BRAVE NEW BORDERS Lecture 2: Data Bases Jorrit Rijpma Academy 2013 EUI Summer Leiden University. The university to discover.
Today’s Lecture - Case Study: Aristide and Joelle - SIS II VIS Eurodac Case law questioning the legality of data storage and the use of biometrics - EU-Lisa Leiden University. The university to discover.
Schengen Information System (SIS) One of the first and foremost flanking measures. C-SIS, N-SIS. Hit/No hit basis. SIRENE bureaux - Supplementary Information Request at the National Entry Based on the CISA, given a legal basis under the Treaty following the Treaty of Amsterdam Leiden University. The university to discover.
SIS: statistics Leiden University. The university to discover.
SIS: statistics Leiden University. The university to discover.
SIS Data, Article 94(3) CISA For persons, the information shall be no more than the following: a) surname and forenames, any aliases possibly entered separately; b) any specific objective physical characteristics not subject to change; c) first letter of second forename; d) date and place of birth; e) sex; f) nationality; g) whether the persons concerned are armed; h) whether the persons concerned are violent; i) reason for the alert; Leiden University. The university to discover.
The Road to SIS II was long and winding… SIS (1995), SIS 1+ (2001), SISone 4 all (2007) 2001: Commission tasked with project management of SIS II 2004: Additional access rights granted (Reg. 871/2004) 2006: Regulation 1987/2006/EC and Decision 2007/533/JHA 2007: Target Date (March) 2013: Entry into Force (April) Leiden University. The university to discover.
SIS II It has been clear from the earliest conception of SIS II that this system should be a flexible tool (…) The conclusions set out in point II. 1 concern the technical implications of the functional requirements and will be included in the call for tender for SIS II. However, this does not affect the need for political and legislative decisions in order to implement these new requirements. Leiden University. The university to discover.
SIS II It is difficult to see how there can be a proper assessment of the potential implications of the SIS II when its development is to be so flexible that it is unclear what form the system will ultimately take … [and] must also make it more difficult for those developing the system to take account of the principle of proportionality Joint Supervisory Authority (2004) Leiden University. The university to discover.
SIS II: New functionalities - Enhanced alerts on persons and objects - New categories of alerts: stolen aircrafts, boats, industrial equipment, securities, etc. - Direct queries in the central system - Linking of alerts on persons, objects & vehicles - Biometric data - European Arrest Warrant attached directly to alert for persons wanted for arrest for surrender or extradition - Information on misused identity preventing the misidentification Leiden University. The university to discover.
SIS II: Access depends on the nature of the alert (criminal/non-criminal) Article 27 Reg. 1987/2006 grants access to the authorities responsible for identification of TCNs for the purpose of: - Border controls - Other Police and Custom checks 2004: Counter-terrorism legislation providing for access for: Europol and Eurojust National judicial authorities Leiden University. The university to discover.
Fragmented Data Protection Regime 1) Regulation (EC) No 45/2001 (EU Institutions and bodies) 2) Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data 3) Council Framework Decision 2008/977/JHA (Police and Judicial Cooperation in criminal matters) Note 1: Chapters VI of the SIS II, VIS and Eurodac Regulation contain specifications to the general rules Leiden University. The university to discover.
Fragmented Data Protection Regime Article 16 TFEU: legal basis for comprehensive data protection legislation 1) Proposal for a Regulation COM(2012)11 final (Free movement data) 2) Proposal for a Directive – COM(2012)10 final (Prevention, investigation, detection or persecution of criminal offences) See art. 59 on specific Leiden University. Thein provisions university to discover.
SIS II: Individual Rights Article 41: Right of access, correction and deletion of unlawfully stored data in accordance with national law Article 42 Right of information Article 43: Remedies as regards the right to access, correct, delete or obtain information or to obtain compensation in connection with an Leiden University. The university to alert, before any national court ordiscover.
SIS II: Individual Rights Article 43: Member States shall undertake to mutually enforce decisions Van Straaten: Case C-150/05 SIS alert from Italy, challenged before Dutch Court. Dutch authorities cannot remove entry, but Italy would have to respect Court order as regards the legality of the entry. The other side of the Moon (Brouwer 2008) Leiden University. The university to discover.
SIS II: Individual Rights Leiden University. The university to discover.
