(Immigration and Asylum Law and Policy in Europe 15) Evelien Brouwer-Digital Borders and Real Rights_ Effective Remedies for Third-Country Nationals in the Schengen Information System-Martinus Nijhoff

Digital Borders and Real Rights Immigration and Asylum Law and Policy in Europe VOLUME 15 Editors Elspeth Guild Kingsley Napley Solicitors, London, Centre for Migration Law, Radboud University Nijmegen Jan Niessen Migration Policy Group, Brussels The series is a venue for books on European immigration and asylum law and policies where academics, policy makers, law practitioners and others look to find detailed analysis of this dynamic field. Works in the series will start from a European perspective. The increased co-operation within the European Union and the Council of Europe on matters related to immigration and asylum requires the publication of theoretical and empirical research. The series will contribute to well-informed policy debates by analysing and interpreting the evolving European legislation and its effects on national law and policies. The series brings together the various stakeholders in these policy debates: the legal profession, researchers, employers, trade unions, human rights and other civil society organisations. Digital Borders and Real Rights Effective Remedies for Third-Country Nationals in the Schengen Information System By Evelien Brouwer LEIDEN • BOSTON 2008 This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Brouwer, Evelien Renate, 1966Digital borders and real rights : effective remedies for third-country nationals in the Schengen Information System / by Evelien Brouwer. p. cm. -- (Immigration and asylum law and policy in Europe, ISSN 1568-2749; 15) Includes bibliographical references and index. ISBN 978-90-04-16503-8 (hardback : alk. paper) 1. Emigration and immigration law--European Union countries--Databases. 2. Emigration and immigration law--European Union countries--Computer network resources. 3. Aliens--Civil rights--European Union countries. 4. Privacy, Right of--European Union countries. 5. Asylum, Right of--European Union countries. 6. Data protection--Law and legislation--European Union countries. 7. Freedom of movement--European Union countries. I. Title. KJE6050.B76 2008 342.2408’2--dc22 2008011946 This book was edited by Hannie van de Put, Centre for Migration Law, Radboud University Nijmegen. The English text has been revised by Claire Singleton, translator, Los Alamos, United States. ISSN 15682749 ISBN 978 90 04 16503 8 Copyright 2008 by Koninklijke Brill NV, Leiden, The Netherlands. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Brill Provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands Contents Acknowledgments ........................................................................................xxiii Abbreviations ................................................................................................ xxv Chapter1 Introduction............................................................................. 1 1. The Schengen Information System and Other EU Databases: Tools for Border and Immigration Control ................................................. 1 2. Problem ...................................................................................................... 2 3. A Right to Effective Remedies? .................................................................... 4 3.1. Questions ............................................................................................ 4 3.2. Criteria to Assess Availability of Effective Remedies............................. 5 4. Outline ....................................................................................................... 7 5. Definitions and Explanation of Used Terms ................................................ 7 6. Sources and Interviewees ............................................................................. 8 Part I Border Control and Data Surveillance in the EU Chapter 2 Towards Schengen: The Abolition of Internal Border Controls in Europe .......................................................... 13 1. Introduction: Abolition of Internal Border Controls ................................. 13 2. The Internal Market and the Free Movement of Persons: Setting Goals ............................................................................................. 15 2.1. Between 1957 and 1985: From the Treaty of Rome to the Commission’s White Paper ................................................................ 15 2.2. The Commission’s White Paper on the Completion of the Internal Market ................................................................................. 17 3. From 1985 to the Completion of the Single Market: Defining Powers ................................................................ 18 4. Intergovernmental Negotiations on the Abolition of Internal Border Controls ........................................................................... 20 4.1. Other Examples: The Benelux, the Nordic Union, Ireland and the United Kingdom .................................................................. 20 4.2. Between 1985 and 1989: The Schengen Negotiations ....................... 21 4.3. The Immigration Ad Hoc Group, Trevi, and the Group of Co-ordinators .............................................................. 23 vi Contents 5. Abolition of Border Controls and Compensatory Measures....................... 25 5.1. The Function of Borders: Emphasis on Internal Security and Immigration Control ........................................................................ 25 5.2. Pre-Border Selection: Visa Policy ....................................................... 27 5.3. Draft of an External Frontiers Convention ........................................ 28 5.4. An Area of Freedom, Security, and Justice ......................................... 29 5.5. Common Mechanisms for External Border Controls......................... 31 6. The Convention Implementing the Schengen Agreement.......................... 33 6.1. Negotiations...................................................................................... 33 6.2. Content of the CISA ......................................................................... 34 6.2.1. Title II: Abolition of Checks at Internal Borders and Movement of Persons ............................................................. 35 6.2.2. Visa Rules .............................................................................. 36 6.2.3. Free Circulation ..................................................................... 37 6.2.4. Priority of the Community Rules ........................................... 37 6.3. Entry into Force and Players ............................................................. 38 6.3.1. Entry into Force of the CISA ................................................. 38 6.3.2. Position of the Nordic Countries ........................................... 38 6.3.3. Position of UK and Ireland .................................................... 39 6.3.4. New EU Member States......................................................... 40 7. Treaty of Amsterdam: The Incorporation of the Schengen Acquis in EU Law ...................................................................... 41 7.1. Title IV TEC: Communitisation of Asylum and Immigration Law........................................................................ 41 7.2. Incorporation of Schengen into EU Law: Marriage of Convenience or Repairing the Democratic Deficit? ........................... 42 8. Schengen: Successful Laboratory for the EU? ............................................ 44 Chapter 3 The Schengen Information System ........................................ 47 1. The Establishment of the SIS .................................................................... 47 1.1. Setting an Example: The Benelux Lists .............................................. 47 1.2. Discussing the Purpose and Functioning of the SIS ........................... 49 1.3. Structure ........................................................................................... 52 1.4. Final Purpose and Categories of Entries ............................................ 53 1.5. Problems During the Construction Phase ......................................... 55 2. Legal Basis ................................................................................................. 57 3. Participants ............................................................................................... 57 3.1. Nordic Countries .............................................................................. 57 3.2. The UK and Ireland .......................................................................... 58 3.3. Switzerland........................................................................................ 59 3.4. Accession of New EU Member States ................................................ 59 Contents vii 4. SIS and Third-Country Nationals: Exclusion of ‘inadmissible aliens’ ................................................................................... 59 4.1. Draft Texts ........................................................................................ 59 4.2. Article 96 CISA................................................................................. 60 4.3. Definition of ‘inadmissible’: Discretionary Power of National Governments ...................................................................... 62 4.4. EU Citizens and Beneficiaries of EC Law .......................................... 63 5. Practical Implementation of SIS: Statistical Data on the Number of Records and SIS-Based Hits .................................................... 65 5.1. Numbers of Persons Entered in SIS ................................................... 66 5.2. Numbers of Hits Based on Searches Performed of the SIS ................. 68 Chapter 4 New Functionalities for SIS and the Development of SIS II ........................................................................ 71 1. The Road to the Second Generation SIS or SIS II ..................................... 71 2. Early Proposals to Extend the Use of SIS ................................................... 73 2.1. Access to Europol and Eurojust ......................................................... 73 2.2. Effective Protection against Illegal Immigration ................................ 74 2.3. New Categories of Persons ................................................................ 75 3. SIS I and the Fight Against Terrorism ....................................................... 76 3.1. Extending the Functions of the SIS I................................................. 76 3.2. Access for Internal Security and Intelligence Services......................... 78 3.3. Inclusion of Persons Listed on the UN Terrorist Lists ........................ 79 4. Adopted Decisions Extending the Use of SIS I .......................................... 80 4.1. Regulation 871/2004 and Decision 2005/211 on New Functionalities .......................................................................... 80 4.1.1. Europol and Eurojust ............................................................. 81 4.1.2. Public prosecutors .................................................................. 82 4.1.3. Authorities Responsible for Issuing or Examining Visa Applications or for Issuing Residence Permits................. 82 4.1.4. Duty to Report all Transmission of Data and a Legal Basis for SIRENE ......................................................... 83 4.2. Framework Decision 2002/584 on the European Arrest Warrant ................................................................... 83 4.3. Common Position 2005/69 on Exchange of SIS Data Between Member States and Interpol .............................................................. 84 4.4. Regulation 1160/2005 on Access to the SIS by Vehicle Registration Authorities ........................................................ 85 5. SIS II ........................................................................................................ 85 5.1. Legal Basis for SIS II ......................................................................... 85 5.2. Developing SIS II as a ‘flexible tool’ .................................................. 87 viii Contents 5.3. The Position of the UK and Ireland with Regard to Access to SIS II ................................................................. 88 5.4. Involvement of the European Parliament........................................... 90 6. Final Texts of the Regulation and Decision on SIS II................................. 93 6.1. Purpose ............................................................................................. 93 6.2. Criteria for Third-Country Nationals to be Stored in SIS II .............. 94 6.2.1. Commission Proposal – Trying to Harmonise National Criteria .................................................................... 94 6.2.2. Final Criteria: The Individual Assessment and Proportionality Clause ........................................................... 94 6.2.3. SIS II and Terrorist Lists ........................................................ 96 6.3. EU Citizens and Privileged Third-Country Nationals........................ 97 6.4. Inclusion of Biometrics in SIS II as an Identification Tool ................. 98 6.5. Authorities Allowed Access to SIS II.................................................. 99 6.6. Interlinking of Alerts ....................................................................... 101 6.7. Change of Architecture ................................................................... 102 6.8. Establishment of the Management Authority .................................. 103 6.9. Evaluation and Publication of Statistics on SIS II ............................ 103 7. Comparing SIS I and SIS II .................................................................... 104 7.1. Changing the Purpose of SIS........................................................... 104 7.2. Changes with Regard to the Storage and Use of Data on Third-Country Nationals ................................................................ 106 Chapter 5 Other EU Databases Used in the Field of Immigration Control: Eurodac and VIS.................................................. 117 1. Introduction............................................................................................ 117 2. Eurodac................................................................................................... 118 2.1. Development and Central Purpose of Eurodac ................................ 118 2.2. Collection, Transmission and Comparison of Fingerprints .............. 121 2.3. Extension to Illegal Immigrants ....................................................... 123 2.4. Functioning of Eurodac: Annual Reports of the Commission.......... 125 3. Visa Information System or VIS .............................................................. 127 3.1. Negotiations Towards a European Visa Information System ............ 127 3.2. The VIS Regulation: Purpose and Content of VIS .......................... 130 4. Interoperability of SIS II, Eurodac and VIS ............................................. 132 5. Use of Biometric Data ............................................................................. 135 5.1. Controlling the Body: Use of Biometrics at the EU Level ................ 135 5.2. Different Options with Regard to the Use of Biometric Data .......... 137 5.3. Biometrics and the Rights of Individuals ......................................... 138 5.4. Reliability of Biometrics .................................................................. 139 5.5. Index on Criminal Records of Third-Country Nationals ................. 140 Contents ix 6. Comparing SIS II, Eurodac and VIS ....................................................... 141 6.1. Central Databases, Immigrants and Biometrics ............................... 141 6.2. Differences Between SIS, Eurodac, and VIS .................................... 142 6.3. Intelligence Tool or Administrative File? .......................................... 143 Part II Effective Remedies under European Law Chapter 6 Data Processing and the Right to Privacy: The Importance of Article 8 ECHR......................................................... 147 1. Introduction............................................................................................ 147 2. Taking Article 8 ECHR into Account in EU Policy................................. 148 2.1. SIS and SIS II ................................................................................. 148 2.2. Eurodac........................................................................................... 149 2.3. VIS ................................................................................................. 150 3. Article 8 ECHR and Data Processing: When is there an Interference with the Right to Private Life? ............................................. 152 3.1. Secret Police and Security Files: Leander and Segerstedt-Wiberg ............................................................................. 153 3.2. Child care Records, Health and Gender Information: Gaskin, Z and Goodwin......................................................................155 3.3. Systematic Collection and Storage of Personal Information by Public Authorities: Amann and Rotaru .................... 157 3.4. Recording of Voices and Video Images Collected in the Public Domain: P.G. and J.H. v. UK...................................... 159 3.5. Administrative Data: Malone ........................................................... 160 3.6. Use of Information Beyond What is Normally Foreseeable: Perry, Peck and Lupker ..................................................................... 160 3.7. Passports and Identification Measures: Smirnova and İletmiş............ 161 4. Is the Interference in Accordance with the Law? Quality of Law.............. 163 5. Necessary in a Democratic Society: Proportionality and Procedural Guarantees............................................................................. 165 6. Article 8 ECHR and the Need for Effective Remedies ............................. 167 6.1. Independent Control Mechanism: Judicial or Non-Judicial Remedies .................................................................... 167 6.2. Accessibility..................................................................................... 168 6.3. Scope of the Remedies..................................................................... 169 6.4. Competences................................................................................... 169 6.4.1. Article 8 and Article 13 ECHR ............................................ 169 6.4.2. Article 8 ECHR and the Right to Financial Compensation under Article 6 ECHR ................................. 171 6.5. Non-discrimination......................................................................... 172 x Contents 7. Conclusions: EU Databases, Article 8 ECHR and Effective Remedies .................................................................................. 172 7.1. Data Processing and the Right to Private Life .................................. 172 7.2. Procedural Guarantees and Effective Remedies ................................ 174 Chapter 7 Effective Remedies under Data Protection Law ................... 177 1. Introduction............................................................................................ 177 2. Development of National Data Protection Law: Different Phases of Law-Making ............................................................. 178 3. Development of European Data Protection Law ..................................... 181 3.1. 1981: Data Protection Convention of the Council of Europe ........................................................................... 181 3.2. 1990: Inclusion of Data Protection Provisions in the CISA ..................................................................................... 183 3.3. 1995: Directive 95/46 on the Protection of Personal Data .................................................................................. 186 3.3.1. Protecting Individuals and Free Movement of Data ............. 186 3.3.2. Scope and Applicability of Directive 95/46 .......................... 188 3.4. Regulation 45/2001/EC: Data Protection Applicable to Community Institutions and Bodies ............................................... 190 3.5. Data Protection in the Third Pillar: A New Instrument ................... 191 3.6. Article 8 of the EU Charter: Data Protection as a Human Right ........................................................................... 193 4. Unveiling Reasons for Data Protection .................................................... 194 4.1. Protecting the Individual: The Right to Privacy ............................... 196 4.1.1. From the Right to be Let Alone to the Right of Personal Liberty ................................................................... 196 4.1.2. Informational Self-determination ......................................... 198 4.2. Protecting the Rule of Law .............................................................. 200 4.2.1. Balance of Powers ................................................................ 200 4.2.2. Informational Division of Powers......................................... 201 4.3. Data Protection as an Obligation for ‘good administration’ ............. 202 5. Data Protection Principles ....................................................................... 204 5.1. The Principle of Purpose Limitation ................................................ 205 5.1.1. Ban on “aimless data collection” ........................................... 206 5.1.2. Legitimacy of Purpose .......................................................... 207 5.1.3. Use or Disclosure Limitation ............................................... 208 5.1.4. Time Limit on Storage of Data ............................................ 209 5.2. Transparency – Purpose Specification .............................................. 211 5.3. Special Categories of Data: Extra Safeguards ................................... 212 .................4. 222 Effective Remedies: Independent Data Protection Authorities....................1.............................. 215 5.............. 231 8.............. Eurodac...........................2.........3..... 233 8............... Working Party on the Protection of Individuals with regard to the Processing of Data ..... Quality of Data ...................................5..1....................... 8............................ xi 5..........................2........................ 229 7. 220 5.........................5.........3.. Access to Data Protection Authorities and Courts? ...................... 233 8.................................................. The European Data Protection Supervisor......................7......... 232 8...............5..............................1.................. 223 7..2.......... 217 5....................................... Ban on Automated Decision-making ....................................................... Activities of the JSA ..... 241 9..... 230 Effective Remedies: A Right to Judicial Remedies? .. Effective Remedies .. 241 9..........8...... Individual Participation: Rights of the Data Subject...................................................................... 235 8. 215 5.... EC Directive 95/46 ..............Contents 6.... 229 7.............. 239 9..............................2...2.............................................5................................... Competences .......................................................... Right to be Informed – Right of Access to Personal Data ........6. 242 ............1. Data Protection Authorities at the EU Level .....3............8.. Security ...................... SIS I and SIS II: CISA and Regulation 1987/2006 ......1.............................................4......4....3........................... Scope ........ 228 7....... 7................. EC Directive 95/46............................... 237 8........2...... 9.....2..... Third Pillar Instruments .......2........................... Non-discriminatory Application of Data Protection Rules .. Regulation 45/2001: EDPS .................................. 213 5......... VIS Proposal ............. Data Protection Convention ......... Schengen Joint Supervisory Authority .................... Deletion or Blocking of Further Processing ................. 226 7....... Right to Request Correction................................................................................... 239 9...................................1...................................... 224 7..........2.......6.3....................................................... SIS I: Article 111 CISA .............2............................2................ Accountability ....................... 241 9.. 223 7.... 225 7......... 242 9....2............. The Value of Data Protection ................... 237 8............... Accessibility .............. 226 7.......1................4...................... National Data Protection Authorities ..... 218 5........... 238 Conclusions ............2..9..................................................................1........................................ Eurodac and VIS ....................................................... 231 8................7.......................................................................... SIS II Regulation 1987/2006 ............................ 223 7................. 219 5......2... 221 Limitations of Data Protection Rights: General Interest and National Security ............... Data Protection Convention . Tasks and Powers ....1........ 226 7.............1........................1.............................3..1....................................... .................................... 258 6................................................xii Contents Chapter 8 Effective Remedies in Immigration Procedures: ECHR ................ 245 1.....................................................................................................................2.............................................................1. 7 to the ECHR: Procedural Safeguards Relating to Expulsion of Aliens .....1.............................. 256 6................................................................ 276 2............ Protecting the Free Movement of EU Citizens and their Family Members .. 246 2......... 278 .. 248 2.... 272 Chapter 9 Effective Remedies under EC Immigration Law ....................................................................2........................ Extending the Scope of Protection: Cetinkaya and Dörr-Ünal .............. Criteria for Effective Remedies .............1................. Expulsion and Expulsion Orders ...3.......................................................................... 270 8......... Non-judicial or Judicial Remedy ................................ The Principle of Non-discrimination: Article 14 ECHR ...1..............................................................4...... When Does Article 13 Apply? ... Directive 2004/38/EC on the Right of Citizens and their Family Members to Move and Reside Freely within the EU ...2.......1................... Accessibility of Effective Remedies ...................................................... 275 1.................. 258 6..... Scope ................ 246 2....... Summary: Criteria for Effective Remedies .......................................................................... Article 13 ECHR: The Right to Effective Remedies in Immigration Law Procedures.. 245 2.......................... 269 8........................................................ Immigration Law Decisions and the Right to Financial Compensation........ 262 6..................... Admission of Third-Country Nationals ......3................................................... Maaouia: (Non-)Applicability of Article 6 in Immigration Law Procedures? .................................................... 266 7.. 270 8................................. 249 3..................................3....... Article 5 (1) (f ) ECHR: Right to Liberty and Security .........4.................... 267 8................... 253 5.3................ Non-application of Article 6 (1) ECHR to Immigration Law Procedures: Failure or No Loss? .......................................................... 253 5......................... Competences............................. 254 5.......... Scope of Review ................... 251 4..................................................2........................... Article 6 (1) ECHR: The Right to a Fair Trial............5................................... Introduction......... 269 8.......... 276 2.............. Accessibility................................ 252 5............. Protocol No................. 271 8..................... 275 2.....................2......... Introduction........ Judicial or Non-judicial Remedies ............. (Non-)Registration and the Right to Financial Compensation...... Competences........... 259 6...................................... ........8........ 284 3. 292 4................. 294 4. Directive 2003/9/EC on Minimum Standards for the Reception of Asylum Seekers.....................1.....1................. 286 3.......... Criteria for Effective Remedies in EC Immigration Law ...................... Draft Community Code on Visas ......................................................................... 293 4..... Competence of Court or Authority ...1........... 280 3...................................3....... 290 3........... Regulation 343/2003/EC (Dublin II) ..................2.......................... 283 3.......1...............2.............1..................................... 296 4.................................... 279 2.4.. EC Asylum and Immigration Law .........1........... Proposal for a Directive on Returning Illegal Staying Third-Country Nationals .......... 294 4....................................2........................................ EC Asylum and Immigration Law ........ 285 3............................... The Inclusion of a Standard Refusal Form............. 289 3....2...... Regulation 562/2006/EC on the Rules Governing the Movement of Persons at Borders (Schengen Borders Code)................10................. The Relationship between the VIS and SIS and the Freedom of Movement of EU Citizens and Family Members ............. Commission v...................2.. 281 3...........................................3................... 298 4.......... 287 3...................... 299 5............6.....................4.2..1. 279 2......................................1......2......................................2............ Schengen Common Consular Instructions ...................... 300 .... Summary: Different Laws.......... EC Asylum and Immigration Law .....................2......... Directive 2004/38/EC ..... Commission v.. Directive 2004/38/EC ......... Scope of Review ..... 293 4............ Legal Remedies in Immigration and Asylum Law Based on Title IV TEC....................2...................3..... 292 3......................................... Austria ................9.........................................................7..............3....................................... 299 4. Accessibility............. Directive 2001/55/EC on Minimum Standards for Temporary Protection .........................1.................... Directive 2005/85/EC on Minimum Standards for Asylum Procedures ........ Judicial or Non-Judicial Court? ..8....4...............1............... 288 3. 282 3. Refusals at the Border......... 289 3. Directive 2003/86/EC on the Right to Family Reunification ..................... 293 4...... Directive 2003/109/EC on Long-Term Resident Third-Country Nationals .....................1............................... 294 4............. Different Regimes? ....... Directive 2004/38/EC ...3.....................5... EC Asylum and Immigration Law ................................ Directive 2001/40/EC on Mutual Recognition of Expulsion Decisions ...................... Spain .............3.. 295 4.......4............................................................... 296 4... 291 3..10............................... Visas..................................3....................10........................................................ 292 3...............................2........ Directive 2004/38 ................... 299 4..............8................Contents xiii 2.... .............. SIS II ......... Effective Remedies............ The Johnston Principle ......... Accessibility ............ Databases and Third-Country Nationals ................... 315 5........ Scope of Review ... Relationship Between the General Principle and Secondary EC Legislation ..... National Criteria for Entering Third-Country Nationals into the NSIS ................................................... Parliamentary Involvement with CISA .............. Preliminary Proceedings: The Responsibility of National Judges and Legislators ..........2.............................................. 311 4................ SIS I: Comments NGOs........1........ 311 4............ 317 5..... 307 3................... Criteria for Effective Remedies ............ Towards Minimum Standards for Effective Remedies.......... 317 Part III Implementation at the National Level Chapter 11 France.............2....................... 329 1..................... Applicable Law ..........2............... Applying the Johnston Principle to EC Immigration Law: The Panayotova Case ....................................................................2............... 316 5.......3.................................................... The Third Principle: Effective Judicial Remedies to Ensure a Uniform and Clear Interpretation of EC Law .........................3................................... 303 1.................1................................................... Competences ......... 314 5....................... 315 5................................... 336 3........ 306 3........ Lawyers and Organisations . Implementation of Article 96 CISA ..................................................................................... 310 4...........................2..............2............. The Second Principle: Effective Remedies to Secure Rights Conferred by EU Law .................2........4..............................................................................................................1.. 314 5.......................................2............... The First Principle: Incorporation of Human Rights in EU Law ......... 337 ................................................ Schengen in General ................................................. 306 3.......... 330 2..................... 334 2............ 308 3.................................................................................... 313 5..................... Judicial or Non-Judicial Authority? ................................... The NSIS .....1............... 330 2........3.. Introduction........ Criteria of National Courts Which Fall within the Meaning of Article 234 TEC ......................................4......4.. 329 2..................................................................................... 333 2. 335 3................................................................................................ 303 3........2.......................................................................xiv Contents Chapter 10 Effective Remedies in the EU: A Matter of Basic Principles ...............1...........................................2.. Article 47 of the EU Charter ..... 336 3.. 303 2...........................1. Introduction. 3........................................ 366 ......................... Legal Remedies Against a Refusal of Entry .. Article 96 Hits and Visa Applications..................... 364 6...........1.......................................... 355 5.....2.......6................. Operation of SIRENE.......5....................... 362 6.................................... Database with Regard to the Issuing of Visas ....2..................................... 343 4.. The Practical Use of the NSIS in France .......... 343 3.... Intermezzo: French Policy Governing Third-Country Nationals .......7.............5...................... General Database on Foreigners: AGDREF............ Legal Remedies Against Expulsion .........4....... 362 6....8 Right to Legal Remedies....................1...........4................................3............... 340 3.......................4............ 348 5.............................................6............... 352 5............ Direct and Indirect Access................1... Legal Remedies .......................................... Article 96 Hits: Duties and Responsibilities of French Authorities... 352 5...... ‘ELOI’: File on Expelled Persons .............................................................. 354 5................. Composition...................2............. NSIS and Applicable Rules................ 361 6...................................................................................................... Police File on Searched Persons ........ The Position of the Administrative Court in Immigration Law ........ 341 3......................................5................. Third-Country Nationals and the Right of Data Protection ...... 365 6. 359 6.................................. Correct or Delete Data ....5. Rights and Legal Remedies in Data Protection Law...........1........ Practical Information on the Right to (Indirect) Access to NSIS Information .................... 340 3.. Fingerprinting Third-Country Nationals ...........2............................. 344 4... 345 4..........5...........................4...... Right to Access..... 360 6...... Tasks and Powers of the French Data Protection Authority (CNIL) ..... Duty to Motivate Decisions ................................3... 346 4........................................... General Background to Immigration Law .............................5. 358 6...... 344 4... 359 6......2................. Duty to Inform the Data Subject ..........1..4.........2... 341 3............... 357 5....................................... Amendments to French Immigration Law and the NSIS ...................... Application for a Right to Access and Time Limits ..............4.................... 351 5.................................................... Expulsion of Third-Country Nationals on the Basis of Article 96 CISA.3.................. 342 3........ 349 5........5... Background to French Data Protection Law .. 349 5............................. Legal Remedies Against the Refusal of a Visa ......... Refusal of Entry or Residence Based on Article 96 CISA .........................1...3... Rights and Remedies in Immigration Law .................................Contents xv 3....... Authorities with Access to NSIS Data .........4.....................4.5...................4........ 344 4...... 352 5................................ 352 5........3................. .............................................. 375 7..........5..................... 379 8........1.........2............ National Criteria for Entering Third-Country Nationals in NSIS .................................... Scope of Review ......3.......................1...................................2.......................................................xvi Contents 7...............6.............. 377 8................................3..4.. General Rules.2..... Duty to Inform the Data Subject ... 383 2............................... 384 2...... 383 1... 393 3.......................................... Duty to Play an Active Role when Assessing the Validity of a Foreign Alert .......... 368 7............1..............2.......................................... 378 8............ Functioning of SIRENE....... In the Beginning: Storing Old Data in the NSIS ........................................................... Applicable Law................2..................4.......................3.... 397 .....................................................6.............. 391 3....1.........2...........2.... Persons to be Expelled.3........ Power of Foreign Data Protection Authorities .................... NSIS and the Right to Effective Remedies ... Introduction............. 376 7.......................... 384 2................................1...................................................................................................................................................6.......... The NSIS and Data Protection ..................................................... 390 3...................... 391 3......................... Duty of Authorities to Balance Interests ........... Competences .............. SIS II .................3......................................... Powers of the Court .............2.. 390 3.......... Assessing the Validity of Foreign SIS Reports ................... 380 8... 376 7.............. Registration Based on Public Order and Security Grounds . 386 2.... Accessibility ......... Conclusions ...... 389 3................. Removed or Deported .............................................................................. 379 8................................ Parliamentary Involvement with CISA ...... 394 3......... 380 8.........................2...4..................................................................................... Data Protection and the NSIS ............................ 370 7......................... 395 3............. Unlawful Data Storage Regarding Rejected Asylum Seekers ........ Schengen in General .....3.................................................3............3..... Assessing the Role of the CNIL . 381 Chapter 12 Germany .................................. 379 8....... Case Law ..........1..........3....4.. 373 7........... Right of Indirect or Direct Access: Divisibility of the Data Files...................................... Implementation of Article 96 CISA ....... Implementation of Article 96 CISA ...........................3..........................2...3............. 396 3...................................................................... 376 7.5............................. 367 7.........6.................... 378 8... 367 7......... 391 3.......2....................... Introduction.....................................1.............. Authorities with Access to NSIS Data ........................................ Judicial and Non-Judicial Remedies ... ........................................ Legal Remedies and Data Protection Law ............4. Assessment of Data Profiling by Lower German Courts ................ Article 96 Hits and Visa Applications ..........................................3................3........... 398 4........4.................... 406 4...........................................2.................. 417 6............................. 415 5. 403 4... Temporary Injunction ................................................................3.. Article 96 Hits: Duties and Responsibilities of German Authorities ............1...... The Duty of Immigration Offices to Keep Complete Files .... 410 5..... Rule of Law: The Principle of Proportionality .... After 11 September 2001: Tracking ‘Islamic Terrorists’........... Intermezzo: German Policy Governing Third-Country Nationals........................... 403 4........... 403 4................... The Klass Case Before the German Constitutional Court ......... Background and General Principles of German Data Protection Law ............ Biometrics and Border Control ... 409 5........................................................4..................2.....1. Content of the AZR....... 399 4........... The Mikrozensus Urteil .Contents xvii 3..... 397 3........ 414 5..................1............. Article 19 (4) Constitution...... 419 6................2... Constitutional Right to Informational Self-determination .............3...........1.........2...................6.........................................2..5.... Visa Information System ........................................2.. The Need for a Legal Basis ............. Suspensive Effect of Legal Remedies ...........................3................................................ 399 4................ Refusal of Entry ......3............... 413 5............................ 399 4.1................2.... 417 6.....................................1...............1.4............................................................ 410 5...6......................... Rights and Legal Remedies: Generally Applicable Rules ....1............. Applicability of Administrative Procedural Law.......3................................... The Constitutional Court and Data Profiling – Rasterfahndungsurteil ......... The Volkszählungsurteil . 420 ................. 416 6............. Computer Profiling or Dragnet Searching (Rasterfahndung) ... Before 11 September 2001: Tracking RAF Terrorists........2......4........3.......... 416 6.....1....2......... Applicability of 6 ECHR .....3........................................ 404 4..... The Central Aliens Administration or the AZR ........6................ 397 3..... 415 5..1............................... 414 5....4.... Amendments on the Basis of the Prevention of Terrorism Act ...................2.. 399 4.2.......... Expulsion of Aliens on the Basis of an Article 96 CISA Hit ....3............. 401 4......................... 416 6..................................................3. Difference in Remedies .......... 412 5.....4.......................1. 417 6.............. 408 4.2.............6..... A Constitutional Dilemma: Amtshilfe versus Informationelle Gewaltenteilung .. 398 3........ ...... Accessibility ...... Duty to Inform the Data Subject ..........2. Legal Remedies ................ 425 6............. Conclusions ...................... Competences ....................... 431 7..................1...........3.. Data Protection Authorities of the Länder ......................................1..3.. 429 7.......3..... 422 6............4............................................... The Federal Commissioner for Data Protection and Freedom of Information........ Inquiry of the Data Protection Commissioners on Article 96 CISA ................. Competence of National Courts to Assess Validity of Foreign SIS Report................ Case Law..... 430 7................................. Record in the NSIS in Conformity with Criteria of Article 96 CISA? ......6................................. 425 6.................................2.....5.....................1...............5......... Article 96 CISA and Freedom of Religion: The Moon Case .........4...................3.......... Introduction ......... 428 6....5............ Principles of Data Protection and the NSIS.................................3.. 440 9...............1........... 442 9.........5......... 437 9...... Germany: Strong Tradition of Collecting and Protecting Data .........2.......................................... Legal Remedies Against Refusal of Entry .. Right of Access.... 422 6............2........3...........2................................. 431 7..6............ Duty to Balance Interests ............ 441 9. Access to Remedies After Expulsion? .................................. 422 6........................................ 429 7............................................3........... 432 8. 440 9...............2.................... 436 8.......... Duty to Motivate Decisions .....................................................................................................6....................5............ NSIS and the Right to Effective Remedies ... 427 6....... 425 6... 426 6..................3.......... 429 7......................2...6.............................................................. 431 8...... 432 8. 434 8.... 443 ..3........... Supervision by Data Protection Authorities ..................................................................... The Applicability of Data Protection Principles and the Right to Informational Self-determination in Immigration Law .............. Correction and Deletion ..... 442 9..........3.. Legal Remedies ..................... Legal Remedies Against a Visa Refusal ........3.. Implementation of Article 96 CISA ...... 431 7..................... Time Limits ...3..............................4.............................................................1... 435 8... Scope of Review ..................................................... Direct Legal Effects of a SIS Alert ..............................................5.................4.................................... 428 6........ Legal Remedies Against Expulsion .1.4...... 440 9........................1..........xviii Contents 6....................... 423 6........ 436 8.. Competence of the Administrative Court ................................... Legal Remedies and Immigration Law ........ Right to Financial Compensation ...............................3................3.........1.....4..........................................2......................................... 424 6...................... General Background to German Immigration Law ............................................... .......1................................ 478 5..................................... 460 3...... NSIS and the Applicable Rules on Data Protection .....2... 468 4.......... 475 5........6... 470 4................. Rights and Legal Remedies for Individuals under Data Protection Law .....................4................. Parliamentary Involvement with CISA ... Implementation of the SIS and Registration of Third-Country Nationals ..2....................... Introduction...2...... 445 2............. Sources of Immigration Law ....... 462 3........2....5.......................2... The Use of Biometric Data ..........2........ 467 4..... General Administration of Immigrants..........2... Shared Use of Data on Criminals and Asylum Seekers .. 445 1.. 475 5............ Border Control and the Fight against Terrorism......2............4....4..... Procedure for Registration in the NSIS ....................... 451 3..... Storing Biometric Data for Expulsion Purposes .. 465 3.4... Parliamentary Debate on SIS II ....................................................... 482 5........................ Right to Access............ Biometrics and Passports and Identity Cards............................................. 473 4...................... Correction or Deletion of the NSIS Data ..................................... ‘Schengen’ in General ................ NSIS and Article 96: Facts and Figures .......................... 479 5.................................................................. Parliamentary Discussions on the SIS and the Availability of Legal Remedies ...........................1.....................3............................. Duty to Inform the Data Subject .............................3................2................... 460 3..............................3.........1...... 483 ..........5.3.. Parliamentary Discussions on SIS .....................3. Third-Country Nationals Reported as Unwanted ... Immigration Files.......... 460 3.....1.....3................... Background to Dutch Data Protection Law . Third-Country Nationals and their Biometrics...... Criteria for Registration in the NSIS ............................6.....1................................ Article 96 Hits and Internal and Border Controls ......................3.. 448 2....................... Practical Implementation and Use of the NSIS ............2.......................................................... 446 2......... 453 3.......4. Intermezzo: Dutch Policy with Regard to the Administration of Data on Third-Country Nationals ............. 473 4........... 474 5.............................. 449 2.. 457 3.. 464 3... 455 3.............. Right to Legal Remedies................... Formal Residence Ban............................................. Role of the Data Protection Authority ........ Audit Report By the Court of Auditors . 453 3...........................................3....................... Audit Report of the Dutch Data Protection Authority .....................2........ 481 5............................. 471 4.2.....................................3.. 470 4................................1.3...........................................1..... Article 96 Hits and Visa Applications ............Contents Chapter 13 xix The Netherlands ........................................................... 455 3.......... 446 2... NSIS: Responsibility and Coordination .... 464 3........2...... 468 4... ..3............... Right to Higher Appeal............ Application of Principles of Administrative Law .................... 488 6.......................................................... 508 8. 506 8..................................................2....... 486 6............ 499 7........ 493 7......................... Questioning the Efficiency and Quality of the Information Network .............1..........5....................3...xx Contents 6....................2.................... NSIS and the Right to Effective Remedies ....... Case Law............................................... 508 8...................................5......................................... Legal Status of Article 96 Reports: Possibility of Legal Redress..3.....2... 490 7........................ Third-Country Nationals: Their Data ............2.............................................................. Right to Financial Compensation...3..................................................... Time Limits for Decisions in the Field of Immigration Law ... 488 7....... 504 7.. Information on the Formal Residence Ban .................... Third-Country Nationals: Their Data and Their Rights ..............2........... Data Protection and Data Control ......... 511 2................ 505 8.. Implementation of Article 96 CISA ....3..................3..... Tracking or Stigmatising Immigrants? ........7......3................. 508 8...4. 509 8................................... 512 2................. 487 6........ 493 7..............3..7....3............................ Judicial and Non-judicial Remedies ..................................................... Competences ................... Preliminary Request to the ECJ.................... 507 8.................................4...5............................. Duty of Informed Decision-making .1.................................. Informed Decision-making at the Borders.. Right to Appeal...................... 493 7. 486 6....... National Administrative Decisions ............................................................6...........................3......... 501 7................. Rights of Third-Country Nationals under Immigration Law ....2.............1....... Transparency – Accessibility of Remedies ..........3....................... 514 ................. Conformity with Article 96 CISA ... 489 7....... Decisions of the National Ombudsman ............. A Foreign Alert: The Moon Case........1..3............. Conclusions .................... 496 7......................................1...... 487 6... 489 7.......................7................... 502 7.............. Foreign Administrative Decisions...................... Scope of Review ................................. 484 6........................ 485 6.5.............1........... 504 7........ Introduction: Extent and Importance of Dutch Case Law ............. 510 Chapter 14 Conclusions ................................ Identifying...1................4.......... 506 8.. 484 6......... 513 2.... 505 7...........3.....................7........ Legal Remedies .................... Right to Review ......... Duty to Make Decisions in Good Time ..5................................................2...............3........................................................1...........2.. Duty of Proportional Decision-making .................. Balance of Interests – Proportionality of a SIS Report ... 511 1.................... ............................................................. 537 Jurisprudence.......................... 515 3..... 534 Bibliography ..........................................................................................................2........ 530 6.. 526 5... 525 5.................... Immigration Law and the Protection of Human Rights.................3............................................................ 530 6....1.................. Final Remarks ......................................................................3.............. Accessibility .................... Comparing the Law and Practice in France.4............................................................................1..... 523 5.... 517 4.... 532 6........................ 525 5.... Criteria for Reporting Third-Country Nationals in SIS II .. 527 6.4.........2. Case Law ..................................1.............. 526 6........................................... 516 3....2..........3.............2.........2......... 520 5....................................... 529 6.3...............................................1........ 522 5.............................. The Right to Effective Remedies ................................... Effective Remedies ......... 563 ........ Mutual Enforcement of National Decisions .......................................... Data Protection Rights ............1......................2.......... Rights and Freedoms Guaranteed by EU Law ..............Contents xxi 3....2.... SIS and Data Protection Rights of Individuals........................................................................ 531 6....................... 527 6.................. Right of Information ..................... 527 6...........................1............... Lack of Harmonisation ........................................ National Criteria for Storing Third-Country Nationals in SIS I ......3............ The New SIS II Regulation 1987/2006: Learning from the Past?..1............... Right to Remedies ........................... 525 5..........3............1............................................. 533 7. 516 3........3.......... Germany and the Netherlands ................ 522 5......4................... Data Protection Rights ............................. 553 Index........................................................... Recovering the Right to Privacy ...3............................................................................ Third-Country Nationals and Their Rights................ Cooperation Between Data Protection Authorities ........... Protecting EU Citizens and Beneficiaries of EC Law . Competences . 515 3............................... Scope ..........2... . thanks to Egbert Dommering and Jan Kabel. The research for this study was conducted at the Centre for Migration Law under supervision of Prof. My first opportunity to develop “academic skills” and to study the relation between the rule of law and data protection principles was presented at the University of Amsterdam. The history of this book goes back almost as far as its subject: the Schengen Information System. or SIS. . the first Data Protection Commissioner of Baden-Württemberg. I visited Ruth Leuze. with regard to the development of immigration law in the EU since 11 September 2001 and. I always remember the friendly and talented environment of the Institute for Information Law. While Ruth Leuze was perhaps my first guide to data protection law. I miss her wise and warm words.A. Hanneke Steenbergen was certainly my first and most important guide to immigration law. five years before the SIS became operational. E. thesis on 1 October 2007 at the Radboud University of Nijmegen. secondly. Dr. I admire the energy with which they make academic knowledge useful for society and the legislative process and persuade others to do likewise.Acknowledgments I defended this study as my Ph. I am grateful to Pieter Boeles for his inspiration and many ideas concerning Schengen and the SIS.D. Groenendijk and Prof. She not only made us aware of the growing importance of data protection but also triggered my curiosity and concerns with regard to the development of the SIS and its consequences for individuals. Their enthusiasm. to write this thesis on the legal position of third-country nationals reported in the SIS.The Changing Landscape of European Liberty and Security-: a very inspiring research project of the 6th Framework Programme of the European Commission’s Directorate-General for Research. C. Mr. In 1990. knowledge and support are the most important building blocks of this book. especially now. Her involved way of teaching and her critical views inspired me to look further into the less privileged position of migrants in the Netherlands and Europe. Guild. I owe the greatest thanks to Elspeth Guild and Kees Groenendijk. Although I regret that I was not ready at that time for a final “take-off ”. My research was partly funded by CHALLENGE . since 2002. I will miss our informal and cheerful trialogues and never forget the chances and lessons they gave me. Apart from my formal “promoters”. I am grateful that they offered me the chance to conduct research at the Radboud University of Nijmegen: firstly. together with a group of students from the University of Tübingen. Niels Groenhart and many others helped me with information about the Dutch implementation of the Schengen rules. Angelika Schriever-Steinberg. Tim. but especially for the happy and distracting moments we spent together. Special thanks goes to Michiel Tjebbes. Sylvia Preuss-Laussinotte and Didier Bigo and his team for their information about France. Hannie van de Put: thank you for all your practical and especially calm support! And all my (former) colleagues from the Centre for Migration Law and the Department of Sociology of Law: thank you for making me feel at home. . despite the fact that I was only there once a week. Florence Fourets. I am particularly grateful to Roger Errera for his valuable information and for taking the time to read my French Chapter. I thank Ans. my cheerful mother-in-law. I am also grateful to our friends in Amersfoort. For the same reason and in remembrance of Kees. Wolfgang von Pommer Esche. For providing me with information on Germany. I thank my parents for their neverending support and especially their patience while waiting for this moment to arrive. In the more personal sphere of my life. he again illustrated the importance of well-trained and informed lawyers for third-country nationals reported in the SIS. I dedicate this book to Willem.xxiv Acknowledgments Many people provided me with information during my research: I thank Caroline Intrand. Stefan Röst. the “school-gate mums and dads”: not only because of their support in taking care of the boys. I also thank Holger Hoffman for reading my German Chapter and for his useful comments. Jelle and Lucas: they are the central and most valuable heart of my private life. Eppo Mol. I thank Volker Westphal. Thilo Weichert and Martin Tuffner. who can be considered the most experienced lawyer in the Netherlands (and probably in the EU) when dealing with Article 96 reports in the SIS. Just before completion of this thesis. Luxembourg Bundesdatenschutzgesetz Bundesamt für Verfassungsschutz Bundesgesetzblatt Bundeskriminalamt Bundeverfassungsgericht Bundesverwaltungsgericht Basis Voorziening Vreemdelingenketen Closed Circuit Television Christlich Demokratische Union Conseil d’État Customs Information System Convention Implementing the Schengen Agreement Commission Nationale Informatique et Libertés Commission de sauvegarde du droit d’asile Central Schengen Information System Christlich Soziale Union Deutsche Demokratische Republik Deoxyribo Nucleic Acid Data Protection Authority European Arrest Warrant European Communities European Court of Justice European Convention on Human Rights Economic and Financial Affairs (EU Council) .en Veiligheidsdienst Algemene Wet Bestuursrecht Aktenzeichen Ausländerzentralregister Ausländerzentralregistergesetz Belgium.Abbreviations AAH-SDÜ AB AGDREF AIVD AWB Az. Netherlands. AZR AZRG Benelux BDSG Bf V BGBl BKA BVerfG BVerwG BVV CCTV CDU CE CIS CISA CNIL CSDA CSIS CSU DDR DNA DPA EAW EC ECJ ECHR Ecofin Allgemeine Anwendungshinweise zum Schengener Durchführungsübereinkommen Administratiefrechtelijke Beslissingen Application de gestion des dossiers des ressortissants étrangers en France Algemene Inlichtingen. xxvi Abbreviations ECR ECtHR EDPS EEA EJML ELOI EP FAED FDP FPR GBA GISTI HAVANK ID IND InfAuslR INPOL IT JHA JO JORF JSA JV KLPD LIFL LJN MEP MR MRAP Mvv NAV NGO NSIS NStZ OECD OFPRA OJ OPS OVG European Court Reports European Court of Human Rights European Data Protection Supervisor European Economic Area European Journal of Migration and Law Fichier de faciliter l’éloignement des étrangers se maintenant sans droit sur le territoire European Parliament Fichier automatisé des empreintes digitales Freien Demokratischen Partei Fichier des Personnes Recherchées Gemeentelijke Basis Administratie Groupe d’information et de soutien des immigrés Het Automatische VingerAfdrukkensysteem Nederlandse Kollektie Identification Immigratie.en Naturalisatiedienst Informationsbrief Ausländerrecht Polizeiliches Informationssystem Information Technology Justice and Home Affairs (EU Council) Journal Officiel (France) Journal Officiel de la République Française Joint Supervisory Authority (Schengen) Jurisprudentie Vreemdelingenrecht Korps Landelijke Politiediensten Loi relatif à l’informatique. aux fichiers et aux libertés Landelijk Jurisprudentie Nummer Member of the European Parliament Migrantenrecht Mouvement contre le Racisme et pour l’Amitié entre les Peuples Machtiging tot voorlopig verblijf Nieuwsbrief Asiel en Vluchtelingenrecht Non Governmental Organisation National Schengen Information System Neue Zeitschrift für Strafrecht Organisation Economic Cooperation and Development Office français de protection des réfugiés et apatrides Official Journal (EC) nationaal opsporingsregister Oberverwaltungsgericht . TEC TEU UK UN UNESCO US VGH VIS VwGO VwVfG WBP WBV Permanent Working Party SIS Qualitative Majority Voting Rote Armee Fraktion Reports of Judgments and Decisions (ECHR) Réseau Mondial Visa Rechtspraak Vreemdelingenrecht Single European Market Supplementary Information Request at the National Entry Schengen Information System Sozialdemokratische Partei Deutschlands Terrorismusbekämpfungsgesetz Tussentijds Bericht Vreemdelingenrecht third-country nationals Treaty of the European Communities Treaty of the European Union United Kingdom United Nations United Nations Educational.c.Abbreviations PWP SIS QMV RAF Reports RMV RV SEA SIRENE SIS SPD TBG TBV t. Scientific and Cultural Organisation United States Verwaltungsgerichtshof Visa Information System Verwaltungsgerichtsordnung Verwaltungsverfahrengesetz Wet Bescherming Persoonsgegevens Wijzigingsbesluit Vreemdelingenrecht xxvii .n. . public 1 2 House of Lords European Union Committee. The SIS finds its roots in the Convention on the Implementation of the Schengen Agreement of 1990 (hereafter the CISA). Digital Borders and Real Rights. as well as persons wanted for arrest for extradition purposes or for the purpose of discreet surveillance. By 2002. chiefly those suspected of criminal offences”. the majority of personal data held in the SIS concerns third-country nationals to be refused entry on the basis of Article 96 CISA. the SIS was in use by the 15 “old” EU Member States. HL Paper 49. 5239/06. With regard to the purpose of border checks of persons. “keeping the unwanted out – for example.627 records on persons held in the SIS.954 (85 %) were third-country nationals reported for the purpose of refusal of entrance. 1–10. or SIS. . Printed in the Netherlands. 751. When the SIS became operational in 1995.2 The decision to report a third-country national in the SIS is based primarily on a national decision that this person is considered a threat to public order. France. In 2006. It is one of the most important databases used for immigration and border control in the EU and it has always been presented as a ‘compensatory tool’ for the abolition of internal border controls between the Schengen states. 9th Report of session 2006–07. undesirable aliens – and preventing the wanted from leaving. 12 January 2006. Germany. except the United Kingdom and Ireland and Norway and Iceland as non-EU Member States. Report with Evidence. from the 882. it was used by seven states: the Benelux countries. Portugal and Spain. the SIS facilitates what has been adequately described as. On 1 January 2006. © 2008 Koninklijke Brill NV. the SIS included approximately 15 million reports on different categories of persons and objects. These categories include stolen vehicles and lost or stolen identity papers. published 2 March 2007. pp. SIS Database Statistics. Evelien Brouwer. The Schengen Information System and Other EU Databases: Tools for Border and Immigration Control This study concerns the right to effective remedies by third-country nationals reported in the Schengen Information System. Schengen Information System II.1 Since its launch in 1995. witnesses or other persons summoned to appear before the judicial authorities. London: The Stationery Office Limited.Chapter 1 Introduction 1. these measures are also closely linked to one other. Problem When an authority finds that a person is reported in one of these databases. In order to transform the SIS into a system that was technically feasible for a larger group of user states. This database is to include data on every visa application by persons seeking entry to one of the EU Member States. rather than on the harmonisation of refusal grounds. Furthermore. other large EU databases have been developed or are being developed for the purposes of immigration and border control.12. including the new EU Member States. In 2003. and Eurodac and the use of these databases in the fight against and prevention of terrorism. The VIS will be used primarily for repressive purposes rather than to improve 3 OJ L381/4.3 SIS II is planned to be operational in 2008 and is to be used by no less than 30 States. the European Council invited the Commission to prepare proposals for enhanced interoperability between SIS II. In 2004. VIS. be refused entry to every other Schengen State. this may have immediate consequences for the legal position of third-country nationals. The consequence of this decision to report an individual in the SIS is that the person will. the EU legislator prepared the so-called second-generation SIS. in principle. a third-country national also can be denied a visa or a residence permit. but also SIS II and the VIS will include biometric data. the EU Council adopted Regulation 1987/2006 on the establishment of SIS II. Another large-scale database of thirdcountry nationals will be the Visa Information System. The SIS II. This will make accessibility and the networking of these databases much easier.2006. Aside from SIS or SIS II. 2. refusal of entry or removal of this person. 28.2 Chapter 1 security or national security. This development of the SIS II has been used to discuss and introduce new functions of the SIS. On the basis of a SIS alert. Eurodac. the fingerprints of asylum seekers and persons found illegally crossing the external borders are stored in Eurodac. or SIS II. Secondly. In December 2006. Nevertheless. The practical implementation of Article 96 is based on a system of mutual recognition of national decisions to refuse entry to a third-country national. . not only Eurodac. or even expelled or detained. the decision can be based on immigration law decisions regarding the deportation. the EU Member States established Eurodac for the implementation of the socalled Dublin Convention (now Regulation). including the national decisions with regard to these applications. and VIS databases each have their own functions and should therefore be examined on their own merits. With the aim of facilitating the identification of the Member State responsible for the examination of an asylum request. Firstly.5 Where the use of these databases is focussed on controlling the movement of persons. . “to prevent threats to internal security and ‘visa shopping’. a person facing a SIS alert may use his or her data protection rights of access. their personal freedom or their privacy by decisions in matters of immigration and border control”.7 Furthermore. correction or deletion of this information. Towards effective legal remedies for individuals in Europe. i. Article 22. when he or she is denied entry at the external borders of the EU or refused a visa in his country of origin. but he or she may also be detained or even expelled.. Utrecht: Forum. 2004. The procedure of trying to obtain access to 4 5 6 7 COM (2004) 835. According to the proposal by the European Commission in 2004. a person generally will not be aware that he or she is registered in the SIS I. the rights of individuals are. National and supranational data protection authorities are empowered to supervise the protection of these rights and the lawfulness of data processing in general. This person will often find out about the SIS alert when it is too late. covered by two fields of law: data protection law and immigration law.Introduction 3 or accelerate visa procedures in favour of the visa applicants. however. P. This study is based on the premise that both the data protection and the immigration law procedures have their own weaknesses affecting the legal protection of the person involved. 28 December 2004. generally.4 A hit based on data stored in Eurodac may result in the deportation or “transfer” of an asylum seeker to another Member State. This possibility is explicitly provided in the EC Directive 95/46 on data protection. a person who is refused entry or whose application for a visa or residence permit has been rejected on the basis of a SIS alert will seek to use the available immigration law procedures. it is questionable whether the EU Member States pay the same attention to protecting the basic rights of these persons. Hereafter I will refer to “SIS I” when meaning the first generation SIS operational since 1995 and use “SIS II” for the future second-generation SIS. What seems to be lacking is the simultaneous development of a right to effective remedies for those individuals who are “directly affected in their liberty to move. 13. p. the central aim of the VIS will be. Boeles a.6 Considering the use of databases such as SIS I.e. More importantly. it is questionable whether data protection law offers individuals practical and effective legal protection or whether this only concerns ‘soft law’ or with other words rules which are non-binding. the decisions of these organisations often have no binding effect. On the other hand. On the one hand. Access to judicial courts is not always self-evident and can be made dependent on the requirement that individuals should address data protection authorities first.o. A person reported in SIS I or SIS II may not only be refused entry or a visa. to facilitate the fight against fraud” and “to assist in the identification and return of illegal immigrants”. Border control and movement of persons. The practical meaning of the right to effective remedies is dependent of the implementation at the national level. For this purpose.4 Chapter 1 the data or to apply for correction or deletion under data protection law may then take too long. I will examine the use of the SIS I and the implementation of CISA and relevant rules at the national level. Secondly. including the decisions to report thirdcountry nationals in the SIS. what is the added value of data protection law? Does this provide extra legal protection for the persons involved or does it only include ‘soft rules’? Secondly. Finally. Additionally. and the Netherlands. Therefore. I will seek to answer two additional questions. I will investigate which ‘right to effective remedies’ can be derived from European (immigration and data protection) law.1. national governments claim to have a wide margin of appreciation in deciding who may enter the national territory and who may not. considering the reason for which this person wishes to visit one of the EU Member States. the right to legal remedies in immigration law procedures is not a matter of course. Firstly. 3. Germany. in the field of immigration law decisions. in order to protect these rights. based on the principle of sovereignty. I will first try to establish which rights of third-country nationals are at stake when dealing with the use of the SIS I. tension traditionally exists between the rights of the individual and the principle of state sovereignty. Questions The central question of my research is whether third-country nationals reported in the SIS have access to effective remedies with regard to the storage and use of this information. national laws do not always provide for legal remedies. which lessons can be learned from more than ten years using the SIS I with regard to the development and use of SIS II and other EU databases? What recommendations can be made to guarantee the rights and legal protection of persons reported as ‘inadmissible aliens’ in the EU? . A Right to Effective Remedies? 3. Based on their sovereignty. I will try to answer the following sub-questions: What are the consequences of the use of SIS I for the legal position of third-country nationals? What are the criteria for which they can be reported in this database? What are their rights under national law? Based on my findings with regard to the right to effective remedies in European law and its implementation in national law. it has been argued that national courts are not competent to decide on the lawfulness of decisions made by foreign authorities. Dealing with the law of respectively France. Especially in visa procedures. Secondly. I consider it useful to apply a set of ‘minimum requirements or criteria’. legal and linguistic assistance to parties must be guaranteed. the European Social Charter. This included the UN Declaration on Human Rights.Introduction 5 3. one single answer is not easy to give. Fair Immigration Proceedings in Europe. For each of these criteria. Boeles defined “effective legal remedies” as a procedure which is designed so “that the maximum chance exists for review of the action or failure to act of a government on the basis of a legal rules whose aim is (inter alia) to protect individuals”. the sources I use are not limited to the applicable standards of immigration law. the ECHR. By ‘European law’. etc. including 8 9 P. This is partly for practical reasons. The Hague: Martinus Nijhoff Publishers. with regard to the availability of effective remedies. From his study. individuals must be able to overcome fait accompli (proceedings have suspensive effect or court is competent to take interim measures). not other international norms.8 In his study. Criteria to Assess Availability of Effective Remedies As a tool to describe the availability of ‘the right to effective remedies’ in the field of immigration and data protection law. I am referring to the immigration law and data protection principles adopted or incorporated within the legal framework of the EU. but also because European law seems to play a more central role with regard to my topic. because of the wide range of situations and decisions at stake. . In an earlier study. proceedings must have the character of judicial proceedings. Fair Immigration Proceedings in Europe. Boeles made an analysis of the international standards which are to be considered binding within the legal framework of the EU. 5) the court must be able to take account of all essential aspects. 1997. the ILO Convention on Migrant Workers. but also include Article 8 ECHR on the right to private life and the European law on data protection. Boeles. in order to limit the scope of my research. the Convention on the Status of Refugees and the Convention on the Status of Stateless Persons. one can learn that international law in 1997 did not require the fulfilment of each of these criteria and that. the Convention on the Rights of the Child.2. The emphasis of this study lies on the relationship between the use of EU databases and the rights of thirdcountry nationals. referred to by Boeles as the ‘Regional Acquis’ of the European Union. 6) appeal at higher level must be available. On the other hand. Therefore.9 The present study will not repeat the Boeles exercise. I will only consider European standards. Boeles used six criteria which in his view would maximise the chance of effective legal remedies: 1) 2) 3) 4) proceedings must exist and be accessible by the individual. describing the current state of law on effective remedies in immigration law. for example data protection authorities. the Treaty of the European Union (TEU) and the relevant instruments of the Council of the Europe. including the European Convention on Human Rights (ECHR). One could however conclude with Boeles that on the basis of the principle of non-discrimination. I will question the competences of the court or authorities. the review of the judgment of a lower court by a higher court could provide for more uniformity in law. as well as to issue fines to the administration. I will use the following questions to assess the applicable laws. or are there certain limitations based on the sovereignty of the administration involved? Does the court or authority have the power to assess foreign decisions. In his study in 1997. for the individual it includes a second chance of review which. With the sole purpose of limiting the scope of this research. will not be dealt with separately. Inspired by the criteria developed in Boeles’ research. This includes the power to restore the rights of the applicants. if national law offers a remedy to a higher court to its own citizens. are these authorities to be regarded as impartial and independent authorities? The second criterion refers to the accessibility of the legal remedies in question. but is considered as part of the “accessibility of remedies”. might be crucial for the protection of his or her rights. under EU law the legislator should provide equal protection to non-citizens.6 Chapter 1 the Treaty of the European Communities (TEC). including foreign decisions to report a third-country national in the SIS? Finally. the right to legal and linguistic assistance. I refer to what exactly can be reviewed by the judicial or non-judicial authority. It is nonetheless beyond doubt that the right to have one’s case reviewed at a higher level is important for several reasons. If the law only provides for access to nonjudicial authorities. I chose not to deal separately with the right to higher appeal. Does a person know that he or she may appeal against a negative decision. On the one hand. With regard to the criterion of “scope of review”. Boeles concluded that the law of his ‘Regional Acquis’ generally does not require the possibility of appeal to a higher instance. On the other hand. under certain circumstances. . or a ban on entry? What procedural guarantees should be in place to ensure that a third-country national can use his right to legal remedies? Boeles’ third criterion. a) b) c) d) Is there a right to appeal to an impartial and independent authority? Are the legal remedies accessible? What is the scope of the review? What are the competences of the (judicial or non-judicial) authority? The first criterion refers to the question whether the applicable law requires access to judicial or non-judicial remedies. Can a court or authority review every aspect of a national administrative decision. 5. I will describe the development of the SIS II and the final adoption of the SIS II Regulation 1987/2006 in December 2006. how are they used and what is their mutual relationship? Part II of my study presents the institutional framework of my study: the protection of individual rights stemming from general principles of European law. These definitions include.Introduction 7 4. We will see how SIS I has been established as a compensatory tool for this abolition of internal border controls. I will . I will first give an historical overview of the abolition of internal border controls and the freedom of movement of persons in the EU. In the national Part. These sources include the ECHR and EU law. Part III deals with the implementation of Article 96 CISA and the right to legal remedies for third-country nationals reported in the SIS at national level. Chapters 6 to 9 describe the sources of European law relevant to my subject: the right to effective remedies for third-country nationals reported in SIS I and other EU databases. and the provisions in national law with regard to the rights of the persons concerned. “aliens” and “immigrants”. Therefore. For what purposes are these databases established. I will describe the national criteria for reporting third-country nationals in the SIS I on the basis of Article 96 CISA. In this study. I will consider whether a right to effective remedies can be derived from the general principles of EU law. In Chapter 10. Outline Part I of my study describes the impact of the SIS I on the legal position of thirdcountry nationals in the EU. Definitions and Explanation of Used Terms National and EU policy-makers tend to use different definitions to describe individuals who are non-citizens of their countries or the EU. To describe the implementation of the CISA and the rules on the SIS I. in Chapter 4. these countries have a long history of developing data protection law and a developed system of judicial remedies in immigration law. I have chosen France. for example. an analysis will be made of the available case law to see how the national courts and data protection authorities have dealt with individual complaints with regard to the SIS. and the proposed VIS. Finally. when referring to a non-EU citizen. In Chapter 5. dealing with data protection law decisions and immigration law decisions. “foreigners”. I will compare the functioning of the SIS to other EU databases such as Eurodac. The three countries provided a significant proportion of the Article 96 alerts in the SIS. Germany and the Netherlands. I generally prefer to use the term “third-country nationals”. Only when these terms are explicitly used in national legislation. Aside from practical reasons. In addition. this choice is based on the fact that these countries have been involved in the development of the Schengen cooperation and SIS I right from the start. establishing the European Union. in NGOs. jurisprudence and legal and non-legal publications. in other words. Only when describing legal instruments explicitly based on the Treaty of the European Communities (TEC). as members of national 10 See for example ECJ.10 I will use the terms “European Communities” and “EC Member States” when dealing with developments before the Treaty of Maastricht entered into force in 1993. I will use the two words indiscriminately. C-150/05 Van Straaten v. I used mainly information from publicly available sources including national and EU legislation. stored or processed. Germany and the Netherlands. Commentators on data protection law generally make an explicit difference between the words “data” and “information”. “data owner” and “data controller” are generally used to describe the organisation or authority responsible for the data processing.8 Chapter 1 refer to “aliens” or “foreigners”. Regarding “Schengen”. As we will see in Chapter 4. . as lawyers. However. judges. I prefer to use “European Union” and “EU Member States”. As of that date. Finally. Sources and Interviewees For this study. government officials. authors generally refer to the “Schengen Convention” or the “Schengen Implementing Agreement”. the SIS II Regulation 1987/2006 gives a narrower definition of “third-country national”. Only with regard to my description of the history of the ‘Schengen negotiations and decision making’. Where “data” is used to describe the input of words. In order to collect additional information on the legislation and practical measures in France. signs or bits and bytes which have no independent meaning. I conducted interviews with a number of persons in these three countries. I prefer to use the same reference used by the EC Court of Justice in its jurisprudence: the “Convention Implementing the Schengen Agreement” or “CISA”. “data user” refers to the person or organisation using the information. These persons were working as professionals in this area. I will refer to “EC law” or “EC instruments”. Starting with the presumption that any data gathered or stored concerning an individual can result in real information on this person. about whom the information is collected. Whereas “data holder”. 6. “information” describes the meaning or knowledge which can be assigned to those data. in that it excludes both EU citizens and nationals of third countries who enjoy the rights of free movement under the agreements between the EC and these third countries. I used personal archives of Kees Groenendijk and myself. the Netherlands and Italy. “data subject” is used to describe the person who is the subject of the data processing or. Lübeck. Gendarmerie Nationale). to forward information or case law on SIS and Article 96 CISA. – Angelika Schriever-Steinberg. head of the unit C2. – Stefan Röst and Janneke Bol. Persons interviewed in France (spring 2005): – Caroline Intrand. Hesse Data Protection Commissioner. Schleswig Holstein Data Protection Commissioner (Landesbeauftragter Datenschutz Schleswig Holstein). lawyer at Everaert Advocaten Immigration Lawyers. I incorporated important developments between December 2006 and June 2007. or KLPD) Zoetermeer. legal officers of the Immigration and Naturalisation Office (Immigratie. – Florence Fourets. University de Paris-X. – Eppo Mol. This did not yield any response. or IND) Rijswijk. Wiesbaden. Paris Further information was provided in writing by: – Lt-Col Jean-François Impini (Centre de Prospective. Paris. legal officer of the Data Protection Authority (College Bescherming persoonsgegevens. head of the unit Police Intelligence Service.en Naturalisatiedienst. Amsterdam. Persons interviewed in Germany (spring 2005): – Volker Westphal. head respectively officer of the SIRENE Unit. Further (statistical) information . Paris. or CNIL). Paris. Bonn. Wiesbaden Persons interviewed in the Netherlands (summer 2004): – Michiel Tjebbes. finally. – Niels Groenhart. – Didier Bigo (Maître de conférences des universités à Sciences-Po. Federal Police (Bundespolizei). Kiel. CERI). – Thilo Weichert. A general call for immigration lawyers was published in the Dutch journal Migrantenrecht. I completed my research in December 2006. (Landesdatenschutzbeauftragte Hessen). summer 2004 issue. and – Roger Errera (former judge of the Conseil d’État).Introduction 9 data protection authorities and. – Sylvia Preuss-Laussinotte. or CBP) The Hague. Federal Criminal Police Office (Bundeskriminalamt or BKA). as academics. professor of public law. privacy officer of the Dutch National Police (Koninklijke Landelijke Politiediensten. head of the unit Direction de l’expertise informatique et des contrôles of the French Data Protection Authority (Commission National d’Informations et des Libertés. Exceptionally. Federal Data Protection Commissioner (Bundesbeauftragter Datenschutz). legal officer of the NGO Cimade. – Martin Tuffner and Manuela Brenner. – Wolfgang von Pommer Esche. Nanterre. In order to keep abreast of the most recent decision-making on SIS II. Brussels.org. also provided information by telephone. VIS or biometrics. Council Secretariat. Eurodac. Peter Michael of the Joint Supervisory Authority (JSA). Brussels. the author gratefully used the website of Statewatch: http:// www.statewatch. .10 Chapter 1 was kindly submitted by Gerrit Huybrechts of the Directorate-General for Justice and Home Affairs. Part I Border Control and Data Surveillance in the EU . . See. Printed in the Netherlands. In Search of Europe’s Borders. The abolition of internal border controls was accompanied by different. and M. national governments relied heavily upon the symbolic function of borders or frontiers. E. the borders of the Member States of the European Communities (EC) became an issue of shared responsibility. for the evolution and the meaning of the concept of frontiers: D. Guild & P. pp. Anderson. 13–46. Introduction: Abolition of Internal Border Controls The development of EU databases is closely related to the emergence of ‘a Europe without internal frontiers’. with special reference to computerisation. Bigo. Guild (eds.Chapter 2 Towards Schengen: The Abolition of Internal Border Controls in Europe “In order to effectively implement visa policy and the jointly defined controls along our external borders. Digital Borders and Real Rights. For example. What are EU frontiers for and what do they mean?. Evelien Brouwer. . in: K. D. which was given a formal boost with the signing of the Single European Act in 1986. Minderhoud.) Controlling Frontiers. the compensatory measures to be developed differed accordingly. The Hague/London/New York: Kluwer Law International 2003. Press 90/02/02.”1 1.2 Since borders have different functions. © 2008 Koninklijke Brill NV. p. the idea that the abolition of internal border controls would give criminal organisations the opportunity to move wherever they please and that this would increase ‘cross-border criminality’ was used to justify the development of Europol and Eurojust and the introduction of the 1 2 Declaration of the EC Ministers dealing with immigration matters. Aldershot: Ashgate 2005. we feel it is essential that we should begin to exchange information about persons who must be refused access to the territories of one of our Member States on the grounds that their presence there could threaten security or public order in one of our states and we have decided to look into the best ways of doing this. With European integration. Free movement into and within Europe. Bigo & E. To justify these measures. 15 December 1989. 7–25. so-called compensatory measures. Groenendijk. OJ L 176. to be discussed in Chapter 4.10. See Regulation 539/2001 determining the countries whose nationals must have visas to cross external borders of the Member States. Norway. Eurojust and the Customs Information System. which was repealed by the so-called Naples II Convention of 18 December 1997.7. France and Germany.5 More recently.1998. 2. .11.1999 and the Council Regulation 377/2004 of 19 February 2004 on the creation of an immigration liaison officers network. this database included information on 15 million objects and individuals. Planned as an intergovernmental ‘experiment’ by the Benelux countries.07. the EU Member States are preparing to deploy maritime police teams in extraterritorial waters to prevent the arrival of immigrants by boat. 27. OJ C 316. the new version of SIS. Liechtenstein and Switzerland. 18. 30 November 2006. is planned to be used by at least 31 European States including the 27 EU Member States and four non-EU Member States (Iceland. by far the largest database used in the EU is the Schengen Information System or SIS I. This includes the establishment of a more stringent and uniform visa regime. Between 1995 and 2006. OJ L 81.14 Chapter 2 European Arrest Warrant. OJ L 64. 6. 21. COM(2006) 733 final. 3 4 5 6 7 See respectively the Europol Convention based on Article K. in 2008. Communication from the Commission to the Council. See also Council Regulation 2913/92 of 12 October 1992 establishing the Community Customs Code. As we will see below.3.3. but also the introduction of pre-boarding checks and the posting of liaison officers in the countries of origin. See the Naples Convention on mutual cooperation between customs authorities signed by six EC Member States in 1967.3 The traditional use of borders as a source of income by raising taxes on the import of goods was compensated by mutual cooperation between the customs authorities of the EU Member States and the completion of the Customs Union. OJ L 302.1992. 23. 19. the EU governments enabled their national authorities to exchange their information mutually in the field of criminal law and customs policy through the use of Europol.2001. the Schengen Common Consular Instructions.4 Regarding the function of borders for immigration policy.2004. To distinguish the original SIS from the second generation SIS or SIS II. Reinforcing the management of the European Union’s Southern Maritime Borders. 10.1995. OJ C 24.2002 and the Framework Decision on the Arrest Warrant of 13 June 2002.7 In 2006. the EC Member States sought to compensate for their internal border controls by moving their powers to external borders and even to the countries of origin of immigrants.2002. the Council Decision 2002/187/JHA of 28 February 2002 setting up Eurojust with a view to reinforcing the fight against serious crime OJ L 63/1.3 of the Treaty on European Union. or SIS II. the SIS I is used by 15 states including thirteen EU Member States and the non-EU Member States Iceland and Norway.6 With regard to the use and sharing of information. L190/1. I will refer further to SIS I.3.01. p.1. L 172/14. since the EU governments were reluctant to change the impact of border controls on persons. I will describe the development and use of the SIS I itself. (eds. Between 1957 and 1985: From the Treaty of Rome to the Commission’s White Paper When the European Economic Community was established by the Treaty of Rome on 25 March 1957. with the so-called Tindemans report. arbitrary or unnecessarily constricting way”.1968. Dordrecht: Nijhoff 1993.G. Those privileged persons could enter and leave the territory of Member States by showing their passport or identity card. it is necessary to describe the European history of immigration law and border policies. 