Regulation 2022/1190 - Amendment of Regulation (EU) 2018/1862 as regards the entry of information alerts into the Schengen Information System (SIS) on third-country nationals in the interest of the Union - Main contents

EN

Official Journal of the European Union

L 185/1

The Schengen Information System (SIS) constitutes an essential tool for maintaining a high level of security within the area of freedom, security and justice of the Union by supporting operational cooperation between national competent authorities, in particular border guards, the police, customs authorities, immigration authorities, and authorities responsible for the prevention, detection, investigation or prosecution of criminal offences or execution of criminal penalties. Regulation (EU) 2018/1862 of the European Parliament and of the Council (2) constitutes the legal basis for SIS in respect of matters falling within the scope of Chapters 4 and 5 of Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU).

SIS alerts contain information about a particular person or object as well as instructions for the authorities on what to do when that person or object has been located. Alerts on persons and objects entered into SIS are made available, in real time, directly to all end-users of the competent national authorities of Member States authorised to search SIS pursuant to Regulation (EU) 2018/1862. The European Union Agency for Law Enforcement Cooperation (Europol) established by Regulation (EU) 2016/794 of the European Parliament and of the Council (3), national members of the European Union Agency for Criminal Justice Cooperation (Eurojust) established by Regulation (EU) 2018/1727 of the European Parliament and of the Council (4), and the teams of the European Border and Coast Guard established by Regulation (EU) 2019/1896 of the European Parliament and of the Council (5) are also authorised to access and search data in SIS pursuant to their respective mandates and in accordance with Regulation (EU) 2018/1862.

Europol plays an important role in the fight against serious crime and terrorism by providing analyses and threat assessments to support the investigations by competent national authorities. Europol fulfils that role also by means of using SIS and in the exchange of supplementary information with Member States on SIS alerts. The fight against serious crime and terrorism should be subject to continuous coordination among the Member States on the processing of data and on the entering of alerts into SIS.

Given the global nature of serious crime and terrorism, the information that third countries and international organisations obtain about perpetrators of serious crime and terrorism and persons suspected of serious crime and terrorism is increasingly relevant for the Union’s internal security. Some of that information, in particular where the person concerned is a third-country national, is shared only with Europol, which processes the information and shares the result of its analyses with Member States.

The operational need to make verified information provided by a third country available to frontline officers, in particular to border guards and police officers, is widely acknowledged. However, the relevant end-users in the Member States do not always have access to that valuable information because, among other reasons, Member States are not always able to enter alerts into SIS on the basis of such information due to national law.

In order to bridge the gap in sharing information on serious crime and terrorism, in particular on foreign terrorist fighters, where the monitoring of their movement is crucial, it is necessary to ensure that, upon a proposal by Europol, Member States are able to enter information alerts into SIS on third-country nationals in the interest of the Union, in order to make that information provided by third countries and international organisations available, directly and in real time, to front-line officers in Member States.

To that end, a specific category of information alerts on third-country nationals in the interest of the Union (‘information alerts’) should be created in SIS. Such information alerts should be entered into SIS by the Member States at their discretion and subject to their verification and analysis of the proposal by Europol in the interest of the Union on third-country nationals, in order to inform end-users carrying out a search in SIS that the person concerned is suspected of being involved in a criminal offence in respect of which Europol is competent, and in order for Member States and Europol to obtain confirmation that the person who is the subject of the information alert has been located and to obtain further information in accordance with Regulation (EU) 2018/1862, as amended by this Regulation.

In order for the Member State to which Europol proposed the entry of an information alert to assess whether a particular case is adequate, relevant and important enough to warrant the entry of that information alert into SIS, and in order to confirm the reliability of the source of information and the accuracy of the information on the person concerned, Europol should share all of the information that it holds on the case, except for information which has clearly been obtained in obvious violation of human rights. Europol should share, in particular, the outcome of cross-checking the data against its databases, information relating to the accuracy and reliability of the data and its analysis of whether there are sufficient grounds for considering that the person concerned has committed, taken part in, or intends to commit a criminal offence in respect of which Europol is competent.

Europol should inform the Member States without delay where it has relevant additional or modified data in relation to its proposal to enter an information alert into SIS or evidence suggesting that data included in its proposal are factually incorrect or have been unlawfully stored, in order to ensure the lawfulness, completeness and accuracy of SIS data. Europol should also transmit to the issuing Member State without delay additional or modified data in relation to an information alert that was entered into SIS upon its proposal, in order to allow the issuing Member State to complete or modify the information alert. Europol should act, in particular, if it becomes aware that the information received from the authorities of a third country or international organisation was incorrect or was communicated to Europol for unlawful purposes, for example if sharing the information on the person was motivated by political reasons.