SIS II: Individual Rights It took the couple twelve years until the German authorities were forced to delete the entry in 2007. An alert based on Article 96 (2) CISA, requires “substantial grounds” (gewisse Erheblichkeit) of a threat to public policy or security (BVerf. G 9. 11. 2006, Bv. R 1908/03, § 3) Constitutional rights could not be limited on Leiden University. of fear” the basis of “vague assumptions. The university to discover.
SIS II: Individual Rights Also France, Portugal and Austria had entered alerts. Court cases in France (Constitutional Court), Belgium (Administrative Court of Appeal), the Netherlands (District Court and Court of Appeal) Overall tendency: respect for the alert entered by another Member State. Leiden University. The university to discover.
Relation Free Movement and SIS II Commission v Spain: Case C-503/03 Family member of EU citizens have rights of free movement under EU law. Directive 2004/38 determines that MS can ask for a visa where required by the visa regulation, they must grant family members every facility for obtaining any necessary visas. A visa must be issued without delay and, as far as possible, at the place of entry Leiden University. The university discover. into national territory (MRAX, paragraphto 60).
Relation Free Movement and SIS II Mr Farid and Mr Bouchair, spouses of Spanish citizens living in another EU MS were refused entry to/a visa for Spain on the basis of a SIS alert. Exceptions under 2004/38 on the basis of public policy require a individualised, genuine present and sufficiently serious threat for a fundamental interest of society. Spain therefore had to check whether the Leiden University. The university to discover. SIS alert fulfill those criteria.
Relation Return Directive and SIS II Meijer Committee, Joint Supervisory Authority (SIS) At the time of adoption of the Return Directive the Commission stated that the review of the SIS II (envisaged under the review clause of Article 24(5) of Regulation (EC) No 1987/2006) will be an opportunity to propose an obligation to register in the SIS entry bans issued under this Directive (Return Directive 2008/115/EC). Leiden University. The university to discover.
Relation Return Directive and SIS II Article 3(6): Entry ban Administrative or judicial decision or act prohibiting entry into and stay on the territory of the Member States for a specified period, accompanying a return decision Recital 18: MS should have “rapid access to information on entry bans” issued by other Member States, in accordance with Regulation (EC) No 1987/2006 (SIS II) Leiden University. The university to discover.
Relation Return Directive and SIS II Article 11: Entry ban Return decisions shall be accompanied by an entry ban: (a) if no period for voluntary departure has been granted, or (b) if the obligation to return has not been complied with. In other cases return decisions may be accompanied by an entry ban. 2. Duration determined. Leidenlight of all relevant in University. The university to discover.
Relation Return Directive and SIS II alert for refusing entry Article 21: proportionality requirement. Is the case adequate, relevant and important enough to warrant entry of the alert? Article 24 (2): reasons of public policy and national security Article 24(3): migration policy TCN has been subject to removal order which has not been rescinded or suspended, that includes or is Leiden University. The university to discover.
Visa Information System 1) Council Decision 2004/512 establishing VIS 2) Council Decision 2008/633 concerning access for consultation of the VIS by law enforcement authorities and Europol 3) Regulation 767/2008 concerning the VIS and the exchange of data between MS on short-stay visa Leiden University. The university Centralised infrastructure connected to to discover.
VIS: Statistics Gradual roll-out: 1 st region on 11 October 2011 (North Africa) 6 th and 7 th region as of 6 June 2013 (Africa – other) As per 22 November 2012: 3 regions + additional consulates: 1. 9 million applications, 1. 5 million accepted, 235. 000 refused The central system had dealt with almost 40 million operations. (COM(2013) 232 final) Leiden University. The university to discover.
VIS: categories of data 1) Alphanumeric data on the applicant and on visas requested, issued, refused, annulled, revoked or extended 2) photographs 3) fingerprint data 4) links to other applications Articles 9 -14: data to be added in specific situation (issue, refusal, extension etc. ) Leiden University. The university to discover.
VIS: Access 1) Article 6: visa authorities 2) Competent authorities at the border and within the territory: verification of identity, authenticity visa, conditions of entry/stay 3) Competent authorities: identification of any person who may be irregularly present 2) Asylum authorities: Determination of responsibility/ examination of asylum claim Leiden University. The university to discover.
