Member State (or authority) that entered 
the alert; this applies also when the same Member State is responsible for the issuing and the 
enforcement  of  the  alert.  This  provision  allows  the  authorities  issuing  and  enforcing  return 
decisions  issued  in  accordance  with  provisions  respecting  Directive  2008/115/EC  to  verify 
that the obligation to return has been complied with.  

 
 
This  provision  requires  systematic  checks  at  exit  in  order  to  ensure  that  all  third-country 
nationals  concerned  will  be  reported  as  having  left  the  territory.  The  proposal  amending 
Regulation  No  562/2006  (Schengen  Borders  Code)  aims  at  aligning  the  obligation  to 
systematically check third-country nationals against databases on entry also to exit.  

Non-compliance with an obligation to return (Article 7) 

Article 7 sets out the provisions in cases of non-compliance with the obligation to return. The 
notification  referred  to  in  paragraph  1  will  support  the  Member  States  in  fulfilling  their 
obligations  in  accordance  with  Article  8(1)  of  Directive  2008/115/EC  with  regard  to  third-
country nationals who have not complied with the obligation to return.  

Paragraph  2  sets  out  the  procedures  to  deal  with  situations  where  a  third-country  national 
subject  to  an  alert  on  return  is  identified  and  apprehended  in  another  Member  State.  The 
follow-up procedures are to be carried out in accordance with the EU return acquis and other 
provisions of national and EU legislation applicable to the individual case, which include: 

1)  issuing  a  return  decision  in  accordance  with  provisions  respecting  the  Directive 
2008/115/EC; 

2)  passing  back  the  third-country  national  to  the  issuing  Member  State  under  an  existing 
bilateral agreement in compliance with Article 6(3) of the Directive 2008/115/EC, or 

3)  recognising  the  return  decision  of  the  issuing  Member  State  in  application  of  Directive 
2001/40/EC. 

Consultation procedure (Article 8) 

Article  8  of  this  proposal  sets  out  procedures  necessary  for  preventing  and  solving 
divergences  or  conflicting  decisions  between  Member  States.  Mutual  consultation  of 
competent  national  authorities  can  help  prevent  and  solve  such  conflicting  situations,  while 
taking  account  of  the  interest  of  the  parties  concerned.  To  be  effective,  such  consultation 
should be speedily carried out.  

Retention and deletion of alerts (Articles 6, 8 and 9) 

Paragraph  2  of  Article  6  establishes  that  alerts  on  return  need  to  be  deleted  following  the 
return of the third-country national concerned. This paragraph complements the provisions on 
the  moment  in  which  alerts  related to  entry  bans  should  take  effect  in  SIS  as  established  in 
Article 24(3) of the proposal for a Regulation on the establishment, operation and use of the 
SIS in the field of border checks. Member States should take all necessary measure to ensure 
that there is no time-gap between the moment of departure and the activation of the alert on 
the entry ban in SIS.   

Article  9  includes  further  rules  on  deletion  of  alerts.  In  addition  to  the  situations  covered 
under Article 6 and Article 8, where deletion of alerts takes place following the return of the 
third-country  national  concerned  or  following  a  consultation  procedure,  an  alert  on  return 
should  also  be  deleted  where  the  return  decision  issued  in  accordance  with  provisions 
respecting  Directive  2008/115/EC  has  been  withdrawn  or  annulled.  The  second  part  of 
paragraph  1  covers  the situation  where  the alert  needs  to  be  deleted  due  to  the  fact that  the 
departure of the person was not duly registered.  

In the context of the further improvement of the SIS, the opportunity to keep trace in SIS of 
return  decisions  after  the  return  was  enforced  will  be  explored.  This  information  could  be 
useful if a third country national re-entered the territory of the Member States and is found as 
illegally staying in a different Member State than the one who issued the first return decision.  

Where the return has not been confirmed or where the alert on return has not been deleted due 
to  other  reasons  the  maximum  retention  period  will  be  five  years  in  line  with  the  retention 

 
 
period  for  refusal  of  entry  alerts  (Article  34  of  the  proposal  for  a  Regulation  on  the 
establishment, operation and use of the SIS in the field of border checks). 

Transfer of data to third countries (Article 10) 

Article  10  contains  specific  rules  concerning  transfer  of  data  to  third  countries  under  strict 
conditions.  

Access rights (Article 12) 

In  the  Member  States,  the  authorities  responsible  for  issuing  return  decisions  in  accordance 
with provisions respecting Directive 2008/115/EC may vary significantly. Depending on the 
reason  for  illegal  stay  (e.g.  refusal  of  asylum,  visa  overstay,  expire  of  a  residence  permit), 
several  authorities  may  be  responsible  for  issuing  such  decisions,  including  judicial 
authorities  when  return  is  ordered  as  the  result  of  an  appeal  against  a  refusal  of  an 
authorisation or right to stay, or as a criminal sanction. Such authorities should therefore be 
able to access SIS in order to enter, update, delete and search data. In addition, the authorities 
in charge of the identification of third-country nationals during, border, police and other law 
enforcement checks should have the right to access the data in SIS. 

Accordingly, Article 12 provides for appropriate access to alerts on return to be given to:  

– 

– 

– 

national  authorities  responsible  for  identifying  third-country  nationals  on  the 
territories of the Member States referred to in Article 29(1) (a), (b),  (c) and (d)  of 
Regulation  (EU)  2018/xxx  [border  checks].  The  authorities  responsible  for  border 
checks  need  to  have  access  to  the  data  for  the  purpose  of  identification  of  third-
country nationals who are the subject of a return decision and who exit the territory 
of the Member States. Police and other law enforcement authorities are responsible 
in  accordance  with  national law for the identification and return  of persons staying 
on the national territory. Immigration authorities are responsible for taking decisions 
(including return decisions) on the entry and stay of third-country nationals; 

national  judicial  authorities  (Article  29(2)  of  Regulation  (EU)  2018/xxx  [border 
checks]) should  have access to  the data in  SIS if they are competent in accordance 
with  national  law  for  taking  decisions  on  the  entry  and  stay  of  third-country 
nationals; 

institutional  users  as  referred  to  in  Article  30  to  31  of  Regulation  (EU)  2018/xxx 
[border checks] (Europol and the European Border and Coast Guard Agency) within 
the  context  of  their  competences  in  the  European  Migrant  Smuggling  Centre 
(Europol) and in return-related tasks (European Border and Coast Guard Agency). 

Applicability of the provisions of the SIS Regulation on border management (Article 13) 

Finally, Article 13 provides that the general provisions of SIS as included in the proposal for a 
Regulation  on  the  establishment,  use  and  operation  of  the  SIS  in  the  field  of  border  checks 
apply also to the processing of data entered for the purpose of this proposal, in particular the 
provisions concerning the responsibilities of the Member States and the Agency, the entry and 
processing  of  alerts,  the  conditions  for  access  and  retention  of  alerts,  data  processing,  data 
protection, liability and monitoring and statistics.  

 
 
2016/0407 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the use of the Schengen Information System for the return of illegally staying third-
country nationals  

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 79(2)(c) thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

The  return  of  third-country  nationals  who  do  not  fulfil  or  no  longer  fulfil  the 
conditions  for  entry,  stay  or  residence  in  the  Member  States,  in  full  respect  of 
fundamental  rights  and  in  particular  the  principle  of  non-refoulement,  and  in 
accordance  with  Directive  2008/115/EC  of  the  European  Parliament  and  of  the 
Council, is an essential part of the comprehensive efforts to tackle irregular migration 
and increase the rate of return of irregular migrants. 

It is necessary to increase the effectiveness of the European system to return illegally 
staying  third-country  nationals.  This  is  essential  for  maintaining  public  trust  in  the 
Union  migration  and  asylum  policy  and  providing  support  to  persons  in  need  of 
international protection.  

(3)  Member  States  should  take  all  necessary  measures  to  return  illegally  staying  third-
country  nationals  in  an  effective  and  proportionate  manner,  in  accordance  with  the 
provisions of Directive 2008/115/EC. 

(4) 

(5) 

(6) 

24 

25 

A  Union-wide  system  for  sharing  information  between  Member  States  on  return 
decisions issued in respect of third-country nationals staying illegally on the territory 
of the Member States in accordance with provisions respecting Directive 2008/115/EC 
and for monitoring whether third-country nationals subject to those decisions have left 
the territory of the Member States should be established.  
Regulation  (EU)  2018/xxx  [border  checks]24  and  Regulation  (EU)  2018/xxx  [police 
and  judicial  cooperation]25  lay  down  the  conditions  for  the  establishment,  operation 
and use of the Schengen Information System (SIS).  

SIS  alerts  on  return  and  the  exchange  of  supplementary  information  on  these  alerts 
should support competent authorities to take the necessary measures to enforce return 

Regulation (EU) 2018/… on the establishment, use and operation of the Schengen Information System 
for the purposes of border checks (OJ L …). 
Regulation (EU) 2018/… on the establishment, use and operation of the Schengen Information System 
for the purposes of police and judicial cooperation in criminal matters (OJ L…). 

 
 
                                                 
(7) 

(8) 

(9) 

decisions issued in accordance with provisions respecting Directive 2008/115/EC. SIS 
should  contribute  to  the  identification  and  the  information  sharing  between  Member 
States on third-country nationals who are the subject of such return decision, who have 
absconded and are apprehended in another Member State. These measures should help 
prevent  and  deter  irregular  migration  and  enhance  cooperation  between  Member 
States' authorities.  