Regulations (EU) 2016/794 and (EU) No 2018/1725 (6) of the European Parliament and of the Council should apply to the processing of personal data by Europol when carrying out its responsibilities under this Regulation.

The preparations for the implementation of information alerts should not have an impact on the use of SIS.

Since the objectives of this Regulation, namely the establishment and regulation of a specific category of alerts entered into SIS by Member States upon a proposal by Europol in the interest of the Union in order to exchange information on persons involved in serious crime or in terrorism, cannot be sufficiently achieved by the Member States, but can rather, by reason of their nature, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

This Regulation fully respects fundamental rights and observes the principles enshrined in the Charter of Fundamental Rights of the European Union (the ‘Charter’) and in the TEU. In particular, this Regulation fully respects the protection of personal data in accordance with Article 16 TFEU, Article 8 of the Charter and the applicable data protection rules. This Regulation also seeks to ensure a safe environment for all persons residing on the territory of the Union.

In accordance with Articles 1 and 2 of Protocol No 22 on the Position of Denmark annexed to the TEU and to the TFEU, 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 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.

Ireland is taking part in this Regulation in accordance with Article 5(1) of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the TFEU, and Article 6(2) of Council Decision 2002/192/EC (7) and Council Implementing Decision (EU) 2020/1745 (8).

As regards Iceland and Norway, this Regulation constitutes a development of 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 acquis (9), which fall within the area referred to in Article 1, point (G), of Council Decision 1999/437/EC (10).

As regards Switzerland, this Regulation constitutes 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 acquis (11), which fall within the area referred to in Article 1, point (G), of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/149/JHA (12).

As regards Liechtenstein, this Regulation constitutes 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 acquis (13), which fall within the area referred to in Article 1, point (G), of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/349/EU (14).

As regards Bulgaria and Romania, this Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis within the meaning of Article 4(2) of the 2005 Act of Accession and should be read in conjunction with Council Decisions 2010/365/EU (15) and (EU) 2018/934 (16).

As regards Croatia, this Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis within the meaning of Article 4(2) of the 2011 Act of Accession and should be read in conjunction with Council Decision (EU) 2017/733 (17).

Concerning Cyprus, this Regulation constitutes an act building upon, or otherwise relating to, the Schengen acquis within the meaning of Article 3(2) of the 2003 Act of Accession.

The European Data Protection Supervisor was consulted, in accordance with Article 41(2) of Regulation (EU) 2018/1725.

Regulation (EU) 2018/1862 should therefore be amended accordingly,

Article 3 is amended as follows:

Article 20 is amended as follows:

in Article 24, paragraph 1 is replaced by the following:

‘1.   Where a Member State considers that to give effect to an alert entered in accordance with Article 26, 32, 36 or 37a is incompatible with its national law, its international obligations or essential national interests, it may require that a flag be added to the alert to the effect that the action to be taken on the basis of the alert will not be taken in its territory. The flag shall be added by the SIRENE Bureau of the issuing Member State.’;

the following Chapter is inserted:

‘CHAPTER IXa

Information alerts on third-country nationals in the interest of the Union

Article 37a

Objectives and conditions for entering alerts

• 1. 

  Member States may enter information alerts on third-country nationals in the interest of the Union (‘information alerts’) into SIS, as referred to in Article 4(1), point (t), of Regulation (EU) 2016/794, upon a proposal by Europol to enter an information alert on the basis of information received from the authorities of third countries or international organisations. Europol shall notify its Data Protection Officer where it makes such a proposal.

• 2. 

  Information alerts shall be entered into SIS for the purpose of informing end-users carrying out a search in SIS of the suspected involvement of third-country nationals in terrorist offences or in other serious crime listed in Annex I to Regulation (EU) 2016/794, with a view to obtaining the information set out in Article 37b of this Regulation.

• 3. 

  Europol shall propose that information alerts be entered into SIS only in the following cases and provided that it has verified that the conditions set out in paragraph 4 are fulfilled:

• 4. 

  Europol shall propose that information alerts be entered into SIS only after it has established that the information alert is necessary and justified, by ensuring that both of the following conditions are fulfilled:

• 5. 

  Europol shall make available the information it holds on the particular case and the results of the assessment referred to in paragraphs 3 and 4 to the Member States and propose that one or more Member States enter an information alert into SIS.

Where Europol has relevant additional or modified data in relation to its proposal to enter an information alert, or where Europol has evidence suggesting that the data included in its proposal to enter an information alert are factually incorrect or have been unlawfully stored, it shall inform the Member States without delay.

• 6. 

  The proposal by Europol to enter information alerts shall be subject to the verification and analysis by the Member State to which Europol proposed the entry of such alerts. Such information alerts shall be entered into SIS at the discretion of that Member State.