VIS: Individual Rights Article 37: Right of information Article 38: Right of access, correction and deletion Article 39: Right to assistance Article 40: Remedies: right to bring an action or a complaint before the competent authorities or courts of a MS that refuses right Leiden of access to or the right of University. The university to discover.
VIS: Individual Rights Article 31(1): No transfer to Third Countries or international organisations, unless: in individual cases for the purpose of identification, including for the purpose of return, under the following conditions: 1) Adequacy decision (Directive 95/46/EC) 2) Agreement of purpose limitation 3) In accordance with the relevant provisions of Community law, in particular readmission agreements, and Leiden University. The university to the national law of the MS of origin of discover.
EURODAC - VIS VG Wiesbaden, Urteil vom 4. 4. 2013 – 6 K 910/12. WI. A Bundesamt für Flüchtlingen (Ba. MF) denies a request for asylum on the basis of data from the VIS from which it followed that the claimant had requested a Schengenvisa for another Schengen state. Ba. MF had received this data from INPOL (German Electronic Police Information Leiden University. The university to discover. System)
EURODAC 1) Council Reg. 2725/2000 of concerning the establishment of “Eurodac” 2) Council Reg. 407/2002 implementing the Eurodac Regulation 3) Agreement in first reading on recast: COM(2012) 254 final (June 2013) Database which allows Member States to determine whether a TCN has previously claimed asylum in another Member State or has entered Schengen irregularly through Leiden another Member State. University. The university to discover.
EURODAC Essential support to the functioning of the Dublin Regulation on determining responsibility for asylum requests. An Automated Fingerprint Identification System (AFIS) receives data and transmits positive and negative replies to the National Access Points (NAPs). In case of a hit, an additional exchange of data takes place through the Dubli. Net system. The Members States concerned can then exchange further personal data different from the Eurodac Leiden University. The university to discover.
EURODAC: categories of data Information contained can be divided in three categories: 1) Applicants for asylum of at least 14 years of age 2) Aliens apprehended in connection with the irregular crossing of an external border 3) Aliens found illegally present in a Member State Leiden University. The university to discover.
EURODAC: Statistics As per 31/12/2012 Category 1: 2. 200. 650 (of which blocked: 86. 564) Category 2: 95. 020 (mainly from Italy/Greece/Spain/Bulgaria) Total: 2. 295. 670 Note: under the recast regulation information will be added, in stead of data Leiden University. The university to discover. blocked.
EURODAC: Access COM(2012) 254 final (recast): 1) No specific article designating competent authorities (in theory only asylum authorities) 2) New: access to law enforcement staff and Europol “very valuable tool in preventing, detecting and investigating terrorist offences and other serious criminal offences” Leiden countries by MS No transfer of data to third University. The university to discover.
EURODAC: Supervision Eurodac Supervision Coordination Group 1) Unreadable fingerprints (May 2013) 2) Advance deletion of data (December 2011) 3) Knowledge data subjects of their rights / Age determination (2 nd coordinated inspection report – June 2009) 4) Special Searches/List of national authorities with access/Quality of finger prints (1 st coordinated inspection - July Leiden University. The university to discover. 2007)
EURODAC: Individual rights Article 29: Rights of the data subject Directive 95/46/EC applies Additional rights of information 9. Whenever a person requests data relating to him or her in accordance with paragraph 2, the competent authority shall keep a record in the form of a written document that such a request was made, and shall make this document available to Leiden University. The university to discover. the National Supervisory Authorities without
Legality: AZRG Huber: Case C-524/06 Austrian national, resident in Germany, request the deletion of the data relating to him in the Central Register of Foreign Nationals (Ausländerzentralregister) (‘the AZR’). - his name, given name, date and place of birth, nationality, marital status, sex; - a record of his entries into and exits from Germany, and his residence status; - particulars of passports issued to him; - a record of his previous statements as to domicile; and Leiden Bundesamt, - reference numbers issued by the. University. The university to discover.