73/148 21. Schermers et al.05. See. but freedom of movement for persons only applied to nationals of the Member States conducting any kind of economic activity. the Council persisted in closely linking the freedom of movement of persons to the economic activities of EC nationals. in which the Court accepted the Belgian practice of frontier spot checks on nonBelgian Community nationals to determine whether they were carrying their residence permits was not contrary to the Community rules.11 This report reflected on the need to 8 9 10 11 Treaty establishing the European Economic Community entered into force on 1 January 1958 and was signed in 1957 by the Benelux countries. Abolition of Border Controls. Belgium. the judgment of 27 April 1987.10 However. ECR [1989] 997. the Treaty did not include a substantive legal basis for immigration and asylum policy with regard to third-country nationals. 5. the self-employed and those providing services.H. Directives 68/360 of 15. In this Chapter. case C-321/87.8 The Treaty of Rome formulated the freedom of movement for goods. . Donner. The abolition of internal border controls did not reach the EC agenda until 1972.9 The application of these rules was gradually widened by the case-law of the Court of Justice (ECJ). as long these checks were not being carried out in a “systematic. the abolition of internal border controls was not one of its primary goals. such as workers.10. In Chapter 3. Germany and Italy. France.1973. J.). Commission v. Free movement of persons in Europe: legal problems and experiences. Likewise. capital and persons. in: H.Towards Schengen: The Abolition of Internal Border Controls in Europe 15 To understand the relatively successful integration of the intergovernmental ‘Schengen’ cooperation into EU law and the expanding role of the SIS I. while at the same time governments were trying hard to maintain their national sovereignty and the European Commission was attempting to lift this decisionmaking to the community level. services. OJ 168 L 257/13. I try to reveal how a small group of EC Member States were able to reach agreement within the intergovernmental Schengen framework. The Internal Market and the Free Movement of Persons: Setting Goals 2. OJ 1973. 2. for example.P. C 179. In the same year the Tindemans report was published.13 At this meeting in Paris. including political rights and the right to gain access to public functions. Austria. the Council and the representatives of the Governments only adopted a resolution on the simplification of border-crossing formalities for EC nationals at internal frontiers. 15. In June 1984. Suppl. between 1974 and 1985 no serious legislation on the abolition of internal border control was adopted within the EC framework. OJ C 159.3. Fijnaut. Wytinck. and United Kingdom. 19. 13–54.16 In Fontainebleau. Ireland. In the first report on the Passport Union. 29. P. the EC was joined by the Denmark.15 Despite the continuing discussion on this subject. OJ L 73.1979) and Portugal and Spain in 1986 (OJ L 302.1984. 19. 7/75. The second report concerned the granting of privileged rights to EC nationals. At the same time. Finland. in July 1975. and Sweden joined the EC in 1995 (OJ C 241.11. Schengen: Proeftuin voor de Europese Gemeenschap?. Although the Tindemans report did not receive warm support from the different Member States. C 241 and OJ 1982. at its meeting of 25–26 June 1984. p. Antwerp: Gouda Quint 1992.12 One could say that this enlargement on the one hand strengthened the motivation of Member States to establish an area in which the four freedoms of movement was applied. . the EC was enlarged to nine countries. but also common control measures at external borders.8.14 A Commission proposal for a directive on a uniform model for a passport was only accepted in the form of a resolution by the Council of Ministers on 23 June 1981. the European Commission published two reports. Stuyck. A year after this European Conference.1972. In the longer term. while at the same time this hampered the achievement of political agreement on the necessary measures. The foundations of the notion of lifting internal border controls were laid at the European Conference of the Heads of State at their meeting of 9–10 December 1974.11. 27. See H.16 Chapter 2 lift border controls as a measure to make the Community ‘more real’ to its citizens.1985). EC Bull. the Council created a Working Group to investigate the possibilities for establishing a Passport Union. the Commission proposed not only the introduction of a uniform passport and the lifting of passport controls at internal borders. in: C. Verschueren. See OJ 1981.6. this would lead to the harmonisation of immigration law and the abolition of passport control at the internal borders.1994) 1. the European Council adopted a declaration on the concept of ‘a citizen’s Europe’. Vrij verkeer van personen in Schengen-Verdragen. This Passport Union had to include a uniform passport for EC citizens. J. the Council instructed the so-called 12 13 14 15 16 In 1973. it formed the basis for the further development of concepts such as the ‘Passport Union’ and a ‘Europe of the citizen’. Greece became an EC Member State in 1981 (OJ L 291. C 47/5. entry and access to employment with regard to nonEC citizens. COM (85) 224 OJ C 131. 7/85. 30. On the same date.1985. In addition.19 However. 19. the Commission announced that it would propose by 1988 at the latest the coordination of rules on residence. The Commission’s White Paper on the Completion of the Internal Market On 14 June 1985.18 This draft Directive of 23 January 1985 included a proposal for a system of spot checks at all the internal frontiers in the EC. according to the Commission. regardless of their nationality. the European Commission published a proposal for a Directive on the reduction of controls and formalities applicable to nationals of the Member States when crossing intra-Community borders.20 With this paper. the abolition of checks at internal borders would also make it much easier for non-Community citizens to move from one Member State to another. 1985. COM (85) 310.2. report published in Bulletin of the European Communities. five Member States signed the Schengen Agreement which formed the cornerstone for further intergovernmental cooperation in the same area. the Commission called for a Community policy on visas. the European Commission presented a White Paper on the completion of the internal market with a list of measures which were considered necessary in order to achieve an internal market without internal border controls.05. 2. With regard to third-country nationals. suppl. regardless of the means of transport used.1985. 17 18 19 20 Ad hoc Committee set up for examining the creation of a people’s Europe. .2. the proposal was never adopted and was later withdrawn by the Commission. 14 June 1985. Therefore. After the debate in the European Parliament. the Commission recognised that the free movement of persons and the abolition of border control would apply to all persons. Brussels. For this reason. the Commission tried to find support for the idea that the abolition of internal border controls was something to be dealt with within the EC framework. enable the elimination of police checks at internal frontiers by 1992.Towards Schengen: The Abolition of Internal Border Controls in Europe 17 Adonnino Committee to examine measures regarding the abolition of police and customs formalities with regard to the movement of persons and goods across internal borders. OJ 1985. The adoption of these measures in the field of immigration policy by the Council and the enhanced cooperation between police and other relevant agencies within the Member States would. the Commission proposed an amendment which also included the abolition of controls upon departure. The Commission announced that by 1988 a proposal was to be made for the complete elimination of checks when leaving one Member State and entering another.17 Responding to a request made by the European Parliament. see further below.This proposal was also a reaction to the Franco-German Agreement of Saarbrücken of July 1984 (see below). whether all internal border controls would have to be lifted by this date and on the interpretation of Article 8A. but not a decision which is dictated by Community law as it stands”. 29. p. In a declaration to the SEA.24 However. this date became a crucial deadline for the development of Schengen as well. the Council confirmed that Member States would cooperate in the field of entry. in particular as regards the entry. In its judgment.25 At the same time. it was still hard to reach political agreement on effective measures on internal and external border control controls within the EC framework. 9 July 1987. From 1985 to the Completion of the Single Market: Defining Powers Although the European Council supported the initiative of the European Commission with regard to the abolition of internal border controls.18 Chapter 2 3. p. persons.21 In 1985. 29.1987. The Court did not accept the French position that policy on foreign nationals involved questions of public security. 7. European Community Law from a Migrant’s Perspective. OJ L 169.1987. ECR 3203.06. Commission. Qualified Majority Voting (QMV) was introduced for the decision-making on key aspects of the single market programme. the governments made it clear they did not wish to abandon their legislative powers all at once: 21 22 23 24 25 See Törsten Stein. 26. Guild. p. but this did not cover the free movement of persons based on the new Article 100A inserted in the TEC by the Single Act. the Court denied the absolute sovereignty of Member States on immigration policy. without prejudice to the powers of the Community. “In order to promote the free movement of persons. in his statement for the British House of Lords: “The decision to completely abolish all border controls thus appears to be a political decision which one may welcome or not. The Hague/London/Boston: Kluwer Law International 2000. 7 November 1989.23 Article 8A (later Article 14) of the new EC Treaty (hereafter: TEC) defined the concept of the single market as ‘an area without internal frontiers in which the free movement of goods. In fact. Denmark and the UK) even challenged the Commission before the ECJ. House of Lords Select Committee on the European Communities.22 The consensus between the EC governments about the need to lift internal border controls was formalised with the signing of the Single European Act (SEA) in February 1986. France. movement and residence of nationals of third countries”. Germany and others v. movement and residence of third-country nationals. OJ L 169. in the declaration on Article 8A. See for a more detailed analysis: E. Member States disagreed on the direct effect of this ‘deadline’. the Member States shall cooperate. p. for which Member States were solely responsible.06. five Member States (Germany. 22nd Report 1992: Border Control of People. 1. 210. services and capital is ensured within the provisions of this Treaty’ and the deadline for establishing the internal market was set at 31 December 1992. As we will see below. . claiming that EC law did not empower the Commission to adopt a Decision which requested the states among others to notify the Commission of proposals for amendments to their immigration laws. the Netherlands. the governments were reluctant to transfer all their powers to the Commission. 28 Another stumbling block for further negotiations within the EC framework was the disagreement between the Member States about the scope of the definition of ‘internal market’ and ‘free movement of workers’. Setting the date of 31 December 1992 does not create an automatic legal effect. COM (88) 640 final. As a result. controls at the internal borders would have to remain.06. the Commission published a Communication on the abolition of controls of persons at intra-Community borders. took place in various groups. As the 1993 deadline approached. believed that this free movement and the subsequent abolition of internal border control only applied to EC workers. this work needed to be speeded up in order to respect the 1992 timetable. and more particularly the decisions necessary to implement the Commission’s programme described in the White Paper on the internal market.27 The governments held the view that the creation of the internal market would be dependent on measures to be taken by the Council of Ministers. initially supported by Greece and Denmark.1987. The Commission considered itself competent to come forward with proposals for legislation if the intergovernmental framework failed to develop the necessary instruments. 1986–1987. Illustrative of this ongoing dispute is the general declaration which was added to the SEA with regard to the right of the Commission to submit proposals on the basis of Article 8A and 100A TEC: “Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries and to combat terrorism.29 In this paper. In 1988. the Commission called for acceleration and a new political impetus with regard to decision-making in this area. See the Dutch government in its report on Border Control of 1 July 1987 to the Dutch Parliament. at that time.Towards Schengen: The Abolition of Internal Border Controls in Europe 19 “The Conference wishes by means of the provisions in Article 8A to express its firm political will to take before 1 January 1993 the decisions necessary to complete the internal market defined in those provisions. 199. Guild (2000). p. 20031. . 7 December 1988. Despite this statement. the Commission made no real progress in law making. According to the Commission. for more detail on the meaning of Article 8 and the additional declarations.”26 The Member States strongly disagreed with the Commission on the competence of the Commission in the field of immigration law. crime. E. 29. to check whether someone is an EC national or a third-country national. 1–2. In particular the UK. See. p. no real proposals in this field 26 27 28 29 OJ L 169. 24. p. The Council should play a stronger role by co-ordinating negotiations which. these countries claimed. traffic in drugs and illicit trading in works of art and antiques”. 29. entered into force on 1 November 1960. The Heyday of Intergovernmentalism (1985–1993). 26.33 The Treaty was followed by the Agreement on the transfer of border controls of persons to the external frontiers of the Benelux area. The Benelux Treaty of 3 February 1958. The Hague/ London/Boston: Kluwer Law International 1996. 18. and on the abolition of restrictions on the movement of EU workers and their families. in: E. pp. the Nordic Union. Guild. and came into effect on 1 July 1960. Intergovernmental Negotiations on the Abolition of Internal Border Controls 4. contrary to the provisions (in particular Articles 14 and 211) of the EC Treaty. European Parliament v. Other Examples: The Benelux. The Developing Immigration and Asylum policies of the European Union. OJ 1994 C 13/1. before the Benelux Treaty. Guild (2000). and between the Republic of Ireland and the United Kingdom.20 Chapter 2 were published. Ireland and the United Kingdom The awareness of the economic advantages of abolishing or reducing internal border controls resulted in closer cooperation between smaller groups of European countries. See E. 4. p. the Nordic Union. C 305 and OJ 1995. 40. Niessen. C 307 respectively. the Commission failed to submit proposals which are necessary for the achievement of the free movement of persons. Commission. The Benelux Treaty provided free movement to the nationals of the three Benelux countries and equal treatment with regard to residence and settlement. this also occurred within the framework of the Benelux Economic Union. The Benelux External Borders Agreement was signed on 11 April 1960. p. The European Parliament claimed that.32 Aside from the Schengen negotiations which will be discussed below. Guild & J. Niessen. Tractatenblad 1960. See E. OJ 1995. and shall exercise controls at their external borders which shall apply to the Benelux area”. the European Parliament withdrew its action before the Court. to launch proceedings before the Court of Justice. Tractatenblad (Dutch Series of Treaties) 1958.30 In the summer of 1995.1. 204. the Commission published three draft directives: on the abolition of internal border controls on persons.31 As a result of these legislative proposals. on the right of third-country nationals to travel in the Community. C 139. 203–205.34 Article 2 of this Benelux Agreement states: “From such time as this Agreement enters into force each of the High Contracting Parties shall cease to exercise controls on persons along their common borders. . on 18 November 1993. OJ 1995. This implied that the checks at the 30 31 32 33 34 C-445/93. See also J. This lack of initiative motivated the European Parliament. (2000). 552–562. This cooperation would provide the basis for the further establishment of a Single Market between the European countries. Vedsted-Hansen.A. the governments of the Benelux countries agreed to hold 35 36 37 38 See further. 25. different European countries have established bilateral agreements on the reduction of controls at their mutual borders.2. With this treaty. Van Winckel. 91–102. 1982. The Nordic Passport Union was established on 12 July 1957 between Denmark. 162). Between 1985 and 1989: The Schengen Negotiations ‘Schengen’ is without doubt the most important example of intergovernmental decision-making within the field of police cooperation and border and immigration policy. See for example the Agreements between the Netherlands and Germany: with regard to the joining of border controls and the establishment of mutual railway stations (Trb. p. 68 and 69) and on small-vehicle border traffic (Trb. 1992: Border Control of People. on the regulation of border-related problems (Trb. . 1958. “Because of the common travel area there are no immigration controls and crossing by vehicle with simple visual check is normal. limited border controls apply to their mutual citizens and to third-country nationals. protesting against the long queues at internal borders. J. Guild & P. Het personenverkeer in de Benelux. One of the more practical rather than ideological motives of this agreement was the need for the French government to seek a solution to the ongoing strikes by French truck drivers and customs officials. U. The Schengen cooperation has its roots in the Saarbrücken Agreement of 13 July 1984 between France and Germany. Norway. p. Security of Residence and Expulsion: protection of aliens in Europe. 1960. 1960.37 Furthermore. 22nd Report. Abolition of Border Controls within the Nordic Region and Security of Residence in Denmark. Helmut Kohl. 177. At their meetings in the autumn of 1984. 81). Kjaer. in: E. How Many Borders in the EU?. SEW 7/8.36 Iceland acceded on 24 September 1965. The exemption from passport control for travel between the Nordic Countries included thirdcountry nationals travelling directly from one Nordic state to another.35 The Benelux Agreement was later used as a model for the Schengen treaties. 67. Sweden and Finland.38 4. p. See also J. Concerns for the economic consequences and the pressure from its international transport organisations also encouraged the Dutch government to start negotiations with the German government in March 1984. The Nordic Union included the abolition of passport control at the common internal borders. signed by the Federal Chancellor of Germany. Leiden/Boston: Martinus Nijhoff Publishers 2001.” Select Committee on the European Communities. on the free movement of persons and Benelux. and the President of France. François Mitterrand. Between Ireland and the United Kingdom. see K. in: Groenendijk.Towards Schengen: The Abolition of Internal Border Controls in Europe 21 internal borders ceased to exist as well for third-country nationals. Guild & Minderhoud (2003).M. p. Session 1988–89. Minderhoud.J. the two countries agreed to gradually abandon controls at their mutual borders. House of Lords. the participating states would have to harmonise laws in advance and “take complementary measures to safeguard security and combat illegal immigration by nationals who are not members of the European Communities. a text was included in the Agreement referring to the need to elaborate ‘compensatory measures’ for the safeguarding of internal security. Germany and the Benelux countries. This Convention. further negotiations took place between France. was the result of long negotiations in working groups composed of senior officials and national experts in several fields. France and the Benelux states.D. 102. the signatory states made it clear that internal border controls should be transferred to the external borders. adopted by the Committee of Benelux Ministers on 12 December 1984. 192. Five years later. de Jong.22 Chapter 2 further negotiations with France and Germany on the reduction of internal border controls. criminality and illegal immigration.” The Agreement described the different fields in which harmonisation of the law would be necessary: police cooperation. In view of the difficulties with 39 40 41 42 See the preamble to the Schengen Agreement of 1985 and the Dutch parliamentary notes: Handelingen Tweede Kamer (Procedures of Lower House) 1984–1985. At the initiative of the German Ministry of the Interior. S. arms and explosives.41 This Agreement included short-term and long-term measures considered necessary for the abolition of controls at the internal common borders of the signatory parties. In Article 17 of this Agreement. Aldershot: Ashgate 2002. no. Germany and the Benelux countries signed the Convention Implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders (hereafter referred to as CISA) on 19 June 1990. 87 ff.40 On 14 June 1985. p. the law on drugs. The Benelux acquis. Dutch Treaty Series 1985. Cooperation in the field of Aliens Law. C. 18 941. but also to establish the basis for further cooperation in the field of the protection of public order and security. no. but also included a reference to the free movement of goods as a second goal. . This agreement was consolidated in the Memorandum of the Benelux countries. the Schengen Agreement on the Gradual Abolition of Checks at their Common Borders was signed by Germany. On the basis of this Memorandum. in: Schermers (1993). Between human rights and internal security.42 To that end. visa policy and entry conditions. The central aim of the Schengen Agreement was not only to simplify the circulation of goods and persons by providing harmonised rules on tax and customs. judicial assistance and extradition. and the decisions by the Benelux Committee of Ministers on the basis of this Agreement. was used as a model for the Schengen cooperation. for instance. to be discussed further in section 6 of this Chapter. the Heads of State of France. 1.39 This text was based on the Saarbrücken Agreement. including the Agreement on the lifting of internal border control. measures against the illegal traffic in drugs. p. The Europeanisation of Refugee policies. Lavenex. See. but also a response to current developments such as confronting terrorism in Europe and the growing number of asylum seekers in the 1980s. the Commission clarifies this position with regard to the Schengen developments: “In a separate but parallel and very relevant exercise the five Member States who signed the Schengen Agreement (France. MEP. in the words of Commissioner Bangemann: “The success of the Schengen Project will demonstrate the feasibility of the goal of the European Single Market. the ‘pilot function’ of the Schengen cooperation was very important even if. The Immigration Ad Hoc Group. This desire was not only a reaction to the process which had been initiated by the Schengen States.3. in: Schermers (1993). de Zwaan. 31). 1–2. The Trevi Working Group has been established back in 1975 following a meeting of the European Council in Rome. The Commission participates in the work of the Schengen Group which it finds invaluable in formulating its ideas in the wider Community context”. and the technical possibilities to solve all the complementary problems”. Institutional Problems and Free Movement of Persons.43 In the Communication of 1988 on the abolition of controls for persons. C 90/11. Or. see paragraph 12. the Commission stated that: “The Schengen initiative may help to speed up the removal of controls throughout the community”. Germany and the Benelux countries) have committed themselves to a process with the aim of abolishing identity controls of individuals at their common land borders. In the eyes of the Commission.Towards Schengen: The Abolition of Internal Border Controls in Europe 23 finding national support for Community legislation. even EC Member States firmly rejecting the idea of a Europe without (internal) frontiers. the Ad Hoc Group on Immigration and the Group of Co-ordinators. felt the desirability for co-ordination and cooperation in certain areas. Key actors in these intergovernmental negotiations were three groups: the Trevi Working Group. 1986–1987. in the end. . and the Group of Co-ordinators Within the larger framework. Trevi. p. No 431/89.46 The Group was composed of the EC 43 44 45 46 J. the European Commission seemed to accept and even to support the intergovernmental cooperation in this field as long as this provided concrete results. OJ 1990. measures would have to be taken within the Community framework. COM (88) 640 final. this group was named Trevi because its first meeting was in Rome and the Dutch Director-General of the Police and one of the main initiators was called Fonteijn.44 In the Annex to this report. p. Glinne. Only later the name was explained as an abbreviation of ‘Terrorisme. According to the Dutch government (letter to Parliament. Radicalisme Et Violence Internationale’. 336. 20031. Response by European Commissioner Bangemann to the written question of E.45 4. 1997. Police cooperation in Western Europe. The Commission was invited to take part in these meetings of the Ad Hoc Group and the secretariat was provided by the Council secretariat. Policy-Making in the European Union. which were held behind closed doors. But soon.J. The text of this Convention was based on earlier drafts on this subject for the CISA. consisted of high-level immigration policy officials from the Member States. Trevi was dismantled in 1992. Convention of 15 June 1990. It was supported by national officers negotiating in special working groups. at the initiative of the British Presidency. in: H.49 This Ad Hoc Group. the Council of Ministers set up the Ad Hoc Group of Immigration. Justice and Home Affairs: Cooperation without integration. Oxford: Oxford University Press 1996. ‘Trevi 1992’ was also responsible for co-ordinating the negotiations on Europol. while under the Dublin Convention internal border controls were to be maintained. 394.50 An important difference between the two regulations was the fact that the CISA was founded on the premise of the abolition of internal border controls.F. 75–92. in: Schermers (1993). ‘Trevi 1992’ was created to study the consequences of the abolition of internal border controls in the EC. external frontiers. admissions. In 1988. including public order. important preparatory work was done for subsequent European decision-making in the field of police cooperation and the fight against organised crime. did not operate correctly. deportations and information exchange. 79. With regard to these events. see p. p.C. After 1989. p. In 1980. In a decision by the Schengen Executive Committee of 26 April 1994 (known as the Bonn Protocol) it was agreed that the asylum provisions 47 48 49 50 C. See de Zwaan (1993).24 Chapter 2 Ministers of the Interior and met twice a year. p. the politicians felt that the existing framework of the international police organisation. forged papers. OJ C 254. M. its domain was extended to the policy on ‘illegal immigration and asylum flows’. police training and the fight against drugs and serious crime. the Trevi Working Group concentrated only on the fight against terrorism. The Group was divided into six sub-groups dealing with asylum. 339–340. asylum and external frontiers became key issues for the Immigration Ad Hoc Group. Fijnaut.48 During the meetings of the Trevi Working Group. the group was dealing with other topics as well.47 Originally. One of the achievements of the Ad Hoc Group was the drafting of the Dublin Convention on the responsibility of a member state for the examination of an application for asylum which is submitted in one of the EC Member States. den Boer. Wallace & W. The Trevi Working Group was set up in order to respond to the terrorist attacks occurring in the seventies. . Wallace. Interpol. During the second half of 1986. which met every six months. while ensuring the safety and security of their people. by including provisions on Justice and Home Affairs in this Treaty”. once this Convention had entered into force. The need for compensatory measures was also emphasised in the preamble to the Maastricht Treaty of 1992. such a system would not preclude security checks (as opposed to identity checks) being carried out at airports. to be discussed below.1. included a first detailed agenda and timetable for European policy. adopted by the European Council of Madrid in June 1989. The full text of the Palma Document is published in Guild & Niessen (1996). Abolition of Border Controls and Compensatory Measures 5. . The European Commission underlined in its White Paper of 1985 that the elimination of internal border control should be complemented by administrative cooperation between the police authorities and by networks for the transmission of information to enable the police in the country of entry to carry out checks on behalf of the police in the country of departure. no. To this end. This Protocol is published in Tractatenblad (Dutch Treaty Series) 1994.52 This document. 185. The Group of Co-ordinators drafted the so-called Palma document. in which the EC governments reaffirmed “their objective to facilitate the free movement of persons. According to the Commission. The freedom of movement of persons or the abolition of internal border controls was used as a motive to adopt other instruments to control individuals entering a given state. 5. the Rhodes European Council called for an intensification of the efforts of the EC governments to proceed in the area of the free movement of persons. Based on the third pillar of the Maastricht Treaty. p. the Council established a Group of Co-ordinators to co-ordinate activities with regard to the achievement of the free movement of persons within and outside the framework of the EC Treaty. the participating states and institutions were focussed from the outset on measures which could compensate for the loss of internal border controls. 51 52 SCH/Com-ex (94) 3. A system of this kind would provide continuing protection in the fight against terrorism.2000.9. see also the Decision of the Schengen Executive Committee of 22 December 1994. OJ L 239/130. 22. subtitled Free Movement of Persons.51 In December 1988. This included the work of the Trevi Working Group and the Immigration Ad hoc Group. The Function of Borders: Emphasis on Internal Security and Immigration Control During the negotiations on the free movement of persons. 443.Towards Schengen: The Abolition of Internal Border Controls in Europe 25 of the CISA (Articles 28–38) were to be replaced by the provisions of the Dublin Convention. Press. Uniestrafrecht is op hol geslagen.53 In practice. Justitiële verkenningen. J. we feel it is essential that we should begin to exchange information about persons who must be refused access to the territories of one of our Member States on the grounds that their presence there could threaten security or public order in one of our states and we have 53 54 55 56 See A. .J. p. Important factors for achieving consensus were the negotiations in the Trevi Working Group and those between the Schengen states.54 The first consolidated document on compensatory measures was the aforementioned Palma Document. The computerisation of the exchange of information needed for visa processing was considered “desirable” and to be achieved by the end of 1991.56 Among the measures necessary to achieve this goal. Aside from a common list of countries whose citizens are subject to a visa requirement and the harmonisation of criteria for granting visas and a European visa.26 Chapter 2 many instruments in the field of police cooperation and criminal law were proposed and adopted. drug trafficking and judicial cooperation. 15. Klip. the latter involved the (tightening of ) controls at external frontiers. Den Boer (1996). vol. NJB 11 April 1997. these measures implied legal. 390. terrorism and drug trafficking.E. administrative and technical instruments and the harmonisation of criteria for the treatment of non-Community citizens. The Palma Document differentiated between “ad intra” and “ad extra” measures. 663–671. the establishment of a system for the exchange of information about persons who are either wanted or inadmissible would be an “essential” measure. 15 December 1989. no.H. 90/02/02. According to this Palma Document. 9. the decision-making with regard to these compensatory measures remained outside the Community framework. Strafrecht in Europees verband. The program in the Palma Document to some extent copied the measures included in the Schengen Agreement. Declaration by the ministers concerned with immigration. According to the Palma Document. The Ministers also referred to the need to share information: “In order to effectively implement visa policy and the jointly defined controls along our external borders. p. Schutte. to be achieved by the end of 1990. it was also considered necessary to establish a common list of persons to be refused admission. 1990. p. 10. Where the first category included cooperation in the field of combating terrorism. this declaration referred to the harmonisation of visa practices and rules on the responsibility of Member States for asylum applications. the twelve Ministers responsible for immigration policy confirmed their shared commitment to implement the Single European Act and to create a space with no internal frontiers by the end of 1992.55 In a declaration of 15 December 1989. Measures in the field of immigration and asylum law were placed alongside intergovernmental cooperation on international fraud. However. The paper focussed.Towards Schengen: The Abolition of Internal Border Controls in Europe 27 decided to look into the best ways of doing this. This list included the third countries for which nationals should obtain a visa before being allowed entry into the Schengen territory. Second draft. on measures enabling the detection and removal of unwanted immigrants by controlling “every step taken by a third-country national from the time he begins his journey to the time he reaches his destination” (point 85). the Austrian government proposed adopting a firm approach towards asylum seekers and immigrants transiting or attempting to transit through European territory. In July 1998.” According to this declaration. inherent to their national sovereignty. 9809/1/98.98. 5. Within the Schengen framework.57 In this socalled ‘non-paper’. Limite. has always been among the competences of national states. 1 Limite. Rev. Pre-Border Selection: Visa Policy The power to decide which foreign nationals may enter a country and which nationals may not. the participating states established a common visa list for the first time. the Austrian Council Presidency presented a confidential Strategy paper on immigration and asylum policy to the K4 Committee. This resulted in the Common Visa Instruction. Article 20 of the Schengen Agreement of 1985 provided that the Schengen states would seek the harmonisation of their visa policies as one of the measures to be taken in the longer term. 29 September.2. . adopted in a decision of the Executive Committee on 14 December 1993. Article 4 of the Nordic Agreement only prescribed consultation between the Nordic states in the event of a change in visa requirements. 9809/98 CK4 27.7. with special reference to computerisation. but not to a common list. The Convention on the Implementation of the Schengen Agreement of 1990 (or CISA. For example. among other things. ASIM 170. this cooperation did not result immediately in common visa lists. the exchange of information could only be envisaged if the protection of individual liberties and privacy could be guaranteed in advance. see further below) only provided for the harmonisation of the short-stay visa policy. With regard to the general visa policy. with a (confidential) annex containing a joint list of states whose citizens are required to hold a visa by all 57 1. Regional agreements between European states on the withdrawal of internal border control included cooperation in the visa policy. ASIM 170. The preamble clause of the Nordic Passport Control Agreement of 1957 included the governments’ intention to apply identical visa requirements and to aim for harmonised practices regarding the issue of visas. CK4 27. Article 4 of the Benelux Agreement institutes a common visa policy which led to agreements with third countries and (secret) ministerial visa instructions. the Trevi Group decided to introduce a visa obligation for the nationals of fifty countries. Regulation 2317/95 of 25 September 1995. 21. OJ L 81/1. on the basis of Article 100C TEC. 3. the Immigration Ad Hoc Group presented a draft for the External Frontiers Convention. In 1993. the list annexed to the final Regulation ‘reduced’ the number to 101 countries. 6th rev.64 5. 58 59 60 61 62 63 64 SCH/II-Visa (93) 11. Draft of an External Frontiers Convention In June 1991. the Commission submitted a proposal for a Regulation determining the third countries whose nationals must be in possession of a visa when crossing external borders. 15.59 In deciding whether to place third countries on the black list. or transit through that territory of that Schengen state or several Schengen states except for transit through international zones of airports and transfers between airports in a Schengen state”. These lists have been amended several times. corr. 17 and 35. In this Regulation ‘visa’ is defined as: “An authorisation given or a decision taken by a Schengen state which is required for entry into its territory with a view to an intended stay in that Schengen state of no more than three months in all.61 Whereas the draft proposal of the Commission included 129 countries whose nationals must have a visa in order to enter a member state.60 Regulation 2317/95 was adopted in September 1995.03.10. OJ L 234. 4.2001. The central aim of this convention was to regulate joint measures for external border control.28 Chapter 2 Schengen states (the so-called ‘black list’) and a list of countries whose nationals did not require a visa (‘white list’).01. The Ministers agreed that harmonisation of the entry document should be based on solidarity. This draft Convention provided.58 The European Ministers responsible for immigration had been trying since 1987 to draw up a common list of countries whose nationals would require a visa before entering a Member State.. OJ 1999 L 72/2.1994. See Article 5 repeated in the new Visa Regulation 2317/95. OJ C 11/6. On 1 January 1988. a common visa policy and common rules on access to the territories of the participating states.62 In 1995 a new Regulation 574/1999 on visa lists was adopted. OJ L 234/1. p.63 This Regulation of 1999 was replaced in 2001 by Regulation 539/2001.1995. regardless of whether a Member State was having a problem with a particular country or not. entering into force on 3 April 1996. the Member States used the following criteria: those countries which produced large numbers of asylum seekers and illegal immigrants and those which posed a security problem. See Niessen (1996). It was also agreed that a list would be established of countries whose nationals did not require a visa to enter one of the EU countries (the ‘white list’).3. . D. House of Lords report on Border Control of People. Deventer: Kluwer Law International 2001.Towards Schengen: The Abolition of Internal Border Controls in Europe 29 among other things.66 This policy was confirmed by the Commission in a response in 1993 to a written question by the European Parliament members Verhagen and Janssen van Raay: “although the draft Convention is an essential measure for the abolition of internal frontier checks.68 The preamble to the Amsterdam Treaty reads: “Resolved to facilitate the free movement while ensuring the safety and security of their peoples. Melis.” Article 2 (4) of the EU Treaty speaks of “an area of freedom. asylum and the prevention and combating of crime.M. 1137/92.” As we have seen above. Een ongecontroleerde grens tussen recht en beleid? Verslag studiedag OSR 31 October 1996. the Schengen Information System (see below). published in Migration News Sheet. This system would. partly due to the ongoing dispute between the UK and Spain on the sovereignty of Gibraltar. with the Amsterdam Treaty. the compensatory measures became a goal of EU cooperation in themselves. See also section 7 below. adopted by the Justice and Home Affairs (JHA) Council on 3 December 1998. along the lines of its model. include information on persons to be refused entry. the draft External Frontiers Convention did not include rules on the abolition of internal border controls. 10/11/1997. Steenbergen. Like the Dublin Convention. security and justice in accordance with the provisions of this Treaty.M Jansen.65 The fact that the use of SIS I was extended to other EC Member States as well made it less important to develop a separate European system. it is not a condition for the realisation of this aim as clearly formulated in Article 8a of the EEC Treaty”.67 5. 139.4.R. The Amsterdam Treaty will be dealt with further below. in: P. An Area of Freedom. Het Akkoord van Schengen en vreemdelingen. immigration. Security. no. De grenzen van Schengen. This illustrates that the compensatory measures had become an important. OJ C 340.A. 1. security and justice. and Justice The Amsterdam Treaty codified the concept of an area of freedom. Giuseppin & W. November 1989. Answer of the Commission to written question no.70 The Vienna Action Plan 1998. p. Neither the External Frontiers Convention nor the EIS became operational. March 1993. by establishing an area of freedom. J. the reasons for the compensatory measures with regard to the abolition of internal border controls were based on both economic and psychological grounds. p. 19. Utrecht: NCB 1997. developed the 65 66 67 68 69 70 B. for the establishment of a European Information System. Negotiating Europe’s Immigration Frontiers. p.69 Now. self-contained purpose of the EC Member States and were independently handled. security and justice in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls. . 120/93. The conclusions can be found on the web site of the Council: http://www. the European leaders recognised for the first time that freedom of movement should not be the exclusive preserve of EU citizens. security and justice” was also the central theme of the special meeting of the European Council of 15–16 October 1999 in Tampere (Finland). 7. the European Council underlined the need for a more efficient management of migration flows “at all their stages” (point 22). Conclusions 16 October 1999. In the first place. Swart. this included setting up information campaigns in close cooperation with countries of origin and transit concerning the possibilities for legal immigration and for the prevention of all forms of trafficking in human beings.” Based on a more vigorous integration policy. Where necessary. A. Press: no.30 Chapter 2 further measures to be taken in order to establish the area of freedom. the Council announced the development of a more transparent decision-making process by making full use of the powers of Amsterdam Treaty. In their conclusions. security and justice71 This Action Plan was especially focussed on the security issue. 200/1/99. In the Tampere Conclusions. the Council emphasised the need to prevent illegal immigration and for closer cooperation and mutual technical assistance between the Member States’ border control services.eu. The European Council asked the Schengen states to cooperate with each other but also with Europol in the fight against criminal networks facilitating illegal immigration. The Tampere Conclusions explicitly dealt with the status of legally resident third-country nationals in the EU.J. However.” In point 18 of the Tampere conclusions.72 The realisation of “an area of freedom. Een ware Europese rechtsruimte. In the field of border control and illegal immigration. p. the EU leaders stated that the European Union must ensure “fair treatment of thirdcountry nationals who reside legally on the territory of its Member States. even the notions of ‘freedom’ and ‘justice’ in this Action Plan could be interpreted as aspects of security. C 19/1.H. “It would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. As Swart points out. the Member States should establish common EU visa issuing offices.consilium. Deventer: Gouda Quint 2001. legally resident third-country nationals should be granted rights and obligations comparable to those of EU citizens. data processing and the establishment of databases was not a separate issue.73 In its conclusions.europa. The European Council also underlined the need for the development of a common active policy on visas and false documents and for closer cooperation between EU consulates in third countries. 71 72 73 OJ 1999. . 13. Security versus Freedom? A Challenge for Europe’s Future.7 and 2 respectively. Carrera. setting timetables and giving details on the progress made in the legislative process.77 The European Council underlined the importance of efficient external border controls in its meeting of December 2001. Asylum and Terrorism. Balzacq & S. stating that: “Better management of the Union’s external border controls will help in the fight against terrorism. Guild Terrorism and the Foreigner – A Decade of Tension around the Rule of Law in Europe.12. no. Baldaccini & E. who has resided legally in a Member State for a period of time to be determined and who holds a long-term residence permit. receive education. Guild Immigration.” The Hague Programme: Strengthening freedom. e. including measures in the field of immigration and asylum. the European Council adopted The Hague programme. P. Catz & E. Aldershot: Ashgate 2006. as well as following the terrorist attacks in Spain in 2004 and in the UK in 2005. . should be granted in that Member State a set of uniform rights which are as near as possible to those enjoyed by EU citizens.09. biometrics and the exchange of information was given a central role in forthcoming policies.74 Since 2000. the EU Council adopted various decisions.76 This new emphasis on ‘information policies’ will be discussed further in Chapter 5.g. A Changing Dynamic in European Law. security. In meetings after 11 September 2001. setting out the objectives to be implemented in the area of freedom. and justice in the European Union. the Commission has submitted so-called ‘scoreboards’. To this end. the use of databases. An overview of the adopted and proposed measures in the first six months after 11. On 4 November 2004. illegal immigration networks and the traffic in human beings. 19 2003.2004. as well as the principle of non-discrimination vis-à-vis the citizens of the state of residence. Common Mechanisms for External Border Controls The emphasis on border controls as a security mechanism has been reinforced since the events of 11 September 2001 in the United States. Leiden: Martinus Nijhoff Publishers 2006.2001 is given in: E. Section 1. and work as an employee or self-employed person. 5. The European Council asks the Council and the Commission to work out arrangements for cooperation between services responsible for external border control and 74 75 76 77 This approximation is further elaborated in point 21: “A person.5. See.Towards Schengen: The Abolition of Internal Border Controls in Europe 31 The European Council concluded that the legal status of third-country nationals should be approximated to that of Member States’ nationals. Nijmegen: Recht & Samenleving. Brouwer. under the headings “Management of migration flows” and “Strengthening Security”. security and justice during the period 2005–2010. the European governments repeatedly expressed their will to combat terrorism effectively. for a more detailed analysis of The Hague Programme: T. 16054/04. the right to reside.75 In this The Hague programme. See also A. 79 To substantiate this protection.82 On 11 November 2003. See S. without prejudice to police cooperation efforts under agreements based on Articles 7 and 47 of the CISA. Controlling Frontiers. London: Tolley’s. vol. and on the other hand. the Council published the Comprehensive Plan to combat illegal immigration and trafficking of human beings in the European Union which further emphasised the need for external border controls. Guild (eds). Among other things. which could be annexed to the Common Manual for External Borders. should be listed exhaustively and be delimited precisely by maps and plans. the European Council also focussed on the preservation of internal security and the prevention of crimes and terrorism. These portions of territory.32 Chapter 2 to examine the conditions in which a mechanism or common services to control external borders could be created (…). including protection from military or terrorist threats.5.”78 Since the terrorist events. In February 2002. Tolley’s Immigration. Free movement into and within Europe. OJ 2002. the EU governments developed different mechanisms: privatisation and ‘ex-territorialisation’ of border controls to countries of origin and strengthening the role of embassies and travel agencies. In its Communication on the ‘Integrated Management of the External Borders’. no. C 142.80 This Plan contained proposals such as the development of a European Visa Information System. See D. the ‘mass influx of migrants’. for surveillance purposes. EU immigration and asylum law after Seville. enjoying special status. Bigo & E. to a strip a few hundred metres wide at external land borders and to a portion of the territorial waters. the powers of the staff of the European Corps of Border Guards could be confined territorially to the strict needs of the surveillance and checks provided for by Article 62 TEC. June 2002. 42 of the Laeken European Council of 14 and 15 December 2001. the Commission proposed the installation of a European Corps of Border Guards. to protect against illegal immigration. Aldershot: Ashgate 2005. 7. 16. Asylum and Nationality Law. . 2002. the Commission adopted a proposal for a Regulation establishing a European Agency for the Management of Operational Co-operation 78 79 80 81 82 Conclusion no. maritime and air-crossing points could be included for the purposes of checks. COM(2002) 233 final. Peers. or human trafficking. 3. the Council called for common measures on controlling the EU’s external borders. policymakers increasingly relied on border controls as a panacea.2002. on the one hand to protect internal security.81 According to consideration 51.” At the European Conference in Seville. the setting up of joint border management teams. Some land. the establishment of common standards with regard to return policy and a role for Europol with regard to the fight against illegal trafficking. “One might envisage confining them. Brussels. working group III dealt with transport. Each Working Group created its own sub groups and ad hoc groups for the specific problems to be solved. working group II was concerned with free movement. the Regulation on the Community Code governing the movement of persons at the borders replaced the Schengen Common Manual on Border Control.Towards Schengen: The Abolition of Internal Border Controls in Europe 33 at the External Borders.4. was the result of a long period of negotiations between senior officials and national experts of the contracting parties. The final decisions on the measures to implement the Schengen Agreement were taken by the responsible Ministers and Secretaries of the participating states. Negotiations The final text of the CISA.83 This resulted in the establishment of the so-called Frontex agency with the adoption of Regulation 2007/2004 of 26 October 2004. From September 1987 onwards. Furthermore. which will be dealt with further in Chapter 9. Many of these groups would continue their work after the signature of the Convention Implementing the Schengen Agreement or CISA. signed on 19 June 1990. OJ L 105/1. 25. The states signing the Schengen Agreement made it very clear from the beginning that from a police standpoint the planned abolition of border controls could only be tolerated if the expected deficits were more or less compensated. Hungary voted against and Slovenia abstained. p. p. each working group drafted its own proposals for the regulations it considered necessary for the implementation of the Schengen Agreement. Entered into force on 13 October 2006. in: Schermers (1993).1.86 In 1988 the European Commission was invited to join the Schengen negotiations with observer status.2006. includes rules on the measures and powers of authorities controlling the movement of persons at the external borders of the EU. and group IV with customs and circulation. 1–11. Schattenberg. OJ L 349. Initially. SIS: Privacy and Legal Protection. . B.85 This Regulation. 83 84 85 86 COM (2003) 687.11. 6. 45. on 15 March 2006. The Convention Implementing the Schengen Agreement 6.2004. Regulation 562/2006 of 15 March 2006. 13. Their decisions were prepared by senior officials from each state who gathered in the so-called Central Group of Negotiators (later ‘Central Group’). the negotiations preparing the final decision-making took place in different working groups. Working group I dealt with police and security matters.84 This European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union is situated in Warsaw (Poland) and started its operations in 2005. the Central Group of Negotiators decided to draft one treaty regulating all the different subjects as a whole. The draft Convention which was approved by the Schengen Ministers on the 13 November 1989 did not take into account the new situation in Germany. Furthermore. the Ministers and Secretaries of State adopted the final decisions necessary to agree on the final text of the Convention. On 13 November 1989. the drafts of the majority of the Convention were finalised. the CISA was finally signed on 19 June 1990. extradition. the measures regarding transport and the movement of goods represented only a small part of the final text of CISA (Title V). The remaining problems were to be solved during 1989. which would make the lifting of internal border controls with effect from 1 January 1990 still a realistic option. SCH/1 (88) 7 rev. Title III of CISA deals with Police and security.10. including police cooperation.34 Chapter 2 On 14 June 1988. right of residence and asylum. 27. including provisions concerning visa requirements. These amendments included the visa policy towards Eastern European countries. In subsequent discussions. regulation of the responsibility for asylum applications. Content of the CISA Although these subjects were the original incentives for the initial Schengen cooperation. On 19 June 1988. as will be discussed later. The themes of the four working groups would remain the basis for the subsequent structure of the CISA. the participating Ministers and Secretaries of State discussed a first draft proposal for the complementary convention with regard to the free movement of persons. and the ne bis in idem principle. the Central Group used a draft document which was submitted by the Dutch delegation. This agreement was to make it possible for the participating states to sign the Convention in December 1989. This part of the CISA was replaced in 1997 by the Dublin Convention. the CISA contains a separate section on the Schengen Information System (Title IV CISA) and on the protection of personal data (Title VI). provisions concerning police and security.87 At the end of 1988. border control. However. The largest part of the CISA concerns provisions regarding border control and border surveillance. in Luxembourg. the rules for hot pursuit. Chapter 7 of Title II of the CISA includes rules on the responsibility for processing applications for asylum. during which the German government proposed certain amendments to the Convention. Under the presidency of the Dutch government. Provisions concerning these subjects had been replaced by EC secondary law before the CISA became operational.88. visa. Negotiations started again in March 1990. the fall of the Iron Curtain in Berlin on 9 November 1989 and the subsequent reunification of West and East Germany forced the negotiators to change their plans. .2. 87 Police and Security. 6. the issue of visas and the conditions governing the movement of third-country nationals.1. Leiden: Stichting NJCMBoekerij 1992.M. .2.D. and T. and he or she must have sufficient means for the stay and for returning to the country of origin. refugees. Schengen and the movement of persons. for the effects of the CISA on the free movement of persons: J. security and the police. Under certain circumstances. 6.Towards Schengen: The Abolition of Internal Border Controls in Europe 35 including rules for cooperation between police authorities. and – the person is not to be considered a threat to public policy. – he or she must be able to produce. documents justifying the purpose and conditions of the intended stay. Schengen II can be read as ‘a re-confirmation of the function of borders for state sovereignty and security’ ”. if necessary. Title III of the CISA regulates mutual assistance in criminal matters. Hoogenboom. In principle. These conditions are: – the person must be in the possession of a valid document. the CISA also provides for the possibility for national police authorities to continue the pursuit of an individual on the territory of another Schengen state without the latter’s prior authorisation (‘hot pursuit’). Steenbergen. the Schengen states are obliged to refuse a person entry to the Schengen territory if this person does not fulfil all these conditions. where the latter Agreement “focuses on borders from the point of view of their abolition. This cooperation includes assistance for the prevention and detection of criminal offences and surveillance of suspected persons at the request of another Schengen state. the application of the ne bis in idem principle and extradition. privacy.88 Although the CISA of 1990 is based on the principle of the abolition of border controls. 94.89 Article 5 CISA contains the general conditions which must be fulfilled before a third-country national may be granted entry to the Schengen territory. There is only 88 89 See. – the person may not have been reported in the SIS for the purpose of refusing entry.. pp. – the person must have the required visa. Meijers et al. there is a clear difference between this Treaty and its predecessor: the Schengen Agreement of 1985. firearms and munitions. Title II: Abolition of Checks at Internal Borders and Movement of Persons Title II CISA includes the rules for crossing external borders. 57 and 74. Lavenex (2002). national security or the international relations of any of the contracting parties. authorising him or her to cross the borders. As pointed out by Lavenex. and cooperation in the prevention and punishment of illegal trafficking in drugs. Free movement of non-EC nationals. p. both published in H. Schengen Internationalisation of central chapters of the law on aliens. Schengen and beyond. This profiling.2001. 16. E. the Schengen Executive Committee adopted Common Consular Instructions regarding visas for the diplomatic and consular posts of the Contracting Parties.90 Part V of these Instructions includes basic criteria to be used by diplomatic missions or consular posts when examining visa applications. be made on the basis of their own experience in ‘profiling’ and by recognising the different categories of persons. According to the instructions. According to Article 5 (2). on grounds of national interest. Moving the Borders of Europe.36 Chapter 2 one exception to this obligation.2. Guild. 10. is thus not based on individual characteristics. but on the nationality of the person concerned.91 These criteria are grouped under three main headings: illegal immigration. listed in Annex A to Council Decision 1999/435/EC. or because of international obligations. on the basis of Article 132 CISA. The full text of the Instructions is published in OJ C 326.11. See for amended version OJ C 313. These checks include searching the files containing alerts (alerts for the purposes of refusing entry) in the Schengen Information System and consultation with the central authorities of the countries subject to this procedure.2005. The Common Consular Instructions were incorporated in the Schengen acquis. OJ L 176.2. public policy and international relations.1999. a country may grant a person entry to the territory of that particular country if this is considered necessary on humanitarian grounds. national authorities are advised to check that the necessary controls have been performed. . OJ 2001 L 81. 21. This can be illustrated by comparing the reasons given by the Commission for the exclusion and inclusion of certain countries on the visa lists in the explanatory memorandum to EC Visa Regulation 539/2001.2002. as pointed out by Guild. These instructions make it clear that the main issues to be taken into account by the national authorities when examining visa applications are the security of the Schengen States and the fight against illegal immigration. including the risk countries.92 On the other hand. the diplomatic missions and consular posts carry full responsibility for assessing whether an immigration risk exists.12. The assessment of the applicability of these criteria by the staff members of consulates or embassies should. 22.7. this assessment should be made on the basis of the exchange of information between consular posts and on the basis of information 90 91 92 Decision of 14 December 1993.03. These instructions make it clear that visa policy is about making a distinction between bona fide persons and those posing a security or immigration risk. Inaugural lecture. on the one hand. As far as security is concerned. Nijmegen: University of Nijmegen 2001. using the visa lists. 6. Visa Rules In 1993. Article 142 states that the contracting parties shall agree on the conditions 93 94 95 OJ L 175/77.4.2006. Here too.95 This free circulation is based on Article 19 of the Convention and applies to third-country nationals who hold a uniform visa and who legally entered the territory of one of the contracting parties. 29. Note the difference in terms between ‘free movement of persons’.93 6. In 2006. Free Circulation One of the important positive effects of the CISA for legally resident third-country nationals is of course their freedom of circulation94 and the abolition of visa requirements for third-country nationals who travel from one Schengen country to another. and ‘freedom of circulation’. the requirements of Article 5 (a). Finally.06. For both categories. (c).Towards Schengen: The Abolition of Internal Border Controls in Europe 37 systems such as the SIS I. third-country nationals with a valid residence permit for one of the Schengen countries may travel freely within the Schengen territory for up to three months. Annex 12 of the Common Consular Instructions was amended by a Council Decision increasing the amount fees to be charged “corresponding to the administrative costs of processing visa applications”. In Chapter 5. (d) and (e) must be fulfilled. the conditions of Article 5 (a). which states that the third-country national should report to the appropriate authorities within three days of arrival.3. An important restriction on this right of free circulation includes the obligation in Article 22. . This means that the right to free movement does not apply to third-country nationals who are registered in the SIS or a national list of alerts. which applies only to EC nationals and includes the right to reside. According to Article 21. 6. we will see how the Visa Information System has been developed for precisely this aim. This was already included in Article 8 of the Benelux Treaty on the Transfer of Border Controls to the External Borders of the Benelux Area. (c). This means that in accordance with Article 5 (d) officials shall check whether the person is enlisted in the SIS I for the purpose of refusing entry. Article 20 CISA regulates the free circulation of third-country nationals who are not subject to a visa requirement: this right applies for a period no longer than three months. Priority of the Community Rules Article 134 CISA confirms the priority of the Community rules: “The provisions of this convention shall apply only insofar they are compatible with Community law”. which limits the right to be admitted into one or more countries for a visit of no more than three months. (d) and (e) apply.2. The right to free circulation applies only during the period of validity of their visas and does not apply to persons whose visa is territorially limited to one country.2. Portugal and Spain. whenever conventions are reached between the Member States of the European Communities with a view to the completion of an area without internal frontiers. and on 8 December 1997 (partially) in Greece. as nonEU members. the CISA was applicable to the three Benelux countries. on 30 July 1991. . Entry into Force of the CISA The CISA entered into force on 1 September 1993. See.3. after the incorporation of the Schengen acquis into EU law on 1 May 1999.96 The delay between the date of signature and the date of entry into force of the CISA in these latter countries was a consequence of the fact that these countries first had to adopt their data protection law. As we will see in the following sections. the full abolition of internal border controls took place in 2000.97 Denmark. Greece on 6 November 1992 and Austria on 28 April 1995. Sweden and Finland signed an agreement on accession to the CISA on 19 December 1996. In Greece.3. Entry into Force and Players 6. could not be formally admitted to the Schengen Group.1. Spain and Portugal on 25 June 1991. with effect from 96 97 Italy signed on 27 November 1990. had taken over the role of the Schengen Executive Committee. 169–190. Although Iceland and Norway. On 26 October 1997. France was the first state to ratify the CISA. The EU Council which.3. p. With effect from 26 March 1995. France. However. In the two latter countries the CISA had entered into force on 1 March 1994. 6. Germany. Germany ratified the Convention on 15 July 1993. Kjaer (2003). The Netherlands ratified the CISA on 30 July 1993. affirmed in a decision of 1 December 2000 that the five Nordic countries fulfilled the necessary requirements for Schengen membership. on 1 December 1997 in Austria.2. This late application of the CISA was due to the fact that the Schengen Information System did not become operational until this time. affiliating themselves with the Schengen cooperation. the treaty did not become effective until 26 March 1995. after having amended the German Constitution by weakening the original constitutional right concerning asylum. 6. they signed an Association Agreement.38 Chapter 2 under which the provisions of this Convention are to be replaced or amended. Position of the Nordic Countries The five Nordic countries acquired observer status in the Schengen negotiations after 1 May 1996. Therefore. the operational launch of the SIS I had to be postponed several times. the CISA became applicable in Italy. for more details on the relationship between the Nordic countries and Schengen: Kim U. This Supplementary Agreement entered into force on 22 April 2001. Denmark participates fully in the legislation based on Title VI TEU. Norway. 43 – 47. attracted by the benefits of the ‘compensatory measures’ taken within the framework of Schengen. in: L.3. L 309/24. with the signature of the Amsterdam Treaty. which implemented both the Schengen Protocol and the Association Agreement. Immigration and Schengen Post Amsterdam. the general reservation of the UK was gradually replaced by an opt in/opt out system. the Schengen acquis also became applicable in Denmark. Asylum. 91–95. Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis OJ L 131. 6. . Position of UK and Ireland The United Kingdom and Ireland originally took no part in the Schengen cooperation due to their strict interpretation of the definition of ‘the internal market’. but not in that of Title IV TEC. The UK position. the EU Council not only granted the UK and Ireland an opt-in position with regard to the measures based on Title IV TEC.2000 pp. and in Iceland and Norway. but also agreed to the partial participation of the UK and Northern Ireland in some of the provisions of the Schengen acquis. to participate in some or all of the provisions of the Schengen acquis and in proposals and initiatives concerning areas of cooperation which build upon the Schengen acquis. Denmark may decide whether the latter measures will be transposed into its national laws within six months of its adoption by the Council. On the basis of a Protocol annexed to the Amsterdam Treaty regarding the position of Denmark. In a decision of 29 May 2000. the five Nordic countries signed the ‘Supplementary Agreement’ to the Nordic Passport Control Agreement. Finland and Sweden. among other things. Based on Article 5 of this Protocol. OJ 2000. p. However. Ireland and the UK have the possibility.06.99 The UK government refused to agree to measures for the abolition of ‘internal border controls’ between the UK’s borders and those of the European continent. claiming that those borders remained their external borders. Implementing the Schengen Protocol. See also L. Iceland and Finland. Pallett. On 18 September 2000. Maastricht: EIPA 2001. Sweden. 01. subject to the provisions of Articles 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union (hereinafter referred to as ‘the Schengen Protocol’).3. the provisions of the CISA 98 99 100 Council Decision of 1 December 2000 on the application of the Schengen acquis in Denmark.Towards Schengen: The Abolition of Internal Border Controls in Europe 39 25 March 2001. Marinho.100 This included. These measures included the instruments implementing or amending the Schengen acquis which is incorporated into Title IV TEC.98 Denmark acquired a special position with regard to Title IV TEC. Estonia. The JHA Council further agreed. This means that. The European Council of December 2002 found that. Presidency Conclusions. after completing the ratification procedures for their accession treaties. to participate in some of the provisions of the Schengen acquis by its decision of 28 February 2002. Lithuania. extradition and measures to combat drug traffic. the candidate states had to fulfil the economic and political conditions which included: a stable democracy with respect for human rights and the rule of law and the protection of minorities. a working market economy and the adoption of the common rules.2000. OJ L 015/2 20. 15917/02. Malta. with the exception of Bulgaria. Article 8 of the Schengen Protocol mentioned above states that: “For the purposes of the negotiations for the admission of new Member States into the European Union.01. 07.40 Chapter 2 and the decisions of the Schengen Executive Committee on carrier sanctions (Article 26). the EU Council (General Affairs) decided that Romania and 101 102 103 OJ L 64.03. With regard to the application of the Schengen acquis for the new Member States.101 Furthermore. standards and policies of EU law. mutual assistance in criminal matters (48). at the request of Ireland. As we will see below. The Accession Treaty with Romania and Bulgaria was signed on 25 April 2005. the Schengen acquis and further measures taken by the institutions within its scope shall be regarded as an acquis which must be accepted in full by all states candidates for admission”. Latvia. on police cooperation (Articles 39 and 40. as from 1 May 2004 the Schengen acquis applies to those countries. Romania and Turkey. Slovakia. In October 2006. and Articles 42 and 43 to the extent that they relate to Article 40). Romania. these ten new countries formally became Member States of the EU.2002. Council Decision 2002/192/EC of 28 February 2002. Hungary. all the candidate countries fulfilled the conditions necessary for joining the EU.3. Poland. Cyprus. The enlargement process started with the Luxembourg European Council of 12 and 13 December 1997. Based on the so-called Copenhagen criteria. a separate agreement was concluded between the EU and Iceland and Norway on the establishment of rights and obligations between Ireland and the United Kingdom on the one hand.103 On the 1 May 2004.102 6. 12 and 13 December 2002.4. and Iceland and Norway on the other hand in areas of the Schengen acquis which apply to these states. the Czech Republic. concerning Ireland’s request to take part in some provisions of the Schengen acquis. . the operation of SIS I in those countries has been postponed. Slovenia and Turkey. New EU Member States Between 1987 and 1996 thirteen countries submitted applications to join the EU: Bulgaria. 10/11/1997. The measures to prevent and combat crime would have to be taken in accordance with the rules of the third pillar (Article 31 (e) TEU). security and justice”. for the conditions of entry and residence and for standards concerning procedures for the issue of long-term visas and residence permits.104 7. asylum and immigration”. the Council would have to adopt measures aiming to ensure the free movement of persons in accordance with Article 14 TEC (concerning the internal market) within five years from the entry into force of the Treaty of Amsterdam. Article 61 (a) TEC provides that in order to establish “progressively an area of freedom. Treaty of Amsterdam: The Incorporation of the Schengen Acquis in EU Law 7. These measures would include “flanking measures with respect to external border controls. 13339/06 (Presse 264). Title IV TEC: Communitisation of Asylum and Immigration Law The Amsterdam Treaty entered into force on 1 May 1999. it transferred the whole area of the policy with regard to the free movement of persons from the intergovernmental level (the ‘third pillar’) to the community decision-making level (the ‘first pillar’). Furthermore. . to be adopted in accordance with the provisions of Article 62 (2) and (3) and Article 63 (1) (a) and (2) (a) TEC. for measures 104 105 Conclusions EU Council. finally.105 For the European developments on immigration and asylum law. 17 October 2006. A second important achievement was the incorporation of the Schengen acquis into the law of the EU treaties. In the first place. including family reunification. the Amsterdam Treaty has been important for at least two reasons.Towards Schengen: The Abolition of Internal Border Controls in Europe 41 Bulgaria also fulfilled the necessary conditions and were able to become EU Member States as from 1 January 2007. such as standards and procedures to be followed by Member States in carrying out checks on persons at such borders and the rules on visas for an intended stay of no more than three months. The measures referred to in Articles 62 and 63 TEC include provisions for crossing the external borders of the Member States. Article 63 TEC also provides the basis for legislation in the field of asylum policy and regarding refugees and displaced persons.1. OJ C 340. they include measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States for a period of no more than three months. The new EC competence on immigration and asylum law is provided in Title IV TEC. to be dealt with in the next section. It is also the basis for rules with regard to illegal immigration and the repatriation of illegal residents and. the end of the transitional period did immediately result in the exclusive right of the Commission to make proposals and for QMV and co-decision for the EP with regard to most of the visa rules.1997. OJ C 340/96. the Council would take a new decision regarding whether and to which field the co-decision procedure of Article 251 would be applied. 10. in more detail. in S. This meant that.2. 7. The rules based on Title IV TEC were to be adopted in accordance with the procedure in Article 67 TEC. These instruments will be discussed in Chapter 9. even if the Amsterdam Treaty did not provide for the immediate or full application of the community decision-making process. for a period of five years. Depending on whether these instruments dealt with ‘first pillar’ or ‘third pillar’ subjects. Rogers (eds. S. Incorporation of Schengen into EU Law: Marriage of Convenience or Repairing the Democratic Deficit? The entry into force of the Amsterdam Treaty included the incorporation of the so-called ‘Schengen acquis’ on the basis of the Schengen Protocol which was attached to the Amsterdam Treaty. During the negotiations leading to the Treaty of Nice of 2000.107 Since 1999. for which the consultation procedure still applies. the Treaty represented an important step in the further democratisation and transparency of EU immigration and asylum law. the decision would be taken unanimously by the Council with only a consultative role for the European Parliament. the Member States were unable to reach an agreement on the applicable procedures (QMV or decision by unanimity) for all matters in the field of immigration and asylum law. . p.42 Chapter 2 defining the rights and conditions under which third-country nationals legally residing in one Member State may reside in other Member States as well.). After five years. Peers & N.108 To summarise. different instruments in the field of immigration and asylum law have been proposed and adopted on the basis of Title IV TEC. The Schengen Executive Committee was replaced by 106 107 108 109 See. Protocol integrating the Schengen acquis into the framework of the European Union. EU Immigration and Asylum Law: Text and Commentary. but also the accession protocols and agreements and the decisions and declarations which were adopted by the Schengen Executive Committee for the implementation of the CISA.109 This Schengen acquis includes not only the Schengen Agreement of 1985 and the CISA. 19 ff. Peers. Leiden/Boston: Martinus Nijhoff Publishers 2006.11. From Black Market to Constitution: The Development of the Institutional Framework for EC Immigration and Asylum Law. Except for the measures on the visa lists (Regulation 2001/539) and the visa format. they were brought within the scope of Community law (TEC) or the law of the European Union (TEU). nor for the full power of the European Court of Justice.106 However. based on Article 8 of the Schengen Protocol. a solution had to be found for further decision-making based on the Schengen acquis. den Boer. the EU cooperation profited from the large.111 In the field of justice and home affairs. A. 197–204. p. the flexible approach which has been chosen with regard to the ‘old’ EU Member States: the UK. Guggenbühl. den Boer & L. M.07. Vanhoonacker. Un espace de liberté. S. The fact that Schengen meanwhile was being applied by almost all the EU Member States made its integration in the larger EU framework inevitable. operational set of instruments which had been realised by ‘Schengen’. Whereas the former Schengen Executive Committee used to present an annual report on the implementation of the Schengen acquis. the Ministers of Justice and Home Affairs will have a meeting in the so-called ‘Mixed Committee’ which includes the responsible Ministers of Iceland and Norway. there is a disparity between. The incorporation of the Schengen acquis into the EU framework has been described as a “marriage of convenience from which both partners benefited”. in: European Journal of Migration and Law. By incorporating the Schengen acquis into EU law. Of course. the obligation upon new EU Member States to accept the whole of the Schengen acquis and. Corrado.1999. this reporting was not replaced by a comparable publication by the JHA Council. Since June 1999. 1:397–418 1999. not 110 111 112 Decision no. whenever decisions are made on the basis of the Schengen acquis. Maastricht: EIPA 1998. Ireland and Denmark.112 With their incorporation into the EU law. G. As for the position of Norway and Iceland as non-EU Member States. 23. to accept the Schengen acquis even if these countries did not participate at all in the drafting of those rules. For the Record or Off the Record: Comments About the Incorporation of Schengen into the EU. de Kerchove. de sécurité et de justice. in: M. 1/1999 of the EU/Iceland and Norway Mixed Committee established by agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association in the implementation. This latter ‘Europe à la carte’ as provided in the protocols attached to the Amsterdam Treaty met with criticism. application and development of the Schengen acquis of 29 June 1999 adopting its Rules of Procedure. . acceptance of these measures could be used as an accession condition for the new EU Member States. on the one hand. One of the consequences of this shift in ‘government’ from the Executive Committee to the JHA Council was that an important source of information about Schengen disappeared. Nevertheless.110 These meetings are held immediately after the regular meetings of the JHA Council. on the other hand. Coping with Flexibility and Legitimacy after Amsterdam. These latter States were obliged. the results achieved during the Schengen negotiations gained legitimacy.Towards Schengen: The Abolition of Internal Border Controls in Europe 43 the EU Council and the decisions amending or implementing the Schengen acquis are now taken by Ministers of Justice and Home Affairs. OJ 1999 C 211/9. this deficiency applies to the whole of the EU acquis. The national parliaments (with a few exceptions) and the European Parliament were not involved or properly informed about this decision-making.2000. Brussels: Bruylant 1998. For example V. but also because it would hinder the uniform and equal application of EU law.113 The Schengen Agreement was not submitted to parliamentary control which allowed for signature without reservation concerning its ratification or approval. the convention was subjected to parliamentary approval before it entered into force. Pauly (ed. p. 22. 19. C. European Immigration Law and Policy. The Schengen acquis is published in OJ L 239. Maastricht: EIPA 1993.44 Chapter 2 only because it would affect the readability of the EU Treaties. 174. Elsen. the competence of the ECJ with regard to the Schengen acquis is found in Article 68 TEC or Article 35 TEU respectively. Hreblay. ‘Schengen’ gained transparency with its incorporation into EC and EU law.). However. ‘Vrij verkeer van personen in .09. 17: ‘L’espace Schengen est considéré comme le laboratoire de la libre circulation’. For example. The publication of the whole Schengen acquis in 2000 was an important achievement for the transparency of the applicable rules. O’Keeffe. The first judgment on a preliminary question concerning the national implementation of CISA was given by the European Court of Justice on 11 February 2003 in the joint cases C-187/01(Gözütok) and C-385/01 (Brügge). Origine. Verschueren. in: Pauly (1993). Les accords du Schengen: Abolition des frontières intérieures ou menace pour les libertés publiques?. as well as by D. despite the fact that some documents remained confidential. p. Schengen: Successful Laboratory for the EU? Schengen is often labelled an experimental garden or laboratory for the work in the community framework. Only in the Netherlands. 18–25. in general. See also Steenbergen (1997). the Court of Justice acquired competence to judge the implementation and application of Schengen law. H. Avenir. One of the major objections against the Schengen cooperation was its secrecy of decision-making. Les Accords de Schengen. Les structures administratives de Schengen. the lack of democratic accountability and the absence of any judicial control. Tractatenblad (Dutch Treaty Series) 1986.115 Also.116 8. Depending on whether the law or decisions were incorporated into Title IV TEC or Title VI TEU. Fonctionnement. 34.114 The negotiations in the working group and sub-committees on the draft texts for the CISA remained secret and the decisions which were taken by the Executive Committee on the application of the CISA lacked any parliamentary scrutiny. p. the common visa instruction of 14 December 1993 including the list of countries for whose nationals a visa was required for the Schengen territory remained secret until the Dutch Parliament explicitly requested the publication of these lists.117 Whether this experiment has proven successful depends on the perspective of the parties involved and on which goals were meant 113 114 115 116 117 Dealt with in Meijers (1992). in: A. No. p. A. invoking Article 2 (2) of the CISA. Groenendijk. allowing temporary security controls. Groenendijk. in the early years. even if this only granted the right to a maximum stay for a period of three months during the six months following the date of first entry into the Schengen area. On the contrary. 2004. With regard to the goal of abolishing internal border controls. the abolition of internal border control between Schengen states did not occur automatically: in France.Towards Schengen: The Abolition of Internal Border Controls in Europe 45 to be achieved. Immigration and European integration. 150–170. From the perspective of third-country nationals. NJB. . For example. See. the ECJ gave a more liberal interpretation of this freedom of circulation by refusing to narrow the definition of ‘first entry’. one might wonder whether this has actually been achieved. In the judgment of 3 October 2006. p. 129–131. p. 118 119 120 121 Schengen Verdragen’. Guild & Minderhoud (2003). New Borders Behind Old Ones: Post-Schengen Controls Behind Internal Borders and Inside the Netherlands and Germany in: Groenendijk. Manchester/ New York: Manchester University Press 2000. a positive achievement of the Schengen cooperation has of course been the right of free circulation for thirdcountry nationals with a valid visa or residence permit within the Schengen territory. In practice. C-241/05 (Bot). European Law Journal 2. the French government announced the reintroduction of internal border controls between France and Belgium and Luxembourg because those countries were regarded as transit countries for drugs leaving the Netherlands. were temporarily maintained by the French government. internal border controls were simply replaced in this country by mobile police units used to check immigrants within close proximity to internal borders. ‘Schengen’ did not include any provision to strengthen further the legal position of admitted migrants or migrants seeking entry on lawful grounds. Security checks. including the emphasis on public order and security as grounds for refusing entry to migrants.119 In the Netherlands.2 CISA in practice. at the Schengen Executive Meeting of April 1996. the incorporation of ‘Schengen’ into EU law also meant the incorporation of these restrictive measures. 131–146. p. border controls were maintained after terrorist attacks in Paris. Schengen uitgerangeerd?. Stuyck & Wijtinck (1992). 4. with its focus on compensatory measures. 83.121 On the other hand.118 Later. K. and H. no. 1990. p. special police units were established to check persons immediately inside internal borders in order to prevent illegal immigration. on the application of Article 2. 13–54. p. proposed firstly as anti-terrorism measures and later because of the problems with the Dutch soft policy on drugs. Geddes. See K. in: Fijnaut. Towards fortress Europe?.120 The (re-)introduction of the national obligation to carry an identity card was another measure to move border controls to the national territory. Re-instatement of controls at the internal borders of Europe: why and against whom?.U. Jessurun d’Oliveira. Germany and Spain. 10900/2005. January 2006. Both commentaries are available at: www. Bigo. fingerprints and vehicle registration data.be. Geddes (2000). J. presiding over the EU in 2007. Geyer. in preparation for European Union legislation in this area. which Treaty also has been referred to as ‘Schengen III’. Speech given by Mr. Portugal and Slovenia expressed their interest in joining the Prüm Treaty. France. particularly in relation to the exchange of information. p. See also E. See. The Treaty was signed on 27 May 2005 by seven Member States (Austria. the German government. p. December 2006. 16 November 2006. COM (93) 684. Germany. describing the Prüm Treaty as follows: “The Prüm Convention is viewed by the Member States now participating as a pilot for cooperation. It provides for the facilitation of police cooperation including the mutual exchange of DNA profiles. Italy. Getting local: Schengen. it is clear that the Schengen arrangements were attractive to EU and even some non-EU Member States wishing to participate in its operational aspect and in the more ambitious targets. 20. already proposed integrating this Prüm Treaty within the legal framework of the EU. the uniform visa format. the Netherlands and Spain) and entered into force on 23 November 2006 between Austria. without ‘the constraints’ of the judicial or democratic mechanisms of the community framework. Balzacq.9. Evaluation and Update. the EU and the Management of Threats. Council doc. Maastricht: EIPA 2000. Belgium. Three paces forward and two back for EU police and judicial cooperation in criminal matters. and the Dublin Convention (later Regulation) which copied the CISA criteria for the responsibility for an asylum application. The similarity between the role of Schengen Agreement and the Prüm Treaty for EU developments is clearly illustrated in a speech given in November 2006 by the Dutch Minister of Justice.125 Concluding. 19. 84. Monar. Guild & F. the Prüm Treaty was prepared within the intergovernmental framework. the Commission proposal for uniform visa lists based on negative lists set by Schengen countries124. The Impact of Schengen on Justice and Home Affairs. Carrera & E. Schengen Still Going Strong. den Boer (ed.aspx. Hungary. Th. Security and the Two-Level Game: The Treaty of Prüm. Hirsch Ballin in Vienna at a Prüm seminar. published at: http://www.ceps. CEPS Working Document no. I refer to a more recent similar development with the so-called Prüm Treaty. D. .122 Examples of Schengen law which were later used as models for regulations in the larger European framework include the Council Decision on principles for the conclusion of readmission agreements123.justitie.). the Dutch Tractatenblad 2005.46 Chapter 2 Speaking in terms of success.126 Like ‘Schengen I’ (the Schengen Agreement) and ‘Schengen II’ (the CISA). in: M. 234. Prüm and the dancing procession of Echternach. Guild.127 This Treaty is open to accession by other Member States and in 2006 the governments of Finland.1996. 197. for formal publication.nl/actueel/toespraken/archief2006/Prum-seminar.”128 In 2006. Luxembourg. 122 123 124 125 126 127 128 A. S. OJ C 274. 7 July 2005. pp. on the Benelux Agreement. A. The (French and Dutch) texts of the different Benelux treaties can be found at: http://www .J. De toelating en uitzetting van vreemdelingen. 47–70. I will use “SIS II”. in the territories of the contracting parties and to apply the provisions of this convention relating to the movement of persons in those territories. the negotiating states were inspired by the cooperation mechanisms already in operation between a smaller group of neighbouring countries: Belgium. The Establishment of the SIS 2 1. dated 11 April 1960. p.3 On the basis of Article 10 of the Benelux Agreement of 1960. © 2008 Koninklijke Brill NV. including national security. or the Benelux countries.benelux.1.benelux.asp.be/fr/dos/dos_intro.4 However. Swart. third-country nationals regarded as unwanted aliens in one of the Benelux countries could be considered unwanted by the other two countries as well. using information communicated via this system. the Agreement on administrative and criminal law cooperation (1969) and the Treaty on criminal law enforcement (1974).asp or http://www. See. this was not 1 2 3 4 Article 93 CISA. including the Benelux Treaty on extradition (1962). .be/nl/dos/dos_intro. 49 ff. when I am dealing specifically with “SIS II”. I refer to “SIS” meaning SIS I. Digital Borders and Real Rights. Printed in the Netherlands. In this Chapter.”1 1. This agreement was followed by several treaties regulating cooperation in the field of criminal law. Deventer: Kluwer 1978. Setting an Example: The Benelux Lists During the development of the Schengen agreement and the CISA. The basis for the abolition of internal border controls between the Benelux countries was laid down in the Benelux Agreement on the shift of border controls on persons to the external borders. Evelien Brouwer. the Netherlands and Luxembourg. the Treaty on the execution of judicial decisions in criminal proceedings (1968).H.Chapter 3 The Schengen Information System “The purpose of the Schengen Information System shall be in accordance with this convention to maintain public policy and public security. 7 Other failures in the eyes of the Dutch government were the fact that the Benelux countries did not harmonise national law in all the relevant fields and their failure to amend the Convention in response to relevant social or international developments. would pose a danger to the public order or national security. These concerned the rules on the issue of a Benelux visa. a Minister of Justice in one of the Benelux countries. the list was transferred to a microfiche file. Answers of the Dutch government to the parliament. This file was administered by the Belgian government. the ultimate goal of the Benelux Convention of 11 April 1960 was not reached completely. The Benelux list was only used for visa applications. but refrained from unilateral introduction. the decision to remove a person from the Benelux territory and the declaration of a person as unwanted and the decision to record a person as unwanted or inadmissible. The diplomatic and consular posts of the Benelux countries used the common Benelux lists of persons not to be granted a visa without prior authorisation from the national authorities of the other Benelux partner declaring this person inadmissible or unwanted. The Ministerial Working Group of the Benelux countries. House of Lords. nos. responsible for the implementation of the Benelux Convention. . could request the Minister of Justice in another Benelux country to declare this person ‘inadmissible’ as well in the latter state. the decision to grant access to the Benelux territory. in many third countries. the Benelux embassies and consulates of one state were empowered to issue a visa for the other two Benelux states as well. 14–15. 1992: Border Control of People (1989). p.48 Chapter 3 an obligation. 1–2. Such a request could only be refused on special grounds. adopted a decision defining the situations in which a third-country national had to be considered unwanted by all three countries. This included persons convicted of a crime for which extradition would be possible and persons who. p. 1987–1988. The Benelux list of ‘inadmissible persons’ for one of the Benelux countries was incorporated into the national investigation records. mostly because of discrepancies in the application by the national authorities of the applicable rules. At a later stage. 58.5 For third-country nationals without a visa obligation. awaiting developments in the Schengen framework. 5 6 7 See the evidence of Professor Schermers before the Select Committee on the European Communities. Based on this decision. 6 under point 43. by their presence in the Benelux area. declaring a person to be ‘inadmissible’. 20031. for example if the thirdcountry national was lawfully resident in one of the countries to which the request was directed. the Benelux countries agreed upon the desirability of a comparable list as mentioned above.6 According to the Dutch government in a memorandum to its parliament in 1987. 4. Handelingen Tweede Kamer 1986–1987. 20031. These lists were considered necessary because. no. pp. It was proposed that the legitimacy of these records be checked every five years. in accordance with their national laws.The Schengen Information System 49 1. Schattenberg. the Schengen governments agreed on the creation of a computerised information system. 14 November 1988 SCH/I (88) 10. the participating states did not yet envisage the establishment of an automated system for the exchange of data.2. Nevertheless. Doc. The negotiations on the development of a shared information system took place within the ‘first pillar’ of the Schengen cooperation: the Working Group I on Police and Security (subgroup 4 on Data Exchange). Report of the Central Group of Negotiators on the activities of WG I over the second half of 1988.8 However.11 Persons to be entered into the SIS would have to be: ‘persona non grata’ and persons whose place of residence was unknown. in Schermers (1993). Meetings of December 1987 (Berlin) and June 1988 (Remich). According to this same paper. p. SCH/I (88)7. the purpose of the SIS was defined as: “to maintain public order and safety and to fight criminality”. SIS: Privacy and Legal Protection. In one of the earliest negotiation documents. a feasibility study for a system of automated information exchange. p.10 According to the responsible Ministers and Secretaries of State. enabling the easy and quick exchange of data on persons. 45. Hreblay (1998). 