51997AP0062

A4-0062/97

Draft Council act drawing up the Convention on the establishment of the European Information System (9277/1/95 - C4-0249/95/rev.)

The draft was approved with the following amendments:

(Amendment 1)

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DRAFT COUNCIL ACT of... drawing up the Convention on the establishment of the European Information System

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THE COUNCIL OF THE EUROPEAN UNION

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HAVING REGARD to the Treaty on European Union, and in particular Article K.3(2)(c) thereof;

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WHEREAS for the purposes of achieving the objectives of the Union, the Member States regard the rules governing the crossing by persons of the external borders of the Member States and exercise of controls thereon, judicial cooperation and police cooperation as matters of common interest coming under the cooperation provided for in Title VI of the Treaty;

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HAS DECIDED on the drawing up of the Convention, the text of which is annexed, which has been signed this day by the Representatives of the Governments of the Member States of the Union;

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RECOMMENDS that it be adopted by the Member States in accordance with their respective constitutional requirements.

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ANNEX

CONVENTION

(Amendment 2)

Title and citations

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CONVENTION drawn up on the basis of Article K.3 of the Treaty on European Union on the establishment of the European Information System

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Council Regulation (EC) No....of...establishing a European Information System to assist in checks at external frontiers and the free movement of persons

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THE HIGH CONTRACTING PARTIES to the present Convention, Member States of the European Union,

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The Council of the European Union,

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REFERRING to the Act of the Council of the European Union of...

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Having regard to the Treaty establishing the European Community, and in particular Article 235 thereof,

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Having regard to the amended proposal of the Presidency(1)

(1) 9277/1/95 CK 4 36 REV 1

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Having regard to the opinion of the European Parliament,

(Amendment 3)

Recital -1 (new)

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Whereas the removal of internal frontiers has created a situation such that checks on persons must be carried out in some other way; whereas Community-wide computerized systems are required for this;

(Amendment 34)

Recital 1

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Considering the common objective of an area without internal frontiers in which persons can move freely in accordance with the provisions of Article 7a of the Treaty establishing the European Community;

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Considering the common objective of the maintenance and development of an area of freedom, security and justice in which the free movement of persons is ensured as provided for in Article 7a;

(Amendment 35)

Recitals 3 and 4

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Whereas the attainment of this objective also implies that progress be made in police and judicial cooperation between the Member States of the European Union, notably through the rapid dissemination of information on persons who need to be sighted, reported or arrested;

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Whereas the attainment of this objective also implies that progress be made in customs, police and judicial cooperation between the Member States of the European Union, notably through the rapid dissemination of information on persons who need to be sighted, reported or arrested;

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Whereas such progress must enable public order and security to be maintained and illegal immigration to be effectively countered;

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Whereas such progress must enable public order and security to be maintained and illegal immigration to be countered effectively in accordance with the principle of the rule of law;

(Amendment 36)

Recitals 5a, 5b, 5c, 5d and 5e (new)

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Whereas account should be taken of Council of Europe Convention 108 for the Protection of Individuals with regard to the Automatic Processing of Personal Data (1981);

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Whereas it is desirable to acknowledge the possibility of opening up the Information System to participation by third countries which share the interest of the Community and its Member States in achieving the objectives of the Information System, through agreements concluded between such countries and the Community;

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Whereas this Regulation may be modified, where appropriate, after a period of three years has elapsed, with a view to taking a decision on a possible extension of the tasks of the Information System, in particular in the light of changes in Community powers;

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Whereas, although Article K.1 of the Treaty on European Union refers to controls at the external borders, the powers under Title VI of the Treaty apply only if there are no Community powers; whereas this issue is intimately linked with the freedom of movement of persons;

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Whereas the Treaty provides no other powers than those contained in Article 235 for the adoption of this Regulation;

(Amendment 4)

Chapter 1, Article 1, title (new) and (1)

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1. The Member States of the European Union shall set up and maintain a joint information system, hereinafter referred to as the European Information System, consisting of a national section to be established and maintained in each of the Member States and a separate technical support function. The European Information System shall enable the authorities designated by the Member States, by means of an automated search procedure, to have access to reports on persons and objects for the purposes of border checks and controls and other police and customs checks carried out within the territory of each Member State in accordance with national law, and, for the category of information referred to in Article 5 of this Convention, for the purposes of issuing visas and residence permits and the administration of aliens in the context of the application of the provisions of the Convention between the Member States of the European Communities on the Crossing of their External Frontiers, hereinafter referred to as the External Frontiers Convention.