To ensure the effectiveness of return and increase the added value of alerts on return, 
Member States should enter alerts in SIS in relation to all return decisions they issue to 
illegally  staying  third-country  nationals  in  accordance  with  provisions  respecting 
Directive 2008/115/EC. For this purpose, Member States should enter an alert in SIS 
also  when  decisions  imposing  or  stating  an  obligation  to  return  are  issued  in  the 
situations described in Article 2(2) of that Directive, notably to third-country nationals 
who are subject to a refusal of entry in accordance with the Schengen Borders Code, 
or who are apprehended or intercepted by the competent authorities in connection with 
the irregular crossing by land, sea or air of the external border of a Member State and 
who have not subsequently obtained an authorisation or a right to stay in that Member 
State,  and  to  third-country  nationals  who  are  subject  to  return  as  a  criminal  law 
sanction or as a consequence of a criminal law sanction, according to national law, or 
who are the subject of extradition procedures. 

This  Regulation  should  set  out  common  rules  for  entering  alerts  related  to  return  in 
SIS  as  soon  as  the  underlying  return  decisions  in  accordance  with  provisions 
respecting  Directive  2008/115/EC  are  issued.  The  alert  should  indicate  whether  a 
period  for  voluntary  departure  has  been  granted  to  the  third-country  national 
concerned,  including  whether  such  period  has  been  extended  taking  into  account  the 
specific  circumstances  of  the  individual  case,  and  whether  the  decision  has  been 
suspended or the removal has been postponed.  

It is necessary to specify the categories of data that can be entered in SIS in respect of 
third-country nationals who are the subject of a return  decision issued in  accordance 
with  provisions  respecting  Directive  2008/115/EC.  Alerts  on  return  should  contain 
only  those  data  that  are  required  in  order  to  identify  the  data  subjects,  to  allow  the 
competent  authorities  to  take  informed  decisions  without  losing  time  and  to  ensure, 
where necessary, their protection in relation to persons who are armed, violent, have 
escaped or are involved in an activity as referred to in Articles 1, 2, 3 and 4 of Council 
Framework  Decision  2002/475/JHA  on  combating  terrorism26.  Furthermore,  in  order 
to facilitate identification and detect multiple identities, the alert should include also a 
reference  to  the  personal  identification  document  and  a  copy  of  such  document,  if 
available.   

(10)  Each  Member  State  should  designate  an  authority  responsible  for  the  exchange  of 
supplementary information in connection to alerts on return in order to ensure efficient 
and swift cooperation among the Member States. 

(11)  Procedures should be established to enable Member States to verify that the obligation 
to  return  has  been  complied  with  and  to  confirm  the  departure  of  the  third-country 
national  concerned  to  the  Member  State  that  issued  the  alert  on  return.  This 
information  should contribute to a more comprehensive follow-up of the compliance 
with return decisions in accordance with provisions respecting Directive 2008/115/EC.  

26 

Council  Framework  Decision  2002/475/JHA  of  13  June  2002  on  combating  terrorism  (OJ  L  164, 
22.6.2002, p. 3). 

 
 
                                                 
(12)  Alerts on return should be deleted as soon as the Member State or competent authority 
that  issued  the  return  decision  in  accordance  with  provisions  respecting  Directive 
2008/115/EC  has  been  informed  that  the  return  has  taken  place.  Where  a  return 
decision  is  accompanied  by  an  entry  ban,  the  latter  should  be  entered  in  SIS  in 
accordance with Article 24(3) of Regulation (EU) 2018/xxx [border checks]. In such 
cases  Member  States  should  take  all  necessary  measures  to  ensure  that  no  time-gap 
exist  between  the  moment  in  which  the  third-country  national  leaves  the  Schengen 
area and the activation of the alert on the entry ban in SIS. 

(13)  SIS  should  contain  a  mechanism  for  notifying  the  Member  States  about  the  non-
compliance  of  third-country  nationals  with  an  obligation  to  return  within  a  given 
period  of  voluntary  departure.  The  mechanism  should  support  the  Member  States  in 
fulfilling  their  obligations  in  accordance  with  Article  8(1)  of  Directive  2008/115/EC 
with  regard  to  third-country  nationals  who  have  not  complied  with  an  obligation  to 
return. 

(14)  This  Regulation  should  establish  mandatory  rules  for  the  consultation  between 
national authorities to solve possible conflicting instructions. Consultations should be 
carried  out  where  third-country  nationals  who  hold,  or  are  being  granted,  a  valid 
residence permit or other authorisation or right to stay by a Member State are subject 
to  an  alert  on  return  issued  by  another  Member  State,  or  cases  where  conflicting 
situations may arise at entry in the territories of the Member States. 

(15)  Alerts should be kept in SIS only for the time required to fulfil the purposes for which 
they were entered. In accordance with Article 34 of Regulation (EU) 2018/xxx [border 
checks] the review period for alerts on third-country nationals is five years.  

(16)  Data  processed  in  SIS  or  transferred  through  the  exchange  of  supplementary 
information may provide to the enforcing Member State information that is useful for 
the  rapid  identification  and  re-documentation  of  illegally  staying  third-country 
nationals,  in  view  of  their  return  to  a  third  country.  In  individual  cases,  it  should  be 
possible  to  share  such  data  and  information  with  a  third  country  for  this  purpose. 
Sharing of any personal data should be subject to clear conditions, should be carried 
out in accordance with the provisions of Regulation (EU) 2016/679 and be conducted 
with the agreement of the Member State that issued the alert.  

(17)  National  authorities  responsible  for  return  may  differ  significantly  among  Member 
States,  and  such  authorities  may  also  vary  within  a  Member  State  depending  on  the 
reasons  for  illegal  stay.  Judicial  authorities  may  also  issue  return  decisions  in 
accordance with provisions respecting Directive 2008/115/EC, for instance as result of 
appeals against a refusal of granting an authorisation or right to stay, or as a criminal 
sanction. All national authorities in charge of issuing and enforcing return decisions in 
accordance  with  Directive  2008/115/EC  should  be  entitled  to  access  SIS  in  order  to 
enter, update, delete and search alerts on return. 

(18)  Access to alerts on return should be granted to national authorities referred to in points 
(a), (b),(c) and (d) of Article 29(1) and in Article 29(2) of Regulation (EU) 2018/xxx 
[border checks] for the purpose of identification and return of third-country nationals. 

(19)  Regulation  (EU)  2016/794  on  the  European  Union  Agency  for  Law  Enforcement 
cooperation  (Europol  Regulation)  provides  that  Europol  supports  and  strengthens 
actions  carried  out  by  the  competent  authorities  of  Member  States  and  their 
cooperation in combating terrorism and serious crime and provides analysis and threat 
assessments. In order to facilitate Europol in carrying out its tasks, in particular within 

 
 
the European Migrant Smuggling Centre, it is appropriate to allow Europol access to 
the alert category defined in this Regulation.  

(20)  Regulation  (EU)  2016/1624  provides  that  the  host  Member  State  shall  authorise  the 
members of the European Border and Coast Guard teams or teams of staff involved in 
return-related  tasks,  deployed  by  the  European  Border  and  Coast  Gard  Agency,  to 
consult  European  databases,  where  this  consultation  is  necessary  for  fulfilling 
operational  aims  specified  in  the  operational  plan  on  border  checks,  border 
surveillance and return. The objective of the deployment of the European Border and 
Coast  Guard  teams,  teams  of  staff  involved  in  return-related  tasks  and  the  migration 
management support teams is to provide for technical and operational reinforcement to 
the  requesting  Member  States,  especially  to  those  facing  disproportionate  migratory 
challenges.  Fulfilling  the  tasks  assigned  to  the  European  Border  and  Coast  Guard 
teams, teams of staff involved in return-related tasks and to the migration management 
support  teams,  necessitates  access  to  alerts  on  return  SIS  via  a  technical  interface  of 
European Border and Coast Gard Agency connecting to Central SIS.  

(21)  The provisions on responsibilities of the Member States and the European Agency on 
the operational management of large-scale IT systems in the area of freedom, security 
and justice, the entry and processing of alerts, the conditions to access and retention of 
alerts,  data  processing,  data  protection,  liability  and  monitoring  and  statistics  as 
included  in  Regulation  (EU)  2018/xxx  [Border  checks]  should  also  apply  to  data 
entered and processed in SIS in accordance with this Regulation.  

(22) 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark 
annexed to the Treaty on European Union and to the Treaty on the Functioning of the 
European Union, Denmark is not taking part in the adoption of this Regulation and is 
not bound by it or subject to its application. Given that this Regulation builds, to  the 
extent  that  it  applies  to  third-country  nationals  who  do  not  fulfil  or  who  no  longer 
fulfil  the  conditions  of  entry  in  accordance  with  Regulation  (EU)  2016/399  of  the 
European Parliament and of the Council27, upon the Schengen acquis, Denmark shall, 
in  accordance  with  Article  4  of  that  Protocol,  decide  within  a  period  of  six  months 
after  the  Council  has  decided  on  this  Regulation  whether  it  will  implement  it  in  its 
national law. 

