Council of the
European Union
Brussels, 15 July 2021
(OR. en)
10862/21
Interinstitutional File:
2020/0350(COD)
LIMITE
SIRIS 83
ENFOPOL 286
COPEN 326
SCHENGEN 73
COMIX 389
CODEC 1097
IXIM 150
NOTE
From:
Presidency
To:
Delegations
No. Cion doc.:
13882/20
Subject:
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL amending Regulation (EU) 2018/1862 on the
establishment, operation and use of the Schengen Information System
(SIS) in the field of police cooperation and judicial cooperation in criminal
matters as regards the entry of alerts by Europol
Delegations will find in annex the Presidency's compromise proposals on the abovementioned
amendments to the SIS Regulation.
All changes proposed by the Presidency, as compared to the Regulation (EU) 2018/1862
1 currently
in force, appear as strikethrough and
bold underlined.
1
Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November
2018 on the establishment, operation and use of the Schengen Information System (SIS) in
the field of police cooperation and judicial cooperation in criminal matters, amending and
repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of
the European Parliament and of the Council and Commission Decision 2010/261/EU
(OJ L 312, 7.12.2018, p. 56) amended by Regulation (EU) 2019/818 of the European
Parliament and of the Council of 20 May 2019 (OJ L 135, 22.05.2019, p. 85).
10862/21
LJP/sbr
1
JAI.1
LIMITE
EN
ANNEX
Article 1
Amendments to Regulation (EU) 2018/1862
Article 3
Definitions
(22) ‘third-country national’ means any person who is not a citizen of the Union within the
meaning of Article 20(1) TFEU, with the exception of persons who are beneficiaries of
the right of free movement within the Union in accordance with Directive 2004/38/EC or
with an agreement between the Union or the Union and its Members States on the one
hand, and a third country on the other hand;
Article 24
General provisions on flagging
1.
Where a Member State considers that to give effect to an alert entered in accordance with
Article 26, 32
, or 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.
2.
In order to enable Member States to require that a flag be added to an alert entered in
accordance with Article 26, all Member States shall be notified automatically of any new alert
of that category through the exchange of supplementary information.
3.
If in particularly urgent and serious cases, an issuing Member State requests the execution of
the action, the executing Member State shall examine whether it is able to allow the flag
added at its behest to be withdrawn. If the executing Member State is able to do so, it shall
take the necessary steps to ensure that the action to be taken can be carried out immediately.’
10862/21
LJP/sbr
2
ANNEX
JAI.1
LIMITE
EN
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 in the interest of the Union on third-
country nationals in SIS for the purpose of informing end-users carrying out a search in
SIS of the suspected involvement of those third-country nationals in terrorist offences or
in serious and organised crime as listed in Annex I to Regulation (EU) 2016/794, as well
as for the purpose of obtaining the information set out in Article 37b.
2.
Information alerts shall be entered in SIS in accordance with point r) of Article 4 of
Regulation (EU) 2016/794, upon a proposal by Europol to enter an alert on the basis of
information from third countries or international organisations. To this end, Europol
shall make available the information it holds on the case to the Member State requested
to enter the alert.
3.
Information alerts shall be entered in SIS at the discretion of the issuing Member State
and shall be subject to the verification and analysis of Europol’s proposal to enter an
alert by the issuing Member State.
4.
Member States may refuse entering the alert upon the proposal by Europol or may also
decide to enter another type of alert on the same person.
5.
Where Europol has relevant additional or modified data in relation to an alert that was
entered upon its proposal, it shall transmit them without delay, through the exchange of
supplementary information, to the issuing Member State to enable the latter to complete
or modify the alert.
10862/21
LJP/sbr
3
ANNEX
JAI.1
LIMITE
EN
6.
Where Europol has evidence suggesting that data entered in SIS according to paragraph
1 of this Article are factually incorrect or have been unlawfully stored, it shall, through
the exchange of supplementarty 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.
7.
Where there is a clear indication that the objects referred to in points (a), (b), (c), (e),
(g), (h), (j) and (k) of Article 38(2) or non-cash means of payment are connected with a
person who is the subject of an 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 alert on the
person and the alert on the object shall be linked in accordance with Article 63.
8.
Member States shall put in place the necessary procedures for entering, updating and
deleting information alerts in SIS in accordance with this Regulation.
9.
