Explanatory Memorandum to COM(2004)835 - Visa Information System (VIS) and the exchange of data between Member States on short stay-visas - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2004)835 - Visa Information System (VIS) and the exchange of data between Member States on short stay-visas. |
|---|---|
| source | COM(2004)835  |
| date | 28-12-2004 |
When progressively establishing an area of freedom, security and justice, the European Union shall ensure the free movement of persons and a high level of security. In this context, top priority has been given to the development and establishment of the Visa Information System (VIS) as a system for the exchange of visa data between Member States, which represents one of the key initiatives within the EU policies aimed at supporting stability and security.
Building upon the Conclusions of the European Council of Laeken, Seville and Thessalonica, the JHA Council adopted on 19 February 2004 conclusions on the development of the Visa Information System i. Reaffirmed by the European Council of Brussels on 25-56 March 2004 i, these Council conclusions give orientation for the development of the VIS to be taken “into account when preparing the technical implementation of the VIS and the proposal for the legal instrument concerning the establishment of the VIS, while fully respecting the Communities’ legislation on the protection of personal data”[3].
Prior to this proposal, the Council adopted on 8 June 2004 Council Decision 2004/512/EC establishing the Visa Information System (VIS) i, which constitutes the required legal basis to allow for the inclusion in the budget of the European Communities of the necessary appropriations for the development of VIS and the execution of that part of the budget, defines the architecture of the VIS and gives the Commission the mandate to develop the VIS at technical level, assisted by the SIS II committee i, whereas the national systems shall be adapted and/or developed by the Member States.
The further development and establishment of the VIS requires the elaboration of a comprehensive legal framework. The objective of the present proposal for a Regulation of the European Parliament and the Council is to define the purpose, the functionalities and responsibilities for the VIS, to give to the Commission the mandate to set up and maintain the VIS and to establish the procedures and conditions for the exchange of data between Member States on short-stay visa applications to facilitate the examination of such applications and the related decisions.
The VIS shall improve the administration of the common visa policy, the consular cooperation and the consultation between central consular authorities in order to prevent threats to internal security and ‘visa shopping’, to facilitate the fight against fraud and checks at external border checkpoints and within the territory of the Member States, to assist in the identification and return of illegal immigrants and to facilitate the application of the “Dublin II Regulation” (EC) No 343/2003 i. The improvement of the assessment of visa applications including the consultation between central authorities, and the verification and identification of applicants at consulates and at checkpoints contributes to the internal security of the Member States and towards combating terrorism i, which constitutes a horizontal objective and basic criterion for the common visa policy, as well as the fight against illegal immigration i. Simultaneously, the VIS will benefit bona fide travellers by improving the procedures for issuing visas and for checks.
The scope of this Regulation is related to the exchange of data on Schengen short- stay visas as the primary purpose of the VIS, including the national long-stay visas which are concurrently valid as short-stay visas. The exchange of data on other national long-stay visa of the Schengen States, which is also included in the Council conclusions of 19 February 2004 i, requires a separate legal instrument: Other than for the short-term visas there exists no common aquis on procedures on the issue of long-term visas by Member States and for the relevant Article 63 point (3)(a) of the Treaty, the co-decision procedure does not apply, as long as there is no decision according to Article 67 i of the Treaty.
This Regulation shall constitute the core instrument for the legal framework for the VIS. However, to complement this legal framework, further legal instruments will be needed in particular for:
a) amending the Common Consular Instructions (CCI) i, concerning standards and procedures for taking the biometric data, including the obligation and specifying the exceptions to the recording of biometrics;
b) the development of a mechanism for the exchange of data with Ireland and the United Kingdom for the purposes to facilitate the application of the Dublin II Regulation (EC) No 343/2003 i and to assist in the identification and administrative procedures for returning of illegal immigrants, as far as Ireland and the UK participate in immigration and return policy;
c) the exchange of data on long stay-visas which are not concurrently valid as short-stay visas by the VIS; this would need further political orientation in view of the absence of a common aquis for such visas.
Contents
The Extended Impact Assessment i annexed to this proposal, highlights the need for the VIS and its impacts in comparison to other policy options, and motivates in particular why the storage and use of biometric data in the VIS is essential to achieve the objectives of the VIS and what should be the appropriate safeguards for data protection and data security. In view of the related sensitive issues for the protection of personal data, inter alia the consultation of the Article 29 Working Party i is required.
This Regulation is founded on Article 62 point (2)(b)(ii) and Article 66 of the EC Treaty. Article 66 provides the appropriate legal basis for setting-up and maintaining the VIS and for procedures for the exchange of visa data between Member States, ensuring cooperation between the relevant authorities of the Member States’ as well as between those authorities and the Commission in the areas covered by Title IV of the Treaty. These areas include the implementation of the common visa policy, but also checks on external borders and measures on asylum and illegal immigration.
However, quite apart from the mechanisms and procedures for the introduction, exchange and consultation of visa data in the VIS, the Regulation implies procedures which are necessary conditions for the examination and issuance of short-stay visas by the Member States on the basis of the Schengen acquis for the common visa policy. The introduction of information into the VIS, at the moment of the receipt of visa application and the checking of the VIS for previous applications, being obligatory steps in the examination of such an application, are themselves procedures and conditions for the issuing of visas within the meaning of Article 62(2)(b)(ii).
