REPORT on the draft Council decision on the application of the provisions of the Schengen acquis relating to the Schengen Information System in the Republic of Bulgaria and Romania
11.6.2010 - (06714/2010 – C7‑0067/2010 – 2010/0814(NLE)) - *
Committee on Civil Liberties, Justice and Home Affairs
Rapporteur: Carlos Coelho
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
on the draft Council decision on the application of the provisions of the Schengen acquis relating to the Schengen Information System in the Republic of Bulgaria and Romania
(06714/2010 – C7‑0067/2010 – 2010/0814(NLE))
The European Parliament,
– having regard to the draft Council decision (06714/2010),
– having regard to Article 4 (2) of the Act of Accession of 25 April 2005, pursuant to which the Council consulted Parliament (C7-0067/2010),
– having regard to Rule 55 of its Rules of Procedure,
– having regard to the report of the Committee of Civil Liberties, Justice and Home Affairs (A7-0199/2010),
1. Approves the draft Council decision as amended;
2. Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;
3. Asks the Council to consult Parliament again if it intends to amend the text submitted for consultation substantially;
4. Instructs its President to forward its position to the Council and the Commission.
Text proposed by the Council
"On XXXX 2010, the Council concluded that the conditions in this area had been fulfilled by the Republic of Bulgaria and Romania. It is therefore possible to set a date from which the Schengen acquis relating to the Schengen Information System (SIS) may apply in those Member States."
"On XXXX 2010, the Council concluded that the conditions in this area had been fulfilled by the Republic of Bulgaria and Romania. It is therefore possible to set a date from which the Schengen acquis relating to the Schengen Information System (SIS) may apply in those Member States.
Each Member State concerned should inform the European Parliament and the Council in writing, in the course of the six-month period beginning on the date of entry into force of this Decision, of the follow-up they intend to give to the recommendations contained in the evaluation reports and mentioned in the follow-up which are still to be implemented."
-  OJ L 157, 21.6.2005, p. 204
Romania and Bulgaria adopted the Schengen acquis when joining the EU in 2007. According to Article 4(2) of the Act of Acession, the verification through evaluation procedures that the necessary conditions for the application of all parts of the Schengen acquis (Data Protection, the Schengen Information System, Air Borders, Land Borders, Sea Borders, Police Cooperation and Visas) have been met by the new Member States is a precondition for the Council to decide on the abolition of checks at internal borders with those Member States.
The evaluations for any new Member States should start following a request of the respective Member State (declaration of readiness). They should be conducted under the responsibility of the Schengen Evaluation Working Group (SCH-EVAL), starting with a questionnaire to the Member State concerning all parts of the Schengen acquis and followed by evaluation visits. Teams of experts should be send to the SIS, SIRENE bureaus, Consulates, to the Borders, etc., and should prepare exhaustive reports containing factual descriptions, assessments and recommendations which can require additional measures and follow-up visits. The final report should establish whether the new Member State concerned, after being subject to a full evaluation procedure, fulfils all the preconditions for the practical application.
The present draft decision concerning the application of the provisions relating to the Schengen Information System (SIS) in Bulgaria and Romania is a very first step towards lifting checks at the EU internal borders to Bulgaria and Romania. The lifting of borders will be subject to a separate Council decision at a later state, following further evaluations.
The Council referred the present draft decision concerning the application of the provisions relating to the Schengen Information System (SIS) in Bulgaria and Romania to the European Parliament. In accordance with the 2005 Act of Accession, these provisions shall only apply pursuant to a Council Decision, after consulting Parliament and after verification in accordance, through the Schengen evaluation mechanism, that the conditions for the application have been met in the Member State concerned.
The Schengen Evaluation Working Group within the Council has verified whether Bulgaria and Romania ensure satisfactory levels of data protection and came to an overall positive conclusion. As a consequence, the draft decision aims at setting a date from which the provisions relating to the Schengen Information System will apply. Subsequently, real SIS data will be transferred to Bulgaria and Romania, and they will be able to enter data and use SIS data, subject to certain restrictions.
1. Schengen evaluation of Bulgaria and Romania with regard to data protection
The correct application by Bulgaria and Romania of the Schengen acquis in respect of data protection was evaluated from 27 to 30 April 2009, in accordance with the mandate of the Schengen Evaluation Working Group.
As regards Bulgaria, the committee of experts appreciated initiatives by different ministries in order to develop a scheme guaranteeing comprehensive information to data subjects on their rights. Shortcomings identified concerned the adoption, implementation and application of relevant legislation, especially concerning Council of Europe Recommendation (87)15 regulating the use of personal data in the police sector, and the need for reports concerning the execution of the rights of data subjects and on the activities of the Commission for the Protection of Personal Data (CPDP).
By January 2010, following up to the recommendations, Bulgaria made the necessary legal amendments to ensure full implementation of Council of Europe Recommendation (87)15. As regards the rights of data subjects, Bulgaria has strengthened the cooperation between CPDP and other authorities and taken steps to raise public awareness, for example through a new website.
As regards Romania, the committee of experts appreciated the inspections, carried out since 2006, of the authorities which will use the Schengen Information System. Weaknesses detected concerned the pending adoption adoption of two laws regulating the processing of personal data related to the SIS, the premises and resources of the National Supervisory Authority (NSAPDP) and the introduction of periodical or random checks in relation to Schengen data.