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 7 of this
Article. Those implementing acts shall be adopted in accordance with the examination
procedure referred to in Article 76(2).
10862/21
LJP/sbr
4
ANNEX
JAI.1
LIMITE
EN
Article 37b
Execution of the action based on an 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:
(a) the fact that the person who is the subject of an alert has been located;
(b) the place, time and reason for the check;
(c) the route of the journey and destination;
(d) the persons accompanying the subject of the alert who can reasonably be expected to
be associated with the subject of the alert;
(e) objects used or carried, including travel documents;
(f) the circumstances in which the person was located.
2.
The executing Member State shall communicate the information referred to in
paragraph 1 through the exchange of supplementary information.
3.
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 this information shall not jeopardise the discreet
nature of the checks and the subject of the alert shall in no way be made aware of the
existence of the alert.
10862/21
LJP/sbr
5
ANNEX
JAI.1
LIMITE
EN
Article 48
Access to and search of data in SIS by Europol
1.
The European Union Agency for Law Enforcement Cooperation (Europol), established by
Regulation (EU) 2016/794
Europol shall, where necessary to fulfil its mandate, have the right
to access and search data in SIS. Europol may also exchange and further request
supplementary information in accordance with the provisions of the SIRENE Manual.
2.
Where a search by Europol reveals the existence of an alert in SIS, Europol shall inform the
issuing Member State through the exchange of supplementary information by means of the
Communication Infrastructure and in accordance with the provisions set out in the SIRENE
Manual. Until Europol is able to use the functionalities intended for the exchange of
supplementary information, it shall inform issuing Member States through the channels
defined by Regulation (EU) 2016/794.
3.
Europol may process the supplementary information that has been provided to it by Member
States for the purposes of comparing it with its databases and operational analysis projects,
aimed at identifying connections or other relevant links and for the strategic, thematic or
operational analyses referred to in points (a), (b) and (c) of Article 18(2) of Regulation (EU)
2016/794. Any processing by Europol of supplementary information for the purpose of this
Article shall be carried out in accordance with that Regulation.
4.
Europol's use of information obtained from a search in SIS or from the processing of
supplementary information shall be subject to the consent of the issuing Member State
that
provided the information either as issuing Member State or as executing Member State.
If the Member State allows the use of such information, its handling by Europol shall be
governed by Regulation (EU) 2016/794. Europol shall only communicate such information to
third countries and third bodies with the consent of the issuing Member State
that provided
the information and in full compliance with Union law on data protection.
10862/21
LJP/sbr
6
ANNEX
JAI.1
LIMITE
EN
5.
Europol shall:
(a) without prejudice to paragraphs 4 and 6, not connect parts of SIS nor transfer the data
contained in it to which it has access to any system for data collection and processing
operated by or at Europol, nor download or otherwise copy any part of SIS;
(b) notwithstanding Article 31(1) of Regulation (EU) 2016/794, delete supplementary
information containing personal data at the latest one year after the related alert has been
deleted. By way of derogation, where Europol has information in its databases or operational
analysis projects on a case to which the supplementary information is related, in order for
Europol to perform its tasks, Europol may exceptionally continue to store the supplementary
information when necessary. Europol shall inform the issuing and the executing Member
State of the continued storage of such supplementary information and present a justification
for it;
(c) limit access to data in SIS, including supplementary information, to specifically authorised
staff of Europol who require access to such data for the performance of their tasks;
(d) adopt and apply measures to ensure security, confidentiality and self-monitoring in
accordance with Articles 10, 11 and 13;
(e) ensure that its staff who are authorised to process SIS data receive appropriate training and
information in accordance with Article 14(1); and
(f) without prejudice to Regulation (EU) 2016/794, allow the European Data Protection
Supervisor to monitor and review the activities of Europol in the exercise of its right to access
and search data in SIS and in the exchange and processing of supplementary information.
10862/21
LJP/sbr
7
ANNEX
JAI.1
LIMITE
EN
6.
Europol shall only copy data from SIS for technical purposes where such copying is necessary
in order for duly authorised Europol staff to carry out a direct search. This Regulation shall
apply to such copies. The technical copy shall only be used for the purpose of storing SIS data
whilst those data are searched. Once the data have been searched they shall be deleted. Such
uses shall not be considered to be unlawful downloading or copying of SIS data. Europol shall
not copy alert data or additional data issued by Member States or from CS-SIS into other
Europol systems.