95. This Working Party. the German delegation launched the idea of a computerised system. the Schengen cooperation focussed mainly on the need for compensatory measures for the abolition of internal border control. Discussing the Purpose and Functioning of the SIS As mentioned above. registration in the SIS would have to be based on national immigration law or on grounds of national security or public order. started its work on 17 February 1988. hereafter referred to as the PWP. On 17 December 1987.9 At the Ministerial conference of 14–15 September 1987. as long ago as November 1985. designed to play a key role in minimising the deficits of the abolition of internal border controls. vehicles and objects. The Schengen Information System has been called the ‘heart’ of these compensatory measures. at the time of signature of the Schengen Agreement in 1985. the exchange of information and to enforce the exchange of data where this could be useful for the fight against crime in the other Member States. tasked with presenting. within eight months. Article 9 of the Schengen Agreement only instructed the contracting parties to improve. . the effective functioning of the SIS would be a prerequisite for the abolition of border controls. the Ministers installed a ‘Permanent Working Party SIS’. The Group was composed of (permanent) delegations of national experts of both the police organisation and information technology 8 9 10 11 B. Brussels. The primary goal of this sharing of information would be the fight against crime. 12 In September 1990. 4. Wytinck. four of the five Schengen states were already introducing information technology for the collection and exchange of data in the police sector. H. no.13 When the negotiations on the establishment of a shared information system commenced. investigation for arrest for the purpose of extradition. different possible technical solutions were presented. J. With regard to alerts concerning persons. This study did not provide solutions which were immediately applicable. also at the request of the PWP. forwarding all essential data to the data systems of the participating states. 140–141. p. administrative.14 These national experiences were important for the negotiations on the technical and functional possibilities of a shared system. refusal of entry or removal from the Schengen territory. 179–183. p. investigation for detention for the purpose of preventing dangers. . 99–100. Schengen: Proeftuin voor de Europese Gemeenschap?. 2.N. the only information that could be recorded and exchanged was that which could lead to action by police authorities or officials responsible for border control. European information systems: beyond borders? Barriers within the development process of the Schengen Information System and the Social Security Network. It only underlined the technical possibility of creating a shared information system. Dumortier Het Schengen Informatie Systeem en de bescherming van persoonsgegevens in: C. in early 1988. Algemeen Politieblad. the negotiators defined five different actions: 1. Furthermore. a Steering Group for the SIS was given the mandate to deal with legal. p. Fijnaut. Kroon. financial and organisational matters which were not dealt by the PWP. J. Hoeksma. the study considered the need to transmit complementary information. SCH/C. See L. Hreblay (1998). p.L. this study defined the principles which were considered necessary for the establishment of such a system. not through the shared information 12 13 14 15 See J. 3. The feasibility study by the PWP was presented by the Schengen Ministers and Secretaries of State during the meeting of 12 December 1988.50 Chapter 3 from each Schengen state. In the feasibility study. SIS (90) 2.OR.15 This remained one of the central principles on which SIS I was based. According to one of these principles. The feasibility study differentiated between two categories of data: objects and persons.M. These included the establishment of one central system. Delft: Eburon 1997. SIS moet voldoende bieden. 8. 120.W. 14 April 1990. Antwerp: Gouda Quint 1992. observation or surveillance. Stuyck. niet meer en niet minder. Rensen. Furthermore. 5. and retrieval of a person’s address. P. 39–52. in Bonn. legal questions such as the system of data protection. Politically. the Bull group. Also. to a non-European company. the choice fell to the consortium between the US company Arthur Andersen and the French computer group Bull.17 One may wonder why there was a need for a Schengen Information System with regard to police cooperation and the exchange of police information. 1993. Additionally. and Siemens-Nixdorf in Germany. Initially. forcing the latter to renounce its bid.org/circular/2301. Accords du Schengen: abolition des frontières intérieures ou menace pour les libertés publiques?. the goals of Interpol were more limited than the cooperation envisaged by the European governments. and the arrangements which would be necessary for dividing the financial costs for the information system. when the European States had already been cooperating since 1923 through Interpol. with regard to data protection. Maastricht: EIPA. rather than a system which was organised and led by the national governments. Instead. however.htm. the Ministers of the participating states decided to locate the headquarters of the C-SIS in Strasbourg. the PWP issued an open tender for the development of the SIS computer technology. Interpol does not concern itself with the implementation of the free movement of persons.). the International Criminal Police Organisation. the governments opposed the idea of placing the order for such a large IT project. demanded that Bull withdraw from the consortium with Andersen. Schlanitz. March 1994. the Ministers decided during this meeting that the ratification of the Council of Europe Convention on Data Protection of 1981 would be a requirement for the participating states before exchange of personal data could take place. European squabbling round after ‘Schengen’ flop. See E. L’échange international d’informations de police dans le cadre des systèmes d’information d’Interpol et de Schengen. which was also a symbol of European cooperation. . the contract was give to a new consortium composed of the Anglo-French firm SEMA. the former Prime Minister of France.18 One of the reasons could be that Interpol was not based on an international treaty. such as the Schengen cooperation. Edith Cresson. it was decided that national laws were to apply and national procedures on complaints had to be envisaged. Even though its primary goals are comparable to those of Schengen. Therefore. 16 17 18 The national data protection regulations and the regulation in the CISA on data protection will be dealt with in the next chapter. implementation of the Interpol statute differed in the different countries and the organisation was more of an assembly of national police officers. in: A. http://www.The Schengen Information System 51 system. Pauly (ed. Fortress Europe? – Circular letter (FECL). such as the prevention and repression of criminal crimes. Pressed by the German government.fecl. p. Furthermore. In 1989.16 In October 1991. but through the different police organisations. The problems to be solved were: choosing the location of the central system. which could be linked to all the others through a network. This would involve high costs and the need to establish an international administration to supervise such a central database. Fijnaut & R. As long as the purpose of issuing these data and the content of the data were in accordance with the criteria of the CISA. the national authorities had to submit their data to the CSIS. Hermans (eds. This statutory limitation in the operational field of Interpol has also been one of the reasons why. The main objections to this option were the high costs of this structure and the necessity to maintaining many data connections. Lochem: J. is explicitly defined in Article 93 of the CISA.3. This included one central information system (CSIS ) connected to the national information systems (NSIS ) in each of the Schengen states. Secondly. the PWP seriously considered four options for data exchange between Schengen states. van den Brink. the upholding of public policy and public security. On the contrary. in: C. The Internationalization of Criminal Investigation in Western Europe. . 22.20 As we will see below. the European ministers used the intergovernmental framework of Trevi and not Interpol in their fight against terrorism. Objections raised to this option were that Luxembourg did not then have a computerised database and the concern about differences between the content. This would however require the authorities in Schengen countries other than the country in which the database was located to make an international connection for each individual check. in the 1970s and 1980s. 1987. the language. p. 1. Dumortier (1992). Interpol explicitly excludes cooperation in the field of crimes of a political. militant or religious character. The data are forwarded by the CSIS to each NSIS system in the different Schengen states. Police Co-operation in Europe. p. including national security.19 The CISA does not exclude political facts as one of the goals of data exchange or police cooperation. the negotiators considered the establishment of a direct connection between national databases in the Schengen states. 19 20 21 C. p. 32–56. it was proposed that a ‘Schengen Computer’ be established in each of the Schengen states. The third option was the construction of one central database. Guild (2001).B. racial. 142. The PWP therefore chose a fourth option: a system involving five identical databases to be supplied with information through one central database. this goal of the SIS.).52 Chapter 3 Secondly. Fijnaut. the concepts and the computer programs of the national systems. Structure During the negotiations. the desire to identify and exclude “those known as security risks” can be regarded as one of the main incentives for the establishment of the SIS.21 In the first place. Accordingly.2. Final Purpose and Categories of Entries At the beginning of the negotiations on the SIS. 88 (SCH/1 (88) 7) 27. the participating states mainly focussed on the use of such a system for security and police purposes. the contents of each system.The Schengen Information System 53 Using this system. The problem of language and the use of different concepts was solved by the introduction of a structure of limited categories of data to be stored in the system.23 The Schengen Information System was further to be based on the so-called ‘ownership’ principle. without excessively hampering the circulation of travellers crossing external borders. caused by the use of the SIS (Article 116 CISA). with the help of the information received by this system”. As one of the consequences. changes to the SIS data could only be forwarded to the central system by the state who ‘owned’ the data. Donner (1993). Therefore.1988.10. clearly describing clearly the actions to be taken each time a check on the SIS resulted in a ‘hit’. In a draft text of 1988. The task of controlling whether the data submitted to the CSIS by the national authorities comply with the principles and criteria of the CISA has been assigned to a central office at national level: SIRENE. it was decided that the issuing state is ultimately liable for any sums paid as compensation for an injury to a person. 1. 14. CSIS and NSIS. This organisation plays an intermediary role between the NSIS and the CSIS. the SIS would have to contain only the necessary information for the requested action and the SIS terminals would have to be easy accessible.4. para. One of the major advantages of this system would be that it resolved the normal problems of translation. . p. are exactly the same. comparable to the national police systems already used in the different Schengen countries. since each recipient could deduce all the relevant information from the location of the data in the system. An officer checking the system should also be clearly informed about the actions to be taken.24 22 23 24 This name is derived from the English description: Supplementary Information Request at the National Entry. 2. according to which only the state storing the data in the SIS would be responsible for the accuracy of these data and only this state could change or delete these data in the SIS. the participating officials made it clear that the SIS should make it possible to identify persons or goods searched by the national authorities of one of the Schengen states on an easy and fast manner. which has finally been adopted in the CISA. the purpose of the information system was still described as to “guarantee public order and security and fight criminality on the territories of the Contracting Parties.22 During the negotiations. 54 Chapter 3 Later. See. 2. the contracting parties must however send a list of the appointed authorities to the Executive Committee each year and. to the JHA Council. Article 100 CISA concerns objects for the purposes of seizure or for evidence in criminal proceedings. Third-country nationals to be refused entry (Article 96). 142. including national security. We will see later that the procedure of national decisions on entering data into the SIS is organised in different ways in each of the contracting parties. Persons who have disappeared who need to be placed in a secure location to protect their safety (Article 97). at the initiative of the Dutch government. includes a more general aim of regulating the movement of persons in the Schengen area. using information communicated via this system. 4. 5. Persons (or objects) for the purpose of discreet surveillance or specific checks. described in Article 93 CISA. According to Article 101 (4).” According to Article 94 of the CISA. The Articles 95 to 100 provide for the following categories of persons to be entered into the SIS: 1.26 Also. since 1999. The decision regarding whether a certain case is important enough to warrant entering the alert into the SIS is to be taken by the national authorities. the SIS may only contain data as required for one of the purposes mentioned in Articles 95–100 of the CISA. p. The appointment of national authorities having access to the SIS is in principle a decision for the national state. for example. particularly his or her prior offences. or is committing numerous and extremely serious offences” or “where an overall evaluation of the person”. 3. . Article 93 reads: “The purpose of the Schengen Information System shall be in accordance with this convention to maintain public policy and public security. Whether a national authority has access to the SIS depends on the grounds on which a person or object was entered into SIS. including the first visa issue procedure and later with regard to the provisions on the movement of persons. in the territories of the contracting parties and to apply the provisions of this convention relating to the movement of persons in those territories. Persons (such as a witness or a person being prosecuted) whose whereabouts are sought by the judicial authorities during the course of a prosecution (Article 98). Persons wanted for arrest for extradition purposes (Article 95). following indications that a person “intends to commit. Article 101 provides that only the 25 26 Dumortier (1992). this was extended to the application of immigration law. 6265/1/03 and 16023/04 of 10 December 2004.25 The final definition of the purpose of the SIS. “gives reasons to suppose” that he or she “will also commit extremely serious offences in future” (Article 99). technical. Technical problems during the construction phase were for example the delays in the delivery of products by the consortium which was given the task of building the SIS. including legal. p. was based much more on the political will of the Schengen Ministers than on the expertise of its officials that such a date would be technically feasible. There were several reasons for postponing the start of the SIS. Problems During the Construction Phase The date on which the SIS should have become operational was postponed several times. A practical 27 28 29 See. such as in France and Germany.5. For example. prohibiting the national authorities from arresting the person on its territory. With regard to the data entered on the basis of Article 96 this is extended to authorities responsible for issuing visas. for the reasons for this request. . central authorities responsible for examining visa applications and the authorities responsible for issuing residence permits and for “the administration of legislation in the context of the application of the provisions of this convention relating to the movement of persons”. Only when it became clear that the deadline of 1 February 1994 could not be met either. Migration News Sheet. 1. 1. The flag subsequently allows the requested state 24 hours to conduct the legal examination. Article 94 (4) stipulates that it is possible to add a ‘flag’ to an alert in the national section of the SIS. the integration of CISA and the SIS required amendments to national law. During the negotiations on the CISA. It should be noted that these deadlines were always set by the meetings of the Schengen Executive Committee and the Central Group and not by the negotiating groups of national experts. the French government insisted on the inclusion of the possibility of a prior check regarding whether a request for a person’s arrest was in compliance with French law. no.29 Their negotiators in the PWP and Steering Group were given the freedom to take those measures considered necessary for the functioning of the SIS and to solve the remaining problems. 133/94. April 1994.27 Based on this request.28 This is a note. my Chapter on France. practical and political problems. the first deadline. it was decided that no new deadline would be set. 1 January 1993. In some countries. by which time the Schengen governments were developing a ‘phobia about mentioning dates’. One legal problem was for example the national ratification procedures which were necessary for the implementation of CISA.The Schengen Information System 55 authorities responsible for border checks and other police and customs checks carried out within the country may have access to the data entered into the SIS. French constitutional law did not allow national authorities to comply with international arrest requests without prior examination by the French courts. to have the SIS operational on the same date as the creation of the internal market. and – the regulation of freedom of movement of persons in airports. on 26 March. To solve the various problems. In 1993.30 The German government threatened to walk out of the Schengen Group if more demands were made to compensate for the removal of internal borders. . which resulted in the establishment of a Crisis Team (‘cellule de crise’) in November 1993. February 1994. there was the temporary reluctance of the French government to proceed further with the SIS. This date was chosen to facilitate the technical separation of travellers for the Schengen airports since. a comparable situation arose with regard 30 31 MNS. this date is also regarded as the date of the entry into force of the CISA. Since the SIS became finally accessible for its end users on 26 March 1995. Then. That this commitment was not without limitations can be illustrated by the fact that. the Executive Committee of Schengen decided that the “irreversible implementation” of the Convention would take place on 26 March 1995. at its meeting in Bonn. no. – a common treatment of asylum seekers. the process of negotiations on the SIS reached its lowest point. which included the airlines’ changeover to their summer timetables. 141/94. Finally. at the political level. As we will see in Chapter 5. These included: – the implementation of external border control and the use of a common handbook. – the implementation of the CISA provisions on drugs policy. – the regulation of common visa issue and common instructions for consular and diplomatic posts. Furthermore. 2. On that same date. December 1994. including the Dutch position on the control of drugs trafficking. no. the Central Group formulated seven conditions for the entry into force of the CISA in its Madrid meeting of 30 June 1993. in November 1994.56 Chapter 3 problem causing delay was the fact that some countries did not come forward with their lists of authorised end users of the SIS on the basis of Article 101 CISA. it stated that it would concentrate its efforts at the level of the 12 EU States. in the Spring of 1994. the French government – which did not want to be seen as being responsible for a possible failure of the Schengen initiative – assured its partners of its commitment to work towards the abolition of internal borders within the Schengen framework. 131/94. p. continental Europe would switch over to summer time. p. 2. the same government stated before the French Parliament that it was out of the question that France would suppress checks at French borders if a certain number of obstacles were not removed. MNS.31 The loading of data into the SIS started on 22 December 1994. 2. OJ 1999 L 176/1. information technology was still in its infancy. based on technical problems and delays with regard the measures to be taken in the different Member States. whether in the EC or EU Treaty. with exception of confidential sections. This list was not computerised until 1991. for the publication of the whole Schengen acquis. the Nordic countries adopted a supplementary agreement to the Nordic Passport Control Agreement to deal with the participation of the Nordic 32 33 34 Council Decision 1999/435 of 20 May 1999 concerning the definition of the Schengen acquis and 1999/436 of 20 May 1999. This incorporation included the need to decide upon the precise legal basis of every legal instrument from the Schengen acquis. 59. due to the fact that when the Nordic Passport Control Agreement came to existence. for the time being the SIS is considered as having its legal basis in the third pillar or Title VI of the EU Treaty. the Schengen acquis was incorporated into the EU framework. in: Schermers (1993). the EU Schengen states were not able to reach agreement on the legal basis of the Schengen Information System. needs to be addressed.1. Nordic Countries Article 6 of the Nordic Passport Control Agreement of 1957 includes a regulation on a “joint negative list” of third-country nationals who are to be refused entry at the common Nordic external borders.34 In 2000. 3. Flexibility. 22. N. was unproblematic for most provisions and decisions. Similarly. H.2000. Article 5 (2) of the Schengen Protocol implies that whenever legal parts of the Schengen acquis are amended. OJ 2000 L 239/1.32 For different reasons. see.09. the legal basis of the SIS has to be determined. p. Nordic Experience on Criminal Law. 61–69. This determination of the legal basis. p. Participants 3. in Marinho (2001). EC or EU.The Schengen Information System 57 to the development of the SIS II. determining the legal basis for each of the provisions or decisions which constitute the Schengen acquis. the exact legal basis. Bracke. the Commission announced in 2006 that the date for the operation of SIS II would be postponed until the end of 2008. Justice Cooperation and the Treaty of Amsterdam.33 This means that whenever decisions on the use or functioning of the SIS are to be made. Legal Basis With the entry into force of the Amsterdam Treaty. Fode. . As a result of this failure to reach a decision. and (SCH/Com-ex (99) 5.35 Based on this supplementary agreement.2.38 Although the UK and Ireland did not have access to SIS I.37 In June 2000. These decisions included the apportionment of the costs of the SIS (Article 119 CISA). Ireland and the UK can take part in all or some of the provisions of the Schengen acquis. The UK and Ireland The UK and Ireland did not participate in the use of SIS I. L 309/24. 2. 7.03. respectively. In a Decision of 29 May 2000. except for the data on persons to be refused entry. the Council agreed upon the future use of the SIS except with regard to data on third-country nationals based on Article 96 CISA. and on the SIRENE Manual. the UK asked to take part in some fields of Schengen policy.39 The UK government strongly advocated the possibility for UK and Irish officials to 35 36 37 38 39 Source: K.58 Chapter 3 countries in the Schengen acquis.36 Between 1 December 2000 and 25 March 2001. Sweden. Iceland and Norway took effect on 25 March 2001. OJ 2000. OJ L 131.2000. Council Decision 2002/192/EC of 28 February 2002 concerning Ireland’s request to take part in some of the provisions of the Schengen acquis. the fight against drugs and the Schengen Information System (SIS). L 309/28. see declaration in OJ 2000. the Council approved the request from the UK. if the person in question is registered in the SIS. including the awarding of the tender for the SIS II preliminary study. the decisions of the Schengen Executive Committee on the future of the SIS. In March 1999. which more or less matched to the content of the request from the UK. This Article supplements the provision concerning the rejection of third-country nationals appearing on one of the Nordic countries’ lists of expelled persons. on the basis of the Protocol to the Treaty of Amsterdam. OJ L 64. Article 2 of the supplementary agreement states that a contracting state can only refuse a person entry. the Nordic countries were already loading data into the SIS.6. 84. . Finland. 1. As we have seen in the previous Chapter. SCH/Com-ex (97) 2 rev. with the decision on the partial participation of Ireland in the Schengen acquis. including its participation in the establishment and operation of SIS.2002. p. SCH/Com-ex (97) 24. the common Nordic register of entry prohibitions has been replaced by the SIS. Ireland asked to take part in some aspects of Schengen. officials from these countries did join the decision-making on other provisions concerning the Schengen Information System. Kjaer (2003). Council Decision 2000/777 of 1 December 2000 on the full application of the Schengen acquis in Denmark. except for the provisions of Article 96 CISA concerning the data on third-country nationals to be refused entry. In 2002. including police and judicial cooperation in criminal matters. 3. U. Switzerland In October 2004. 17. 4. was based on the existing cooperation between the Benelux 40 41 42 9273/02 SIS 34 COMIX 359. the EU was joined by Bulgaria and Romania.12. This will also grant access by the Swiss authorities to the SIS II. Draft Texts The idea of exchanging information on ‘inadmissible aliens’. This would allow national authorities to compare national alerts on third-country nationals with alerts in other countries.The Schengen Information System 59 have access to the data on third-country nationals to be entered into the SIS by other countries. This means that the new EU members must participate in the use of the SIS as well. the EU Member States agreed on the principle that the UK and Ireland could participate in the development of SIS II. according to which Article 96 data would be filtered out. 9620/02 (Press 175). A Working Group proposed a technical solution.42 In the Swiss referendum of 5 June 2005.3.1.2004. so that they would not be accessible to authorities of the UK or Ireland. Accession of New EU Member States In 2004. OJ L 370 of 17. including the measures adopted on the basis of the CISA. 3. an Agreement was signed between the European Union.41 3. In 2007.40 During the meeting of the JHA Council in June 2002. As we saw in Chapter 2. The accession of Switzerland to the CISA is envisaged in 2008. the population of Switzerland agreed to sign the CISA. SIS and Third-Country Nationals: Exclusion of ‘inadmissible aliens’ 4. p. Article 8 of the Schengen Protocol stipulates that new EU Member States should accept in full the Schengen acquis. Depending on whether these countries provide for sufficient technical and legal guarantees. the EU was enlarged by ten new Member States. . using the Schengen Information System. application and development of the Schengen acquis. the new EU Member States are scheduled to gain access in 2008 to the second generation SIS. Conclusions of the JHA Council. the European Community and the Swiss Confederation on the association of the Swiss Confederation with the implementation. but this proposal was not further developed.4. 45 Later drafts on the definition of ‘inadmissible aliens’ to be registered in the SIS were very short and in practice gave the participating states complete discretionary power. the Dutch delegation proposed entering persons in the SIS to whom no visa should be issued without the prior approval of the national visa agency and. as we will see below. SCH/I (88) 7.000 persons with a formal residence ban. including 2. firstly.675 rejected asylum seekers. Brussels. of 25 April 1988. Article 2. In one of the earliest notes dealing with the criteria for third-country nationals to be listed in the SIS.015 visa applicants for whom prior approval would be necessary. 6. but this proposal was later implemented separately through the establishment of Eurodac. SCH/I (88) 7. with the aim to be refused entry to. Data on aliens for whom an alert has been issued for the purposes of refusing entry shall be entered on the basis of national alert resulting from decisions 43 44 45 46 Note by the Dutch Delegation to Working Groups I and II. SCH/I+IIimm+c. 2.000 reported inadmissible persons. according to a draft dated November 1988. including persons against whom a formal residence ban has been issued and persons who are reported as inadmissible. . the two categories currently reported by the Dutch authorities to NSIS.43 This proposal included. 16 November 1988. the SIS would contain data on “persons. Article 96 CISA Article 96 CISA reads: 1. persons whose asylum applications had been rejected.46 4. who are by one of the contracting parties declared as an inadmissible alien. For example. This latter category would allow border officials to assess whether an asylum applicant had already applied for asylum in another Schengen State.60 Chapter 3 countries to share information on persons who would have to be refused entry at their external borders. second revision. The proposal to enter persons into the SIS for the visa application procedure as well was restated during the negotiations in 1989.fr (88) 5. Working Group I ‘Police and Security’.5. Secondly.44 Finally. Working Group I. 12th revision. 25 April 1988. thirdly. and 10. those refused asylum were not entered into the SIS. The Dutch note even included the estimated numbers of persons to be entered into the NSIS according to these criteria. The Dutch authorities had already processed the first three categories of data within the framework of the Benelux cooperation.2. or to be expelled from the territory of the contracting parties”. the Dutch delegation issued a proposal for categories of persons to be entered into the SIS for the purpose of refusal entry at external borders. 7 August 1989. According to Article 5 (1) CISA. Schengen states may only issue a short-stay visa (stays not exceeding a period of three months) to persons who fulfil the conditions mentioned in Article 5 (1) CISA. 2. . before issuing a visa. refusal of entry or removal which have not been rescinded or suspended. including or accompanied by a prohibition on entry or. b. a prohibition on residence. Thirdly. it allows for the reporting of third-country nationals who are convicted of an offence which carries a penalty involving deprivation of liberty of at least one year. Article 96 provides three categories of grounds for entering a third-country national into the SIS: firstly. With regard to a long-stay visa. including those referred to in Article 71. Secondly. The goal of the third criterion is to be found in the implementation of national immigration law. the national authorities should check the NSIS. an alien in respect of whom there are serious grounds for believing that he has committed serious criminal offences. Decisions may be based on a threat to public policy or public security or to national security which the presence of an alien in national territory may pose. refusal of entry or removal may also be entered in the SIS. The same applies to the issue of a visa: according to Article 15 CISA. This situation may arise in particular in the case of: a. an alien who has been convicted of an offence carrying a penalty involving deprivation of liberty at least one year. persons who have not complied with national immigration law and therefore have been subjected to deportation measures. Decisions may also be based on the fact that the alien has been subject to measures involving deportation. Article 18 provides that these visas be issued according to national law. This implies that. including rules on the conditions of entry. 3. or in respect of whom there is clear evidence of an intention to commit such offences in the territory of a contracting party. the fact of being registered in the SIS precludes this person from being allowed entry to one of the territories of the Schengen states. this also means that national officers will check the SIS before issuing a long-term residence visa to a third-country national. based on a failure to comply with national regulations on the entry or residence of aliens. it refers to third-country nationals who are suspected of either having committed serious criminal offences or of planning to commit those offences on the territory of one of the Schengen states. The first two reasons for reporting a person in the SIS are based on the assumption that the presence of this individual on one of the Schengen countries’ territories poses a threat to public policy.The Schengen Information System 61 taken by the competent administrative authorities or courts in accordance with the rules of procedure laid down by law. where applicable. In practice. public security or national security. the ECJ provided a definition of ‘public order and security’ which could have been used for a larger group of non-EU citizens. . they do not have to indicate the specific risk this person entails 47 48 49 Regulation 562/2006. if the authorities decide to enter an individual into the SIS.47 4. in Bouchereau. according to Article 25 (1) CISA it should first consult the contracting party issuing this alert. On the one hand. Donner (1993). For example. or as a risk to illegal immigration. this is sufficient for these persons to be regarded as a threat to public order and security. this provision should leave enough discretionary power to the national authorities. Only for substantive reasons. Definition of ‘inadmissible’: Discretionary Power of National Governments The definition of “third-country nationals for the purpose of refusal of entry” in Article 96 CISA seems to be based on two concurring thoughts.3. based on humanitarian grounds or for reasons involving international commitments. 18 May 1982.04. As we will see below. the criteria as stated in Article 96 (2) and (3) should prevent arbitrary implementation with regard to the reporting of ‘inadmissible aliens’. On the other hand. p. the assumption that the criteria on public safety and security could not be harmonised better describes the political rather than the legal reality. the text of Article 96 CISA is almost literally copied into the new text of the SIS II Regulation. In 2006. with regard to the protection of the free movement of EU citizens and privileged non EU citizens.2006 to be dealt with further in Chapter 9. 12.62 Chapter 3 When a contracting party considers granting a residence permit to a thirdcountry national who is entered in the SIS for the purposes of refusing entry. the first state may issue a residence permit to the person concerned. If a residence permit is issued. 27 October 1977. common criteria for the application of the SIS. 14. C-115/81 and C-116/81.48 This lack of harmonisation had to be resolved by establishing a common list of inadmissible persons. An important incentive for a shared information system would have been the acknowledgement that notions of ‘public safety and security’ could not be harmonised. However. OJ L 105. rather than developing harmonised.49 The participating states clearly preferred an accumulation of their national public order criteria. In other words. This state may put the third-country national on its national list. Article 25 (2) states that the state issuing the alert should withdraw this alert from the SIS. C-30/77 and Adoui and Cornuaille. the conditions of entry in Article 5 CISA have been replaced by the almost identical provision of Article 5 in the Schengen Borders Code. Articles 96 (2) and (3) are based on the general principle that whenever thirdcountry nationals meet the criteria listed in these provisions. As we will see in Chapter 4 on the development of SIS II. This Directive has been replaced by Directive 2004/38. this provision does not seem to have played a large role. a person will be subjected to profiling with regard to his or her visa application itself. regardless of her or his individual behaviour or purpose of the visit. The decision to enter a third-country national into the SIS is however limited by the general requirement implied in Article 94 CISA. Regulation of Migration. 4. every national of a state which is labelled by the EU countries as generating a risk of ‘illegal immigration’. Therefore. As defined by Swart.50 Where the visa itself is the instrument used to control immigration. However. In practice. gender. 191–202. p. Deventer: Kluwer 1978. OJ 56. see also Chapter 9. in the decision-making process with regard to visa applications.4.1964.4. the result of being a national of one of those latter third countries is that this person will be affected by the consequences of profiling. De toelating en uitzetting van vreemdelingen. International Experiences.H. or the individual risk to security.51 4. This provision states that national authorities issuing an alert should “determine whether the case is important enough to warrant entry of the alert in the Schengen Information System”. in: A. Puntervold Bø. are (apart from nationality) the age.. ‘crime’. the function of a visa is “to subject a third-country national to an examination of whether the stay this person is seeking is permissible and desirable”. 67. or ‘to international relations’. governments are making use of profiling on two levels. In the second place. as we will see in the Chapters on the national implementation of Article 96.52 The circumstances in which the freedom of movement of EU citizens can be limited have 50 51 52 A. income and family situation of the applicant. Swart. The Use of Visa Requirements as a Regulatory Instrument for the Restriction of Migration. Amsterdam: Het Spinhuis Publishers 1998.J. p. See also B. must obtain a visa before entering those European countries. Böcker et al. A comparable mechanism for excluding inadmissible migrants which is incorporated into the Schengen acquis are the visa lists. In the first place. visa lists are in fact no more than the agreement between groups of countries to apply the visa requirement for the same group of third countries. public security or public health are limited by the adoption of Directive 64/221 on the coordination of special measures concerning the movement and residence of foreign nationals. The criteria used for assessing these risks. applying for asylum.The Schengen Information System 63 with regard to ‘national security’ or ‘illegal immigration’. The official at a national embassy or immigration office will assess the legitimacy of the applicant’s reasons for visiting Europe by calculating the risk of this person of overstaying his or her visa. EU Citizens and Beneficiaries of EC Law The powers of Member States to restrict the rights of entry and residence of EU citizens based on reasons of public policy. . The European Commission however repeatedly urged the Schengen partners to apply the criteria of Directive 64/221 to third-country nationals who are family members of EU citizens as well.56 The judgment of the ECJ. Eicke. as well as nationals of Iceland. If a beneficiary of EC law is entered into the SIS and this is not in accordance with Community law. is very important considering the legitimacy of the principle on which the functioning of the SIS is based. This judgment will be discussed further in Chapter 9. ECR [1977]. 27 October 1977. being a threat to one Member State does not justify excluding that individual from all other states. in 1996 the Schengen Executive Committee adopted a declaration defining ‘aliens’ as referred to in Articles 1 and 96 of the CISA. Responding to this pressure from the Commission. the ECJ formulated the well-known criteria that there must be a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society. he or she should be deleted from the list. 163. . and later Switzerland. on the other hand.64 Chapter 3 been further narrowed in the jurisprudence of the ECJ. There is a clear tension between the principle of the mutual recognition of national immigration decisions relating to public order or security grounds on the one hand and. p. of 2006. 5. the ECJ ruled that registration in the SIS of two non-EU citizens who were married to EU nationals could not automatically result in the decision of the Spanish authorities to refuse them a visa or admission to Spanish territory. Spain. the protection of the 53 54 55 56 Bouchereau. Guild & Minderhoud (2003). in Groenendijk. and the point made by Eicke. para. SCH/Com-ex. Declaration of 18 April 1996. Paradise Lost? Exclusion and Expulsion from the EU. In other words. C-30/77.54 According to this declaration. (96) decl. In the Bouchereau case. The decision to exclude or expel a person from a national territory is only allowed based on the actual threat this person represents to this territory. these ECJ criteria did not seem to play an important role with regard to the national practice of reporting third-country nationals into the NSIS. the declaration of 1996 does not comply fully with the Court’s criteria. As pointed out by Eicke. the general rule should be that individuals.55 The ECJ made this clear in its first judgment with regard to the SIS and the registration based on Article 96 CISA. T. may be entered into the SIS if “this entry would be compatible” with Community law. in order to guarantee to the latter the right to freedom of movement under the EC Treaty. p. Family members of EU citizens who are third-country nationals and who have the right on the basis of EC law to enter and to reside in a Member State. Spain. 1999. 30.53 For a long time. In this judgment. C-503/03. Commission v. who are beneficiaries of Community law are not to be reported into the SIS. Commission v. including third-country nationals. 31 January 2006. Liechtenstein and Norway. the criteria of Article 96 are vague and leave the applying states a wide margin for interpretation. Security of Residence and Expulsion of foreigners: European Community Law in Guild & Minderhoud (2001). within the national territory. For example. Guild. See the case. Also. for these groups of third-country nationals. 59–80.59 5. identity checks on EU nationals at the internal borders of the single market need to be sporadic. regardless of whether these controls take place at the borders. Commission v. After this report. Another problem with regard to the implementation of the CISA rules to the NSIS is that this requires a standard check of the NSIS when controlling thirdcountry nationals. . information on the number of records in SIS in 2000 and 2001 were only published occasionally and by different organisations. not “systematic.57 Meanwhile. arbitrary or unnecessarily restrictive” and only identity controls are allowed.58 This also means that EU citizens cannot be required to answer questions on the purpose and the duration of their stay or the financial means at their disposal before they are permitted to enter the territory of another Member State. regularly updated information. This report contained data on the use of the SIS in 1998. or for visa applications at consulates or embassies abroad. C-321/87 [1989] ECR 997. The application of Article 96 in conjunction with Article 5 CISA is in sharp contrast with the criteria established by the Court of Justice regarding EU citizens and third-country nationals who are beneficiaries of EU law. The last annual report on the implementation of the Schengen Convention of the Schengen Executive Committee was published in 1999. the 57 58 59 E. the respective Directives require stricter rules as to the interpretation of public order and national security grounds. public order restrictions may exclusively be based on the personal conduct of the person concerned. As underlined by the ECJ in the judgment Commission v. This systematic checking of persons may result in a practice which is contrary to the principles of free movement as protected by EC law. C-68/89 [1991] ECR I-2637. the group of ‘beneficiaries of EC law’ has been extended and includes third-country nationals deriving rights from the EC Directive 2003/86 (third-country nationals seeking family reunification) and 2003/109 (long-term resident third-country nationals). p. the Netherlands. it is difficult to assess the added value and practical usefulness of SIS. Practical Implementation of SIS: Statistical Data on the Number of Records and SIS-Based Hits Due to the lack of centralised. Whereas.The Schengen Information System 65 rights of third-country nationals benefiting from EC law. for these latter groups. Belgium. The Schengen Information System. and persons wanted for ‘discreet surveillance’ or specific checks (Article 99 CISA).62 Approximately 6% of these records concerned persons who were registered in the SIS for more than one purpose.000 terminals in the Schengen States.4. insufficient information was available on the content and the current usage of the systems. the categories on persons include persons wanted for arrest or extradition (Article 95 CISA).60 In this report. witnesses or other persons summoned to appear in court (Article 98 CISA). no such information was included in the sixth report of the JSA on 2002–2003. There are some statistical data included in the ‘Report of the ad hoc group for the study of 3rd pillar information systems’ to the Council in 2003. Eurodac. These publications can be retrieved from the public register of the Council. 6 May 2003.eu. By 2005. A human rights audit. An important conclusion by this ad hoc group is that. Chapter 7) published data in its fourth and fifth annual reports on the content of the SIS. See the figures in the tables included in the next section. the SIS included more than 15 million records on objects and persons.887 Article 95: 10. However. The author did not find any information on 2002. . and the databases of Europol.806 Article 99: 17. As we saw in section 1.365 60 61 62 63 64 (89%) Doc. Numbers of Persons Entered in SIS With regard to the total number of records on persons in the SIS between 1999 and 2005. missing persons or those to be placed under temporary police protection (Article 97 CISA). 8857/03.1. 5. http://register. third-country nationals (non-EU and non-EEA citizens) to be refused entry (Article 96 CISA). the NSIS data could be consulted by approximately 125. at the stage in its research. Only since 2005 has the Council Secretariat published annual database statistics on the number of records registered into the SIS.419 Article 96: 764.1999. the Customs Information System (CIS).851 Article 97: 27.63 Data for 1999 64 Total persons entered into SIS: 855. the ad hoc group compared the existing EU databases. 31.436 Article 98: 35. the Anti-Fraud Information System (AFIS).12. the following information can be derived from the above reports.europa.61 According to the report of the ad hoc group for the study of 3rd pillar information systems in 2003.66 Chapter 3 Schengen Joint Supervisory Authority or JSA (see below. including the SIS. source: Justice report.consilium. London 2000. 297 Article 99: 17.SIS Exploitation team.655 Article 95: 14.628 Article 96: 709.696 Article 99: 15.00 (unpublished).255 Article 95: 10.00.763 (88%) Article 97: 29.673 Article 95: 15.413 Article 99: 16.The Schengen Information System 67 Data for 2000 65 Total persons entered into SIS: 842.992 (89%) Article 97: 32.902 Article 96: 785.2001.02. SIS Database Statistics from the Presidency to the SIS-TECH Working group.132 Article 98: 30.016 Data for 2004 68 Total persons entered into SIS: 883.631 (89%) Article 97: 34. source: 5th annual report Schengen Joint Supervisory Authority.03. Data on 5. 4th annual report Schengen Joint Supervisory Authority.347 (89%) Article 97: 28.023 Article 96: 780. 8857/03.511 Article 95: 14.078 (87%) 65 66 67 68 69 23. Data from the C.335 Data for 2001 66 Total persons entered into SIS: 803.05. source: report C. 28. .763 Article 99: 21. 2 June 2005.2000.012 Article 96: 714.874 Data for 2003 67 Total persons entered into SIS: 877.SIS at 010/1/2005 at 00.SIS Exploitation team.882 Data for 2005 69 Total persons entered into SIS: 818.914 Article 96: 750.160 Article 95: 11. See also the Statewatch/Ben Hayes report 2004. 01/01/2004 at 00.362 Article 98: 35.400 Article 98: 32. 8621/05.211 Article 98: 34. Report from the C. described in doc.05. 5239/06. Article 97: 4.235 35.73 In 2004.013 The statistics above show that.72 With regard to the numbers of ‘hits’ based on the SIS.68 Chapter 3 Article 97: Article 98: Article 99: 36. 5913/06.8%. while the amount of data for the other categories has increased.363 of a total of 36.317 18.475). and for the table of hits for the period 1 January 2005 to 31 December 2005. In particular. for the table of hits for the period 1 January to 31 December 2004. The increase in Article 95 reports can be explained by the implementation of Council Framework Decision 2002/584 on the European Arrest Warrant and the surrender procedures between Member States. instead of immigration law purposes. See. the percentage of hits on third-country nationals dropped to 57% of the 70 71 72 73 SIS Database Statistics dated 01/01/2006.460 Article 96: 751. Article 96 hits produces the largest number. In 1997.7%. Article 98: 10%.954 (85%) Article 97: 39.7. 18. . hits on third-country nationals based on Article 96 CISA constituted about 60–70% of the total number of hits on persons. OJ L 190. 6335/05. 5.189 Article 99: 31.5% (26. Member States can enter an alert on a requested person into the SIS on the basis of Article 95 CISA. compared to the hits based on Article 95: 7. Framework Decision of 13 June 2002.71 On the basis of this Framework Decision. third-country nationals to be refused entry represented 66% of the total number of hits (14. Numbers of Hits Based on Searches Performed of the SIS Data regarding hits are reported annually by the national SIRENE bureaux to the General Secretariat of the Council.2. the number of Article 98 alerts (witnesses) and Article 99 alerts (discreet surveillance) increased over the past two years. the percentage of records on thirdcountry nationals to be refused entry decreased. 23 February 2005. and Article 99: 6%). in other words the number of times authorities find a record in the SIS on individuals checked by these authorities. 14 February 2006. This seems to be an indication that Member States are starting to use the SIS increasingly for criminal law proceedings.627 Article 95: 15. 12 January 2006.876).2002.806 of a total 22. Between 1997 and 2004.031 Data for 2006 70 Total persons entered into SIS: 882. since 2005.011 Article 98: 45. In 2003 this was 71. 8%) Article 97: 1. This is illustrated by comparing the figures for 2001.152 (13.2% of the total number of records on Article 99). following which the ‘old’ Member States had to take the names of the nationals of the ‘new’ EU Member States off the SIS.9%) Article 98: 6.8%).887 (25.1%) Article 96: 21. in 2001 the following hits were recorded by the SIRENE bureaux: – – – – – Article 95: 2. Note that I compare the data on the number of records held in the SIS on the precise date of 1/1/2001.813 (25. 1/1/2004 or 1/1/2006 with the total number of hits which were found the year after that date. This in the first place is due to the enlargement of the European Union. The figures for 2004 show an even smaller percentage of hits on third-country nationals.289 (5.6%) Article 99 (persons): 4.090 (2.The Schengen Information System 69 total.957 (2.4%). this percentage only gives an estimate of the exact percentage.945 (15. Secondly.661 hits (6% of the total number of records on Article 97). when comparing the numbers of hits with the numbers of entries for each category. Article 96: 26. The following numbers of hits were reported in 2005: – – – – – 74 Article 95: 3. Article 99 (persons): 2.8%) Article 98: 4. Article 98: 1.612 (14.989 (18.232 hits (10.2%) Article 99 (persons): 2.841 hits (24% of the total number of records on Article 95).779 hits (12% of the total number of records on Article 98). Article 97: 3.7% of the total number of records on Article 96). reports on third-country nationals to be refused entry seem to be the least successful. . As the number of alerts change every day.984 (5.8%) Article 97: 2. compared to the number of records based on Article 96 CISA in the SIS: – – – – – Article 95: 3.6%) Article 96: 21. 2004 and 2006.74 Based on the above reports. this drop could be explained by the increasing percentage of hits based on the other categories of data stored in the SIS.363 hits (3. Relatively speaking. based on these hits.000 to 25. the actual effects of this storage are relatively small compared to the number of hits for other categories of persons stored in the SIS. May 2005.org/). these persons have been stopped at the borders. including the technical and functional amendments which were proposed and adopted with regard to the SIS. I will describe the development of the second-generation SIS or SIS II. therefore.75 Furthermore.dk/) and on the web site of the human rights organisation. SIS II: fait accompli?. Based on this report and the available national reports.schengen-jsa. published at http://www. compared to the records on persons stored in the SIS for other purposes. This report has not been officially published but is only available on request via the joint data protection secretariat of the Council. To my knowledge. Only the Schengen Joint Supervisory Authority initiated a coordinated evaluation of the national implementation of the Article 96 criteria in 2003.70 Chapter 3 Based on these statistical data. On the other hand.org. but not on the technically outdated website of the JSA itself (http://www. one could conclude that the registration of thirdcountry nationals in the SIS is in practice less effective. Chapter 5 will examine other EU databases which are directly or indirectly used for controlling immigrants within or seeking admission to EU territory. it can be concluded that the Schengen authorities applied the Article 96 criteria very differently and the data stored in the SIS often did not meet the criteria of Article 96.76 The findings of the JSA have been published in a report dated 20 June 2005.000 hits on third-country nationals is considerably high particularly when we consider that.statewatch. the annual number of 21.datatilsynet. The JSA report on this evaluation appeared in the summer of 2005 on the web site of the Danish Data Protection Authority (http://www. the national data protection authorities discovered that the time limits for the storage of these data were frequently exceeded. With regard to the development of the second-generation SIS. Statewatch. Statewatch analysis. . one would expect the Commission or Council to have evaluated the use and efficiency of SIS I.77 In the next Chapter. Even if information stored in the SIS concerns predominantly third-country nationals to be refused entry. See also B. See the critical report of the Danish Data Protection Authority of 10 June 2005. to be carried out by the national data protection authorities. no such evaluation has taken place. Hayes. the number of hits and. refused a visa or even expelled to a third country. 75 76 77 These reports are dealt with in Part III of this study.dataprotection. 20. Sweden and Finland on their accession to the Convention on the Implementation of the Schengen Agreement (CISA). the Netherlands. Finland.9. at its meeting of 7 October 1997. the Schengen States decided to develop a “second-generation SIS” or SIS II.2 During the same meeting. © 2008 Koninklijke Brill NV. 2. but is referred to in the decision of the Schengen Executive Committee of 25 April 1997 in which Portugal was given the mandate to start a preliminary study for SIS II.3 When it became clear that SIS II would not be realised before 2000. Digital Borders and Real Rights.Chapter 4 New Functionalities for SIS and the Development of SIS II “The Schengen Information System ended up by being the victim of its own success. The Road to the Second Generation SIS or SIS II When the SIS became operational on 26 March 1995. 22.10. The practical reason for changing the architecture of SIS was based on the forthcoming integration into the SIS of the Nordic countries (Denmark. Austria and Greece. .2000. to combine the extension to the Nordic countries with the necessary technical 1 2 3 Carlos Coelho. Working Document on the Decision and the Regulation on SIS II. 22. At the end of 1997 those countries were joined by three other countries: Italy. SCH/Com-ex (97) 2 rev. See also section 3. OJ L 239. As far back as 1996.2000. the system was used by seven States: Belgium. Spain. Luxembourg. Rapporteur for the LIBE Committee. On 19 December 1996. the Schengen States signed the agreements with Denmark. Norway and Iceland). This decision on the development of SIS II has not been published. This SIS II would not only permit the integration of new Schengen States. pp. but also include new functions.1 in Chapter 3. the governments participating in Schengen started discussions on technical as well as functional improvements to SIS I. Portugal and Germany. and it became imperative to increase its capacity and to introduce new possibilities while taking advantage of the latest development of information technology. Printed in the Netherlands.”1 1.2005. 71–116.9. published in OJ L 239. the Schengen Executive Committee decided. Sweden. France. Evelien Brouwer. 8 Before discussing the developments of SIS II. especially the requirements linked to the access to the Schengen Information System and the efficient controls at external borders”. the JHA Council decided upon the implementation of the Schengen acquis in the new Member States. the governments continued their negotiations on SIS II. The application of the full Schengen acquis would make it necessary for those Member States to fulfil “all legal. I will focus in particular on the (draft) Regulation on SIS II with regard to alerts on third-country nationals to be refused entry or residence.org. plus one in reserve) while. in the longer term. www.statewatch. that in view of the enlargement of the EU. See also Hayes. Statewatch analysis. Press release.5 After the integration of the Nordic countries into the SIS and the successful completion of the SIS I+ project in 2001. OJ L 309/24 9. 20 August 1999. SIS II overall plan: Problems to be addressed. As we will see. the United Kingdom and Ireland. “SIS II: fait accompli?”. SIS I became fully operational in the Nordic countries in March 2001.72 Chapter 4 measures to make the SIS ready for the new millennium.2000. would not affect the development of SIS II. organisational and technical pre-conditions (…).4 The new extended SIS I (under the heading SIS I+) should be accessible to 18 countries (15 operational States. many of these earlier decisions influenced the final scope and use of SIS II.7 In December 2002. 22. Decision of 21 April 1998. I will not go into details of the Decision on SIS II which applies to the use of SIS II within the third pillar framework. the strategic objective of SIS II would remain unchanged. the development of SIS II by 2006 would be a priority. See Council Decision 2000/777 of 1 December 2000 on the application of the Schengen acquis in the Nordic countries.9 In section 6. May 2005. See point 7 of the Roadmap adopted at the meeting of the JHA Council of 19–29 December 2002. 4 5 6 7 8 9 SCH/Com-ex (97) 24. OJ L 239.6 The Council of Justice and Home Affairs or JHA Council (having replaced the Schengen Executive Committee in 1999 on the basis of the Amsterdam Treaty) confirmed. the note from the German delegation to the Council Working Party on the Schengen Information System. or SIS I.2000. 10629/99. The same decision emphasised that the parallel development of a renewed SIS. 9118/01 (Presse 203).9. An overview of the proposals and the final decision-making with regard to SIS I and SIS II is given in the annex to this chapter.12. . for an overview of these developments in decision-making. See. at its meeting of 28–29 May 2001. the first sections will describe the decisions adopted to amend the use of SIS I. based on a report to be forwarded by experts. 6. the Mixed Committee agreed on the principle that Europol and national members of Eurojust should have efficient and workable access to the SIS. the JHA Ministers agreed in conclusion 43(c) to examine the possibility of granting Europol access to the SIS. 14470/00. See also the German note of 8 December 2000. Access to Europol and Eurojust In the Vienna Action Plan on an Area of Freedom. 10629/99. including Europol and central credit protection agencies. Security and Justice of December 1998. It took more than a year before the EU Ministers could reach political agreement on access by Europol and Eurojust to the SIS.1 below.1. it was proposed that Europol be authorised to consult the right of access to SIS and. OJ C 19/1. OJ L 68. prosecuting crime efficiently and providing effective protection against illegal immigration.10 This possibility for both Europol and Eurojust to gain access to SIS information was strongly advocated by the German government. This would prevent persons using stolen identity documents with the goal of establishing different bank accounts in the EU Member States. to make Europol responsible for the implementation of the C. See for the Decision 2002/187 on the establishment of Eurojust. 23. 20 September 2000.14 During the Council discussions.3. in the longer term. the discussion about granting access to Europol and Eurojust received a new impulse. The decision on how this access would be implemented was to be taken at a later stage. These amendments would serve “the interests of protecting the public from crime. 15. the legal basis for SIS access by Europol and Eurojust was provided in Decision 2005/211 of 25 February 2005. 11538/00. Early Proposals to Extend the Use of SIS 2.12 The German government proposed optimising the use of the SIS and extending access to the SIS to other authorities and institutions.1999. During the Meeting of the JHA Council of 19 December 2002.2002. These organisations should have access to the data on stolen or missing documents. Germany presented a discussion paper on the future use of SIS. 5691/02 (Presse 404).” In the aftermath of the terrorist attacks in the United States (see below). In a note from the German delegation to the SIS Working Party.1.11 In September 2000. OJ L 63.SIS tasks. the option of granting access to Article 96 data on inadmissible third-country nationals was considered both with regard to 10 11 12 13 14 Text adopted by the JHA Council of 3 December 1998.New Functionalities for SIS and the Development of SIS II 73 2.2005. 20 August 1999. .3.13 As we will see in section 4. For example in the discussion paper on the “future progress concerning the principle of availability” of the Friends of the Presidency. 29. misappropriated or lost documents. p.18 2. Luxembourg. freedom and security’ of 2004. Communication on The Hague Programme: Ten priorities for the next five years.19 This would include access to information on stolen. 26 November 2002. 11653/02. Providing immigration authorities access to this information would enable them to tackle illegal residence in the Schengen area at an early stage. 5595/06 (document only partially accessible to the public). p. 3.5. Carrera. The ‘Hague Program on an Area of justice. Balzacq & S. in order to facilitate the appointment of the Member State responsible for an asylum claim according to the Dublin II Regulation. by preventing persons from ‘obtaining residence’ or ‘legalising illegal residence’ by submitting stolen or misappropriated documents. See also my article Data surveillance and border control in the EU: Balancing efficiency and legal protection of third-country nationals in: T. 25 January 2006. Sweden and Spain supported access to Article 96 data for Europol and Eurojust. In 2002. which is to be further developed. p. 137–154.2. p. 20. However. It was also proposed that asylum authorities be granted access to the data on third-country nationals stored to the SIS for Article 96 purposes. seems to be used as a motive to link different EU databases and to give the authorities wide access to these databases as well. 11538/00.15 According to the Note of the College of Eurojust of 30 July 2002. Security versus Freedom? A Challenge for Europe’s Future.17 In 2005.16 By the end of 2006. COM (2005) 184. . access to Article 96 data on non-admission would also be useful to Eurojust.74 Chapter 4 Europol and with regard to Eurojust. Effective Protection against Illegal Immigration In the same note in which the German delegation supported Europol access to the SIS I. This principle. it proposed to grant authorities issuing residence permits to third-country nationals appropriate access to ‘SIS documents/investigations’.20 The proposal was based on the assumption that the state entering the data on the basis of Article 96 15 16 17 18 19 20 9408/4/02. France. Aldershot: Ashgate 2006. 10. there was still no agreement or legal basis for access to SIS data on third-country nationals by Europol and Eurojust. 6164/5/01 REV 5. the Commission announced that it was to study the “development of links between the SIS II and the Europol information system” before 2007.2005. this ‘utility’ was only justified by stating that “the combination of judicial orders with non admission orders is delicate”. launched the ‘principle of availability’ as a common standard for information sharing and exchange between the national law enforcement authorities. no measure has been taken with regard to this proposal. the Treaty between Germany and the Netherlands of 2 March 2005. since these data would only be necessary for limited periods related to certain events. 86 and the Benelux Treaty on border crossing police cooperation (grensoverschrijdend politie-optreden) 8 June 2006. when Eurodac (see Chapter 5) became operational. 2. the JHA Council agreed to study the possibilities of this new alert although. Spain and Portugal supported registration in the SIS of two new categories of persons: “persons prohibited to leave the Schengen area” and “potentially dangerous persons to be banned from participating in certain events. similar meetings. .23 In the Spanish note. no. Meanwhile. Tractatenblad (Dutch Official Publications) 2005.22 Based on these conclusions. However. that those data “would not be made permanently visible or included in the SIS”. proposed studying the possibility of including data on “violent troublemakers [with respect to] in view of mass events” to the SIS I. the JHA Council of 13 July 2001 agreed on the need for a structured exchange of data on violent troublemakers within the context of meetings of the European Council and other. it was recognised that such alerts could affect freedom of movement as protected by EC Directive 64/221 (now Directive 2004/38) as well as other civil liberties and data protection of the persons concerned. Belgium. Tractatenblad 2005. New Categories of Persons During the discussions in the EU Council. see also the Swedish Presidency note on Requirements for SIS II. Sweden. for example. In reaction to the events surrounding the EU summit of Gothenburg. to my knowledge. For example. It was therefore suggested. 10608/01 (Presse 281). 6164/1/01 REV 1.21 This category of persons would include a divergent group of persons.” With regard to the former category. In June 2003. no. The proposal to enter data into the SIS I on “potentially dangerous persons to be banned from participating in certain events” was supported by the Spanish and Belgian governments. 35. 24 February 2001. But it could also include detainees who are conditionally released.New Functionalities for SIS and the Development of SIS II 75 would also be the state whose territory the person in question entered for the first time.3. Presidential note to the Working Party on SIS. during its Presidency in February 2002. this proposal disappeared from the agenda. by the Portuguese delegation. the possibility for the police authorities to exchange information on this category of persons was provided for in different bilateral agreements on police cooperation between EU Member States. 5968/02. this was proposed in February 2001. 5 February 2002. children who are at risk of being kidnapped by one of their parents when there is a dispute over custody of the child. the Spanish government.24 This meant that it was no 21 22 23 24 6577/01. 2. the Treaty of Prüm. resulted in new emphasis on controlling thirdcountry nationals entering or residing in the EU. See. . in particular sport events. who turned out to have stayed legally or on an expired visa in both the United States and Germany.org. SIS I and the Fight Against Terrorism 3. 197. 3. other vehicles. Meeting of 5–6 June 2003 of the JHA Ministers. 4. Catz & Guild (2003). and easily identifiable objects. the Justice 25 26 27 10900/05. violent troublemakers.25 These “data subjects” include both EU and non-EU citizens. Press release 9845/03 (Presse 150).27 The failure of the administrations to identify those responsible.libertsecurity. Extending the Functions of the SIS I Immediately after the terrorist attacks in the United States of America of 11 September 2001. p. in so far as the supply of such data is permitted under the supplying Contracting Party’s national law” (Article 14). 7 July 2005. the JHA Council agreed in June 2003 to study “the feasibility. “if any final convictions or other circumstances give reason to believe that the data subjects will commit criminal offences at the event or pose a threat to public order and security. 6. the Council asked for a study of the inclusion of SIRENE forms into the SIS and of which biometric data other than photographs and fingerprints can be stored in the SIS I. With regard to other categories of data. Furthermore. provides for the exchange of information during major events with cross-border dimensions.76 Chapter 4 longer necessary to provide for this exchange of information through the SIS II. At its special meeting of 20 September 2001. 96 ff. the EU institutions and national governments came forward with different legislative proposals and measures aimed at intensifying the fight against terrorism. usefulness and practical implementation” of entering them into the SIS I. At this same meeting of June 2003. published at www. 3.1. See for the Dutch version Tractatenblad 2005. 5. luxury items. minors precluded from leaving the Schengen area. which immediately followed the terrorist events.26 Those categories included: 1. works of art. 7. animals. for early EU decision-making in response to 9/11: Brouwer. adopted in 2005. 30 Under this proposal. with regard to the cooperation between police and intelligence services. an alert would have to be automatically reported into the SIS when a person does not leave the Schengen area within the period stated in his or her visa. 14193/01. . in particular. proposed far-reaching measures with regard to the use of personal information in the fight against terrorism. the establishment of a common visa database and of a European central register of third-country nationals present on EU territory. in this same note.09. 96 and 99 of the CISA. national Public Prosecutor’s Offices and immigration and asylum authorities on-line access to the SIS. 20. the authorities responsible for public security could be made (more) aware of the possibility of entering alerts under Article 96 (2) (b) (i. 12813/01. The entry of alerts could be improved by issuing common recommendations or even setting common binding rules for the entry of alerts. As we will see in Chapter 5. the Belgian Presidency of the EU issued a proposal to extend Article 96 CISA to make it possible to check whether third-country nationals to whom a visa is issued and whose visa has expired have actually left the Schengen territory. meeting document of 27 September 2001. In a paper dated 27 September 2001. In October 2001. Conclusions 13 and 27. “aliens in respect of whom there are serious grounds for believing that he has committed serious criminal offences (…) or in respect of whom there is clear evidence of an intention to commit such offences in the [Schengen] territory”).31 According to this note. It was noted that when the proposal was to be incorporated into the SIS II.2001. Furthermore. Among other things. SN 4038/01. the financial effects would be minor. Germany proposed enabling the interconnection of data by allowing Europol.e. the Belgian government forwarded another proposal to record alerts more systematically in the SIS I. With regard to alerts on persons to be refused entry. In November 2001.29 The German delegation also called for enabling Europe-wide computerised profile searches. the JHA Council announced that it would examine the possibility of granting other public services access to the SIS.28 The German government. 15.2001. data should be recorded automatically in all cases once this entry into the SIS would be allowed by national legislation. 28 29 30 31 SN 3926/6/01 REV 6. The participating States were also invited to provide more systematic input into the SIS of alerts under Articles 95. the idea of an entry-exit system was transferred to the proposal for a separate Visa Information System.10.New Functionalities for SIS and the Development of SIS II 77 and Home Affairs Council urged the Member States to take certain measures involving the use of the SIS I. Germany advocated the use of Eurodac information for police purposes. S 2001/1297.statewatch. at the same time. See also 6164/5/1. This was proposed explicitly for the first time in October 2001 by the UK delegation within the SIS Working Party. p. the UK delegation also proposed the creation of a “restricted access terrorist database”.pdf. and which data protection provisions would have to be adopted.2. It has been suggested that. the Belgian Presidency described the UK proposal as “logical”. Access for Internal Security and Intelligence Services During the EU negotiations on the fight against terrorism.35 To my knowledge. .5 below). it would still have to be decided whether this access would include civil or military services. www. B. 21 June 2002.europa. for what purposes these services could use the data. Efforts would be made to improve the use of the SIS.org. 6 November 2001.32 According to this report. the possibility of granting national internal security and intelligences services access to the SIS was a recurrent issue. this SIS access by security and intelligence services has been implemented at national level without a formal legal basis. 9. a formal decision has not been taken on access by internal security and intelligence services. In this same note. the SIS would offer several opportunities for preventing terrorists using the territories of the EU Member States for purposes relating to acts of terrorism. 10127/02. February 2004. however later replaced by a provision granting “designated authorities” access to SIS II (see section 6. 31 October 2001. From the Schengen Information System to SIS II and the Visa Information System (VIS): the proposals explained.36 During the negotiations on the Decision on the use of the SIS II. 13269/01. 32 33 34 35 36 Letter of 27 December 2001 to the Security Council Committee established pursuant to resolution 1373/2001. Hayes. 3. 29 October 2001. The report referred again to the importance of recording data in the SIS more systematically. based on an informal decision at working party level.78 Chapter 4 The report of the EU Presidency to the Security Council Commission of December 2001 summarised the view of the Member States at that time on using the SIS in the fight against terrorism.34 However.33 Referring to the aforementioned Council Conclusions of 20 September 2001. the German government tried to include a provision granting internal security agencies access to the SIS. Statewatch analysis. for example by “introducing warnings by default” and “national warnings fulfilling the criteria for introduction into the SIS will be introduced as automatically as possible and should not require any additional operation from the initiating authority”. http://ec.eu/comm/external_relations/un/docs/ eu1373. which categories of information would be involved. This proposal was successfully opposed by the European Parliament. the Belgian government stated that if the Council reached an agreement in principle on this point. 13530/01. 39 In 2006. The Member States decided unanimously in the EU Council of 27 December 2001 on the Decision establishing the list provided for in Article 2 (3) of Council Regulation 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism41 and the (much longer) list in the 37 38 39 40 41 9358/02. according to which a third-county national listed on a UN terrorist list may be registered in the SIS II for the purpose of refusal of entry or residence. governments could consider whether legislative changes at national or European level would be appropriate to ensure that. OJ L 344. . in a note on Article 96 alerts based on the UN lists. In the EU. As we will see below. 12 May 2003. This proposal was supported and elaborated in a note of 28 May 2002 from the Spanish Presidency to the SIS Working Group.38 Input regarding these persons is managed by the German Ministry of the Interior. 7783/06. the German authorities have volunteered to enter these persons into the SIS on behalf of the Member States.40 In this note. At this point. The proposal to report persons on the UN terrorist lists in the SIS was not officially adopted. 28. it should be stressed that the instrument of terrorist lists already existed before 11 September 2001. Internal note from the German Federal Data Protection Authority to the Schengen Joint Supervisory Authority. a new provision is included in the SIS II Regulation. On the basis of an informal agreement between the Schengen States. 9182/03. several terrorist lists were and still are used simultaneously. Inclusion of Persons Listed on the UN Terrorist Lists Directly related to the fight against terrorism was the Italian proposal to enter persons included on the UN list established by the Sanctions Committee on Afghanistan on the basis of UN Security Council Resolution 1390/2002 (SCR Resolution).2001. After 11 September 2001. in future. it was confirmed that “for the time being”.New Functionalities for SIS and the Development of SIS II 79 3. 25 January 2005. if all Member States lacked the legal basis to enter these individuals into the SIS. the EU Presidency dealt with different options for entering and maintaining information based in the UN or EU lists on terrorists for the forthcoming Regulation on SIS II. such persons were entered into the SIS. “as long these persons could be adequately identified”. a new list was compiled by the UN Sanctions Committee and attached to the UN Security Council Resolutions.37 The Spanish Presidency asked the national delegations to check what national measures had been taken to comply with the SCR Resolution.12. the German authorities entered the listed persons into the SIS on behalf of the other States. See the Outcome of Proceedings of the meeting of the Article 36 Committee.3. including a list of persons affiliated with the Al Qaeda network. It was stated that. 7 April 2006. 28 May 2002. Adopted Decisions Extending the Use of SIS I 4. include different measures extending the use and utilities of the current SIS. Member States are entitled to make their own proposals on the removal of persons and organisations from the lists. 28 October 2002. 4.2002. investigation or sentence has been carried out as a result of terrorist acts. 3.05. OJ L 162/29. Criteria for listing people can be found in the Common Position 2001/931 and in the Regulation 2001/927. The provisions for mutual support in criminal proceedings target the first group.44 These instruments.45 The most important changes are: 42 43 44 45 OJ L 139/4 and L 139/9. The EU list which is attached to the Common Position 2001/931 contains the same names. 25.10. These criteria include whether a criminal prosecution. 17 June 2002. OJ L 337/85.7. . to any person elsewhere who is a national of a Member State.2002.2002. the EU Council adopted Regulation 871/2004 and Decision 2005/211 on new functionalities for the SIS. while others (around 10) are characterised as ‘exogenous’ (mainly active outside the EU). but also includes EU citizens. Spanish initiative for a Regulation on new functions of SIS.1.03. See. as well as on the entry of new persons and entities. Regulation 871/2004 and Decision 2005/211 on New Functionalities On 29 April 2004 and 24 February 2005 respectively. on board any aircraft or any vessel under the jurisdiction of a Member State. OJ L 116. 13. 30. OJ L 160/26. to any legal person.04. people who are linked by the UN Security Council to terrorism and against whom sanctions have been imposed can be added to the list.43 Based on Council Regulation 2580/2001.12. In addition.2004 and OJ L 68/44.2005 respectively. some of those (in the first version around 30) are characterised as ‘endogenous’ (primarily active within the EU). 12 December. Member States are required to freeze the financial assets of the listed persons and organisations considered to be involved in terrorism.80 Chapter 4 Annex of the Common Position 2001/931 on the application of specific measures to combat terrorism and Council Decision 2001/ 927. for updates: 2 May 2002. while the measures for freezing assets are aimed at the latter.06.2002. 29. OJ C 160.42 The EU lists are reviewed every 6 months.2002. including its airspace.05. based on Spanish proposals from 2002.2002. The Regulation applies within the territory of the Community. 4. 18. 30. group or entity incorporated or instituted under the law of a Member State or doing business within the Community (Article 10). It provides the names of individuals and organisations who are believed to be connected with terrorism. OJ L 295/12. with regard to checks within the country.6. including Article 96 alerts. 46 47 See the note from the Irish presidency to the Article 36 Committee. Based on the former provision in the CISA. 6874/04. officials planning to issue such an alert had to consult the other contracting parties beforehand. in the Regulation. See Decision 2005/451 of 13 June 2005. The Decision explicitly forbids Europol to link parts of the SIS to which it has access to any computer system operated by or at Europol. after 1 May 2004. the Regulation extends the duty to make records of the transmission of data and. 2. On 24 July 2006. including public prosecutors. on access by visa and immigration authorities to information on stolen documents. misappropriated or lost identity documents by authorities responsible for issuing or examining visa applications or for issuing residence permits.2005 respectively. OJ L 158. This access is limited to the police and judicial tasks of these organisations and does not include data under Article 96 or 97. The Decision also changes the procedure to be followed by national authorities in the event of an alert on the basis of Article 99 (discreet surveillance). Finally.2005. 27 February 2004.46 The reason for this swift adoption of the Regulation was Article 67 of the EC Treaty. Decision 2005/211 provides for access by Europol and Eurojust to SIS data stored on the basis of Articles 95. 3. OJ L 273.47 4. Europol and Eurojust The most important amendments with regard to the use of the SIS are the provisions in the Decision on access to Europol and Eurojust and. the Council Decision of 25 February 2005.1. The application of the provisions of the Regulation and the Decision were set for different dates. for the first time. or Articles 95 and 98.10. the Council could no longer adopt legal acts within the scope of Article 66 TEC insofar they are based on the initiative of one or more Member States. 21. it is explicitly stated that Europol may not transfer the SIS data to any third State or third party without the express prior authorisation of the Member State which entered this data into the system.1. Article 2 of the Regulation and the Decision allows the Council to set different dates of application. 11556/06 (Presse 216). the JHA Council adopted two decisions setting two further dates of application (1 October and 1 November 2006) for Article 1(4) and Article 1(5) of the Regulation. includes a legal basis for the SIRENE bureaux. In addition. 99 and 100 CISA. 19. . access by Europol and Eurojust to the SIS.New Functionalities for SIS and the Development of SIS II 81 1. to the SIS. The Regulation was purposely adopted on 29 April 2004 which is before the adoption of its third pillar counterpart. access to information held in the SIS on stolen. with regard to Europol. On the basis of this provision. Decision 2005/728 and Decision 2005/727 of 12 October 2005. access by national judicial authorities. 82 Chapter 4 With the new Article 99 (4).3. 5968/1/02.48 4. and objects for the purposes of seizure or use as evidence for criminal proceedings respectively). A5-0436/2002. in the performance of their tasks as set out in national legislations”. the Council chose a combination of both texts. p. 4. 22. Authorities Responsible for Issuing or Examining Visa Applications or for Issuing Residence Permits A new Article 101 (2) has been inserted in the CISA. the French delegation proposed giving national judicial authorities direct access to all SIS data.49 This proposed amendment was justified by the fact that some Member States already granted access to the SIS to their public prosecutors based on the words “and the coordination of such checks” in Article 101 (1) (b). the EP advised maintaining the obligation of informing the other parties beforehand. Public prosecutors Regulation 872/2004 includes an amendment to Article 101 (1) (b) CISA. . 4 December 2002.50 In October 2002. Regulation 871/2004 further allows national authorities to add information to the alerts stored in the SIS. see also the Report of Carlos Coelho of the LIBE Committee. based on which the authorities “responsible for police and customs checks carried out within the country and the coordination of such checks” have direct access to the SIS. including those responsible for initiating public prosecutions in criminal proceedings and judicial inquiries prior to indictment.2. giving the authorities responsible for issuing visas or examining visa applications and the authorities issuing residence permits and “for the administration of legislation on aliens” access to the data on stolen. 4. explanatory statement.7. 17 October 2002. 98 and 100 data (persons wanted for arrest for extradition. Based on the amendment. the national authorities issuing an alert will only have to inform other parties. 9407/2/02.1. whereas the German delegation proposed.2002. OJ C 160. giving national authorities only direct access to Articles 95. The original text of the Spanish proposal only envisaged adding to the provision of 101(1) (b).51 In the final decision on the proposed Regulation and Decision. “for the initiation of public prosecutions in criminal proceedings”. 19 March 2002. for example on whether a person has previously escaped from detention. direct access is made possible for “national judicial authorities. misappropriated or lost identity documents which are held in the SIS on the basis of Article 100 (3) (d) and (e) CISA. witnesses. A5-0436/2002. including alerts on third-country nationals to be refused entry.1. 48 49 50 51 In its resolution of 17 December 2002. which reads as follows: “and the judicial supervision thereof ”. this double criminality rule does not apply.7. the Regulation and the Decision provide for an explicit legal basis in the CISA for the functioning of SIRENE.2. the opportunity to change current provisions regarding the SIS has also been used to improve some data protection provisions.1. Article 92 paragraph 4 provides that Member States will. among others. This provides an extra safeguard with regard to the lawful use of SIS information. 52 53 A5-0436/2002. Framework Decision 2002/584 on the European Arrest Warrant Article 9 (2) of the Framework Decision 2002/584 on the European Arrest Warrant provides that judicial authorities may issue an alert in the SIS on requested persons for the purpose of a surrender procedure.4. a European Arrest Warrant (EAW) is a judicial decision issued by a Member State with a view to the arrest or surrender by another Member State of a requested person.2002. exchange through SIRENE “all supplementary information necessary in connection with the entry of alerts and for allowing the appropriate action to be taken in cases where data concerning persons and objects have been reported in the Schengen Information System and these are then found as a result of searches made within the System”. instead of every tenth transmission (as provided for in the original text of the CISA).53 As defined in the Framework Decision. in accordance with their national legislation. a duty has been added for national authorities to make a record of every case of the transmission of personal data. based on the double criminality rule. The Framework Decision was adopted on 13 June 2002. The information exchanged through SIRENE may only be used for the purpose for which it is transmitted.52 4. This request for arrest or surrender is possible for the purposes of conducting a criminal prosecution. . OJ L 190. Duty to Report all Transmission of Data and a Legal Basis for SIRENE Although the Spanish proposal focussed on extending the use of the SIS for the fight against terrorism. The offences listed in the Framework Decision include. 18. However.New Functionalities for SIS and the Development of SIS II 83 4. Finally. the requested State must surrender the person without verifying the double criminality of the offence at stake. Both in the Regulation and in the Decision. with regard to 32 offences listed in the Framework Decision. In general. If punishable in the issuing Member State by imprisonment of at least three years. a Member State may subject the request from another Member State to surrender a person to the condition that the act for which surrender is requested should also constitute an offence under the law of the executing Member State. executing a custodial sentence or executing a detention order. This latter restriction of the further use of SIRENE data had been advocated by the EP in its resolution of 17 December 2002. 57 Article 3. The Common Position took effect on the date of its adoption (Article 5). . According to preamble (5). In practice. to create an integrated system for the exchange of stolen and lost passports between the SIS and the Interpol database. Common Position 2005/69 on Exchange of SIS Data Between Member States and Interpol On 24 January 2005. see doc. murder. the Council adopted a common position on the exchange of information on stolen and lost passports between the ‘SIS countries’ and Interpol. organised or armed robbery. the issuing judicial authority may also transmit the EAW directly to the executing judicial authority. The Common Position is considered a first response to the call of the European Council of 24 March 2004. Common Position 2005/69 on exchanging certain data with Interpol. See: http://www. corruption. 54 55 56 57 This (partial) abolition of the double criminality rule and the abolition of the prohibition on surrendering one’s own nationals have been criticised. the issuing judicial authority.84 Chapter 4 membership of a criminal organisation. When the location of the requested person is known. whenever they enter data on stolen passports into their national databases or into the SIS. according to Article 1. Constitutional challenges to the European Arrest Warrant. Belgium. 29. registered in the SIS in accordance with Article 95 CISA. terrorism. the lawfulness of the Framework Decision has been disputed before national (constitutional) courts.54 The EAW must contain information that includes the identity of the person concerned. in its Declaration on combating terrorism. counterfeiting currency.55 In different EU Member States.2005.3. Portugal. Nijmegen: Wolf Legal Publishers 2006. fraud (including fraud affecting the financial interests of the Communities). human trafficking. The purpose of this measure is. the final judgment.net. This was agreed upon during the informal meeting of the JHA Council in February 2002. Luxembourg. See. including United Kingdom. the current measure should be followed up by setting up a technical functionality in the SIS to achieve that aim. France. computer-related crime. The Framework Decision entered into force on 1 January 2004. A challenge for European Law: the merging of international and external security.). 20 January 2003.eurowarrant. for analysis of some of these judgments: E. racism and xenophobia. Guild (ed.1. trafficking in stolen vehicles and rape. The arrest warrant. is considered equivalent to an EAW.56 4. 5065/03. to prevent and combat serious and organised crime. the implementation of this Common Position means that information reported to the SIS and then automatically submitted to Interpol. OJ L 27/62. the nature of the offence and the penalty. Some Member States. to exchange these data immediately with Interpol as well.3 of this Common Position requires Member States. Germany and Spain agreed to apply the Framework Decision as of the first quarter of 2003. including terrorism. The sections above.4. make it clear that the Member States were already extending the scope and use of this database.1999. Interpol. national judicial authorities and Eurojust access to the information held in the SIS I. the Commission was empowered to take the necessary implementing measures. 13.59 The Regulation applies with effect from 11 January 2006. or SIS II. It should also increase the possibility of finding stolen vehicles. Regulation 2001/2424 and Decision 2001/886 published in OJ L 328. 22. adopted on 6 December 2001. The multiple use of the SIS was invoked by giving new authorities. the negotiators paved the way for a new. According to Article 102A (4). in accordance with the Council Decision on the procedures for the exercise of implementing powers conferred on the Commission.58 This measure. after seeking the opinion of the Schengen Joint Supervisory Authority. enlarged concept for the second generation SIS. provided in the new Article 102A CISA. 8835/99 and 12793/01.New Functionalities for SIS and the Development of SIS II 85 so that the information at stake is no longer available for EU Member States only. 4. See doc. should prevent vehicles reported by one Member State from being licensed in another Member State.60 On the basis of these instruments. Council minutes of 2–3 June 2005. doc. but also for the police organisations of non-EU States participating in Interpol. each year. the Council adopted Regulation 1160/2005 on the basis of which the vehicle registration authorities gained access to data reported in the SIS on stolen cars. 8849/05. This decision of the Council is based on a proposal by the European Commission. 8524/05.1.2005. . the Council must submit a report to the EP on the implementation of this provision. SIS II 5. Regulation 1160/2005 on Access to the SIS by Vehicle Registration Authorities In June 2005. including Europol.2001. COM (2003) 510 and takes into account three amendments by the European Parliament. Decision 1999/468/EC of 28 June 1999. This report shall include information and statistics relating to the use and results of the implementation of this Article and shall state how the data protection rules were applied. Based on a Belgian proposal.61 58 59 60 61 OJ L 191/18. Legal Basis for SIS II Regulation 2001/2424 and Decision 2001/886 on the development of the second generation Schengen Information System (SIS II).7. 17. 5.07. provided the legal basis for the further development of the SIS II. describing the amendments with regard to SIS I. OJ L184. During the discussions on these amendments of the CISA provisions.12. national vehicle registration authorities. p. and 66 of the EC Treaty. the Member States were unable to agree on the appropriate legal basis for the SIS. The Ministers agreed in their meeting of 29 May 2001 that the expenditure should be charged to the EC budget as from 2002.65 By using Article 62 (2) (a) as legal 62 63 64 65 Both the Decision and the Regulation expired on 31 December 2006. Report of the meeting. See further below. . According to the Commission. recognising that some parts of the SIS fell within the scope of Title IV TEC. From Black Market to Constitution: The Development of the Institutional Framework for EC Immigration and Asylum Law.63 On 31 May 2005. The Regulation on the development of the SIS II was based on Article 66 TEC and the Decision on Articles 30 (1) a and b and 31 a. it sometimes entails action that does not amount to a form of police cooperation within the meaning of Title VI of the EU Treaty (or Title III “Police and security” of the CISA). removing them to an external frontier or deporting them”. in which both the Commission as the Council are involved. 230 and 237. In its Communication on the Development of SIS II of 18 December 2001. To solve this problem. COM (2005) 236. 