(23)  To  the  extent  that  it  applies  to  third-country  nationals  who  do  not  fulfil  or  who  no 
longer fulfil the conditions of entry in accordance with Regulation (EU) 2016/399, this 
Regulation  constitutes  a  development  of  the  provisions  of  the  Schengen  acquis  in 
which  the  United  Kingdom  does  not  take  part,  in  accordance  with  Council  Decision 
2000/365/EC28; the United Kingdom is therefore not taking part in the adoption of this 
Regulation  and  is  not  bound  by  it  or  subject  to  its  application.  Moreover,  in 
accordance  with  Articles  1  and  2  of  Protocol  No  21  on  the  position  of  the  United 
Kingdom and Ireland in respect of the area of freedom, security and justice, annexed 
to the Treaty on European Union and to the Treaty on the Functioning of the European 
Union, and without prejudice to Article 4 of that Protocol, the United Kingdom is not 
taking  part  in  the  adoption  of  this  Regulation  and  is  not  bound  by  or  subject  to  its 
application. 

27 

28 

Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union 
Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 
77, 23.3.2016, p. 1). 
Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great 
Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 
1.6.2000, p. 43). 

 
 
                                                 
(24)  To  the  extent  that  it  applies  to  third-country  nationals  who  do  not  fulfil  or  who  no 
longer fulfil the conditions of entry in accordance with Regulation (EU) 2016/399, this 
Regulation  constitutes  a  development  of  the  provisions  of  the  Schengen  acquis  in 
which Ireland does not take part, in accordance with Council Decision 2002/192/EC29; 
Ireland is therefore not taking part in the adoption of this Regulation and is not bound 
by  it  or  subject  to  its  application.  Moreover,  in  accordance  with  Articles  1  and  2  of 
Protocol  No  21  on  the  position  of  the  United  Kingdom  and  Ireland in  respect  of  the 
area of freedom, security and justice, annexed to the Treaty on European Union and to 
the Treaty on the Functioning of the European Union, and without prejudice to Article 
4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is 
not bound by or subject to its application. 

(25)  As  regards  Iceland  and  Norway,  this  Regulation  constitutes,  to  the  extent  that  it 
applies  to  third-country  nationals  who  do  not  fulfil  or  who  no  longer  fulfil  the 
conditions  of  entry  in  accordance  with  Regulation  (EU)  2016/399,  a  development  of 
the provisions of the Schengen acquis within the meaning of the Agreement concluded 
by the Council of the European Union and the Republic of Iceland and the Kingdom 
of Norway concerning the latters' association with the implementation, application and 
development of the Schengen acquis30, which fall within the area referred to in Article 
1, point C of Council Decision 1999/437/EC31. 

(26)  As  regards  Switzerland,  this  Regulation  constitutes,  to  the  extent  that  it  applies  to 
third-country nationals who do not fulfil or who no longer fulfil the conditions of entry 
in accordance with Regulation (EU) 2016/399, a development of the provisions of the 
Schengen acquis within the meaning of the Agreement between the European Union, 
the European Community and the Swiss Confederation on the Swiss Confederation's 
association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis32,  which  fall  within  the  area  referred  to  in  Article  1,  point  C  of  Decision 
1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC33. 

(27)  As  regards  Liechtenstein,  this  Regulation  constitutes,  to  the  extent  that  it  applies  to 
third-country nationals who do not fulfil or who no longer fulfil the conditions of entry 
in accordance with Regulation (EU) 2016/399, a development of the provisions of the 
Schengen acquis within the meaning of the Protocol between the European Union, the 
European Community, the  Swiss Confederation and the Principality of Liechtenstein 
on  the  accession  of  the  Principality  of  Liechtenstein  to  the  Agreement  between  the 
European Union, the European Community and the Swiss Confederation on the Swiss 
Confederation's association with the implementation, application and development of 
the Schengen acquis34, which fall within the area referred to in Article 1, point C of 

29 

30 
31 

32 
33 

34 

Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of 
the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20). 
OJ L 176, 10.7.1999, p. 36. 
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 (OJ L 176, 10.7.1999, p. 31). 
OJ L 53, 27.2.2008, p. 52. 
Council  Decision  2008/146/EC  of  28  January  2008  on  the  conclusion,  on  behalf  of  the  European 
Community, of the Agreement between the European Union, the European Community and the Swiss 
Confederation  on  the  Swiss  Confederation's  association  with  the  implementation,  application  and 
development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1). 
OJ L 160, 18.6.2011, p. 21. 

 
 
                                                 
Decision  1999/437/EC  read  in  conjunction  with  Article  3  of  Council  Decision 
2011/350/EU35. 

(28)  The  European  Data  Protection  Supervisor  was  consulted  in  accordance  with  Article 

28(2) of Regulation (EC) No 45/2001 and delivered an opinion on […], 

HAVE ADOPTED THIS REGULATION: 

Article 1  
Subject matter and scope 

This Regulation lays down the conditions and procedures for the entry and processing in the 
Schengen  Information  System  (SIS),  as  established  by  Regulation  (EU)  2018/xxx  [border 
checks], of alerts in respect of third-country nationals subject to return decisions issued by the 
Member States in accordance with procedures respecting Directive 2008/115/EC, as well as 
for exchanging supplementary information on such alerts.  

For the purposes of this Regulation, the following definitions shall apply: 

Article 2  
Definitions 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

‘return’ means return as defined in Article 3(3) of Directive 2008/115/EC; 

 ‘third-country  national’  means  third-country  nationals  as  defined  in  Article 
3(1) of Directive 2008/115/EC; 

 ‘return  decision’  means  a  return  decision  as  defined  in  Article  3(4)  of 
Directive 2008/115/EC; 

‘return  decision  issued  in  accordance  with  provisions  respecting  Directive 
2008/115/EC’ means a return decision within the meaning of point (c) and an 
administrative  or  judicial  decision  or  act,  stating  or  declaring  the  stay  of  a 
third-country  national  to  be  illegal  and  imposing  or  stating  an  obligation  to 
return, issued under the conditions of Article 2(2) of Directive 2008/115/EC; 

‘voluntary  departure’  means  voluntary  departure  as  defined  in  Article  4(8)  of 
Directive 2008/115/EC; 

‘CS-SIS’ means the technical support function of the Central SIS as referred to 
in Article 4(1)(a) of Regulation (EU) 2018/xxx [border checks]. 

Article 3 
Entry of data in SIS 

Data on third-country nationals subject to a return decision issued in accordance with 
provisions respecting Directive 2008/115/EC shall be entered in SIS for the purpose 
of verifying that the obligation to return has been complied with and for supporting 
the enforcement of the decision. An alert shall be entered in SIS without delay when 
the  return  decision  is  issued  in  accordance  with  provisions  respecting  Directive 
2008/115/EC.  

Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, 
of the Protocol between the European Union, the European Community, the Swiss Confederation and 
the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement 
between  the  European  Union,  the  European  Community  and  the  Swiss  Confederation  on  the  Swiss 
Confederation's  association  with  the  implementation,  application  and  development  of  the  Schengen 
acquis,  relating  to  the  abolition  of  checks  at  internal  borders  and  movement  of  persons  (OJ  L  160, 
18.6.2011, p. 19). 

1. 

35 

 
 
                                                 
2. 

3. 

The  period  for  voluntary  departure  granted  to  third-country  nationals  subject  to  a 
in  accordance  with  provisions  respecting  Directive 
return  decision 
2008/115/EC shall be immediately recorded in the alert.  

issued 

The  suspension  and  the  postponement  of  the  enforcement  of  the  return  decision 
issued  in  accordance  with  provisions  respecting  Directive  2008/115/EC  shall  be 
immediately recorded in the alert. 

Article 4 
Data categories 

Data  entered  in  SIS  in  accordance  with  Article  3  of  this  Regulation  shall  contain  only  the 
following: 

(a) 

surname(s);  

(b) 

forename(s);  

(c)  name(s) at birth;  

(d)  previously used names and aliases; 

(e) 

(f) 

any specific, objective, physical characteristics not subject to change; 

place of birth; 

(g)  date of birth; 

(h) 

sex; 

(i) 

nationality / nationalities; 

(j)  whether the person concerned is armed, violent, has escaped or is involved in 
an  activity  as  referred  to  in  Articles  1,  2,  3  and  4  of  Council  Framework 
Decision 2002/475/JHA on combating terrorism; 

(k) 

reason for the alert; 

(l) 

authority issuing the alert; 

(m)  a reference to the decision giving rise to the alert; 

(n) 

(o) 

(p) 

(q) 

(r) 

(s) 

(t) 

action to be taken; 

link(s) to other alerts issued in SIS; 

the category of the person’s identification document; 

the country of issue of the person’s identification document; 

the number(s) of the person’s identification document; 

the date of issue of the person’s identification document; 

photographs and facial images; 

(u)  dactylographic data; 

(v) 

a colour copy of the identity document; 

(w)  period for voluntary departure; 

(x)  whether  the  return  decision  issued  in  accordance  with  provisions  respecting 
Directive 2008/115/EC has been suspended or the enforcement of the decision 
has been postponed. 

 
 
An alert may not be entered without the data referred to in (a),(g),(k),(m),(n) and (w). When 
available, all other data listed above shall also be entered. 