7.
For the purpose of verifying the lawfulness of data processing, self-monitoring and ensuring
proper data security and integrity, Europol shall keep logs of every access to and search in SIS
in accordance with the provisions of Article 12. Such logs and documentation shall not be
considered to be unlawful downloading or copying of part of SIS.
8.
Member States shall inform Europol through the exchange of supplementary information of
any hit on alert
issued under Article 37a s related to terrorist offences.
Member States shall also inform Europol through the exchange of supplementary
information of any hit on:
a) alerts issued under Article 37a; and
b) alerts related to terrorist offences which are not issued under Article 37(a).
Member States may exceptionally not inform Europol
of hits on alerts under point b) of this
paragraph if doing so would jeopardise current investigations, the safety of an individual or
be contrary to essential interests of the security of the issuing Member State.
9.
Paragraph 8 shall apply from the date that Europol is able to receive supplementary
information in accordance with paragraph 1.
10862/21
LJP/sbr
8
ANNEX
JAI.1
LIMITE
EN
Article 53
Review period for alerts on persons
1.
Alerts on persons shall be kept only for the time required to achieve the purposes for which
they were entered.
2.
A Member State may enter an alert on a person for the purposes of Article 26 and points (a)
and (b) of Article 32(1) for a period of five years. The issuing Member State shall review the
need to retain the alert within the five year period.
3.
A Member State may enter an alert on a person for the purposes of Articles 34 and 40 for a
period of three years. The issuing Member State shall review the need to retain the alert
within the three year period.
4.
A Member State may enter an alert on a person for the purposes of points (c), (d) and (e) of
Article 32 (1)
, and of Article 36
, and of Article 37a for a period of one year. The issuing
Member State shall review the need to retain the alert within the one year period.
5.
Each Member State shall, where appropriate, set shorter review periods in accordance with its
national law.
6.
Within the review period referred to in paragraphs 2, 3
, and 4
, and 5, the issuing Member
State may, following a comprehensive individual assessment, which shall be recorded, decide
to retain the alert on a person for longer than the review period, where this proves necessary
and proportionate for the purposes for which the alert was entered. In such cases paragraph 2,
3
, or 4
, and 5 of this Article shall also apply to the extension. Any such extension shall be
communicated to CS-SIS.
7.
Alerts on persons shall be deleted automatically after the review period referred to in
paragraphs 2, 3
, and 4
, and 5 has expired, except where the issuing Member State has
informed CS-SIS of an extension pursuant to paragraph 6
of this Article. CS-SIS shall
automatically inform the issuing Member State of the scheduled deletion of data four months
in advance.
10862/21
LJP/sbr
9
ANNEX
JAI.1
LIMITE
EN
8.
Member States shall keep statistics on the number of alerts on persons the retention periods of
which have been extended in accordance with paragraph 6 of this Article and transmit them,
upon request, to the supervisory authorities referred to in Article 69.
Article 55
Deletion of alerts
1.
Alerts for arrest for surrender or extradition purposes pursuant to Article 26 shall be deleted
when the person has been surrendered or extradited to the competent authorities of the issuing
Member State. They shall also be deleted when the judicial decision on which the alert was
based has been revoked by the competent judicial authority in accordance with national law.
They shall also be deleted upon the expiry of the alert in accordance with Article 53.
2.
Alerts on missing persons or vulnerable persons who need to be prevented from travelling
pursuant to Article 32 shall be deleted in accordance with the following rules:
(a) concerning missing children and children at risk of abduction, an alert shall be deleted
upon:
(i) the resolution of the case, such as when the child has been located or
repatriated
or the competent authorities in the executing Member State have taken a decision on the
care of the child;
(ii) the expiry of the alert in accordance with Article 53; or
(iii) a decision by the competent authority of the issuing Member State;
10862/21
LJP/sbr
10
ANNEX
JAI.1
LIMITE
EN
(b) concerning missing adults, where no protective measures are requested, an alert shall be
deleted upon:
(i) the execution of the action to be taken, where their whereabouts are ascertained by
the executing Member State;
(ii) the expiry of the alert in accordance with Article 53; or
(iii) a decision by the competent authority of the issuing Member State;
(c) concerning missing adults where protective measures are requested, an alert shall be
deleted upon:
(i) the carrying out of the action to be taken, where the person is placed under
protection;
(ii) the expiry of the alert in accordance with Article 53; or
(iii) a decision by the competent authority of the issuing Member State;
(d) concerning vulnerable persons who are of age who need to be prevented from travelling
for their own protection and children who need to be prevented from travelling, an alert shall
be deleted upon:
(i) the carrying out of the action to be taken such as the person's placement under
protection;
(ii) the expiry of the alert in accordance with Article 53; or
(iii) a decision by the competent authority of the issuing Member State.