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Introduction

1. The Member States of the European Union and the Commission shall set up and maintain a joint information system, hereinafter referred to as the European Information System, consisting of a national section to be established and maintained in each of the Member States and a separate technical support function. The European Information System shall enable the authorities designated by the Member States, by means of an automated search procedure, to have access to reports on persons and objects for the purposes of border checks and controls and other police and customs checks carried out within the territory of each Member State in accordance with national law, and, for the category of information referred to in Article 5 of this Regulation, for the purposes of issuing visas and residence permits and the administration of aliens in the context of the application of the provisions of the Regulation on the Crossing of their External Frontiers, hereinafter referred to as the External Frontiers Regulation.

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(The word 'Convention' to be replaced with 'Regulation' throughout)

(Amendment 5)

Chapter 1, Article 1(3)

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3. Member States shall set up and maintain jointly, and with joint liability for risks, the technical support function of the European Information System, the responsibility for which shall be assumed by the French Republic: the technical support function shall be located in Strasbourg. The technical support function shall consist of a data file which will be used to ensure that the data files of the national sections are kept identical by the on-line transmission of information. The data file of the technical support function shall contain reports on persons and objects where these are of concern to all the Member States. The data file of the technical support function shall contain no other data than those referred to in this paragraph and in Article 19.

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3. The Commission shall set up and maintain and shall be responsible, subject to its powers, for the technical support function of the European Information System, the appropriate work for which shall be carried out by the French Republic under the responsibility of the Commission: the technical support function shall be located in Strasbourg. The technical support function shall consist of a data file which will be used to ensure that the data files of the national sections are kept identical by the on-line transmission of information. The data file of the technical support function shall contain reports on persons and objects where these are of concern to all the Member States. The data file of the technical support function shall contain no other data than those referred to in this paragraph and in Article 19.

(Amendment 6)

Chapter 1, Article 1a (new)

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Objective

Article 1a

1. The European Information System is a system which in principle provides customs, police and judicial authorities with information concerning criminal acts and threats to public order which are so serious that, in the Community where the free movement of persons is possible,

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(a) notification may be useful for the police and judicial authorities of other Member States,

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(b) on the basis of the information persons may be arrested or extradited,

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(c) cross-border cooperation in one form or another is needed.

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The European Information System may under no circumstances contain information of purely local or national importance.

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2. The European Information System can also play a part in:

(a) a common asylum policy.

(b) visa policy,

(c) ascertaining whether a missing person is still alive.

(Amendment 7)

Chapter 1, Article 1b (new)

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Article 1b

Whenever personal data are provided by the European Information System, the reason for including such data and the category into which they fall must be clearly indicated on the screen.

(Amendment 8)

Chapter 2, Article 2

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The purposes of the European Information System shall be to maintain public order and security, including state security, and to allow for the operation of the External Frontiers Convention, in particular in order to support the implementation of the principle of free movement of persons in accordance with the Treaty establishing the European Community, using information transmitted by the system.

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The purposes of the European Information System shall be to allow for the operation of the External Frontiers Regulation, both within the territory of the Community and at its external frontiers, without any loss of security, in particular in order to support the implementation of the principle of free movement of persons in accordance with the Treaty establishing the European Community, using information transmitted by the system.

(Amendment 9)

Chapter 2, Article 3(4)

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4. Insofar as a Member State considers that a report in accordance with Articles 4, 6 or 8 is incompatible with its national law, its international obligations or essential national interests, it may subsequently have added to the report in the data file of its national section of the European Information System a note to the effect that the action referred to will not be taken in its territory in connection with the reasons for the report and in this circumstance must consult all other Member States. If the reporting Member State does not withdraw the report, it will continue to apply in full for all other Member States.

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4. Insofar as a Member State considers that a report in accordance with Articles 4, 6 or 8 is incompatible with its national law, its international obligations or essential national interests, it may subsequently have added to the report in the data file of its national section of the European Information System a note to the effect that the action referred to will not be taken in its territory in connection with the reasons for the report and in this circumstance must consult the Commission and all other Member States. If the reporting Member State does not withdraw the report, it will continue to apply in full for all other Member States.

(Amendment 10)

Chapter 2, Article 4(1)

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1. Data relating to persons wanted for arrest for extradition purposes shall be included at the request of the competent authority of the requesting Member State.

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1. Data relating to persons wanted for arrest for extradition purposes shall be included at the request of the competent authority of the requesting Member State. Such a report shall be possible only if the circumstances justifying arrest in that Member State apply and the requisite formalities have been completed.