31 May 2005.64 The proposal for the Regulation on SIS II was explicitly based on Article 62 (2) (a) TEC (external border controls) and Article 66 TEC (administrative cooperation). at the time of the integration of the Schengen acquis into the EU Treaties. including a draft Regulation and Decision on the establishment. in Peers & Rogers (2006). whether they involve refusing a person a visa.86 Chapter 4 The Decision provides for a comitology procedure. 9118/01 (Presse 203). the European Commission published three legislative proposals on the second generation SIS. the JHA Council could not reach unanimity on the decision to finance SIS II through intergovernmental funding. although an alert referred to in Article 96 may contribute towards preserving public order. 63. For more details on the applicable procedures with regard to Title IV instruments: S. “an alert for purposes of refusing entry entails measures that fall under the heading of entry and residence of foreigners. 52 and 65–66. operation and use of second-generation SIS (SIS II) and a Regulation regarding access to SIS II by national services responsible for issuing vehicle registration certificates. while other parts were covered by Title VI TEU. the Commission held that this would have to be based on Articles 62. Therefore. The question of the appropriate legal basis and the financing of SIS II was controversial because of the legal basis of the current SIS.62 With regard to the financing of SIS II. With regard to Article 96 CISA. the Council appointed Title VI as the legal basis for the whole SIS. Peers. it was recognised that SIS II should be regarded as having a dual legal basis. As we have seen in Chapter 3. the Commission had already underlined the dual function of the SIS. With regard to the legal basis of SIS II and the proposals which were necessary for the development of SIS II. 34 (2) c TEU. 2. According to Article 2 of both proposals. Schengen Information System: SIS II: technical innovation pretext for more data and control. for example 6164/5/01. the future goal of SIS II was described as the need for Member States to have in place “a joint information system enabling the authorities designated by them to have access. these broad 66 67 68 69 See also Statewatch. of the different proposals to extend the use of SIS II. 13 July 2000.69 In Article 1 of the proposed Regulation. on the basis of “preparatory work carried out over several years by the SIRENE Working Party”. Whereas.66 Even in July 2000. SIS II would have to allow for “certain new functions to be carried out taking into account new IT developments”. January–February 2001 (Vol. See. 29. access by Europol and Eurojust).2001. “Requirements for SIS II”. Member States forwarded different proposals on extending the use of the SIS. by means of an automated search procedure. 5 February 2002. Statewatch bulletin. others were gradually ‘incorporated’ in the draft texts on SIS II. to alerts on third-country nationals for the purpose of checks to be carried out at external borders and elsewhere in their territory. 24–25. forwarded by the Swedish and Belgian governments.New Functionalities for SIS and the Development of SIS II 87 basis for this Regulation. Developing SIS II as a ‘flexible tool’ Although the formal reason for SIS II was the technical need to make the SIS applicable to a larger group of states. and for the purpose of examining visa applications and applications for residence”. Article 1 of the proposed Decision referred to “the goal of maintaining public policy and security and enabling designated authorities to have access to alerts on persons and objects for the purposes of police and customs checks at the borders and elsewhere within their territory”. preamble 7 explicitly states that these instruments are without prejudice to the adoption of future legislation on the use and operation of SIS II. 6 November 2001 and 5968/02. from an early stage the development of SIS II has been used in political discussions on the proposals for new functions of the SIS. the French Presidency submitted a detailed overview. . 5. 1). Although the Regulation and Decision on the development of SIS II did not directly refer to possible extended functions.68 During the discussions on the anti-terrorism policy following 11 September 2001. several of these proposals were implemented with regard to the current SIS (for example. OJ C 183/12. Since these functional changes would require amendments to the CISA which were not feasible in the short term. The purpose of allowing for a multipurpose tool was more explicitly referred to in the earlier drafts of these instruments. 11. 10353/00.67 This list of proposals would be regularly updated in subsequent years.6. the Commission paved the way for qualified majority voting and a co-decisive right for the European Parliament. p. no. As we will see below. which was used as a basis for the discussions in the Council. the addition of new categories of data. Based on Council Decisions 2000/365/EC and Council Decision 2002/192/EC respectively. it was decided to instruct IT companies developing SIS II to design SIS II so as to allow for new requirements whenever these become necessary. the Ecofin Council reached formal agreement on new functions for SIS II with a view “to ensuring greater effectiveness in combating terrorism”. even if at political level the decisions on the final functions of SIS II were yet to be taken. Council Conclusions 10089/02 (Presse 181) based on the Presidential note to the Council. These conclusions were based on the Commission Staff working paper on the development of the second Generation Schengen Information System (SIS II) of 19 February 2003. adopted on 6 December 2001. Meeting of 5–6 June 2003 of the JHA Council. among others: the inclusion of biometric data. . both 70 71 72 Press release 14581/01 (Presse 444). (see below) we may wonder whether the description of “hit/no hit system” still applies. the possibility of interlinking different alerts and the possibility of running searches on the basis of incomplete data. security and justice”.3. of 7 June 2002. 9773/02.70 Despite these legal obstacles. See also the Note “Requirements for SIS” from the Belgian Presidency. In 2003. The Position of the UK and Ireland with Regard to Access to SIS II Parallel to the discussions on the new functions of the SIS. the JHA Council concluded that the new SIS II should remain “a hit/no hit system allowing for information exchange with a view to policing the free movement of persons as well to maintaining public security. 13269/01 SIS 95 COMIX 693 and updated in 14790/01 SIS 107 COMIX 767. these functions are included in the current texts of the Regulation and Decision on SIS II. Based on this decision. and in particular assisting national authorities in the fight against transnational crime. SIS II was technically developed to allow for various new functions. within reasonable time and without major additional costs and efforts. At its meeting of June 2003.71 These functions included. negotiations took place on possible access by the UK and Ireland to the SIS. at this meeting of 6 December 2001. Considering the current decisions taken with regard to SIS II. Press release 9845/03 (Presse 150). 5.88 Chapter 4 descriptions of the new functions of the SIS were deleted in the final texts. In June 2002. in the context of the EU objective to maintain and develop the Union as an area of freedom. except for the function of searching the SIS II on the basis of incomplete data.72 This would make it possible to develop SIS II as a “flexible tool that will be able to adapt to changed circumstances and fulfil. the Council agreed to study different options to expand the use of SIS II. user requests made during its lifecycle”. SEC(2003)206. 13530/01 and Note of 6 February 2003. but also for law enforcement purposes such as preventing and detecting crime. 24 October 2002. since their registration would not only be used for refusing entry. In different notes to the SIS/ Sirene Working Group. 1. using which the same group of persons could be traced for prosecution and law enforcement purposes. 6 February 2003. 43) according to which: “Maximum benefit should be derived from cooperation between Member States’ authorities when investigating cross-border crime in any Member States”. thirdly. 13482/02. According to the UK proposal.New Functionalities for SIS and the Development of SIS II 89 countries only take part in the provisions of the Schengen acquis on police and judicial cooperation. the UK presented its opinion regarding the proposed list of functions for SIS II.77 According to this note. . the UK government proposed amending the definition of the purpose of the SIS as described in Article 92 CISA to allow for SIS II “to be shaped into a robust system that. 7786/03 of 25 March 2003. used to prevent a defined group of third-country nationals from entering the Schengen territory. In February 2003. including the use of data on third-country nationals to be refused entry. From a merely administrative system.73 Despite this ‘outsider status’. firstly.74 In a note of 2003.75 Aiming for a “more flexible use of the data that will be held on SIS II”. Note on the development of SIS II. See Note of 29 October 2001. the SIS had to change into an intelligence system.2002. the UK referred to the two categories of Article 96 data: data concerning people who have been refused entry to the Schengen area because they constitute threats to public order. the first category of data should be accessible by law enforcement and immigration officers. 7. provides a technologically advanced tool for the investigation and rapid identification of suspect persons”. 6113/04. p.2000 and OJ L 64.6. From this proposal. the priority for the UK would be “to ensure that suspected criminals and terrorists 73 74 75 76 77 OJ L 131. 6113/03. national security and safety and data concerning people refused for immigration or visa offences. 2. The second category should only be accessible by immigration officers for the purposes of refusing entry. as well as from other proposals forwarded by the UK delegation. assists national authorities in the fight against transnational organised crime.76 Illustrative of the UK’s view with regard to the utility of the SIS is also the consideration of the UK delegation in a note of 2002 to the Schengen Acquis Working Group in which it advocated access by UK immigration and visa authorities to data in the SIS on stolen or lost passports. secondly. the UK government justified the extended use of the SIS by referring to the Tampere Conclusions of 1999 (conclusion no.3. the UK was actively involved in the discussion on the new functionalities of SIS II. facilitates efficient border controls and. it is clear that the UK envisaged altering the functioning of the SIS significantly. the regular rapporteur with regard to issues of the SIS and SIS II. 5.europa. This advice is only partially accessible via http://register. the EP had only a co-decisive role in the Regulation on SIS II and.eu (in fact. Carlos Coelho. according to which the provisions of the Dublin II Regulation did not prevent the UK and Ireland from requesting information and personal data from the other Member States on asylum seekers. . whether this is provided for in the applicable rules or not. 78 79 15058/05. the EP was allowed to consider the SIS II Regulation and Decision as a ‘package deal’. the whole content of the legal advice has been deleted). Based on the fact that these countries do not take part in the Schengen acquis with regard to immigration and border control. with few exceptions.79 The reason I refer to this advice is the additional consideration of the Legal Service. It would therefore be a benefit of all Schengen Members if UK immigration and visa authorities as well as the police could access this data directly”. In principle. Decisions 2000/365 and 2002/192. considerable technical skill and state of the art forgery detection equipment which ensures a high success rate in identifying forged passports and other travel documents. This explicit recommendation of the Legal Service to the authorities of UK and Ireland makes it clear that. however. The author has a Dutch version. Involvement of the European Parliament The EP has been involved in the development of the SIS and SIS II at different times. In practice. it should merely have been consulted. Our immigration service has extended experience. Member of the European Parliament (MEP) was.consilium .4. the Legal Service however concluded that their authorities could not have access to Article 96 data or.78 The UK and Ireland justified this request with their participation in the Dublin II Regulation. In 2005. the Legal Service of the Council submitted its advice to the Council with regard to the request from the UK and Ireland to grant their asylum authorities access to SIS II data on third-country nationals to be refused entry. Between 2001 and 2006. “including the information and personal data those states acquired through their right to access to the SIS II alerts on the refusal of entry”. on a bilateral or cross-organisational basis officials are able to obtain all the information they are seeking. in practice.90 Chapter 4 are identified and arrested before they have the opportunity to commit further crimes in the EU. based on an agreement with the Council and the Commission. with regard to the SIS II Decision and other third pillar measures changing the use and architecture of SIS II. 12 December 2005. with regard to SIS II. Article 15 data. arguing that this lack of clear criteria. Furthermore.New Functionalities for SIS and the Development of SIS II 91 In the report of 2001 on crossing external borders and the development of Schengen cooperation. 4 December 2002. the EP adopted a legislative resolution on the Spanish proposals for the Regulation and Decision on new functionalities of SIS on 17 December 2002.80 In this report. . 11 October 2001.OJ C77 28. In a new recital (3a). It is worth noting the minority opinion of two MEPs. rapporteur Carlos Coelho dealt for the first time with the SIS. the EP also held that extended access to stolen ID documents would risk increasing the existing problems of citizens whose identity and documents are being misused.82 This resolution. A5 -0333/2001.2002. Here. the resolution included additional conditions with regard to access by Europol and Eurojust to the SIS and with regard to the further use of the SIS data by those institutions. A5-0233/2001 adopted on 20 September 2001. which was adopted by a majority of 377 votes to 89.02.3. Coelho criticised the lack of uniform criteria for entering data on third-country nationals. adopted during its plenary session of 23 October 2001. attached to the EP resolution on SIS II. Although they found the amendments of the EP resolution an improvement over the current text. 9. the MEP noted that “decisions on the entry of data into the system can be taken at a relatively low level”. Given the many shortcomings in relation to the protection of data and the inadequate remedies available to persons whose data is in the SIS.2 above. its deficiencies and the need to improve the applicable rules on data protection and transparency. OJ C 11 2E/32. 80 81 82 Report of 21 June 2001. In this report.” Further. the use or the level of protection on personal data. Based on the co-decision and consultation procedures respectively. the EP added the general condition that the “introduction of certain new functions into the current version of the SIS shall not reduce the safeguards on accuracy. according to the MEP the current situation would fail to meet the level of protection required by the Charter of Fundamental Rights with potentially serious consequences for citizens. in particular in relation to ‘unwanted aliens’ would give the Member States too much freedom of interpretation.5. Report by Carlos Coehlo. A5-0436/2002. included amendments for a higher data protection level.81 Consulted by the Council according to the procedure given in Article 39 (1) TEU. In its legislative resolution. Maurizio Turco and Marco Cappato. they nevertheless proposed to reject the Spanish proposal as a whole. the EP adopted a legislative resolution on the Belgian-Spanish proposal for the Decision and Regulation for the development of the SIS II as referred in section 5. the EP demanded an extended role for the Joint Supervisory Authority during further negotiations on SIS II. the rapporteur was Christian von Boetticher. to adopt binding rules on data processing under the third pillar. In an effort to involve a wider audience in the development and decision-making regarding SIS II. as mentioned above. Furthermore. 7 November 2003.83 In general. 7. A5-0398/2003. his recommendation also supported the proposal.2003. Eurojust and the authorities dealing with residence permits. In its report on the second-generation SIS. the occasional legislative proposal emerging from the political discussions and closely-related questions such as the procedure to amend the SIRENE manual or the practical implementation of the European Arrest Warrant through the SIS. The Council should be called upon to make the SIS more reliable by harmonising and improving the quality of the data reported at national level by the SIRENE offices. the Spanish initiatives concerning the introduction of some new functions for the SIS (including those in the fight against terrorism). the LIBE Committee of the EP organised a meeting on SIS II on 6 October 2003.2004. the (plenary) EP agreed upon the need to extend the use of SIS II and even its inter-operability with other databases such as VIS and Eurodac.” Furthermore. a practice which jeopardised the rights of both European and third-country citizens.84 Coelho described this approach as “very opaque. p. since this would hamper a general understanding of the real implications of the decisions taken. and for eroding citizens guarantees regarding the processing of their personal data and the exchange of such data with third countries. 83 84 A5-0398/2003. He emphasised the need to distinguish the technical development of SIS II as such. it did criticise the so-called salami tactic or piecemeal approach of the Council with regard to current decisionmaking on the SIS. the definitions of “new functions for the Schengen Information System” and “fight against terrorism” were used as pretext both for extending access to the SIS (and its successor SIS II) by Europol. According to this minority report.92 Chapter 4 According to them. However. . the two MEPs underlined in their minority report the need to provide binding guarantees regarding the processing of personal data under the third pillar. On 20 November 2003.4. OJ 87.11. data currently reported by SIRENE are often incorrect or inaccurate and reported on the basis of different national legal systems. the EP adopted a recommendation on SIS II. Rapporteur Coelho referred to the different ideas pursued in different forums and with a different legal status. and the inclusion of biometric data (see Chapter 5).” The rapporteur further held that it is “not very democratic since formal legislative proposals only see the light of the day after years of discussion in various Council working groups and only when a consensus among Member States is reached. difficult to follow even by experts and completely incomprehensible for normal people. 12. 7. operation and use of the second generation Schengen Information System (SIS II). Purpose In December 2006. and the refusal to allow internal security agencies access to SIS II. these “informal trialogues” with the Commission and Council. A6-0353/2006 and A6-0355 of 13 October 2006. for example. this legislation process cannot be considered very transparent.87 According to Article 1 (2) of the Regulation. the Council adopted the final text of Regulation (EC) 1987/ 2006 on the establishment. The definition of the purpose of SIS II leaves the Member States a wide margin for interpretation. The addition of this latter goal illustrates the new emphasis on security in EU policy with regard to the use of databases such as SIS II. In general.86 6. the purpose of SIS II is “to ensure a high level of security within the area of freedom. the lifting of the territorial limitation in the right to legal remedies. Compared to the former rule in Article 93 on the use of SIS I.2006.New Functionalities for SIS and the Development of SIS II 93 The negotiations on the final outcome of the decision establishing the Regulation and Decision on SIS II was taken at the so-called tripartite meetings between the Council. Based on the reports of EP rapporteur Coelho. security and justice of the European Union. except that the new Regulation refers explicitly to the goal of “ensuring a high level of security”. the representatives of the three institutions try to reach a compromise which will be acceptable to all parties involved. with regard to the limitation of the conservation periods of alerts in the SIS.85 At these meetings. As this is generally drafted with great difficulty. Final Texts of the Regulation and Decision on SIS II 6. For example. 85 86 87 European Parliament legislative resolution on the proposal for a Council decision and Regulation on the establishment. operation and use of the second generation Schengen information system (SIS II).12. adopted on 25 October 2006. enable the rapporteur of the European Parliament to negotiate and to reach agreement on some amendments improving. . 28. the compromise text will not easily be rejected when it reaches the plenary session of the EP. using information communicated via this system. including the maintenance of public security and public policy and the safeguarding of security in the territories of the Member States” and to apply the provisions of Title IV of the EC Treaty relating to the movement of persons in their territories. the data protection rights of the data subjects. see further below. the Commission and the EP. The new definition of the purposes of SIS II is almost the same as the definition used in Article 93 CISA for SIS I.1. OJ L 381/4. which take place behind closed doors. On the other hand. the new provision is also not very precise. Note of the Austrian Presidency. the Commission proposal referred to the (proposed) Directive on return. other provisions of the Commission proposals were also changed in accordance with the original CISA rules. 31 May 2005 and the Opinion of the JSA on the proposed legal basis for SIS II. With regard to third-country nationals subjected to a re-entry ban. Final Criteria: The Individual Assessment and Proportionality Clause Article 24 of the Regulation on SIS II includes the criteria on the “conditions for issuing alerts on refusal of entry or stay” This provision includes in general the same categories as provided for in Article 96 CISA.2. 27 January 2006.90 It is however also reasonable to believe that Member States were reluctant to amend their national rules with regard to the criteria on listing third-country nationals as inadmissible persons.88 The draft Regulation of the European Commission of May 2005 (see the texts at the end of this chapter). see further Chapter 8. 5 and the Austrian proposal 5709/06. COM (2005) 236.94 Chapter 4 6.1.2. According to the Austrian Presidency. 5596/06 27 January 2006. Commission Proposal – Trying to Harmonise National Criteria The adoption of the Regulation on SIS II would have been a good opportunity to provide for harmonised criteria for the registration of third-country nationals to be refused entry. the opposition to the Commission’s approach for more harmonisation was based on the concern of the ‘various’ governments that the drastic departure from the provisions of the existing Schengen Acquis “might needlessly jeopardise the smooth transition from the first generation SIS to the second generation and would also mean a degradation of the effectiveness of the system compared to the existing SIS”. 22. Criteria for Third-Country Nationals to be Stored in SIS II 6. 6. 27 September 2005. Like the latter provision. 20 April 2006. with regard to the penalties for which a person was sentenced and for which he or she could be recorded in the SIS.89 In addition. p. Article 15 was more or less redrafted in the same wording as Article 96 CISA. the data protection authority responsible for controlling CSIS. in a text forwarded by the Austrian Presidency in January 2006.2. The EU Member States were unable (or unwilling) to reach agreement on the proposal from the Commission and. The need to provide for more standardised criteria has been advocated both by the European Commission and by the Joint Supervisory Authority of SIS. For example. the Commission proposal referred to the offences listed in the Council Framework Decision 2002/584 on the European Arrest Warrant. p. provided for a further harmonisation of the grounds for issuing alerts to third-country nationals to be refused entry. Article 24 (1) stipulates that data on third-country nationals shall be reported 88 89 90 Recital 10 of the draft Regulation. . See the Discussion note 8537/06.2. This new provision makes it clear that national authorities cannot report third-country nationals “automatically” on the basis of another decision which is taken with regard to this person . Even if the formulation of the final text of Article 24 is less clear. There should be a direct relationship between the reason for which a person is to be reported in SIS II and the added value or effect the registration will have for the reporting national authorities. the national authorities will have to consider whether the national criteria and the criteria of the Regulation are met and whether the reasons at stake merit registration in SIS II. for example an expulsion decision. this does not mean that the new requirement of an individual assessment for each national decision on which an alert can be issued is any less imperative.New Functionalities for SIS and the Development of SIS II 95 into SIS II on the basis of a national alert resulting from a decision taken by the competent administrative authorities or courts in accordance with the rules of procedures laid down by national law. This provision goes further than the clause which was included in Article 94 (1) CISA. relevant and important enough to warrant entry of the alert in SIS II”. For each individual case. according to this latter provision Member States issuing an alert should determine in advance whether the case is “important enough to warrant the entry of the alert in the SIS”. Article 24 (2) of the Regulation includes two main categories of reasons for which an alert as understood in this provision can be 91 5709/6/06. The new Article 21 provides: “Before issuing an alert. Both rules – the individual assessment requirement and the proportionality clause – are important limitations on the power of national administrations to enter information on third-country nationals (or other persons. The final text of Article 24 states that a SIS II alert shall be based “on a national alert resulting from a decision taken by the competent administrative authorities or courts in accordance with the rules of procedure laid down by national law taken on the basis of an individual assessment”. according to which a national decision to issue an alert should be taken “on the basis of an individual assessment”. With the addition of the criteria of ‘adequacy’ and ‘relevance’. when dealing with the Decision on SIS II) into SIS II. this new condition was provided in a separate sentence: “The decision may only be taken on the basis of an individual assessment”. As we have seen above.91 In a draft of the Regulation regarding SIS II of June 2006. Member States shall determine whether the case is adequate. What is new compared to Article 96 CISA is the provision in Article 24 (1). As in Article 96 CISA. This individual assessment requirement should be read together with the so-called proportionality clause in Article 21 of the SIS II Regulation (and SIS II Decision). June 2006. the new provision makes it clear that the importance of the case or matter for which a person is to be reported is not enough. . three years after the date of its application. an alert can be registered in SIS II when the decision referred to in the first paragraph of Article 24 was based on the fact that the third-country national was subject to measures involving expulsion. the Commission shall. On the basis of that review. with regard to this category as well. SIS II and Terrorist Lists The Regulation on SIS II provides for a new category of third-country nationals to be refused entry or stay. a third-country national who has been convicted of an offence by a Member State. third-country nationals may also be registered in SIS II for other reasons based on public order or security grounds. the Commission and the EP insisted upon the inclusion of a sunset clause in Article 24 (5). including or accompanied by a ban on entry or. refusal of entry or removal which have not been rescinded or suspended. “make the necessary proposals to modify the provisions of this Article to achieve a greater level of harmonisation of the criteria for entering alerts”. Article 24 (2) (b) of the SIS II Regulation only refers to “clear indications of an intention to commit such offences”. a third-country national in respect of whom there are serious grounds for believing that he has committed a serious criminal offence or in respect of whom there are clear indications of an intention to commit such offences on the territory of a contracting party. using its right of initiative under the EC Treaty. Therefore. 6. a ban on residence based on a failure to comply with national regulations concerning the entry or residence of third-country nationals. Firstly. the clear indication of such intention is considered sufficient for registration in SIS II. stating that national decisions to issue an alert may only be taken on the basis of an individual assessment. To compensate for the lack of harmonised criteria in the current provision of Article 24 of the SIS II Regulation. Where Article 96 (2) (b) requires that a decision to report a person in the SIS should be based on “a clear evidence”. These criteria are the same as provided for in Article 96 (3) CISA except that. As in the former Article 96 CISA. This means that under the new provision. This situation shall arise in particular (italics mine) in cases of: a. the new criterion mentioned above applies. alerts may be reported in SIS II when the decision is based on a threat to public policy or public security or to national security. the criteria as mentioned above are not limitative. which the third-county national on national territory may pose. This requires the Commission to evaluate the application of this provision.96 Chapter 4 registered in SIS II. Article 26 provides that a third-country national may . What exactly will fall under “clear indications” is not further specified. carrying a penalty involving imprisonment of at least one year. b. where applicable. Secondly.2.3. EU Citizens and Privileged Third-Country Nationals Unlike the CISA provisions. according to the new Article 25. 92 Directive 2004/38 provides rules on the freedom of movement of EU citizens and their family members (dealt with in Chapter 9).92 A new paragraph 2 has been added to Article 25 providing that. refers to persons listed on the EU terrorist lists based on decisions by the Sanctions Committee of the Security Council of the United Nations. This new category. such as fingerprints. In the first place. that an alert cannot be reported without the information on the name and sex of the person. It is unclear how persons listed on the EU or UN terrorist list can be registered in SIS II without their names or reference to the action to be taken. enjoys rights of free movement equivalent to those of citizens of the European Union”. an alert concerning a thirdcountry national who is a beneficiary of the Community right of free movement within the meaning of Directive 2004/38 shall be grounded “in conformity with rules adopted in implementing the Directive”. in cases of a hit or alert concerning a beneficiary of freedom of movement. . 6. Article 3 (d) of the SIS II Regulation provides a narrow definition of “third-country nationals”.3. in accordance with the provisions of the SIRENE Manual in order to decide without delay on the action to be taken. According to this definition a third-country national is an individual who is neither “a citizen of the European Union within the meaning of Article 17(1) of the Treaty. the Member State concerned will immediately consult the issuing Member State. a reference to the decision giving rise to the alert and the action to be taken. nor a national of a third country who. which was also included in the Commission proposal. unless it is the intention of Member States to enter these persons in SIS II solely on the basis of the use of their biometric data. Furthermore. and these countries. This consultation is to take place by means of its national SIRENE office. Importantly. The final text of the Regulation further includes the obligation for Member States to erase alerts on persons as soon as the Member State issuing the alert becomes aware that the person has acquired EU citizenship (Article 30). the new Regulation provides for explicit rules with regard to the registration of third-country nationals who are beneficiaries of EU law or who have obtained EU citizenship. Article 26 includes an exception to the general rule of Article 23. However. under agreements between the Community and its Member States on the one hand. including those implementing a travel ban issued by the Security Council of the United Nations. on the other.New Functionalities for SIS and the Development of SIS II 97 be registered in SIS II if he or she is the object of a restrictive measure intended to prevent entry into or transit through the territory of Member States. This has been clarified by the ECJ in 2006 in the case Commission v. the SIS Working Group discussed the possibility of adding DNA profiles and/or fingerprints to the reports held in SIS II. 9845/03 (Presse 150).4.94 During the Ecofin Council of 20 June 2002. an independent EU advisory body on data protection and privacy. it was agreed that identification material.eu/justice_home/fsj/privacy/workinggroup/index_en. as proposed by the Commission.95 Whether on the basis of the outcome of this (unpublished) study or not.98 Chapter 4 the final text no longer includes the obligation. the ECJ ruled that the refusal of entry or a visa to a third-country national who is a family member of an EU citizen infringes upon the rights of these persons under EC law when this measure is solely based on the listing in the SIS. this subject (the purposes of SIS) had only been dealt with using a piecemeal approach. the JHA Council finally decided at its meeting of 5–6 June 2003 that SIS II should allow for the storage. 9773/02.96 Initially. Inclusion of Biometrics in SIS II as an Identification Tool As far back as October 2000.2. 23 March 2005 (also referred to in Chapter 7) and Opinion 6/2005 on the Regulation and Decision on SIS II of the Article 29 Data Protection Working Party Data.98 Despite these critical observations by both data protection authorities and IT 93 94 95 96 97 98 31 January 2006.htm.europa. see p. in a note of July 2004. 12400/00. also to erase the data on third-country nationals who become family members of EU citizens. section 2. notably photographs and fingerprints. 25 November 2005. The European Data Protection Supervisor and the Article 29 Working Party. so far. could in principle be incorporated into alerts on persons. 11055/04. The registration of this category of persons may lead to situations which are in breach with the Directive 2004/38. See. 10089/02 (Presse 181). C-503/03.93 In this judgment. criticised the use of biometric identifiers because technological reliability would not allow for secure and reliable identification. the Dutch Presidency confirmed that biometric identifiers would only be used for verification purposes. Brussels. . further on this judgment. but that a technical feasibility study would be awaited. transfer and possible querying of biometric data. acknowledging that. the conclusions of which were adopted by the Ecofin Council. especially photographs and fingerprints. Opinion of the European Data Protection Supervisor on VIS. 6.97 This note dealt specifically with the question of whether the SIS II would become a tool for investigative purposes. Chapter 9. See also the earlier opinions of this Working Party with regard to the use and storage of biometric data available at: http://ec. Spain. 4.3. . Article 22 (c) reads. fingerprints may also be used to identify a third-country national on the basis of his biometric identifier. Apparently. the final text includes the condition that before this option is implemented. such as first name or surname. as supplementary information to the SIS information.99 Initially. it became clear during the negotiations that the majority of Member States favoured the use of biometrics as a primary search tool. under pressure from the EP. some Member States decided to start exchanging fingerprints and photographs. The final text of the Regulation on SIS II more or less follows the former provision included in Article 101 CISA. on which the European Parliament shall be consulted. Authorities Allowed Access to SIS II According to the original proposal by the Commission of May 2005. Before this functionality is implemented in SIS II. 9696/1/06. Article 27 (1) of the SIS II Regulation states that access to data entered in SIS II and the right to search such data directly or in a copy of SIS II data: “shall be reserved exclusively (italics mine) for the authorities responsible for the identification of third-country nationals for the purposes of: 99 100 101 8537/06. “as soon as this becomes technically possible” fingerprints may be used as sole identifier. the Council agreed on this point at its meeting of 10 June 2006. the law enforcement authorities in the SIRENE offices use the socalled ‘SIRPIT ’ method (SIRene PIcture Transfer). the Commission has to report to the Council and the EP on the availability and readiness of the required technology. 20 April 2006.New Functionalities for SIS and the Development of SIS II 99 experts. Participation in the project is voluntary and in 2006 it was only used by a limited group of Member States. in future.” Based on an Italian proposal of 28 March 2006.101 6.5. Article 22 (b) of the SIS II Regulation only allows for the use of photographs and fingerprints to confirm the identity of a third-country national “who has been located” as a result of an alphanumeric search of SIS II. the Commission shall present a report on the availability and readiness of the required technology. For the exchange of these photographs and fingerprints.100 SIS II will then be searchable solely on the basis of fingerprints without the need for further information. the Council for Justice and Home Affairs agreed upon a recommendation to extend the use of this method to other Member States as well. information on third-country nationals stored in the SIS would only be accessible to the authorities responsible for border controls and to authorities issuing visas. Article 22 (c) of the Regulation does however include the option that. During the negotiations on the development of SIS II. “as soon as this becomes technically possible. In June 2006. in the performance of their tasks. border control in accordance with the Schengen Borders Code102 and: b.2. The reference in Article 27 (2) to “coordinating authorities” is however new and was added shortly before final adoption of the text. other police and customs checks carried out within the Member State concerned. Chapter 5. 21 August 2006. 6811/05. and the coordination of such checks by designated authorities. See below. The final text of the SIS II Decision does not allow intelligence services to have access to SIS II. The same provision includes the right to access and to direct search by “authorities responsible for issuing residence permits and for the administration of legislation relating to third-country nationals in the context of the application of the Community acquis relating to the movement of persons”. 12260/06. as provided for in national legislation. 102 103 104 105 Community Code on the rules governing the movement of persons across borders.2006. 5709/6/06. and by their coordinating authorities. including data on third-country nationals based on Article 24 of the Regulation. 13. included this extended use of data on third-country nationals. including those responsible for the initiation of public prosecutions in criminal proceedings and judicial inquiries prior to charge.100 Chapter 4 a. However.4. in order to give national intelligence services access to alerts held in the SIS II.105 In June 2007. . We will see in Chapter 5 that in 2005 the Council agreed that internal security agencies would be allowed access to the Visa Information System or VIS. This provision was already included in Article 101 (2) CISA. Article 27 (2) provides for access to SIS II by “national judicial authorities. Finally. Conclusions of the Council. access by the judicial authorities was already made possible by virtue of Article 101 (1) CISA as amended by the Regulation 871/2004. 27 January 2006. As mentioned above. Furthermore. implies access to “designated authorities” for the purpose of coordination of police and customs checks. Article 28 of the SIS II Regulation repeats the general principle of Article 101 (3) CISA and states that “users may only access data which they require for the performance of their tasks”. See also the draft of the Austrian Presidency of January 2006 which. as we have seen above. even if the texts is not clear. Article 27 (3) provides that authorities issuing visas and central authorities examining visa applications shall have access to the data entered in SIS II as well as the right to search these data directly. OJ L 105.” As we have seen above. section 3. for the first time. It is a vague concept and leaves unclear which authorities exactly will fall within this description. 5709/06. the German government proposed amending Article 37 of the SIS II Decision. Article 27 (1) (b) of the SIS II Regulation.”103 In addition.104 This proposal was rejected by the European Parliament. it seems unlikely that the information held in SIS II will remain inaccessible to national security and intelligence agencies. the possibility of interlinking different alerts within SIS II has long been on the agenda. This includes the possibility for the authorities. EU national offender + convicted companion to be refused entry (95–96). Interesting examples of such cases in which information in the SIS II may be linked to information on other persons or even objects were described in a note from the Dutch Presidency dated 30 November 2004. the note gave the following examples (between brackets are the former provisions of CISA): 1. parent to be refused entry + a missing child (96–97). “Internal security agencies’ was now replaced by this more vague ‘designated authorities’. 106 107 Press release JHA Council. see Chapter 7. 12573/2/04. according to this Regulation. Finally. 10267/07 (Presse 125). In Article 18 (2) of its proposal. 12 November 2004. 12–13 June 2007.107 This note listed which alerts (including registrations on persons wanted for secret surveillance.106 Article 39 of the SIS II Regulation explicitly prohibits the transfer of data processed in SIS II. With regard to the registrations based on Article 96 CISA. p. Interlinking of Alerts As we have seen above. the Commission proposed granting asylum authorities access to the data on third-country nationals in SIS II for the implementation of the Dublin II Regulation. in order to enable them to establish which state is responsible for the asylum application. In practice. and the proposed interoperability between SIS and VIS. when reporting a person in SIS II on the basis of the defined categories of reasons. missing children or stolen identity documents) can be linked to other categories of data.6. to third parties or to international organisations. . 6. This decision could be based on the fact that the Regulation on the EU Visa Information System (VIS). already provides for access by asylum authorities and thus offers those authorities information on which Member State issued a visa to the person concerned. 2. 15. this new option included in the SIS II Regulation and Decision will significantly amend the original function and purpose of SIS.New Functionalities for SIS and the Development of SIS II 101 the Council formally adopted the decision granting “designated authorities of the Member States” access to VIS. In the light of these developments. This option was deleted from the later proposals. 3. to enter an additional link to data on other persons as well. This provision was included following the proposal by the European Parliament. family members (96–96). These national interfaces will not hold the SIS data. persons to be refused entry + a witness in an illegal immigration case (96–98). 7. If another Member State considers that the creation of a link between alerts is incompatible with its national law or international obligations. These national copies include a complete or 108 See also the Commission Staff Working Paper of February 2003. authorities with no right to access to certain categories of alert shall not be able to see the link to an alert to which they do not have access. This means that national authorities having access to SIS II will only gain access to the linked data if they are authorised to have access to the categories of data involved. Article 37 (6) stipulates that it may take the necessary measures to ensure that there can be no access to the link from its national territory or by the authorities located outside its territory.2002. COM SEC (2003) 206 attached to 6615/03.SIS II) on the other hand. the link may only be created “when there is a clear operational need”. consisting of a technical support system (referred to as CS-SIS) and uniform national interfaces (NI-SIS) on the one hand.2. . 8. It will include a central system (the Central SIS II). as part of the N. Furthermore. In this structure. This provision does not require national authorities to forward any reason why they create an alert between two or more alerts but.7. It is unclear how this provision should be implemented in practice. Change of Architecture The structure of the current SIS includes a network between the central SIS (C-SIS) in Strasbourg and the national SIS (N-SIS) in each Schengen State (Article 4 (1) of the SIS II Regulation). husband is convicted criminal to be refused entry + wife is suspected terrorist (96–99). 6. the C-SIS contains exactly the same data as every national SIS database. Based on the SIS II Regulation and Decision. 28. person to be refused entry + suspects in illegal immigration case (96–99). The text as finally included in Article 37 of the SIS II Regulation includes a general power for a Member State to “create a link between alerts it enters in SIS II”. and national sections (N. according to Article 37 (3).108 The difference compared to the current SIS will be that the SIS alerts forwarded by the Member States are inserted in the CS-SIS via the national interfaces. but Member States may choose to maintain. a “national copy” of the SIS database “for their own account and at their own risk”. according to Article 37 (4). 6. 5.SIS II. SIS II will maintain more or less this same structure.102 Chapter 4 4. person to be refused entry using stolen identity document (96–100). person to be refused entry using own car/boat/aircraft (96–99). Whether this change will improve accessibility and the exchange of information through SIS II in practice is unclear. This Management Authority will be responsible for the operational management of the Central SIS II. security and the coordination of relations between Member States and the provider.9. 6. The Commission remains responsible for “all other tasks relating to the Communication Infrastructure” including the implementation of budgetary and contractual matters. the EP. The proposal to establish this Management Authority was first mentioned in May 2006 in the Austrian Presidency note on the issue of the long-term management of SIS II. . or using the so-called national copies. Austria (Article 4 (3) of the SIS II Regulation). Evaluation and Publication of Statistics on SIS II According to Article 50 (3) of the Regulation on SIS II.8. the Council proposed the establishment of a so-called Management Authority. a back-up CS-SIS is provided in Sankt Johann im Pongau. For security reasons.New Functionalities for SIS and the Development of SIS II 103 partial copy of the data held in the reference database of CS-SIS. France. the Management Authority is to publish statistics each year showing the number of records per 109 9169/06. among other things. However. The information stored in SIS II will be searchable either through the “uniform national interfaces” in each Member State. The location of the Central SIS II remains in Strasbourg. 6. as previously mentioned. In a joint declaration annexed to the Regulation. for the supervision. This Authority also will have responsibility for the EU data systems VIS and Eurodac (see Chapter 5). Establishment of the Management Authority In the original proposal by the Commission (COM (2005) 236) it was envisaged that the Commission itself would be responsible for the operational management of the SIS II. the Council and the Commission agreed upon the swift adoption of the legislation necessary for the establishment of this Authority. for information exchange between the national SIRENE offices. 15 May 2006. The SIS II Regulation does not include further rules on the composition of the Management Authority or how it will be appointed. The new structure means that the original choice of a central SIS with exact copies at national level has been abandoned. Member States may choose to maintain national copies of SIS for their own account. A communication infrastructure exists between CS-SIS and NI-SIS which allows. Since the negotiating Member States feared that this would give the Commission too much power to control the management of SIS II.109 Article 15 of the SIS II Regulation provides for the creation of this Management Authority. the proposals then under discussion would alter the purpose of SIS. Three years after SIS II becomes operational and every four years thereafter. The Commission warned against the duplication of other information systems in the European context. the number of hits per category of alert and how many times SIS II was accessed. Comparing SIS I and SIS II 7.4 and 8. in 2003. whether existing or planned systems. section 8. For now. Just two years later. transforming it from a reporting system to a reporting and investigating system. The duty to provide statistics on the use of SIS II is an important tool in assessing the added value of SIS II. referring to the fact that SIS provides only clearly defined and relatively simple information on a hit/no hit basis.1. according to the current text.5. it is stipulated that the Commission must evaluate the rules on remedies as provided in this Article by 17 January 2009.12. Two years after the start of SIS II. the European Commission displayed some caution with regard to changing the original structure and purpose of SIS. the Management Authority is to produce an overall evaluation of Central SIS II and the bilateral and multilateral exchange of information between Member States. the Commission presented a much broader view of SIS in its Staff 110 COM (2001) 720. In the Communication on the Development of SIS II of December 2001. 7. the Commission stressed that SIS is not an end in itself.2001. Dealing with the appropriate legal basis for SIS. it is relevant to note that according to Article 43 (3) of the Regulation on SIS II. the Management Authority will have to submit a report on the technical functioning of the Central SIS II and on the bilateral and multilateral exchange of supplementary information between the Member States (Article 50 (4)).104 Chapter 4 category of alert. 18. However. I will describe the provisions concerning the rights of third-country nationals and the legal remedies in Chapter 7. the Commission emphasised that the current SIS (SIS I) is a reporting system. . the nationalities of the persons stored in SIS II or the decisions or measures based on which a national alert was registered in SIS II. neither the statistics from the Management Authority nor the evaluation by the Commission will include information on the authorities which gained access to SIS II.110 In the view of the Commission. but is meant to support the implementation of the measures and forms of cooperation referred to in the CISA. Changing the Purpose of SIS Initially. During the discussions on the new functionalities of the SIS. This structure of SIS I provides for restricted categories of 111 See the Commission Staff Working Paper on the development of the second generation Schengen Information System. allowing for the storage of increasingly detailed information. including State security. which is attached to the Council document 6615/03. flexible system based on new technology”. The most important changes in this regard are the addition of information on the person or object registered in SIS II. this definition of the purpose of SIS I must be read in combination with the purposes for which each category of objects or persons are registered in the SIS. 28 February 2003. as described in Articles 95–100 CISA. Initially. Interpol. Member States referred to this broad purpose to justify the extension of the use and storage of information in the SIS. These proposals were often initiated on the basis of current developments or demands from national authorities. During the discussions on new functionalities for SIS. The multiple use of SIS is especially invoked by increasing the range of authorities with the right to access SIS information. the SIS should be developed into an information system which would have to be “a new. . the inclusion of photographs and fingerprints. Member States were slow to reach agreement on these proposals because this would require time-consuming amendments to the CISA.New Functionalities for SIS and the Development of SIS II 105 Working Paper on SIS II. Despite the numerous proposals which have been made by national delegations. with regard to persons in SIS II.111 According to this paper. including Europol. described in Article 93. the decision-making process was speeded up because the new proposals on extending the use of the SIS were deemed necessary to combat terrorism and to detect possible terrorists at an early stage. including information on other alerts in SIS II and. After 11 September 2001. The changed attitude of the Member States towards the new functions of the SIS and SIS II were of course also influenced by the progress which had been made in the use of technology. However. which would not only enable the further integration of new users and functions but also. 18. national vehicle registration authorities and Eurojust. and to implement the provisions of this Convention concerning the movement of persons in the territory of the Member States concerned by means of information transmitted via this system.2. the Member States seemed less concerned with the benefits of a restricted function of the SIS and proposed not only new categories of data to be registered but also new users. SEC (2003) 206. In Chapter 3 we saw that the general goal of the current SIS. is to maintain public order and safety. would not require too long implementation time frames in the future”. compared to the current SIS. the categories of data to be registered in SIS II remained almost unchanged. 2002 Progress Report.2003. “in the light of events such as those of 11 September. for judicial authorities. This power to create links between different categories of data held in SIS II will undoubtedly increase the investigative use of the SIS. This explicit restriction of the scope of SIS I was based. This broadening of the future use of data recorded in SIS II is also implied by the possibility of linking different categories of SIS II alerts. Changes with Regard to the Storage and Use of Data on Third-Country Nationals Aside from the general changes to the functioning of SIS II. in principle. . seems to have been abandoned.2. Article 27 of the Regulation 1987/2006 allows police and customs authorities ànd national judicial authorities to have access to data on third-country nationals in SIS II. With regard to SIS II. As we have seen above. on the need to keep the information system accurate and workable. The access for judicial authorities was already provided for in Regulation 871/2004 extending the use of SIS I. the amendments with regard to the alerts on third-country nationals received little attention.112 The combination of the possibility of creating links. as well as national law enforcement authorities. the (future) use of biometric data as sole identifier and the access granted to other authorities such as Europol. among other things. 7. during their research for the initiation of public prosecutions in criminal proceedings. an important change with regard to SIS II alerts on third-country nationals is the increase in the range of authorities with access to these data. the close relationship between the general purpose of SIS II and the purposes as defined for each category of alerts. only accessible to limited categories of users. has actually changed the original function of SIS. 112 See also Hayes (2005). registered for another purpose. Eurojust and other authorities to SIS in general. SIS II has been transformed into a general search or intelligence tool. Article 96 alerts in SIS I were only accessible to national authorities responsible for border. this allows national authorities to check whether an alert on a person or object registered in SIS II is somehow related to another person or object in SIS II.106 Chapter 4 persons and objects stored in SIS. The rules on the different categories of data as provided for in the Regulation and the Decision on SIS II do not explicitly require the registration of these data to be for the sole use or purpose as defined in that provision. From a hit/no hit database. this information is. The information stored in the SIS II may be used for checks within the country and. immigration or visa control. Compared to the extended discussions which took place regarding the decision to grant access to Europol. In Part III we will see that this “systematic” approach with regard to the use of the SIS and SIS II is also advocated by governments at the national level. national authorities were invited to enter data into SIS II systematically or.1. these provisions. to enter data “as automatically as possible”. this extension of the use of data on third-country nationals would run counter to the explicit refusal of the European Parliament to grant national intelligence services access to SIS II. Together with the proportionality clause in Article 21. above). There remains however a striking contradiction between the requirement of individual assessment and the proportionality clause. Although this text of Article 27 has been approved by the European Parliament. as we saw in Chapter 3. and an agreement by the Member States reached during the discussions on SIS II and the fight against terrorism on the other hand. requiring no additional operation by the national authority concerned (see section 3. if applied correctly. must be interpreted as an important limitation of the power of national authorities to list third-country nationals in SIS II for refusal of entry or residence. . in the final decision the definition “internal security agencies” has been replaced by “designated authorities”. this already had been achieved in practice with regard to SIS I on the basis of an informal agreement.New Functionalities for SIS and the Development of SIS II 107 The text of the SIS II Regulation also seems to imply access for national security agencies. Based on this latter agreement. What is also new is the provision in the SIS II Regulation according to which a third-county national listed on a UN terrorist list based on Member States notifications may be registered in SIS II for the purpose of refusal of entry or residence. on the one hand. Considering the legal protection of third-country nationals. the new explicit provision may give rise to a more extended application of this option. Article 27 (1) (b) grants access to authorities responsible for the identification of third-country nationals for the purpose of police and customs checks. As mentioned above. an important improvement is the new requirement for national authorities to make an individual assessment before reporting a third-country national in SIS II. Although. and “the coordination of such checks by designated authorities”. during the negotiations on VIS and its use by internal security agencies. in other words. This situation shall arise in particular in the case of: . An alert shall be entered where the decision referred to in paragraph 1 is based on a threat to public policy or public security or to national security which the presence of the third-country national in question in the territory of a Member State may pose. Operation and Use of SIS II: Article 21 Proportionality Before issuing an alert. If the presence of the third-country national in the territory of a Member state represents a serious threat to public policy or public security of any Member state based on an individual assessment. i. The third-country national is the object of a restrictive measure intended to prevent entry into or transit through the territory of member states. Appeals against these decisions shall lie in accordance with national legislation. Member States shall issue alerts in respect of third-country nationals for the purpose of refusing entry into the territory of the member states on the basis of a decision defining the period of refusal of entry taken by the competent administrative or judicial authorities. taken in accordance with Article 15 of the EU Treaty. relevant and important enough to warrant entry of the alert in SIS II. Data on third-country nationals in respect of whom an alert has been issued for the purposes of refusing entry or stay shall be entered on the basis of a national alert resulting from a decision taken by the competent administrative authorities or courts in accordance with the rules of procedure laid down by national law taken on the basis of an individual assessment. ii. Article 24 Conditions for issuing alerts on refusal of entry or stay 1.108 Chapter 4 Annex I to Chapter 4 Commission Proposal for a Regulation on SIS II. Member States shall determine whether the case is adequate. in particular if. b. If the third-country national is the subject of a re-entry ban in application of a return decision or removal order taken in accordance with Directive 2005/XX/ EC [on Return]. COM (2005) 236 Proposed Article 15 on the conditions for issuing alerts on refusal of entry or stay of the: 1. a. 2. in the following cases. The third-country national has been sentenced to a penalty involving deprivation of at least one year following a conviction of offence referred to in Article 2 (2) of Council Framework decision 2002/584/JHA on the European arrest warrant and the surrender procedures between member states. Regulation 1987/2006 on the Establishment. including measures implementing a travel ban issued by the Security Council of the United Nations. 2. This Article shall not apply in respect of the persons referred to in Article 26. a third-country national who has been convicted in a Member State of an offence carrying a penalty involving deprivation of liberty of at least one year. Article 26 Conditions for issuing alerts on third-country nationals subject to a restrictive measure taken in accordance with Article 15 of the Treaty on European Union 1.New Functionalities for SIS and the Development of SIS II 109 a. a prohibition on residence. alerts relating to third-country nationals who are the subject of a restrictive measure intended to prevent entry into or transit through the territory of Member States. . within the meaning of Directive 2004/38/ EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States [18] shall be in conformity with the rules adopted in implementation of that Directive. b. 5. taken in accordance with Article 15 of the Treaty on European Union. On the basis of that review. insofar as data-quality requirements are satisfied. the Commission shall. 4. The Commission shall review the application of this Article three years after the date referred to in Article 55(2). Where there is a hit on an alert pursuant to Article 24 concerning a third-country national who is a beneficiary of the right of free movement within the Community. through its SIRENE Bureau and in accordance with the provisions of the SIRENE Manual. refusal of entry or removal which has not been rescinded or suspended. in order to decide without delay on the action to be taken. the Member State executing the alert shall consult immediately the issuing Member State. a third-country national in respect of whom there are serious grounds for believing that he has committed a serious criminal offence or in respect of whom there are clear indications of an intention to commit such an offence in the territory of a Member State. be entered in SIS II for the purpose of refusing entry or stay. An alert concerning a third-country national who is a beneficiary of the right of free movement within the Community. make the necessary proposals to modify the provisions of this Article to achieve a greater level of harmonisation of the criteria for entering alerts. 3. shall. based on a failure to comply with national regulations on the entry or residence of third-country nationals. where applicable. Article 25 Conditions for entering alerts on third-country nationals who are beneficiaries of the right of free movement within the Community 1. using its right of initiative in accordance with the Treaty. An alert may also be entered when the decision referred to in paragraph 1 is based on the fact that the third-country national has been subject to a measure involving expulsion. that includes or is accompanied by a prohibition on entry or. Without prejudice to Article 25. updating and deleting these alerts on behalf of all Member States shall be designated at the moment of the adoption of the relevant measure taken in accordance with Article 15 of the Treaty on European Union. . Article 23 shall not apply in respect of alerts entered on the basis of paragraph 1 of this Article. The Member State responsible for entering. 3.110 Chapter 4 2. Decision 2000/365 OJ L 131 1. Adopted Law with regard to SIS I and SIS II SIS I 13 June 2002 Council OJ L190/1. Priority to develop SIS II in 2006.New Functionalities for SIS and the Development of SIS II 111 Annex II to Chapter 4 A.6.2002 29 April 2004 JHA Council OJ L 162. Regulation 871/2004 and Decision concerning the introduction of some new functions for the Schengen Information System. 30.03. 25.07. 18.2000 Decision concerning the request of the UK to take part in some of the provisions of the Schengen aqcuis.2004 25 February 2005 JHA Council OJ L 68/44. unpublished Decision to develop SIS II. including in the fight against terrorism. 9118/01 (Presse 203) .2005 SIS II 19 December 1996 Schengen Executive Committee 29 May 2000 Council 28–29 May 2001 JHA Council Framework decision on the European Arrest Warrant: authorising judicial authorities to issue alerts on persons in SIS for the purpose of surrender procedures. including in the fight against terrorism.04. Council Decision 2005/211 concerning the introduction of some new functions for the Schengen Information System. especially photographs and fingerprints.112 Chapter 4 Annex II.2001 6 December 2001 JHA Council 20 June 2002 Ecofin Council 10089/02 (Presse 181) 5–6 June 2003 JHA Council 9845/03 (Presse 150) 5–6 October 2006 JHA Council 13086/06 (Presse 258) 20 December 2006 Council OJ L 381/4 28. Adoption of Regulation 1986/2006 regarding access to SIS II by the services responsible for issuing vehicle registration certificates.2006 20 December 2006 Council OJ L 381/1 28. Adopted Law with Regard to SIS I and SIS II OJ L 328.12. Adoption of Regulation 1987/2006 on the establishment. 13. deciding that SIS II should be operational by June 2008. Agreement on principle of entering “identification material. Final decision on SIS II allowing for storage. operation and use of SIS II.) A. Agreement on principle of allowing access to data in SIS on the basis of incomplete data. notably photographs and fingerprints” into SIS.12. Adoption of revised implementation schedule for SIS II. transfer and possible querying of biometric data. (cont.2006 Regulation 2424/2001and Decision 2001/886 on the development of the second generation SIS (SIS II).12. . Adding DNA profiles and/ or fingerprints to SIS.6. Authorise Europol to consult SIS and. inclusion of fingerprints and photographs. . Interlinking of data. Full recording of all SIS searches to improve control of unauthorised access. make Europol responsible for performance of CSIS tasks. extension of time limits on storage of data. Give authorities issuing residence permits to 3rdcountry nationals access to stolen/lost documents. Access by Europol and credit protection agencies. Proposal for Regulation and Decision on the development of SIS II.New Functionalities for SIS and the Development of SIS II 113 Annex II. Replace maximum time limits for storage of data in checking deadlines. (cont. Inclusion of new category of persons: those prohibited from leaving the Schengen area. Proposals on New Functionalities for SIS and SIS II 3 December 1998 European Council 31 May 1999 SIS Working Party German delegation 20 August 1999 13 July 2000 French Presidency Vienna Action Plan Conclusion 43 (c) 8835/99 10629/99 10353/00 Note on new functionalities SIS II 20 September 2000 German delegation 11538/00 27 October 2000 SIS Working Party Portugal 12400/00 Sweden/ Belgium OJ C 183/12 29.) B. in the longer term. Access to SIS by vehicle registration authorities.2001 24 February 2001 19 June 2001 6577/01 Examine Europol access to SIS investigation data. . 98. 96 (2). enabling the storage of information on “potentially dangerous persons” to be banned from certain events. Possibility of carrying out searches on the basis of incomplete data. 99 and 100 data in SIS. Establishment of restricted-access database of terrorists. Proposals on New Functionalities for SIS and SIS II 14 September 2001 German delegation 11895/01 2001 Spain and Italy 6164/5/01 15 October 2001 Belgian Presidency 12813/01 29 October 2001 UK 13530/01 Grant asylum authorities access to Article 96 data. Amending Article 99. Granting security and intelligence agencies access to Article 95. including sports. political or social events. cultural.114 Chapter 4 Annex II. Link SIS II to national facial/iris recognition systems.) B. to assess which country is responsible for asylum claim (only for transitional period until Eurodac becomes operational). Adding information on issued visas to Article 96 data to make it possible to check whether a 3rdcountry national whose visa has expired has left EU territory. AFIS and Automated Number Plate Recognition Systems. (cont. and immigration officers access to data-based immigration or visa law offences. other vehicles. Split Article 96 data into two categories: grant law enforcement authorities access to data on 3rdcountry nationals registered on public order & security grounds. works of art. luxury items and easily identifiable objects) and study which biometrics other than fingerprints and photographs could be stored in SIS. (cont.New Functionalities for SIS and the Development of SIS II 115 Annex II.) B. . Proposals on New Functionalities for SIS and SIS II 5 February 2002 Spanish Presidency 5968/02 28 May 2002 Italy 9358/02 25 March 2003 UK 7786/03 5–6 June 2003 JHA Council 9845/03 (Presse 150) 11 December 2003 Commission COM (2003) 771 Proposal to study including data in SIS “on violent troublemakers in view of mass events.” Registration in SIS of persons included on UN terrorist lists. violent troublemakers. Communication on the second generation of SIS and synergies between SIS II and VIS. Launch feasibility study on entering new categories of data (minors precluded from leaving Schengen area. animals. Note on issue of long-term management of SIS II. Proposals on New Functionalities for SIS and SIS II 31 May 2005 Commission COM (2005) 236.) B. (cont. 9696/06 9169/06 Proposals for draft Regulation and Decision on the establishment. . 230.116 Chapter 4 Annex II. Recommendation on the use of SIRPIT. and 237 28 March 2006 Italy 15 May 2006 Presidency 7867/1/06. Proposal on Management Authority for SIS II. operation and use of second-generation SIS (SIS II) and a Regulation regarding the access to SIS II of national services responsible for issuing vehicle registration certificates. may also arise in relation to Eurodac and VIS.Chapter 5 Other EU Databases Used in the Field of Immigration Control: Eurodac and VIS “As regards the better identification of wanted persons whilst the storage of personal data in criminal databases is justified due to past and real or suspected behaviour of the individual (which must be substantiated). both VIS and Eurodac are used for immigration control and only include data on third-country nationals. The development of Eurodac and VIS and the use of biometrics will be covered in the following sections. Neither the claiming of asylum nor a visa application indicates in any way that a hitherto innocent individual will commit a criminal or terrorist act. COM (2005) 597. 1 Communication of the European Commission on improved effectiveness. I consider it important to describe these databases which have been established within the framework of the EU law. Introduction The focus of this study lies on SIS. pp. Finally. the same problems which arise for persons reported in SIS or SIS II. For several reasons. . Based on the so-called principle of interoperability. © 2008 Koninklijke Brill NV. I will highlight the most important differences and similarities between VIS and Eurodac.11. but also in the EU passport and other travel documents. SIS II and the registration of inadmissible third-country nationals. the EU policy-makers envisage interlinking these databases with SIS II. Evelien Brouwer. 24.”1 1. Firstly. two other large-scale information systems provide for the exchange of information on third-country nationals: Eurodac and VIS. Digital Borders and Real Rights. 117–144. the use of VIS and Eurodac is closely related to the use of SIS II. The interoperability of the different EU databases is facilitated by the inclusion of biometric data not only in the data systems. Printed in the Netherlands. this is not the case for EURODAC or VIS.2005. on the one hand. enhanced interoperability and synergies among European databases in the area of Justice and Home Affairs. Aside from SIS II. and SIS II on the other. Secondly. Therefore. OJ C 254. the Dublin Regulation stipulates that the Member State where the asylum seeker first entered the EU or the Member State issuing a visa or residence permit to the asylum seeker is responsible for the application.10. the implementation of the so-called Dublin criteria should guarantee that at least one Member State deals with the application of an asylum seeker.2003. The 1990 Dublin Convention: A Comprehensive Assessment. Finally. 1997. 26 July 2001. Eurodac. Dias Urbano De Sousa & Philippe De Bruycker (eds. 15/12/2000. U. Hurwitz. 25.5 Among other things. A Balance between Fairness and Efficiency? The Directive on International Protection and the Dublin Regulation. Development and Central Purpose of Eurodac Eurodac is the first EU ‘Automated Fingerprint Identification System’. . 4: 2002.2003. p.2. 159–192. Convention of 15 June 1990.2 The purpose of Eurodac is to facilitate the application of the Dublin Convention of 1990 to establish which state is responsible for an asylum application.2001.1. International Journal of Refugee Law 1999 11 (4). EJML. The application of this Regulation should prevent a person from applying for asylum in more than one country (known as ‘asylum-shopping’). It also seeks to ensure that asylum applications submitted by different members of one family are examined whenever possible by the same Member State. One of the practical reasons submitted by national governments for the need to establish a central registration system for fingerprints was the fact that asylum seekers would often destroy all their documents. See. for the decision on the operability of Eurodac: OJ C 5/2.).3 Meanwhile. A. which became operational on 15 January 2003. is based on Regulation (EC) No. It includes the fingerprints of asylum seekers and immigrants crossing the external borders of that Member State irregularly. for a critical assessment of the principle of the Dublin II Regulation: H. Eurodac 2. Battjes. p. in order to prevent the problem of ‘refugees in orbit’. OJ L 50/1. Brussels: Bruylant 2004. OJ C 304. in: C. Distribution of Asylum Seekers in Europe?: Dublin II Regulation Determining the Responsibility for Examining an Asylum Application.1. The Dublin Regulation is based on the so-called ‘single application’ principle. p. entered into force on 1 September 1997. The emergence of a European asylum policy/L’émergence d’une politique européenne d’asile.4 The Dublin Regulation includes a list of criteria to establish which Member State is responsible for the examination of an asylum application submitted in one of the Member States. 646–677. 30. See. 33–69. the Dublin Convention has been replaced by Council Regulation 343/2003 (Dublin II) of 18 February 2003. based on a proposal of the Commission COM (2001) 447. 2725/2000 concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention of 11 December 2000. such as identification cards and 2 3 4 5 OJ L 316. Brandl.118 Chapter 5 2. 10. 5546/93. 2.6 In February 1993. Eurodac Verordnung. p. of individual data necessary for the examination of an application for asylum. This problem was only partly solved by the existing obligation that travel agencies and carrier organisations keep or copy the identity papers or travel documents of passengers on certain flights. for the establishment of the Member State which is responsible for such an application and for other obligations resulting from the Convention.10 In a discussion paper from 1995. the Council of Justice and Home Affairs (JHA) decided on 23 November 1995 to start the legislative work. Back in 1991. on the basis of which they decided to investigate the needs and requirements of Eurodac. Europäisches System zur Identifizierung von Fingerabdrücken. 4464/1/95 cited in C. This feasibility study was presented to the Ministers during their meetings of 30 November and 1 December 1992.11 At the time of the negotiations on Eurodac. 6. 18. JUR 25. Concluding that the exchange of asylum seekers’ fingerprints through Eurodac was technically and legally feasible. p. upon arrival in one of the Member States. to be called Eurodac. such as “the functioning of other international instruments” or “starting criminal investigations against asylum seekers”.9 However. Compare with Article 22 of the draft regulation of the Commission (COM (2001) 447). Schmid. ten of the 15 EU Member States were already fingerprinting asylum seekers and storing these fingerprints in national registers. SN 1419/93 WGI 1365. . NWV Verlag: Wien 2003. the Legal Service explicitly stated that Eurodac should not be used for other purposes. Eurodac: European Union to hold asylum seekers’ fingerprints on central computer – draft Convention proposals.12 For several reasons. the Council confirmed that the recording of fingerprints in a database. July-August 1996. This would make it difficult for the authorities not only to identify the person. should prevent asylum seekers from applying in more than one state by changing their names or by throwing away their travel and identity papers. it took another five years 6 7 8 9 10 11 12 WGI 1284 REV 2. it was agreed that a feasibility study would be launched regarding a European system to compare dactyloscopic data of asylum seekers. 4. no.7 This provision envisaged the exchange. Statewatch.8 The Legal Service confirmed in its advice of 18 March 1993 that Article 15 provided an adequate legal basis for the establishment of Eurodac. 11476/95 ASIM 308.Other EU Databases Used in the Field of Immigration Control 119 travel documents. when the Immigration Ministers met on 2 December. the Legal Service of the Council was asked to give advice on the question of whether Article 15 of the Dublin Convention could be used as the legal basis for the creation of Eurodac. but also to establish the route travelled and to find out if the person had already applied for asylum in the same or another state. Vol. upon request. . including a protocol on illegal immigrants.uio. it was decided to ‘freeze’ these texts in anticipation of a new EC instrument to be presented by the Commission. Jonathan P. the EP especially emphasised the necessity of the limited use of Eurodac.arena. The advice of the EP to include an explicit obligation to delete the data of asylum seekers who obtain refugee status within one month was. which were often the first country of arrival for asylum seekers. the Commission proposal referred to the direct applicability of EC Directive 95/46 on data protection. On 26 May 1999. were especially interested in the distribution mechanism of the Dublin Convention. according to a plan by the Austrian government. a draft Eurodac Convention was forwarded to the European Parliament in 1997.15 This proposal. Only a few Member States. was based on the ‘frozen’ texts of the Council.no/publications/. This proposal to limit the implementing powers of the Council met with strong opposition from the Member States and in 2000 the Commission was forced to forward a new proposal. OJ 2000 C 337.14 In this resolution. Southern Member States. the Netherlands and Austria.13 At the initiative of the Luxembourg Presidency. University of Oslo. . such as Italy and Greece. ignored. Working Paper no. In the light of the forthcoming entry into force of the Amsterdam Treaty. May 2006. available at: http://www. conferred certain powers to adopt the implementing rules upon the Commission itself.1. In March 1999.1998. the European Commission forwarded a proposal for a Eurodac Regulation. A4-0402/97 15. Centre for European Studies. were less interested in the functioning of Eurodac to support this mechanism. 9. in anticipation of the entry into force of the Amsterdam Treaty. The JHA Council agreed on the text of the Eurodac Convention at its meeting of 3–4 December 1998. the Council agreed upon a protocol to the Eurodac Convention on the inclusion of the fingerprints of illegal immigrants (see below). Aus. One of these reasons was that the organisation of Eurodac was not strongly supported by all Member States. COM (1999) 260 fin. the inclusion in the Convention of a reference to the ECHR and the Geneva Convention on the protection of refugees. The EP adopted a resolution on the draft Convention in January 1998. the EP was for the first time given the opportunity by the Council to advise on asylum and migration matters. shortly after the entry into force of the Amsterdam Treaty. however. on the political debate on Eurodac. This meant that. Furthermore. involving a weaker position for the 13 14 15 See. in a departure from the Council text. the Commission proposal. Eurodac: A Solution Looking for a Problem?. Unlike the Council texts. these proposals were followed by the Council. such as Germany.120 Chapter 5 before the Eurodac Regulation was finally adopted. 2. Commission Staff Working Paper SEC (2005) 839. 15 March 2001. See further.P. The EP adopted two resolutions. the number of transactions to Eurodac and hits based on this system increased significantly. On the basis of the Council Decision concerning the signing of the Agreement between the EC. depending on a positive evaluation of the application of the Schengen acquis by those states. each Member State has to take the fingerprints “promptly” from every applicant for asylum aged at least 14 years old and transmit these data “promptly” to the Central Unit 16 17 18 19 20 21 COM (2000) 100. 21 September 2000. and J. Eurodac: Its Limitations and Temptations. 20. but now on the basis of Article 63 (1) TEC. . in principle. Eurodac was used by 27 European states. One month after their accession. A5. and A5-0219/2000.2. Second annual report on Eurodac. OJ L 66/38. 235. based on an agreement signed between the EU and Denmark on 10 March 2005. including United Kingdom and Ireland. Eurodac will be used by Switzerland and Liechtenstein. See for the Protocol between EC. Norway and Iceland are required to apply the Eurodac Regulation. EJML 3/2 (2001). based on an agreement between the European Communities and Switzerland of 26 October 2004. E. p. in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the EU Treaties.19 The Eurodac Regulation immediately applied to the ten new EU Member States which joined the EU in 2004. 3/4/2001. now also takes part in the Eurodac Regulation.17 The Eurodac Regulation was the first instrument adopted on the basis of Title IV of the EC Treaty. See the Council Decision of 21 February 2006 on the conclusion of this Agreement between Denmark and the European Community. Norway and Iceland. and a Protocol to this agreement between these latter parties and Liechtenstein.18 Denmark automatically opted out in accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the EU Treaties but. p. Switzerland. Peers. Norway and Iceland regarding the responsibility for asylum applicants. 15 March 2000.2006. 18 November 1999. OJ 93/38.20 Finally. have given notice of their wish to take part in the adoption and application of this Regulation. 234. Transmission and Comparison of Fingerprints The Eurodac Regulation is based on the premise that. on this competency dispute between the Commission and the Council: S.0059/19990. COM (2006) 753.3.Other EU Databases Used in the Field of Immigration Control 121 Commission.06. 23–24. 8. EJML 4 2002.2005.16 The European Parliament was consulted again and again. Key Legislative Developments on Migration in the European Union. Collection. Brouwer. these countries.21 In 2006. and Liechtenstein. Aus (2006). p. I did not find any official publication of the Dublin/Eurodac agreement between Switzerland and the EC of 26 October 2004. including the 25 EU Member States. The Regulation applies to all EU Member States. 5. National authorities should forward to the Eurodac Central Unit the fingerprints of all individuals aged 14 and over who apply for asylum or who were apprehended while illegally crossing borders.122 Chapter 5 (Article 4 (1) of the Regulation).1998 (author’s archive). The Central Unit will check whether the fingerprints forwarded by the national authority are already stored in the system. States may also forward fingerprints of persons found illegally present within their country. This means that Eurodac can also be used by a Member State to check whether a person has previously applied for asylum on its own territory. The proposed amendment by the European Parliament to raise the minimum age to 18 was however ignored by the Council. sex. unlike SIS and VIS. Based on Article 5(1). . the Netherlands proposed lowering this minimum age to 12. The procedure for taking fingerprints takes place in accordance with the national practice of the Member State concerned. Whereas most countries wanted to raise this minimum age. the Central Unit can compare the fingerprints with data previously transmitted by the same Member State.1997 and 11868/1/98. and the date on which the data were transmitted to the Central Unit. the date on which the fingerprints were taken. the following information is recorded in Eurodac: – – – – – – – the Member State of origin. 27. the national state will be informed of this ‘match’ and of the Member State which previously forwarded the fingerprints. Based on a request from a Member State. If so. Only the Member State of origin can have access to the data which it transmitted to Eurodac and only this Member State can have these data corrected (Article 15 (1) and (3) of the Eurodac Regulation). in accordance with its own national law. the reference number used by the Member State of origin. arguing that this would be contrary to existing international instruments protecting the rights of children. Eurodac contains no name or address of persons. 10191/3/97. is established under the responsibility of the European Commission and controls the central database of fingerprints in accordance with Article 3 of the Eurodac Regulation. If the Member State of origin 22 Council doc.11. the place and date of the application for asylum. The Central Unit.11. points (a) to (f ) of the Eurodac Regulation. based in Luxembourg. It is important to underline that. The minimum age of the persons from whom fingerprints can be taken was one of the main discussion points in the negotiations. fingerprint data.22 The European Parliament strongly opposed the minimum age of 14. Vol. SCH/Com-Ex/97/44 rev. it may also amend or erase the data directly.3. the Schengen Executive Committee concluded that it could be necessary to take the fingerprints of every illegal immigrant whose identity could not be established without doubt and to store this information for exchange with other Member States. ibid. Extension to Illegal Immigrants Not until a later stage in the Eurodac negotiations was it agreed to extend the Eurodac Regulation to fingerprinting illegal immigrants.Other EU Databases Used in the Field of Immigration Control 123 recorded the data directly in the central database. On 21 April 1998. 2. January-February 1998.25 The extension to illegal immigrants was to be based on Article 15 (1). Article 10 (1c) and (1e) of the Convention referred to the obligation of a Member State to readmit an asylum seeker who has formerly applied for asylum on its territory and whose application is either being processed or has been rejected and who is later found illegally on the territory of another Member State. the data are to be deleted “as soon as the Member State of origin becomes aware that the person has acquired such citizenship” (Article 7). p. 1.24 In point 46 of the Action Plan of the EU Council of 26 January 1998 (Influx of migrants from Iraq and the neighbouring region) the taking of fingerprints from illegal immigrants was deemed necessary. Otherwise. Statewatch Bulletin. OJ 22 September 2000. Only if the person concerned has acquired the citizenship of one of the Member States before this time limit expires. 8. 2. 15-12-1997. Article 15 of this Convention prescribed the exchange of individual information in application of the Dublin Convention. SCH/Com-Ex/98/1 rev. Article 10 (1c) and (1e) of the Dublin Convention. As we have seen above. 2. the data are amended or erased by the Central Unit (Article 15 (6) Eurodac Regulation). According to Article 6 of the Regulation. cited in Jonathan P. for backgrounds. no.23 In response to the arrival of a large number of (Kurdish) immigrants from Northern Iraq in Europe in 1997. Point 17 urged the Member States to examine without delay whether Eurodac should be extended to illegal immigrants. 18. Whether these provisions included an accurate basis for the fingerprinting of persons 23 24 25 See. under strong pressure from the German delegation. data on asylum seekers are to be stored for 10 years from the date on which the fingerprints were taken. the Schengen Executive Committee adopted a formal decision with regard to the “fingerprinting of every foreign national entering the Schengen area illegally whose identity cannot be established with certainty on the basis of valid documents”. . Aus (2006). the Northern European countries in particular pressed for this extension. “to curb the entry into the EU of illegal refugees”.. In December 1997. 8 June 1999 and the Memorandum of the Immigration Law Practitioners’ Association to the Select Committee of 3 March 1999 and the aforementioned letter of Justice. Upon expiry of this period. Das Fingerabdruckvergleichssystem EURODAC. but had later been found residing unlawfully in a Member State cannot be justified”. A5-0059/1999 and A5-0219/2000. see above. Neither the Council nor the Commission followed the advice of the European Parliament to use “third-country nationals” instead of “aliens”. compared to the rule which applies to the storage of fingerprints of asylum seekers. According to Article 10.29 The Central Unit may not compare this data with any data previously recorded in the central database. The use of the definitions “illegal irregular border crossing” and “illegal presence” also raised doubts on whether this would not result in different interpretations by the Member States. Schröder. The fingerprint data on persons found illegally present within the territory of a Member State (the second category) are only to be transmitted to the Central 26 27 28 29 See also B. . sea or air of the border of that Member State.28 Data on persons who cross an external border irregularly are recorded for the sole purpose of comparison with data on applicants for asylum subsequently transmitted to the Central Unit. ZAR 2/2001. House of Lords. The Regulation uses the word “aliens”. or has acquired the citizenship of any Member State. 18 May 1998.124 Chapter 5 who do not apply for asylum has been called into question.27 The current text of the Eurodac Regulation distinguishes two categories of illegal immigrant: firstly. cited in the letter of Justice to the Select Committee on the European Communities. secondly. third-country nationals found illegally present on the territory of a Member State (Article 11). 19 March 1999. 8441/98. p. has been issued with a residence permit. 71–76. Article 10 (2) of the Eurodac Regulation further provides that this data has to be deleted immediately if the Member State of origin becomes aware that the person concerned has left the territory of the Member States. Tenth Report on Fingerprinting illegal immigrants: extending the Eurodac Convention. This is thus a more stringent provision with regard to the deletion of data. the Central Unit shall automatically erase the data from the central database. third-country nationals who are apprehended by the competent control authorities in connection with irregular crossing by land. See the European Communities Committee. having come from a third country and who are not turned back (Article 8) and. 19 March 1999. see both Pirker Reports. fingerprints of third-country nationals apprehended in connection with the illegal crossing of external borders shall be stored in the central database for only two years from the date on which the fingerprints of the alien were taken. nor with data subsequently transmitted to the Central Unit pursuant to Article 8.26 In a report to the Council in 1998. the Legal Service of the Council concluded that “the inclusion in Eurodac of data relating to persons who legitimately crossed the external frontiers of a Member State. 15 September 2006. 5 May 2004. of the total of 232. 20 June 2005.287 concerned persons who had previously made an asylum application in another contracting state or in the same state.307 cases show that the same person had already made at least one previous asylum application in the same or another Member State. 31. See p.32 According to this report. the goals of this system are actually achieved.902 asylum applications recorded by Eurodac. Whereas the first report did not include any information on this question. see p. In September 2006.30 According to this report.34 The Eurodac system would be “functioning well” in terms of the number of requests to take back or to take charge of an asylum seeker submitted by one Member State to another. SEC (2005) 839. In other words.33 The Eurodac annual reports do not provide information on whether these ‘hits’ lead to the transfer of persons to the Member State which is responsible for asylum application and thus whether. 271.Other EU Databases Used in the Field of Immigration Control 125 Unit for the purpose of comparison with the fingerprint data of applicants for asylum transmitted by other Member States and recorded in the central database. the European Commission published its third Annual Report on Eurodac.31 This means that the percentage of multiple asylum applications detected by Eurodac increased from 7% in 2003 to 13. According to the second annual report on Eurodac.205 asylum applications recorded by Eurodac in 2004. 6.223 asylum applications recorded by Eurodac in 2005. 7% of the cases recorded in Eurodac would include multiple asylum applications. in four cases a person would have applied for asylum 11 times since Eurodac became operational. published on 20 June 2005. using Eurodac. thus 16% of the asylum applications were repeat (second or subsequent) asylum applications. nor shall they be compared with the data transmitted to the Central Unit pursuant to Article 8 (first category). security and cost-effectiveness”. output.636 cases show that the same person made at least one previous asylum application. 2. 31. The second report did not include 30 31 32 33 34 SEC (2004) 557. SEC (2006) 1170. Of a total of 246. According to this third report. of a total of 187. in the period from 15 January 2003 to 15 January 2004.572 fingerprints were successfully transmitted to the central authority. 