Explanatory Memorandum to COM(2008)197 - Migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) - EU monitor

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Explanatory Memorandum to COM(2008)197 - Migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II)

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1. Context of the proposal

● Grounds for and objectives of the proposal

The objective of this proposal, and a proposal for a Council Decision on the same subject, is to establish the legal framework governing the migration from the Schengen Information System in its current form SIS 1+ to the second generation Schengen Information System (SIS II).

● General context

The Schengen Information System (SIS) set up pursuant to the provisions of Title IV of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the governments of the States of the Benelux Economic Union, the Federal Republic of Germany and France on the gradual abolition of checks at their common borders (the Schengen Convention), and its development, SIS 1+, constitute an essential tool for the application of the provisions of the Schengen acquis as integrated into the framework of the European Union.

The development of the second generation of SIS (SIS II) has been entrusted to the Commission pursuant to Council Regulation (EC) No 2424/2001 and Council Decision 2001/886/JHA of 6 December 2001 on the development of the second generation Schengen Information System (SIS II). SIS II will replace SIS 1+. The SIS II development takes into account the latest developments in the field of information technology and allows the introduction of added functionalities.

Provisions on the establishment, operation and use of SIS II are laid down in Regulation (EC) No. 1987/2006 of the European Parliament and of the Council i of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) and Council Decision 2007/533/JHA i of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II). These instruments foresee that they will apply to the Member States participating in SIS 1+ only as of dates to be fixed by the Council, acting by the unanimity of its Members representing the governments of the Member States participating in SIS 1+. They will then replace the provisions of the Schengen acquis governing SIS 1+, in particular the relevant provisions in the Schengen Convention.

Before this can happen, the users of the SIS 1+ will have to migrate to the SIS II environment. It is therefore necessary to define a legal framework for the migration from SIS 1+ to the SIS II environment. In order to reduce the risks of service disruption during migration an interim technical architecture for the operations of SIS 1+ will allow SIS 1+ and certain technical parts of the architecture of SIS II to operate in parallel for a transitional period. The migration period should be kept very limited.

● Existing provisions in the area covered by the proposal

- Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and France on the gradual abolition of checks at their common borders i (the Schengen Convention);

- Council Regulation (EC) No 2424/2001 of 6 December 2001 on the development of the second generation Schengen Information System (SIS II) i as amended by Council Regulation (EC) 1988/2006 of 21 December 2006 i;

- Council Decision 2001/886/JHA of 6 December 2001 i on the development of the second generation Schengen Information System (SIS II) as amended by Council Decision 2006/1007/JHA of 21 December 2006 i;

- 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) ;

- Council Decision No 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) ;

- Regulation (EC) No 1986/2006 of the European Parliament and of the Council of 20 December 2006 regarding access to the Second Generation Schengen Information System (SIS II) by the services in the Member States responsible for issuing vehicle registration certificates i;

- Commission Decisions 2007/170/EC and 2007/171/EC of 16 March 2007 laying down the network requirements for the Schengen Information System II i; - Council Regulation (EC) No 189/2008 of 18 February 2008 on the tests of the second generation Schengen Information System (SIS II) i; - Council Decision 2008/173/EC of 18 February 2008 on the tests of the second generation Schengen Information System (SIS II) i.

● Consistency with other policies and objectives of the Union

Not applicable.

3.

2. Consultation of interested parties and impact assessment


● Consultation of interested parties

4.

Consultation methods, main sectors targeted and general profile of respondents


Member States' experts are closely involved in the development of SIS II, in particular in the framework of the SIS II Committee. On 13 September 2007 an advisory working group (the Migration Working Group) was established by the SIS II Committee to examine specific issues regarding the SIS II migration. The issues identified for the different migration scenarios were studied with input and participation from all involved parties. The resulting evaluation therefore comprehensively described the strategy, planning and task distribution for the SIS 1+ to SIS II migration.

In addition, at its meeting of 28 February 2008, the Council invited the Commission to present, without delay, the legal proposals to allow for the inclusion in the budget of the European Union all activities in 2009 for the SIS II, including, if necessary, further development activities and to govern the SIS II activities foreseen up to the start of its operations. The Commission was also invited to provide a converter, to be used for a very limited period of time, linking SIS 1+ and SIS II to ensure that SIS can continue functioning in any scenario.

5.

Summary of responses and how they have been taken into account


The present proposal takes into account the result of extensive discussions with Member States, especially in the framework of the SIS II Committee.

● Collection and use of expertise

External expertise was not used to prepare this proposal.

● Impact assessment

No Impact Assessment is required for this proposal for a Council Regulation which is not included in the Commission's Annual Legislative and Work Programme (CLWP).

1.