(Amendment 11)

Chapter 2, Article 8(2)

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2. Such a report may be made for the purposes of preventing criminal offences and for the prevention of threats to public security:

(a) where substantial evidence gives reason to believe that the person concerned intends to commit or is committing numerous and extremely serious offences, or;

(b) where an overall evaluation of the person concerned, in particular on the basis of offences committed hitherto, gives reason to suppose that he will also commit extremely serious offences in future.

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2. Such a report may be made for the purposes of maintaining public order, preventing criminal offences and for the prevention of threats to public security where substantial reliable evidence gives reason to believe that the person concerned intends to commit or is committing serious offences or is implicated in such acts.

(Amendment 12)

Chapter 2, Article 9(4)

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4. In addition to these categories of objects, other categories of stolen, misappropriated or lost objects may be included in the European Information System by decision of the Executive Committee. Such a decision should also cover the length of time for retaining information in data as set out in Article 18 of this Convention.

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4. In addition to these categories of objects, other categories of stolen, misappropriated or lost objects, or counterfeit and pirated goods may be included in the European Information System by decision of the Executive Committee. Such a decision should also cover the length of time for retaining information in data as set out in Article 18 of this Regulation.

(Amendment 13)

Chapter 3, Article 10(2a) (new)

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2a. The Commission may only take note of general data, for example, number and categories of and reasons for records, should this prove necessary for the functioning of the system. In order to deal with complaints the Commission may search the data relating to the complaint. The number of officials of the Commission with access to the system as a result shall be kept to a strict minimum.

(Amendment 14)

Chapter 3, Article 10(4)

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4. Each of the Member States shall communicate to the Executive Committee a list of the competent authorities which are authorized to search the data included in the European Information System directly. That list shall indicate for each authority the data which it may search, and for what purpose.

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4. Each of the Member States shall communicate to the Commission a list of the competent customs, police and judicial authorities which are authorized to search the data included in the European Information System directly. That list shall indicate for each authority the data which it may search, and for what purpose.

(Amendment 15)

Chapter 3, Article 17(1)

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1. Personal data included in the European Information System on the basis of Articles 4 to 8 shall be kept only for the time required to achieve the purpose for which they were supplied. No later than three years after their inclusion, the need for their retention must be reviewed by the reporting Member State. This period shall be one year in the case of reports referred to in Article 8.

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1. Personal data included in the European Information System on the basis of Articles 4 to 8 shall be kept only for the time required to achieve the purpose for which they were supplied. No later than one year after their inclusion, the need for their retention must be reviewed by the reporting Member State.

(Amendment 16)

Chapter 3, Article 20(1)

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1. The right of any person to have access to data relating to him which are included in the European Information System shall be exercised in accordance with the law of the Member State before which he invokes that right. If the national law so provides, the national supervisory authority provided for in Article 31 shall decide whether information shall be communicated to him and by what procedures. A Member State which has not made the report may communicate information concerning such data only if it has previously given the reporting Member State an opportunity to state its position.

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1. The right of any person to have access to data relating to him which are included in the European Information System shall be exercised in accordance with the law of the Member State before which he invokes that right. If the national law so provides, the national supervisory authority provided for in Article 31 shall decide whether information shall be communicated to him and by what procedures. A Member State which has not made the report shall forward this request, via the Commission, to the Member State which has made the report.

(Amendment 17)

Chapter 3, Article 20(2)

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2. Communication of information to the person concerned shall be refused if it may undermine the performance of the legal task specified in the report, or in order to protect the rights and freedoms of others. It shall be refused in any event during the period of reporting for the purposes of sighting and reporting specified in Article 8 of this Convention.

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2. Communication of information to the person concerned shall be refused if it may undermine the performance of the legal task specified in the report, or in order to protect the rights and freedoms of others. The person concerned shall be informed of the refusal, with the appropriate reasons, within two months in the case of normal refusal; in the case of sighting and reporting, notification of the refusal shall be given within two months, and the reasons shall be given no later than ten months thereafter.

(Amendment 18)

Chapter 3, Article 22(2a) and (2b) (new)

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2a. An appeal to the national courts or authorities shall not, in any way, be prejudicial to the possibility of submitting disputes to the Court of First Instance or the Court of Justice of the European Communities or to the possibility of submitting questions to the Court of Justice of the European Communities for a preliminary ruling.

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2b. Decisions by the Court of First Instance or the Court of Justice of the European Communities shall oblige the Member States and the Commission to make any changes to the implementation of this Regulation which may be necessitated by those decisions.