• 7. 

  Where information alerts are entered into SIS in accordance with this Article, the issuing Member State shall inform the other Member States and Europol about that entry through the exchange of supplementary information.

• 8. 

  Where Member States decide not to enter the information alert upon the proposal by Europol and where the respective conditions are met, they may decide to enter another type of alert on the same person.

• 9. 

  Member States shall inform the other Member States and Europol on the outcome of the verification and analysis of the data in Europol’s proposal, as referred to in paragraph 6, and on whether data has been entered into SIS, within a period of 12 months after Europol has proposed the entry of an information alert.

For the purposes of the first subparagraph, Member States shall put in place a periodic reporting mechanism.

• 10. 

  Where Europol has relevant additional or modified data in relation to an information alert, it shall transmit those data without delay, through the exchange of supplementary information, to the issuing Member State to enable the latter to complete, modify or delete the information alert.

• 11. 

  Where Europol has evidence suggesting that data entered into SIS in accordance with paragraph 1 are factually incorrect or have been unlawfully stored, it shall, through the exchange of supplementary information, inform the issuing Member State as soon as possible and not later than two working days after that evidence has come to its attention. The issuing Member State shall check the information and, if necessary, correct or delete the data in question without delay.

• 12. 

  Where there is a clear indication that the objects referred to in Article 38(2), points (a), (b), (c), (e), (g), (h), (j) and (k), or non-cash means of payment are connected with a person who is the subject of an information alert pursuant to paragraph 1 of this Article, alerts on those objects may be entered in order to locate the person. In such cases, the information alert and the alert on the object shall be linked in accordance with Article 63.

• 13. 

  Member States shall put in place the necessary procedures for entering, updating and deleting information alerts in SIS in accordance with this Regulation.

• 14. 

  Europol shall keep records relating to its proposals for entering information alerts into SIS under this Article and provide reports to Member States every six months on the information alerts entered into SIS and on the cases where Member States did not enter the information alerts.

• 15. 

  The Commission shall adopt implementing acts to lay down and develop rules necessary for entering, updating, deleting and searching the data referred to in paragraph 11 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 76(2).

Article 37b

Execution of the action based on an information alert

• 1. 

  In the event of a hit on an information alert, the executing Member State shall collect and communicate to the issuing Member State all or some of the following information:

• 2. 

  The executing Member State shall communicate the information referred to in paragraph 1 to the issuing Member State through the exchange of supplementary information.

• 3. 

  Paragraph 1 of this Article shall apply also where the person who is the subject of an information alert is located in the territory of the Member State that entered into SIS the information alert for the purpose of informing Europol in accordance with Article 48(8), point (b).

• 4. 

  The executing Member State shall ensure the discreet collection of as much information described in paragraph 1 as possible during routine activities carried out by its national competent authorities. The collection of such information shall not jeopardise the discreet nature of the checks and the subject of the information alert shall in no way be made aware of the existence of such alert.’;

in Article 43, paragraph 3 is replaced by the following:

‘3.   Dactyloscopic data in SIS in relation to alerts entered in accordance with Articles 26, 32, 36, 37a, and 40 may also be searched using complete or incomplete sets of fingerprints or palm prints discovered at the scenes of serious crimes or terrorist offences under investigation, where it can be established to a high degree of probability that those sets of prints belong to a perpetrator of the offence and provided that the search is carried out simultaneously in the Member State’s relevant national fingerprints databases.’;

Article 48 is amended as follows:

Article 53 is amended as follows:

in Article 54, paragraph 3 is replaced by the following:

‘3.   Alerts on objects entered in accordance with Articles 26, 32, 34, 36 and 37a shall be reviewed pursuant to Article 53 where they are linked to an alert on a person. Such alerts shall only be kept for as long as the alert on the person is kept.’;

Article 55 is amended as follows:

Article 56 is amended as follows:

in Article 74, the following paragraph is inserted:

‘5a.   Member States, Europol, and eu-LISA shall provide the Commission with the information necessary to contribute to the evaluation and the reports referred to in Article 68 of Regulation (EU) 2016/794.’;

in Article 79, the following paragraph is added:

‘7.   The Commission shall adopt a decision setting the date from which Member States may start entering, updating and deleting information alerts in SIS in accordance with Article 37a of this Regulation, after verification that the following conditions have been met:

That Commission decision shall be published in the Official Journal of the European Union.

(*1)  Regulation (EU) 2022/1190 of the European Parliament and of the Council of 6 July 2022 amending Regulation (EU) 2018/1862 as regards the entry of information alerts into the Schengen Information System (SIS) on third-country nationals in the interest of the Union (OJ L 185, 12.7.2022, p. 1) .’."