According to Article 67 i TEC, measures referred to in Article 62 (2)(b)(ii) TEC shall be adopted in accordance with the co-decision procedure referred to in Article 251. Since Article 66 is now subject to qualified majority and not unanimity as formerly i, the two legal bases are compatible and can be combined. Therefore the co-decision procedure applies for the adoption of the Regulation as an integral whole.
Since the Regulation covers the exchange of data on short stay visas between Member States 'which have abolished checks at their internal borders' i, it constitutes a development of the Schengen acquis on the common visa policy. The consequences for the participation in the VIS are as follows:
Iceland and Norway:
The procedures laid down in the Association Agreement[16] concluded by the Council and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis are applicable, since the present proposal builds on the Schengen acquis as defined in Annex A of this Agreement.
Denmark :
Pursuant to the Protocol on the position of Denmark annexed to the TEU and the TEC, Denmark will not participate in the adoption of the Regulation and is therefore not bound by it or subject to its application. Given the fact that the Regulation is an act which aims to build upon the Schengen acquis in accordance with the provisions of Title IV of the TEC, Article 5 of the above-mentioned Protocol applies.
United Kingdom and Ireland :
According to Articles 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland i, and 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 i, the United Kingdom and Ireland are not taking part in the adoption of the Regulation and are not bound by it or subject to its application.
New Member States :
Since the initiative constitutes an act building upon the Schengen acquis or otherwise related to it within the meaning of Article 3 i of the Act of Accession, the Regulation shall only apply in a new Member State pursuant to a Council decision in conformity with this provision.
Switzerland :
This Regulation constitutes a development of the provisions of the Schengen aquis within the meaning of the Agreement signed by the European Union, the European Community and the Swiss Confederation on the latter’s association with the implementation, application and development of the Schengen acquis i which fall within the area referred to in Article 4 i of the Council decision on the signing, on behalf of the European Community, and on the provisional application of certain provisions of this Agreement i.
Article 62 (2)(b)(ii) creates a Community responsibility for the procedures and conditions for issuing short stay visas by Member States. Article 66 creates a Community responsibility for measures to ensure cooperation between Member States’ authorities as well as between them and the Commission. This responsibilities must, however, be exercised in accordance with Article 5 of the Treaty establishing the European Community. The proposal satisfies the criteria of this provision:
The objectives of the Regulation, to set up a common system and common procedures for the exchange of visa data between Member States cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level.
The activities of the Commission are limited to the setting-up and maintenance of the Central Visa Information System, the National Interfaces and the communication infrastructure between the Central VIS and the National Interfaces, whereas the competence for its National System remains by each Member State. The form of a regulation has been chosen because it is necessary to adopt an act of general application which is binding in its entirety and directly applicable in the Member States.
The present initiative does not go beyond what is necessary to achieve its objective: The data to be entered into the VIS are the data required to examine visa applications and on the decisions taken thereto. The alphanumeric data on the applicant are to be taken from the current application form. To ensure exact verification and identification of visa applicants, it is necessary to process biometric data in the VIS. This allows the verification and identification independent from the existence, presentation and malfunctioning of other storage media like microchips. However, this proposal does not include the storage of scanned documents, although this is foreseen by the Council conclusions i, since this is not considered to be proportional in view of the need for such further documents only in specific cases; in such cases the copies of documents can be transmitted on request by the Member State that has issued the visa i.
The consultation of the data is exclusively reserved to duly authorised staff of the competent authorities of each Member State, specified for each of the purposes as defined in this Regulation and limited to the extent the data are required for the performance of the tasks in accordance with these purposes.
This proposal for the second legal instrument for the legal framework for the VIS comprises seven chapters: The first chapter provides the subject matter of the Regulation and the purpose of the VIS, definitions, the categories of data and general rules on the access to the VIS.
The second chapter details the obligations and procedures for entering and the use of data by the visa authorities. It specifies the data, which shall be entered upon registration of the application and those added when a decision has been taken to issue, to refuse, to annul, revoke or extend a visa or to refuse the examination of the application. Furthermore, this chapter provides the obligations for the visa authorities to use the VIS for examining visa applications and procedures for the use of the VIS for consultation between central authorities and the request for documents, thus integrating the technical functionalities of the current VISION network into the VIS. Provision is also made to the use of data by the visa authorities for reporting and statistics.
The third chapter details the conditions and procedures for the use of data by other authorities for the specific purposes of the VIS: for checks on visas, for identification and return of illegal immigrants, for determining the responsibility for asylum applications and for examining asylum applications. The authorities which should have access to consult the VIS are defined by these specific purposes.
The fourth chapter lays down rules for the retention and amendment of the data recorded in the VIS. The fifth chapter provides the responsibilities for the VIS, including for the operational management of the VIS, for the use of data and data security, and rules on liability, records and penalties.
The sixth chapter concerns rights and supervision on data protection. Whereas Directive 95/46/EC and Regulation (EC) No 45/2001 fully apply for this Regulation i, the provision of this chapter clarify certain points in respect of safeguarding the rights of the data subject and of the roles of the national supervisory authorities and the Independent Supervisory Authority.
The final chapter covers the implementation, the start of transmission and operation, comitology, monitoring and evaluation, the entry into force and the applicability of this Regulation.
A commentary on the individual articles is annexed to this proposal.