Article 5 
Authority responsible for the exchange of supplementary information 

Each  Member  State  shall  designate  an  authority  responsible  for  the  exchange  of 
supplementary information on third-country nationals subject to return in accordance with the 
provisions  of  the  SIRENE  Manual  laid  down  in  Article  8  of  Regulation  (EU)  2018/xxx 
[Border checks].  

Article 6  
Confirmation of return 

1. 

Where a third-country national who is the subject of an alert on return is identified 
when exiting through the external borders of a Member State, the Member State that 
identified  the  third-country  national  concerned  shall  communicate  the  following 
information  to  the  issuing  Member  State  through  the  exchange  of  supplementary 
information: 

(a) 

(b) 

the fact that the third-country national has been identified; 

the location and time of the check; 

(c)  whether the third-country national has left the territory of the Member States; 

(d)  whether the return was a voluntary compliance with an obligation to return or 

was enforced; 

(e) 

the third-country of destination. 

Where  a  third-country  national,  who  is  the  subject  of  an  alert  on  return,  exits  through  the 
external  border  of  the  issuing  Member  State,  the  confirmation  of  return  shall  be 
communicated to the competent authority in accordance with national law. 

2. 

3. 

1. 

2. 

36 

The issuing Member State shall immediately delete the alert following the receipt of 
the confirmation of return. 

The  Member  States  shall  provide  on  a  monthly  basis  statistics  to  the  European 
Agency  for  the  operational  management  of  large-scale  information  systems  in  the 
area of freedom, security and justice established by Regulation (EU) No 1077/2011 
of  the  European  Parliament  and  of  the  Council36  (‘the  Agency’)  on  the  number  of 
confirmed  returns,  on  whether  the  return  was  carried  out  in  voluntary  compliance 
with  an  obligation  to  return  or  was  enforced,  and  on  the  third  countries  of 
destination. Those statistics shall not contain personal data. 

Article 7  
Non-compliance with return decisions issued in accordance with provisions respecting 
Directive 2008/115/EC 

CS-SIS  shall  notify  the  Member  States  about  their  alerts  on  return  for  which  the 
period for voluntary departure has expired.  

Where a third-country national who is subject of an alert on return is identified by a 
competent  authority  and  it  has  been  ascertained  by  the  same  authority  that  the 
obligation  to  return  has  not  been  complied  with,  that  authority  shall  immediately 

Regulation  (EU)  No 1077/2011  of  the  European  Parliament  and  of  the  Council  of  25 October  2011 
establishing a European Agency for the operational management of large-scale IT systems in the area of 
freedom, security and justice (OJ L 286, 1.11.2011, p.1). 

 
 
                                                 
1. 

2. 

3. 

4. 

5. 

1. 

2. 

consult  the  issuing  Member  State  through  the  exchange  of  supplementary 
information in order to determine without delay the action to be taken.  

Article 8 
Consultation procedure  

Where a Member State considers granting a residence permit or other authorisation 
offering  a  right to  stay to a third-country national who is  the subject of an  alert on 
return  entered  by  another  Member  State,  the  former  shall  first  consult,  through  the 
exchange of supplementary information, the Member State that entered the alert. The 
Member  State  that  entered  the  alert  shall  reply  within  seven  days.  If  the  Member 
State considering granting a residence permit or other authorisation offering a right 
to stay decides to grant it, the alert on return shall be deleted.  

Where  a  Member  State  considers  entering  an  alert  for  return  concerning  a  third-
country national who is the holder of a valid residence permit or other authorisation 
offering a right to stay issued by another Member State, it shall inform through the 
exchange  of supplementary information  the  Member State that issued the permit in 
order  to  allow  that  Member  State  to  decide  whether  there  are  reasons  justifying  its 
withdrawal. The  Member  State  that issued the  permit  shall provide  a  definite reply 
within seven days. 

In the event of a hit on an alert on return concerning a third-country national who is 
the holder of a valid residence permit or other authorisation offering a right to stay, 
the  Member  State  that  identified  the  third-country  national  concerned  shall  consult 
immediately  the  involved  Member  States,  through  the  exchange  of  supplementary 
information, in order to determine the action to be taken.  

Where a third-country national who is the subject of an alert on return is identified 
when  entering  through  the  external  borders,  the  Member  State  that  identified  the 
third-country national concerned shall immediately inform, through the exchange of 
supplementary information, the issuing Member State in order to delete the alert.  

Member  States  shall  provide  on  an  annual  basis  statistics  to  the  Agency  about  the 
consultations carried out in accordance with paragraphs 1, 2, 3 and 4. 

Article 9 
Deletion of alerts 

Without  prejudice  to  Articles  6  and  8,  alerts  on  return  shall  be  deleted  when  the 
decision  upon  which  the  alert  was  based  has  been  withdrawn  or  annulled  by  the 
competent  authority.  Alerts  on  return  shall  also  be  deleted  when  the  third-country 
national  concerned  can  demonstrate  that  they  have  left  the territory  of  the  Member 
States  in  compliance  with  a  return  decision  issued  in  accordance  with  provisions 
respecting Directive 2008/115/EC.  

Alerts  on  return  entered  in  respect  of  a  person  who  has  acquired  citizenship  of  a 
Member  State  or  of  any  State  whose  nationals are  beneficiaries  of  the right  of  free 
movement  within  the  Union  shall  be  deleted  as  soon  as  the  issuing  Member  State 
becomes aware, or is informed pursuant to Article 39 of Regulation (EU) 2018/xxx 
[border checks], that the person in question has acquired such citizenship. 

Article 10 
Transfer of personal data to third countries for the purpose of return 

Data processed in SIS and the related supplementary information pursuant to this Regulation 
may  be  transferred  or  made  available  to  a  third-country  in  accordance  with  Chapter  V  of 

 
 
Regulation  (EU)  2016/679  with  the  authorisation  of  the  issuing  Member  State,  only  for  the 
purpose of identification of and issuance of an identification or travel document to an illegally 
staying-third country national in view of return. 

Article 11 
Statistics 

Without  prejudice  to  the  provisions  on  statistics  in  Article 54  of  Regulation  (EU)  2018/xxx 
[Border checks], the Agency shall produce daily, monthly and annual statistics, both in total 
number  and  per  each  Member  State  on  the  number  of  alerts  on  return  entered  in  SIS, 
including  on  the  data  referred  to  in  Article  4(x)  of  this  Regulation,  on  the  notifications 
referred to in Article 7(1) of this Regulation and the number of alerts on return deleted due to 
compliance  with  an  obligation  to  return.  The  Agency  shall  produce  monthly  and  annual 
statistics about the data provided by the Member States in accordance with Article 6(3) and 
Article 8(5) of this Regulation. Those statistics shall not contain personal data. 

Article 12 
Right to access data in SIS 

1. 

2. 

3. 

Access to data entered in SIS and the right to search such data shall be reserved to 
the national authorities referred to in points (a), (b), (c) and (d) of Article 29(1) and 
in  Article  29  (2)  of  Regulation  (EU)  2018/  xxx  [Border  checks]  for  the  purpose  of 
identification and return of third-country nationals.  

Europol shall have within their mandate the right to access and search data entered in 
SIS  for  the  purpose  of  supporting  and  strengthening  action  by  the  competent 
authorities  of  the  Member  States  and  their  mutual  cooperation  in  preventing  and 
combating  migrant  smuggling  and  facilitation  of  irregular  migration  in  accordance 
with  the  conditions  laid  down  in  Article  30  of  Regulation  (EU)  2018/  xxx  [Border 
checks]. 

Members of the European Border and Coast Guard teams or teams of staff involved 
in return-related tasks as well as the members of the migration management support 
teams shall have within their mandate the right to access and search data entered in 
SIS  for  the  purpose  of  carrying  out  border  checks,  border  surveillance  and  return 
operations via the technical interface set up and maintained by the European Border 
and  Coast  Guard  Agency  as  referred  to  and  in  accordance  with  the  conditions  laid 
down in Articles 31 and Article 32(2) of Regulation (EU) 2018/ xxx [Border checks]. 

Article 13 
Applicability of the provisions of Regulation (EU) 2018/xxx [Border checks] 

As far as not established in this Regulation, the provisions on responsibilities of the Member 
States  and  the  Agency,  the  entry  and  processing  of  alerts,  the  conditions  to  access  and 
retention of alerts, data processing, data protection, liability and monitoring and statistics laid 
down in Articles 6 to 19, Article 20(3)-(4) as well as in Articles 21, 22, 28, 29(4) and 33 to 54 
of  Regulation  (EU)  2018/  xxx  [Border  checks] shall  apply  to  data  entered  and  processed  in 
SIS in accordance with this Regulation.  

Article 14 
Entry into force  

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

 
 
It  shall  apply  from  the  date  fixed  by  the  Commission  in  accordance  with  Article  58(2)  of 
Regulation (EU) 2018/xxx [border checks]. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

 
 
LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1.  Title of the proposal/initiative  

1.2.  Policy area(s) concerned in the ABM/ABB structure 

1.3.  Nature of the proposal/initiative  

1.4.  Objective(s)  

1.5.  Grounds for the proposal/initiative  

1.6.  Duration and financial impact  

1.7.  Management mode(s) planned  

2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

2.2.  Management and control system  

2.3.  Measures to prevent fraud and irregularities  

3. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

3.1.  Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget 
line(s) affected  

3.2.  Estimated impact on expenditure  

3.2.1. Summary of estimated impact on expenditure  

3.2.2. Estimated impact on operational appropriations  

3.2.3. Estimated impact on appropriations of an administrative nature 

3.2.4. Compatibility with the current multiannual financial framework 

3.2.5. Third-party contributions  

3.3.  Estimated impact on revenue

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
LEGISLATIVE FINANCIAL STATEMENT 

1. 