Legality: AZRG 1. The objective to provide support to national authorities does not satisfy the requirement of necessity of Directive 95/46/EC, interpreted in the light of the prohibition on any discrimination on grounds of nationality, unless: - it contains only the data which are necessary for the application by those authorities of that legislation, and - its centralised nature enables the legislation relating to Leiden University. of university to discover. the right The residence
Legality: AZRG The storage and processing of personal data containing individualised personal information for statistical purposes cannot, on any basis, be considered to be necessary within the meaning of Directive 95/46. 2. Article 12(1) EC must be interpreted as meaning that it precludes the putting in place by a Member State, for the purpose of fighting crime, of a system for processing personal. Leiden University. The university to discover. data specific to
Legality: Passport Cases Biometric Passports (RFID chips): Council Reg. 2252/2004 Pre-Lisbon criticism on legal basis In the Netherlands a lot of resistance against the collection (Reg. ), but also the storage of fingerprints (national passport act). Decentralised storage suspended (2011), but inclusion of biometric features Leiden University. The university continues: 4 references from Council of to discover.
Legality: Data retention cases Ireland v European Parliament and Council: Case C-301/06 57. It must also be stated that the action brought by Ireland relates solely to the choice of legal basis and not to any possible infringement of fundamental rights arising from interference with the exercise of the right to privacy contained in Directive 2006/24. Leiden University. The university to discover.
Legality: Data retention cases Digital Rights Ireland: Case C-293/12 Is Directive 2006/24/EC compatible with: 1) Right of citizens to move and reside freely (Article 21 TFEU)? 2) Right to privacy (Article 7 CFR and Article 8 ECHR)? 3) Right to the protection of personal data (Article 8 CFR)? 4) Right to freedom of expression (Article 11 CFR and Article 10 ECHR)? Leiden University. (Article 41 5) Right to Good Administration The university to discover.
Legality: Data retention cases Seitlinger and others: Case C-594/12 Are Articles 3 to 9 of Directive 2006/24/EC compatible with Articles 7, 8 and 11 of the Charter of Fundamental Rights of the European Union? Additional questions on the relation between the CFR and Directive 95/46/EC and Regulation (EC) No 45/2001. Leiden University. The university to discover.
ECHR case-law: Data bases S & Marper v the United Kingdom, Application nos. 30562/04 and 30566/04, ECt. HR, Judgement of 4 December 2008 67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (Leander v. Sweden). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland). However, Court will have Leiden University. The university due regard to the specific context in to discover.
ECHR case-law: Data bases S & Marper v the United Kingdom, Application nos. 30562/04 and 30566/04, ECt. HR, Judgement of 4 December 2008 105. ECt. HR acknowledges importance of the use of modern scientific techniques of investigation and identification, including techniques of DNA analysis. 106. Issue to be considered is whether the retention of the fingerprint and DNA data of Leiden who The university to the applicants, as persons University. had beendiscover.
ECHR case-law: Data bases 125. (…) the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences (…) fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Leiden University. The Accordingly, the retention at issue university to discover.
ECHR case-law: Data bases S & Marper v the United Kingdom, Application nos. 30562/04 and 30566/04, ECt. HR, Judgement of 4 December 2008 67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (Leander v. Sweden). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland). However, Court will have due regard to the Leiden University. The university to discover. specific context.
EU-Lisa Regulation 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice EU-Lisa: Tallinn (Estonia) with operational centre in Strasbourg and back-up in Sankt Johann im Pongau (Austria) “The Agency needs to maintain the complete separation of data in the three Leiden University. The university to discover. systems and ensure that security and data
EU-Lisa Leiden University. The university to discover.
EU-Lisa COM(2005) 597 final: improved effectiveness, enhanced interoperability and synergies among European databases in the AFJS The potential future integration of EU databases such as SIS II, VIS and Eurodac has already been progressively built into their design: Common Technical Platform CATS 2005: within 8 months after entry into Leiden University. The university operation of SIS II central connection to discover.
EU-Lisa Article 31(3), SIS II Regulation (processing of SIS II data) (…) technical copies which lead to off-line databases to be used by visa issuing authorities shall no longer be permitted one year after the authority in question has been connected successfully to the Communication Infrastructure for the Visa Information System to be provided for in a future Regulation concerning the Visa Information System (VIS) and the exchange of data between Member States on short stay visas (…) Leiden University. The university to discover.
Tomorrow: “Smart” Borders 1) EUROSUR: surveilling the external borders 2) Yet another database: the entry-exit system 3) The Registered Traveller Programme Leiden University. The university to discover.
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