(Amendment 19)

Chapter 3, Article 25(a) and (b)

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(a) the data may be used by the recipient Member State solely for the purposes for which this Convention stipulates that such data may be transmitted; such data may be used for other purposes only with the prior authorization of the Member State which transmitted the data and in compliance with the law of the recipient Member State; such authorization may be granted insofar as the national law of the Member State transmitting the data permits;

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(a) the data may be used by the recipient Member State solely for the purposes for which this Regulation stipulates that such data may be transmitted;

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(b) the data may be used only by the judicial authorities and by the departments and authorities carrying out a task or performing a function in connection with the aims mentioned in paragraph (a);

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(b) the data may be used only by the judicial authorities and by the departments and authorities designated pursuant to Article 10;

(Amendment 20)

Chapter 3, Article 28(2)

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2. Each Member State must take special measures to ensure the security of data when they are being transmitted to services located outside the territories of the Member States. Such measures must be communicated to the joint supervisory authority referred to in Article 32.

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2. Each Member State must take special measures to ensure the security of data when they are being transmitted to its services located outside the territories of the Member States. Such measures must be communicated to the joint supervisory authority referred to in Article 32.

(Amendment 21)

Chapter 4, Article 29

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Article 29

1. The measures necessary for the management, control, supervision and general operation of the Convention are taken by the High Contracting Parties meeting within the Council.

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2. They shall act without prejudice to the powers of the authority referred to in Article 32(1).

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3. Decisions shall be taken unanimously by the High Contracting Parties.

(Amendment 22)

Chapter 4, Article 30(6)

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6. The Member States shall inform one another, via the depository, of the authorities referred to in paragraphs 1 and 4.

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6. The Member States shall inform the Commission of the authorities referred to in paragraphs 1 and 4. The Commission shall be responsible for publishing this information in the Official Journal.

(Amendment 23)

Chapter 4, Article 31(2)

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2. Any person shall have the right to ask national supervisory authorities to check the data concerning him which are included in the European Information System, and the use which is made of such data. That right shall be governed by the national law of the Member State to which the request is made. If the data have been included by another Member State, the check shall be carried out in close coordination with that Member State's supervisory authority.

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2. Any person shall have the right to ask national supervisory authorities to check the data concerning him which are included in the European Information System, and the use which is made of such data. That right shall be governed by the national law of the Member State to which the request is made. If the data have been included by another Member State, the request shall be forwarded, via the Commission, to the supervisory authority of the Member State which has included the data. The request shall be dealt with within two months.

(Amendment 24)

Chapter 4, Article 32(1), first subparagraph

>Original text>

1. A joint supervisory authority shall be set up, with responsibility for supervising the technical support function of the European Information System. This authority shall consist of not more than two representatives from each national supervisory authority. Each Member State shall have one vote.

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1. A joint supervisory authority shall be set up, with responsibility for supervising the use and functioning of the European Information System. This authority shall consist of not more than two representatives from each national supervisory authority and the Commission, which shall chair the authority. Each Member State shall have one vote. The Commission shall have a casting vote.

(Amendment 25)

Chapter 4, Article 32(2)

>Original text>

2. As regards the technical support function, the joint supervisory authority shall have the task of checking that the provisions of this Convention are properly implemented. For this purpose it shall have access to the technical support function.

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2. Without prejudice to the powers of the Commission, the joint supervisory authority shall have the task of checking that the provisions of this Regulation are properly implemented. For this purpose it shall have access to the technical support function.

(Amendment 26)

Chapter 4, Article 32(4)

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4. Reports drawn up by the joint supervisory authority shall be forwarded to the authorities to which the national supervisory authorities submit their reports.

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4. Reports drawn up by the joint supervisory authority shall be forwarded to the Commission, the Council, the European Parliament and to the authorities to which the national supervisory authorities submit their reports.

(Amendment 27)

Chapter 5, Article 33

>Original text>

1. The costs of setting up and using the technical support function referred to in Article 1(3), including the cost of means of communications between the national sections of the European Information System and the technical support function, shall be defrayed jointly by the Member States. Each Member State's share shall be determined according to the proportion of its gross national product to the sum total of the gross national products of the Member States for the year preceding the year in which the costs are incurred. For the purposes of this Article the expression 'gross national product' means the gross national product determined in accordance with Council Directive 89/130/EEC of 13 February 1989 or any amending or replacing Community instrument.

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1. The costs of setting up and using the technical support function referred to in Article 1(3), including the cost of means of communications between the national sections of the European Information System and the technical support function, shall be borne by the budget of the European Union.

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2. The costs of setting up and using the national section of the European Information System shall be borne by each Member State individually.