FRAMEWORK OF THE PROPOSAL/INITIATIVE  

1.1. 

Title of the proposal/initiative  

Proposal for a Regulation of the European Parliament and of the Council on the use 
of the Schengen Information System for the return of illegally staying third-country 
nationals  
Policy area(s) concerned in the ABM/ABB structure37  

1.2. 

Policy area: Migration and Home Affairs (Title 18) 

1.3. 

Nature of the proposal/initiative  

 The proposal/initiative relates to a new action  

  The  proposal/initiative 
project/preparatory action38  

relates 

to  a  new  action 

following  a  pilot 

 The proposal/initiative relates to the extension of an existing action  

 The proposal/initiative relates to an action redirected towards a new action  

1.4. 

Objective(s) 

1.4.1.  The  Commission's  multiannual 

strategic  objective(s) 

targeted  by 

the 

proposal/initiative  

Objective – Towards a new policy on migration 

The  necessity  to  review  the  legal  basis  of  SIS  in  order  to  include  return  decisions 
issued in accordance with Directive 2008/115/EC and address the ongoing migration 
and  refugee  crisis  has  been  emphasised  by  the  Commission  on  a  number  of 
occasions.  For  example,  in  the  EU  Action  Plan  on  Return39  and  in  the 
Communication  on  Stronger  and  Smarter  Information  Systems  for  Borders  and 
Security40  which  implement  the  commitments  of  the  European  Agenda  on 
Migration41, the Commission identified the need to better exploit the large-scale IT 
systems for the purpose of building a more effective return system.  

One  of  the  incentives  for  irregular  migrants  is  the  knowledge  that  the  EU's  return 
system,  meant  to  return  irregular  migrants  or  those  whose  asylum  applications  are 
refused,  works  imperfectly.    In  its  Communication  on  EU  Return  Policy  42  the 
Commission concluded that the potential of SIS in the field of return can be further 
enhanced.  The  present  proposal  for  a  Regulation  intends  to  address  this  issue  and 
improve  the  consistency  between  the  return  policy  and  SIS.  It  aims  to  set  out  the 
conditions and procedures for the use of SIS for the return of illegally staying third-
country  nationals  in  respect  of  whom  a  return  decision  has  been  issued  by  the 
competent national authorities in accordance with Directive 2008/115/EC. 

37 
38 
39 
40 
41 
42 

ABM: activity-based management; ABB: activity-based budgeting. 
As referred to in Article 54(2)(a) or (b) of the Financial Regulation. 
COM(2015) 453 final. 
COM(2016) 205 final. 
COM(2015) 240 final. 
COM(2014) 199 final. 

 
 
                                                 
On  the  basis  of  a  study,  launched  with  the  purpose  to  examine  the  feasibility  and 
technical  and  operational  implications  of  including  return  decisions  issued  in 
accordance  with  Directive  2008/115/EC  in  SIS,  and  fully  in  line  with  the 
Commission's  objectives  stated  in  the  above-mentioned  communications  and  the 
Strategic Plan 2016-2020 of DG Migration and Home Affairs43, this proposal aims to 
extend  the  use  of  SIS  and,  thereby,  set  up  within  the  context  of  SIS  an  EU  wide 
system  for  exchanging  data  on  and  monitoring  compliance  with  return decisions;  a 
change  that  will  significantly  reinforce  the  sharing  of  information  about  return 
decisions  issued  by  Member  States  in  accordance  with  the  provisions  of  Directive 
2008/115/EC.44 

1.4.2. 

Specific objective(s) and ABM/ABB activity(ies) concerned  

Specific objective  

DG Migration and Home Affairs Strategic Plan 2016 – 2017 and Management Plan 
2017  

Specific objective No 1.1: Reduce incentives for irregular migration (Effective return 
policies) 

ABM/ABB activity(ies) concerned  

Chapter 18 02 – Internal security 

43 
44 

Ares(2016)2231546 – 12/05/2016. 
Directive  2008/115/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  2008  on 
common  standards  and  procedures  in  Member  States  for  returning  illegally  staying  third-country 
nationals (OJ L 348,24.12.2008, p. 98). 

 
 
                                                 
1.4.3.  Expected result(s) and impact 

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted. 

Entering return decisions issued in accordance with Directive 2008/115/EC as alerts 
in  SIS  will  result  in  tangible  benefits,  especially  with  regards  to  the  visibility  of 
information across Member States and streamlining follow-up actions. 

The proposal will support the competent national authorities in their efforts to: 

1.  monitor  whether  the  obligation  to  return  has  been  complied  with  in  relation  to 
every return decision issued in accordance with Directive 2008/115/EC; 

2. enforce the decision in case of non-compliance; 

3.  verify  whether  a  third-country  national  who  is  found  illegally  on  the  territory  is 
subject of a return decision issued by another Member State; 

4. enforce decisions on behalf of other Member States; 

5.  identify  illegally  staying  third-country  nationals  based  on  information  about 
enforceable decisions; 

6. collect statistics on complied with and non-complied with return decisions. 

This proposal will have a positive impact upon the work of end-users. Field officers 
and  issuing  authorities  will  have  better  information  at  their  disposal  and  this  will 
enable them to take the most appropriate action in a timely manner. Essentially, the 
proposal for a Regulation provides the Member States' authorities with an additional 
tool  for  meeting  their  obligation  to  take  all  necessary  measures  to  ensure  the 
enforcement of return decisions issued in accordance with Directive 2008/115/EC in 
an effective manner. 

A  number  of  technical  and  operational  changes  will  have  an  impact  upon  current 
practices,  organisation  and  infrastructure.  The  primary  implications  of  introducing 
return  decisions  issued  in  accordance  with  Directive  2008/115/EC  in  SIS  include 
new/amended  operational  procedures,  additional  data  categories  in  alerts  on  return 
and  new  SIS  functions  (e.g.  the  function  to  notify  the  issuing  authority  when  the 
period of voluntary departure has expired). These changes require the establishment 
of adequate infrastructures in Member States to enter and manage alerts on return in 
SIS and additional storage capacity in the Central SIS. 

A  workload  analysis  has  revealed  that  all  stakeholders  concerned  (and,  more 
specifically,  border  guards,  police  officers  and  the  authorities  issuing  return 
decisions) will face additional workloads resulting from having to manage alerts on 
return and follow up an increased number of hits.  

There  is  also  a  need  for  a  minimum  level  of  harmonisation  across  Member  States 
when  dealing  with  persons  who  are  already  subject  to  a  return  decision  issued  by 
another Member State in accordance with Directive 2008/115/EC.  

Finally, as the proposal involves the processing of personal data, there is a potential 
impact upon individual's fundamental rights. However, this impact has been borne in 
mind  during  the  drafting  process  and  the  necessary  safeguards  are  put  in  place  in 
order  to  respect  the  principles  set  out  in  the  Charter  of  Fundamental  Rights  of  the 
EU, particularly, Article 8. 

1.4.4. 

Indicators of results and impact  

Specify the indicators for monitoring implementation of the proposal/initiative. 

 
 
During the upgrading of the system 

After  the  approval  of  the  draft  proposal  and  the  adoption  of  the  technical 
specifications  and  implementing  provisions,  SIS  will  be  upgraded  in  order  to 
implement the proposed changes.. eu-LISA will coordinate the project management 
of upgrading the system. The Agency will establish a project management structure 
and  provide  a  detailed  timeline  with  milestones  for  implementing  the  proposed 
changes which will allow the Commission to closely monitor the implementation of 
the proposal.   

Specific  objective  –  Entry  into  operations  of  the  updated  functionalities  of  SIS  in 
2020 

Indicator – successful completion of comprehensive pre-launch testing of the revised 
system.  

Once the system is operational 

Once the system is operational, eu-LISA will ensure that procedures are in place to 
monitor  the  functioning  of  SIS  against  objectives,  relating  to  output,  cost-
effectiveness,  security  and  quality  of  service.  Two  years  after  SIS  is  brought  into 
operational  and  every  two  years  thereafter,  eu-LISA  is  required  to  submit  to  the 
European Parliament and the Council a report on the technical functioning of Central 
SIS  and  the  Communication  Infrastructure,  including  the  security  thereof,  and  the 
bilateral  and  multilateral  exchange  of  supplementary  information  between  Member 
States. Furthermore, eu-LISA produces daily, monthly and annual statistics showing 
the number of records per category of alert, the annual number of hits achieved per 
category of alert, how many times SIS was searched and how many times the system 
was accessed for the purpose of entering, updating or deleting an alert in total and for 
each Member State.  

Three  years  after  SIS  is  brought  into  operation  and  every  four  years  thereafter,  the 
Commission  produces  an  overall  evaluation  of  Central  SIS  and  the  bilateral  and 
multilateral  exchange  of  supplementary  information  between  Member  States.  This 
overall evaluation includes an examination of results achieved against objectives, and 
an assessment of the continuing validity of the underlying rationale, the application 
of  this  Regulation  in  respect  of  Central  SIS,  the  security  of  Central  SIS  and  any 
implications  for  future  operations.  The  Commission  sends  the  evaluation  to  the 
European Parliament and the Council. 