17. . These fingerprints shall not be recorded in the central database at all. 14 of the second annual report. Functioning of Eurodac: Annual Reports of the Commission A first annual report on Eurodac was published by the Commission on 5 May 2004.5% in 2004.4. the Commission concluded in the second report that Eurodac has demonstrated its efficiency and quality “in terms of speed. As ‘side-effects’. the Commission noted that this possibility has been used frequently by some Member States and. have been deleted before expiry of the regular time limits of 10 or 2 years respectively. more than one million fingerprints will be stored in this system. considering that the fingerprints of asylum applicants will be stored for ten years in Eurodac and data on illegal border crossings for two years. even considering this percentage of 67% of Dublin claims based on Eurodac. in practice. However. information on the current application of the Dublin Regulation would be based on a pilot project managed by the Commission services. it could be estimated that.35 Therefore. the efficiency of Eurodac is questionable. As we have seen above. the fingerprints have to be deleted if a person acquires the citizenship of a Members State as well as. the use of the Eurodac-Dublin rules certainly leads to longer asylum procedures and provides Member States with new grounds for refusing an asylum application. Still. some Member States would generally receive approximately the same number of asylum seekers from other Member States as the number of asylum seekers it could ‘send’ to another Member State. after five years of operation. It could be argued that Eurodac has a deterrent effect. The Eurodac annual reports also do not include information on how many times data on asylum seekers. It is worth noting that the three annual reports all refer to the problem of “special searches” performed by national authorities. According to this (unpublished) information.126 Chapter 5 explicit figures to support this conclusion but. it is questionable whether the application of Eurodac together with the Dublin criteria does affect the net number of asylum seekers in each Member State or the EU. based on the Eurodac Regulation. according to the Commission. 67% of the total requests to take back or to take charge of an asylum seeker in the period July–December 2004 were based on Eurodac hits. Guild. . in the sense that asylum seekers knowing that their fingerprints will be stored will be less inclined to lodge multiple asylum applications or even apply for asylum at all. The reports also fail to give the total numbers of registrations held in Eurodac. apparently. The effect of Eurodac is merely on the distribution of asylum seekers. In the first annual report. in: Lodge (2007). or third-country nationals recorded on the basis of Article 8 of the Regulation. for other 35 See also E. in the case of an “irregular immigrant crossing the external borders” if this person has left the EU territory or obtained a residence permit. Unreadable Papers? The EU’s first experiences with biometrics: Examining Eurodac and the EU Borders. The figures in the annexes attached to the annual reports show that if Member States would apply the ‘Dublin mechanism’ on the basis of the Eurodac hits. This special search function provided for in Article 18 (2) of the Eurodac Regulation is only meant for data protection purposes and limited to the requests for access to personal data made by individuals. for example.5 million visa applications from 1993 would have to be submitted for prior approval. the Commission services would have alerted the European Data Protection Supervisor to further clarify this use of “special searches” by some Member States.36 In 2006. 124/93. France stated as a prerequisite that it should be informed in advance by the other Schengen States of each visa issued to nationals of certain countries. the Commission reports that the number of “special searches” in Eurodac increased significantly. Press release. before the CISA was implemented and internal border controls were lifted under its Convention.39 Although the other countries supported prior consultation in certain cases. 10.eu. a total of 2. Negotiations Towards a European Visa Information System Even in the 1990s. Migration News Sheet estimated that if. “mainly due to two Member States while a few other Member States continued to apply this provision frequently”. July 1993. Visa Information System or VIS 3. since this would take much more time. http://www. Article 17 (2) CISA provides for prior consultation by embassies or consulates to which an application for a visa is made. they initially objected to the proposal to create a system which would be used to communicate this information as a prerequisite for the implementation of CISA. the cases in which these consultations should take place are to be defined by the Schengen Executive Committee.40 For certain categories of visa application only. Migration News Sheet. p. through which visa authorities can consult the central visa authorities of other countries before issuing a visa to the person concerned. 9 March 2006. As a result of “the sensitivity of some of the information” in the report. According to Article 17 (2). No. The European Data Protection Supervisor was set up to control the processing of personal data by the Community institutions. In the second annual report. France wanted to be informed of all visa applications by Russians at the German and other consulates. see also Chapter 7.edps. 1.1. the inspection report by the EDPS has not been made publicly available. with their own central authorities as well as with the central authorities of other participating states.38 3.Other EU Databases Used in the Field of Immigration Control 127 purposes as well. the European Data Protection Supervisor (EDPS) published a press release about its first inspection report on the security of the Eurodac central unit. a computerised consultation network (VISION) was created on the basis of Article 17 (2) CISA. p.37 The EDPS expressed its general satisfaction with the level of security and stated that it had issued certain recommendations. now the Council. According to the third annual report. .int.41 36 37 38 39 40 41 SEC (2006) 1170. the Council requested the European Commission to come forward with proposals for the establishment of a network for information exchange concerning visas issued by Member States. the most immediate objective should be to set up a genuine European database for collecting the names both of individuals issued with a visa and of those denied a visa “and perhaps other relevant information”. The Spanish note dealt further with questions such as which authorities should obtain access to the database. the period for which the data should be retained before being archived and which other databases should be directly accessible to the consular posts. 21 December 2001. – respond to the nature of the visa. 42 43 44 SN 3926/6/01 REV 6. visa annulled. assist (directly/indirectly) in the identification and documentation of illegal immigrants and therefore the readmission of illegal immigrants.09. included the following list of possible objectives:44 – contribute to improving local consular cooperation. which is described as an “instrument of prevention and channelling of legal movements of persons”.43 According to this paper. Note to the Visa Working Party. . in order to increase the overall capacity of the Member States and the European Union regarding the fight against terrorism. 15577/01. if so. 20. The second objective should be to set up “fully-fledged” (sic) common visa offices.42 In a paper to the EU Visa Working Party of 26 November 2001. – distinguish better between the identity of the holder and the carrier of the visa at external border checkpoints or at immigration or police checkpoints. In the Conclusions of the JHA Council of 20 September 2001. the note raised the question of whether the database should be incorporated into SIS and. and visa stickers misappropriated or lost. – facilitate the application of the Dublin Convention regarding asylum.128 Chapter 5 After the events of 11 September 2001. visas formally refused. – by archiving the visa file.2001. the proposal for a visa information system was again placed on the EU agenda. A policy questionnaire on the needs for a future database for visas. which role would be given to SIRENE. – contribute to combating terrorism and organised crime. The paper proposed that the following data be included in the visa database: visa issued. Finally. visa requested. see conclusion 26. the Italian delegation emphasised that the events of 11 September demonstrated that visas are not just about controlling immigration but are above all an issue involving EU Member States’ internal security. revoked or extended. set up by the Spanish delegation in December 2001. 14523/01. see Conclusion 42. as well as electronic photographs and scanned photographs of travel documents. COM (2001) 577. 9. the Commission was scheduled to present a proposal before March 2002. the Council again referred to the utility of a European VIS. The Commission referred again to the usefulness of a Visa Identification System for identification purposes. leaving open for discussion the question of which elements should be included in the Visa Identification System to ensure the identification of undocumented illegal residents.4.11. by carrying out suitable identification measures during administrative procedures “when the person concerned has an interest in providing correct data”.” In the ‘roadmap’ on the measures and initiatives to be implemented according to the Action Plan to combat terrorism of October 2001. 10. . See.2001.2002. the roadmap of 09/04/02. In the Green Paper on return policy.10. but this time in the context of the EU return policy. According to the Commission. 12. 7686/02. Laeken. the European Council asked the JHA Council and the Member States to take steps to set up a common visa identification system and to examine the possibility of setting up common consular offices. for example. the creation of a visa information system was mentioned in the proposal updating the Regulation on a standard format for visas. These return-related problems could be resolved. before making concrete proposals. 45 46 47 48 49 50 51 The European Council of 14 and 15 December 2001.51 In the Communication on illegal immigration. See the roadmap of 16 October 2001. COM (2001) 672. 15.2001.48 However. p.Other EU Databases Used in the Field of Immigration Control 129 In the Laeken Conclusions of December 2001. according to the Commission. OJ 2002. SN 300/1/01 REV 1. COM (2002) 175.47 This deadline was moved several times in later versions of this roadmap. C 142. the Commission raised the issue of the need for a visa information system in several documents. the Commission also mentioned this possibility of using the “European Visa Identification System” for return purposes.46 According to consideration (73) of this Plan.45 In the Comprehensive Plan to combat illegal immigration and trafficking of human beings in the European Union of February 2002. such a system should enable Member States to allow shortterm admission on justifiable grounds and to ensure the return of those persons after the expiry of the visa. the Commission proposed including the personal information of visa applicants in the information system. 12800/01.49 in the Communication on illegal immigration of 15 November 200150 and in the Green Paper on Return Policy of 10 April 2002. For example. a European Visa Identification system would significantly facilitate the process of “identifying illegal residents and the issue of travel documents for return purposes. COM (2004) 835.6. 5 June 2002. 15. The VIS Regulation: Purpose and Content of VIS In December 2004.2. 9620/02 (Presse 175). but also include internal security and the fight against fraud. 8 June 2004. In June 2004. See. 226. The guidelines for the establishment of the “Visa Information System” as approved during the meeting of 13 June 2002 of the JHA Council. internal security and the fight against terrorism. to start the technical preparations for the establishment of VIS. 7309/02. See the Press release of the JHA Council. . 23 490. to improve the possibilities for returning illegal immigrants and. the Commission presented a proposal for a Regulation concerning the Visa Information System (VIS). describe the following goals of VIS: – – – – – – to improve the functioning of the common policy in the field of visa. further discussions took place on whether a European visa database should contain not only information on issued visas. but also on visas applications and on visa denials. At this meeting of June 2002. to improve the application of the Dublin Convention. no.52 A majority of the Member States seemed to favour such an extension. the Council invited the European Commission to prepare a feasibility study on the setting up of such a database. including a Central Visa Information System (CS-VIS) and a National Visa Information System (NI-VIS) in each Member State. for the draft guidelines.2004. Handelingen Tweede Kamer 2001–2002.130 Chapter 5 During the informal JHA meeting of 14–15 February 2002. OJ L 213. 4 April 2002 and 9615/02. though it was noted that it was unclear how much information should be included–only substantial grounds for rejection or rejections based on the inadmissibility of the application as well.55 The adoption of the VIS Regulation was foreseen for mid-2006 and VIS was planned to be operational in 2007.54 This Decision enabled the Commission. Furthermore. 52 53 54 55 See the letter from the Dutch Minister of Justice to the parliament. to fight against fraud. it was further decided that the European Visa Information System should have a similar structure as was chosen for SIS. to prevent visa shopping. Council Decision 2004/512. finally. even though the political decision-making on the use and the content of VIS was still ongoing. the Council adopted the decision on the establishment of the Visa Information System.53 These goals are comparable to the list in the Spanish note of 2001 mentioned above. 3. Not including the Palestinian Authority and Taiwan. or revoked and on each extension of a visa.500 consular posts worldwide. see for the latest version of the Draft Regulation.56 In June 2007. 12. the Council and the European Parliament agreed on a final text of the VIS Regulation. OJ L 81 of 21 March 2001 (modified by Regulation 2414/ 2001. 20 and 25. In 2006. for a consolidated version of the VIS. 15. – competent authorities carrying out checks on visas at external borders and within the territory of the Member State for the sole purpose of verifying the identity of the person and/or the authenticity of the visa. See also the Study for the Extended Impact Assessment of the Visa Information System. on every decision to examine an application for a visa. p.2001. Final Report. pp. Press release 12–13 June 2007. Commission Staff Working Document on VIS including an Extended Impact Assessment. the following authorities will be granted access to VIS: – competent visa authorities for the purposes of examining applications. JHA Council. The annual number of visa applications for 2007 is estimated at 20 million per year. nationals from 134 states around the world required a visa to enter the EU. Brussels: European Policy Evaluation Consortium (EPEC). Regulation 453/2003. listing the third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement. which would result in 70 million records to be stored into the system for the five-year term. according to the EU visa lists.6.2003 and Regulation 851/ 2005.12. Based on Articles 18 to 22 of the draft Regulation (June 2007). OJ L 69.2006.60 One of the data to be stored as visa applicants is the nationality of birth. This includes a three-column table showing the Commission proposal. every visa which is refused. See also the information in OJ C 311. December 2004. p. the Presidency compromise and the amendments as proposed by the European Parliament. Estimated data stored in VIS cover 20 million visa applications on an annual basis. OJ L 327. 19. whose nationals need a visa as well. SEC (2004) 1628. 56 57 58 59 60 See. 4.59 This implies the storage of information on millions of third-country nationals. annulled. The persons concerned are third-country nationals from the countries whose nationals require a visa. VIS will also include information on EU and non-EU nationals inviting third-country nationals. VIS is to link at least 27 Member States and should be accessible to 12. .57 VIS is to contain information on every visa issued. 4. 10267/07 (Presse 125). December 2004. each record to be stored for five years.Other EU Databases Used in the Field of Immigration Control 131 The Regulation has to be adopted by qualified majority vote and through co-decision with the European Parliament. OJ L 141. 19 June 2007.12. of consulting and requesting documents and of reporting and statistics.58 Every national from these states who applies for a visa is to be recorded into the VIS central database. Council Regulation 539/2001 of 15 March 2001.2005).3. 13 July 2006. 13. 9753/07.000 users and 3. draft Regulation 11632/06. 28 December 2004. a new proposal of the draft VIS Decision was published changing the explicit reference to internal security agencies in the title and text into “designated authorities of the Member States”. The JHA Council reached agreement on this Decision in their meeting of 12–13 June 2007. the Council adopted the decision that “in order to achieve fully the aim of improving internal security and the fight against terrorism”.64 4. but implies the risk that national governments “designate” every agency or authority they like. The functions and authorities obtaining access to the proposed VIS have gradually been extended as a result of other instruments adopted by the EU Council. doc. Press release JHA Council. 15577/01. to obtain access to the VIS. COM (2001) 720.66 In addition. during the negotiations on the fight against 61 62 63 64 65 66 Conclusions meeting Council Competitiveness 7 March 2005. Council doc. and – competent asylum authorities for the sole purpose of determining the Member State responsible for examining an asylum application and for the purpose of examining an application for asylum.65 The question of whether a visa information system should be established separately or as a database incorporated into SIS was further raised in a discussion paper on a new visa database of December 2001. that the establishment of a network for exchanging information on issued visas should be studied in connection with the development of SIS II. including terrorist acts and threats”. See the proposal for a Council Decision concerning access for consultation of the Visa Information System (VIS) by these authorities.63 This more euphemistic definition is still referring to internal security agencies. 21 December 2001. 20 February 2007.132 Chapter 5 – competent immigration authorities for the sole purpose of identifying and returning illegal immigrants. .62 In February 2007. 8. COM (2005) 600 final. 10267/07 (Presse 125). p. 24 November 2005. p. 12–13 June 2007. 5456/1/07. Interoperability of SIS II. Eurodac and VIS The possibility of interconnecting different databases is an important and recurrent issue in the development of SIS II and VIS. 6811/05. 15. The European Commission announced in its Communication on SIS II of 18 December 2001. Member State authorities responsible for internal security and law enforcement authorities should be guaranteed access to VIS. “in the course of their duties in relation to the prevention.61 A proposal for a decision providing national security agencies and Europol access to VIS was published by the Commission in November 2005. During its meeting of 7 March 2005. detection and investigation of criminal offences. In the Communication on interoperability. the Commission published the Communication on improved effectiveness. 4. when there is a substantiated suspicion that the perpetrator of a serious crime has applied for asylum. enhanced interoperability.Other EU Databases Used in the Field of Immigration Control 133 terrorism. for example. the Commission concluded that this database has been underexploited because the quantity of data to be transmitted to Eurodac is a “surprisingly low fraction of the total migratory flow”. beyond their present purposes.1. On the other hand. VIS. immigration. the interconnection of different databases was advocated by different Member States. 13176/01. the Commission stressed that the existing databases have so far not been fully exploited. .70 It is noted that the lack of access by internal security authorities to Eurodac is “considered by the law enforcement community to be a serious gap in the identification of suspected perpetrators of a serious crime”. invited the Commission to submit proposals for enhanced interoperability between SIS II. This access should not be direct but through the authorities responsible for EURODAC.10.. 4.71 67 68 69 70 71 See. these systems can more effectively support the policies linked to the free movement of persons and serve the objective of combating terrorism and serious crime”. In 2005.3 of the Communication on interoperability COM (2005) 597. On the one hand. in its Declaration on combating terrorism of 25 March 2004.68 The content of the recommendations in this Communication reflects the ambiguous position of the Commission. COM (2005) 597. The purpose of this Communication would be “to highlight how.” Para.2001. “Interoperability” is defined by the Commission as the “ability of IT systems and of the business processes they support to exchange data and to enable the sharing of information and knowledge”.69 Some of the shortcomings of these databases mentioned by the Commission are that the identification of illegal immigrants is still difficult. 24. With regard to Eurodac. para. the German government during a meeting of 27 September 2001. and synergies among EU databases of 2005. COM (2005) 597. 5. 24 November 2005. the Commission sought to improve the efficiency of the databases and its possible use for realising the Community principle of freedom of movement. the Commission tried to respond to the general wish of the Council and its individual Member States to allow the use of immigration and asylum information for antiterrorism and security policy. Eurodac and the use of this information in fighting and preventing terrorism. and that there is incomplete monitoring of the entry and exit of third-country nationals. The Commission envisages the following possibility for access to Eurodac: “Authorities responsible for internal security could thus have access to EURODAC in well-defined cases. that there is no possibility for internal security agencies to use “asylum. and visa data”. para.67 The European Council. Ibid.2. 2. the Commission described the following scenarios: 1. in the Communication on the second generation of SIS and synergies of SIS II with VIS of 11 December 2003. Council Decision 2004/512. Now we see that the decisions on the technical and budgetary issues provided the basis for the more political and legal decisions with regard to the shared use and interoperability of the systems. the Commission recommended the technical integration of SIS II and VIS in its central part. since this option would generate important budgetary savings.2004.73 In the Decision 2004/512 on the establishment of VIS of 8 June 2004. In the Communication on interoperability. Gutwirth.6. the creation of an entry/exit system and the introduction of a border-crossing facilitation scheme for frequent border crossers. On the contrary. 15. access by authorities responsible for internal security. the creation of European register(s) for travel documents and identity cards. p. 21–35. March-July 2006. 2. International Review of Law Computers & Technology.74 In 2003. OJ L 213. 1 & 2. the Commission was instructed to “take into account the option of a common technical platform with the second generation SIS (SIS II)”. in the introduction to the Communication. Interoperability of Police Databases within the EU: An Accountable Political Choice?. . 20. In the long term. possibility of biometric searches in SIS II. Nos. de Hert & S. more comprehensive access to VIS and SIS II by asylum and immigration authorities. the Commission still emphasised that this synergy was only to be created at the central level and it would be necessary to keep the two systems and data separate. the Commission did not go into details with regard to the legal aspects of the interoperability of databases and its consequences for individuals and their (human) rights. This policy of considering the ‘technical’ issue of interoperability separately from the legal issue is not without problems.72 For example. the Commission made clear that “interoperability” is used as a technical rather than a legal or political concept and is separate from the question of whether the data exchange is legally or politically possible or required. 8 June 2004. Vol. the creation of a European criminal Automated Fingerprints Identification System (AFIS). 3. and 3. COM (2003) 771.134 Chapter 5 The Commission summarised the following developments and plans with regard to the existing data systems: 1. 72 73 74 See also P. de Hert. p. Furthermore. different decisions have been taken with regard to the inclusion of biometrics into EU passports. Use of Biometric Data 5.75 Comparison of the unique biometric features of a person with the personal data which has been previously stored in a database or ID card allows for the identification of this specific person. 3 ff. European Union citizens’ passports and information systems (VIS and SIS II)”. the EU Council adopted Regulation 2252/2004 for security features and biometrics in passports and travel documents issued by Member States. Eurodac was the largest database to contain biometric data. 21.1. and other techniques”. Vol. Machine-Readable Identity Documents with Biometric Data in the EU. Schreurs & E. Security and Biometrics: the EU’s Proximity Paradox.76 During their meeting in Thessaloniki on 19 and 20 June 2003.77 75 76 77 Definition used on http://www. Controlling the Body: Use of Biometrics at the EU Level At both national and European levels. governments are developing mechanisms for checking individuals using biometric data. In future.eubiometricsforum. the European Council agreed upon the necessity of a “coherent EU approach on biometric identifiers for documents for third-country nationals. Having postponed this deadline many times. Brouwer. As we have seen. Issue no. European Journal of Crime. 13/4.com/. 29. biometric data will be stored and used on a much larger scale. hand and finger geometry. The inclusion of biometric data in databases and in travel documents is presented as a new measure for different purposes. voice patterns. the proposals on both SIS II and VIS provide for the inclusion of biometrics (fingerprints) in these databases. 2005. . See.2004. W. for an overview of the EU policy on biometrics: J. Keesing Journal of Documents and Identity 2006. to prevent fraud and to facilitate the return of rejected asylum seekers. OJ L 385. In December 2004. Lodge.Other EU Databases Used in the Field of Immigration Control 135 5. namely fingerprints. eJustice. facial recognition. The need for this EU policy was in first initialised by new US anti-terrorism legislation which required citizens of countries falling under the US Visa Waiver Program to hold machine-readable passports in order to visit the US. During the inquiry for this study. to combat terrorism. p.12. including the prevention of illegal immigration or visa shopping. and P. travel documents and visas. Biometrics can be described as “automated methods of recognising a person based on a physiological or behavioural characteristic including fingerprinting. the US government requires EU travellers to the US who do not hold this machine-readable passport to apply for a visa with effect from 26 October 2006. Criminal Law and Criminal Justice. 533–564. retinal and iris scanning. COM (2006) 269. including provisions on the organisation of the reception and processing of visa applications. The technical requirements for the machine-readable passport and the storage medium for the biometric data (so-called ‘contactless chip’) are provided in a Decision of the European Commission dated February 2005.6. authenticity and confidentiality of the data.2006. The data are to be secured and the storage medium should have sufficient capacity and capability to guarantee the integrity. Furthermore. available at: http://ec. According to Article 6 of the Regulation. According to Article 1 of this Regulation. COM (2006) 331.eu/ justice_home/doc_centre/freetravel/documents/doc/c_2005_409_fr. Member States must include in their passports and travel documents a storage medium containing a facial image in accordance with the security standards set out in the Annex of this Regulation.5. Proposal for a Regulation of the European Parliament and of the Council amending the Common Consular Instructions on visas for diplomatic missions and consular posts in relation to the introduction of biometrics. 31.78 The EU Member States reached political agreement on the draft Regulation amending the uniform visa and residence permits to include biometric data. 28. the Commission forwarded a proposal for a Regulation providing rules for consulates and embassies with regard to the use of biometrics during reception and processing of visa applications. There is no official English translation of this decision since the United Kingdom and Ireland did not take part in the adoption of this measure. Security and Justice.80 In its Communication on The Hague Program on the implementation of the principles of Freedom. The Commission acknowledged that these systems would have considerable impacts in technical. the digitised facial image has to be implemented into the passports before 28 August 2006 and the fingerprints before 28 February 2008. COM (2003) 558.pdf. Despite the negative advice on this matter from the European Parliament.79 Furthermore.136 Chapter 5 This Regulation does not apply to national identity cards or to temporary passports. Member States must include fingerprints in “interoperable formats”. financial and data protection terms. in 2006.2006. Regulation 2252/2004 allows for the central storage of biometric data.2006 in which the Commission announced to publish a feasibility study for such an entry/exit system in 2007. The scope of harmonisation is limited to the security features containing biometric identifiers: the designation of the authorities and bodies that will be allowed access to the data in the storage medium of the issued document remains a matter of national legislation. Draft Regulation amending the uniform visa and residence permits to include biometric data.81 78 79 80 81 Commission Decision C (2005) 409 of 28 February 2005. 19.europa. See also the Communication on the priorities in the fight against illegal immigration. . the Commission stated that biometrics allows the storage and exchange of information on the entry and exit of third-country nationals into and out of the Schengen territory.7. COM (2006) 402. at Schiphol airport in the Netherlands. The second option – biometric identification used for authorisation procedures – is used. it is important to differentiate the following purposes for which identification based on biometrics can be used: verification. third-country nationals holding a permanent residence permit of one of those countries are “for the time being. Unlike other verification procedures.Other EU Databases Used in the Field of Immigration Control 137 5. 82 83 Articles 2 (10) and 2 (11) of the VIS Proposal define the meaning of verification and identification: Verification is “the process of comparison of sets of data to establish the validity of a claimed identity (one-to-one check)”. identification through Eurodac is anonymous since it only provides information about the geographic ‘movements’ of the holder of the fingerprints. This use. The storage of biometric data in a passport or visa enables national authorities to verify whether a person holding this document at cross-border or internal checks is the legal owner by comparing his or her biometric features with the biometric data recorded in the document. Identification is defined as “the process of determining a person’s identity through a database search against multiple sets of data (one-to-many check)”. .schiphol. unfortunately” excluded from this service. visited in September 2006.2. authorisation and as a search tool. the technology of biometrics has been in use in the United States and Canada for identification purposes in administrative applications (identification checks for driving licence applications) and applications for social welfare assistance. Different Options with Regard to the Use of Biometric Data In order to understand the relevancy of biometrics for EU policy. Only nationals of EEA countries + Switzerland can apply for an iris scan chip card. Annual costs are € 99 to € 119. by companies to control access by clients or employees to their premises or to certain services. in fact authorises this person to travel into and within an EU Member State. in fact the fingerprints stored in this system are used for ‘verifying’ whether this person has travelled or applied for asylum in another Member State. a so-called Privium chip card has been introduced to enable regular travellers to cross the border swiftly using iris scanning. According to information issued by the Privium company.83 Starting experimentally in October 2001. in accordance with the restrictions imposed by national law.82 In the first place. Another example is the registration of personal information (including biometrics) in VIS in combination with the storage of these data in an electronic visa. the storage of biometric data may be used for verification purposes. the use of this card was permanently authorised by the Dutch Ministry of Justice in October 2002. Although the use of Eurodac is to be distinguished from verification in the strict sense. For example. which should prove that the person holding the visa is the same as the person recorded in VIS. See http://www.nl. Since the 1990s. for example. A good example of this use is the aforementioned EC Regulation 2252/2004 on biometric passports and the proposal for including biometrics in visa and residence permits. visa or residence permits without the knowledge of the card holder? The introduction of RFID or ‘contactless machinereadable microchips’ as provided for in EU passports and possibly. Biometrics and the Rights of Individuals Depending on the option used. Therefore. Using ‘contactless technology’. This lobbying for the wide and largescale registration of biometric data also takes place the EU level. in EU visas. the authorities will only ‘read’ the information included on the card. 10857/03. DNA) depends on the amount of data with which the item found/fingerprint can be compared. in other words does the person have any means of ‘controlling’ this information? Is it possible to read the information stored in passports. Dactylographic research has been an important tool for the police and crime investigation authorities for more than a hundred years. with facial recognition used as biometric identifier. law enforcement authorities and internal security and intelligence services advocate the maximum storage of biometric data. the authorities may compare the information on the card with information held in the database and even receive additional information through this database on the person concerned. Eurodac and VIS will allow law enforcement authorities and intelligence agencies to search through the available information. In the former case. biometrics and contactless microchip technology. in future. 24 June 2003. Is the information stored on the card accessible to the individual concerned.84 The use of this technology would allow fast border controls and would make it possible to record every border-crossing movement and the integration of this technology with VIS 84 Note from the Italian Presidency to the Visa Working Party of the Council describes in detail the possibilities for using VIS. Other important options to be considered when dealing with the EU measures described above are whether the information is accessible to many or only to a limited category of authorities. instead of fingerprints or iris recognition. the person concerned will not always be aware of the moment when his or her personal data is retrieved and which databases are searched.138 Chapter 5 Thirdly. in the latter case. 5. seems to make this possible. or whether the information is also stored in a central database. The advantages of ‘contactless chip technology’ for migration control were discussed during the discussions of the Council in June 2003.3. It will be easier to read the information on a document from a distance. The practical scope of such searches depends on whether the biometric data are only contained on an individual card. . SIS II. The success rate of forensic research based on biometric data (fingerprints. national authorities can carry out checks on persons without their knowledge. identification through biometrics can be used as a search tool. using biometrics as primary search key. Reliability of Biometrics Technical specialists and (national and EU) Data Protection Authorities have repeatedly expressed their concerns about the reliability of systems using biometric data.88 An important question for validating the choice of this technology in EU measures is whether there is an acceptable balance between the so-called false acceptance rate (FAR) and false rejection rate (FRR).europa.Other EU Databases Used in the Field of Immigration Control 139 would allow ‘the control of every alien’.6. opposing the use of biometrics as a primary search key. but also for the social acceptance of the use of biometrics. Other countries. 23 March 2005. Decision 2006/440/EC of 1 June 2006 amending Annex 12 to the Common Consular Instructions and Annex 14a to the Common Manual on the fees to be charged corresponding to the administrative costs of processing visa applications OJ L 175. According to the EDPS.statewatch. expressed their doubts on the cost-effectiveness of the use of this technology. For example.4.edps. including Finland. 18 September 2003.org/news/2006/jul/ biometrics-and-identity-management. which is expected to include data on 20 million applicants by 2007.85 As we now know. following which the fee for visa applications was raised from € 35 to € 60. when a person knows that his data are only held on a personal secure ID card and not in a central register.86 According to recital (4) of this Decision. 29. Background paper for the Euroscience Open Forum ESOF 2006 in Munich. Choices with regard to the introduction of biometrics as described above are important. Brussels.pdf. See Council doc. downloadable from http://www.87 5. this is what actually happened on the basis of the Council Decision 2006/440 of June 2006. that 1 million persons cannot be checked using the normal 85 86 87 88 10857/03 Add 1. Societal Implications of the Wide Scale Introduction of Biometrics and Identity Management. the amount of € 35 would no longer cover current visa application processing costs. he may more easily accept the use of this kind of control mechanism. This would mean. .2006. particularly because “the consequences of the introduction of the European Visa Information System (VIS) and the biometrics required to introduce VIS in the visa application examining process should be taken into account”. 12171/03.htm. Ashbourne. See also the report by J. it is estimated that 5% of individuals are unable to enrol because they have no readable fingerprints or no fingerprints at all. see: http://www. The EDPS emphasised the technical imperfection of biometrics in its opinion on the proposal for VIS. with regard to the use of VIS. 8 September 2003. July 2006. not only for the rights of the individual concerned (which will be discussed in Part II). Opinion of the European Data Protection Supervisor on VIS.eu/12_en_opinions. The extra costs of the introduction of these technologies for the Member States could be ‘passed on to the visa applicants’. 93 The reason for this index of third-country nationals would be the fact that the current exchange of information on criminal convictions based on the 1959 Convention on Mutual Assistance in Criminal Matters (Council of Europe) would not cover nationals of countries which are not party to this Convention.89 Furthermore. Keesing Journal of Documents & Identity.140 Chapter 5 procedure. L. a national criminal record system can consult the index and find out whether the third-country national has a criminal record. E-passports waste of money. including fake passports.2006. http://euobserver.91 It seems that EU Member States deliberately did not assess the overall effects of the different proposals providing for the use of biometrics. On the basis of a person’s identifier. this would cause 1000 people to be ‘automatically’ (but wrongfully) stopped every day. but without broadening it to a general discussion on the subject.5. with regard to biometrics.5 to 1% is considered normal. 4.7. p. COM (2006) 359. the fraudulent issue of a genuine passport cannot be prevented. 7 August 2006. Biometric systems from the 1970s to date. See further De Hert. Issue 16. . The risk of false recognition can be caused by the fact that biometric data such as fingerprints may change over time. which would mean a False Rejection Rate of 0.”92 5.000 people per day suffers from a false negative. commentators stressed that the use of biometrics will not rule out identity theft or forgery. it is relevant to note that in July 2006 the Commission adopted a proposal to improve the exchange of information on criminal records within the European Union. If only one percent of a targeted group of 100. The proposed index would allow Member States to receive immediate confirmation of which other Member State holds information about a third-country national. 9672/05. to be introduced in a number of EU Member States.5 to 1% with regard to measures and checks based on VIS. Kirk. This can be concluded from a Presidency note on the assessment of the state of the SIS II project. Linking Persons to Documents with Biometrics.90 This lack of security of new e-passports. Index on Criminal Records of Third-Country Nationals Without going into detail on this more recent development. 2 June 2005. com/. During a conference in Las Vegas. 2006. was illustrated by a German computer security expert in August 2006. Schreurs & Brouwer (2006). says security expert. an error rate of 0. Wayman. according to which the Member States want to have “a transparent discussion on the handling of biometric data in the framework of SIS II. 89 90 91 92 93 J. Although biometrics prevent so-called ‘identity substitution’ to a certain degree. 14. this expert demonstrated how personal information stored in the documents could be copied and transferred to another device. Secondly. p.1. 15. at the internal94 and external borders.2 CISA. . including the use of biometrics. or the balance between these interests. The legal and practical implementations of large-scale EU-wide databases. and at the consular post abroad. on the decision-making regarding Eurodac: Aus (2006). according to the information stored in VIS. Central Databases. These migrants include persons staying irregularly in their territory. The use of these EU databases implies a presumption concerning the legal or virtual status of an individual. asylum seekers and migrants declared inadmissible by national authorities. A third-country national reported in SIS II on the basis of Article 24 of the Regulation is presumed “inadmissible” based on public order or security grounds. The set-up of these centralised databases is closely related to the aim of the EU governments to acquire an additional tool or mechanism for controlling the entrance and movement of migrants. VIS and Eurodac will not only be accessible at the external borders of Member States. focussed on the registration of third-country nationals and that they include biometric data.Other EU Databases Used in the Field of Immigration Control 141 One of the options to be dealt with in the forthcoming preparatory work is the possibility of adding a ‘biometric search engine’ to allow for general searches on biometrics. a person whose visa has expired. A hit based on Eurodac implies that the person concerned is presumed to have arrived through the territory of another Member State and thus may be sent back to this country. but also within the national territory and at the embassies and consulates of third countries. or because he or she may have infringed national immigration law. see Chapter 2. Eurodac. Immigrants and Biometrics SIS II. Comparing SIS II. This means that border control is performed at different levels: within the country. Eurodac and VIS have the common feature of being centralised largescale databases.96 94 95 96 Based on the application of Article 2. Finally.95 The decisions to develop Eurodac. SIS II. and VIS is that in the decisionmaking. the decisions on the technical feasibility of these systems preceded the political decisions on the desirability or even necessity of these systems. may be immediately expelled when his or her VIS record is checked by a national authority. were only dealt with as a matter of secondary concern or as a limiting condition. VIS and SIS II were taken without a fundamental discussion of the expected efficiency of these systems. Eurodac and VIS 6. This will be discussed further in Part II. 6. See. the consequences for individual rights. A third common feature of SIS II. Differences Between SIS.142 Chapter 5 6. taking into account who is likely to be a risk from the viewpoint of illegal immigration. on the basis of the annual figures from Eurodac. . registration in VIS will only affect the nationals of those states. Since EU visa policy is based on the so-called ‘visa lists’. As we have seen in Chapter 4. one can see that practical implementation is different for each EU Member State. The question of when and which third-country nationals are fingerprinted for storage in Eurodac is dependent on national policies and the practice of the national officials in question.98 This is particularly true when the person is reported by a Schengen State on the basis of national provisions and that person is not informed of the data or the reasons for this report. the authorities should perform an individual assessment and proportionality test. address or date of birth: only the fingerprints of the person concerned and the place and date of arrival. including the third countries whose nationals are obliged to obtain a visa before entering European territory. the fingerprint data may however be ‘connected’ to the personal information for that person. there is an important difference with regard to the criteria based on which an individual can be recorded. Eurodac. the question of which types of behaviour exactly produce this effect is still not transparent.97 Since the Schengen rules do not give harmonised rules on the criteria for having a third-country national reported in SIS. security or criminal offences. This is the case when data on third-country nationals are recorded in SIS II on the basis of the criterion that there is a “clear indication” that he or she intends to commit a serious criminal offence.2.99 In principle. unlike SIS II or VIS. 97 98 99 Guild (2001). Using the reference number in Eurodac. the Regulation on SIS II stipulates that. Furthermore. The inclusion of persons in SIS or SIS II is based on the individual behaviour of a person. in other words information of which the accuracy or correctness is not guaranteed. before entering an alert into SIS II on a third-country national. 35. However. According to Article 96 CISA this was “clear evidence”. it is possible for SIS or SIS II to include ‘soft’ data on third-country nationals. and VIS Despite these common features. In the first place. VIS will include data on each individual applying for a visa for one of the EU countries and data on the EU or non-EU citizens inviting (or sponsoring) the visa applicant. there are also differences between the systems. p. Although individual behaviour is the basis for being registered in SIS II. Eurodac does not include personal data: no name. situations in which a person can find himself reported in SIS are to a certain extent arbitrary. registration in Eurodac includes every asylum seeker applying for asylum in one of the Member States or every person entering the territory illegally. Furthermore. Other EU Databases Used in the Field of Immigration Control 143 In practice, the majority of persons inviting the visa applicants will hold the nationality of a third-country state or will originate from a third-country. The selection of states to be placed on the visa lists can be compared with the national decision to enter a record of a person as “inadmissible” into SIS. Whereas the reporting of individuals in SIS is based on a profile of individual behaviour, the EU visa list is based on a profile of countries. Is the country in question to be considered a ‘risk country’ with regard to illegal immigration or with regard to the internal security of the Member States?100 In practice, the majority of the individuals recorded in VIS will not imply any “security risk” at all. 6.3. Intelligence Tool or Administrative File? SIS I was not set up for intelligence purposes unlike, for example, the Europol databases. The SIS includes limited categories of personal data and, depending on the aim for which the data are stored, these categories are only accessible to the administrations which were authorised to use these data for their public tasks. Secondly, the current SIS operates on a ‘hit/no hit’ basis. This means that when governmental administrations check whether a person has been reported to SIS, they will in the first place only obtain information on whether this is the case or not. If the person is in SIS, the authorities can directly view, depending on the reporting category, which action is to be taken. Although the EU Ministers confirmed in June 2003 that this ‘hit/no hit’ basis would be maintained for SIS, we saw in Chapter 4 that the decisions adopted since then show that SIS II has developed into a database for general intelligence purposes. The primary function of Eurodac is purely administrative; it monitors only when and in which country an asylum seeker has entered or applied for asylum. Its purpose is to establish which country is responsible for the examination of the application of an asylum seeker. Nevertheless, in combination with the other European databases, Eurodac and the use of the fingerprints stored therein can be easily used for other purposes as well.101 According to the plans for the European Visa Information System (VIS), this will be a multifunctional system. The Commission and the Member States 100 101 R. Cholewinski, The EU Acquis on Irregular Migration: Reinforcing Security at the Expense of Rights, EJML 2, 2000, p. 361–405. See further on the EU visa policy and the criteria used for placing third country on the ‘black list’ or not: E. Guild, The Borders Abroad – Visas and Border Controls, in Groenendijk, Guild & Minderhoud (2003), pp. 87 –104. In June 2007, the JHA Council invited the European Commission to present “as soon as possible” a proposal to amend the Eurodac Regulation, granting police and law enforcement authorities and Europol access to Eurodac. 10002/07, 25 May 2007. See also JHA Conclusions, 12–13 June 2007, 10267/07 (Presse 125). 144 Chapter 5 described the multiple goals of this system: misuse of identity; prevention of illegal immigration and visa shopping; implementation of Dublin II and the fight against terrorism. Whereas the SIS is used to restrict the entry of unwanted aliens into the Schengen territory, the purpose of VIS will be primarily to provide officials and governments with knowledge of every person who is seeking access to one of the EU countries, the persons inviting these third-country nationals and persons crossing EU borders who do not leave before expiry of their visas. An important incentive for governments to develop this latter system was its use for safeguarding internal security. This goal has been facilitated by the inclusion of biometrics, as well as by the registration of personal information on every visa applicant in VIS. This means that VIS, although apparently set up as an administrative file, will in practice function as an intelligence tool. The reason I have focussed on these differences in the central purpose and features of SIS II, Eurodac and VIS is because this may become a crucial factor when assessing the lawfulness or proportionality of the further use of these data systems. This will be further elaborated in Part II of this study, dealing with the legal rights of individuals. Part II Effective Remedies under European Law Chapter 6 Data Processing and the Right to Privacy: The Importance of Article 8 ECHR “The right to privacy is a widely recognized opacity tool to prohibit certain uses of power. It may not be the strongest human right enlisted in the ECHR and it may also well be that the ‘reign’ of privacy in discourse is over, but nevertheless the right is there and has its proper place: prohibiting the uses of powers in spheres intimately linked with the development of the individual and especially when these powers make use of new technology.”1 1. Introduction When considering the storage and use of personal information, the rights of individuals are generally defined in terms of data protection and privacy. Although these rights are closely related, I prefer to describe the right to privacy or private life separately from the right to data protection. The following sections examine the jurisprudence of the European Court of Human Rights (ECtHR) on Article 8 of the European Convention on Human Rights (ECHR), dealing with the claim that data processing measures or the use of databases may interfere with the right to privacy. In this Chapter, I will not try give a detailed analysis of the content of the “right to privacy”.2 The purpose of the following sections is merely to describe the general criteria resulting from the jurisprudence of the ECtHR on Article 8 1 2 P. de Hert & S. Guthwirth, Making sense of privacy and data protection: a prospective overview in the light of the future identity, location-based services and virtual residence, Annex 1 to the report Security and Privacy for the Citizen in the Post-September 11 Digital Age: A Prospective Overview, Technical Report Series, Institute for Prospective Technological studies, EUR 20823 EN, July 2003, p. 144. For this purpose, I refer to general literature: P.H. Blok, Het recht op privacy. Onderzoek naar de betekenis van het begrip ‘privacy’ in het Nederlandse en Amerikaanse recht, The Hague: Boom Juridische Uitgevers 2002; E. Barendt (ed.), Privacy, Aldershot: Ashgate 2001; F. Rigaux, La protection de la vie privée et des autres biens de la personnalité, Brussels: Émile Bruylant 1990; P. Kayser, La protection de la vie privée, Marseille: Presse universitaires d’Aix-Marseille 1990. Evelien Brouwer, Digital Borders and Real Rights, pp. 147–176. © 2008 Koninklijke Brill NV. Printed in the Netherlands. 148 Chapter 6 ECHR in the field of governmental measures on the use of personal information. When does Article 8 ECHR apply and what are the criteria as formulated by the ECtHR with regard to the availability of effective remedies in order to protect the right to privacy? The aim of this Chapter is to discover when Article 8 ECHR becomes relevant for the actual theme of this research: the use of SIS and other EU databases used for immigration and border control. Before going into the jurisprudence of the Strasbourg Court, I will briefly summarise which role the right to privacy or private life has been given in the decision making process on EU data bases and data processing. 2. Taking Article 8 ECHR into Account in EU Policy 2.1. SIS and SIS II In the discussions on the establishment of SIS I, the right to private life as protected in Article 8 ECHR did not play an explicit role. When considering the protection of the rights of individuals, even if this was often referred to as “privacy rights”, both negotiators and commentators focussed on the necessary safeguards as provided for in data protection law.3 As we will see in the next chapter, thanks to active lobbying by data protection authorities, the final text of CISA included explicit provisions on data protection to safeguard the rights of data subjects and referred to the Council of Europe Data Protection Convention of 1981 and the Recommendation on Police Files as basic principles to be implemented by the Schengen States. Even if these instruments of the Council of Europe are based on the right to private life as protected in Article 8 ECHR, the real consequences of the development of the use of a large database for the individual’s right to private life were not further explored by the Schengen states. During the debate on the approval act of the CISA, members of the Dutch parliament questioned the Minister of Justice on whether the criteria for reporting persons in the NSIS were in accordance with the right to privacy as protected in Article 8 ECHR.4 More specifically, they asked whether the reasons for registration complied with the criterion of “necessary in a democratic society of Article 8 (see below)”. The Minister of Justice answered initially that this was a “relevant question” for the interpretation of Article 96 CISA but at that moment he was not able to answer this question. Pressed by the members of parliament for a further response, the Minister later stated that, when drafting the provisions of 3 4 L.F.M Verhey, Privacy aspecten van de uitvoeringsovereenkomst van het akkoord van Schengen, NJB 31 January 1991, no. 5, p. 217. Handelingen Tweede Kamer (Dutch Lower House of Parliament), 1991–1992, 22 140, no. 11, p. 35. Data Processing and the Right to Privacy 149 CISA, the Schengen States would have checked each alert to see whether the criteria were in conformity with the principle of necessity.5 During the development of the second generation SIS, the right to privacy was only marginally discussed and mostly the rights of individuals were considered in terms of ‘data protection’. Not until 2004, in a discussion paper concerning the opinion of the Joint Supervisory Authority on the development of SIS II, did the Dutch government, as EU Council president, propose facilitating a debate on the future purpose of the SIS. In this paper, the Dutch Presidency explicitly referred to issues of transparency and privacy and questioned whether the other Member States considered it necessary to incorporate a privacy assessment into the development of SIS II.6 To my knowledge, this inquiry has never been followed up and, at least in the accessible documents, the issue of privacy has never been dealt with further. With regard to the use of biometrics in SIS II, we have seen above that the negotiating partners even explicitly refused to have a general discussion on the impact of the use of biometric data.7 2.2. Eurodac Comparable with the development of SIS I and SIS II, the discussions on the necessity for individual protection at international level concerning Eurodac were limited to data protection issues. However, at the national level, more attention has been paid to the relationship between Eurodac and the right to privacy.8 NGOs in particular raised concerns both over the fact that Eurodac implied the fingerprinting of a large and specific group of people and that the persons to be registered were entirely innocent and not suspected of any crime. In the United Kingdom, the application of Article 8 ECHR was raised by the organisation Justice in its comments to the protocol extending the use of Eurodac to illegal immigrants.9 In the report on Eurodac of 1999, the Select Committee of the House of Lords made it clear that there was “little doubt about that compulsory fingerprinting interferes with the right to respect for private life in Article 8 (1) of the European Convention on Human Rights”.10 The Select Committee especially 5 6 7 8 9 10 Cited in the comments of the NGO, the Dutch Commission of Lawyers for Human Rights (Nederlands Juristen Comité voor de Mensenrechten, NJCM), Spring 1992 (author’s archive). 11055/04, 5 July 2004. 9672/05, 2 June 2005, referred to in Chapter 5. In literature, the application of Article 8 ECHR has been raised in: Birgit Schröder, Das Fingerabdruckvergleichssystem Eurodac, ZAR 2/2001, p. 71–76. See also my article, Eurodac: Its Limitations and Temptations, EJML 4, 2002, p. 231–247. JUSTICE, Letter of 3 March 1999. House of Lords, Select Committee on European Communities (Sub-Committee E), Tenth Report, Fingerprinting Illegal Immigrants: Extending the Eurodac Convention. 8 June 1999, p. 21. 150 Chapter 6 questioned the justification for the fingerprinting and whether the governments had sufficiently established the need and proportionality of this fingerprinting (including the fingerprinting of illegal immigrants). In this report, the Select Committee emphasised the Europe-wide impact of Eurodac, partly because of the fact that fingerprinting is compulsory for the persons concerned. During the parliamentary discussions in the Netherlands on Eurodac, the question of whether there was a breach of Article 8 ECHR was dealt with on the basis of comments by the Dutch NGO, the Meijers Committee.11 According to this NGO, there were no legitimate grounds for the general fingerprinting of every asylum seeker and illegal immigrant as provided in the Eurodac Convention. During the parliamentary questions, the Minister of Justice argued that since fingerprinting was “desirable” for the purposes of the Dublin Convention (see above), this measure would be in accordance with the grounds for limitations in Article 8 (2) ECHR.12 It should be noted here that it is doubtful whether the criterion “desirable” meets the criterion of “necessary for a democratic society”. 2.3. VIS During the development of the Visa Information System (VIS) an assessment of “the impact on privacy and human rights” was included in the Extended Impact Assessment published in 2004, together with the proposal for a VIS Regulation.13 To compare the costs of the alternative policy options with regard to the establishment of VIS, this report described the “impact on privacy and human rights” alongside “financial costs”, “opportunity costs”, “retaliation costs” and “reductions in business travel and tourism”. Both with regard to the option of an entry/exit system based on VIS (checking persons whenever they enter or leave the territory) and the establishment of VIS including biometrics, the Impact Assessment study emphasised their extensive impact on the protection of the right to privacy: “Impact on privacy and human rights would be extensive, and there would be a substantial need to meet personal data requirements. The collection, storage and use of highly personalised and sensitive data, such as biometrics of all travellers applying for a visa to enter the territory of the Schengen states, would raise concerns over the proper use and protection of personal data of travellers on such a massive scale.”14 According to the Extended Impact Assessment on VIS, “The principles of proportionate and fair use of personal data and high security in the 11 12 13 14 Letters to the Dutch Parliament and the Minister of Justice on the Eurodac Convention, CM98026, 24 February 1998 and CM98-094, 18 June 1998. Handelingen Tweede Kamer, 1997–1998, 23 490, nos. 92 and 97. SEC (2004) 1628, 28 December 2004, EPEC Final report, December 2004. See p. 37 and 45. Data Processing and the Right to Privacy 151 system would have to be considered carefully”. In particular, the principles of proportionality and the necessity for storage and processing would have to be implemented in full.15 Furthermore, according to this report, the impact on privacy will depend on what biometrics are taken, for how long they are stored and which authorities will have access to the data. The drafters of the Impact Assessment Report did not refer to Article 8 ECHR. The Commission, when publishing the proposal on the VIS Regulation, seemed not to take into account the concerns on the possible impact of VIS, including biometrics, for the right to privacy as mentioned in the Extended Impact Assessment Study. In the proposed preamble (20) to the proposal for the VIS Regulation, it was only stressed that the Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.16 In the explanatory memorandum, the Commission did not mention the right to privacy, but only considered that “in view of the related sensitive issues for the protection of personal data, inter alia the consultation of the Article 29 Working Party is required”. With this conclusion, the Commission disregarded the fact that the specific concerns mentioned in the impact assessment were already based on an earlier and critical opinion expressed by the Working Party on the use of biometrics.17 In their opinions on the development of VIS and related issues, the EDPS and the Article 29 Working Party explicitly considered the impact of these developments on the right to privacy. The EDPS referred to Article 8 ECHR when considering the purpose and proportionality of the VIS. According to the EDPS, in the light of Article 8 ECHR and the general data protection framework, the purpose of VIS would be of crucial importance and “all the elements of the VIS must be necessary and proportional instruments to reach this policy goal in the interest of the common visa policy.” Although the EDPS defined safeguards regarding the use of VIS and especially the incorporation of biometrics, it did not give any detailed analysis on the criteria derived from Article 8 ECHR. The Article 29 Data Protection Working Party considered more elaborately the scope and applicability of Article 8 ECHR with regard to the establishment of VIS.18 This Data Protection Working Party was especially concerned about the far-reaching consequences of the large-scale collection and processing of personal 15 16 17 18 Study for the Extended Impact Assessment of VIS, SEC (2004) 1628, 28 December 2004, EPEC Final report, December 2004. p. 45. COM (2004) 0287, 28.12.2004. The Article 29 Working Party is an independent European advisory body on data protection. See the Working Document on biometrics, WP 80, 1 August 2003. http://europa.eu.int/ comm/justice_home/fsj/privacy/workinggroup. Opinion 1022/05/EN, WP 110, 23 June 2005. 152 Chapter 6 data on individual human rights, in particular the right to privacy. The Working Party criticised the multipurpose structure of VIS, including the use of biometrics, and questioned whether this would meet the criteria of proportionality and necessity on the protection of the right to privacy as developed by the European Courts, in this case both the ECtHR and the European Court of Justice (ECJ). In their opinions, both the EDPS and the Working Party referred to the judgment of the ECJ in the case of Österreichischer Rundfunk and others.19 In this judgment, the ECJ explicitly applied Article 8 ECHR in application of EC Directive 95/46 on the protection of personal data. The ECJ confirmed that the processing of personal data may constitute an interference with the right to private life as protected by Article 8 of the ECHR; this interference must be in accordance with the law and necessary in a democratic society for a legitimate aim. According to the ECJ, where the provisions of the EC Directive allow for a limitation of the rights of the data subjects, the criteria of Article 8 ECHR (and their interpretation by the ECtHR) should be applied to assess firstly whether the applicable legislation interferes with the right to private life and, if so, whether that interference is justified from the point of view of Article 8 ECHR. 3. Article 8 ECHR and Data Processing: When is there an Interference with the Right to Private Life? Article 8 ECHR reads: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democraticsociety in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. It is not easy to make a comprehensive analysis of the jurisprudence of the ECtHR on Article 8 ECHR. Since every case in which the Strasbourg Court has dealt with this human right has its own specific features, it is not always possible to reach general conclusions.20 In its judgments, the ECtHR repeatedly stressed that 19 20 Rechnungshof v. Österreichischer Rundfunk and Others (also referred to as Rechnungshof case), Joint Affairs C-465/00, C-138/01 and C-139/01, ECR I-4989 §§ 71–83. See further Chapter 7. See also L.A. Bygrave, Data Protection pursuant to the Right to Privacy in Human Rights Treaties, International Journal of Law and Information Technology, 1998, vol. 6, p. 247–284. Data Processing and the Right to Privacy 153 a clear-cut definition of the right to private life is impossible: “private life should be considered as a broad term which is not susceptible to an exhaustive definition”.21 In general, the ECtHR made it clear that one of the purposes of the right to private life is to protect the right to identity and personal development. This protection should not be limited to the private sphere or the home of the individual since, in the words of the ECtHR, Article 8 ECHR also protects “the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature”.22 In different judgments, the ECtHR concluded that the right to private life was infringed by the collection, registration or use of personal information. With regard to public registrations, the ECtHR considered elements such as gender identification, name, sexual orientation and sexual life as important elements of the personal sphere protected by Article 8. However, it is clear that this is not meant to be a limitative list.23 In the following sections, I will apply the scheme which is generally used by the ECtHR to establish whether, when dealing with data processing, there is a breach of Article 8 ECHR: is there an interference with the right to private life; is the interference in accordance with the law, and is this interference necessary in a democratic society? Only when it is established that Article 8 ECHR applies and there is an infringement of someone’s right to private life, can we consider which legal remedies should be provided for by the national legislator. 3.1. Secret Police and Security Files: Leander and Segerstedt-Wiberg The first case in which the ECtHR was asked to rule on the relationship between the recording of personal data by the government and the right to private life is the Leander v. Sweden judgment of 26 March 1987.24 This case dealt with information stored in secret police files, which was used by the applicant’s employer, the board of the Naval Museum, where he was temporarily hired as a museum technician. Based on this information, Mr. Leander was told to leave his work before the expiry of his contract. Leander, who had previously been a member of the Swedish Communist Party and of a soldiers’ union, was not informed of the reasons for this decision. The ECtHR found it uncontested that the secret police file contained information relating to the applicant’s private life. Both the storage and release of data concerning his private life in a secret police file and communication of these data to employers, coupled with the refusal to allow the applicant 21 22 23 24 In P.G. and J.H. v. the United Kingdom, 25 September 2001 no. 44787/98, § 56, Reports 2001IX and also Peck v. UK, 28 January 2003, appl. no. 44647/98, Reports 2003-I. § 57. Niemietz v. Germany, 16 December 1992, appl. no. 13710/88, Series A, no. 251-B, § 29. P.G. and J.H. v. the United Kingdom, § 56 and Peck v. United Kingdom, § 57. Leander v. Sweden, 26 March 1987, appl. no. 9248/81, Series A, no.116. In its judgment. With regard to the first applicant.26 This judgment concerned five Swedish nationals who complained about the storage of their information in files belonging to the national security agencies. § 48. In Rotaru v. Published in EHRC 2006. the applicant had waived his right to “anonymity” by engaging in political activities and publishing pamphlets. amounted to an interference with his right to privacy as guaranteed in Article 8. no.27 This case concerned the claim from a Romanian lawyer who had started proceedings against the Romanian Intelligence Service with regard to files including information on his alleged membership of a legionnaire movement and on the publication of two antigovernment pamphlets. Referring to its earlier judgment in the Leander case. the ECtHR also considered the (lack of ) effectiveness of the applicable remedies and the (lack of ) powers of the national data protection authority. not only because of the long period during which the data had been kept on file. no. The ECtHR concluded. 28341/95. Sweden. 62332/00. appl. appl. Romania (see also below).25 Almost twenty years later. there had been a disproportionate breach of their right to private life. the ECtHR found that there was no violation of Article 8 since the data was held for the safety of the applicant herself. a former member of the Swedish Parliament who had been the subject of a bomb threat. relevant threat to national security. Romania.154 Chapter 6 the opportunity to refute them. concerned the political opinions and activities of the applicants. but also because of the absence of a current. Segerstedt-Wiberg and others v. The infringement of the right of freedom of information was based on the fact that the data collection. Sweden. the ECtHR did not find any breach of Article 8 ECHR. Repeating 25 26 27 Leander v. As we see below. with regard to four applicants that the continued storage of the information (in one case up to 30 years). As we will see below. . constituted a violation of Article 8 ECHR and Article 10 ECHR regarding the freedom of information. Rotaru v. the ECtHR ruled in a comparable case which also dealt with secret police files in Sweden (Segerstedt-Wiberg and others v. 4 May 2000. According to the government. Rotaru’s right to private life had been infringed even though. the information concerned his “public life”. 89 with annotation of Jan Peter Loof. in particular. for the other applicants. This argument was rejected by the ECtHR. Reports 2000-V. the ECtHR emphasised that the storage of information about an individual’s private life in a secret register and the release of such information fall within the scope of Article 8. Sweden). after publication of the Leander judgment. as set forth by the Romanian government. The ECtHR found that. the applicant claimed. the ECtHR assessed the lawfulness of files held by the Romanian Intelligence Service. From these files. 6 June 2006. the Intelligence Service had provided information to the Romanian Minister of the Interior. the Strasbourg Court made it very clear that Mr. including the information on the applicant’s HIV infection.28 This case concerned the question of whether the right to private life as protected in Article 8 ECtHR included the right to have access to his or her personal information. According to the ECtHR. the ECtHR applied Article 8 ECHR for the second time directly to personal data files in the public sector in the case Gaskin v. Finland (1997). no. 160. the ECtHR referred to the earlier conclusion of the Commission that the files at stake unquestionably contained information concerning “highly personal aspects of the applicant’s childhood. In this judgment. appl. including information on his HIV infection. Z and Goodwin In 1989. 7 July 1989. §§ 95–100. Mr. In Z v. the United Kingdom. 22009/93. Child care Records. especially based on the fact that this case concerned the disclosure of medical files. In his youth. the ECtHR referred for the first time explicitly to the obligations of the Data Protection Convention of 1981. 25 February 1997. not least medical data. Germany. Despite this restriction. to a certain degree. against the disclosure of his health records. the ECtHR made it clear that respect for private life must also comprise. Z v. . In its judgment. the right to establish and develop relationships with other persons. During his procedure before the national authorities and. 3. The ECtHR concluded there was a breach of 8 ECHR. “the protection of personal data. the judgment has been considered an important development in the recognition of the right to access as one of the positive duties of governments with regard to the application of Article 8 ECHR to public files.Data Processing and the Right to Privacy 155 its earlier conclusions in Niemietz v.29 This information was revealed during court proceedings without the applicant’s consent. Finland. The government justified the refusal to give Gaskin access to his information by stating that these files also contained information on other persons whose privacy had to be protected. The municipal child care organisation which held this information made access to this file dependent on the authorisation of the applicant’s mother. finally. The ECtHR made it clear that this conclusion applied only with regard to this specific case and the ECtHR did not intend to formulate a more general principle. Gaskin was in the care of the Liverpool City Council. the United Kingdom. Health and Gender Information: Gaskin. development and history and thus could constitute his principal source of information about his past and formative years”. Reports 1997-I. is of fundamental importance to a person’s enjoyment of 28 29 Gaskin v. no. appl.2. the ECtHR dealt with the appeal of Z. 10454/83 Series A. The ECtHR confirmed the importance for the applicant to have access to the files concerning his youth (§ 37). before the ECtHR he complained about the refusal by the local authorities to give him access to information concerning his youth. The special responsibility of the data processor towards sensitive data can be explained firstly by the fact that the information at stake. 11 July 2002. 23990/94. the United Kingdom. appl. It is exactly this kind of information that individuals generally do not wish to disclose to others. no. such as data on ethnicity.30 Since 1986. sexual life. as well as information about a person’s youth. at this point. UK. 8532/81. on the basis of more current developments. 184 (the latter judgment contained a very strong dissenting opinion by Judge Martens). emphasised the need to keep appropriate legal measures under review. In these judgments.156 Chapter 6 his or her right to respect for private life and family life as protected in Article 8 of the Convention”. Reports 1998-V. political opinions or the religion of the person.” Finally. belongs to the core of a person’s private life. see § 93: “Since there are no significant factors of public interest to weigh against the interest of this individual applicant in obtaining legal recognition of her gender re-assignment. no. . 106.31 In 2002. 27 September 1990. Series A. no. it reaches the conclusion that the fair balance that is inherent in the Convention now tilts decisively in favour of the applicant”. § 60. The other 30 31 32 Rees v. one could refer to the jurisprudence of the ECtHR with regard to claims from transsexuals to have the information concerning their sex changed in public files. identity cards or driving licences. appl. no. 17 October 1986. Cossey v. the ECtHR emphasised the special responsibility of public authorities with regard to the storage and processing of sensitive information such as medical data or gender information. but also “his or her confidence in the medical profession and in the health services in general. 10843/84. the United Kingdom. 30 July 1998. by stating that the reason for this protection and the respect for confidentiality is not only to protect the privacy of the person concerned. having regard to scientific and societal developments. section 5. for example medical data. appl. the ECtHR. In this conclusion. 28957/95 (unreported). in Goodwin v.3. the United Kingdom. appl. data protection law includes extra safeguards with regard to the processing of sensitive data or “special categories of data”. the United Kingdom. as well as birth certificates.32 Although the type of information dealt with in the case law described above does not directly relate to the subject of my research. the duties of a national state to recognise and legalise a change of sex in governmental files on transsexuals could be more strictly defined. Initially. the national authorities were given a wide margin of appreciation because of the lack of general consent in the European States with regard to the acceptance of transsexuality. the ECtHR considered that. these judgments illustrate the close relationship between the storage or disclosure of personal information and the individual right to respect for private life. As we will see in Chapter 7. as in the Gaskin case. gender. the ECtHR referred to the more general function of confidentiality in the health sector. Sheffield and Horsham v. Christine Goodwin v. Series A. 22985/93. 000 Swiss francs for the unlawful registration of his particulars in the card index held by the Public Prosecutor’s Office. where it cannot be consulted for fifty years. §§ 68–70. It is no coincidence that the principle of non-discrimination in Article 14 ECHR or Article 13 of the EC Treaty includes more or less the same grounds as a basis for prohibiting discrimination. Systematic Collection and Storage of Personal Information by Public Authorities: Amann and Rotaru In several judgments. Switzerland of 16 February 2000. When. This telephone call was intercepted by the Federal Public Prosecutor’s Office (Bundesanwaltschaft) in Switzerland. in 1990. Article 8 applies to the storage of information relating to an individual’s private life by a public authority. it is clear that this special responsibility of national authorities for certain categories of data also concerns the use of biometrics and data on the nationality and the ethnic origin for the purposes of identity controls or visa applications. The applicant in this case was a Swiss salesman of “depilatory appliances”.33 In this interpretation. 33 34 Amann v. no. His application was rejected by the Federal Court but. the public was informed of the existence of the card index held by the Public Prosecutor’s Office.. asked to see their cards. in 1996. since this gives a broad interpretation of Article 8 with regard to files held by the government. claiming compensation from the Confederation of 5. One very important decision is the judgment of 16 February 2000 in Amann v. the ECtHR again referred to the Data Protection Convention. Switzerland. On 9 March 1992. appl. including the applicant. He also requested that his file and card be sent immediately to the Federal Archives with a ban on making any copies and that the authorities be ordered to store the information under lock and key and not to disclose any of it without his agreement. 27798/95. . which he advertised in magazines. the applicant filed an administrative law procedure with the Federal Court. regardless of the sensitivity of the data and regardless of the use that is effectively being made by third parties. Later. Ibid. In my view.34 In this case. the Public Prosecutor’s Office drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the Canton of Zürich. 3.Data Processing and the Right to Privacy 157 reason why sensitive information needs extra protection is that the use of this information more easily results in discrimination against the person concerned. In 1981. Reports 2000-II. the applicant’s card was removed from the card index and transferred to the Federal Archives. many people. the ECtHR applied Article 8 ECHR on the basis of the criterion that there is systematic collection and storage of data. a woman telephoned from the Soviet embassy in Bern to order one of his items: the ‘Perma Tweez’ appliance.3. . the ECtHR gave a broad interpretation of the right to private life. “espionage established” (0) and “various contacts with the Eastern bloc” (614) (see §§ 22 of the judgment). the Swiss government contended that the applicant’s private life would not in any way have been inconvenienced as a result of the creation and storage of his card. The ECtHR explicitly concludes that such a broad interpretation corresponds to that of the Council of Europe’s Data Protection Convention of 28 January 1981.158 Chapter 6 In this judgment. Firstly. the card only included the information that the applicant had “contact with the Russian embassy” and was doing “business of various kinds with the [A. the applicant’s lawyers submitted that the codes used on the card (1153: 0) (614) referred to the meaning “communist country” (1). §§ 69–70. Secondly. The ECtHR made it clear that the creation of the card 35 Ibid. irrespective of whether this information was subsequently used. Furthermore. noting “that it is not for the ECtHR to speculate as to whether the information gathered on the applicant was sensitive or not or as to whether the applicant had been inconvenienced in any way”. the ECtHR emphasised. In fact. In the case of Amann. “Soviet Union” (153). unfamiliar as they were with the ‘Perma Tweez appliance’ in which the applicant was trading. that there is no reason in principle to justify excluding activities of a professional or business nature from the notion of “private life”. which “in all probability [has] never been consulted by a third party”. other (censored) information which was held on the card was not disclosed to the applicant. the ECtHR rejected the submission of the Swiss government that the file in question did not contain sensitive data. . The Strasbourg Court found it sufficient to find that data relating to the private life of an individual were stored by a public authority in order to conclude that the creation and storage of the impugned card amounted to an interference within the meaning of Article 8.35 The refuted practices of the Swiss authorities in the Amann case can be compared with the practice of data profiling or the collection of data on a group of persons based on certain common criteria rather than based on their individual behaviour. by referring to its earlier conclusions in the Niemietz case. the Swiss authorities were monitoring all phone lines from the (former) Soviet embassy. In the first place. Since the right to respect for private life comprises the right to establish and develop relationships with other human beings. by explicitly rejecting the reasons given by the Swiss government for limiting the scope of Article 8 ECHR.] company”. this right should inherently be extended to the public sphere. However. the Swiss authorities suspected the content of the phone call. Thirdly. the extra surveillance measures by the Swiss authorities and the creation of a card were only based on two “suspicious facts”. Secondly. The ECtHR countered this argument. no. 25 September 2001. In its judgment Rotaru v. Even if the applicants only answered formal questions in a place where police officers were listening to them. and J. when systematically collected and stored in a file held by agents of the State. some of which had been gathered more than fifty years earlier. 4 May 2000. once systematically stored. and J.4.H. falls within the scope of “private life” for the purposes of Article 8 (1) ECHR. the United Kingdom. This would be all the more true when such information concerns a person’s distant past. With regard to this particular case.H. was also used in the judgment in P. 44787/98.H. UK. The criterion that even information belonging in the public domain may fall within the protection of a person’s private life.37 3. the recording did not include any infringement of the right to private life. § 38 and Segerstedt-Wiberg. this was all the more true since the information at stake had been declared false and was likely to damage the applicant’s reputation. 63737/00. 28341/95. See also Perry v.G. the ECtHR referred more explicitly to the criterion of systematic collection and storage. even in a public context. In this case. therefore. regardless of whether or not the information was subsequently used.G. v. Recording of Voices and Video Images Collected in the Public Domain: P.G. Reports 2000-V. even public information may fall within the scope of private life when it is “systematically collected and stored in files held by the authorities”. v. . Reports 2003-IX. Romania. according to the ECtHR. UK (see below) and in SegerstedtWiberg v. in particular his studies.36 According to the ECtHR. no. appl. the United Kingdom. 17 July 2003. § 72.G. the UK government submitted that the subject of these recorded conversations did not contain any private or substantive information and. his political activities and his criminal record. Romania. and J. According to the ECtHR. P.2 below. This argument was rejected by the ECtHR. Reports 2001-IX. In the ECtHR’s opinion. Sweden. See further section 6. appl.H. no. which may fall within the scope of private life. such information. § 11. v. a conversation between the two applicants had been recorded secretly while they were being charged at a police station and after they had refused to provide voice samples voluntarily. considering that there is a zone of interaction between a person and others. must be considered a breach of Article 8 ECHR. and J. the recording and analysis of their voices on this occasion was. appl. UK In the case of P. the ECtHR noted that the refuted letter from the Romanian Security Agency contained various pieces of information about the applicant’s life. still to be regarded as the processing of 36 37 Rotaru v. v. §§ 43–44.Data Processing and the Right to Privacy 159 file.4. 160 Chapter 6 personal data about the applicants. . the United Kingdom. Series A. Use of Information Beyond What is Normally Foreseeable: Perry. Series A. 6 September 1978. §§ 33–36. no. In Peck v. duration and costs of call) form an integral part of the protected telephone communication. the ECtHR concluded that the further use of video surveillance by the police also violated the right to private life of the applicant. Germany. the ECtHR went further by finding that not only the content of telephone calls. 28 January 2003. Peck v. the United Kingdom.H. Klass v.G. appl.39 During his interrogation at the police station. UK and Peck v. The permanent recording of the footage and its inclusion in a montage for further use was regarded as the processing or collecting of personal data about the applicant. Reports 2003-I. As we will see below. v. UK. appl.40 3.5. Peck and Lupker In cases where the data had not been obtained voluntarily or in circumstances where it could reasonably be anticipated that it would be recorded and used for 38 39 40 41 42 P. § 84. the ECtHR held that even if information has not been gathered by any intrusive or covert method. Malone v. the ECtHR ruled that telephone calls fall within the meaning of private life and correspondence of Article 8 ECHR. Administrative Data: Malone In Klass v. UK judgments. 3. no. §§ 54–56. Perry v. Both in the Perry v. 8691/79. UK. the police authorities had filmed him secretly after he had refused to participate in an identification parade. but also the administrative data concerning telephone calls (number dialled.41 In the Malone case. the ECtHR held that “private life considerations may arise” “once any systematic or permanent recording comes into existence of such material of the public domain”. the United Kingdom judgment concerned a claim by a person who had been arrested and charged with robbery. the ECtHR dealt with the recording and storage of video images by the police and the question of whether these practices constituted an infringement of an individual’s right to private life. United Kingdom (see below). Furthermore. according to the ECtHR. 82. communication of these data without the prior consent of the person concerned also caused a breach of the right protected in Article 8 ECHR. 2 August 1984. Article 8 ECHR would still apply. appl. 5029/71. 44647/98. The Perry v.6. its subsequent unforeseen use was considered in breach of Article 8 ECHR. Germany.38 Referring to its earlier judgments (including the Rotaru and the Amann cases). no. 28.42 Therefore. and J. This filming using ‘custody suite camera’ was then shown to the witnesses at the identification parade. they complained about the violation of their rights under both Article 5 and Article 6 (1) ECHR with regard to the way they were treated 43 44 45 Perry v.44 According to the Commission in the Lupker case. 305B. United Kingdom of 28 January 2003. appl. Russia. appl. Peck v. .7. they become relevant when the use of large EU databases is closely.Data Processing and the Right to Privacy 161 identification purposes. concerned the case of Russian twin sisters who were prosecuted and charged with fraud by the Moscow authorities. no. the question of whether photographs were legally used by the police in identification albums depended on whether they were obtained voluntarily or under circumstances were it could reasonably be anticipated that they would be recorded and used for identification purposes. UK. the Netherlands and Friedl v. since it resulted in the involvement of the police which prevented him committing suicide.43 The ECtHR referred in this judgment to decisions of the Commission in Lupker v. Austria. no. Lupker and others v. the applicant complained about the publication in the media of police video images. 28 January 2003. I refer to two judgments in which the ECtHR dealt with the withdrawal of passports. the Netherlands. United Kingdom. nor of the fact that this video was shown to witnesses during an identification parade. The ECtHR decided that the disclosure of these records to the media was beyond what was normally foreseeable and therefore interfered with his right to private life. 18395/91. According to the ECtHR. not to say inextricably. §§ 41–43. Passports and Identification Measures: Smirnova and İletmiş Finally. which were recorded by “CCTV cameras” on the street. Austria. Smirnova v. no. See the Commission report of 19 May 1994.45 This video surveillance had actually saved the life of the applicant. Series A. the ECtHR concluded there was interference with the applicant’s right to respect for private life. unreported. 3. §§ 49–52. Although the considerations of the Strasbourg Court on the consequences of the withdrawal of identification papers on the individual right to private life are not directly related to the issue of data processing. neither the applicant nor his solicitor was informed of the making of this video. linked to identification measures. appl. Reports 2003-I. and Friedl v. 15225/89. Commission decision of 7 December 1992. 44647/98. dealing with the unforeseen use by the authorities of photographs which had previously been voluntarily submitted by the applicants. 31 January 1995 (decision of the Court to strike the case from the list. amicable settlement). In the case of Perry v. The first judgment. the ‘ploy’ adopted by the police went beyond the normal or expected use of this type of camera (security cameras). After being discharged. the UK. In the judgment Peck v. The ECtHR considered explicitly that “in their every day life. but also that a national passport was required for more crucial needs such as finding employment or receiving medical care. These procedures were based on the applicant’s affiliations to Kurdish organisations. the applicant was arrested and detained and the Turkish authorities confiscated his passport. the ECtHR reasoned that “in an age when the freedom of movement. İletmiş v. no.46 One of the sisters also lodged an appeal on the basis of Article 8 ECHR. 24 July 2003. even when performing such mundane tasks as exchanging currency or buying train tickets”. accusing him of “separatist activities”. His family (spouse and two children) therefore chose to join him and to live in Turkey. Taking these facts together. especially across borders. her passport was withheld by the Russian authorities. 46133/99 and 48183/99.47 In 1984. was considered 46 47 Smirnova v. appl. for the fact that during the proceedings between 1995 and 1999. After six days he was released but his passport was not given back to him. the Turkish government launched an investigation into the applicant. Reports 2003-IX. the ECtHR considered that it was established that the applicant’s private life was infringed by a “number of everyday inconveniences taken in their entirety” which lasted between 1995 and 1999 (§ 96). the ECtHR also held unanimously that the confiscation of his passport represented a breach of his right to private life. The authorities justified withholding the passport by the fact that the twins had used their similar appearance several times to confuse the investigating authorities. For this conclusion. For seven years İletmiş was not permitted to leave Turkey. Turkey. no. Turkey. the ECtHR concluded in this judgment that the confiscation of the passport constituted continuing interference with the applicant’s private life (§ 97). Russia. concerning a Turkish national who had lived in Germany since 1975. after his passport was returned to him. Not until 1999 was the applicant finally acquitted of the charge of separatist activities and. appl. 6 December 2005. 29871/96 (unreported). the ECtHR concluded that confiscation of her passport included continued interference with the applicant’s private life. Russian citizens have to prove their identity unusually often. After recalling that private life is a broad term not susceptible to exhaustive definition. During his visit to Turkey in 1992. . the applicant and his family were able to return to Germany.162 Chapter 6 during the criminal proceedings. The ECtHR underlined the direct relationship between the obligation upon citizens to identify themselves at various moments and locations with the right to private life. Aside from the conclusion that his right to a fair trial under Article 6 (1) ECHR had been violated by the Turkish authorities. The withdrawal of a passport was also dealt with in İletmiş v. Even if the applicant could not substantiate one specific event which would have constituted disrespect for her private life. 17. 