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EU: SIS II proposals released at last: more data, wider access, less data protection

01 June 2005

At the end of May 2005, the European Commission finally released legislative proposals to govern SIS II, the second-generation Schengen Information System. A detailed legal analysis of the proposals, produced by Statewatch for Professor Steve Peers (University of Essex), confirm fears that SIS II will contain more categories of data - including photographs and fingerprints - that will be used for more purposes, more widely available to police and other law enforcement authorities (including for the first time non-EU states and agencies), and stored for longer.

At the same time, there will be no real improvement in the data protection regime for SIS II - the current Schengen rules could even be weakened under the new proposals - and no meaningful improvement in democratic control or accountability.

Statewatch legal analysis of SIS II proposals (June 2005, pdf)

Statewatch's legal analysis examines (key points):

The proposed legislation (links to full-text provided at foot of this page):

- an EC Regulation covering the immigration law aspects of the SIS (to be adopted by qualified majority voting in the Council of national ministers and co-decision with the European Parliament)

- an EU Decision covering the use of the SIS for policing and criminal law data (to be adopted by unanimous voting in the Council and consultation of the EP)

- an EC Regulation (to be adopted by qualified majority voting in the Council and co-decision with the EP) which would govern the access to SIS data by vehicle registration authorities

- these texts would replace Articles 92-119 of the Schengen Convention

- unusually, the Commission has not seen fit to explain any of the complex text in its proposals

Categories of data and alert

- reference to "national security" removed from grounds for including "aliens" under the existing "Article 96" - a "serious threat to public policy and public security" retained as grounds for inclusion

- the now standard list of 32 offences that applies to most recent EU criminal law initiatives has been added to the grounds for registering "aliens" convicted of an offence carrying a maximum sentence of one year or more

- non-EU nationals included on member state's foreign policy lists of banned individuals may be included (retaining this existing discretionary power)

- persons subject to re-entry bans in accordance with the EC's expulsion Directive may also be included (despite the fact that the Commission is yet to produce its proposal on this matter!)

- European Arrest Warrants will be issued as alerts in the SIS and all the data from the Arrest Warrant form will be included

- photographs and fingerprints to be included in SIS records

- new types of object and vehicles to be included; member states will be able to issue surveillance alerts (existing article 99) on vehicles as well as persons (this was agreed in the 2004 Decision on the SIS)

- the existing ban on including "sensitive information" in the SIS (political beliefs, racial origin etc., as defined in the 1981 Council of Europe Convention) under Article 94(3) of the Schengen Convention is dropped

- the notorious proposals to issue alerts on "violent troublemakers" do not appear in the Commission's proposals (though were included in the earlier Council conclusions suggesting that SIS II will have the capacity to facilitate such alerts but that this would require new legislation in the future)

Data storage limits

- for every type of alert the time period for keeping the data in the SIS would be extended (from 3 to 5 years for immigration data; from 3 to 10 years for data on extradition, missing persons and persons wanted for a judicial procedure; from 1 to 3 years for surveillance of persons)

- possible extensions will be allowed for the first time after the<