Specific  objective  –  effective  use  of  SIS  for  the  purposes  of  returning  illegally 
staying third-country nationals. 

Indicator – the statistical reports on the number of alerts, issued by eu-LISA and the 
number of hits, provided by the Member States will enable COM to assess the results 
and the impact of the initiative and how are the Member States implementing it. 

1.5. 

Grounds for the proposal/initiative  

1.5.1.  Requirement(s) to be met in the short or long term  

1.Tackle  irregular  migration,  improve  the  functioning  of  the  return  system  and 
enhance the cooperation between Member States' competent authorities; 

2. Secure public trust in the EU migration and asylum policy and provide adequate 
support to persons in need of protection; 

 
 
3. Enable mutual recognition and enforcement EU wide of return decisions issued in 
accordance with Directive 2008/115/EC amongst migration authorities in compliance 
with the EU acquis; 

4.  Verify  compliance  with  return  decisions  and  better  inform  the  actions  of  the 
competent authorities; 

5. Provide more reliable data and statistics on the number of return decisions issued 
and on the rate of compliance; 

6.  All  return  decisions  issued  by  the  Member  State  authorities  in  accordance  with 
Directive 2008/115/EC shall be entered in SIS; 

7.  Contribute  to  the  identification  and  the  information  sharing  between  Member 
States  on  third-country  nationals  who  are  the  subject  of  a  return  decision  issued  in 
accordance with Directive 2008/115/EC. 

1.5.2.  Added value of EU involvement 

The aim of the proposal, namely, establishing a system for sharing information about 
issued  return  decisions  issued  in  accordance  with  Directive  2008/115/EC  and  for 
monitoring  whether  third-country  nationals  subject  to  such  decisions  issued  in 
accordance with Directive 2008/115/EC have left the territory of the Member States, 
cannot  be  sufficiently  achieved  by the  Member  States  acting  alone.  Information  on 
return  decisions  held  in  national  immigration  systems  is  not  systematically  shared 
with  other  Member  States.  Consequently,  other  Member  States  are  not  aware  of 
return decisions issued in respect of third-country nationals moving illegally around 
the  EU  and  transiting  other  Member  States.  It  is  important  to  emphasise  the  added 
value of an EU -wide system which will have the capacity to effectively address the 
current  return-policy  information  gaps,  something  which  cannot  be  achieved  by 
using  separate  national  systems.  Using  national  systems  will  perpetuate  issues 
concerning the lack of harmonisation of return-decision management across Member 
States.  Furthermore,  entering  the  return  decisions  in  SIS  will  also  provide  other 
Member States with the possibility to establish whether a person being checked has 
one  (or  several)  return  decisions  related  to  them.  Hence,  the  added  value  of  EU 
involvement  will  lie  in  increasing  the  visibility  of  other  Member  States'  return 
decisions.  

Creating alerts on return decisions and entry bans in SIS will also enhance the quality 
of  information  and  enable  field  officers  to  retrieve  sufficient,  timely,  pertinent, 
accurate  and  usefully-formatted  information.  The  end-users  will  have  better 
information  at  their  disposal  and,  therefore,  EU  involvement  will  significantly 
reinforce the operational aspects of their work. 

1.5.3.  Lessons learned from similar experiences in the past 

1.The development phase should commence only after the technical and operational 
requirements  are  fully  defined.  SIS  will  not  be  updated  unless  the  underlying  legal 
instruments, setting out its purpose, scope, functions and technical details have been 
definitevely adopted; 

2.  The  Commission  conducted  (and  continues  to  conduct)  continuous  consultations 
with  the relevant stakeholders, including  delegates  to  the SISVIS Committee  under 
the Comitology procedure and the Return Directive Contact Group. Discussions were 
held in several meetings of the SISVIS Committee (10 May 2016 and 30 June 2016) 
and the Return Directive Contact Group (16 November 2015, 18 March and 20 June 

 
 
2016).  On  5  February  2016  a  joint  workshop  with  delegates  to  the  SISVIS 
Committee and the Return Directive Contact Group took place.  

3.  The  Commission  also  sought  external  expertise;  the  findings  have  been 
incorporated in the developments of this proposal: 
 - In October 2015 the Commission launched an external study45 with the purpose of 
assessing  the  feasibility  and  technical  and  operational  implications  of  setting  up 
within the context of SIS an EU wide system for exchanging data on and monitoring 
compliance with return decisions. The study was concluded in April 2016. 

1.5.4.  Compatibility and possible synergy with other appropriate instruments 

This  proposal  is  compatible  with  and  builds  upon  the  provisions  of  Directive 
2008/115/EC  which  sets  common  standards  and  procedures  for  returning  illegally 
staying  third-country  nationals.  It  seeks  to  create  visibility  and  a  greater  level  of 
compliance  in  relation  to  return  decisions  issued  by  the  competent  authorities  in 
accordance  with  procedures  set  out  in  Directive  2008/115/EC.  By  making  it 
mandatory  to  enter  return  decisions  in  SIS,  this  proposal  will  support  the 
enforcement of these decisions. 

This  proposal is  also  consistent  with other  EU  policies  and Commission legislative 
proposals, namely: 

1. An effective EU return policy, so as to contribute to and enhance the EU system to 
return  third-country  nationals  who  have  no  right  to  stay  in  the  territory  of  the 
Member States. This would contribute to reducing incentives to irregular migration, 
which is one of the main objectives of the European Agenda on Migration 

2.  EURODAC  and  the  Dublin  system  –the  introduction  of  return  decisions  in  SIS 
will  support  Member  States  in  following  up  whether  rejected-application  asylum 
seekers have left the territory of the Member States and returned to a third-country in 
compliance with a return decision. It will also complement the Commission proposal 
to extend the use of EURODAC to identify illegally staying third-country nationals 
who do not claim asylum and who may move around the EU undetected; 

3.  Entry/Exit  system  –  the  new  Regulation  will  complement  the  Commission 
proposal on the Entry/Exit system and its use to identify and detect overstayers (also 
within the territory); 

4. Schengen Borders Code - as it will complement the amendment of the Schengen 
Borders  Code46  related  to  the  obligation  to  systematically  check  third-country 
nationals against the relevant databases on exit. 

5.  Commission  proposal  on  the  establishment,  operation  and  use  of  the  Schengen 
Information  System  (SIS)  in  the  field  of  border  checks  and  repealing  Regulation 
(EC)  No  1987/2006  as  it  will  complement  the  provisions  related  to  entering  entry 
bans in SIS following the return of the third-country national concerned. 

45 

46 

Study  on  the  feasibility  and  implications  of  setting  up  within  the  framework  of  the  Schengen 
InformationSystem an EU-wide system for exchanging data on and monitoring compliance with return 
decisions  https://bookshop.europa.eu/en/study-on-the-feasibility-and-implications-of-setting-up-within-
the-framework-of-the-schengen-information-system-an-eu-wide-system-for-exchanging-data-on-and-
monitoring-compliance-with-return-decisions-pbDR0116353/) 
COM(2015) 670 final. 

 
 
                                                 
1.6. 

Duration and financial impact  

 Proposal/initiative of limited duration  

–    Proposal/initiative in effect from [DD/MM]YYYY to [DD/MM]YYYY  

–    Financial impact from YYYY to YYYY  

 Proposal/initiative of unlimited duration 

–  Implementation with a start-up period from 2018 to 2020 

–  followed by full-scale operation. 
1.7.  Management mode(s) planned47  

 Direct management by the Commission 

–   by its departments, including by its staff in the Union delegations;  

–    by the executive agencies  

 Shared management with the Member States  

 Indirect management by entrusting budget implementation tasks to: 

–   third countries or the bodies they have designated; 

–   international organisations and their agencies (to be specified); 

–  the EIB and the European Investment Fund; 

–   bodies referred to in Articles 208 and 209 of the Financial Regulation; 

–   public law bodies; 

–   bodies governed by private law with a public service mission to the extent that 

they provide adequate financial guarantees; 

–   bodies governed by the private law of a Member State that are entrusted with 
the  implementation  of  a  public-private  partnership  and  that  provide  adequate 
financial guarantees; 

–    persons  entrusted  with  the  implementation  of  specific  actions  in  the  CFSP 

pursuant to Title V of the TEU, and identified in the relevant basic act. 

– 

If more than one management mode is indicated, please provide details in the ‘Comments’ section. 

Comments  

The Commission will be responsible for the overall management of the policy and eu-LISA 
will be responsible for the development, operation and maintenance of the system. 

The  expenses  concerning  the  communication  infrastructure  (DG  HOME  appropriation) 
mentioned in the Legislative Financial Statements attached to the Commission proposal for a 
Regulation on the establishment, operation and use of the Schengen Information System 
(SIS) in the field of border checks48 and the Commission proposal for a Regulation on the 
establishment, operation and use of the Schengen Information System (SIS) in the field 
of police cooperation and judicial cooperation in criminal matters49 apply to the current 

47 

48 
49 

Details  of  management  modes  and  references  to  the  Financial  Regulation  may  be  found  on  the 
BudgWeb site: http://www.cc.cec/budg/man/budgmanag/budgmanag_en.html 
OJ L… 
OJ L … 

 
 
                                                 
proposal as well. The expenses referred to under the present proposal are complementary to 
the above-mentioned proposals as SIS constitutes one single information system. 