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2. The costs of setting up and using the national section shall be borne by each Member State individually.

(Amendment 28)

Chapter 6, Article 35

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This Convention shall not be the subject of any reservations, save for those referred to in Article 4(8).

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In the third year after the entry into force of this Regulation the Commission shall submit to the European Parliament and the Council a report on what has been achieved by the European Information System, together with proposals for modifying or extending the tasks of the System, in particular in the light of changes in the powers of the Community.

(Amendment 29)

Chapter 6, Article 36

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1. This Convention shall be subject to adoption by the Member States in accordance with their respective constitutional requirements.

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This Regulation shall enter into force one year after its publication in the Official Journal. It shall be binding in its entirety and directly applicable in all Member States.

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2. The Member States shall notify the depositary of the completion of their constitutional requirements for adopting this Convention.

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3. This Convention shall enter into force on the first day of the month following the expiry of a period of two months after the notification referred to in paragraph 2 by the last State, belonging to the European Union on the date of the adoption by the Council of the act establishing this Convention, to fulfil that formality.

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4. This Convention shall be applied four months after the date of its entry into force or, at the earliest, on the same date as the entry into force of the Convention on the crossing by persons of the external frontiers of Member States of the European Union.

>Original text>

5. Nevertheless, if the High Contracting Parties meeting within the Council find that the European Information System would not be operational and accessible in all Member States by the scheduled date, they shall, by a decision taken unanimously, postpone the implementation of this Convention until a later date.

(Amendment 30)

Chapter 6, Article 37

>Original text>

Article 37

1. This Convention shall be open to accession by any state that becomes a member of the European Union.

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Deleted

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2. The text of the Convention in the language of the acceding Member State, as drawn up by the Council of the European Union, shall be authentic.

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3. The instruments of accession shall be deposited with the depositary.

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4. This Convention shall enter into force with respect to any acceding Member State on the first day of the month following the expiry of a period of four months after the date of deposit of its instrument of accession or on the date of entry into force of the Convention if it has not already entered into force at the time of expiry of the aforementioned period, but in no circumstances before the date of entry into force, with respect to the acceding Member State, of the Convention on the crossing by persons of the external frontiers of Member States of the European Union.

>Original text>

5. Nevertheless, if the High Contracting Parties meeting within the Council find that the European Information System would not be operational and accessible by the scheduled date in the acceding Member State, they shall, by a decision taken unanimously, postpone the implementation of this Convention in respect of that Member State until a later date.

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(Amendment 31)

Chapter 6, Article 38

>Original text>

Article 38

1. Amendments to this Convention may be proposed by any Member State that is a High Contracting Party. Any proposed amendment shall be sent to the depositary, who shall communicate it to the Council and the Commission.

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Deleted

>Original text>

2. Amendments shall be adopted by the Council, which shall recommend them to the Member States for adoption in accordance with their respective constitutional requirements.

>Original text>

3. Amendments adopted in accordance with paragraph 2 shall enter into force in accordance with the provisions of Article 36(3).

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(Amendment 32)

Chapter 6, Article 39

>Original text>

Article 39

1. The Secretary-General of the Council of the European Union shall act as depositary of this Convention.

2. The depositary shall publish in the Official Journal of the European Communities information on the progress of adoptions and accessions, implementation, declarations and reservations, and also any other notification concerning this Convention.

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Deleted

(Amendment 33)

Closing formula

>Original text>

IN WITNESS WHEREOF, The undersigned Plenipotentiaries have hereunto set their hands.

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Deleted

>Original text>

DONE at..., ..., in a single original, in the Danish, Dutch, English, Finnish, French, German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages, each text being equally authentic, such original remaining deposited in the archives of the General Secretariat of the Council of the European Union.

Legislative resolution embodying Parliament's opinion on the draft Council act drawing up the Convention on the establishment of the European Information System (12029/94 - 9277/1/95 - C4-0249/95/rev.)

(Consultation procedure)

The European Parliament,

- having regard to the Council draft act (9277/1/95),

- having been consulted by the Council pursuant to the second paragraph of Article K.6 of the Treaty on European Union (C4-0249/95/rev.),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinions of the Committee on Legal Affairs and Citizens' Rights, the Committee on Budgetary Control and the Committee on Economic and Monetary Affairs and Industrial Policy (A4-0062/97),

1. Approves the Council draft, subject to Parliament's amendments;

2. Calls on the Council and the Commission to notify Parliament of their intentions regarding the text approved by Parliament;

3. Instructs its President to forward this opinion to the Council and Commission.