Without prejudice to the national law, where a person has been institutionalised following a
decision by a competent authority an alert may be retained until that person has been
repatriated.
10862/21
LJP/sbr
11
ANNEX
JAI.1
LIMITE
EN
3.
Alerts on persons sought for a judicial procedure pursuant to Article 34 shall be deleted
upon:
(a) the communication of the whereabouts of the person to the competent authority of the
issuing Member State;
(b) the expiry of the alert in accordance with Article 53; or
(c) a decision by the competent authority of the issuing Member State.
Where the information in the communication referred to in point (a) cannot be acted upon, the
SIRENE Bureau of the issuing Member State shall inform the SIRENE Bureau of the
executing Member State in order to resolve the problem.
In the event of a hit where the address details were forwarded to the issuing Member State and
a subsequent hit in the same executing Member State reveals the same address details, the hit
shall be recorded in the executing Member State but neither the address details nor
supplementary information shall be resent to the issuing Member State. In such cases the
executing Member State shall inform the issuing Member State of the repeated hits and the
issuing Member State shall carry out a comprehensive individual assessment of the need to
retain the alert.
4.
Alerts for discreet, inquiry and specific checks pursuant to Article 36, shall be deleted upon:
(a) the expiry of the alert in accordance with Article 53; or
(b) a decision to delete them by the competent authority of the issuing Member State.
4a. Information alerts in the interest of the Union pursuant to Article 37a, shall be deleted
upon:
(a) the expiry of the alert in accordance with Article 53; or
(b) a decision to delete them by the competent authority of the issuing Member State.
10862/21
LJP/sbr
12
ANNEX
JAI.1
LIMITE
EN
5.
Alerts on objects for seizure or use as evidence in criminal proceedings pursuant to Article 38,
shall be deleted upon:
(a) the seizure of the object or equivalent measure once the necessary follow-up exchange of
supplementary information has taken place between the SIRENE Bureaux concerned or the
object becomes the subject of another judicial or administrative procedure;
(b) the expiry of the alert in accordance with Article 53; or
(c) a decision to delete them by the competent authority of the issuing Member State.
6.
Alerts on unknown wanted persons pursuant to Article 40 shall be deleted upon:
(a) the identification of the person;
(b) the expiry of the alert in accordance with Article 53; or
(c) a decision to delete them by the competent authority of the issuing Member State.
7.
Where it is linked to an alert on a person, an alert on an object entered in accordance with
Articles 26, 32, 34
, and 36
and 37a shall be deleted when the alert on the person is deleted in
accordance with this Article.
10862/21
LJP/sbr
13
ANNEX
JAI.1
LIMITE
EN
CHAPTER XV
General data processing rules
Article 56
Processing of SIS data
1.
The Member States shall only process the data referred to in Article 20 for the purposes laid
down for each category of alert referred to in Articles 26, 32, 34, 36,
37a, 38 and 40.
2.
Data shall only be copied for technical purposes, where such copying is necessary in order for
the competent authorities referred to in Article 44 to carry out a direct search. This Regulation
shall apply to those copies. A Member State shall not copy the alert data or additional data
entered by another Member State from its N.SIS or from the CS-SIS into other national data
files.
3.
Technical copies referred to in paragraph 2 which result in offline databases may be retained
for a period not exceeding 48 hours.
Member States shall keep an up-to-date inventory of those copies, make that inventory
available to their supervisory authorities, and ensure that this Regulation, in particular Article
10, is applied in respect of those copies.
4.
Access to data in SIS by national competent authorities referred to in Article 44 shall only be
authorised within the limits of their competence and only to duly authorised staff.
10862/21
LJP/sbr
14
ANNEX
JAI.1
LIMITE
EN
5.
With regard to the alerts laid down in Articles 26, 32, 34, 36,
37a, 38 and 40 of this
Regulation, any processing of information in SIS for purposes other than those for which it
was entered into SIS has to be linked with a specific case and justified by the need to prevent
an imminent and serious threat to public policy and to public security, on serious grounds of
national security or for the purposes of preventing a serious crime. Prior authorisation from
the issuing Member State shall be obtained for this purpose.