 
 
2. 

MANAGEMENT MEASURES  

2.1.  Monitoring and reporting rules  

Specify frequency and conditions. 

The  review  and  monitoring  provisions  included  in  Article  54  (7)  and  (8)  of  the 
Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  on  the 
establishment,  operation  and  use  of  the  Schengen  Information  System  (SIS)  in  the 
field of border checks are applicable. 

The Commission, Member States and the Agency will regularly review and monitor 
the use of SIS, to ensure that it continues to function effectively and efficiently. The 
Commission  will  be  assisted  by  the  Committee  to  implement  technical  and 
operational measures as described in this proposal. 

Every two years, eu-LISA is required to report to the  European Parliament and the 
Council  on 
the 
communication  infrastructure  supporting  it,  and  the  bilateral  and  multilateral 
exchange of supplementary information between Member States. 

including  security  –  of  SIS, 

technical  functioning  – 

the 

Furthermore,  every  four  years,  the  Commission  is  required  to  carry  out,  and  share 
with the Parliament and the Council, an overall evaluation of SIS and the exchange 
of information between Member States. This will: 

a) examine results achieved against objectives; 

b) assess whether the underlying rationale for the system remains valid; 

c) examine how the Regulation is being applied to the central system; 

d) evaluate the security of the central system; 

e) explore the implications for the future functioning of the system. 

2.2. 

Furthermore,  eu-LISA  is  also  now  required  to  provide  daily,  monthly  and 
annual statistics on the use of SIS, ensuring continuous monitoring of the system 
and its functioning against objectives.Management and control system  

2.2.1.  Risk(s) identified  

The following risks are identified: 

in  parallel  with  other  ongoing  developments 

1. Potential difficulties for eu-LISA in managing the developments presented in the 
current  proposal 
the 
implementation of AFIS in SIS) and future developments (e.g. the Entry-Exit system, 
ETIAS  and  the  upgrade  of  Eurodac).  This  risk  could  be  mitigated  by  ensuring  eu-
LISA  has  sufficient  staff  and  resources  to  carry  out  these  tasks  and  the  ongoing 
management of the Maintenance in Working Order (MWO) contractor. 

(e.g. 

2. Difficulties for the Member States:  

2.1 Difficulties of a financial nature as the implementation requires also investments 
at the side of the Member States This risk could be mitigated through the provision 
of EU funding for Member States, e.g. from the Borders component of the Internal 
Security Fund (ISF - Borders ). 

2.2  The  national  systems  have  to  be  aligned  with  central  requirements  and 
discussions  with  Member  States  on  this  may  introduce  delays  in  the  development. 
This risk could be mitigated through early engagement with Member States on this 
issue to ensure action can be taken at the appropriate time. 

 
 
2.3 Risks related to procedures at the national level.  

2.3.1 Return decisions are not created, updated or deleted in a timely fashion: 

-  the  mechanism  to  verify  that  a  person  who  is  the  subject  of  a  return  decision 
effectively returns within the period for voluntary departure will only function when 
return decisions are immediately entered as alerts in SIS as soon as they are issued; 

- it may occur that due to the temporary unavailability of SIS at the external borders 
or  a  human  mistake,  the  departure  of  the  person  is  not  registered,  i.e.  the  alert  on 
return  will  remain  in  SIS  and  the  alert  relating  to  an  entry  ban  will  not  be  entered 
following the departure of the person . This risk can be mitigated by granting access 
to return decision alerts to border guards at entry so that they see the alert during the 
entry  process  and  contact  the  competent  authorities  to  determine  further  actions  in 
case of a hit. 

2.2.2. 

Information concerning the internal control system set up 

The responsibilities for the central components of SIS are exercised by eu-LISA. In 
order  to  enable  better  monitoring  of  the  use  of  SIS  to  analyse  trends  concerning 
migratory pressure, border management and criminal offences, the Agency should be 
able  to  develop  a  state-of-the-art  capability  for  statistical  reporting  to  the  Member 
States and the Commission. 

eu-LISA's accounts will be submitted for the approval of the Court of Auditors and 
subjected to the discharge procedure. The Commission's Internal Audit Service will 
carry out audits in cooperation with the Agency's internal auditor. 

2.2.3.  Estimate of the costs and benefits of the controls and assessment of the expected level 

of risk of error  

N/A 

2.3.  Measures to prevent fraud and irregularities  

Specify existing or envisaged prevention and protection measures. 

The  measures  foreseen  to  combat  fraud  are  laid  down  in  Article  35  of  Regulation 
(EU) 1077/2011 which provides as follows: 

1. In order to combat fraud, corruption and other unlawful activities, Regulation (EC) 
No 1073/1999 shall apply. 

2.  The  Agency  shall  accede  to  the  Interinstutional  Agreement  concerning  internal 
investigations  by  the  European  Anti-Fraud  Office  (OLAF)  and  shall  issue,  without 
delay, the appropriate provisions applicable to all the employees of the Agency. 

3.The  decisions  concerning  funding  and  the  implementing  agreements  and 
instruments resulting from them shall explicitly stipulate that the Court of Auditors 
and OLAF may carry  out,  if necessary, on the spot checks among the recipients of 
the Agency's funding and the agents responsible for allocating it. 

In  accordance  with  this  provision,  the  decision  of  the  Management  Board  of  the 
European  Agency  for  the  operational  management  of  large-scale  IT  systems  in  the 
area of freedom, security and justice concerning the terms and conditions for internal 
investigations  in  relation  to  the  prevention  of  fraud,  corruption  and  any  illegal 
activity detrimental to the Union's interests was adopted on 28 June 2012. 

DG HOME's fraud prevention and detection strategy will apply. 

 
 
3. 

3.1. 

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE  

Heading(s)  of  the  multiannual  financial  framework  and  expenditure  budget 
line(s) affected  

  Existing budget lines  

In order of multiannual financial framework headings and budget lines. 

Budget line 

Heading of 
multiannual 
financial 
framework 

Heading 3 – Security and Citizenship 

Type of  
expenditure 

Diff./Non-
diff.50 

Contribution  

from 
EFTA 
countries
51 

from 
candidate 
countries52 

from third 
countries 

within the 
meaning of 
Article 21(2)(b) of 
the Financial 
Regulation  

18.0207  European  Agency  for  the 
operational management of large-scale 
IT  systems  in  the  area  of  freedom, 
security and justice (eu-LISA) 

Diff 

NO 

NO 

YES 

NO 

50 
51 
52 

Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations. 
EFTA: European Free Trade Association.  
Candidate countries and, where applicable, potential candidate countries from the Western Balkans. 

 
 
 
 
 
                                                 
3.2. 

Estimated impact on expenditure  

3.2.1. 

Summary of estimated impact on expenditure  

Heading of multiannual financial  
framework  

3 

Security and Citizenship 

EUR million (to three decimal places) 

Year 
2018 

Year 
2019 

Year 
2020 

TOTAL 

0,070 
0,070 
0 

0,070 
0,070 
0 

0,070 
0,070 
0 

0 

0 

0 

2,520 
1,008 

0,447 
1,959 

0,447 
0,447 

0,210 
0,210 
0 

0 

3,414 
3,414 

2,590 

0,517 

0,517 

3,624 

1,078 

2,029 

0,517 

3,624 

eu-LISA 

 Operational appropriations  

Title 1: Staff Expenditure 

2: 

Title 
expenditure 

Infrastructure 

and 

operating 

Title 3: Operational expenditure 

TOTAL appropriations 
for eu-LISA 

Commitments 

Payments 

Commitments 

Payments 

Commitments 

Payments 

Commitments 

Payments 

 TOTAL operational appropriations  

Commitments 

Payments 

  TOTAL  appropriations  of  an  administrative  nature 
financed from the envelope for specific programmes  

(1) 

(2) 

(1a) 

(2a) 

(1a) 

(2a) 

=1+1a 
+3 

=2+2a 

+3 

(4) 

(5) 

(6) 

TOTAL appropriations  

Commitments 

=4+ 6 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
under HEADING <….> 
of the multiannual financial framework 

Payments 

=5+ 6 

If more than one heading is affected by the proposal / initiative: 

 TOTAL operational appropriations  

Commitments 

Payments 

  TOTAL  appropriations  of  an  administrative  nature 
financed from the envelope for specific programmes  

(4) 

(5) 

(6) 

TOTAL appropriations  
under HEADINGS 1 to 4 
of the multiannual financial framework 
(Reference amount) 

Commitments 

=4+ 6 

2,590 

0,517 

0,517 

3,624 

Payments 

=5+ 6 

1,078 

2,029 

0,517 

3,624 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Heading of multiannual financial  
framework  

5 

‘Administrative expenditure’ 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as 
necessary to show the duration 
of the impact (see point 1.6)  

TOTAL 

EUR million (to three decimal places) 

DG: <…….> 

 Human resources  

 Other administrative expenditure  

TOTAL DG <…….> 

Appropriations  

TOTAL appropriations 
under HEADING 5 
of the multiannual financial framework  

(Total  commitments  = 
Total payments) 

