Explanatory Memorandum to COM(2017)17 - Application of the provisions of the Schengen acquis in the area of the Schengen Information System in Croatia

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dossier COM(2017)17 - Application of the provisions of the Schengen acquis in the area of the Schengen Information System in Croatia.
source COM(2017)17 EN
date 18-01-2017


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

In line with Article 4(2) of Croatia's Act of Accession to the European Union 1 certain provisions of the Schengen acquis are already applicable in Croatia from the date of accession, while other provisions only apply pursuant to a Council Decision to that effect after verification that the necessary conditions for the application of all parts of that acquis have been met. This verification is done in accordance with the relevant Schengen evaluation procedures.

Council Regulation (EU) No 1053/2013, establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis 2 , provides for these Schengen evaluation procedures. In line with the Regulation, the Commission has established a multiannual evaluation programme 2014 - 2019 3 and an annual evaluation programme for 2016 providing for the evaluation of Croatia.

The Schengen evaluation in the area of the Schengen Information System (SIS) can only take place when the SIS has been put into operation in Croatia. Therefore, it is required that the Council adopts a Decision on putting into effect the provisions of the Schengen acquis in the area of SIS in Croatia.

The Council is only able to take such Decision after Croatia has made the necessary technical and legal arrangements, including relating to data protection, to process SIS data and exchange supplementary information. Accordingly, a Schengen evaluation to verify the level of data protection in Croatia was carried out in February 2016. Following the positive opinion of the Schengen Committee 4 on 6 October 2016, the Commission adopted, by means of Commission Implementing Decision 5 , the evaluation report confirming that a satisfactory level of data protection is met.

In addition, on 5 September 2016 the SIS II Advisory Group 6 , based on the results from the Test Summary Report (2016-093) 7 produced by European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (eu-LISA), confirmed that from a technical point of view the Croatian national system (N.SIS) is ready to integrate into the SIS and its national system is “Fit for Purpose”. On 15 September 2016, the SIS II Committee 8 endorsed the same test report, confirming that Croatia has met the technical conditions for putting the SIS in operation.

It is therefore now possible for the Council to set the date from which the Schengen acquis in the area of the SIS shall apply in Croatia. The entry into force of this Decision should allow for SIS data to be transferred to Croatia. The use of these data in Croatia should allow the Commission to verify, in accordance with the Schengen evaluation procedures, that the provisions concerning the SIS are being applied correctly.

Certain restrictions on the use of SIS in Croatia will be imposed until the Council has decided on the full application of the Schengen acquis in Croatia and on the lifting of checks at internal borders. Such Decision shall only be taken when it has been verified that the necessary conditions for the application of all parts of the relevant acquis have been met in Croatia in accordance with Article 4(2) of the Act of Accession.

• Consistency with existing policy provisions in the policy area

This proposal seeks to put into effect the existing provisions in the area of the SIS in Croatia.

• Consistency with other Union policies

This proposal has links with the provisions of the Schengen acquis in the area of data protection and police cooperation.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

Article 4(2) of Croatia's Act of Accession to the European Union.

• Subsidiarity (for non-exclusive competence)

Article 4(2) of the 2012 Act of Accession stipulates that the provisions of the Schengen acquis not referred to in Article 4 i of that Act, shall only apply in Croatia pursuant to a Council decision to that effect.

• Proportionality

Article 15(2) of Council Regulation (EU) No 1053/2013 mirrors the specific powers of the Council in the field of mutual evaluation of the implementation of Union policies within the area of freedom, security and justice.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

n.a.

• Stakeholder consultations

In line with Article 14(5) and Article 21(2) of Council Regulation (EU) no 1053/2013 Member States gave their positive opinion on the evaluation report in the area of data protection in the Schengen Committee of 6 September 2016.

• Collection and use of expertise

n.a.

• Impact assessment

n.a.

• Regulatory fitness and simplification

n.a

• Fundamental rights

The protection of fundamental rights when applying the Schengen acquis is taken into account during the Schengen evaluation process.

4. BUDGETARY IMPLICATIONS

n.a.

5. OTHER ELEMENTS

n.a.