4. denial of that freedom by the State without any good reason constituted a serious failure on its part to discharge its obligations to those under its jurisdiction” (§ 50).Data Processing and the Right to Privacy 163 essential for the full development of private life. The Smirnova judgment illustrates. freedom of movement and the right to private life. p. even though Article 2 of the fourth Protocol to the Convention (signed but not ratified by Turkey) also protects the freedom of movement. . 6289/73. The former relationship is at stake when a person or a specific group of persons is repeatedly confronted with identity checks based on the use of data systems or data profiling. the ECtHR explicitly connected the freedom of movement with the right to private life in Article 8 ECHR. on the one hand (repeated) identity controls and the right to private life and. Series A. this would not mean. especially for people like the applicant. In the Leander case. Is the Interference in Accordance with the Law? Quality of Law Having concluded that Article 8 (1) ECHR applies. 9 October 1979. According to the ECtHR.48 The Smirnova v. According to the ECtHR. in my view. The ECtHR acknowledged that the requirement of predictability in the special context of secret controls of 48 § 50. is “in accordance with the law”. no. appl. or because he or she belongs to a group of persons which is under extra surveillance by the government on the basis of data profiling. that one and the same fact “may fall foul of more than one provision of the Convention and Protocols”. See. having family. occupational and economic ties in more than one country. 32.” In this judgment. we must then assess whether a measure or action by a government interfering with the right to private life. Ireland. §§ 31–33. on the other hand. on the practice of secret police files. when the fact of this registration in practice results in a restriction of his freedom of movement and therefore also his right to private life as protected in Article 8 ECHR. as suggested by the Turkish government. The considerations of the ECtHR in the İletmiş judgment. also Airey v. apply to a person who is listed in SIS or SIS II. “the continued application of the prohibition on leaving Turkish territory no longer corresponded to a ‘pressing social need’ and was therefore disproportionate to the aims permitted by Article 8. that the right to private life is at stake when a person is repeatedly stopped at borders because he or she is listed in one of the EU databases. Russia and İletmiş v. the ECtHR found that it is not sufficient for the interference to have some basis in domestic law: the law in question must be accessible to the individual concerned and its consequences must be predictable. in my view. Turkey judgments are important for our subject because they highlight the relationship between. the ECtHR found a breach of Article 8 of the Convention. where tapping and other forms of telephone conversation represent a serious interference with private life and correspondence. as in the case in question. Series A. no. Both cases of 24 April 1990. France. 176A (Kruslin). the ECtHR further defined a set of criteria for lawful telephone tapping which should have been provided for in French law. 8691/79. the circumstances under which recordings may or must be erased or the tapes destroyed. Kruslin. no. 26 March 1987.50 The requirement of quality of law is further specified in Huvig and Kruslin v. § 35. 82.49 In Malone v. The ECtHR held that. whose phones were tapped during criminal proceedings by the French authorities. written and unwritten. Since French law. 2 August 1984. the lack of an obligation to set a limit on the duration of telephone tapping.52 In the Huvig and Kruslin judgments. and Mrs. appl. and appl. dealing with secret telephone tapping. no. Series A. as under the Personnel Control Ordinance. but also to the “quality of the law”. Series A. See Kruslin. “the law has to be sufficiently clear in its terms to give them an adequate indication as to the circumstances in which and the conditions on which the public authorities are empowered to resort to this kind of secret and potentially dangerous interference with private life”. UK. appl.164 Chapter 6 staff in sectors affecting national security cannot be the same as in many other fields. the ECtHR stated that “in accordance with the law” refers not only to the availability of domestic law. the ECtHR added that in a system applicable to citizens generally. but whether the applicable French law was clear and foreseeable. 176B (Huvig). 11105/84. According to the ECtHR. especially since the technology available for use is continually becoming more sophisticated. These criteria included the categories of persons liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order. did not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. The question in these cases was not so much whether this telephone tapping constituted an interference with the applicant’s right to private life. “Thus. in particular when an accused party has been 49 50 51 52 Leander case. detailed rules on the subject are essential. this must be based accordingly on a law that is particularly precise. requiring it to be compatible with the rule of law. Huvig and Mr. §§ 50–51. 11801/95. and Huvig.51 These cases concerned the claims based on Article 8 ECHR of Mr. Malone case. . it cannot mean that an individual should be enabled to foresee precisely what checks will be made in his regard by the Swedish special police service in its efforts to protect national security.” Nevertheless. clear. § 36. Romania. to give the individual adequate protection against arbitrary interference”. having regard to the legitimate aim of the measure in question. Assessing the “quality” of the Romanian law involved. the ECtHR concluded that this law did not include any limits on the exercise of the powers on the storage and use of the information by the Romanian Intelligence Services.Data Processing and the Right to Privacy 165 discharged by an investigating judge or acquitted by a court. the ECtHR explicitly underlined the duty of the government to provide. included unfettered powers for these authorities.55 Since the Romanian system did not provide such safeguards or a supervisory mechanism. 6 and 9 of the Data 53 54 55 56 57 Kruslin. Furthermore. Necessary in a Democratic Society: Proportionality and Procedural Guarantees In the case of Z v. in national law “appropriate safeguards” to prevent any such disclosure inconsistent with the guarantees in Article 8 of the Data Protection Convention. § 41.57 For this purpose. the ECtHR also used the criterion of whether the powers of the Swedish Security Service to store information in Secret Police registers for “special reasons”. this provision includes the rights of data subjects to access. In the case of Segerstedt-Wiberg v.53 Interestingly. § 43. Romanian law did not specify which information could be collected or stored and against which categories of people or under which circumstances these surveillance measures were allowed. Romania with regard to the law regulating the collection. a comparable list of criteria is given in Rotaru v. § 35. the criteria of “in accordance with the law” and “quality of law” require supervision procedures and adequate and effective safeguards against abuse of the rule of law.56 5. the ECtHR ruled that the refuted storage and use of information by the intelligence service was not “in accordance with the law”. as we saw above. Segerstedt-Wiberg. the ECtHR concluded that the scope of discretion conferred upon the competent authorities and the manner of its exercise were indicated with “sufficient clarity. Rotaru v. recording and the archiving of information in secret files. the ECtHR referred to the safeguards in Article 3 (2)(c) and Articles 5. Huvig. Romania. . § 79. correct and delete personal data and the right to remedies if these rights are not respected. Rotaru v. As we can see in Chapter 7. § 34. as provided under the Swedish Police Data Act. concerned the disclosure of data about the applicant’s health during court proceedings. In this case. Also. Sweden.54 In the view of the ECtHR. which. Finland. there were no limits on the length of time for which the information could be stored. 22009/93. 25 February 1997. in these judgments.” However. the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved”. in both the Klass and Leander judgments.60 Whatever system of surveillance is adopted. §§ 46–49 and Leander v. These provisions deal with the quality of data. Finland. Sweden. This is especially underlined in Klass v. This would depend on all the circumstances of the case. adopt whatever measures they deem appropriate”. the ECtHR was satisfied with the different safeguards which were provided under Swedish law and the supervision effected by the 58 59 60 Z v. judgment of 6 September 1978. scope and duration of the possible measures. Germany. Sweden) that Contracting States do not enjoy unlimited discretion to subject persons within their jurisdiction to secret surveillance have been much quoted. The considerations of the ECtHR in the Klass judgment (and repeated in Leander v. Germany.59 In the Leander judgment. affirms that the Contracting States may not. the ECtHR ruled that adequate and effective guarantees against abuse must be in place. appl. and the kind of remedy provided by national law. secondly. Klass and others v. the Strasbourg Court recognised “that the national authorities enjoy a margin of appreciation. Sweden. to collect and store in registers not accessible to the public information on persons and. the ECtHR referred to the relative meaning of the assessment of the safeguards at stake. to use this information when assessing the suitability of candidates for employment in posts of importance for national security. Series A 28. the authorities competent to permit. At the same time. Germany and Leander v. According to the ECtHR.166 Chapter 6 Protection Convention.58 When it comes to national security or the prevention of disorder or crime. carry out and supervise such measures. § 60. such as the nature. the ECtHR normally leaves a wider margin of appreciation to the national authorities to assess the necessity of the interference with the right to private life for the pursued goals. being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it. . For this purpose of protecting national security. Reports 1997-I. Sweden. the ECtHR made it clear that the power of the national police authorities to collect and store personal information should be counterbalanced by procedural guarantees. the protection of sensitive data and the legitimate exceptions to these safeguards. §§ 95–100. “The Court. in the name of the struggle against espionage and terrorism. In the Leander case. §§ 49–50 and Leander v. the ECtHR accepted the need for Contracting States to have laws empowering national authorities. than it would in regular cases. “firstly. the grounds required for ordering such measures. no. the interest of the respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicant’s right to respect for his private life. See Klass and others v. § 59. Article 8 ECHR and the Need for Effective Remedies 6. 6. Also in the Gaskin v. According to the ECtHR. in some judgments the ECtHR dealt with the question of whether sufficient safeguards and supervisory mechanisms are in place. the requirement of an independent controlling authority was dealt with under the question of whether the interference with the applicant’s right to private life was proportionate. Even if the ECtHR. as well as the Parliamentary Committee on Justice.Data Processing and the Right to Privacy 167 Chancellor of Justice and the Parliamentary Ombudsman. Leander) or “in accordance with the law” (Rotaru). in some judgments.1. when assessing whether the interference was “necessary for a democratic ‘society” (Klass. In Klass v. § 49. was considered disproportionate to the aim pursued and could not be said to be necessary in a democratic society. the right to effective remedies will be further explored in relation to immigration law decisions.61 In this judgment. that interference by 61 Gaskin v. UK. The “absence of any procedure to balance the applicant’s interest in access to the file against the claim to confidentiality by certain contributors. In the following sections. it is in principle desirable to entrust supervisory control to a judge. the ECtHR explicitly stressed the importance of an independent controlling mechanism to balance the conflicting interests at stake. I only describe the criteria of Article 13 ECHR as formulated by the ECtHR in judgments dealing with the right to private life. the ECtHR seems more concerned with the practical functioning and the competences of the supervisory authorities. Independent Control Mechanism: Judicial or Non-Judicial Remedies As we have seen above. the ECtHR will consider the availability of legal remedies on the basis of claims that the applicant’s right to effective remedies under Article 13 ECHR in combination with the alleged violation of Article 8 has been breached. the ECtHR considered that with regard to surveillance measures in the field of national security “where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole”. UK judgment. In the view of the ECtHR. inter alia. . In Chapter 9. a system on the confidentiality of public records is only in accordance with the principle of proportionality “if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent”. Germany. and the consequential automatic preference given to the contributors’ interests over those of the applicant”. “the rule of law implies. explicitly favoured the availability of judicial remedies. In general. to give the individual adequate 62 63 64 65 Klass. Klass. but that the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy is effective (§§ 82–83). the ECtHR also concluded that given the available supervisory and other safeguards in the applicable German rules. at least in last resort. Accessibility In the judgments discussed. even if the surveillance has ceased”. § 43.62 However.64 The requirement of accessible remedies can also be derived from the requirements as defined by the ECtHR in the Huvig and Kruslin judgments on the quality of law.2. the ECtHR made it clear that once those measures are suspended. §§ 30–36. Klass. Aspects which played a role in this decision were the guarantees as provided under German law to reduce the effect of surveillance measures to an unavoidable minimum and a previous decision by the German Constitutional Court that persons should be informed of the termination of surveillance measures as soon as notification could be made without jeopardising the purpose of this restriction. For example. the exclusion of judicial control does not exceed the limits of what may be necessary in a democratic society. the ECtHR did not explicitly define any criteria regarding the accessibility of legal remedies. 6. in the Klass v. However. As we have seen above. § 55. § 56. these requirements include clarity and predictability with regard to the scope and manner of exercise of the competences and the powers of the authorities involved. having regard to the legitimate aim of the measure in question. See Kruslin. the national authorities should notify the person concerned so as to enable him to seek effective remedies before the courts. Romania. which should be normally carried out by the judiciary. § 58. .65 In the words of the ECtHR: “the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity.168 Chapter 6 the executive authorities with an individual’s right should be subject to effective supervision. impartiality and a proper procedure”.63 The ECtHR only accepted postponing informing the person concerned. “as long as this is necessary in order not to jeopardise the performance of the police task. the ECtHR explicitly held that the authority referred to in Article 13 need not necessarily be a judicial authority in the strictest sense. since judicial control affords the best guarantees of independence. accepting the use of secret surveillance measures under certain circumstances. In the Leander case. this principle is inherently linked to the emphasis of the ECtHR on the availability of effective remedies. Germany case. This consideration is repeated in Rotaru v. according to the ECtHR. Here. is to afford protection against abuse but also to repair or undo wrongful measures or decisions. In Rotaru v.4. the ECtHR explicitly emphasised the importance of an independent authority which could weigh the different interests at stake. Also. . reiterated in Amann. to balance the competing individual rights. In these cases. This includes not only the balancing of individual rights against “a pressing social need”. 32–33. p. Romania. judgment of 2 August 1984. § 67. an important role of these authorities. one can deduce that national courts should be able not only to control the legitimacy of the measures concerned. Series A 82. §§ 67–68. the law at stake did not specify which information could be collected or stored and against which categories of people or under which circumstances these surveillance measures were allowed. the Strasbourg Court found that this law did not include any limits on the exercise of the powers regarding the storage and use of the information by the Romanian Intelligence Services. the applicant claimed damages for the non-pecuniary damage he had suffered and also applied for the amendment or destruction of the files in question. cited above. Competences 6. as is illustrated in the Gaskin judgment. cited above. Scope of the Remedies Based on the ECtHR’s decisions and the system of human rights as protected by the ECHR.4. § 56. but also to assess the necessity and proportionality of these measures. In the field of internal security measures. § 55.Data Processing and the Right to Privacy 169 protection against arbitrary interference. Romania (see above). on the refusal to grant Gaskin access to his personal information. where the ECtHR assessed the quality of Romanian law on the storage of data. the United Kingdom. a system which envisaged controlling the surveillance measures afterwards has been considered a sufficient safeguard. the ECtHR acknowledged that the powers and procedural guarantees of the controlling authority are relevant in determining whether the remedy offered is effective for the individual. but also. Referring to its general jurisprudence on Article 13 ECHR (see further Chapter 8). In this latter judgment. Article 8 and Article 13 ECHR In Klass v.1. the ECtHR accepted a more limited scope of review by national courts. and in Rotaru.67 As mentioned above.”66 Comparable criteria were used in Rotaru v. the ECtHR observed in this judgment that domestic remedies should allow the “competent national authority” both to deal with the substance of the 66 67 See also Malone v. 6.3. 6. Klass. Germany. the ECtHR considered the powers of the Swedish Parliamentary Ombudsman. Romania. a body specifically empowered to monitor data processing by the Secret Police on a daily basis. the ECtHR found there was a violation of Article 13. Equally important are the considerations of the ECtHR in the Segerstedt-Wiberg v. In the view of the ECtHR. since neither authority could render a legally binding decision. This supervision included the power to decide whether the information in these files was to be released to requesting authorities. the ECtHR observed that the Records Board. Although the ECtHR explicitly recognised the weaknesses in the control afforded by the Parliamentary Ombudsman and the Chancellor of Justice. tasked with the supervision of secret police files. this direct and regular control over the most important aspect of the register – the release of information – provided a major safeguard against abuse. this “necessarily limited effectiveness” was inherent to “any remedy available to the individual concerned in a system of secret security checks”. Therefore.69 Also in the Leander judgment. Leander v. the ECtHR found that there was no evidence that Romanian law provided for an effective remedy with regard to the holding of information on the applicant’s private life by intelligence services or for refuting the truth of such information. . Sweden. §§ 118–122.70 The very fact that the Parliamentary Ombudsman lacked the power to render a legally binding decision was one of the grounds on which the ECtHR concluded that the applicants had no effective remedies. as we saw above. Segerstedt-Wiberg v. the ECtHR held that there was a breach of their right to effective remedies under Article 13 ECHR. Furthermore. In Leander v. Sweden judgment on the powers 68 69 70 Rotaru v. As we have seen. with regard to all the applicants. deletion or rectification of the information kept in the files. the Strasbourg Court was more critical of the competence of the Swedish Parliamentary Ombudsman. Interestingly in the Segerstedt-Wiberg judgment of 2006 which. § 65. the Strasbourg Court gave a rather vague criterion: whether the advice of this institution would have any practical effect would depend on “his ability to convince the decisionmaker or authority in question”.68 In this case. § 51. had no power to order the destruction. With regard to the effectiveness of the power of the Ombudsman to give non-binding advice.170 Chapter 6 relevant Convention complaint and to grant “appropriate relief ”. Sweden. However. the ECtHR found a breach of Article 8 ECHR only with regard to four of the five applicants. involved a comparable case. Sweden. the ECtHR referred to the power of the Swedish Parliamentary Ombudsman to lodge criminal proceedings or disciplinary measures against an official who has committed an offence by departing from the obligations inherent in his official duties as an adequate safeguard. Romania.72 As we have seen above. national remedies should be effective not only on paper but also in practice. the ECtHR made it clear that this requirement (exhaustion of national remedies) does not imply that individuals are obliged to have recourse to remedies which are inadequate or ineffective. From the Segerstedt-Wiberg judgment. Article 8 ECHR and the Right to Financial Compensation under Article 6 ECHR An important issue with regard to the future use of EU databases is the possibility of lodging a claim based on Article 6 ECHR for damages which are caused by the use of information or data processing by governmental organisations in breach of Article 8 ECHR.71 According to the ECtHR. the Data Inspection Board could order the processor to stop further data processing (“blocking of data”) upon penalty of a fine. no information had been furnished “to shed light on the effectiveness of the Data Inspection Board in practice”. On the contrary. 16 September 1996.Data Processing and the Right to Privacy 171 of the Swedish Data Protection Authority (Data Inspection Board). the Netherlands. In Akdivar v. Reports 1996-VI. §§ 67–68. But it was not empowered to order the deletion of unlawfully stored information. 21893/93. Rotaru with regard to the information stored about him 71 72 Akdivar v. The remedy should be “capable of providing redress in respect of the applicant’s complaints” and offer “reasonable prospects of success”. Romania. no. . 6. the Data Inspection Board had never performed a substantial review of the files held by the Security Police. the applicants alleged that during its 30-year existence. It could only make an application for such a measure to the County Administrative Court. during this procedure. this case concerned the complaint by Mr. Rotaru v. This applicability of Article 6 ECHR with regard to damage caused by government information files is recognised by the ECtHR in the judgment in Rotaru v. The ECtHR concluded that it had not been shown that the available procedure carried out by the Data Inspection Board offered an effective remedy in practice with regard to an application for deletion of the data (§ 120). with which individuals could lodge a complaint. §§ 74–79. Turkey.4. it is the duty of the government to satisfy the ECtHR that the remedy was effective and available in theory and in practice at the relevant time. if a government claims that national remedies have not been exhausted. it is clear that in the light of Article 13 ECHR. While it found the processing unlawful. 11 January 2007. see also Salah Sheekh v. According to the ECtHR. referred to in Chapters 8 and 13. Turkey.2. This principle also follows on from judgments in which the ECtHR dealt with the requirement that individuals should exhaust the available national remedies on the basis of Article 26 ECHR before addressing the case to the Commission. no 1948/04. 303A. etc… As we have seen above. as laid down in Article 8. Series A. limitations on the right to private life affect some groups of persons more than others. In fact. Article 8 ECHR and Effective Remedies 7. Non-discrimination On the basis of Article 14 ECHR. According to the ECtHR. the ECtHR observed that that there was no remedy for the applicant involving making an application for amendment or destruction of the file containing information about him (§ 61). in the field of the protection of internal security. the right to privacy should apply indiscriminately to everyone.172 Chapter 6 since 1948 by the Romanian Intelligence Services. with an eye for the actual circumstances and requirements of the society. Rotaru held that the refusal of the Romanian courts to consider his applications for costs and damages was in breach of his right to a fair trial. race. The Court of Appeal’s failure to consider the claim in this case therefore violated the applicant’s right to a fair hearing within the meaning of Article 6 (1). language. the ECtHR dealt with the Mr. The ECtHR developed useful criteria for the necessary balance of powers between the data-collecting authorities on the one hand and the protection of the interests and rights of the individual concerned on the other hand. religion.73 6. in formulating these 73 The Court refers to the judgment in Ruiz Torija v.5. While the Commission decided to consider the complaint only under the more general obligation of Article 13 ECHR. § 30. Spain. Article 8 ECHR should be interpreted in an open-minded manner. Conclusions: EU Databases. in line with its general policy. One could argue that in these fields.1. Data Processing and the Right to Private Life In its jurisprudence on Article 8 ECHR with regard to the use of personal information by governments. Rotaru’s claim on the basis of Article 6 ECHR. With regard to those persons who are specifically affected by surveillance measures by national authorities. After finding that there had been a violation of his right to private life. 9 December 1994. the ECtHR acknowledged the necessity of secret surveillance and thus privacy-infringing measures. without distinguishing on grounds such as nationality. one cannot say that the right to privacy applies to them indiscriminately. 7. . there was no doubt that the applicant’s claim for compensation for non-pecuniary damage and costs was a civil claim within the meaning of Article 6 (1) ECHR and that the Bucharest Court of Appeal would have had jurisdiction to deal with it. the Strasbourg Court established that. Amann.Data Processing and the Right to Privacy 173 criteria. the ECtHR emphasised that the systematic collection and storage of personal information by governments falls within the scope of protection under Article 8 ECHR.).G. it can be concluded that the criteria formulated by the ECtHR are applicable on several grounds. – whether the information is subsequently used in practice is not relevant (Amann). and J. Considering our subject. In order to establish whether an interference with the right to private life has occurred. – records of voices (Peck).G. – health records (Z v. – whether the information concerns the person’s past (Rotaru). In the first place. Rotaru). – public files (Goodwin). the ECtHR seemed to recognise the broader function of the right to privacy in the relationship between citizens and the government. – the consequences (of deprivation of passport) on everyday life (Smirnova). and video surveillance images (Perry). P. – whether the information was provided voluntarily or not (Lupker.G. Secondly. and J. – birth certificates. storage. identity cards or driving licences (Goodwin). – whether there is a limitation on the freedom of movement (by confiscation of passport) (I˘letmiş). – administrative data on telephone calls (Malone). – whether the person has given his or her prior consent to the further communication of personal data (Malone). or use of personal information in the following situations: – secret police or secret service files (Leander. According to the jurisprudence of the ECtHR. and finally.H.H. – whether the further use of the information stored goes beyond the normally foreseeable use (Peck. Finland). and – passports (Smirnova and I˘letmiş). Perry). Segerstedt-Wiberg.H. and J. and P. – public files irrespective of the nature or the sensitivity of the information stored in them (Amann).). the registration of third-country nationals in the EU databases. cited in Perry). it is clear that . P.. – whether it concerns the systematic collection and storage of personal information (Rotaru. photographs (Commission: Lupker and Friedl ). Article 8 ECHR is at stake when it concerns the collection. – child care records (Gaskin). Segerstedt-Wiberg. the ECtHR based its conclusions on the following circumstances and methods of data processing: – the ‘public circumstances’ in which the information was collected (Perry. – limits on the age of the information held or the length of time for which it may be kept (Rotaru. – definition of the kind of information that may be recorded (Leander. 7. Peck. – safeguards to protect the quality of data and the protection of sensitive data (Z ). it is clear that SIS II is becoming a tool for surveillance measures. – definition of the situations in which information may be disclosed (Peck). VIS or Eurodac.2. the ECtHR defined the following requirements which should be envisaged in national laws: – limits on the exercise of powers to store and use the information by the authorities (Leander. collecting biometric data and carrying out body searches. the frequent controls to be performed on the basis of this registration may cause disproportionate interference with the traveller’s right to privacy. Rotaru).174 Chapter 6 the right to privacy is at stake if “sensitive” information such as biometric data is to be registered in SIS II and VIS. based on plans for the interoperability of EU databases described above and the proposals for access to these systems by internal security agencies. Procedural Guarantees and Effective Remedies The ECtHR developed several criteria on the basis of the general criterion of Article 8 (2) ECHR. Rotaru). Rotaru. This is especially the case when these controls are combined with practices which may often be embarrassing for travellers. . In various judgments. – the duty to inform the person concerned in advance with regard to the storage of his or her information (Perry). – appropriate safeguards to prevent disclosure which may be inconsistent with the guarantees under Article 8 of the Data Protection Convention (Z ). questioning the person. including his freedom of movement. regarding the question of whether the interference is in accordance with the law. Thirdly. such as taking the person aside. – definition of the categories of people against whom surveillance measures such as gathering and maintaining information may be taken. Segerstedt-Wiberg). Klass). and (HuvigKruslin. Rotaru). These criteria on the predictability and accessibility of the law as well as on the necessary procedural safeguards are of more general importance when assessing data processing by government authorities. Fourthly. This might lead to the semi-permanent control of the movements of the persons registered into SIS II. – definition of the circumstances under which such measures may be taken or the procedure to be followed (Leander. With regard to different measures for data collection or data surveillance. the ECtHR made an explicit link between surveillance measures used by government authorities and the right to privacy (Perry. Rotaru). which is facilitated by the use of biometric data and the inclusion of these data in passports and visas. Data Processing and the Right to Privacy 175 Concluding. in which it required proof of evidence regarding the effectiveness of the Swedish Data Protection Authority in practice. impartiality and a proper procedure”. the ECtHR did not doubt the importance of an independent supervisory mechanism. In its case law on Article 8 ECHR and the use of personal information by public authorities. Sweden. Leander) it was explicitly stated that a non-judicial supervisory mechanism could be appropriate. the consideration of the ECtHR in this judgment. is meaningful when assessing the meaning of data protection law. In other cases. The ECtHR consistently stressed the need for an independent control mechanism when it comes to the infringement of an individual’s right to private life caused by the use of personal information by public authorities. In this judgment.74 However. Gaskin. Leander and Rotaru judgments). The general conclusion that legal remedies should in the first place be practical and effective. the ECtHR demanded the availability of an independent mechanism. in different judgments (for example. the ECtHR established a preference for access by judicial authorities because it gave the “best guarantees of independence. 74 Klass. The ECtHR gave different grounds for motivating this need for the right to an independent supervisory mechanism. the United Kingdom respectively). has been affirmed in Segerstedt-Wiberg v. In the first place. if the impact of the use and storage of personal information by public authorities on the private life of individuals is overlooked. access to an independent control mechanism was not only considered important because it clearly dealt with an infringement of someone’s right to respect for his private life. § 56. the ECtHR explicitly questioned the practical meaning of the (non-judicial) authorities with which individuals could lodge a complaint. the jurisprudence of the Strasbourg Court makes clear that. In these cases. In particular. in Z v. the general criteria concerning the competence or powers of independent authorities as developed by the ECtHR in its jurisprudence on Article 6 and 13 ECHR will be dealt with further in Chapter 8. the ECtHR emphasised the need for an independent supervisory authority as a mechanism for the protection of the rule of law and to prevent the abuse of power. especially in the case of secret surveillance systems (for example in the Klass. . In its judgments. but also because of the need to balance the different interests at stake. Finland and Gaskin v. where specific sensitive data were at stake or where the case concerned a claim to access to such data (for example medical data or data about the applicant’s youth. we will lose an important mechanism for controlling governmental powers. As mentioned above. 176 Chapter 6 Finally. the ECtHR acknowledged the right of individuals to financial redress for damages based on a breach of Article 8 ECHR caused by the data processing activities of public authorities. Romania. I have pointed out the importance of Article 6 ECHR with regard to the right to compensation. This means that Article 6 ECHR may be invoked by an individual when his or her civil liberties or rights are infringed by an administrative decision based on data processing activities. . In Rotaru v. both instruments will apply. use and dissemination of data. and in particular his right to privacy. 3 ff.A. physical persons (and sometimes groups and organisations of such persons). Regulation 1987/2006. © 2008 Koninklijke Brill NV. p. as we will see below. storage. Berg.P. Evelien Brouwer. the use of VIS and Eurodac is covered by the rules of Directive 95/46 whereas. Whereas the EC Directive only applies to data processing within the scope of community law. The Hague: Kluwer Law International 2003. dealing with data processing in the field of police or justice. the most important instruments concerning data protection law are the Data Protection Convention of 1981 of the Council of Europe and the EC Directive 95/46 on the protection of personal data. Accordingly. or SIS II. Introduction Data protection law regulates the various stages involved in the processing of data (or information) on individual. Digital Borders and Real Rights. for example the Europol Convention. Bygrave. Reflections on the rationale for data protection laws in: J. registration.). . Bygrave & J. O. logic and limits.A. Bing. whatever his nationality or residence.” 1.Chapter 7 Effective Remedies under Data Protection Law Article 1 of the Council of Europe’s Data Protection Convention of 1981: “The purpose of this convention is to secure in the territory of each Party for every individual. pp. Tano: Norwegian Research Center For Computers and Law 1995. the CISA refers with regard to the use of SIS I to the applicability of the Data Protection Convention. Printed in the Netherlands. OJ L381/4. 25 Years Anniversary Anthology.1 These stages include the collection. Data Protection Law: approaching its rationale. With regard to the use of the second generation SIS. Torvund (eds. the rules of the Data Protection Convention also apply to certain so-called ‘third pillar’ measures within the EU. 177–244. respect for his rights and fundamental freedoms. 28 December 2006. with regard to automatic processing of personal data relating to him (“data protection”). See also L. In Europe. Regulation 1987/2006 on the use of SIS II for the registration of third-country nationals refers to Directive 95/46.2 The Decision on the use of SIS II for political and 1 2 L. 3 J. taking into account the specific circumstances of the person concerned. p. 7 ff. p. p. The following sections will go into the development of national and international data protection law. and 308.178 Chapter 7 judicial purposes refers to the Data Protection Convention. In the conclusions to this Chapter. To assess the practical meaning of data protection with regard to the use of information systems such as SIS or SIS II. Information technology allowed for the collection of an increasing amount of data. Privacy and Freedom (1967). Private Lives and Public Surveillance. Development of National Data Protection Law: Different Phases of Law-Making The introduction and use of information technology in the second half of the 20th century brought major changes in the administration of personal data. the EC legislator is preparing the adoption of a Framework Decision for data protection in the third pillar.. the ability to store more (and more detailed) information on citizens allowed the legislator to adopt. The use of personal identification numbers and the connection of different information systems made it possible for information given to one authority to be used more easily and swiftly by other public departments or organisations as well.3 These new challenges for managing the information stock of organisations in the public and private sectors resulted in changes to public programmes and policies. Westin. I focus on what can be considered as the central principles of the applicable international standards. it is useful to understand the basic rights and principles which are at stake. For example. I will also describe the development and content of the relevant data protection provisions in the CISA. 270 ff.F. in particular the aforementioned Data Protection Convention and the rules developed under EC and EU law. It facilitated the centralisation and accessibility of the information stored and increased our ability to integrate different databases. Bygrave and Berg (1995). more specific rules. the basic data protection principles will be applied to the current EU policy on the use of personal information and information technology. I will address one of the central questions of this research: does data protection law provide for legal remedies for individuals? 2. in Chapter 14. . trying to analyse the main functions of data protection. A. Rule. In the final conclusions. 158 ff.B. 1974. Furthermore. In this Chapter. in the field of social security or welfare. Baden-Baden: Nomos 2006. Chapel Hill and London: University of North Carolina Press 1989. no. for a general history of data protection law: D. The general principles of these international instruments were taken as an example in countries which still had to adopt their first data protection laws. Canada and the United States. 43.) Bundesdatenschutzgesetz. between 1981 and 1988. In 1973 the ‘Data Act’ was adopted in Sweden.5 These projects included the establishment of a central population register and the electronic implementation of the census. Protecting Privacy in Surveillance Societies. . and F. The data protection authority was responsible for ensuring the security of state files and for advising on the impact of new data processing techniques. in Norway. The first data protection law in Europe. At the national level. no. one may distinguish different phases of law-making. in 1974 the ‘Privacy Act’ in the United States and. at a very early stage. In describing the history of data protection law in Europe. marked the end of an isolated national legislation process. In 1978 the first French ‘Law on data processing. Flaherty. 1972. in the German federal state of Hessen. Sweden. the Federal Data Protection Law in Germany.4 The Council of Europe played a major role in this development by establishing. including prior registration or a licensing system. in Sweden and in the Netherlands. 70. Simitis (ed. for example. Hondius. the first framework for legal instruments. files and individual liberties’ followed and.Effective Remedies under Data Protection Law 179 A relatively short time passed between the introduction of information technology and the development of data protection rules. The Hessian data protection law played an important exemplary role for the development of other national laws. During this period. the ‘Personal Data Registers Act’. Staatscommissie bescherming persoonlijke levenssfeer in verband met persoonsregistraties KB [Royal Decree] 21 February 1972. sixth edition. Amsterdam-Oxford: North-Holland Pub. Company 1975. Emerging Data Protection in Europe. The Federal Republic of Germany. Stcrt. the ‘pioneers’ of data protection were based on a mechanism of prior control of databases. we see that during large automation projects the legislators were urged to adopt or at least to think about the adoption of data protection laws. This law only applied to data processing in the public sector and provided for the establishment of an ‘ombudsman-like’ independent data protection authority. the basic principles of data protection were formulated in the period between 1970 and 1981. was adopted in 1970 together with the introduction of the Hessian central population register. Concerns about data protection on the one hand and the free flow of information on the other hand resulted in the adoption of the OECD Guidelines in 1980 and of the Data Protection Convention of the Council of Europe in 1981. the governments installed special committees to investigate the need for new regulations. the Datenschutzgesetz in Hessen. See S. The second period.W. France.H. in 1977. In several countries.6 Generally. The legislator in 4 5 6 See. emphasised self-regulation and self-surveillance. Finally. Bennett distinguished between the voluntary control model. Data Protection and Public Policy in Europe and the United States. .180 Chapter 7 the UK passed its first data protection law in 1984 and. on the divergences and convergences of data protection policy: C. the Schengen States were obliged to adopt national data protection provisions in accordance with the rules of the Data Protection Convention of 1981 (Article 117 CISA). this period has been marked by the recognition of data protection as an independent human right in the Charter on the Fundamental Rights of the EU. the subject control model. In these latter countries. The implementation of the new rules in the Directive resulted.J. for example Greece and Italy. before being allowed to use this system. in the second revision of their data protection laws. Thirdly. These amendments emphasised self-regulation and the withdrawal of bureaucratic rules. in Ireland and the Netherlands. as we will see in section 3. As we will see below. the licensing and/or registration model included the involvement of a separate institution for the authorisation of new databases in either the public or 7 See. finally. to adopt their first data protection laws. the licensing/registration model and. On the other hand. Regulating Privacy. different models of regulation have been applied by national legislators. the period since 2000 could be described as a new phase in data protection history. a first revision of the different national laws took place. The second subject control model focused on the rights of the data subject with regard to his or her data.6. Initially. Ithaca and London: Cornell University Press 1992. The requirement that this Directive be implemented before October 1998 forced some countries. the first laws were adopted in 1988. During these periods of development of data protection laws. the data commissioner model. chosen in particular in the United States and generally in the Netherlands. the establishment of the SIS was another important incentive for the final adoption of data protection law. ‘machine-readable documents’ and the efforts of national legislators to respond to these developments. In the third period. between 1995 and 2000. Bennett. including the right to have access to information. The fourth period. including the appointment of data protection officials within the private organisation. An important goal of the socalled ‘second generation’ law was to reduce the administrative obligations for data holders. in the so-called ‘first generation countries’ (France and Germany). have now been inserted into every national law.7 The first voluntary control model. p. was marked by the implementation of EC Directive 95/46 on data protection. On the one hand we see the introduction of new information technologies including the use of biometrics. the German data protection law especially emphasised the rights of data subjects but data subjects’ rights. In a publication from 1992. between 1988 and 1995. large-scale databases. 116 ff. . authorities or organisations were obliged to register their new databases with the national data protection authority. a distinction is made between countries with generally applicable laws (Germany. Furthermore. Fourthly. In the UK. the Parliamentary Assembly of the Council of Europe invited the Committee of Ministers to examine whether the European Human Rights Convention and the domestic laws of the Member States offered adequate protection of the right to personal privacy vis-à-vis modern science and technology.1. Austria) and countries with a sectoral approach (for example the US and. In particular. administrative fine). the states adopted laws with a mixture of the above elements. This ‘mixture’ includes administrative rules (licensing system. However. there has been regular cross-border exchange of ideas and solutions between national data protection experts. to a certain extent the Netherlands). This development is to a large extent the result of a long period of trans-border exchanges of experiences. Since the 1970s. Gradually. the implementation of EC Directive 95/46 reduced the divergence between European countries. and criminal law measures such as the ban on holding a personal file or sanctioning the infringement of data protection rules. 3. One important development in data protection law is the fact that the bureaucratic requirement of prior registration and authorisation of personal files has been more or less abandoned. 1981: Data Protection Convention of the Council of Europe In 1968. Development of European Data Protection Law 3. a civil law approach including contractual agreements and informed consent. The new laws contained more powers of self-regulation for the data processing authorities and also provided for more detailed rules for the different sectors. both the licensing and the registration models applied. depending on the nature of data processing. the development of international standards and the obligation to adapt national legislation to those standards also had a harmonising effect on national laws. however. Sweden and Norway operated a licensing system which meant that the database would have to be authorised by the data protection authority. In France and the Netherlands.8 8 Recommendation 509. one could distinguish the data commissioner model in which the controlling authority plays a central role with regard to the protection of secure and lawful data processing (Germany).Effective Remedies under Data Protection Law 181 the private domain. 9 The aim of these recommendations was to bring unity to the different national regulations. See the explanatory report to the Convention.10 In the framework of the OECD. p. The committee was instructed to do so in close collaboration with the Organisation for Economic Co-operation and Development (OECD) and the non-European member countries of that organisation. consensus on the core principles of data protection. This study showed that the present national legislations provided insufficient protection of individual privacy and other rights and interests of individuals with regard to automated databanks. the Committee of Ministers instructed the Committee of Experts on Data Processing. a study was carried out at the instruction of the Committee of Ministers. These guidelines. this instrument should contribute to the “public understanding and confidence with regard to new administrative techniques which public authorities in the member states are using in order to ensure the optimal performance of the tasks entrusted to them”. the Data Bank Panel. On the basis of these findings. computers and communications policy. According to the explanatory memorandum to the recommendation for the public sector. still represent an international. Between the two organisations. governments reached agreement on the Guidelines governing the protection of privacy and transborder flows of personal data on 23 September 1980. albeit not binding.11 9 10 11 Resolution (73) 22 on the protection of the privacy of individuals vis-à-vis electronic databanks in the private sector and Resolution (74) 29 on the protection of the privacy of individuals vis-à-vis electronic databanks in the public sector. the OECD and the Council of Europe. The motivation of the OECD for this activity was in the first place economic. Resolution (74) 29. . The first. Resolution (73) 22. 137. under the aegis of the European Committee for Legal Co-operation (CDCJ) “…to prepare a convention for the protection of privacy in relation to data processing abroad and transfrontier data processing”. a close liaison has been maintained at secretariat level and at the level of the Council of Europe’s committee of experts and the corresponding OECD committee. At the end of 1970. the Committee of Ministers adopted (in 1973 and 1974) two resolutions on data protection. established the principles of data protection for the private sector and the second. In 1976.182 Chapter 7 In response to that recommendation. Bennett (1992). did the same for the public sector. not purely European. mutual mistrust reigned between the United States and the European governments about the (protectionist) motives behind the data protection level of national laws in Europe and the low standard of privacy protection in the United States. This organisation also dealt with the development of international standards in the field of information. the Committee of Ministers of the Council of Europe adopted an additional protocol to the Data Protection Convention regarding the role and powers of supervisory authorities and trans-border data flows. according to Article 3 States may. To reach this goal the Convention aimed to provide harmonised rules to prevent national data protection laws from causing limitations on the free flow of information. only mentioned in the preamble. Ratified by France. Article 117 CISA refers explicitly to the applicability of the Data Protection Convention of the Council of Europe and to the Recommendation of the Council of Europe on the use of personal data in the police sector. In the framework of the Council of Europe. several recommendations were adopted for more specific fields. 108. for the Netherlands on 1 December 1993. Entered into force for Germany and France on 1 October 1985. on the territory of each Party the rights and fundamental freedoms of every individual and especially the right to privacy. 19 June 1985 and 24 August 1993 respectively. R (91) 10. the Convention for the protection of individuals with regard to the automatic processing of personal data was signed by the Committee of Ministers of the Council of Europe on 28 January 1981.14 With regard to the use of SIS.13 In 2001. no.Effective Remedies under Data Protection Law 183 Four months after the adoption of the OECD Guidelines. Germany and the Netherlands on 24 March 1983. ETS no. 3. At that time Germany. the purpose of this Convention is to secure. is the aim of safeguarding the free flow of information. Luxembourg and France were the only Schengen countries which both 12 13 14 European Treaty Series (ETS).12 The Convention entered into force on 1 October 1985. 181. 8 November 2001. 1990: Inclusion of Data Protection Provisions in the CISA The drafting of the CISA took place between 1987 and 1990. at the time of signature or later.2. effective 1 July 2004. . According to Article 1. No. No. Another important goal of the Convention. This provision obliges the Schengen States to adopt the necessary national provisions in order to achieve a level of data protection law at least as equal to the principles included in these instruments. R (87) 15 and Recommendation on the communication of personal data held by public bodies. Strasbourg 1982. for example the Recommendation regarding the police sector of 1987 and Recommendation on the use of personal files in the public sector of 1991. Recommendation on the use of personal data in the police sector. give notice by declaration that the Convention will also apply to non-automated data processing. Article 12 of the Convention explicitly forbids the State Parties from limiting trans-border data flow solely on the basis of data protection principles. Although the Convention in principle applies only to the automatic processing of personal information. nor had they ratified the Convention. 67 ff. 30. its purpose and use. the existing Schengen data protection authorities met in 1988 and 1989 to discuss SIS and its consequences for data protection. they required that each individual should have access to his or her data in every contracting state and the right to correct wrong or delete inaccurate data. Mols (ed. 122. but there was still no law on police files.184 Chapter 7 ratified the Data Protection Convention of 1981 and adopted national data protection laws. This resulted in the establishment of the Privacy Ad Hoc Group. would have to supervise the general functioning of SIS and find harmonised solutions to 15 16 17 J. The Dutch government only ratified the Data Protection Convention in 1993. J. in order to take into account the legal conditions on SIS. composed of representatives of the national data protection authorities of each Schengen state. Luxembourg and German data protection authorities adopted a declaration on the minimum standards which should be fulfilled before SIS could become operational. later.P. Maastricht: EIPA 1993. the French. the data protection authorities stated first of all that the provisions regarding SIS should contain a clear. Les Accords de Schengen: Abolition des frontières intérieures ou menace pour les libertés publiques?. Schengen: Proeftuin voor de Europese Gemeenschap? Arnhem: Gouda Quint 1992. D. A common data protection authority. Billaud. The processing and use of the SIS data in each national state should be supervised by an independent authority. Politicians in France and Germany in particular regarded this lack of data protection law in some of the Schengen states as a problem for the establishment of SIS and the exchange of police information as envisaged in the draft CISA. In the Netherlands. p. Furthermore. Pauly. these authorities expressed on several occasions their concerns about the lack and. Since then. La protection des données informatiques dans le cadre de l’Accord de Schengen. Dumortier. p. p. In May 1988. P. incompleteness of data protection rules in the draft CISA. a general data protection law was adopted in December 1988. . Stuyck.). At their second meeting of 17 March 1989. in: G. the Central Group decided that it was necessary for the Permanent Working Group on SIS to have contact with experts on data protection. in: C. Fijnaut. Spain ratified the Convention in 1984 but has not yet adopted a data protection law. See P. Dissonanten bij het Schengen Akkoord. The Schengen Information System: also a question of data protection.15 The work of this Privacy Ad Hoc Group made the European data protection authorities aware of the development of SIS.M.F. Belgium and Italy had no legislation. in: A.17 In this declaration. Korff. restrictive and definitive definition of the content of the database.16 Initiated by the Luxembourg data protection authority. Het Schengen Informatie Systeem en de bescherming van persoonsgegevens. Deventer: Kluwer 1990. Finally. Wytinck. stating that “the section on SIS would also serve the protection of personal data in conformity with the basic principles of the European Convention for the protection of individuals with regard to the automatic processing of personal data”. See also the draft of 16 November 1988. Finally. . Based on a proposal by the national data protection authorities. The joint declaration was sent to each government participating in the Schengen negotiations. The CNIL also emphasised the necessity of a joint supervisory authority. SCH/I (88) 7. before the intergovernmental meeting which was planned for the approval of SIS. this draft provided for the obligation to record or ‘log’ every fiftieth transmission from SIS which. the provisions of the Data Protection Convention of 1981 would have to apply as minimum rules for the functioning of SIS. made an intervention on the minimum data protection standards for SIS.18 This latter draft text of the CISA provided for a purpose limitation principle with regard to both the storage and use of personal information similar to the current provisions of the CISA (Articles 94 and 102). In this statement. 12th revision (Dutch version). In June 1989. The draft of November 1988 also included time limits of five years for the storage of personal information in SIS. in an alternative text of 7 August 1989. 2nd revision (Dutch version). In the final text of the CISA. the negotiators inserted into the draft text of 7 August 1989 provisions regarding the role of national data protection authorities and the establishment of a Joint Supervisory Authority (hereafter JSA). This draft also included a Dutch proposal for a general reference to the Data Protection Convention. Furthermore. the French data protection authority. see Article 103 CISA.19 The Luxembourg government proposed. granting the JSA extended powers and including in the final text a provision on the basis of which 18 19 SCH/I (88) 7th rev. according to this declaration. the individual’s right to access to his or her information and the right to recourse before a national court or another authority. was changed to the duty to log every tenth transmission.Effective Remedies under Data Protection Law 185 common problems. this was changed in three years. SCH/I (88) 7. A draft of 27 October 1988 included provisions on data protection which more or less corresponded with the final provisions of the CISA. the CNIL. (Dutch version). in the final text of the CISA. Other rules in the draft concerned the liability of the issuing state for the accuracy of the SIS data. the CNIL advocated the application of the Data Protection Convention and the Recommendation R (87) of the Council of Europe with regard to data protection in the police sector. The involvement of national data protection authorities certainly influenced the final outcome with regard to the provisions on data protection in the CISA. SEC (73) 4300. and R. in H. p. 1995: Directive 95/46 on the Protection of Personal Data 3.C. than to the protection of individual rights. L. See A. Protecting Individuals and Free Movement of Data Initially. RDV 1991.F. 2. Schengen. RDV 1990. Internationalisation of central chapters of the law on aliens. Datenschutz und Europäischen Binnenmarkt (part I). Leiden: NJCM 1992. No. The European Parliament. 60. refugees.186 Chapter 7 the use of data for purposes other than those provided by law would constitute a criminal act.21 For example. the Commission stated that the development of this new industry in the EC could be impeded by national solutions with regard to the protection of individuals. OJ 1974.M.24 In 1976. Meijers et al. Protection of Personal Data in the CISA. Dumortier.3.. International Review of Law.M. Transborder Flow of Personal Data within the EC.22 Before 1989. cited in R. repeatedly urged the European Commission to come forward with a legislative proposal. p. Simitis. p. No. See S. Verhey. 30 ff. 1.20 These provisions deal with the exchange of information for policy and security purposes. . the Commission did not forward any proposal in this field but merely awaited the developments on the Data Protection Convention of the Council of Europe. France. 59. in the communication on Community Policy on Data Processing: Development of EC data processing industry of 1973.23 The need for communitarian rules was emphasised by MEP Lord Mansfield in a speech given in 1974 stating that “data processing would not stop at the borders”. Computers & Technology 11 (1997) 93. parliamentary sessions. as provided for in Title VI. p. security and the police. for a general analysis of these rules: J. 3–23. p. 3. the European Parliament adopted a resolution demanding the development of community law to protect individual rights from technological developments. the United Kingdom and the Netherlands and their impact on the private sector. 179. According to the European Parliament. no. 57–65. A comparative analysis of the privacy statutes of the Federal Republic of Germany. a directive would be absolutely necessary to guarantee maximum privacy protection and to prevent the 20 21 22 23 24 See. These proposals were not included in the final text. the incentive for the European Commission to develop data protection law was related more to the concerns about the development of a European data processing industry able to compete with the US industry.3. expressing its concerns about the rights of individuals. Ellger (1991).1. the CISA includes its own set of rules on data protection. Datenschutz und Europäischen Gemeinschaft. Deventer: Kluwer Law and Taxation Publishers 1990. Nugter. privacy. With regard to the exchange of personal information outside the scope of SIS. Privacy aspects of the Convention. Ellger. Effective Remedies under Data Protection Law 187 development of divergent national laws. whether or not this involved negligence on his part. the French national supervisory authority (CNIL) had refused to register the automated processing of data on employees. COM (90) 314 – SYN 287. which would have to confirm the application of both the Data Protection 25 26 27 28 29 30 OJ C 100/27. 5.6. the European Parliament urged the Member States to ratify the Data Protection Convention. the European Parliament submitted its own proposal for a Directive on the protection of individual rights. it was proposed that the data controller should be obliged to inform the person concerned when data were stored for the first time. See. Therefore.26 In this proposal. RDV (Recht der DatenVerarbeitung) 1990.28 Finally.30 The judgment illustrated the problem of diverging data protection laws in the Member States regarding the free movement of information. 551 and S.27 According to the same Recommendation. . SEW Sociaal Economisch Weekblad 7/8 (1993).1990.1979. the lack of data protection laws in many EC Member States encouraged the European Commission to publish a legislative proposal on data protection.J. p. 5.8. B. p. The reason for this refusal was the intended transfer of these data by FIAT to Italy. Italy at that time had no data protection legislation nor had Italy signed the Data Protection Convention. 29.1982. In a resolution adopted in 1982. on the role of this case for the development of EC law. Boswinkel. De privacyrichtlijn begrensd. the proposal included the liability of the data controller for damage caused by the misuse of personal data. In a Recommendation of 1981. in 1990. the Commission would only consider proposing a separate instrument based on the EC Treaty if not all Member States had signed and ratified this Convention within a reasonable time. CNIL insisted on a prior. In this case. 3. Furthermore.11. the European Parliament defined basic principles which can be viewed as progressive and innovative for that time. although prior registration was a requirement in the French data protection act for lawful data processing.1981.1976 OJ C 140/34.4. No. Recommendation of 29 July 1981.5. OJ C 87/39. OJ C 277. The European Parliament also proposed that the matching or combining by any means of two separate databases should require the prior consent of an independent data protection body.29 The timing of this proposal was triggered by the so-called FIAT case. OJ L 246/31. Datenschutz und Europäische Gemeinschaft. 1. contractual agreement between the French and Italian FIAT factories. Simitis. 5. 11. For instance.25 In a resolution adopted in May 1979. Proposal of 27 July 1990. the Commission advised the EC countries to sign the Data Protection Convention of the Council of Europe. The case against Luxembourg resulted in condemnation by the Court of Justice. The final Directive was adopted by the Council on 24 October 1995. except Turkey.2. Germany and the Netherlands announced their legislation and the Commission closed their cases. . 3. These organisations considered the Directive too restrictive and too impractical for implementation. the Commission recognised that some provisions of the EC Directive were not clear 31 32 33 34 No. 15 May 2003.32 This Directive 95/46 was to be implemented by the Member States before 1 October 1998.188 Chapter 7 Convention and French law. COM (2003) 265.eu. 89-79.5. In the first evaluation report on the Directive of 2003. p. Luxembourg implemented the Directive by a law which entered into force in 2002. As result. Ireland announced a partial implementation in 2001 and adopted a bill in 2003 which implemented the Directive completely. See further. Luxembourg and the Netherlands. In 2001. The case against France was dropped as well after France announced its (amended) 1978 Data Protection Act.1995. had passed legislation in the field of data protection. Scope and Applicability of Directive 95/46 In the 2003 evaluation report on the implementation of Directive 95/46. p. 11 July 1989. France. taking into account the amendments of the European Parliament. on the implementation of the EC Directive in the Member States: http://www. OJ L 281.2003.3. the European Commission concluded that all candidate member states. 23. With regard to the enlargement of the EU by Central and Eastern European states. 15.europa. An amended proposal was submitted in 1992.34 3. 13. Ireland.htm. the obligation to implement the EC Directive coupled with their desire to accede to the Convention Implementing the Schengen Agreement forced the legislators to proceed with the adoption of their first national data protection laws. source: COM (2003) 265.int/ comm/justice_home/fsj/privacy/law/implementation_en. This deadline for implementation was exceeded by several countries and the European Commission started proceedings on the basis of Article 226 EC Treaty against Germany. such as Italy (1996) and Greece (1997).11. it was agreed in the so-called Copenhagen criteria of 1993 that these candidate states were committed to having Directive 95/46 transposed into their national laws by the time of their accession. The first draft of the EC Directive on data protection was criticised by a powerful lobby of private organisations and companies.31 The fact that a national data protection authority forced companies to reach a contractual agreement before trans-border data flows could be allowed received much attention.33 In other countries. The case was used to demonstrate the consequences of having divergent levels of data protection in EC countries and the need for more harmonised rules. including border control and visa applications. but not less protection. Österreichischer Rundfunk. the competence and powers of national data protection authorities. even though the scope of its application. 7. the laws on SIS were brought under Title VI of the EU Treaty. This would mean that the EC rules should be regarded as applicable with regard to data processing outside the scope of EC law. the Commission concluded there was no need to amend or modify the 1995 Directive. more adapted.1.35 Despite these differences in implementation and despite the new technologies which demanded other. Spain that a decision based on SIS. lawful data processing. such as provided for by Titles V and VI of the EU Treaty and in any case to processing operations concerning public security. legal solutions. on this judgment. sections 4.2 below. do not fall within the ambit of EC Directive 95/46. See. may infringe their rights under Community law. 35 36 37 15 May 2003. COM (2007) 87.2007. This conclusion was repeated in the follow up of the Commission of the Work Programme for a better implementation of the Data Protection Directive. COM (2003) 265.3. the ECJ confirmed the need to interpret the provisions of Directive 95/46 broadly. According to the Commission. The Data Protection Convention of the Council of Europe has wider application and covers data processing in the field of police and judicial cooperation. In its judgment regarding Rechnungshof v. for example with regard to the rights of individuals. defence. data stored in SIS in application of Article 96 CISA with regard to third-country nationals to be refused entry.36 In the same report. . has become subject to community law.37 According to Article 3. the ECJ ruled in the Commission v. 7–8. As a consequence.Effective Remedies under Data Protection Law 189 and could be interpreted differently. and the rules on the liability of the data owner. As we will see in Chapter 9. even though the Directive was based on Article 100A TEC (now Article 95). Compared to the Data Protection Convention of 1981. The Data Protection Convention sets out minimum standards for data processing. This does not mean that the implementation of the SIS falls completely outside the scope of Community law. With the integration of the Schengen acquis into the EU Treaty. the Directive 95/46 contains more detailed provisions. State security (including the economic well-being of the State when the processing operations relates to security matters) and the activities of the State in areas of criminal law”. the Directive does not apply to “the processing of personal data in the course of an activity which falls outside the scope of Community law. denying the right of entry or a visa to third-country nationals who are family members of an EU citizen. The new Regulation 1987/2006 on SIS II explicitly refers to the applicability of Directive 95/46. the Commission referred to the importance and the wider impact of the EC Directive. its applicability should be interpreted widely. see p.1 and 8. which implies that the signing States may offer more protection. VIS and the use of biometrics. Source: Treaty Office Council of Europe: http://conventions. Russia. Of the Member States of the Council of Europe. Armenia. The Directive offers a minimum level of data protection to be implemented into national law by the EU Member States.coe.int/T/E/Legal_affairs/Legal_co-operation/Data_protection/Documents/. This new body began its operations in 2005 and has published numerous opinions on the current developments with regard to SIS II. Azerbaijan. See: http://www. the Data Protection Convention was amended. This provision was included in the Amsterdam Treaty of 1999 in order to take away the inconsistent situation where Member States and organisations in those Member States were bound by the EC Directive 95/46. In June 1999. OJ L 008. according to which Community acts involving data protection would have to apply to the institutions and bodies created by. while Community institutions and bodies were not. As we will see below. 12.2001.01.38 In 2006. Furthermore.coe.int (consulted in June 2007). San Marino. Article 1 (2) of the Directive provides that Member States may neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded in this Directive. Turkey and Ukraine. With regard to the flee flow of information the Directive includes however a maximum level of protection. Regulation 45/2001/EC: Data Protection Applicable to Community Institutions and Bodies On 18 December 2000.40 This Regulation is based on Article 286 TEC. Moldova. permitting the European Communities and non-Member States of the Council of Europe to become a party to the Convention. 38 39 40 Amendments will only enter into force after acceptance by all Parties to the Convention. or on the basis of. only one state which is not a Member of the Council of Europe ratified the Data Protection Convention: Montenegro.39 3. the following states have not ratified this Convention: Andorra. Monaco. Some provisions are defined so broadly that data holders and users are left with a large margin of appreciation. a European Data Protection Supervisor (EDPS) has been established to control data processing by Community institutions and bodies. to meet the concerns of the different organisations involved.4. this Treaty. . the authors of the Directive provided for numerous exceptions to the general principles. the Council adopted Regulation 45/2001/EC on the protection of individuals with regard to the processing of personal data by Community institutions and bodies and on the free movement of such data.190 Chapter 7 Directive 95/46 includes a harmonised set of rules ensuring a high standard of protection for personal data throughout the EU. on the basis of Regulation 45/2001. and Council Decision 2002/187/JHA on the creation of Eurojust of 28 February 2002. cited in a note by the Finnish Presidency.1999. and in the installation of the European Data Protection Supervisor. this initiative was further elaborated by the Horizontal Working Party on Data Protection. It called for uniform standards which would have to be developed and could then be incorporated into new systems. 6. Despite these rules. it was felt that data processing in the third pillar of the EU required specific data protection rules. Resolution JAI 16 8563/98.2002. JAI 15 8321/98. 27. The CISA.45 41 42 43 44 45 Convention on the establishment of Europol. in 2002. . SIS and CIS. Council Decision of 17 October 2000 establishing a secretariat for the joint supervisory data protection bodies set up by the Convention on the Establishment of a European Police Office (Europol Convention).41 The Member States also adopted several decisions providing for the transmission of personal data by the EU organisations or EU Member States to third parties or third countries. OJ L 271/1. the Council Act on the transmission of personal data by Europol to third States and third bodies of 12 March 1999. the EU legislator has adopted new measures on data processing and international cooperation on the basis of Title VI of the EU Treaty.1995. SIS and CIS. This Working Party focussed on two issues: the harmonisation of data protection provisions in the third pillar instruments and the need to create a single supervisory body. OJ C 316. Important examples are the Convention on the establishment of the European Police Office or Europol. and the Council Decision establishing Eurojust refer to the applicability of the Data Protection Convention and.5.42 These so-called third pillar measures fall outside the scope of Directive 95/46. as well as to the increasingly intense cooperation in the third pillar. This call for harmonisation was supported by the national data protection authorities of the EU Member States.44 Under the German Presidency (first half of 1999). 24. cited in the same note by the Finnish Presidency.10. to the Recommendation of 1987 on police files of the Council of Europe. 5643/99. 1999.43 This paper referred to the fragmentation of data protection provisions for Europol.11. the Convention on the Use of Information Technology for Customs Purposes and the Convention implementing the Schengen Agreement on the gradual abolition of checks at common borders. the issue of the harmonisation of data protection in the third pillar was explicitly raised for the first time in a discussion paper by the Italian Presidency.03. in 1995. as well as the Europol Convention. and the Decision on the organisation for judicial cooperation or Eurojust. Data Protection in the Third Pillar: A New Instrument Since the adoption of Directive 95/46. This latter proposal resulted in 2000 in both the establishment of a joint secretariat for Europol. For example. OJ L 63/1. 30. In 1998.Effective Remedies under Data Protection Law 191 3.3. OJ C 088. with regard to SIS and Europol. 4 February 1999.2000. the JHA Council took note of the Greek proposal. COM (2005) 475 fin.2006. In June 2003. but the item was dropped and the subject seemed to disappear from the agenda. Spring Conference of European Data Protection Authorities. then holding the EU Presidency. the need for a harmonised approach and for a new instrument for data protection for the third pillar was affirmed by the national data protection authorities of the EU Member States at their annual meeting in Krakow. see for the statement of reasons: 10968/00 ADD 1 of 31 August 2000.192 Chapter 7 The establishment of harmonised standards for the third pillar proved to be a difficult task. At its meeting. Krakow.46 This draft was discussed within the Article 36 Committee and Working Party on Information Systems and Data Protection. 30 August 2000. p. See also. the Greek government. 5–6 June 2003. see Conclusions Meeting JHA Council. This new emphasis on data sharing in the (draft) Framework Decision is also reflected by the fact that between 2005 and 2006 the final text had been prepared by the Multidisciplinary Group on Organised 46 47 48 49 50 10968/00. but also provide for “a detailed set of rules taking into account the specific nature of law enforcement”. the European Commission presented a proposal for a Framework Decision on the protection of personal data in the framework of police and judicial co-operation in criminal matters. These rules would be the basis for a “common network of rules or a point of reference” with regard to both the national legislation of Member States and the actions taken by the EU in the field of security and justice.2. In October 2005. 25–26 April 2005. perhaps more importantly.48 This proposal for Common rules for the protection of personal data within the framework of the third pillar contained thirteen general rules of data protection. but again neither the content nor the need for common rules for the third pillar was discussed further. this new instrument should not only respect EC Directive 95/46 to guarantee the consistency of data protection within the European Union. on this proposal. 9845/03 (Presse 150). In 2000. no document number. 7. 12 April 2001. Working document. submitted a new proposal for data protection in the third pillar. the Working Document of the rapporteur Martine Roure of the LIBE Committee of the European Parliament. it also provides the basis for the further exchange of information between national authorities of the EU and between the EU and third countries.49 According to this declaration. In April 2005. the French Presidency of the EU Council prepared a draft Resolution on data protection rules under the third pillar of the EU.47 The draft was an item for discussion on the agenda of the meeting of May 2001 of the Council of Justice and Home Affairs (JHA). 32. 16 February 2001 and 6316/2/01.50 This proposal not only includes data protection rules. . See 6316/01. Sieglerschmidt report of 8 March 1982. speaking at the Joint Parliamentary Meeting on EU developments in the area of freedom.org. See also the version of 24 April 2007. security and justice at the European Parliament. published at: http://www. 1981–1982. Hondius (1975).53 In February 1980. the Parliamentary Assembly of the Council of Europe recommended that the Committee of Ministers study the option of including a provision in the Human Rights Convention on the protection of personal data. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right to the protection of personal data concerning him or her. Everyone has the right of access to data which has been collected concerning him or her.55 51 52 53 54 55 This was also stressed by Lord Avebury.54 This initiative was supported by the European Parliament. Document 1–548/81. Article 8 EU Charter reads: 1. 31st Session Document 4472. . the International Union of Lawyers adopted a resolution which proposed adding a regulation on the exercise of Article 8 ECHR in the field of automated data processing.statewatch. p. 3. 3 October 2006. either by amending Article 8 or Article 10 or by including a new Article. Before 2000. 7315/1/07. Recommendation 890 (1980).52 In conclusion. one could say that the original proposal of 1998 to provide for a data protection tool for the third pillar resulted in a new instrument which extended the powers of national authorities to exchange personal information. Article 8 of the EU Charter: Data Protection as a Human Right An important milestone in the development of data protection law has been the inclusion of data protection as a fundamental right in Article 8 of the EU Charter of Fundamental Rights of the European Union of 2000. Compliance with these rules shall be subject to control by an independent authority. referred to below.Effective Remedies under Data Protection Law 193 Crime of the EU Council. 179. 3. and the right to have it rectified.6.51 In December 2006 the JHA Council discussed a new text proposal by the Finnish Presidency. Document 4484. in section 8. 13246/4/06.8. 2. In 1979. few attempts were made to insert data protection as a new fundamental right into the ECHR. 58 The ECJ referred to the second recital of the preamble to the Family Reunification Directive in which the EC legislator stated that the principles of the Charter should be observed. since its revision in 1983. Unveiling Reasons for Data Protection The debate on the need for data protection has for a long time been closely linked to the need to protect the individual right to privacy. . attributed the constitutional task to the legislator of regulating the use of information technology and the protection of private life. Both the Spanish Constitution of 1978 and the Dutch Constitution. Case C-540/03. The Portuguese Constitution of 1976 provided for a right of knowledge regarding the automated processing of personal data and a ban on the use of personal ID numbers. the so-called Verfassungsbestimmung in the Austrian Data Protection Law of 1978 referred to the right of everyone to the confidentiality of his or her personal data. when used to explain the main goals of data protection. Furthermore. para. European Commission. in the judgment on the Family Reunification Directive 2003/86.194 Chapter 7 At a national level. p. the ECJ emphasised that Member States themselves declared that they are bound to observe the principles as recognised in the EU Charter. 4. but an individual right to be considered independently of the right to private life laid down in Article 7 of the EU Charter. the ‘informational self determination right’ acquired constitutional protection with the Census judgment of 1983. the notion of ‘privacy’.08. the right to data protection remained closely linked to the constitutional right to privacy. 38. the right to data protection was only directly or indirectly protected by the constitution in a few countries. especially concerning his or her private or family life. the ECJ pointed to the fact that the Charter is a reaffirmation of the constitutional traditions and international obligations common to the Member States. However. European Parliament v. does not 56 57 58 Hondius (1975). 176–177. According to the Commission. Secondly.57 In June 2006. In other countries. the incorporation of the right to data protection in the EU Charter also gives added emphasis to the fundamental rights dimension of EC Directive 95/46 on data protection. As we will see in Chapter 12.2006).56 The inclusion of the right to data protection as a fundamental right in the EU Charter of 2000 confirms that data protection is not merely a code of conduct. in Germany. 12. the Council (not yet reported but see information in OJ C 190/1. first report on the implementation of the Data Protection Directive of 15 May 2003. including the right to private life protected in Article 7. similar to the German and Dutch concepts of Rechtsstaat. in both English-speaking and other countries. p. commentators advocated the use of ‘fair data processing principles’.63 A brief analysis of the main goals of data protection can be useful in explaining the central principles of data protection implemented in national and European data protection law. For this purpose. ambiguous. Education and Welfare. Bennett described privacy as “a notoriously vague. the American Committee on Automated Personal Data Systems. 3. Washington D. In this meaning. These principles will then be elaborated in section 5. Laws regulating the processing and use of personal information were therefore generally presented as ‘privacy laws’. the word ‘privacy’ (or ‘informational privacy’) has long been used to add “popular appeal to statutes that essentially perform the same functions as European data protection laws”. Although I realise that other goals could be defined as well. 12–13. in my view data protection law in general serves three goals. tensions. the word ‘data protection’ has been criticised as well for being too technical and esoteric.Effective Remedies under Data Protection Law 195 provide a clear-cut definition of the rights and interests of the individual concerned. p. p.59 According to Bennett. the concept of the ‘rule of law’ should be interpreted widely. a word which would mean little to the average citizen. the Younger Committee in its report on Privacy in Great Britain recommended the adoption of “fair information principles”. Home Office.60 For example.C: HEW. The second goal of data protection has a much broader scope and includes the protection of the rule of law. more specifically. This right includes the right to be left alone. the ‘rule of law’ refers to a legal order in which the powers of the state (and possibly of civil 59 60 61 62 63 See Bennett (1992). the right to liberty and the right to informational self-determination. In 1992. Report of the Committee on Privacy (the Younger Committee). rights and duties”. As long ago as 1972. ‘data protection’ would not explain that the goal of this law is to protect persons instead of data. in its report Records. London: HMSO 1973. Bull (1985).61 To distance themselves from the conceptual problems of both ‘privacy’ and ‘data protection’. US Department of Health. Bennett (1992). and controversial term that embraces a confusing knot of problems. ‘fair use of personal information’ or ‘IT principles of fair administration’ as more adequate definitions.62 In 1973. . 13. On the other hand. Report of the Secretary’s Advisory Committee on Automated Personal Data Systems. Computers and Rights of Citizens confirmed the necessity for “fundamental principles of fair information practice”. the protection of his or her right to privacy. The first goal is the protection of the individual and. 1973. 64 This concept of the rule of law includes the principle of division or balancing of powers. Vol. . Harvard Law Review. As we have seen in Chapter 6. in which the two American judges commented on the intrusive practices of newspaper reporters. Middel (eds). p. See also P. 4. the ECtHR explicitly referred to the relationship between Article 8 ECHR and the freedom 64 65 66 Ph. Kunig. dialogue on the issue of data protection often began with a reference to an article by Samuel Warren and Louis Brandeis in the Harvard Law Review in 1890.E. no. but also the community of individuals as a whole. Engels.W. Their considerations on the right to privacy or “the right to be let alone” and their proposals for individual redress for invasions of this right formed a basis for the development of a legal right of individuals for the protection of their personal information. in the 1970s and 1980s. M. it is clear that this right not only entails protection of the secrecy of private life.1. concerning secret surveillance measures by the German government. This goal protects the interests of both the data subject and the data controller. Protecting the Individual: The Right to Privacy 4. Kayser. the safeguarding of the principles of ‘good governance’ or ‘good administration’. and D.1. Beginselen van de democratische rechtsstaat. Elzinga. E. Brandeis.65 This essay. provided a first doctrinal elaboration of the defence of privacy and “portraiture” with regard to slander and intrusive press publications.M. the protection of human rights and a democratic legal order. S.edu/fast/boardmaw/ Privacy_brand_warr2.196 Chapter 7 actors) are constrained for the protection of rights and liberties and the equality and legal security of individuals. the ECtHR applied the right to private life as protected in Article 8 ECHR to assess the lawfulness and proportionality of data processing and for protecting the individual against unlawful intrusion by governmental authorities. Downloadable from http://www. Warren and L. The Right to Privacy.D. 15 December 1890. Marseille: Economica Presses Universitaires d’Aix-Marseille 1990. in my view. Over machtsregulering als ontwikkelingslijn. De democratische rechtsstaat als ontwikkelingsperspectief. De rechtsstaat herdacht.1. With regard to the relationship between citizens and government.J.D. Das Rechtsstaatsprinzip: Überlegungen zu seiner Bedeutung für das Verfassungsrecht der Bundesrepublik Deutschland. By emphasising this goal separately. Burkens (et al. The third goal of data protection law is. Tübingen: Mohr (Siebeck) 1989. 17 ff.66 In the Klass case of 1978. 5. IV. La protection de la vie privée. in: J. it becomes clear that data protection law not only protects the individual.J. but also the liberty of one’s private life. Tjeenk Willink 1989. From the Right to be Let Alone to the Right of Personal Liberty In the early discussions.). Alphen aan den Rijn: Kluwer 2006.html.lawrence. Zwolle: W.M. 69 According to the ECJ. no.Effective Remedies under Data Protection Law 197 of communication. Joint Affairs C-465/00. that legislation would also be “incapable of satisfying the requirement of proportionality in Articles 6(1)(c) and 7(c) or (e) of Directive 95/46”. Germany. In the words of the Constitutional Court: “Anyone who is uncertain whether his or her deviating behaviour will always be noted and recorded. Austria case concerning the right of correspondence of detained persons. Österreichischer Rundfunk and Others. Anyone who is concerned. Romania. the German Court emphasised the need for data protection to protect individual liberty. 28341/95. Rotaru v.68 In the judgment Rechnungshof v.” In the famous population Census decision or Volkszählungsurteil of 1983. judgment of 16 December 1992. C-465/00.67 In both the Niemietz and the Rotaru cases. in which the Court confirmed the link between privacy and the individual’s liberty. the Court emphasised that the right to private life must also to a certain extent include the right to establish and develop relationships with other human beings. no. Rechnungshof v. 4 May 2000. 91. See also Chapter 6. Compare the Pfeifer vs. that his participation in a gathering or civil action 67 68 69 70 71 Judgment of 6 September 1978. para. if national courts were to conclude that the national legislation with regard to the processing of personal data is incompatible with Article 8 of the Convention. appl. 5029/7. the German Constitutional Court also emphasised this more ‘external’ aspect of private life.70 In the same paragraph. . 25 February 1992. the ECJ ruled that each of the exceptions included in Article 13 of that Directive must comply with the requirement of proportionality with respect to the public interest objective being pursued. used or transmitted in the longer term.71 In this judgment. Judgment of 15 December 1983. no. will try to not attract attention by such behaviour. for example. C-138/01 and C-139/01. which has been extremely important for the discussions at international level and in other countries. In the words of the ECJ: “that provision cannot be interpreted as conferring legitimacy on an interference with the right to respect for private life contrary to Article 8 of the Convention. 1 BvR 209/83. Reports 2000-V. the ECJ explicitly stated that EC Directive 95/46 must be interpreted in accordance with the right to private life as protected in Article 8 ECHR. 227. Series A. but also the freedom to correspond. appl. Österreichischer Rundfunk and Others (see further below). BVerfGE 65. Series A. Niemietz v. 251B. To be discussed further in Chapter 12 on Germany. The Constitutional Court made it clear that even a person’s awareness that his or her movements are being ‘watched’ could affect his or her freedom to move or act. stating that the protection of secrecy of communication in Article 8 ECHR protects not only the content of this correspondence. facilitated by the automation of data processing. (…) This would not only be detrimental to the possibilities for individual self-development. Looking at the principles of data protection law described in section 5. Furthermore. the right to privacy is reflected. para. because individual self-determination is a basic condition for the functioning of a democratic society.2. In his Privacy and Freedom. as one of the rights to be protected by data protection law. groups. the American author Westin gave a new definition of ‘privacy’ which implied the right of an individual to control the further dissemination of his or her personal information. in the principle of purpose limitation which protects an individual from unauthorised access to his or her data. 12 (own translation). new theories have emerged on the relationship between an individual and his or her personal information. . based on the freedoms of citizens to act and to cooperate. how. the experiments at that time with ‘polygraphs’ or lie detectors. cited in Bull (1985). 72 BVerfGE 65. 42. 4. In its jurisprudence.198 Chapter 7 could be recorded by the government and that this will involve risks for him. According to Article 1 of this French law. which go beyond the protection of secrecy and liberty of one’s private life. Informational Self-determination Since the 1960s. Westin described privacy as “the claim of individuals.1. the new use (including by private corporations) of personal testing for employment purposes and the expanding practice of large-scale data collection. is also incorporated into the French data protection act.”72 Individual liberty. These developments included new practices of eavesdropping. but also to the public interest [common well-being]. the ECtHR recognised the right of individuals to control to a certain extent the use and registration of their personal information. to be described in Chapter 11. for instance.” Westin’s publication was influential in the discussions on data protection law. published in 1967. In the European discussion. including the right to privacy and individual or public liberties. and to what extent information about themselves is communicated to others. p. it is protected by the special safeguards with regard to ‘sensitive’ data and by individual participation rights. information technology should not infringe upon human rights. not least because it described general developments in (American) society posing a risk to personal privacy. may refrain from exercising his constitutional rights. or institutions to determine for themselves when. Westin’s publication was especially important because of his more active approach of the individual and his rights to deal with the new problems caused by automated data processing. p. similar to a right of copyright or property.76 The right to informational self-determination should be distinguished from the so-called ‘ownership principle’. the concept of autonomy and the right of individuals to control their own data was later used in order to justify governmental plans for multifunctional ID cards. La protection de la vie privée dans les échanges internationaux d’informations.73 In Germany and. Handelingen Tweede Kamer (proceedings of Dutch lower house). giving individuals an unlimited and absolute right regarding their data. Montréal: Ed. 1997–1998.74 On the other hand. Burger en overheid in de informatiesamenleving: de noodzaak van institutionele innovatie. fearing that such a right would tilt the balance between the individual and the state too far in favour of the data subject. 