TOTAL appropriations  
under HEADINGS 1 to 5 
of the multiannual financial framework  

Commitments 

Payments 

Year 
N53 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as 
necessary to show the duration 
of the impact (see point 1.6) 

TOTAL 

EUR million (to three decimal places) 

53 

Year N is the year in which implementation of the proposal/initiative starts. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.2.2.  Estimated impact on eu-LISA's operational appropriations  

–    The proposal/initiative does not require the use of operational appropriations  

–    The proposal/initiative requires the use of operational appropriations, as explained below: 

Indicate 
objectives and 
outputs  

 

Type54 

Avera
ge 
cost 

SPECIFIC OBJECTIVE No 155   
Development Central System 

Contractor 

Software 

Hardware 

Subtotal for specific objective No 1 

SPECIFIC OBJECTIVE No 2 
Maintenance Central System 

Contractor 

Software 

Hardware 

Subtotal for specific objective No 2 

Year 
2018 

Year 
2019 

Year 
2020 

Enter as many years as necessary to show the 
duration of the impact (see point 1.6) 

TOTAL 

OUTPUTS 

Commitment appropriations in EUR million (to three decimal places) 

o
N

Cost  N

o

Cost 

o
N

Cost 

o
N

Cost  N

o

Cost  N

o

Cost  N

o

Cost 

Total 
No 

Total 
cost 

1 

1 

1 

1 

1 

1 

0,770 

1,500 

0,250 

2,520 

0 

0 

0 

0 

1 

1 

1 

0,078 

0,225 

0,075 

0,378 

1 

1 

1 

0,078 

0,225 

0,075 

0,378 

0,770 

1,500 

0,250 

2,520 

0,156 

0,450 

0,150 

0,756 

54 
55 

Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.). 
As described in point 1.4.2. ‘Specific objective(s)…’.  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
SPECIFIC OBJECTIVE No 3 
Meetings/Training 

Training activities 

1 

0,069 

1 

0,069 

Subtotal for specific objective No 3 

0,069 

TOTAL COST 

2,520 

0,447 

0,069 

0,447 

0,138 

0,138 

3,414 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.2.3.  Estimated impact on eu-LISA's human resources 

3.2.3.1.  Summary  

–    The  proposal/initiative  does  not  require  the  use  of  appropriations  of  an 

administrative nature  

–    The proposal/initiative requires the use of appropriations of an administrative 

nature, as explained below: 

EUR million (to three decimal places) 

Year 
2018 

Year 
2019 

Year 
2020 

TOTAL 

Officials (AD Grades) 

Officials (AST Grades) 

Contract staff 

0,070 

0,070 

0,070 

0,210 

Temporary staff 

Seconded National Experts 

TOTAL 

0,070 

0,070 

0,070 

0,210 

Recruitment  is  planned  for  January  2018.  Staff  must  be  available  as  of  early 
2018  in  order  to  allow  starting  the  development  in  due  time  with  a  view  of 
ensuring entry into operations in 2020. A Contractual Agent (CA) is needed to 
cover  needs  both  for  the  project  implementation  as  well  as  for  operational 
support and maintenance after deployment to production. This resource will be 
used to: 

 

 

 

 

Support  the  project  implementation  as  project  team  members, 
including  activities  as:  the  definition  of  requirements  and  technical 
specifications,  cooperation 
the 
implementation, updates of the Interface Control Document (ICD), the 
follow-up  of  the  contractual  deliveries,  documentation  delivery  and 
updates, etc. 

to  MS  during 

support 

and 

Support  transition  activities  for  putting  the  system  into  operations  in 
cooperation  with  the  contractor  (releases  follow-up,  operational 
process updates, trainings (including MS training activities) etc. 

Support  the  longer  term  activities,  definition  of  specifications, 
contractual preparations in case there is reengineering of the system or 
in  case  the  new  SISII  Maintenance  in  Working  Order  (MWO) 
contract  will  need  to  be  amended  to  cover  additional  changes  (from 
technical and budgetary perspective). 

Enforce  the  second  level  support  following  Entry  into  Operation 
(EiO), during continuous maintenance and operations. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
It  has  to  be  noted  that  the  new  resource  (FTE  CA)  will  act  on  top  of  the 
internal  teams resources which will be as well dedicated to the other projects 
and  activities  and  to  project/contractual  and  financial  follow-up/  operational 
activities.  The  use  of  a  CA  position  will  provide  adequate  duration  and 
continuity of  the contracts to ensure business continuity and use of the same 
the  project 
specialized  people  for  operational  support  activities  after 
conclusion. On top of that, the operational support  activities require accesses 
to  the  Production  environment  that  cannot  be  assigned  to  contractors  or 
external staff. 

.

 
 
3.2.3.2.  Estimated requirements of human resources 

–    The proposal/initiative does not require the use of human resources.  

–    The  proposal/initiative  requires  the  use  of  human  resources,  as  explained 

below: 

Estimate to be expressed in full time equivalent units 

Year 
N 

Year 
N+1 

Year N+2 

Ye
ar 
N+
3 

Enter 
as 
many 
years 
as 
necessa
ry to 
show 
the 
duratio
n of the 
impact 
(see 
point 
1.6) 

 Establishment plan posts (officials and temporary staff) 

XX 01 01 01 (Headquarters and Commission’s 
Representation Offices) 

XX 01 01 02 (Delegations) 

XX 01 05 01 (Indirect research) 

10 01 05 01 (Direct research) 

 External staff (in Full Time Equivalent unit: FTE)56 

XX 01 02 01 (AC, END, INT from the ‘global 
envelope’) 

XX 01 02 02 (AC, AL, END, INT and JED in the 
delegations) 

XX 01 04 yy 57 

- at Headquarters 

- in Delegations  

XX 01 05 02 (AC, END, INT - Indirect research) 

10 01 05 02 (AC, END, INT - Direct research) 

Other budget lines (specify) 

TOTAL 

XX is the policy area or budget title concerned. 

The human resources required will be met by staff from the DG who are already assigned to management of the 
action  and/or  have  been  redeployed  within  the  DG,  together  if  necessary  with  any  additional  allocation  which 
may  be  granted  to  the  managing  DG  under  the  annual  allocation  procedure  and  in  the  light  of  budgetary 
constraints. 

Description of tasks to be carried out: 

Officials and temporary staff 

External staff 

56 

57 

AC=  Contract  Staff;  AL  =  Local  Staff;  END=  Seconded  National  Expert;  INT  =  agency  staff; 
JED= Junior Experts in Delegations.  
Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines). 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
3.2.4.  Compatibility with the current multiannual financial framework  

–    The  proposal/initiative  is  compatible  the  current  multiannual  financial 

framework. 

–    The proposal/initiative will entail reprogramming of the relevant heading in the 

multiannual financial framework. 

A  re-programming  of  the  remainder  of  the  Smart  Borders  envelope  of  the  Internal 
Security Fund is planned in order to implement the changes foreseen in this proposal. 
The  ISF  Borders  Regulation  is  the  financial  instrument  where  the  budget  for  the 
implementation  of  the  Smart  Borders  package  has  been  included.  It  provides  in 
Article  5  that  EUR  791  million  shall  be  implemented  through  a  programme  for 
setting  up  IT  systems  supporting  the  management  of  migration  flows  across  the 
external  border  under  the  conditions  laid  down  in  Article  15.  Out  of  the  above-
mentioned EUR 791 million, EUR 480 million is reserved for the development of the 
Entry-Exit System and EUR 210 million for the development of the European Travel 
Information  and  Authorisation  System  (ETIAS).  The  remainder,  EUR  100.828 
million will be partly used to cover the costs for the changes, envisaged in the current 
proposal.  

–    The  proposal/initiative  requires  application  of  the  flexibility  instrument  or 

revision of the multiannual financial framework. 

Explain what is required, specifying the headings and budget lines concerned and the corresponding 
amounts. 

3.2.5.  Third-party contributions  

–  The proposal/initiative does not provide for co-financing by third parties.  

–  The proposal/initiative provides for the co-financing estimated below: 

Appropriations in EUR million (to three decimal places) 

Year 
N 

Year 
N+1 

Year 
N+2 

Year 
N+3 

Enter as many years as necessary 
to show the duration of the 
impact (see point 1.6) 

Total 

Specify  the  co-financing 
body  

TOTAL appropriations 
co-financed  

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
3.3. 

Estimated impact on revenue  

–    The proposal/initiative has no financial impact on revenue. 

–    The proposal/initiative has the following financial impact: 

– 

– 

 

 

on own resources  

on miscellaneous revenue  

Budget revenue line: 

Appropriation
s available for 
the current 
financial year 

Year 
2018 

Year 

2019 

Year 

2020 

Article  6313 

p.m 

p.m 

p.m 

Enter as many years as necessary to show 
the duration of the impact (see point 1.6) 

Year 

2021 

p.m 

EUR million (to three decimal places) 

Impact of the proposal/initiative58 

For miscellaneous ‘assigned’ revenue, specify the budget expenditure line(s) affected. 

18.02.08 (Schengen Information System), 18.02.07 (eu-LISA) 

Specify the method for calculating the impact on revenue. 

The  budget  shall  include  a  contribution  from  countries  associated  with  the 
implementation, application and development of the Schengen acquis. 

58 

As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net 
amounts, i.e. gross amounts after deduction of 25 % for collection costs.