By February 2010, in the follow-up to the recommendations, Romania reported that the law regulating the processing of personal data and implementing Council of Europe Recommendation (87)15 was published and the adoption of instructions implementing the law was pending; as regards the law on setting up, organisation and functioning of the National Information System for Alerts the inter-ministerial approval was pending. As regards the premises and resources of the National Supervisory Authority major efforts were made in order to comply with the recommendation. Romania also reported that the persons responsible for personal data protection performed random internal controls on the implementation of security measures.
On 26 April 2010 the Council concluded that the conditions in the area of data protection were fulfilled and that nothing prevents the adoption of a Council Decision on the applications of the provisions of the Schengen acquis relating to the Schengen Information System and thus the loading of real SIS data, as soon as Bulgaria and Romania are technically ready to this end.
According to the SISone4ALL Roadmap for the connection of Bulgaria and Romania to the SIS II, from 9 March 2010, it is expected that both countries will be technically ready by October 2010.
2. Next steps
Once real SIS data has been transferred to Bulgaria and Romania, the Schengen Evaluation Working Group will verify the correct application of the provisions on the SIS.
According to the SISone4ALL Roadmap for the connection of Bulgaria and Romania to the SIS II of 9 March 2010, the evaluation on SIS is scheduled for Bulgaria to take place between 22 and 26 November 2010 and for Romania between 29 to 3 December 2010.
3. Bulgaria and Romania applying to join SISOne4ALL instead of SISII
Due to the enormous delays in the development of the SISII, Bulgaria and Romania decided not to wait until the start of operations of the SISII (currently, still without a concrete timetable), but to apply to join the current SISOne4ALL. Nevertheless, on the actual SIS1+RE there are only two slots available, but already reserved for UK and Ireland. This problem of unavailability of slots is expected to be solved by the end of August of this year, in order to allow any new country to join the SIS1+RE through the technical upgrade which is being made on the actual system and should be ready in time to allow these two countries to connect to the SIS respecting the current timetable.
4. Revision of the Schengen evaluation mechanism
In March 2009, the Commission had submitted proposals in order to amend the Schengen evaluation mechanism, COM(2009)102 , based on Article 66 EC, and COM(2009)105, based on the so-called third pillar, on Articles 30 and 31 EU Treaty.
On 20 October 2009 Parliament rejected the Commission proposals, called on the Commission to withdraw them and to submit new proposals. Parliament argued that the legal bases for the proposals, as suggested by the Commission, did not sufficiently take into account Parliament's role in the area of freedom, security and justice. As the evaluation covered the SIS, the VIS, the Schengen Borders Code and the Visa Code, among others, instruments which were adopted under co-decision, the Commission should submit new proposals. The new proposals should come under the co-decision procedure and may establish the evaluation mechanism through amending the specific instruments.
With the entry into force of the Treaty of Lisbon, the third-pillar proposal lapsed. However, the other proposal COM(2009)102 remained pending. The Commission has not withdrawn it yet. In its "omnibus" communication of 2 December 2009 the Commission suggested Article 74 TFEU as the new legal basis under the Treaty of Lisbon.
On 25 November 2009, in its resolution on the Stockholm Programme, Parliament confirmed its position that there is a need to revise the Schengen evaluation mechanism in a way which would take into account Parliament's role in the Area of Freedom, Security and Justice under the Treaty of Lisbon in an adequate manner.
B. Position of the Rapporteur
The Rapporteur recalls that the European Parliament and in particular the Members of the LIBE Committee must have access to the evaluation reports and all the other relevant information concerning the implementation of any possible recommendations made, before giving a reasoned and motivated opinion.
He expects that the Council, not only for the present evaluation on data protection, but also for the other evaluations that will take place on the remaining domains, should be able to ensure that the European Parliament is provided with all the information required and available in order to be able to provide a proper decision and to exercise the necessary democratic scrutiny.
The amendment proposed seeks to make sure that European Parliament is kept informed, like the Council, of the follow-up given by Bulgaria and Romania to the shortcomings identified by the experts in the course of the evaluations on data protection.
The Rapporteur takes this opportunity to recall the need for the establishment of a simple, effective and transparent evaluation mechanism, which should complement the actual Schengen evaluation and enable the Schengen area to be preserved as an area of free movement. Since the security of the Schengen area and its citizens is at stake, all relevant players should be deeply involved in the establishment of the new evaluation system, which will make possible to guarantee security and strengthen the principal of mutual trust - essential to maintain the Schengen area.
RESULT OF FINAL VOTE IN COMMITTEE
Result of final vote
Members present for the final vote
Jan Philipp Albrecht, Sonia Alfano, Emine Bozkurt, Simon Busuttil, Carlos Coelho, Agustín Díaz de Mera García Consuegra, Cornelia Ernst, Tanja Fajon, Hélène Flautre, Kinga Gál, Sylvie Guillaume, Anna Hedh, Salvatore Iacolino, Sophia in ‘t Veld, Teresa Jiménez-Becerril Barrio, Juan Fernando López Aguilar, Baroness Sarah Ludford, Monica Luisa Macovei, Nuno Melo, Claude Moraes, Carmen Romero López, Birgit Sippel, Csaba Sógor, Rui Tavares, Kyriacos Triantaphyllides, Axel Voss, Tatjana Ždanoka
Substitute(s) present for the final vote
Edit Bauer, Andrew Henry William Brons, Anna Maria Corazza Bildt, Ioan Enciu, Ana Gomes, Stanimir Ilchev, Mariya Nedelcheva, Zuzana Roithová, Ernst Strasser, Rainer Wieland, Cecilia Wikström
Substitute(s) under Rule 187(2) present for the final vote
George Lyon, Diana Wallis