3. in Goodwin v. but also with the right to have access to personal files (Gaskin). Blok.75 In 2001.Effective Remedies under Data Protection Law 199 These conclusions dealt not only with claims for the deletion of personal data from public files (for example. 438. for example.77 Such a right. 1983. a ‘digital locker’ was even proposed. p. De splitsing van privacy.2) with regard to the registration of a transsexual who wanted to have the information about his sex changed in the governmental files. Revue de droit prospectif. Ars Aequi 50 (2001) 6. 9. In the Netherlands. in other countries too. Advies over het grondrecht op privacy in het digitale tijdperk. . The ownership theory is formulated by the French author P. for example with regard 73 74 75 76 77 For example. An analysis of the discussions on this ownership principle is given in: K. were linked to several proposals from the right for individuals to control the use of their personal information. has been advocated especially in the field of private relations. Thémis 1993. governments adopt an ambivalent attitude towards this concept of informational self-determination. section 3. 1. no. The Court described the so-called “informationeller Selbstbestimmungsrecht” as “the power of individuals to decide in principle about the providing and use of his or her personal data”. Benyekhlef. The Court also recognised the right of persons to have their personal data in public files changed in accordance with their feelings or wishes. The Hague: 2001. 25 892. enabling each citizen to decide which information could be forwarded to which authority. p. The Hague: 2001. GBA in de toekomst: Gemeentelijke basisadministratie als spil voor toekomstige identiteitsinfrastructuur. to be used in health care. UK (dealt with in Chapter 6. to some extent. At national level. the right to “informational self-determination” became embedded in the aforementioned Volkszählungsurteil of the Constitutional Court. no. the government explicitly rejected the recognition of a constitutional right to informational self-determination. These cards. Leander or Segerstedt-Wiberg). Catala in: Ebauche d’une théorie juridique de l’information. Adviescommissie Modernisering GBA (Commissie Snellen). cited in P. 38 ff. Commissie ICT en Overheid (Commissie Docters van Leeuwen). the rule of law is one of the goals of data protection law. This right is also reflected in the principle of the prohibition of automated decision-making. A Collection of Essays in Remembrance of Guy Vandenberghe.). 161 ff. From privacy toward a new intellectual property right in persona: the right of publicity (United States) and portrait law (Netherlands) balanced with freedom of speech and free trade principles. an unlimited interpretation of the ownership principle has not been considered realistic. Poullet. See also L.81 According to Westin.79 It would for example not be feasible for a data user to be obliged to seek approval from the data subject for every use of his or her data. in general. “the increased collection and processing of information for diverse public and private purposes. correction and deletion of personal data. Westin (1967). Balance of Powers According to the preamble to the Data Protection Convention. .78 However. Protecting the Rule of Law 4. in: H. The Hague: Kluwer Law International 1996.K Kaspersen and A. 47.S.1. A Civil Law Approach. if not carefully controlled. vol. could lead to a sweeping power of surveillance by government over individual lives and organisational activity”.80 The data protection provisions on the right of access.C. As far back as 1967.200 Chapter 7 to the commercial use of personal information or the right to publicity in the field of media law. since this would ignore the fact that such relations are not (always) free interaction or communication.A Comparative Overview. p.2. Oskamp (eds. 4.2. p. Data Protection between Property and Liberties. Bygrave. The explanatory memorandum to this Convention explicitly refers to “the necessity of data protection as a tool of balancing powers”. can be considered an example of the implementation of the right of an individual to control one’s data or the right to informational self-determination. Privacy Protection in a Global Context .A. 324. to be discussed below. 158. His view that data protection is a necessary instrument to ensure the balance of powers or equality of arms (Waffengleichheit) is still or perhaps even more true for the use of information technology in the 21st century. Amongst Friends in Computers and Law. 2004. Scandinavian Studies in Law. Deventer/Boston: Kluwer Computer/Law Series 1990. Westin pointed out the consequences of the new developments on the automation of databases for the balance of powers between citizen and government. Pinckaers. The importance of protecting the individual against any misuse of powers by the government was emphasised by 78 79 80 81 J.W. in his Privacy and Freedom. Y. p. correction or deletion of his data strengthens the position of the data subject. such as health. employment.Effective Remedies under Data Protection Law 201 the ECtHR in its jurisprudence on Article 8 ECHR. the right to apply for access. from the powers of the central government. 10/95. Westin already predicted that the new information technologies would cause changes to the governmental organisation: “All the government agencies concerned with a problem.84 In the first national data protection law in Hessen. Roßnagel. the concept of informational division of powers was initially developed to protect the autonomy of lower governments. in the Klass and Leander judgments. The French Data Protection Law. 113. p. and A.83 This principle protects citizens against a concentration of power by the government. . See among others H. 4. data protection rules should protect the citizen from arbitrary and unfair measures based on data processing.P. Datenschutz oder die Angst vor dem Computer. the purpose of “balancing powers” is reflected by the principle that information technology should serve the interests of citizens (l’informatique doit être au service de chaque citoyen). Datenschutz und Datensicherheit (DuD). will be part of an integrated information system and will coordinate their information to make decisions”. education.2. p. Originally. by preventing one authority having access to information from other authorities. Informational Division of Powers Closely related to the idea of the rule of law and the balance of powers is the (originally German) concept of informational division of powers or “Informationelle Gewaltenteilung”.82 Examples of these “counterbalancing” provisions of data protection are the rules safeguarding the transparency of data processing.2. etc. In 1967. the ECtHR focussed especially on the importance of procedural guarantees to counterbalance the powers of the national police authorities to collect and store personal information. Furthermore. Bull. Westin (1967). By regulating the relationship between the public authorities and data subjects. p. 8. regardless of organisational boundaries or the purposes for which the information was gathered. 325. such as the German Länder or municipalities. 584. As we have seen in Chapter 6. München-Zürich: Piper 1984. p. The Hessian data protection law even provided for a role for the data protection commissioner to check whether automation leads to any 82 83 84 Bygrave & Berg (1995). The goal of data protection should therefore be to strengthen the position and rights of data subjects with regard to the processing and use of his or her personal information. the concept of the informational division of powers was founded in the concerns of administrative organisations about the consequences of information technology for their mutual relations. whatever their level of government. 75.202 Chapter 7 change in the distribution of powers among governmental bodies.88 The informational division of powers is mainly reflected in the data protection principle of purpose limitation. Berlin: Duncker & Humblot 1982. the German Constitutional Court however acknowledged the importance of an informational division of powers. under certain circumstances. para. Gesellschaftspolitischen Grundlagen des Datenschutzes (1976). 4. Later. the choice in favour of decentralised public administrations was especially meant to alleviate citizens’ fears of central databases.86 In the Census case or Volkszählungsurteil of 1983. This. 13. 35 GG). with other governmental authorities (Art. The right to good administration is included as 85 86 87 88 A. Generally. B. Data Protection as an Obligation for ‘good administration’ The principle of ‘good administration or governance’ refers to the duty of administrative authorities to take measures aimed at protecting data files from unauthorised access. According to the Court.87 The Court held in this judgment that the public administration does not constitute “one informational unit” (Informationseinheit) in which personal data can be freely exchanged. or security measures which should prevent the loss or destruction of stored information. obliges authorities to define the purpose of their data processing. p. German scholars advocated a more general theory of prohibition to exercise control through the use of information beyond organisational borders. . Podlech. this principle applies to the relationship between enterprises and their clients or employees as well but. On a political level. 46 and 69.85 Such an informational division of powers was however contrary to the constitutional principle of Amtshilfe obliging public authorities to cooperate and exchange information. the use or disclosure of information for anything other than the original purpose is limited. In principle. ‘Good administration’ serves in the first place the interests and rights of individuals or the data subjects. Ein Beitrag zu einer Lehre von der Gewaltenteilung in der Verwaltung. I focus on the relationship between the government and its citizens. Simitis (ed. it is the task of the legislator to provide guarantees against “alienation of purpose” or Zweckentfremdung. for our purposes. BVerfgE 65. rather than those of the lower governments. of course.) Bundesdatenschutzgesetz. Schlink. Baden-Baden: Nomos 2006. Die Amtshilfe. S. the principle of informational division of powers became more important for protecting the rights of individuals.3. 1. cited in Bull (1985) p. The goal of ‘good administration’ is related to the abovementioned concepts of “fair information principles” or “fair use of personal information”. as we will see below. incorrect or incomplete. It also serves the interest of the organisation holding data files. c. b. while respecting the legitimate interests of confidentiality and of professional and business secrecy. are conscious of the importance of fair information practices for maintaining the confidence of their clients or citizens. including the proper use of personal information and fair decision making on the basis of that information. the right of every person to be heard. Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties.Effective Remedies under Data Protection Law 203 a human right in Article 41 of the Charter on Fundamental Rights of the EU. In the first place. Every person may write to the institutions of the Union in one of the languages of the Constitution and must have an answer in the same language. bodies. 2. If the information held is outdated. the obligation of the administration to give reasons for its decisions 3. Data holders. A person who has no confidence in how the organisation is processing his or her information will be reluctant to provide further information to this organisation. 4. this will hamper the functioning and administration of the data holder. the right of every person to have access to his or her file. Every person has the right to have his or her affairs handled impartially. before any individual measure which would affect him or her adversely is taken. The principle of ‘good administration’ not only protects citizens. in accordance with the general principles common to the laws of the Member States. We have seen above another motive for ‘good administration’: the implementation of the data protection law as included in the Data Protection Convention of 1981 and EC Directive 95/46. organisations depend on the reliability of personal files. offices and agencies of the Union. the EDPS confirmed this by stating: “An effective protection of data protection is not only important for the data subjects but also contributes . Article 41 of the EU Charter reads: 1. In its comment on the draft Framework Decision on Data Protection in the third pillar. fairly and within a reasonable time by the institutions. By ensuring the same level of data protection in their countries. whether private or public. This right clearly illustrates the new emphasis on good governance and the close relationship between good governance and the use of personal information. governments have tried to ensure that there are no impediments to trans-border data processing or the ‘free flow of information’. This right includes: a. A high level of data protection ensures the reliability and accuracy of personal data and thus the mutual trust and exchange of information between authorities. legitimacy of purpose. use limitation. individual participation or rights of the data subject. ban on “aimless data collection”. collection limitation. varying lists have been defined of what should be considered basic data protection rules. . 3. 25. extra safeguards for special categories of data. 101 ff. c. They include: 1. 5. See. data quality. and d. both public interests go hand in hand”. security safeguards.2. disclosure limitation and security. c. for example the six “core fair information principles” of Bennett: principles of openness. 5. purpose limitation. including: a. transparency or purpose specification. consideration 5. the accuracy and reliability of data processing is also served by the rights of individuals to apply for access. including: a. 4. However. the right to be informed. openness. p. OJ C 47/27. individual participation and accountability.90 The eight principles described in the OECD Guidelines of 1979 are often used as a starting point for describing the main rules of data protection law. the right of access to information. the right to request correction.204 Chapter 7 to the success of the police and judicial cooperation itself. b. individual access and correction. In many aspects. These include the principles of collection limitation. use limitation. b. deletion or blocking of further processing. The data protection principles as described in the following sections are based on the Data Protection Convention and EC Directive 95/46. purpose specification. 89 90 In its opinion of 19 December 2005 on the draft Framework Decision for Data Protection in the third pillar. correction or deletion of their personal data. 6.89 The goal of good administration is ensured firstly by the data protection principles of security and accountability. Data Protection Principles There is no absolute or definitive set of principles. ban on automated decision-making. In the literature and in the various instruments at stake. quality of data. use – disclosure limitation. 2. Bennett (1992). time limit on storage of data.2006. 9.2005. . Opinion of 28 February 2006.1 (b) of EC Directive 95/46. security. it prohibits the use or disclosure of personal information for purposes other than the specific purpose for which the data have been collected. 5. For example. Both the purpose limitation and the purpose specification principle reflect the idea that data processing should be foreseeable for the data subject and should not go beyond the reasonable expectations of the person concerned. this principle includes different layers of protection. The Principle of Purpose Limitation Purpose limitation is one of the central principles of data protection.93 As we have seen above. See. including not only the principles mentioned above.2) which implies that data holders should specify and make transparent the purposes of the relevant data processing. Brussels: http://www. it prohibits the collection of personal data for unknown or unspecified purposes. Elgesem. Firstly.91 Furthermore. Considering recent proposals or comments on data protection.eu. Purpose limitation is closely linked to the principle of purpose specification (see section 5. one will see that the principles developed more than twenty-five years ago are still the guiding standards.Effective Remedies under Data Protection Law 205 7. personal data must be collected for specified. the explanatory memorandum to the proposal for a Framework Decision on data protection in the third pillar refers to “the general rules on the lawfulness of processing of personal data”. According to Article 6. non-discrimination. Thirdly. Ethics and Information Technology 1. the European Data Protection Supervisor repeatedly refers to the general data protection principles. for example. the principle of purpose limitation provides that data should not be retained any longer than is necessary for the specified purpose. 1999. 8. in 91 92 93 COM (2005) 475.europa. p. As we will see below. 283–293. The right of access to legal remedies under data protection law is discussed separately in section 7 of this Chapter. explicit and legitimate purposes and must not be further processed in a way incompatible with those purposes.edps.1.10. See D.92 In the following sections. I will consider whether these principles have been incorporated into the CISA. accountability. 4. The structure of rights in Directive 95/46 on the protection of individuals with regard to the processing of personal data and the free movement of such data. but also emphasising the liability of data controllers and the possibility of imposing sanctions by supervisory authorities. Secondly. Since Article 100 CISA includes data on objects.). 28 January 2003. The ban on aimless data collection is closely linked to the principle of purpose specification.P. the ECtHR explicitly emphasised the importance of “foreseeability” with regard to the processing of personal data by governmental authorities. Cited by H. Articles 95 to 99 give – for each category of data to be stored in SIS – the purpose for which these data are to be used. completely unrelated to any crime. Datenschutz und Datensicherung. these general data surveillance checks should be limited to specific cases described in national criminal law and be granted on the basis of a specific mandate from the judiciary. was confirmed in the second evaluation of the Recommendation R (87) in 1998. 1998. Gesellschaftspolitische Grundlagen des Datenschutzes in: Dierstein/Fiedler/ Schulz (eds. the purpose of the Schengen Information System is “to maintain public policy and public security.95 According to this principle.coe. 13. Appl.1 of the Recommendation on police files. CJ-PD expert from the Netherlands. this principle is explicitly included with regard to data processing for criminal investigation procedures. According to principle 2. p. in conjunction Articles 95 to 99. unrelated to any specific criminal investigation. Data protection and the police. Evaluation of Recommendation R (87)15. Patijn. p. According to the conclusions of this evaluation. The Recommendation therefore prohibits the general collection of data. Report by A. Köln 1976.int/t/e/legal _ affairs/legal_cooperation/data_protection/documents/reports_and_studies_of_data _protection_committees/.97 Where Article 93 includes the general goal of SIS. In the Council of Europe Recommendation R (87) on police files.96 This evaluation describes the matching of police data gathered in the course of criminal investigations based on vast numbers of persons.94 5. 44647/98. The importance of the principle of “if there is no crime. 311. there is no investigation”. According to Article 93. United Kingdom. the gathering of information just to keep these data ‘in stock’ for future unspecified purposes is prohibited. refers to the principle that personal data should not be collected or stored without the prior specification of the goal of this data processing. available at: http://www. The purpose of the SIS is described in Article 93 CISA. no. this provision will not be dealt with in this context.1. A.206 Chapter 7 its jurisprudence on the protection of the right to private life. described below.1. including 94 95 96 97 Judgment Peck v. . Ban on “aimless data collection” The “ban on aimless data collection” or “Verbot pragmatikloser Datensammlung” as defined by Podlech. the collection of personal data for police purposes should be limited to such as is necessary “for the prevention of a real danger or the suppression of a specific criminal offence”. Bull (1985). Podlech. 5.2. except where such interests are overridden by the fundamental rights and interests of the data subject. For example. the ECtHR defined more . secondly. using information communicated via this system”. EC Directive 95/46 goes further. which states that SIS should only include such data as are necessary for the purposes of Articles 95 to 100. a legal basis is not required if data processing is necessary to protect the vital interests of the data subject or if this is necessary in the public interest or in the exercise of an official authority vested in the controller or in a third party to whom the data are disclosed. as we have seen in Chapter 6. but only that it should not be fair and not in breach of the applicable law. Legitimacy of Purpose The principle of purpose limitation not only requires the availability of a specific goal for data processing. in its jurisprudence on Article 8 ECHR. in the territories of the contracting parties and to apply the provisions of this convention relating to the movement of persons in those territories. – the processing is necessary for compliance with a legal obligation to which the controller is subject.Effective Remedies under Data Protection Law 207 national security. This explicit requirement is important because it forces the contracting parties. According to these criteria. This principle of a legitimate purpose is included in Article 5 of the Data Protection Convention. which is very broadly defined. This purpose. data processing is legitimate if: – the data subject has given his consent. makes it clear that SIS was intended firstly as “tool for the police for maintaining the public order and security” and. – the data processing is necessary for a contract to which the data subject is a party. to investigate whether the interest of the case justifies registration in the SIS. it is not always necessary for data processing by public authorities to be explicitly provided for by law. forwarding data. What is important is the general principle of Article 94 CISA. The general provision in Article 6 (1) (a) of the EC Directive only requires that data must be processed fairly and lawfully. This does not mean that data processing always must have a legal basis. However. with the inclusion of a limitative enumeration of purposes for which personal data may be processed. – it is necessary in order to protect the vital interests of the data subject. but also implies the legitimacy of this goal.1. According to Article 7 of the EC Directive. – when processing is necessary for the legitimate interests of the controller or the third party to whom the data are disclosed. finally. as a tool to control the movement of persons across borders. or – for the performance of a task in the public interest or in the exercise of an official authority vested in the controller or in a third party to which the data are disclosed and. In other words. Article 94 CISA further includes the rule that if a contracting party considers an alert entered in SIS based on Article 95. For example. Article 93 CISA provides that the use of SIS should be in accordance with the provisions of the CISA. In practice. this purpose limitation principle is not very strictly defined. Article 101 provides that access to the data entered in SIS and the right to search data directly shall be reserved exclusively for the authorities responsible for either border checks or other police and customs checks carried out within the country and the coordination of such checks. these provisions only include the criterion that the decision to report somebody in SIS should be in accordance with the national laws. it is not always easy to establish which use of the information at stake is “incompatible” with the original purposes.1. 97 or 99 in breach of its national law. Article 6 (1) (b) EC Directive 95/46. Articles 101 and 102 CISA are the central provisions regulating the authorities’ potential access to the data in SIS. In general. Of course. 98 See sections 6. Considering the general goals of data protection. In their relations with governments. this criterion can be applied in various ways. in particular. the principle of use or disclosure limitation is closely linked to the prohibition of détournement de pouvoir in administrative law. Use or Disclosure Limitation The principle of use or disclosure limitation implies that personal data should not be used or transmitted for purposes other than the initial purpose defined at the time of data collection or storage. it will often be difficult for individuals and data protection authorities to enforce or control this principle. With regard to the more specific criteria. including the protection of the rule of law and preventing the concentration of power. allows for the use or disclosure of information for purposes “which are not incompatible” with the initial purposes. For example. . international obligations or other prevailing national interests. as provided in Articles 95 to 99.2 of Chapter 6.3. 5. this principle should to a certain extent safeguard the informational division of powers.208 Chapter 7 stringent criteria with regard to the legal basis of data processing. for the purpose of transparency and to ensure the accessibility of legal remedies. persons should have a guarantee that information given to one authority is not automatically available to other authorities as well.98 With regard to the legitimacy of the purpose of SIS. as described above. this country may mark this alert to prevent action on the basis of this alert occurring on its own territory. It allows data holders to define very broadly the purposes of their databases or the authorities or users who have access to them.2 and 7. According to this provision. at the public register of the Council: http://register. The contents of this wording is similar to the (much shorter) wording of Article 6.consilium. This principle is laid down in the different European instruments of data protection. which authority may search for which data. . Furthermore. rehabilitation. the authorities responsible for issuing visas or central authorities responsible for examining visa applications or for issuing residence permits and “for the administration of legislation on aliens” may have access to the data entered pursuant to Article 96 (Article 101 (2)). and particular categories of data. the following criteria should be taken into account: the need to retain data in the light of the conclusion of an inquiry into a particular case. pursuant to Article 101(4) of the CISA.99 5. 5002/00. Time Limit on Storage of Data The principle of purpose limitation also requires that personal data be retained no longer than necessary for the purpose for which the data are stored or processed. personal data undergoing automatic processing may not be stored in a form which permits identification of the data subjects for longer than is required for the purpose for which those data are stored. 11788/01. the states should ensure that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored. for each category of data included in SIS. For example.int/utfregister/frames/introfsEN.eu. in particular an acquittal.Effective Remedies under Data Protection Law 209 In addition. These lists should specify. the age of the data subject.1 (e) of the EC Directive: “no longer than is necessary for the purposes for which the data were collected or for which they are further processed.” More specific criteria are included in Principle 7 of the Recommendation No. July 2003. The contracting parties are obliged to send to the Secretariat General of the Council (formerly the Executive Committee) a list of competent authorities which are authorised to search the SIS data (Article 101 (4) ). a final judicial decision.1. spent convictions. Regarding the decision on whether longer storage is necessary.htm. 6265/03. amnesties. the Recommendation explicitly requires the adoption of rules aimed at fixing storage periods for the different categories of personal data and that regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law. R (87) 15 on police files. although these instruments do not include explicit time limits. 99 See the lists of competent authorities which are authorised to search the data contained in the Schengen Information System directly.4. according to Article 5e of the Data Protection Convention. One year later. prevention of threat to public order) this review period is fixed at one year. if a SIS alert is deleted from SIS. which may be kept for five years. the JHA Council. According to Article 112 CISA. with the exception of identity papers and suspect banknotes. The time limit for the storage of data on objects is 10 years (Article 113). even after its removal from SIS. However. this should be done via national technical procedures. trailers and caravans. Article 102 (2) CISA precludes alerts issued by one state from being copied from the NSIS to the national files of another state. issuing states can. the German government proposed in 2000 replacing the maximum time limits for the storage of data by time limits for reviewing the need of further storage. to which a time limit of three years is applicable. data may kept for a maximum of ten years. According to the SIRENE manual. For this category of data. The provisions in CISA do not restrict the number of times the storage of data in SIS may be extended. which hold additional information files alongside the SIS alerts. for data other than referred to in Article 112. 11538/00.102 The Council recommended however that where national law allows such extension of time limits. the functioning of SIS is complemented by SIRENE bureaux. even when data are removed from SIS. personal data “for the purpose of tracing persons” may only be kept for the time “required to meet the purposes for which they were supplied”. the authority which issued the alert is obliged to review the necessity of further storage no later than three years after they were reported to SIS. in their meeting of 5–6 June 2003. 20 September 2000. and data on motor vehicles. the corresponding dossier with SIRENE should be destroyed as well. preserve those data in their national files. the data will automatically be deleted after this period of three years. In practice.100 If the issuing state does not explicitly state that further storage is necessary. 10089/02 (Press 181).101 In a meeting of 20 June 2002. this allows the participating states to keep data on individuals in SIS on a permanent basis. decided that the applicable time limits had to be 100 101 102 According to Article 113. depending on which category of data this concerns. at least “as far as possible”.210 Chapter 7 The CISA provides for different time limits for the storage of data in SIS. . the Ecofin Council concluded that there should be no extension of the duration of alerts and no replacement of the maximum deadlines by review deadlines. With regard to SIS II. As described above. For persons whose data are stored for the purposes of Article 99 (discreet surveillance or prosecuting criminal offences. This latter exception has been used by Schengen states to keep SIS information in their local intelligence files. Another loophole with regard to the time limits applicable to SIS is caused by the practices of national SIRENE offices. This principle is laid down in Article 5b Data Protection Convention which states that personal data undergoing automatic processing shall be stored for specified purposes. See Chapter 4. explicit and legitimate purposes. or submitting written information to the data subject. section 6. when an asylum seeker acquires citizenship of any of the Member States or has been issued a residence permit. registration with the data protection authority.104 5. however. Article 7 and 10 of the Eurodac Regulation 2725/2000 provides that. 5–6 June 2003. Important is the new provision in Article 29 (4) stating that a decision to keep an alert longer in SIS II must be based on a “comprehensive individual assessment”. 42 of the explanatory report to the Convention. his or her data have to be deleted from Eurodac as soon as the Member State of origin becomes aware that this person acquired such citizenship or residence permit. This is further explained in consideration no. Purpose specification is also secured by the right of data subjects to be informed before. a similar rule has been included in Article 30 of the Regulation 1987/2006 on SIS II. As we have seen above. Transparency – Purpose Specification One of the most important clues for legal protection for individuals is knowing which authority or organisation is collecting and using their personal information. . This transparency is secured. For example. Article 29 (3) provides that “where appropriate” Member States must set shorter review periods. According to Article 29 (2). This assessment must be recorded. 9845/03 (Presse 150).Effective Remedies under Data Protection Law 211 modified without specifying how. The principle of time limits must be distinguished from rules stating that personal data have to be deleted from certain files after the change of status of the person concerned. by the obligation upon data owners to ‘publish’ the fact of data processing by any means: legal basis. Member States issuing an alert must review the need to keep it within three years of its entry in SIS II. 103 104 JHA Council. which states that the reference to “purposes” in Article 5 indicates that data should not be stored for undefined purposes. firstly. during or after the collection of personal information of the purpose for which the data are stored and of the recipients of this information (see section 5.2.3. the way in which the legitimate purpose is specified may vary in accordance with national legislation.5).103 The original proposal of the Commission for the SIS II Regulation provided for automatic erasure after five years. Furthermore. The principle of purpose specification is also included in Article 6 (1) (b) of EC Directive 95/46. This has been changed in the final text of the Regulation 1987/2006. stating that personal data must be collected for specified. define the purposes for which persons may be entered in the SIS. these data may not be processed automatically unless domestic law provides appropriate safeguards. as well as data concerning health or sexual life and data relating to criminal convictions. The limitative list of data on persons to be stored into the SIS includes. any specific objective physical characteristics not subject to any change and whether the person concerned is armed or violent. nationality. In particular. Article 8 (5) of the Directive states. Special Categories of Data: Extra Safeguards One of the earliest concerns during the discussions on the development of data protection legislation has been the storage or use of so-called “sensitive or special categories of data”. such as concerning racial or ethnic origin. I have dealt with the protection of “sensitive data” in the light of Article 8 ECHR. The list of special categories of data in Article 8 of the Directive 95/46 is almost the same as provided for in the Data Protection Convention. Only with regard to the definition of the data which may be stored in SIS. extra safeguards have been developed with regard to the use and storage of this information. the name. Article 8.3. the reason for the alert and the action to be taken. However. Article 94 CISA includes more specific criteria. EC Directive 95/46 and the Data Protection Convention do not include an absolute ban on the processing of these special categories of data. with regard to data relating to offences or criminal convictions. but also includes data on ethnic origin and data on trade union membership. in conjunction with Articles 95 to 99 CISA. health or sexual behaviour.4 allows Member States to define additional exemptions . that these data may be processed only under the control of a official authority or if suitable specific safeguards are provided under national law. political opinions or religious or other beliefs. For example. Furthermore. Article 8. In Chapter 6. Furthermore. Article 6 of the Data Protection Convention defines the following special categories: data revealing racial origin.2. 5. the prohibition does not apply when the data subject has given his explicit consent or in specific situations where the processing of these data falls under the general task of certain organisations such as trade unions or non-governmental organisations. date and place of birth of the person. among other things. section 3. According to Article 6 Data Protection Convention. the criteria of Article 96 are broad and leave a wide margin of interpretation to the national authorities. Article 8 of the EC Directive is based on the principle that Member States should prohibit the processing of special categories of data. arguing that the requirement of extra safeguards with regard to these data is closely related to the right of non-discrimination. sex.212 Chapter 7 As we have seen. Article 93. Recognising the “sensitivity” of certain categories of data.2 provides for a large number of exceptions to this general prohibition. the information on physical features as listed in Article 94 can also be considered “sensitive data”.4. according to Simitis. Quality of Data Compliance with this principle is not only a prerequisite for the protection of individuals. the former Hessen Data Protection Commissioner Simitis referred to two paradoxes in the contemporary regulation of the processing of sensitive data. Secondly. In 1999. Verhey. as described in the first sentence of Article 6 of the Data Protection Convention. national regulations on sensitive data often provide for a ‘hybrid approach’: the listing of special categories of data in national laws. However. CISA allows for two exceptions. in which the use of personal data in certain sectors is regulated by special laws. Privacy aspects of the Convention in: H. but also for the adequate execution of the tasks of the data holder. Rather than just prohibiting the processing of these categories of data. Review of the answers to the Questionnaire of the Consultative Committee of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (ETS 108). either by national law or by decision of the supervisory authority”. in the Netherlands. combined with a sectoral approach. 105 106 S. For example. are inherent in the regulation of sensitive or specific categories of data. Article 94 (1) formally prohibits the recording of sensitive data. regarding data relating to criminal convictions. Simitis. Secondly. Meijers (1992). In the first place. national legislators should be obliged to provide for more additional safeguards. 24–26 November 1999. These problems. the authors of CISA intentionally did not refer to the second sentence of Article 6 Data Protection Convention. the intention of States to limit radically the processing of sensitive data would be counteracted by an endless list of exceptions which is provided for in the same laws.105 In the first place. specific laws have been adopted for the use of police files and on the use of personal data in health care.106 5. since those data may well include information on someone’s health or racial origin. described in Articles 95 and 96. In practice. Strasbourg.Effective Remedies under Data Protection Law 213 such as those included in Article 8 “for reasons of substantial public interest.F. With regard to the storage of sensitive data in the SIS. See L. Compliance with the quality of data is related to the purpose limitation principle. . which may include information on criminal convictions. of recording or use is limited. Revisiting Sensitive Data. as pointed out by Simitis. since this would have precluded the alert. the persistent claim that sensitive data can and must be defined in an exhaustive manner would conflict with constant attempts either to bypass or revise the apparently definitive list. Principle 3. See paragraph 14.214 Chapter 7 As provided for in Article 5c of the Data Protection Convention.2 of the Recommendation states that “as far as possible. the report points to the problem that these data are processed for different purposes or for a general preventive purpose. 107 Published at: http://www. where necessary.107 According to the report. kept up to date. data holders should take every reasonable step to ensure that data which are inaccurate or incomplete are erased or rectified. Although. these criteria apply to the storage and use of personal information. The latter State is then obliged to check the accuracy of the data immediately (Article 106). in general. add to. up-to-date and lawful. where necessary. the information stored should be adequate. causes problems from a data protection point of view. Article 6 (1) (d) of EC Directive 95/46 provides that personal data must be accurate and. data protection law does not explicitly refer to ‘soft’ or ‘hard’ data.int/t/e/legal_affairs/legal_co-operation/data_protection/. According to this provision. the different categories of data stored should be distinguished in accordance with their degree of accuracy or reliability and. As emphasised in the explanatory memorandum to the Convention. taking into account the purposes for which they are collected or processed. the Recommendation (87) 15 on police files obliges the authorities to treat certain categories of data differently. including gathering. Article 105 CISA obliges contracting parties to ensure that data entered in SIS are accurate. The report on the third evaluation of Recommendation (87) 15. this State must inform the issuing State. relevant and not excessive in relation to its purpose. More specifically. When a non-issuing state has reason to believe the data entered in SIS are not accurate. the information should be accurate and. in particular data based on facts should be distinguished from data based on opinions or personal assessments. The principle of the quality of data implies the need to differentiate between ‘soft’ and ‘hard’ data.” The explanatory memorandum refers to “corroborated” and “uncorroborated data”. describes soft data as “data that have not yet been verified and whose link with the police objectives must be prepared”. correct or delete the data entered in SIS.coe. storage or dissemination. which give some unconfirmed indications or raise suspicions about the involvement of a person in one or several criminal offences. even if the adequacy or accuracy of these data has not been established. published in 2002. the use of this data. . According to Article 5d. kept up to date. Only the issuing states are allowed to modify. Although one cannot speak of an unlimited right to informational self-determination.5. recipients or categories of recipients. The data controller is not obliged to inform the data subject. Article 12 of the Directive 95/46 requires that the controller of the information should confirm “without constraint at reasonable intervals and without excessive delay or expense” whether or not data relating to the data subject are being processed and to give information on the purpose of processing. In these cases Member States must provide appropriate safeguards. The data controller should also inform the data subject on the existence of the right to access and the right to rectify data concerning him (on the basis of Article 10 (c)).Effective Remedies under Data Protection Law 215 5. Article 8 of the Data Protection Convention includes the right of a person to be enabled to “establish the existence of an automated personal data file.5. The right to be informed is included in Articles 10 and 11 of the EC Directive 95/46.1. its main purposes. categories of data concerned. one of the tools to control the use of personal information by third parties or governmental organisations is the right to be informed. to inform the data subject no later than the time when the data are first disclosed. where the data are processed “for statistical purposes or for the purposes of historical or scientific research”. This right includes both the right for the individual to apply for access to his or her data and the duty of the data controller to inform the data subject. These provisions oblige the data controller to inform the data subject on the use of his or her personal information. whether the reply to the information request is compulsory. Individual Participation: Rights of the Data Subject 5. at the time of recording or when disclosure of the data to a third party is envisaged. Article 10 of obliges the controller to inform the data subject from whom data are collected of the identity of the controller and the purpose of the data processing for which the data are intended. Right to be Informed – Right of Access to Personal Data As we have seen above. as well as the identity and habitual residence or principal place of business of the controller of the file”. Article 11 of the Directive obliges the data controller. irrespective of whether the data subject applies for access to the data. In so far as this is necessary “having regard to the specific circumstances in which the data are collected to guarantee fair processing in respect of the data subject”. one of the goals of data protection law is to protect individuals and their right to control to a certain level the use of their personal information. If the data have not been obtained from the data subject himself. information must also be provided on the recipients or categories of recipients. and on the consequences of failure to response the existence of the right to access and rectify data concerning the individual. conveying the information mentioned in Article 10. or where the provision of such information “proves impossible or would involve a disproportionate effort” or if recording or disclosure is expressly laid down by law. Article 11 (2) of the Directive includes general exceptions to the right to be informed. . but must be asserted via the national supervisory authority. Article 41 includes a time limit of 60 days within which an individual aplying for access to his or her data should be informed. When national law so provides. the right of individuals to demand access to their data is to be asserted in accordance with the national legislation of the state in which they invoke this right. however. Article 42 of the SIS II Regulation provides that third-country nationals who are the subject of an alert issued in accordance with this Regulation shall be informed in accordance with Articles 10 and 11 of Directive 95/46. Article 41 allows national legislators to give the national data protection authorities a primary role with regard to access rights. Article 42 of the Regulation on SIS II gives more specific rules dealing with the right of information comparable with the provision in the EC Directive 95/46. Firstly. Different from the provision in the CISA. In conclusion. the latter state must be given the opportunity to set forth its position. And no later than three months the individual should be informed on the “follow-up” given to the exercise of his rights of correction or deletion (see further below). Article 41 of the new Regulation 1987/2006 on SIS II includes a comparable rule as provided in the CISA. . 108 Draft document of 7 August 1989. the right to access cannot be exercised directly. p. but this was not accepted by the other negotiating parties. The right of access to SIS information as provided for in Article 109 has two restrictions. see also Dumortier (1992). This duty to consult the issuing state may cause considerable delays in applicable procedures and extend the time the applicants has to wait before he or she is informed of the information stored in NSIS. 160.216 Chapter 7 According to Article 109 CISA. As in the Article 109 CISA. which states that information must be refused to the person concerned when this is “indispensable for the performance of a lawful task in connection with alert” or “for the protection of the rights and freedoms of other parties”.108 The second limitation of the right to access is contained in Article 109 (2). the French government even advocated the need for the approval of the issuing state. the requested state should give the issuing State the opportunity to state its position before communicating the requested data. when the state to which the application for access is made is not the issuing state. the way this right is to be exercised is left to national scrutiny. The right to access must in any event be refused during the period of validity of an alert for the purpose of discreet surveillance. SCH/I (88) 7 12th revision (Dutch version). Also. During the negotiations on the draft CISA. before the requested state can give the individual the requested information. it is fair to say that the CISA in one way confirms the universality of the principle of the right to access. there is no duty to inform the data subject where national law allows for the right of information to be restricted. Only with regard to this latter objection. Article 12 (b) of the EC Directive provides that the data controller may be asked to notify third parties to whom the data are disclosed of any rectification or erasure on behalf of the person concerned “unless this proves impossible or involves a disproportionate effort”. this right applies “at least” with regard to data processing as described in Article 7 (e) and (f ) of the Directive. Secondly. respectively. 5. In practice. These provisions refer. Article 12 (b) of Directive 95/46 includes. the information must not be provided where the third country national in question already has the information. it will be difficult for an individual to apply this right of objection with regard to data processing by public authorities. This requires not only that an individual be aware of this right. also the right to ask for blocking of data. Article 14 EC Directive further gives individuals the right to object to data processing “on compelling legitimate grounds relating to his particular situation”. together with a copy of or a reference to the national decision giving rise to the alert in SIS II. Article 14 gives individuals the right to object. Firstly. the Directive requires Member States to take the necessary measures to ensure that data subjects are aware of their right of objection. the information must not be provided where “(i) the personal data have not been obtained from the third-country national in question.2. investigation. in particular in order to safeguard national security. Deletion or Blocking of Further Processing Article 8 of the Data Protection Convention of 1981 includes the right of a data subject to obtain the correction or erasure of personal data if the data have been processed contrary to the national law implementing the data protection principles. Right to Request Correction. but also that he or she be able to put forward “compelling” grounds. upon request and free of charge. detection and prosecution of criminal offences.Effective Remedies under Data Protection Law 217 This information must be provided in writing. public security and the prevention. which go further than those provided in the EC Directive 95/46. . Article 42 (2) of the SIS II Regulation allows for exceptions to this right of information. and (ii) the provision of the information proves impossible or would involve a disproportionate effort”. for the purposes of their legitimate interest. Thirdly. to data processing for the purposes of direct marketing. defence. aside from the rights of rectification and erasure. This includes the right to demand that the data are not further processed or transmitted to other parties if the data processing does not comply with the provisions of the Directive. According to this provision. to data processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority and processing by the controller or third party or parties to whom the data are disclosed. Furthermore.5. based on which his or her personal data should not be processed further. as well as the convenience of the citizens involved. in administrative law. For example.218 Chapter 7 5.6. In criminal law procedures. See further Chapter 9. OJ C 86. 31 January 2006. The meaning of this principle has been weakened considerably by paragraph (2) of Article 15. This practice is justified by the huge volume of cases to be dealt with by the administration. . On the other hand. the Court of Justice ruled that the Spanish authorities could not automatically refuse entry or a visa solely on the basis of these SIS alerts. which allows for subjection to an automated decision when the decision in question is taken in the course of entering into or fulfilling a contract. etc”. 8. this reasoning should also apply to other thirdcountry nationals protected by EU law or international standards of human rights. is already limited by common rules. Generally. According to this provision. authorities are generally obliged to motivate their decisions in writing. such as his performance at work.109 As I will argue below. courts should motivate their judgments and relate the decision to the individual facts or circumstances of the case. As we will see below. the implementation of the rules on the use of the SIS requires a practice which seems quite contrary to this principle. reliability. On the contrary. or when this is “authorised by a law which also lays down measures to safeguard the data subject’s legitimate interests. Ban on Automated Decision-making In the field of administrative law and of criminal procedural law. in the judgment of Commission v. the ability of authorities to base their decisions and prosecutions respectively on automated data processing only.2006. this principle was included in Article 15 of EC Directive 95/46.4. Based on the example of French data protection law (dealt with in section 5 of Chapter 11). In the light of the current EU developments. creditworthiness. Spain. concerning the registration in SIS of the spouses of EU citizens. 109 C-503/03. conduct. automated decision-making in the field of tax and social security procedures or administrative fines is common practice. where measures on immigration control tend to be based increasingly on automated data processing.” The CISA does not include any reference to a ban on automated decisionmaking. the reports in SIS forwarded by the national authorities of one State should be automatically implemented by the authorities of the other States. the banning of “automated decision-making” becomes even more important. every person has the right “not to be subject to a decision which produces legal effects concerning him or significantly affects him or her and which is based solely on automated processing of data intended to evaluate certain personal aspects relating to him. Article 7 of the Data Protection Convention obliges the state parties to ensure that data holders are taking the appropriate security measures to protect against accidental or unauthorised destruction or accidental loss. Even with regard to manual files and archives containing personal information. .8) for damages due to faulty or inadequate security measures. Responding to an incident in 1997. change. when an officer at the Belgian SIRENE office leaked personal information to criminal organisations. loss or unauthorised access is not new. intensification of the measures to guarantee that only authorised officials are gaining access to the information in SIS. it is considered as normal for these files to be kept in special safe-deposit boxes. In its annual reports. as well against unauthorised access. For instance. 9 March 1999. 110 Third activity report of the JSA. Security The duty to secure personal information against destruction. check the reasons for SIS inquiries at regular intervals. Article 17 of EC Directive 95/46 refers to the duty of “appropriate technical and organisational measures”.110 Based on the reports forwarded by the national authorities. organisation or authority holding these files should take precautionary measures to protect the information.Effective Remedies under Data Protection Law 219 5. Brussels. These rules do not include details on which kind of measures should be taken. Article 118 CISA describes certain security measures which should be implemented by the contracting parties. What actually changed is that the introduction of information technology requires new technical and organisational safeguards. it stipulates that the states should take “appropriate measures” to prevent access by unauthorised persons to the systems used for the SIS and to prevent unauthorised access. the JSA decided at its meeting of 12 December 1997 to investigate the security measures taken in the different countries.7. SCH/ Aut-cont (99) 8. deletion or use of the data stored. and the adoption of security measures which should be identical for each national SIRENE bureau. alteration or dissemination. With regard to the use of SIS. March 1998–March 1999. It is therefore unclear when data processors or data controllers can be held responsible or accountable (dealt with in section 5. appointment of an official responsible for security. Among other things. Especially in certain fields such as in health care or the police sector. the Joint Supervisory Authority (JSA) devoted much attention to the necessary safeguards to protect the security of CSIS and SIRENE offices. the JSA concluded that complementary measures were still necessary. it is generally accepted that the person. the JSA advised the authorities to take the following measures: encryption of information which is kept on data carriers. including risks and incident management. This includes injury caused by an issuing state which has entered factually inaccurate data or stored data unlawfully in NSIS. This rule does not apply if the former state used the information in SIS in breach of the provisions in this convention. if the state against which the action has been brought is not the issuing state. section 7. each contracting state is liable for injury caused to individuals by the use of national sections of SIS. Accountability The data owner or controller is in principle responsible for possible damage caused by illegal or inaccurate data processing. See further below. See for a critical review of this report: E. in: J. or any act incompatible with the national provisions adopted in accordance with the Directive.eu. the European Data Protection Supervisor (EDPS) completed its first inspection report of the Central Unit of Eurodac.220 Chapter 7 In 2006.2. This authority should take the necessary measures to ensure compliance with the provisions of CISA. the only consequence it attaches to this responsibility is the duty to notify the supervisory body of the existence of a particular file. On the basis of Article 116 (2). the latter should reimburse the sum paid by the former.edps. 38. the EDPS was generally satisfied with the level of security at the Central Unit. The liability of the Schengen States for injuries caused by the use of SIS is provided for in Article 116 CISA.1. The liability of the data owner is regulated by Article 23 of the EC Directive: this entails an obligation for Member States to specify that any person who has suffered damage as a result of an unlawful processing operation.8. This provision is important because it enables individuals to forward their claims to every Schengen State.). According to Article 108 of CISA. 111 112 See the Annual Report of the EDPS on 2006. According to this provision. p. Are you who you say you are? Liberty and security in the EU. is entitled to receive compensation from the controller for the damage suffered. The inspection report itself was held confidential. Lodge (ed. This principle of liability is not explicitly regulated by the Data Protection Convention of 1981 or by Recommendation R (87). According to the press release. security of communications and physical access control. .112 5. http://www.111 This inspection focused on a number of security aspects. Guild.europa. irrespective of whether this is the issuing state or not. the contracting states must appoint national authorities which are responsible for the “smooth operation” of the national section of SIS. Unreadable Papers? The EU’s first experiences with biometrics: Examining Eurodac and the EU Borders. Although the latter Regulation uses the definition of “responsible body” which refers to the controller of the file which has ultimate responsibility for the file. Nijmegen: Wolf Legal Publishers 2007. The Convention includes a special regulation in Article 14. Non-discriminatory Application of Data Protection Rules The right to data protection applies to every individual irrespective of his or her residence. the guarantees set out in the Convention are extended to every individual regardless of nationality or residence.S. To my knowledge. From the wordings chosen in Article 8 of this Charter. to be dealt with in section 8. to rectify the information stored in a data file. . The rights as provided for in the CISA also apply indiscriminately. Article 8. 5 U. Article 1 of the Data Protection Convention refers to “every individual. from its provisions. We saw above that the EU legislator inserted the right to data protection as a separate human right in the EU Charter on Fundamental Rights.S. individuals or data subjects. status or nationality. § 552a. whatever his nationality or residence”.Effective Remedies under Data Protection Law 221 5. other than the Privacy Act of the United States which only applies to US citizens or “aliens lawfully admitted for permanent residence”. paragraph 1. but also with the general non-discrimination principle in Article 14 ECHR together with Article 8 on the right to private life.C. refers to the right of “everyone”. it follows that this right to the protection of personal data should apply indiscriminately. whether in a Contracting State or in a third country. referring to natural person. The CISA explicitly gives “any person” the right to have inaccurate data or unlawful data either corrected or deleted (Article 110). where other rights in the Charter include the wordings “every citizen of the Union” and therefore have a restricted meaning. EC Directive 95/46 does not define “data subject” but.4 below). it can be concluded that the Directive does not treat different categories of persons in different ways. Privacy Act of 1974 as amended. Clauses restricting data protection to a State’s own nationals or legally resident aliens not only would be incompatible with Article 1 of the Data Protection Convention. This non-discriminatory application of data protection follows explicitly from the European instruments on data protection. will be able to exercise their right to know and. the national laws of the EU Member States do not differentiate between different categories of persons.113 113 U. According to the explanatory memorandum. ensuring that subjects residing abroad. in accordance with the general principle of the Council of Europe and its Member States with regard to the protection of individual rights.9. the right of access to a judicial court in the territory of each Schengen State is also open to “any person” (Article 111 CISA and Article 43 of the SIS II Regulation. where necessary. 6 (on extra safeguards for special categories of data) and 8 (right of data subject to access. Article 13 of EC Directive 95/46 also explicitly describes the restrictions to the rights as included in the Directive.” The explanatory report to the Data Protection Convention (para. as provided for in Article 12. 10 and 11 of the ECHR. The ECJ made it clear in the Österreichischer Rundfunk case that any of the exceptions included in Article 13 of Directive must comply with the requirement of proportionality with respect to the public interest objective being pursued and . According to Article 9. the prevention. and the right to a remedy). the protection of data subject or rights and freedoms of others. investigation. It includes a long list of legal restrictions: the safeguarding of national security. limitation of these rights is allowed when this is provided for by national law “and constitutes a necessary measure in a democratic society in the interests of 1) protecting State security. 55) explicitly refers to the principles of the ECHR and the criteria as provided for by the ECtHR in order to assess which limitations can be considered lawful: “Exceptions to the basic principles of data protection are limited to those which are necessary for the protection of fundamental values in a democratic society. the monetary interests of the State or the suppression of criminal offences. according to Article 13 (2) the right of access. Furthermore. finally. the protection of important economic or financial interest of the Member States or of the EU. defence and public security. The text of the second paragraph of this article has been modelled after that of the second paragraphs of Articles 6. and 2) protecting the data subject or the rights and freedoms of others. including deviation from the provisions of Articles 5 (on data quality). It is clear from the decisions of the Commission and the ECtHR relating to the concept of ‘necessary measures’ that the criteria for this concept cannot be laid down for all countries and all times. including the protection of the international relations of the State”. may be restricted by a legal measure and “when there is clearly no risk of breaching the privacy of the data subject” for data which are processed solely for scientific purposes. and.222 Chapter 7 6. With regard to the meaning of “state security”. Limitations of Data Protection Rights: General Interest and National Security The practical meaning of the rights and safeguards in the instruments described above depends on the criteria based on which these rights can be limited. correction and deletion. detection and prosecution of criminal offences or of breaches of ethics for regulated professions. Article 9 of the Data Protection Convention defines legitimate grounds for limiting the rights of data subjects. 8. paragraph 56 of the explanatory report to the Data Protection Convention states that this notion should be understood in “the traditional sense of protecting national sovereignty against internal or external threats. correct and delete. public safety. but should be considered in the light of the given situation in each country”. 7. in so far this Charter contains rights which correspond with the rights protected in the ECHR. data entered in SIS may only be used for the purposes laid down for each category of alert referred to in Articles 95–100. Data Protection Convention Surprisingly. paragraph 3 of this provision allows deviation from this principle when this is justified by “the need to prevent an imminent serious threat to public policy and public security. 91. However. supervisory control of the necessity of this deviation from the purpose limitation principle. However. These limitations are only lawful if governments can establish that such limitations are necessary. limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others. on serious grounds of national security or for the purposes of preventing a serious criminal offence.114 Article 52 (1) of the EU Charter includes a general limitation which also applies to Article 8 on the right to data protection. Joint Affairs C-465/00.1.Effective Remedies under Data Protection Law 223 any national provision based on the limitations must be interpreted in accordance with the right to private life in Article 8 of the ECHR. According to Article 102 CISA. Union law may provide more extensive protection. It should be noted that according to Article 52 (3) of the EU Charter. “any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. the meaning and the scope of the rights in the Charter shall be the same as the rights of the ECHR. Österreichischer Rundfunk and Others. . Subject to the principle of proportionality. Effective Remedies: Independent Data Protection Authorities 7. the Data Protection Convention does not include any specific provision on the availability of independent data protection authorities. 20 May 2003. the Convention does not provide any prior. National Data Protection Authorities 7.1. Article 10 of this Convention only requires that each Party should “undertake to establish 114 Rechnungshof v. independent. proportional and “genuine” or that they are effective for the purposes to be achieved. According to this provision.” Both the definition of this Article 52 and the explanation to Article 9 of the Data Protection Convention referred to above make it clear that governments cannot simply invoke the legitimacy of its purposes when restricting the rights to data protection.” Although this requires prior authorisation from the state issuing the alert to be obtained for another purpose.1. C-138/01 and C-139/01 para. 7.int (consulted in June 2007). . 181. EC Directive 95/46 Article 28 of the EC Directive 95/46 provides for the establishment of national public authorities which are responsible for the application of data protection principles. according to which States should ensure the establishment of independent supervisory authorities. 8 November 2001.coe. Not until 2001 was a Protocol added to the Convention on the role and powers of supervisory authorities and trans-border data flows. Member States should ensure the complete independence of these authorities and assign them the following tasks and powers: to give advice on administrative measures or regulations relating to the protection of the individual’s rights and freedoms with regard to data processing and to have investigate powers to monitor the application of the national law implementing the EC Directive.115 These authorities should be given. These authorities should also be given the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of national legislation. parties may allow the transfer of personal data if domestic law so provides because of the specific interests of the data subject or legitimate prevailing interests. This Protocol entered into force on 1 July 2004. data transfer is allowed if safeguards “which can in particular result from contractual clauses” are provided by the controller responsible for the transfer and are found adequate by the competent authorities according to domestic law. According to Article 28. which give rise to complaints. especially important public interests. Furthermore. and the Netherlands. There are two exceptions to this general rule: firstly. through the court system. the Protocol provides for appeal against decisions by the supervisory authorities. the Protocol includes the rule that personal data may only be transferred to another country or international organisation which is not subject to the jurisdiction of a Party to the Convention.224 Chapter 7 appropriate sanctions and remedies for violations of provisions of domestic law giving effect to basic principles of the Data Protection Convention”. powers of investigation and intervention to ensure the compliance of national legislation implementing the principles of the Data Protection Convention and this Protocol. With regard to trans-border data flows.2. erasure or destruction of data and place a temporary or definitive ban on data processing. if this recipient state or organisation ensures an adequate level of data protection. Germany. including France.1. 115 ETS No. Furthermore. Of the 47 Member States of the Council of Europe only 16 States (of which 13 EU Member States) ratified this Protocol. putting these principles of the Data Protection Convention into effect. in particular. http://conventions. The supervisory authority may further order the blocking. The EC Directive does not provide further details on the powers and competences of the supervisory authorities when dealing with this individual application. COM (2003) 265. hear individual claims concerning his or her data protection rights.116 The Commission describes the independence in the taking of decisions as “a sine qua non for the correct functioning of the system”. the Commission expresses its concerns that in practice this independence is threatened by the lack of resources for national supervisory authorities. p. The tasks and competences of the national authorities are to be performed in accordance with national law. At national level. the European Commission confirmed the importance of the independence of national data protection authorities. According to Article 28 (3) of the EC Directive. Article 114 (2) gives any person the right to ask this supervisory authority to check the data entered in the NSIS and the use being made of these data. at both national and international levels. on the basis of Article 114 CISA.3.Effective Remedies under Data Protection Law 225 The supervisory authority may. Article 28 (4) only states that the person concerned shall be informed of the outcome of the claim. SIS I and SIS II: CISA and Regulation 1987/2006 The CISA provides for the establishment of a non-judicial supervisory mechanism. Article 28 (6) states that a supervisory authority is competent. supervisory authorities have the power to start legal proceedings in cases where the national provisions which are adopted to implement the EC Directive are violated. In its first evaluation report on the implementation of the EC Directive. to exercise its powers in accordance with paragraph 3 on the territory of its own Member State. The national data protection authorities may also refer a matter to parliament or another political organisation. However. This means there is no harmonised approach at all regarding the way in which the national databases of the SIS are being supervised. In the same report. This supervision includes checking whether the processing and use do not violate the rights of the data subject. Finally. 116 Report of 15 May 2003. the same provision makes it clear that each authority can be requested by an authority of another Member State to exercise these powers. according to Article 28 (4).1. 12–13. whatever the national law applicable to the processing in question. This seems to imply that a national data protection authority cannot exercise its competences with regard to data processing outside the scope of its own territory. supervisory bodies are responsible for carrying out independent supervision of the national SIS data files. Article 44 of the SIS II Regulation deals with the supervision of NSIS II by the national data protection authority (the “National Supervisory Authority”). . 7. the lawfulness of the processing of the personal data. 12.01. This audit will have to be in accordance with international auditing standards. the protection of individuals with regard to the processing of personal data by Community institutions and bodies has been envisaged in Regulation 45/2001 of 18 December 2000. . According to Article 18 (9) this assistance has to be performed according Article 28 (4) of the EC Directive 95/46.226 Chapter 7 Article 44 (1) provides that the authority or authorities designated in each Member State and endowed with the powers referred to in Article 28 of Directive 95/46.117 The national supervisory authorities must according to Article 18 (10) “assist and advise” a person with regard to his or her rights on the deletion or correction of the data concerned.2. 9423/07. which only requires that the supervisory authority should hear claims of individuals with regard to the protection of their rights and freedoms and with regard to the lawfulness of data processing. 7.119 This Regulation provides for 117 118 119 OJ L 316. Article 34 (3) of the draft VIS Regulation obliges Member States to ensure that their national data protection authorities have sufficient resources to fulfil their tasks. Article 44 (3) obliges Member States to ensure that their data protection authorities have sufficient resources to fulfil the tasks entrusted to it under this Regulation. Furthermore.2000. 15. Eurodac and VIS The Eurodac Regulation 2725/2000 does not include very strong criteria as to the role of data protection authorities.1 The European Data Protection Supervisor At European level. in accordance with national law.4.118 Importantly. Finally. OJ L 008. Furthermore.12. Comparable provisions have been included in Articles 32 (2) and 34 of the draft VIS Regulation. shall monitor “independently the lawfulness of the processing of SIS II personal data on their territory and its transmission from that territory. and the exchange and further processing of supplementary information”.2001. 7. Draft of 10 May 2007. Article 19 of the Eurodac Regulation provides that each Member State must ensure that national data protection authorities will monitor independently.2. including their transmission to the Central Unit.1. Article 44 (2) provides that the National Supervisory Authority must ensure that at least every four years an audit of the data processing operations in NSIS II will be carried out. Data Protection Authorities at the EU Level 7. 01. or EDPS. Among other things.07. Decision of the European Parliament and of the Council of 22 December 2003 appointing the independent supervisory body provided for in Article 286 of the EC Treaty (European Data Protection Supervisor). OJ L 183.122 In December 2003. make proposals for “remedying that breach and for improving” the protection of the data subjects. was appointed the first European Data Protection Supervisor for a term of five years. to the European Parliament. to order the rectification.2004. Article 47 also includes the power of the EDPS “to warn or admonish” the controller. blocking. 1247/2002 of 1 July 2002. The EDPS may refer matters not only to the Community institution or body concerned and. OJ L 183.123 According to Article 32 of the Regulation 45/2001. 12. any data subject who claims that his or her rights under Article 286 of the Treaty have been infringed as a result of the processing of his or her personal data by a Community institution or body may lodge a complaint with the European Data Protection Supervisor directly. also provided for the establishment of an independent supervisory body which should be responsible for monitoring the application of data protection rules by the Community institutions and bodies. which is the legal basis for this Regulation. erasure or destruction of all data when they have been processed in breach of the provisions governing the processing of personal data and the notification of such actions to third parties to whom the data have been disclosed.edps. where appropriate. 30). the EDPS may give advice to data subjects in the exercise of their rights. More coercive powers of the EDPS are implied in the ability to order the responsible authority to comply with requests to exercise certain rights of a data subject. The European Supervisor may also impose a temporary or definitive ban on processing.Effective Remedies under Data Protection Law 227 supervision by a special supranational authority: the European Data Protection Supervisor. if necessary. without defining the content or the effect of these warnings. the former chairman of the Dutch Data Protection Authority.120 In 2002. 12.eu. the Council adopted a decision on the regulations and general conditions governing the performance of the European Data Protection Supervisor’s duties.2002.europa. Decision no. This right is without prejudice to any judicial remedy.07. . According to the Annual Report on 2006 (p.121 The creation of the EDPS is based on Decision 1247/2002 of 1 July 2002 on the regulations and general conditions governing the performance of this organisation’s duties. 120 121 122 123 124 Article 286 (2) TEC. 17. the EDPS dealt in 2006 with 52 complaint of which only 10 were declared admissible: see http://www. refer a case to the data controller in the event of an alleged breach of the provisions governing the processing of personal data and.2002. Peter Hustinx. OJ L 12/47. the Council and the Commission but also to the Court of Justice.124 The powers of the EDPS are listed in Article 47 of Regulation 45/2001. For this broad interpretation of its task.eu. The Working Party advises on Community legislation or 125 126 See the Annual Reports on 2004 (p. for a Working Party on the Protection of Individuals with regard to the Processing of Data (also referred to as the ‘Article 29 Working Party’). the EDPS refers to Article 46 (f. http://www. the EDPS published many opinions. The recommendations of the EDPS have no binding effect. in particular the development of information and communication technologies”. The EDPS may use its coercive powers under Article 47 if the data controller does not modify the processing operation accordingly.125 The EDPS also has an advisory role with regard to community measures and legislation related to data protection issues. the EDPS focused on its advisory role and did not use its more coercive powers (order.edps. according to Article 47 (2). Since January 2004. 17). the EDPS has also been tasked with the supervision of Eurodac. in its first years of operation. the EDPS made it clear that it would consider his mandate broadly and not restricted to community legislation or measures. In my view. the controller should make proposals to avoid such breach. In an early policy paper. including with regard to legislative proposals within the framework of the third pillar of the EU. Working Party on the Protection of Individuals with regard to the Processing of Data Directive 95/46 provides. If the EDPS considers that the intended processing may involve a breach of any provision of the Regulation. in Article 29. ii) of Regulation 45/2001. the role of the EDPS outside the scope of the EC Treaty could also be based on Article 47 (e) which refers to its task “to monitor relevant developments insofar they have an impact on the protection of personal data. 18 March 2005.126 And indeed. warning or ban). according to which the EDPS should cooperate with supervisory data protection bodies of the third pillar to ensure “an improving consistency” of the applicable data protection rules. Brussels. According to Article 27 Regulation 45/2001. The EDPS as an advisor to the Community institutions on proposals for legislation and related documents. Policy Paper.2. 24) and 2006 (p. the European Data Protection Supervisor shall have the power to obtain from a controller or Community institution or body access to all personal data and to all information necessary for his or her enquiries and to obtain access to any premises in which a controller or Community institution or body carries on its activities when there are reasonable grounds for presuming that an activity covered by this Regulation is being carried out there. p.europa. In its first year of activity. 7. .228 Chapter 7 Finally. processing operations by community institutions or bodies likely to involve a risk to the rights and freedoms of individuals require prior checking by the EDPS.2. 5. The Working Party has no competence to consider individual complaints. According to Article 115 CISA. . Furthermore. to my knowledge. According to this provision. Tasks and Powers The inclusion of a provision in the CISA on the establishment of a supranational data protection authority was strongly advocated by the national data protection authorities in existence at that time (Germany. although this would be in breach of EC Directive 95/46. This could be interpreted to mean that the JSA also has the task of dealing with individual complaints with regard to national supervisory authorities. the JSA is also responsible “for studying any problems that may occur with the exercise of independent supervision by the national supervisory authorities of the contracting parties or in the exercise of the right to access to the system”. These include the interpretation of the CISA rules and the supervision on the operation and security of the CSIS. or the exercise of an individual’s right of access.127 These recommendations are not binding. The task and powers of the Joint Supervisory Authority (JSA) are regulated in Article 115 CISA. The JSA.Effective Remedies under Data Protection Law 229 measures which relates to the processing of personal data and the rights of individuals. in August 2003 it published a memo on the use of biometric data. The Commission should inform the Working Party on the action it has taken in response to these opinions and recommendations. the JSA is also 127 For example. the JSA performs its controlling tasks in accordance with the Data Protection Convention and Recommendation R (87) on the use of police files. France and Luxembourg). which had been ‘authorised’ by the European Commission.1. in other words the CSIS located in Strasbourg. Furthermore. the Working Party twice published a critical letter on the transfer of passenger data by European air line companies to the US. the Working Party may make recommendations on its own initiative and forward these to the Commission.3. On several occasions. the JSA is responsible for more general tasks. According to Article 30 of the Directive. Schengen Joint Supervisory Authority 7. 7. According to Article 115 (3). which consists of two representatives from each national supervisory authority. the Working Party has used this power and published critical reports on specific but also more general developments within the EU. but it is not obliged to implement them. the JSA has so far not dealt with any individual complaints. However.3. including possible amendments to the EC Directive. is assigned the task of monitoring the technical support function of SIS. See fifth annual report JSA. Initially. also at the house of an employee of the Belgian Ministry of Justice. p. In its fifth annual report of 1999.230 Chapter 7 responsible for the examination of difficulties arising from application or interpretation. in a press release. Activities of the JSA In the annual reports. the JSA often referred to the weaknesses of its own position. or with regard to the exercise of the supervisory tasks of national authorities. but also be permitted to amend these data and to delete all traces of the activities performed.3.129 In 1997. the JSA noted that the number of these ‘superusers’ had dropped. (Dutch version). 7. . when printouts of certain SIS data were found at a Belgian railway station and. Between 1999 and 2000. this should be attributed to the success of the information campaign. 27 and 42. or regarding the right of access to the system. which may arise during the operation of SIS.128 In 1996. the JSA requested the contracting parties to ensure that information leaflets (drafted by the JSA) were distributed at external borders. According to the fourth annual report (March 1999 – February 2000) of the JSA. the press was informed about the problems the JSA encountered with the French authorities during its inspection of the CSIS. 128 129 See Justice report (2000). nor has the JSA any enforcement powers. the JSA sought publicity for two incidents. the organisation regularly complained about the lack of financial. later. the JSA asked the Article 36 Committee (Coordinating committee of senior representatives of the governments under the TEU) whether the list of authorised users could be submitted to the JSA. March 2000–December 2001. These are users who have privileged access to CSIS and who may not only have access to the information included in SIS. the JSA should draw up “harmonised proposals for joint solutions for existing problems”. the JSA may only submit its analysis of the problems and make its recommendation to the authorities concerned. the JSA expressed its concern about the lack of security of SIS. In the first place. the JSA itself looked for ways to strengthen its position. the number of requests from individuals for access to SIS information would have had increased since the dissemination of information. according to the JSA. 33. Secondly. overview of recommendations JSA 1996. For example. human and technical resources required for the performance of its tasks. more specifically at airports. p.2. In its reports. both of which occurred in 1997. for example by contacting the media and publishing its annual reports. by way of illustration. These recommendations are not binding. Firstly. According to 115 (3). the JSA issued a recommendation that the number of ‘super-users’ be reduced. p. the Article 29 Working Party and the EDPS. March 1999–February 2000.130 In it its most recent years of activity. These other instruments include the Regulation on Eurodac. to compare the different provisions on legal remedies. There is a long delay in publication of its latest annual report and the information on its website is outdated. 8. an individual should have a remedy when his or her rights as protected in this provision have been breached. Illustrative of this lack of publicity is the fact that the 2005 report of the JSA on the national implementation of Article 96 CISA was never officially published by the JSA. The report has only been accessible through the website of the Danish data protection authority and the NGO Statewatch. The explanatory memorandum to Article 10 explicitly states that it is left to each State to determine the nature of these 130 See fourth annual report JSA. 14. Data Protection Convention The Data Protection Convention refers to two different situations in which an individual may invoke a remedy. Another reason for this lack of activity could be the fact that. according to Article 8 of the Convention. This passive attitude might be explained by the fact that the JSA was overshadowed by its communitarian counterparts. the functioning of the JSA would be taken over by the EDPS. The rights of Article 8 include the right to be informed about the existence of an automated data file and about the contents of the information stored about the data subject and the right to correct erroneous or inappropriate information. SCHAC 2533/1/00 REV 1 (Dutch version). The Convention and its explanatory memorandum do not explicitly require the availability of judicial remedies. 8.Effective Remedies under Data Protection Law 231 The Article 36 Committee approved giving the JSA these lists after they were submitted to the JHA Council. .1. Firstly. the JSA has not sought much publicity or attention for its work. Effective Remedies: A Right to Judicial Remedies? As a result of the importance of this subject. in the followings sections. with the establishment of SIS II. I will also consider other instruments described above. in accordance with Article 10. the State Parties should ensure “appropriate sanctions and remedies for violations” of provisions of national law implementing the principles of the Data Protection Convention. the third pillar instruments and the draft VIS Regulation. Secondly. but could also imply that individuals have no timely access to effective remedies. This means that national legislators may stipulate that. According to this sentence. Joint Affairs C-465/00. the scope of applicability of the Directive would not be limited to data processing directly linked to the freedoms of free movement as protected in the EC Treaty. 39–47. This duty to address data protection authorities first may not only lead to longer procedures. includes an important restriction of this right. salaries and their pensions. however. were in accordance with the provisions of the EC Directive and the Community principles on the protection of privacy. Furthermore. including names.232 Chapter 7 sanctions and remedies (civil. In this judgment.132 This judgment was the first decision of the ECJ on EC Directive 95/46. inter alia before the supervisory authority referred to in Article 28”. 100. the ECJ confirmed that the scope of the applicability of this Directive has to be interpreted broadly. Para. in the sense that an individual may seek access to a national court to prevent the application of national rules which are contrary to these principles. Österreichischer Rundfunk. According to Article 22. It dealt with the question of whether the rules of the Austrian Court of Auditors (Rechnungshof) based on which organisations and holdings had to disclose information about their employees and pensioners.133 The ECJ made it clear that every other interpretation would run the risk of making the boundaries of the Directive’s application too uncertain and too vague.134 131 132 133 134 Explanatory report to the Convention. this right to judicial remedies is “without prejudice to any administrative remedy for which provision may be made. see comments on Article 10. C-138/01 and C-139/01. positions. the individual should first appeal to the supervisory data protection authorities as referred to in Article 28 of the EC Directive. it considered that the principles and criteria for legitimate data processing (as laid down in Articles 6 and 7 of the Directive) have a direct effect. The importance for individuals to have access to national courts to enforce their rights under Directive 95/46 was confirmed by the ECJ in Rechnungshof v. individuals should have a judicial remedy “for any breach of the rights guaranteed him by the national law applicable to the processing in question”. According to the ECJ. The first sentence of Article 22. prior to the right to have access to courts. EC Directive 95/46 EC Directive 95/46 explicitly obliges Member States to provide for judicial remedies.2. Para. Rechnungshof v.131 8. 20 May 2003. . administrative or criminal) “considering the ‘the non self-executing character of the convention’ ”. Österreichischer Rundfunk and Others. 8. 88 and 91–94. the ECJ found that the disclosure of names by the public bodies of the state implied interference with the right to private life as protected by Article 8 ECHR. individuals may bring an action against decisions of the European Data Protection Supervisor before the Court of Justice. together with other data protection provisions on informed decision-making.4. The Court of Justice also has jurisdiction to hear disputes which relate to the provisions of this Regulation. Concluding that the interference at stake was in accordance with national law.135 With this wide interpretation. the Court of Justice explicitly stated that it is “the task of national courts to ascertain whether this interference with the right of private life meets the requirements of foreseeability and whether the interference is necessary to protect legitimate aims”. but also held that the safeguarding of human rights would not be an independent objective of the Directive. Regulation 45/2001: EDPS Article 32 of the Regulation contains provisions on the remedies which should be available to data subjects whose rights under Article 286 of the EC Treaty have been infringed.Effective Remedies under Data Protection Law 233 In this case. This obligation.3. 