6.
Any use of SIS data which does not comply with paragraphs 1 to 5 of this Article shall be
considered as misuse under the national law of each Member State and subject to penalties in
accordance with Article 73.
7.
Each Member State shall send to eu-LISA a list of its competent authorities which are
authorised to search the data in SIS directly pursuant to this Regulation, as well as any
changes to the list. The list shall specify, for each authority, which data it may search and for
what purposes. eu-LISA shall ensure that the list is published in the Official Journal of the
European Union annually. eu-LISA shall maintain a continuously updated list on its website
containing changes sent by Member States between the annual publications.
8.
Insofar as Union law does not lay down specific provisions, the law of each Member State
shall apply to data in its N.SIS.
10862/21
LJP/sbr
15
ANNEX
JAI.1
LIMITE
EN
CHAPTER XVIII
Final provisions
Article 79
Entry into force, start of operation and application
1.
This Regulation shall enter into force on the twentieth day following its publication in the
Official Journal of the European Union.
2.
No later than 28 December 2021 the Commission shall adopt a decision setting the date on
which SIS operations start pursuant to this Regulation, after verification that the following
conditions have been met:
(a) the implementing acts necessary for the application of this Regulation have been adopted;
(b) Member States have notified the Commission that they have made the necessary technical
and legal arrangements to process SIS data and exchange supplementary information pursuant
to this Regulation; and
(c) eu-LISA has notified the Commission of the successful completion of all testing activities
with regard to CS-SIS and to the interaction between CS-SIS and N.SIS.
3.
The Commission shall closely monitor the process of gradual fulfilment of the conditions set
out in paragraph 2 and shall inform the European Parliament and the Council about the
outcome of the verification referred to in that paragraph.
4.
By 28 December 2019 and every year thereafter until the decision of the Commission referred
to in paragraph 2 has been taken, the Commission shall submit a report to the European
Parliament and to the Council on the state of play of preparations for the full implementation
of this Regulation. That report shall contain also detailed information about the costs incurred
and information as to any risks which may impact the overall costs.
10862/21
LJP/sbr
16
ANNEX
JAI.1
LIMITE
EN
5.
This Regulation shall apply from the date determined in accordance with paragraph 2.
By way of derogation from the first subparagraph:
(a) Article 4(4), Article 5, Article 8(4), Article 9(1) and (5), Article 12(8), Article 15(7),
Article 19, Article 20(4) and (5), Article 26(6), Article 32(9), Article 34(3), Article 36(6),
Article 38(3) and (4), Article 42(5), Article 43(4), Article 54(5), Article 62(4), Article 63(6),
Article 74(7) and (10), Article 75, Article 76, points (1) to (5) of Article 77, and paragraphs 3
and 4 of this Article shall apply from the date of entry into force of this Regulation;
(b) points (7) and (8) of Article 77 shall apply from 28 December 2019;
(c) point 6 of Article 77 shall apply from 28 December 2020.
6.
The Commission decision referred to in paragraph 2 shall be published in the Official Journal
of the European Union.
7.
The Commission shall adopt a decision setting the date on which Member States shall
start entering, updating and deleting data in SIS according to Article 37a of this
Regulation as amended by Regulation [XXX], after verification that the following
conditions have been met:
(a) the implementing acts adopted pursuant to this Regulation have been amended to
the extent necessary for the application of this Regulation as amended by
Regulation [XXX];
(b) Member States have notified the Commission that they have made the necessary
technical and procedural arrangements to process SIS data and exchange
supplementary information pursuant to this Regulation as amended by Regulation
[XXX];
(c) eu-LISA has notified the Commission of the successful completion of all testing
activities with regard to CS-SIS and to the interaction between CS-SIS and N.SIS.
This decision shall be published in the Official Journal of the European Union.
10862/21
LJP/sbr
17
ANNEX
JAI.1
LIMITE
EN
This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaties.
Article 2
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.
It shall apply from the date determined in accordance with Article 79(7) of Regulation (EU)
2018/1862.
This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaties.
Done at Brussels,
For the European Parliament
For the Council
The President
The President
10862/21
LJP/sbr
18
ANNEX
JAI.1
LIMITE
EN