Legal elements of the proposal



● Summary of the proposed action

The objective of the present proposal is to establish the legal framework governing the migration from SIS 1+ to SIS II, including a comprehensive test, with a view to demonstrating, in particular, that the level of performance of SIS II is at least equivalent to that achieved with SIS 1+. Furthermore, it intends to regulate the test on exchange of supplementary information.

The proposal also amends the Schengen Convention by setting up an interim migration architecture for the operations of SIS 1+ during a transitional period until the migration process is completed.

To this end, the proposal defines an interim Schengen Information System architecture and lays down the tasks and responsibilities for its development as well as the tasks and responsibilities during the migration process.

The technical architecture will allow the current central system of SIS 1+ (C.SIS), as referred to in Article 92 of the Schengen Convention, to remain in operation during a transitional period.

Beyond the availability of SIS 1+ and of the Central SIS II, a technical tool (a converter) allowing for the successful exchange of SIS data between SIS 1+ and SIS II will be made available during the interim period, to be used for a very limited period of time.

Some elements of the interim architecture will be made available by the Member States, some by France acting on behalf of the Member States, and others by the Commission. The Commission has the possibility to contract the execution of certain tasks to, amongst others, national public bodies. The Commission and the Member States must closely collaborate in the development and operation of the technical elements for the SIS interim architecture.

Finally, the present proposal covers all maintenance and further development activities of the Central SIS II, the communication infrastructure and the national systems (N.SIS II) that will prove necessary during the period of its application.

● Legal basis

The legal basis for this Regulation is Article 66 of the EC Treaty as it concerns measures to ensure cooperation between the relevant departments of the administrations of the Member States, as well as between those departments and the Commission for policies related to the free movement of persons.

● Subsidiarity principle

In accordance with the principle of subsidiarity, as set out in Article 5 of the EC Treaty, the main objective of the proposed action, namely the migration from SIS 1+ to SIS II, cannot be achieved by the Member States individually.

● Proportionality principle

The present proposal does not go beyond what is necessary to achieve its objective. It complies with the proportionality principle in that the activities of the Commission are limited to Central SIS II, coordination activities and the provision of a technical tool allowing for the successful exchange of SIS 1+ data between SIS 1+ and SIS II ('converter'), The Member States remain competent as regards the migration of the actual data and retain responsibility for the national systems.

● Choice of instruments

A Council Regulation based on Article 66 of the EC Treaty is the most appropriate instrument for the proposed action in view of the need to apply fully-harmonised rules for the migration process. The provisions set out in this Regulation must be a set of precise and unconditional provisions, directly and uniformly applicable in a mandatory way and, by their very nature, require no action by Member States to transpose them into national law.

Owing to the two-pillar nature of SIS II a Council Decision based on Articles 30 i (a) and (b), 34 i (c) of the Treaty on European Union will complement the hereby proposed Council Regulation.

2.

Budgetary implications



Council Regulation (EC) No 2424/2001 and Council Decision 2001/886/JHA on the development of the second generation Schengen Information System laid down that the expenditure involved in the development of the SIS II is to be charged to the general budget of the European Union.

Likewise, under Article 5 of Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 and under Article 5 of Council Decision No 533/2007 of 12 June 2007 the costs of setting up, operating and maintaining Central SIS II and the communication infrastructure are to be borne by the general budget of the European Union. The costs of setting up, operating and maintaining each N.SIS II shall be borne by the Member State concerned.

In line with this legal framework, the present proposal lays down that the costs arising from migration, the comprehensive test, the maintenance and development measures at the central level (Central SIS II and Communication Infrastructure) are to be borne by the general budget of the European Union. Testing, migration, maintenance and development costs for the national systems, including N.SIS II, are to be borne by each Member State concerned.

The costs arising from activities at SIS 1+ level, including supplementary activities of France, acting on behalf of the Member States (of SIS 1+), shall be borne in line with Article 119 of the Schengen Convention. This article provides that the costs of installing and operating the technical support function of SIS 1+, as referred to in Article 92 i of the Convention, including the cost of lines connecting the national sections of the Schengen Information System to the technical support function, are borne jointly by the Member States, while the costs of installing and operating the national section of the Schengen Information System are borne by each Member State individually.

The Commission has prepared a financial statement annexed to this proposal.

6.

5. Additional information


● Amendment of existing legislation

The adoption of the proposal will entail the amendment of the Schengen Convention.

● Review/revision/sunset clause

The proposal contains a sunset clause. It will expire on the date to be fixed by the Council, acting in accordance with Article 55 i of Regulation (EC) No 1987/2006.

● Timetable

The present Regulation needs to be adopted in October 2008 at the latest in order to ensure the continuity of the preparations and the timely execution of activities covered.