8. Even if the data protection law does not itself include a duty to inform the data subject of the availability of (judicial) remedies. the right to receive information about the data processing and the rights of access. correction and deletion can be seen as important tools for safeguarding the “accessibility” of remedies. Tizzano not only gave a narrow interpretation of “the scope of Community law”. As we have seen above. including claims for damages. SIS I: Article 111 CISA Pressed by the national data protection authorities during the negotiations on the draft text of the CISA (see above). Furthermore. these “information rights” are important with regard to the accessibility of remedies for the data subjects concerned. Articles 10 and 11 of EC Directive 95/46 force the data controller to inform the data subject of the existence of the right to access and to rectify the data concerning him. the ECJ did not follow the opinion of the Advocate General Tizzano on this case. the Schengen States inserted a provision in the CISA on the right of access to courts or independent authorities with regard to 135 Para. This includes the right of any person who has suffered damage because of an unlawful processing operation or any action incompatible with this Regulation to have the damage made good in accordance with Article 288 of the Treaty. . has been very important in the development of rights with regard to SIS. This provision. for any injury caused to a person through the use of the national data file of the Schengen Information System. Article 111 CISA provides for the right of a person. according to which the final decisions of national courts should be enforced by the national authorities of other contracting parties.234 Chapter 7 the alerts held in SIS. where the latter entered factually inaccurate data or stored data unlawfully. in the territory of each contracting party. Nevertheless.15ter. This also applies to injury caused by the Contracting Party issuing the alert. This Article 111 CISA reads: 1. (Dutch version) Article 2. nor in the country where the person discovered use of his or her personal file from SIS. if the State against which an action is brought is not the State issuing the alert. to bring before the courts or the authority competent under national law an action to correct. with the possibility of compensation.136 136 27 October 1988. The meaning of this provision has been enhanced by Article 111 (2) of the CISA. 2. In one of the earliest drafts. Any person may. in every State which applies the CISA. according to which the person could only submit his or her complaint about an SIS alert to the competent judge or authority of the state which entered the alert in the SIS. delete or obtain information or to obtain compensation in connection with an alert involving him or her. is based on Articles 8 and 10 of the Data Protection Convention. the individual is not obliged to address the court in the country of his nationality. add to. . Article 111 CISA gives each individual the right to seek access to a competent court or authority. delete or obtain information or to obtain compensation in connection with an alert involving them. Exceptionally. Article 116 provides that each Schengen State is liable. included in Article 111. correct or delete the data in SIS (Article 106 CISA). the explicit reference to a right to legal remedies. without prejudice to the provisions of Article 116. The Contracting Parties undertake mutually to enforce final decisions taken by the courts or authorities referred to in paragraph 1. in the territory of each Contracting Party. SCH/I (88) 7 rev. in accordance with its national legislation. This provision had to be inserted because the use of SIS is based on the principle that only the contracting state issuing the alert can modify. bring before the courts or the authority competent under national law an action to correct. such a limitation was proposed by the Dutch government. upon request. Article 116 (2) provides that the latter shall be required. to reimburse the sums paid out as compensation unless the data were used by the requested State in breach of the rules of the CISA. Thus. The choice of authority that is competent to assess the individual claim and the scope of the available remedies has been left to the scrutiny of each Schengen State. Chapter 13. the Commission proposal included an important addition to Article 111 CISA. . See section 7. the Commission proposal seemed to include a territorial limitation by granting only those in the territory of any Member states the right to bring an action or complaint. the explicit right to judicial remedies with regard to the decision to issue an alert in Article 15 (3) from the Commission proposal was deleted.5. C-150/05. including a draft Regulation on the establishment. According to Article 15 (3) of the draft Regulation. A new proposal on SIS II was proposed by the Austrian Presidency in January 2006. was changed into: “any person may bring before the courts or the authorities an action to correct or delete. a third-country national would have the right “to a review by or an appeal to a judicial authority against a decision to issue an alert taken by an administrative authority of a Member State”.…” According to this proposal. the power of national courts to consider the lawfulness of foreign SIS reports. Article 111 (2) obliges each contracting party mutually to enforce the final decisions of the national courts or authorities concerning SIS. granting a person the right to appeal against a decision of a national authority to store his information into SIS.137 I will come back to this point in the Chapters on France. on the basis of which a Dutch lower court was considered competent to assess the lawfulness of an Italian alert in the SIS. and in Chapter 14. Another interpretation of this provision would render meaningless the rule inserted into Article 111 (2). 8.138 On the one hand. COM (2005) 236. or obtain information or to obtain compensation . This implies. The alert was based on Article 95 CISA. 5709/06. The explicit duty to provide for a right to a judicial remedy if person is refused access or rectification of his data. the Netherlands. 31 May 2005. SIS II Regulation 1987/2006 Article 30 of the Commission proposal for a SIS II Regulation included an explicit right to judicial remedies. On the other hand. granting “any person in the territory of any Member State” the right to bring an action or a complaint before the courts of that Member State if refused the right of access to or rectification or erasure of his data or the right to obtain information or reparation with regard to the processing of his data. In my view. and use of second generation SIS (SISII). Van Straaten v. access to 137 138 139 A similar conclusion can be drawn from the judgment of the ECJ. in my view.6. Germany and the Netherlands.Effective Remedies under Data Protection Law 235 Furthermore. 27 January 2006.139 In this new text. the use of commas in Article 111 (1) of CISA makes clear that this provision does not include a territorial limitation but implies that the individual has the right to forward its action in any of the Member States. operation. 2. without prejudice to the provisions of Article 48. Furthermore. where the latter entered factually inaccurate data or stored data unlawfully. access to remedies is not dependent on whether the person actually is within the territory one of the EU Member States. except for the addition of an evaluation clause in Article 43 (3) according to which the Commission should evaluate the rules on remedies before 17 January 2009. that Member State can be held liable for such damage. In the final text as adopted in Regulation 1987/2006 on SIS II. the latter shall be required to reimburse. unless and insofar as the Management 140 This territorial limitation was deleted in the draft of 6 June 2006. correct. The Member States undertake mutually to enforce final decisions handed down by the courts or authorities referred to in paragraph 1. Any person may bring an action before the courts or the authority competent under the law of any Member State to access. Article 43 of the Regulation 1987/2006 reads: 1. The rules on remedies provided for in this Article shall be evaluated by the Commission by 17 January 2009. Furthermore. the EU legislator chose for almost exactly the same wordings as in Article 111 CISA. on request.236 Chapter 7 judicial courts would not be required. 3. Article 48 (3) provides that if any failure of a Member State to comply with its obligations under this Regulation causes damage to SIS II. If the Member State against which an action is brought is not the Member State issuing the alert. It provides that each Member State shall be liable in accordance with its national law for any damage caused to a person through the use of NSIS II. the sums paid out as compensation unless the use of the data by the Member State requesting reimbursement infringes this Regulation. it would have been problematic if a third country national would not be able to remedy the wrongful use or registration of his or her personal information if he or she would be outside the EU territory. This shall also apply to damage caused by the Member State which issued the alert. Article 48 of the SIS II regulation includes a comparable provision on liability as included in Article 116 CISA.140 This means that. but also Member States would not be obliged to provide for legal remedies if somebody’s request for access or erasure is refused. . delete or obtain information or to obtain compensation in connection with an alert relating to him. 5709/6/06. Especially where it concerns the use of SIS II for the refusal of entry or a visa. different from the Commission proposal. the new text in the SIS II Regulation does not include the territorial limitation which was implied in the Commission proposal with the phrase “in the territory of the Member State”. the Eurodac Regulation includes a two-fold mechanism of protection for individuals. the Court of Justice is competent to consider prejudicial questions from (final) national courts on the explanation of the Eurodac Regulation according to the procedure of Article 234 EC. as agreed upon by the European Parliament. Article 49 of the SIS II Regulation provides that Member States must ensure that any misuse of data entered in SIS II “or any exchange of supplementary information contrary to this Regulation” is subject to effective. COM (2004) 835. A6-0194/2007. regulations and procedures of that State. according to Article 68 of the EC Treaty. 8. Finally. in the new text. Finally. as in Article 43 of the SIS II Regulation. Other than Article 43 of the SIS II Regulation (and 111 CISA). VIS Proposal Article 33 (1) of the Commission proposal for a VIS Regulation included the right that in each Member State any person would have the right to bring an action or a complaint before the competent courts of that Member State if he is refused the right of access to or the right of correction or deletion of data relating to him. the VIS Regulation does not provide that a person can invoke his right in any Member State. Article 18 (11) and (12) of the Eurodac Regulation gives the data subject the right to bring an action or a complaint before the competent authorities or courts of the State if his or her right of access.6. regardless of which Member State refused his request. correction. correction or erasure is denied according to the laws.142 In the first place. 9753/07.Effective Remedies under Data Protection Law 237 Authority or another Member State participating in SIS II “failed to take reasonable steps to prevent the damage from occurring or to minimise its impact”. based on a compromise between the European Parliament and the Council. 8. . Text of 19 June 2007. or deletion has been refused. as discussed above. proportionate and dissuasive penalties in accordance with national law. 141 142 Original proposal by the Commission. Secondly. 7 June 2007. Eurodac As in CISA. the right to remedies can only be invoked against the authority or court of that Member State by which his right of access. the new provision allows Member States to provide only for the right to bring action to non-judicial authorities.7. On the other hand. the provision on remedies has been changed.141 In the final text for a VIS Regulation. On the one hand. individuals can seek protection from supervisory national authorities on the basis of Article 18 (10). The assistance of the national supervisory authorities referred to in Article 39 (2) shall subsist throughout the proceedings. In each Member State any person shall have the right to bring an action or a complaint before the competent authorities or courts of that Member State which refused the right of access to or the right of correction or deletion relating to him. The recommendation does not include further provisions on the powers and competences of this independent authority nor prescribe that there should be access to a judicial authority. for example the refusal of a visa. Third Pillar Instruments Article 38 of the Europol Convention includes a regulation on the liability of Member States with regard to damage “caused to an individual as a result of legal or factual errors in data stored or processed at Europol”. that are “effective. 7315/1/07.144 According to Article 20 of the draft of 24 April 2007. proportionate. However. the data subject should be able to appeal to a supervisory body or to another independent body which shall satisfy itself that the refusal is well-founded. The draft Framework Decision on the protection of personal data processed in the framework of police and judicial co-operation in criminal matters also includes a right to a judicial remedy. provided for in Article 38 (1) and (2). According to Article 6 (6) of the Recommendation. 24 April 2007. Only in the Member State where the event occurred which gave rise to the damage can the individual apply to the courts. This VIS Regulation does not provide in a remedy against a decision which is based on VIS information.8. and dissuasive”. The Convention does not refer further to a right to judicial remedies. Member States must take the necessary measures to ensure that any misuse of data entered in the VIS is punishable by penalties.238 Chapter 7 The final Article 40 of the VIS Regulation on remedies reads:143 1. 8. competent under the national law of the Member State involved. Recommendation (87) 15 on the use of personal data in the police sector only refers to the need for the right of appeal to an independent authority with regard to the refusal to grant access to one’s own data. according to Article 36 of the proposed Regulation. “the data subject must have the opportunity of seeking judicial remedy for any breach of the rights guaranteed to him by applicable national 143 144 According to the text of June 2007. where access to data in a police file is refused. . including administrative and/or criminal penalties in accordance with national law. 2. According to Article 19 of the draft Framework Decision of April 2007. rather than substantial criteria. 22 November 2006. See De Hert & Guthwirth (2003). For example. these procedural rules are closely tied to substantial criteria. Conclusions 9.” 9. However.1. . It could be argued that data protection law includes procedural norms. data quality or security cannot solely be explained by the need to protect the right to privacy.Effective Remedies under Data Protection Law 239 law.146 The need to observe central data protection principles can only be understood by defining and eventually rethinking the different goals of data protection. Article 20 of the draft Framework Decision includes the limitation that the national legislator may provide for administrative remedies prior to referral to a judicial court. For example. is entitled to receive compensation from the competent authority “or other authority competent under national law”. 111 ff. Article 24 obliges Member States to adopt “suitable measures to ensure the full implementation of the provisions of this Framework Decision” and to “lay down effective. to define in advance the purpose for which the data is collected or used and to give individuals the opportunity to apply for the right to access. the principle 145 146 Compare to the text of Article 27 in the version of November 2006. correct or delete personal information. I have tried to make it clear that data protection protects not only privacy and that data protection principles such as purpose limitation. one may prevent data protection issues from being too easily brushed aside as minor or relatively insignificant matters. as we have seen above. By focussing on the real goals of data protection. p. any person suffering damage as a result of unlawful processing operation or of any act incompatible with the national provisions adopted pursuant this Framework Decision. proportionate and dissuasive sanctions to be imposed in case of infringement of the provisions adopted pursuant to this Framework Decision. data protection laws force the authorities responsible for data processors to report certain data files to the data protection authorities.”145 However. The Value of Data Protection In this Chapter. which referred to: “the right of every person to a judicial remedy for any breach of the rights guaranteed to him by the applicable national law pursuant to this Framework Decision to the processing in question”. as in Article 22 of the EC Directive. 13246/5/06. The same problem arises with regard to the principle of restricting the storage of data over time. the applicable provisions on time limits in the instruments described above are not very rigid. The prohibition of automated individual decisions in Article 15 of the Directive 95/46 also safeguards one of the key values of the rule of law. in the Österreichischer Rundfunk judgment. These definitions of the purposes of data processing are to be considered as substantial limitations of the use of personal information. data processors may decide for themselves which time limit is appropriate. the responsible authorities must define the explicit purposes of this data processing. it is important that the ECJ. However. Based on the text of EC Directive 95/46. In my final conclusions. If the purpose of data processing and the group of authorities having access to data are defined very widely. VIS. emphasised that the exceptions as allowed in Article 13 of Directive 95/46 must comply with the requirement of proportionality and that this provision cannot be interpreted as “conferring legitimacy” on an interference with the right to respect for private life contrary to Article 8 ECHR. In principle. For this reason. this principle will not offer any extra safeguard for the persons concerned. the applicable rules allow for many exceptions under various circumstances. . the purposes should be lawful and establish that the data processing is necessary for the tasks performed by the data processor. Further. and Eurodac. any use or further dissemination of information going beyond these defined goals should be considered as unlawful. national legislators may. considering current developments at the national and EU level. under certain conditions. the importance of the purpose limitation principle seems to be increasingly neglected and its practical meaning undermined by vague provisions.240 Chapter 7 on the protection of so-called sensitive or special categories of data protects the right of non-discrimination. namely the right to transparent and informed decision-making. Prior to the data processing. Furthermore. limit individual rights or data protection principles. the principle of purpose limitation in for example Article 6 of the EC Directive 95/46. I will apply the main principles of data protection law as described in this Chapter to the current EU measures or proposals on the use of personal information and information technology including SIS II. Furthermore. This implies the risk that many provisions of data protection will continue to be considered ‘soft law’ instead of becoming ‘hard law’. The obligation to apply time limits is only effective as long as these time limits are based on a fair balance between the different interests at stake. legislators are bound by Article 8 ECHR. obliges data processors to ‘substantiate’ the goals for which data is collected and processed. including participation rights and the ban on processing sensitive data. Although there seems to be a general understanding on the content and the importance of data protection principles. In general. Chapter 14. as we have seen in Chapter 6. As we have seen. the conclusions of the ECJ are important not only with regard to the use of Eurodac and the future Visa Information System.2. 9.2. correction or deletion of his data. They often play a mediating role between the data subject and the data holder. the ECJ confirmed the right of an individual to seek access to a national court “to prevent the application of national rules which would be contrary to the principles as protected by the EC Data Protection Directive”.Effective Remedies under Data Protection Law 241 9. C-139/01 and C-465/00. Accessibility Generally. however.2.2.”148 Although the EC Directive 95/46 does not apply to SIS I. data protection law generally provides two-fold protection. These (non-judicial) bodies are normally endowed with certain competences and powers. . Effective Remedies 9. Access to Data Protection Authorities and Courts? Regarding the availability of legal remedies. but also with regard to the registration of third-country nationals in SIS II on the basis of Regulation 1987/2006. erasure or destruction of data. 88 and 91–94. Firstly. Article 111 CISA gives each individual the right to seek access to a competent court or authority. Secondly. this includes rules for the creation of supervisory bodies at national and supranational levels. ordering the blocking. Para. Articles 10 and 11 of the EC Directive 95/46 however do oblige the data controller to inform the data subject on the existence of the right to access to and to rectify the data concerning him. Therefore. This right does not always imply access to a judicial court and is often restricted to the data subject’s right of access. the Court of Justice explicitly stated that it is “the task of national courts to ascertain whether this interference with the right of private life meets the requirements of foreseeability and whether the interference is necessary to protect legitimate aims. in every State which 147 148 Joint cases C-138/01. such as issuing opinions. or placing a temporary or definitive ban on data processing. However. as we have seen. it does apply to data processing within the scope of Community law. the aforementioned data protection laws do not oblige data processing authorities to inform the data subject on his or her right to a judicial remedy. The CISA does not include any obligation for the contracting parties to inform the data subjects on their rights. many of the EU data protection instruments described above include the right of data subject to bring an action or complaint before the competent authorities or courts.1. In the Österreichischer Rundfunk case of 2003.147 Furthermore. where the latter entered factually inaccurate data or stored data unlawfully. With regard to SIS II. or obtain information or to obtain compensation in connection with an alert involving them.2. reimburse the sums paid out as compensation. Scope According to Article 22 of the EC Directive 95/46. including the power to order the blocking. Article 111 CISA (and Article 43 of the SIS II Regulation) provides for a right for an action to correct. VIS and Eurodac.4. in practice these powers seem to be rarely used. the powers of national courts include the power to order financial repair (Article 23 EC Directive) or to impose sanctions in case of infringement of national provisions implementing data protection law (Article 24 EC Directive). This improves the accessibility of legal remedies as the individual may choose in which country he or she addresses the national court or authority. in principle. National data protection authorities mainly have an advisory function. This also applies to injury caused by the Contracting Party issuing the alert. these authorities are empowered with more coercive powers. Article 116 CISA (and Article 48 of the SIS II Regulation) provides that each Schengen State is liable in accordance with its national law for any injury caused to a person through the use of the national data file of the Schengen Information System. including every use of the information held in the SIS or SIS II causing harm to the applicant. 9. This goes beyond the scope of the remedies as defined in the Eurodac Regulation and the proposed VIS Regulation which only offer a legal remedy with regard to a refusal of the right to access. This implies a much broader scope of remedies. if the State against which an action is brought is not the issuing State.2. An important provision in the draft VIS Regulation and SIS II Regulation is the obligation for Member States to ensure that their national data protection . or deletion of data. individuals have a judicial remedy “for any breach of the rights guaranteed him by the national law applicable to the processing in question”. of imposing a temporary or definitive ban on the data processing.3. the latter must. This means that the scope of judicial review by the national courts includes every right following from this Directive as implemented in the national law. However. correction. Formally. delete. Competences In the EC Directive 95/46.242 Chapter 7 is applying the CISA. This right to apply to the court or authority of any Member State is repeated in Article 43 of the SIS II Regulation. 9. As we have seen above. the powers of national data protection authorities are not very clearly defined and seem to be limited to “assist and advise” the person concerned in exercising his or her rights. erasure or destruction of data. Only. and Article 36 of the proposed VIS Regulation (version of June 2007). Article 49 Regulation 1987/2006 on SIS II.149 This will give the individuals. . Concerning the powers of courts. and the proposed VIS Regulation include provisions on the duty of Member States to impose penalties for misuse of data. 149 Article 25 Eurodac Regulation.Effective Remedies under Data Protection Law 243 authorities have “sufficient resources” to perform their tasks. Germany and the Netherlands in practice. and national courts. the SIS II Regulation. will be further dealt with in Part III. it is important to note that both the Eurodac Regulation. an important practical tool to remedy wrongful use of the information stored in these databases. The role of national courts and data protection authorities with regard to the use of SIS I in France. . Which human rights as protected in the ECHR and the annexed protocols are relevant for the individual at stake and when does this imply a right to a fair trial or effective remedies? In the following sections. the detention of the immigrant. The information stored in these databases may lead to the refusal of admission or a visa. I will give only a brief overview of the case law of the ECtHR with regard to the underlying subject. Al-Nashif v. no. Digital Borders and Real Rights. Harvey. In this Chapter and Chapter 9. or even his or her expulsion. For a more elaborate study of these matters. Considering this use of databases for border and immigration control. involve decisions in the field of immigration law. 23 ff. I refer to other publications. Jurisprudentie Vreemdelingenrecht 2002/239. and p. Husain. the guarantee of an effective remedy requires as a minimum that the competent independent appeals authority must be informed of the reasons grounding the deportation decision. N. § 137. P. Promoting Insecurity: Public Order. 50963/99. . annotation Elspeth Guild. the following sections will explore which criteria apply to the remedies in immigration law procedures. even if such reasons are not publicly available. 20 June 2002. Bulgaria. Immigration. expulsion or detention of third-country nationals. It is clear that the use of SIS. I will not examine substantial criteria which have been formulated by the ECtHR with regard to decisions on the admission. as well as the use of Eurodac and VIS.Chapter 8 Effective Remedies in Immigration Procedures: ECHR “Even where an allegation of a threat to national security is made. I have dealt with the availability of and criteria for effective remedies in the field of the right to privacy and data protection law.. pp.2 1 2 European Court of Human Rights. © 2008 Koninklijke Brill NV. Printed in the Netherlands.”1 1. 41 ff. and C. van Dijk. Oxford/ Evelien Brouwer. The authority must be competent to reject the executive’s assertion that there is a threat to national security where it finds it arbitrary or unreasonable. I focus on the right to legal remedies in immigration law procedures. Protection of “Integrated” Aliens against Expulsion under the European Convention on Human Rights. both published in: Guild & Minderhoud (2001). Introduction In the last two Chapters. p. Expulsion and the European Convention on Human Rights. Blake and R. 245–274. Asylum and Human Rights. He was confronted with this order for the first time on 6 October 1992 when he attended the Nice Centre for Administrative Formalities in order to regularise his status. 5 October 2000.” Article 6 (1) ECHR codifies the basic principle according to which individuals have the right of access to judicial remedies. 23 October 1985.4 This case concerned the appeal of a Tunisian national in France. Maaouia: (Non-)Applicability of Article 6 in Immigration Law Procedures? Article 6 (1) ECHR reads: “In the determination of his civil rights and obligations or of any criminal charge against him. Blake. Developments in the Case Law of the European Court of Human Rights in: B. it is now clear from various judgments by the ECtHR that Article 6 (1) applies to administrative procedures when the rights of the individual under civil or criminal law are at stake. The applicant was never informed of this deportation order. no. the Netherlands. § 40. no. Series A. After his imprisonment. Bogusz. France. When he refused to travel to Tunisia he was prosecuted again. p. Article 6 (1) ECHR: The Right to a Fair Trial 2. 12964/87. where the interests of juveniles or the protection of the private life of the parties so require or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.3 With regard to immigration law procedures. Judgement shall be pronounced publicly but the press and the public may be excluded from all or part of the trial in the interests of morals. married to a French national. no. he was sentenced by the Nice 3 4 New York: Oxford University Press 2003. ECHR 2000-X. (eds. See Benthem v. Series A. In the Maaouia case of 2000.).246 Chapter 8 2. . 431 ff. 8848/80. the French authorities issued a deportation order against him. France. Although this was disputed until the mid 1980s. N. the ECtHR explicitly concluded that Article 6 ECHR does not apply to immigration law decisions. Article 6 (2) and (3) include specific safeguards for criminal law procedures.1. public order or national security in a democratic society. 97 and Geouffre de la Pradelle v. Irregular Immigration and Human Rights: Theoretical. including for example the right to be informed promptly or to have the free assistance of an interpreter. 16 December 1992. 253. Cholewinski et al. Maaouia v. the ECtHR has so far been reluctant to apply the standards of Article 6 (1) ECHR. 39652/98. Leiden/ Boston: Martinus Nijhoff Publishers 2004. this time for failing to comply with a deportation order. by a majority of fifteen votes to two. In November 1992. The scope of this provision is limited by the words “in the determination of his civil rights or of any criminal charge against him”. everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. R. European and International Perspectives. who was sentenced in 1988 to six years’ imprisonment for armed robbery and assault. and J. Loucaides: “It would be absurd to accept that the judicial safeguards were intended only for certain rights. 42225/98. He argued that this lack of 5 6 Nicholas Blake and Raza Husain. v. stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of criminal charge against him. no. stating that “Decisions regarding the entry. S. 241–248. . particularly those between individuals.D. the appeals were declared inadmissible and the applicability of Article 6 ECHR was rejected. the applicant complained about the lack of appeal against a decision by a regional court in his asylum procedure. in both decisions. the Netherlands 4 May 1999.Effective Remedies in Immigration Procedures: ECHR 247 Criminal Court to one year’s imprisonment. one year before the Maaouia judgment was published. Immigration. Maaouia complained that the length of the procedure against the exclusion order was unreasonable and violated his rights under Article 6 (1).N. in two decisions from 1999. within the meaning of Article 6 § 1 of the Convention”. these orders were rescinded in 1994 and 1998 respectively and in 1998 Maaouia obtained a ten-year residence permit with the right to seek employment.N. This decision and the association the ECtHR made between Article 6 (1) and the 7th Protocol has been criticised in the dissenting opinions of other judges in this case and by commentators. 38088/97. the existence of this Protocol would reflect the intention of the contracting parties with regard to the restricted scope of Article 6 (1) ECHR. the ECtHR (sitting in chambers) established a more ambiguous attitude on the applicability of Article 6 (1) ECHR in immigration law procedures. no.6 Although. which explicitly deals with the protection of aliens in expulsion cases. An important reason for this conclusion by the ECtHR was the adoption of the 7th Protocol to the ECHR by the Contracting States. Asylum and Human Rights (2003).E. 2 February 1999. The main objection to this limited interpretation of Article 6 by the ECtHR raised by Blake and Husain was the failure to promote the rule of law in the context of relations between a politically vulnerable class of individuals in its dealings with a powerful state. p.5 This fundamental issue has also been pointed out by one of the dissenting judges in the Maaouia case. the Netherlands.” Interestingly. v. v. In the first case. After lengthy procedures against the deportation and exclusion orders. the United Kingdom. The ECtHR held that Article 6 (1) was not applicable. This judgment was accompanied by an exclusion order. excluding him from French territory for ten years. the ECtHR did not completely neglect the relevance of the criteria of this human right. and not for any legal rights and obligations including those vis-à-vis the administration where independent judicial control is especially required for the protection of the individuals against the powerful authorities of the State. S. According to the ECtHR. In his appeal before the ECtHR. contrary to the non-discrimination principle of Article 14 ECHR taken together with Article 6 ECHR. In this case.E. the ECtHR explicitly stated that it did not consider it necessary to examine specifically whether the guarantees contained in Article 6 ECHR applied to the asylum proceedings and whether the applicant was entitled under that provision to a court procedure to challenge the decision rejecting his renewed asylum request. the ECtHR found that the refusal of the Romanian courts to deal with the applicant’s claim for costs and damages was in breach of his right to fair proceedings protected under Article 6 (1). In the following sections. Immigration Law Decisions and the Right to Financial Compensation In Chapter 6. the criteria of this human right apply in immigration law procedures based on EU law. Additionally. this Article did not compel the Contracting States to establish courts of appeal or of cassation”. the United Kingdom. the right to a fair trial which is incorporated in the EU Charter on Fundamental Rights is directly inspired by Article 6 (1) ECHR. The ECtHR noted that the applicant was able to seek a judicial review of the Secretary of State’s decision and that the applicable High Court proceedings did not indicate any element of unfairness. As we will see in Chapter 10. concerning Article 8 ECHR and the right to private life. the applicant had lodged . The EU legislator explicitly widened the protection of this right by not limiting its scope to criminal or civil law procedures. the ECtHR did make its own assessment of whether there had been ‘a fair trial’.248 Chapter 8 appeal would constitute discrimination against asylum seekers. In the Rotaru judgment. we saw that the ECtHR applied Article 6 (1) with regard to damages which were inflicted upon the applicants based on the use of their personal information. the ECtHR noted that the applicant was legally represented in those proceedings. being manifestly ill-founded. Therefore. in which the application was declared inadmissible. v. In this decision. in my view these earlier decisions affirm that the principles of Article 6 (1) ECHR do play a role in immigration law procedures. However. I describe – based on the jurisprudence of the ECtHR – two situations in which Article 6 (1) ECHR can be invoked directly where it concerns decisions in the field of immigration law affecting the “civil rights” of the individual.D. These considerations lead it to conclude that the applicant’s complaint was inadmissible.2. in the following sentence. Even if the ECtHR does not revise its decision in the Maaouia case with regard to the non-application of Article 6 (1). There is another reason why the criteria of Article 6 (1) ECHR become relevant in immigration law procedures and that reason is EU law. the ECtHR considered that “even supposing that proceedings concerning the grant of residence permits and the expulsion of aliens were to come within the ambit of Article 6. 2. In the second decision in J. Effective Remedies in Immigration Procedures: ECHR 249 his claim at a national level for compensation of his costs and the non-pecuniary damage he suffered based on the infringement of his right to private life. a visa or a residence permit.8 In this judgment. no.7 By recognising the claim for financial compensation as a “civil right” within the meaning of Article 6 (1) ECHR. As we will see in the Chapter on the Netherlands. For the conclusion of the ECtHR. if the registration infringes the right to private life as protected in Article 8 ECHR.4. (Non-)Registration and the Right to Financial Compensation The Rotaru judgment established that the registration of personal data may cause financial harm. 4 May 2000. Austria judgment (2006). Austria. If the detention measures or expulsion measures are unlawful or if the refusal of a visa is in breach of the right to family life protected by Article 8 ECHR. including detention or expulsion or the refusal of to grant admission. This damage may consist of physical or mental harm caused by expulsion or detention. the (non-) registration of personal data may also result in a claim for 7 8 Rotaru v. 28341/95. no. The (indirect) application of Article 6 ECHR in immigration law procedures can be illustrated by the Coorplan-Jenni and Hascic v. the ECtHR rejected the submission of the Austrian government. travel costs or loss of income when. the purpose of travel was employment or business-related. The right to financial compensation as a “civil right” within the meaning of Article 6 (1) ECHR may also arise with regard to national decisions involving immigration law. . However. See Chapter 6.2. in some judgments the Dutch courts granted financial redress with regard to (wrongful) decisions in the field of immigration law. the ECtHR concluded that the applicant should have had access to a fair trial in accordance with the criteria of this human right. it was relevant in this case that both the foreign employee and his employer had applied for an employment permit. section 6. Individuals may suffer (non-pecuniary) damage caused by administrative measures or decisions. 27 July 2006. Romania. Coorplan-Jenni and Hascic v. a person should have the right to lodge a claim for financial compensation.3. in which the ECtHR applied Article 6 (1) with regard to the refusal of the Austrian government to issue an employment permit to a national of Bosnia-Herzegovina. for example. and thus a civil right in the sense of Article 6 (1) ECHR. 2. The fact that only the refusal to issue the employment permit to the employer made it impossible for the employee to obtain this job was grounds for the ECtHR to conclude that the refuted decision by the Austrian government was decisive for the “civil” rights of both the employer and the employee. according to which the decision regarding the issue of an employment permit to a third-country national did not concern a “civil right” within the meaning of Article 6 ECHR. 10523/02. The reason I consider these latter judgments important is that they establish the link between being registered (or not) in public files and the possibility for individuals to exercise their rights. relying on the declaration of the French Minister of Foreign Affairs that it was not applicable. that on the basis of a French Declaration on an agreement between Algeria and France. owing to the disproportionate consequences of the invalidation of his status as a lawyer by the Romanian authorities (§ 106). among other things. the ECtHR dealt with the complaint of a Romanian lawyer against the annulment by the Romanian authorities of his registration at the Constanţa Bar. France. In these judgments. Buzescu’s claim for registration at the Bucharest Bar (§ 74). 24 May 2005. according to French law. In the second comparable case.250 Chapter 8 a “civil” right even if the protection of Article 8 ECHR is not involved. concerned a French national who had qualified as a doctor in Algeria and whose repeated applications to be registered as a member of the Medical Association (Ordre des médecins) were refused by the French authorities. the ECtHR confirmed the relation between a decision of the authorities to refuse a person’s registration 9 10 Chevrol v. Romania. where the applicants complained about the refusal of authorities to include them on a list or in a file. In its judgment.10 The authorities also refused to renew his registration at the Bucharest Bar. she should have been afforded the right to be registered as a member of the Ordre des médecins. Buzescu v.9 The ECtHR considered that the procedure launched by the applicant in France was a dispute over a civil right. which includes the ability for the ECtHR to afford just satisfaction to the injured party. . The fact that the applicant submitted reasonable grounds to show that. Buzescu v. her Algerian diplomas should have been recognised in France. after he had stayed and worked for several years in the United States. the ECtHR repeated its earlier conclusions that. no. France. a clear causal connection between the damage claimed by the applicant and the violation of the Convention should be established. was sufficient grounds for the ECtHR to consider Article 6 (1) applicable in this case. 49636/99 ECHR 2003-III. In this case. The ECtHR accepted that the annulment of the applicant’s registration at the Consţanta Bar had led to a loss of clientele and thus to a loss of income. This has been illustrated in two cases dealt with by the ECtHR. Applying Article 41 of the Convention. the ECtHR found that there had been an unjustified interference with the applicant’s possessions. The first case. Romania. Chevrol v. no. The applicant held. for the acceptance of the applicant’s claim for pecuniary loss. The Conseil d’État refused to judge the applicability of this regulation. 61302/00 (unreported). This loss of income was recognised as an interference with his right to the peaceful enjoyment of his possessions and in breach of Article 1 of the 1st Protocol to the ECHR on the protection of property (§ 98). 13 February 2003. the ECtHR found a breach of Article 6 (1) with regard to the proceedings applying to Mr. Belgium. The judgments in the cases of Chevrol and Buzescu make clear that the fact of (non-) registration may also involve a civil right. According to this right. 226 ff and G. 6. As we will see below.”11 Article 5 (4) thus offers a separate legal basis for the right to effective remedies in the field of the detention of persons for immigration law purposes: either for the prevention of unauthorised entry or with a view to a planned deportation. 2004.12 This case 11 12 See. 3. One of these situations of “lawful arrest or detention of a person” is. 93–110. 2. p. p. 51564/99. “to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. under Article 6 (1) ECHR. according to Article 5 (1) (f ). Cornelisse. Romania case. Article 5 (4) obliges governments to guarantee effective remedies against these detention measures. 5 February 2002. Human Rights for Immigration Detainees in Strasbourg: Limited Sovereignty or a Limited Discourse? in: European Journal of Migration and Law. which results in the loss of income. no. this may give rise to a claim for financial damage or loss of income based on the registration in the SIS. no-one should be deprived of his or her liberty except in the situations described in Article 5 (1) and if this is in accordance with a procedure prescribed by law. Article 5 (1) (f ) ECHR: Right to Liberty and Security Article 5 ECHR includes the right to liberty and security of persons. persons who are deprived of their liberty by arrest or detention should be entitled to take measures “by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. . in breach of the individual’s right of freedom of movement on the basis of the EC Treaty (see Chapter 9). According to the criterion of the ECtHR. for a more extended review of the meaning of Article 5: Boeles (1997). no. Vol. for example. cited in the aforementioned Buzescu v. even if there is no breach of the right to private life.Effective Remedies in Immigration Procedures: ECHR 251 and the loss of income and financial damage caused by this refusal. The consequence of registration in SIS (or VIS or Eurodac) could therefore be that the person concerned is restricted in the performance of his work. This may include persons who were previously issued a long-term residence permit by one of the EU Member States. a clear causal connection must exist between the damage claimed and the violation of the individual’s right under the ECHR. Čonka v. ECHR 2001-I. According to this provision. If it can be established that the SIS alert is unlawful or inaccurate or. a very important judgment in which the ECtHR applied and specified the criteria of Article 5 was the Čonka judgment of 2002. As we have seen above.” If Article 5 applies. the registration in the SIS for the purpose of non-admission means that third-country nationals are not allowed to enter the EU territory. 15 Nevertheless.int. thirdly. Lupsa v. See http://conventions. two judgments by the ECtHR. Romania. no. Also. Romania and Kaya v.252 Chapter 8 concerned the arrest and detention of a group (rejected) Romany asylum seekers by the Belgian authorities with the aim of expelling them. Romania dealt with a formal residence ban issued by the Romanian 13 14 15 16 Protocol no. of the EU Member States. Status as of June 2007. according to which an alien lawfully resident on the territory of a State should not be expelled from this country except “in pursuance of a decision reached in accordance with law”. Germany. Lupsa v. Secondly. have not ratified this 7th Protocol.16 The first case Lupsa v. to have his case reviewed and. annotation Rick Lawson. to be represented for these purposes before the competent authorities or a person or persons designated by that authority. 7 to the ECHR: Procedural Safeguards Relating to Expulsion of Aliens Another specific provision on legal remedies in immigration law procedures is offered by Article 1 (1) of Protocol no. . 117. illustrate that this Protocol gives additional protection to third-country nationals. 12 October 2006. no.13 Article 1 describes the safeguards States should observe when expelling an individual. (1997). 7. Greece. Kaya. run the risk of being interpreted broadly. Whether or not this Protocol provides any added protection compared to the other rights under the ECHR has been questioned for several reasons.14 In the first place. 22 November 1984. six Member States. 33970/05 (unreported). for those countries that have ratified Protocol no. including Belgium. For example. the Netherlands. See Pieter Boeles. effective 1 November 1988. secondly. Romania. Jurisprudentie Vreemdelingenrecht 2006/311. 7 to the ECHR. 8 June 2006. Spain and the United Kingdom. Protocol No. p. 10337/04. 286–288. The UK also did not sign this protocol. Romania. Thirdly. This person should be allowed. Article 1 does not provide any criterion with regard to the right of review or the “competent authorities” before which the case of alien may be represented. firstly. to submit reasons against his expulsion.coe. which may be based on the interests of public order or on reasons of national security. Article 1 (2) of this 7th Protocol empowers governments to make an exception and to expel a person before the exercise of these three safeguards if this is necessary in the interests of public order or is based on reasons of national security. Article 1 (1) of this Protocol is limited to third-country nationals with lawful residence on the territory of a State. the text of the Protocol includes criteria which are considered as not very clear. 4. 7 to the ECHR. v. ETS no. and perhaps more importantly. the exceptions to the rights mentioned in Article 1. 7 are not without relevance. It does not make sense to restrict the application of Article 6 ECHR because the contracting parties already included necessary safeguards in the Protocol no. since the law was not sufficiently accessible and foreseeable (see further section 6. 7. 2. the ECtHR explicitly referred in the Maaouia judgment to the 7th Protocol to justify the non-application of Article 6 (1) ECHR. See also preamble (4) of the Directive 2001/40 on the mutual recognition of expulsion decisions OJ L 149. With regard to the infringement of Article 1 of the 7th Protocol. Article 13 ECHR: The Right to Effective Remedies in Immigration Law Procedures 5. In both cases. on could argue that the rules included in Protocol no. .) para.country nationals.18 This would imply the principles which are included in the annexed Protocols to the ECHR.2001. Kaya § 55. Lawson (ibid.Effective Remedies in Immigration Procedures: ECHR 253 authorities against a Yugoslavian national. Kaya v. 5. as we saw above. Firstly.6. has been applied to decisions made in national immigration law procedures. Secondly. In this latter case. a residence permit or entry 17 18 Lupsa § 55.1. the authorities justified the decision to declare the applicant inadmissible on the basis of “sufficient and serious information that he was planning activities which would endanger the national security”. Where an individual is refused a visa. 6.2 below). When Does Article 13 Apply? Article 13 ECHR provides: “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” In a wide range of judgments by the ECtHR Article 13. if these latter rules are not binding for the non-ratifying States. as pointed out by Lawson in his annotation to the Lupsa judgment. the EU Member States confirmed the applicability of the principles of the ECHR in the preamble to Directive 2003/109 on the protection of long-term resident third. in combination with other ECHR rights. Romania concerned the expulsion of a Turkish national from Romania on the basis of a decision by the Romanian authorities to declare him inadmissible for 15 years. the ECtHR found that the expulsion constituted a breach of both Article 8 ECHR and Article 1 of the 7th Protocol. the ECtHR held that the legal basis for the expulsion did not meet the procedural guarantees under that Article 1.17 But even for those countries which did not ratify this Protocol. 9474/81 Series A 94. the United Kingdom. no. the claimant did not refer explicitly to his or her right under the ECHR which was allegedly infringed. Abdulaziz. no. 7113/75. Admission of Third-Country Nationals The ECtHR has recognised. Üner). 108–109. Spain. Series A. Castells v. 314. 7061/75.22 The ECtHR therefore accepted that. under certain circumstances. the limited possibilities for challenging such a refusal may violate the right to an effective remedy under Article 13 ECHR. 7107/75. § 34.254 Chapter 8 or when his expulsion or detention infringes one of the human rights protected in the ECHR. the ECtHR does not find it necessary to establish the violation of such a right either by national courts or by the ECtHR. Cabales and Balkandali v. 23 April 1992. Piermont v. during the national procedures.23 Although. If the content of the claim covers this breach of human rights. Series A. the United Kingdom. no. no. Čonka. France. 6205/73. Chahal ). 253-B. 28 May 1995. with Article 3 in expulsion cases (Al-Nashif. 15773-74/89. 25 March 1983. 11069/84. 7052/75. The other judgments referred to are dealt with below. this is sufficient according to the case law of the ECtHR. 5. . Article 13 ECHR has been applied in conjunction with Article 8 ECHR with regard to refusal of admission or an expulsion order in breach of the applicant’s right to family life (Sen. 200. I will focus on the jurisprudence of the ECtHR with regard to refusal of admission and with regard to expulsion or expulsion orders. Guild & Minderhoud (2003). and even regarding the freedom of speech protected in Article 10 ECHR (Piermont).21 Furthermore. 9214/80. It is sufficient for the applicant to have an “arguable claim” that there has been a breach of one of the right or freedoms of the Convention. Cholewinski. 9473/81. the United Kingdom. France.19 With regard to immigration law decisions.2. no. 7136/75 Series A 61. 19 March 1991. § 27. with Article 4 of Protocol no. 4 on the prohibition of collective expulsion (Čonka). Geouffre de la Pradelle v. It is important that for the application of Article 13 ECHR. § 26. Series A. in this case. 11798/85 Series A. p. in: Groenendijk. 27 April 1995. no. Cardot v. the ECtHR emphasised in several judgments that the right to effective remedies should be interpreted in a flexible manner and without excessive formalism. the positive obligation of governments with regard to the admission of a person when this is considered necessary for the protection of the applicant’s family life. Silver and others v. The positive duty of a government to give leave to enter to its national territory or to issue a residence permit was acknowledged for the first time in Abdulaziz. 5947/72. France. the ECtHR found no breach of 19 20 21 22 23 See also R. Cabales and Balkandali v. No Right of Entry. 236.20 In the following sections. 16 December 1992. but that immigration controls had to be exercised in accordance with the Convention obligations and the exclusion of a person from a state where members of his family were living might raise an issue under Article 8 (§ 59). the Netherlands. van Walsum. 21 December 2001.24 However. 21702/93 Reports 1996-V. and that two younger children had been born in the Netherlands. 19 February 1996. The ECtHR rejected the government’s view that Article 8 ECHR would not apply at all to immigration control. the ECtHR found no violation of Article 8 ECHR in the Gül and the Ahmut judgments. the Netherlands. by confirming the earlier statement by the Commission that the right of a foreigner to enter or remain in a country is not guaranteed as such by the Convention. Switzerland. their country of origin. Ahmut v. the Dutch administration should have granted entry to a 13-year-old daughter because of the major obstacles to her parents’ return to Turkey. under certain circumstances. was cited in Sen v. it confirmed that the refusal to give spouses of legally resident third-country nationals leave to enter or to remain in the UK could affect the right to respect for family life under Article 8.Effective Remedies in Immigration Procedures: ECHR 255 Article 8 ECHR. the ECtHR ruled that. the Netherlands. . The obligation of States. no. Sen v. based on the positive obligation of States to respect the family life of the individual “a fair balance has to be struck between the competing interests of the individual and of the community as a whole”. 22676/93 Reports 1996-I. The ECtHR ruled that. to admit relatives of settled immigrants to their territory based on the right to family life protected in Article 8 ECHR. the duty to respect the right to family life of Article 8 ECHR obliges a State to admit a person to its territory. based on the positive obligations of Article 8 ECHR. the Netherlands. no. the ECtHR held that a refusal to permit the applicants to remain in the country did not constitute “interference” with the exercise of their right to respect for their family life. § 63. 31465/96. Jurisprudentie Vreemdelingenrecht 2002/30 annotation S. under certain circumstances. in particular on the circumstances that her parents were settled in the Netherlands and had been legally resident for years.26 If. of a visa or a long-term residence permit) should be considered a breach 24 25 26 Gül v. This decision on the positive implications of Article 8 ECHR implies that third-country nationals applying abroad for a residence permit or a visa for another State are entitled to a remedy against the denial of this request when this denial is regarded as violating their right to family life. Switzerland and Ahmut v. §§ 32–38. Recognising “a certain margin of appreciation” for the State and balancing the different interests at stake.25 This case concerned the refusal by the Dutch authorities to admit the daughter of Turkish parents who lived in the Netherlands.K. 28 November 1996. no. the younger siblings attending school in the Netherlands. In both Gül v. The ECtHR based its decision that the most appropriate place for exercising the right to family life was in the Netherlands. a refusal of admission (including refusal at the border. 12313/86. France. The applicability of Article 13 ECHR was not raised during this trial. the ECtHR found that no effective remedy existed against this interference with his right to family life and therefore that both Article 8 and Article 13 ECHR were breached (see further below). the ECtHR has dealt with the applicability of Article 13 ECHR with regard to the expulsion of third-country nationals. Series A. In these judgments. See also Nasri v. A procedure in which the individual seeks remedy against this refusal therefore falls within the scope of Article 13 ECHR and should meet the criteria developed under this right to effective remedies. nos. Jurisprudentie Vreemdelingenrecht 2002/239. In this judgment. 18 February 1991. . Asylum and Nationality Law. 20 June 2002. in: Tolley’s Immigration. Al-Nashif v. Article 13 was applied in combination with either Article 8 ECHR. the ECtHR formulated more stringent criteria with regard to the availability of effective remedies than in its case law concerning the right to private or family life under Article 8 ECHR. Moustaquim v. based on national security grounds. 19465/92 Series A 320-B. with regard to claims based on the protection of Article 3 ECHR.256 Chapter 8 of the right under Article 8 ECHR. With regard to the right to family life. Al-Nashif. Vol. One of the earliest decisions on the expulsion of third-country nationals was the case of Moustaquim v. where the applicant claimed that the expulsion was in breach of his right to family life. no. 13 July 1995. or Article 3 ECHR on the right not to be subjected to torture or inhuman or degrading treatment or punishment. no.28 In this case. Bulgaria judgment concerned the detention and deportation to Syria of Mr. 5. Belgium. the ECtHR allows Member States a certain margin of appreciation to consider whether the expulsion infringes the rights of the third-country national in question. Expulsion and Expulsion Orders In several cases. The Al-Nashif v. 27 28 29 See M. a stateless person of Palestinian origin. 50963/99. Al-Nashif and his children claimed that his expulsion was in breach of his right to family life under Article 8 ECHR. 3 & 4. annotation E. but the ECtHR found that the deportation of Moustaquim was not necessary in a democratic society and therefore violated his right to respect for his private life under Article 8 ECHR.Guild. 2002. § 46. Fasti. as we will see in the sections below. no. the ECtHR dealt with the claim by a Moroccan national residing legally in Belgium that his expulsion by the Belgian authorities infringed his right to family life.3.29 Aside from his complaint on the basis of Article 5 (4) ECHR with regard to his detention. The restrictive approach taken by the European Court of Human Rights: deportation of long-term immigrants and right to family life (Parts 1 and 2). Belgium.27 However. 16. Bulgaria. 193. the ECtHR applied Article 13 together with Article 3 ECHR. the United Kingdom. ECHR 2001-IX. Jurisprudentie Vreemdelingenrecht 2006/417. 40035/98. no.30 The applicants claimed that their deportation to India violated their right under Article 3 ECHR to be protected from inhuman and degrading treatment.32 In this case. 30 October 1991. § 57. Reports 1996-V. no. – the nationalities of the various persons concerned. Switzerland the ECtHR defined relevant criteria to use in order to assess whether a residence ban or expulsion measure is “necessary in a democratic society and proportionate to the legitimate aim pursued”. the United Kingdom. the ECtHR applied Article 13 together with Article 3 ECHR. to assess whether the judicial review proceedings which would have been available to the applicant in Turkey satisfied the requirements of effective remedies. . – the time elapsed since the offence was committed and the applicant’s conduct during that period. Switzerland. 30 31 32 33 34 Vilvarajah and others v. Also. repeated by the ECtHR in Üner v. Boeles. This case dealt with the expulsion of a Tamil family to India by the UK authorities. 15 November 1996. Boultif v. A comparable case was dealt with in the case of Chahal v. the applicant – whose application for asylum had been rejected – claimed that her life would be at risk if she were deported to Iran. §§ 117 to 127. in Jabari v. – the applicant’s family situation. 18 October 2006. the applicants invoked the grounds that their lives were in danger in India and that the expulsion would be in breach of Article 3 ECHR. Turkey. Üner v. 22414/93. 54273/00. – whether the spouse knew about the offence at the time when he or she entered into a family relationship. 11 July 2000.33 These criteria. concerning Indian asylum seekers (Sikhs) to be expelled to India on national security grounds.31 In the Chahal judgment.Effective Remedies in Immigration Procedures: ECHR 257 In its Vilvarajah judgment. no. – the length of the applicant’s stay in the country from which he or she is to be expelled. the Netherlands. 13163/87. no. the Netherlands. such as the length of the marriage. 2 August 2001.34 include: – the nature and seriousness of the offence committed by the applicant. annotation P. Jabari v. Series A. where the applicant claimed that this order would infringe his right to family life as protected in Article 8 ECHR. and other factors expressing the effectiveness of a couple’s family life. Chahal v. In the case of Boultif v. This case concerned the claim an Algerian national married to a Swiss national whose residence permit was not renewed after a criminal conviction. no. the ECtHR had to deal with an individual claim against an expulsion order. 46410/99. Turkey. In several judgments. ECHR 2000-VIII. 215. the United Kingdom. no. 132 and Oberschlick v. Article 1 of the 7th Protocol on the expulsion of aliens is less clear and does not seem to require the availability of judicial remedies. . Series A. and – the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. Criteria for Effective Remedies 6. the criteria as defined by the ECtHR in Boultif and Üner are important tools to assess the legitimacy of these SIS reports as well. the ECtHR explicitly accepted the availability of a non-judicial authority. the available remedies would have to meet certain procedural guarantees and guarantees of effectiveness.1. the CtHR found that the right to effective remedies under Article 13 ECHR does not necessarily imply judicial remedies.258 Chapter 8 – whether there are children of the marriage. for example. 204. 11661/85.36 However. “judgment shall be pronounced publicly” or. as we will 35 36 Belilos v. Also. 23 May 1991. Austria (I). Article 5 (4) explicitly requires that these persons should have access to judicial courts with regard to the review of the lawfulness of the detention. when dealing with the right to private life and the protection offered by Article 13 ECHR in combination with Article 8 ECHR. and if so. Judicial or Non-judicial Remedies Article 6 (1) ECHR According to Article 6 (1) ECHR. with regard to the assessment of special circumstances for the limitation of this publicity. As mentioned above. “in the opinion of the court”. in the absence of a judicial authority. 10328/83.35 Article 5 (4) ECHR With regard to the protection of detained persons. Article 13 ECHR As we saw in Chapter 6. according to the ECtHR. Series A. their age. no. make it clear that this tribunal should be a judicial court. In general. See Al-Nashif §132. 29 April 1988. Switzerland. As a national expulsion order is one of the grounds to report a third-country national in the SIS. everyone has a right to a fair and public hearing by an independent and impartial tribunal. This interpretation has been confirmed by the ECtHR in its jurisprudence. with regard to the protection of human rights in immigration law procedures. The wordings chosen in Article 6 (1). 6. national law should provide a clear and coherent system of legal protection to enable an individual to make use of his right to have an effective remedy before a court. § 34. Switzerland.38 On the other hand. 8737/79.40 Article 6 (1) ECHR. the United Kingdom. 320. 6289/73 Series A. Article 6 (1) may sometimes compel the State to provide for the assistance of a lawyer or legal aid when this proves indispensable for effective access to court. in those cases the independent authority must be able to deal with the substance of the complaint and it should be able to grant the applicant “appropriate relief”. Ireland 6 February 1981. para.Effective Remedies in Immigration Procedures: ECHR 259 see below. Especially if there is a real risk of treatment in breach of Article 3 ECHR. for example in complex procedures. as in the domestic law of certain Contracting States for various types of litigation. In the Airey judgment. it must be established that the independent authority or judicial court offers sufficient effective protection. 13 July 1983. Chahal § 152. p. the ECtHR held that the availability of a legal representative is a necessary requirement. practical. no. the ECtHR found that this might be the case. Only when this proves indispensable for effective access to court. when applied to civil law procedures. no. this does not mean that these remedies should automatically be considered “effective”.41 With regard to the accessibility of the trial. the ECtHR considered that a procedure in which the applicant had represented himself had been in accordance with Article 6 (1) provided 37 38 39 40 41 42 See also Battjes (2006). or by reason of the complexity of the case procedure. Geouffre de la Pradelle v. Series A. France. 41 §§ 26–33. in McVicar v. This case concerned the administrative appeal of the applicant against decisions by the French authorities which interfered with his right to own land.39 6. either because legal representation is rendered compulsory. . the ECtHR held that the question of whether the national remedy is effective before an authority would depend on the powers and guarantees granted to this authority.c. Accessibility of Effective Remedies Article 6 (1) ECHR Article 6 (1) provides that an individual should have access to a court within a reasonable time. Čonka §§ 75 ff. 16 December 1992 l.42 The availability of a legal representative is however not a prerequisite. This requirement of a “clear. 66. the ECtHR made it clear that if judicial remedies are available. Airey v. Vilvarajah §§ 122–126. According to the jurisprudence of the ECtHR. does not compel the State to provide for the assistance of a lawyer or legal aid.2. and effective opportunity to challenge an administrative act” was stressed by the ECtHR in the Geouffre de la Pradelle case. For example. Zimmermann v. 412.37 In the Chahal judgment. With regard to the availability of remedies against prolonging the detention. when applying Article 6 (1) criteria to civil law procedures. The legitimate concern of States to “foil the increasingly frequent attempts to circumvent immigration restrictions” should not. see § 43–48. 7 May 2002.44 One of these factors was that the information on the available remedies handed to the applicants on their arrival at the police station was printed in tiny characters. 19776/92. the ECtHR criticised the reliability of the communications sent to the applicants. France. no. In Amuur v. 51564/99. France. According to the ECtHR this information should be accurate “irrespective of whether the recipients are lawfully present in the country or not”. Applying the criteria of Articles 5 (1) f and 5 (4) ECHR. the ECtHR identified a number of factors in the Čonka case which “undoubtedly affected the accessibility of the remedy which the Government claim was not exhausted”. the United Kingdom. the text in French law would not 43 44 45 McVicar v. no. no. In the case at stake. detention of asylum seekers at Orly airport. the legal basis for the detention should be sufficiently accessible and precise as to avoid all risk of arbitrariness. States cannot argue that asylum seekers held in a transit zone at an airport are at any time free to leave the territory and therefore not deprived of their liberty. In its assessment of whether the deprivation of liberty was in conformity with Article 5 ECHR. the ECtHR extended the scope of protection offered by Article 5 ECHR to the transit zones of national airports. ECHR 2002-III. the text was written in a language they did not understand and only one interpreter had been available to a large number of Romany families.260 Chapter 8 national law allowed for this self-representation and provided the applicable law was not too complex. 46311/99. ECHR 2001-I § 44. the ECtHR would define more stringent criteria with regard to the accessibility of procedures. Based on these considerations. according to the ECtHR. Reports 1996-III. Furthermore. deprive asylum seekers of the protection afforded by the ECHR.43 It is important to note at this point that. Article 5 (1) and 5 (4) ECHR Article 5 (4) ECHR requires that national governments should provide access to courts “speedily” or within specific time limits. 25 June 1996. Belgium. The ECtHR also refused to accept the argument that the international zone where the asylum seekers were to remain could not be considered the territory of the contracting state. Amuur v.45 According to the conclusions of the ECtHR in this judgment. 5 February 2002. the opportunity of a speedy review should be available. the ECtHR uses less strict criteria than those defined for criminal law procedures. Čonka v. Furthermore. The aforementioned cases concerned civil law procedures. the ECtHR concluded that the applicants had not had access to effective remedies. It seems reasonable that. . when applying Article 6 (1) to administrative law procedures. during the national procedures. the ECtHR concluded that there was a breach of Article 13 ECHR. 7. Al-Nashif. §§ 117 ff. Al-Nashif. that the applicants were not given any effective chance to refute the expulsion decision before a national court. Compare the jurisprudence on Article 8 ECHR as described in Chapter 6. the ECtHR considered in Lupsa v.Effective Remedies in Immigration Procedures: ECHR 261 allow national courts to review the conditions of detention and therefore the ECtHR found a breach of Article 5 (1) ECHR. Furthermore. §§ 126 and 133. . without giving any reasons and without any right of appeal to an independent authority”. or to any independent body competent to examine the matter. the ECtHR also applied the criteria of Article 8 ECHR concerning whether the interference with this right was sufficiently clear and foreseeable. under Bulgarian law. In both judgments §§ 59–60. Romania and Kaya v. according to the ECtHR.50 Therefore. This. thus preventing the applicant’s lawyer from studying the aforementioned order and producing evidence in support of her application for judicial review of it. 7. his or her rights under this Convention are at risk of being violated by the refuted decision or 46 47 48 49 50 Amuur § 43 and § 50. Articles 13 and 8 ECHR In the Al-Nashif case. according to the ECtHR. the decision to deport the applicant was taken without disclosing any reasons to the applicant.49 This right included. the ECtHR observed that the Court of Appeal dismissed all requests for an adjournment.48 In the Al-Nashif judgment.46 Article 1 (1) of Protocol No. precluded the applicant from having an effective opportunity to challenge the deportation or refusal-of-residence order. § 126.47 The authorities failed to provide the applicants with “the slightest indication of the offence” of which they were suspected and the public prosecutor’s office did not send the order issued against the applicants until the day of the only hearing before the Court of Appeal. ECHR With regard to the application of Article 1 (1) of Protocol no. to his lawyer. the need for safeguards to ensure that the discretion left to the authorities is in accordance with the law and without abuse. In the refuted case. Accessibility of Right Under Article 34 ECHR Article 34 ECHR provides individuals with the right to submit a request to the ECtHR for an interim order if. Romania (see above). the Ministry of the Interior was competent to issue deportation orders interfering with human rights without following “any form of adversarial procedures. the ECtHR ruled that “it is implicit in the notion of the effective exercise of the right of individual application that for the duration of the proceedings in Strasbourg the principle of equality of arms should be observed and an applicant’s right to sufficient time and necessary facilities in which to prepare his or her case respected”. In this judgment. despite their requests to the Turkish and Uzbek authorities for permission to do so. 46827/99 (unreported) § 96. the applicants’ representatives were not able to contact the applicants.. In Mamatkulov and Abdurasulovic v. Chevrol v. Both applicants were handed over to the Uzbek authorities before being able to apply their rights under Article 34 of the ECHR. it has been emphasised that national courts should have full competence to re-examine the facts of the case and to remedy the shortcomings found at administrative level. the ECtHR dealt with the question of whether the scope of review performed by the French Conseil d’État was in accordance with Article 6 (1) when. Series A. Belilos.51 This extradition warrant was based on the suspicion that the applicants were involved in homicide. no. or had accepted.53 In the Chevrol v. .c. 10 February 1983. and an attempted terrorist attack on the President of Uzbekistan. §§ 70–72. As in the present case. the applicants were considered as having been denied an opportunity “to have further inquiries made in order for evidence in support of their allegations under Article 3 of the Convention to be obtained”. causing injury by exploding a bomb in the Republic of Uzbekistan. the ECtHR concluded at an early stage that fair trial includes access to a judicial body that has full jurisdiction and the competence to determine all aspects of the matter. Turkey (I). the ECtHR concluded that the applicant did not have access to “a tribunal which had.262 Chapter 8 measure. 13 February 2003. no.52 Furthermore. in order to reach its decision. 49636/99 ECHR 2003-III. France case. this court had relied on the evidence given by the Ministry of Foreign Affairs with regard to the applicability of international law.54 On the basis of the fact that this Minister’s involvement was decisive for the outcome of the legal procedures and was not open to challenge by the applicant. Turkey (I). 58. 7299/75 and 7496/76. arguing that their extradition would be in breach of Article 3 ECHR. asking the Strasbourg Court for an interim relief. no. the ECtHR considered the case of two applicants who were extradited by the Turkish authorities to Uzbekistan on the basis of an extradition warrant issued by the latter state. 6 February 2003. France.3. l. sufficient jurisdiction to examine all the factual and legal 51 52 53 54 Mamatkulov and Abdurasulovic v. Scope of Review Article 6 ECHR With regard to Article 6 (1). §§ 82–83. Albert and Le Compte I and II. 6. no.58 Article 13 ECHR In general. According to the ECtHR.57 This implies that the existence of a remedy must be “sufficiently certain to give the individual concerned adequate protection against arbitrary deprivation of liberty”. such a limited review cannot be considered an effective judicial review under Article 6 (1) ECHR. See Chahal § 127. in disputes concerning civil rights.56 Mr. Obermeier v. a court should be able to decide on “the lawfulness” of a detention. 15287/89. In this case. declaring the dismissal of a disabled person to be socially justified. Series A. Series A. to substitute its own discretion for that of the decision-making authority”. no. on all aspects of the case including questions of pure expediency. the United Kingdom. . the ECtHR considered the scope of review by national courts important in assessing whether national remedies meet the standards of effective remedies within the meaning of Article 13 ECHR. no. in cases not related to immigration law procedures. 8 July 2003. France 24 November 1994.55 A comparable issue is dealt with in the Obermeier case. the applicant submitted that he had no access to a fair trial because the Austrian labour courts dealing with his proceedings considered themselves bound by the decisions of the administrative authorities. However. the ECtHR repeatedly pointed out that this “does not guarantee a right to judicial review of such breadth as to empower the court. The ECtHR found in this judgment that the decisions taken by the Austrian administrative authorities. according to the ECtHR.Effective Remedies in Immigration Procedures: ECHR 263 issues relevant to the determination of the dispute”. 296B. 179. See Hatton and others v. With regard to this scope of review. Chahal §§ 121–122. Article 5 (1) and 5 (4) ECHR According to Article 5(4) ECHR. in the majority of cases remained without any effective review by the courts. 28 June 1990.59 With regard to expulsion orders. 11761/85. the conditions laid down in Article 6 (1) are met only if the decisions of the administrative authorities binding the courts were delivered in conformity with the requirements of that provision. Obermeier was an Austrian citizen who took proceedings against his dismissal as an employee by a private insurance company. 36022/97 ECHR 2003-VIII. According to the ECtHR. Austria. the review should be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 (1)”. in at least three judgments the ECtHR explicitly considered whether the scope of review by national courts complied 55 56 57 58 59 See also Beaumartin v. 5029/71. the ECtHR emphasised that the right to an effective remedy protected under Article 13 ECHR required that an individual be able to challenge the executive’s assertion that national security is at stake. 28. however. the ECtHR ruled that this criterion of “as effective as can be” would not be appropriate in respect of a complaint that a person’s deportation will expose him or her to a real risk of treatment in breach of Article 3 ECHR: “In such cases. the guarantee of an effective remedy requires as a minimum that the competent independent appeals authority be informed of the grounds for the deportation decision. 215.60 They submitted that national courts did not ascertain whether the administration issuing the expulsion order (Secretary of State) was correct in assessing the risk to which the applicants would be exposed when returned back to Sri Lanka. mentioned above. the United Kingdom. in these cases. the authority must be competent to reject the executive’s assertion that there is a threat to national security. 26 March 1987. no.264 Chapter 8 with the requirements of Article 13. 6 September 1978. no. we saw that the ECtHR had held in the Leander and Klass judgments that. In other words. See the judgments in Klass and others v. § 78. where it finds this arbitrary or unreasonable. the applicants criticised the marginal role of the national courts in the UK.62 There should be some form of adversarial proceedings. Germany. no. 116. if necessary through a special representative after security clearance. § 69 and Leander. Series A. given the irreversible nature of the harm that might occur if the risk of ill-treatment materialised and the 60 61 62 63 Vilvarajah and others v. 9248/81. Al-Nashif § 137. Series A. even if such reasons are not publicly available. §§ 117 to 127. 30 October 1991. Series A. The consideration of the ECtHR in the Al-Nashif case is important. Even where an allegation of a threat to national security is made. Therefore. no. a remedy that was “as effective as can be” would be sufficient under circumstances where national security considerations did not permit the divulging of certain sensitive information. The ECtHR. namely that governments may not. In Chapter 6. found that the national court had stressed its special responsibility to subject administrative decisions to the “most anxious scrutiny” in cases where an applicant’s life of liberty would be at stake. National courts should be able to assess “the credibility of the government’s assertion that the national security is at stake”. In the Vilvarajah case. ignore the essential safeguards provided in the ECHR. simply by invoking the goals of “national security”. the ECtHR concluded that the powers of the national courts in this case provided an effective degree of control over the decisions of the administrative authorities in asylum cases and were sufficient to satisfy the requirements of Article 13 ECHR.63 In the Chahal judgment. Vilvarajah §§ 125–126.61 In the Al-Nashif case. . 13163/87. §§ 119–127. §§ 150–151.”64 The ECtHR emphasised that there was a difference between this case. no. and its earlier judgments where the privacy of information was at risk. Therefore the claim of the applicant was considered admissible even if he had failed to exhaust the national remedies. Al-Nashif § 137. an applicant cannot be regarded as having failed to exhaust domestic remedies if he or she can show. Salah Sheekh v. Considering the consistent jurisprudence of the Dutch highest administrative court (“Administrative Jurisdiction Division”). that an available remedy which he or she has not used was bound to fail.1. the Netherlands. in the latter cases. section 6.4. 16 September 1996. Also. According to the ECtHR. in the Al-Nashif case. is limited to “making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and they are capable of redressing directly the alleged violation of the Convention”. for example.Effective Remedies in Immigration Procedures: ECHR 265 importance the ECtHR attaches to Article 3. the ECtHR has held that the obligation to exhaust domestic remedies as required by Article 35 (1) ECHR.66 This criterion was. In its jurisprudence. 21893/93. by providing relevant domestic case-law or any other suitable evidence. 1948/04. the notion of an effective remedy under Article 13 requires independent scrutiny of the claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3. 11 January 2007.65 The question whether individuals have an effective remedy at the national level also plays a role with regard to the right to lodge an appeal before the ECtHR. dealt with in Chapter 6. no. the ECtHR explicitly made a distinction between cases of expulsion of aliens on national security grounds and cases with regard to systems of secret surveillance or secret checks. the Netherlands concerning the claim of an asylum seeker that his expulsion to Somalia would be in breach of Article 3 ECHR. 64 65 66 Chahal. Where the ECtHR acknowledged that. This scrutiny must be carried out without regard to what the person may have done to warrant expulsion or to any perceived threat to the national security of the expelling State. used in Salah Sheekh v. such systems could only function if the individual remained unaware of the measures affecting them. on the same grounds. it considered with regard to expulsion decisions that the interests of preserving sensitive information were much more easily reconciled with the rights of the individual to an effective remedy. where it concerned the life and security of the person. See also Azdivar v. the ECtHR found that in practice a further appeal to this court “would have had virtually no prospect of success”. Turkey. . no. Competences Article 6 (1) ECHR In Hornsby v. Greece. no. In the words of 67 68 69 Hornsby v. the United Kingdom. 25 March 1999. the ECtHR held in this case that effective remedies according to Article 13 ECHR can only be effective if the national authorities comply with the judgments reached by the courts during the procedure.68 The ECtHR criticised the fact that the Greek authorities did not consider themselves bound by the decisions of the Supreme Administrative Court. In the view of the ECtHR. According to the applicants.4. 31107/96. Reports 1997-II.266 Chapter 8 6. in other words. the protection of Article 6 (1) ECHR should therefore not be limited to access to a court or the conduct of proceedings as this could lead “to situations incompatible with the principle of the rule of law”. the ECtHR ruled that the availability of effective remedies as such is not enough. ECHR 1999-II. stating that the court should be able to order the individual’s release if the detention is not lawful. it would be “inconceivable that Article 6 (1) should describe in detail procedural guarantees afforded to the litigants that are fair. 19 March 1997. This case concerned the claim by Iatridis with regard to his right of ownership (Article 1 of Protocol no. without protecting the implementation of judicial decisions”.69 Using motivation comparable to the Hornsby case with regard to Article 6 (1). if national administrations could simply ignore the decisions of their national courts.67 Or. Article 13 ECHR In Iatridis v. The Greek authorities failed to implement the judgments of the EC Court of Justice and the Greek Supreme Court with regard to allowing nationals of EC Member States to open schools in Greece under the same conditions as those applied to Greek nationals. the execution of a judgment given by any court must be regarded as an integral part of the ‘trial’ for the purposes of Article 6 (1) ECHR. Article 5 (1) and 5 (4) ECHR The text of Article 5 (4) is clear. in order to meet the criteria on the effectiveness of legal remedies. . 18357/91. Greece. 1 to the ECHR) together with his claim that his right to effective remedies had been breached. the ECtHR made it very clear that. the available procedures cannot be said to be effective. Iatridis v. See § 66. their right to effective remedies had been violated by the Greek authorities because they failed to comply with two positive (to the applicant’s case) judgments by the Greek Supreme Administrative Court. In the words of the ECtHR. The Hornsby case concerned a British couple applying for authorisation from the Greek authorities to start a private school (frontistirions) in Rhodes. Greece. public and expeditious. This authorisation was refused on the grounds that only Greek nationals could be granted such permission. 73 7. Jabari v. National courts should therefore have the ability to suspend the implementation of the impugned measures. Turkey that Contracting States are obliged to respect an interim measure of the ECtHR in order to “avoid irreparable harm and to abstain from any act or omission that might prejudice the integrity and effectiveness of the ECtHR’s final judgment”. 51564/99. 5 February 2002.” In the Čonka case. no. 46827/99. the ECtHR ruled that the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that substantial grounds exist for the fear of a real risk of treatment contrary to Article 3 ECHR. The Principle of Non-discrimination: Article 14 ECHR With regard to the question of whether different treatment based on nationality is in accordance with the non-discrimination principle of Article 14 ECHR. Čonka §§ 83–84. It is the duty of a State to organise its judicial system such that it is able to manage the available procedures. “the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible”. it would be inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention. no. Belgium. in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State. the ECtHR clarified with regard to decisions on the expulsion of third-country nationals that. . 11 July 2000. It is important to note that the ECtHR explicitly rejected the statement by the Belgian government in which the excessive workload of the Conseil d’État was presented as an excuse for the failing system of legal remedies. § 50. see § 79. the ECtHR emphasised the importance of Article 3 ECHR and “the irreversible nature of the harm that might occur if the risk of torture or illtreatment alleged materialised”. ECHR 2001-I. as we have seen above. Turkey (I). 40035/98.Effective Remedies in Immigration Procedures: ECHR 267 the ECtHR. the ECtHR ruled in Moustaquim v. 6 February 2003. Along the same lines.70 Consequently. Mamatkulov and Abdurasulovic v. In this conclusion. “the remedy required by Article 13 must be ‘effective’ in practice as well as in law.71 The need for courts to have the ability to suspend measures with irreversible effects was also covered in Jabari v. the ECtHR held in Mamatkulov v. Belgium that there must be an objective and reasonable 70 71 72 73 Čonka v. Turkey. The ECtHR stressed that the requirements of Article 13 should take the form of guarantees rather than a mere statement.72 In this judgment on the decision of the Turkish authorities to expel an Iranian woman to Iran. ECHR 2000-VIII. Turkey. no. France. Russia.75 The Gaygusuz case dealt with the complaint of a Turkish national who had lived and worked in Austria for more than ten years. who had been physically disabled since the age of seven. the ECtHR found that this differentiation based on nationality had no objective and reasonable justification and therefore involved a breach of Article 14 ECHR in conjunction with Article 1 of Protocol No. This includes third-country nationals. 12313/86. Austria. no.76 This case concerned the complaint of a Russian national of Chechen ethnicity. no. the national authorities would have to submit “very weighty reasons” before different treatment exclusively based on the grounds of nationality could be regarded as compatible with the Convention. 193. § 42. 1 (on the right to property). 55762/00 and 55974/00. the ECtHR found an objective and reasonable justification for the discrimination in treatment of EU nationals and third-country nationals in the fact that Belgium and the other EC Member States belonged to a special legal order. The ECtHR ruled that there was a violation of Article 14 ECHR in combination with Article 2 of the 4th Protocol (dealing with the freedom of movement). Series A. When he became unemployed. EHRM Timishev v. 40892/98. The relevancy of the right of non-discrimination in the field of border controls became clear as well in the judgment of the ECtHR in Timishev v. In the Gaygusuz and Poirrez judgments. Russia.” It should be emphasised that the right to liberty of movement and freedom to choose his residence within the territory of a State as protected by the 4th Protocol applies to everyone lawfully within that State. had been refused an allowance for disabled adults on the basis of his nationality. 13 December 2005. . 30 September 2003. In both cases (Gaygusuz and Poirrez). and Poirrez v. 17371/90. Reports 1996-V. 16 September 1996. With the rejection in the Čonka judgment of the arguments by the Belgian government that overworked national 74 75 76 Moustaquim v. who was refused by the Russian authorities to pass administrative borders within Russia. According to the ECtHR “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures. ECHR 2003-X. the Austrian authorities refused him unemployment benefits on the grounds that he did not have Austrian nationality. 18 February 1991. see para. According to the ECtHR. § 46.268 Chapter 8 justification for giving a preferential treatment to nationals of other EC Member States. The Poirrez case dealt with the claim of a national of the Ivory Coast who was adopted by a French citizen. Gaygusuz v. Belgium. Poirrez. no. The question is when national governments can submit very weighty grounds or “objective and reasonable justification of the discrimination in treatment” with regard to the applicable procedural guarantees. no. 58–59. the ECtHR formulated a more stringent and more specified criterion.74 In this case. Mr. Austria. The jurisprudence of the ECtHR is very casuistic. According to the ECtHR. one could argue that by referring to the principles and rights of the ECHR in the preambles to EC immigration law. With regard to the situations in which Article 13 77 78 Compare to the Salesi judgment.78 8. However. is infringed should have effective remedies on the basis of Article 13 ECHR. 26 February 1993 Series A 257E. This latter Protocol only applies in those States which ratified this instrument. A person claiming that his right. the Member States are also bound by this Protocol. the ECtHR was not persuaded by the Government’s explanation that the delay before the Administrative Court was caused by a rise of applications between 1990 and 1995. Ludescher v. the ECtHR made it clear that these grounds are unacceptable. It is also clear that the ECtHR refuses to accept grounds of “national security” or “overburdened immigration law procedures” as sole justification for limiting the rights of individuals to legal remedies. no. 8. in which Italy’s claim with regard to the financial implications of the application of Article 6 was also rejected by the Court. the ECtHR defined some important criteria for the effectiveness of the available remedies in immigration law procedures. 35019/97 § 23. Aside from Article 13. their detention or expulsion. the ECtHR applies more stringent criteria with regard to claims based on Article 3 ECHR. Austria. In Ludescher v. “it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision on disputes relating to civil rights and obligations within a reasonable time”. protected by the ECHR.77 This is also evident from the judgment in the Amuur case.1. the ECHR offers additional protection under Article 5 (4) with regard to detained immigrants and in the 7th Protocol to the ECHR with regard to the expulsion of lawfully resident third-country nationals. . where the ECtHR refused to accept the concern of States to address “increasingly frequent attempts to circumvent immigration restrictions” as grounds for depriving asylum seekers of the protection afforded by the ECHR. in its jurisprudence. 20 December 2001. Summary: Criteria for Effective Remedies It is clear that human rights can be at stake with regard to immigration law decisions dealing with the (non-)admission of third-country nationals. Non-judicial or Judicial Remedy Both Article 6 (1) and Article 5 (4) ECHR explicitly require that persons should have access to judicial courts. Generally.Effective Remedies in Immigration Procedures: ECHR 269 courts and alleged abuse of national procedures would allow for fewer procedural guarantees. Nevertheless. but especially if it concerns the protection under Article 3 ECHR in expulsion cases. As we have seen. Accessibility From the jurisprudence of the ECtHR. . From the above judgments. The case law of the ECtHR also reveals that. – the reasons for detention should be “properly communicated to the detainee” (Čonka). The ECtHR emphasised that. we learn that even if judicial remedies are available. the differentiation between judicial and non-judicial remedies is not always relevant.270 Chapter 8 ECHR applies.2. – the person should be given legible and understandable information about the available remedies (Čonka). the ECtHR explicitly stated that the requirement of a remedy which is “as effective as can be” is not appropriate in respect of a complaint that a person’s deportation will expose him or her to a real risk of treatment in breach of Article 3. the ECtHR is not automatically satisfied that these remedies provide “effective” protection for the individual. the ECtHR formulated the following criteria: – the authorities should disclose the reasons for deportation(Al-Nashif ). the judicial remedies are not considered an absolute requirement. – the information provided should be accurate (Čonka). in the judgments of Chahal and Al-Nashif. one can conclude that the ECtHR applies the same or comparable criteria when considering the “effectiveness” of the competent authorities. With regard to deportation or expulsion. – the detained person should have access to speedy review (Amuur).3. in order to meet the requirements of “effective remedies”. Scope In its jurisprudence based on both Article 13 and Article 6 (1) ECHR. – the person should be given sufficient time and the necessary facilities to prepare his or her case (Mamatkulov). and – the person should have access to an interpreter (Čonka). However. 8. In each case. from the judgments at stake. 8. for the purposes of the ECHR. it must be established that the independent authority or judicial court offers sufficient effective protection. the ECtHR paid much attention to the scope of review of national courts. The question of whether the national procedure is in accordance with Article 13 ECHR depends on whether the competent authority has sufficient powers and guarantees to offer “effective remedies”. one can deduce the following requirements for the accessibility of remedies with regard to detention measures: – the legal basis of detention should be sufficiently accessible and precise (Amuur). Iatridis). It is evident from the jurisprudence of the ECtHR regarding Article 13 ECHR that. in Shalah Sheekh. the ECtHR repeated its earlier statement that national authorities cannot refer to the failure to exhaust national remedies with regard to the admissibility of an individual claim. more stringent scrutiny should be exercised than for a claim concerning the right to privacy (Chahal. Al-Nashif ). 8. With regard to the application of Article 6 (1) ECHR. When the applicant’s right to liberty or life is at risk. – to order interim or suspensive measures (Čonka. the following criteria apply: – – – – there should be access to a judicial body. it was concluded that national courts should be able to re-examine the facts of the case and to remedy the shortcomings observed at administrative level.Effective Remedies in Immigration Procedures: ECHR 271 a national court or authority assessing the lawfulness of the refuted decisions or measures should be able “to enforce the substance of Convention rights”. This means that national legislators should provide for legal procedures in which the courts or authorities can order interim or suspensive measures. the authority or court should be able to strike the correct balance between the rights of the individual and the general interest of the government. and – to strike the correct balance between the rights of the individual and the general interest of the government (Al-Nashif ). As we have seen above. – to prevent the execution of measures causing irreparable or irreversible harm to human rights (Čonka. Competences In its jurisprudence dealing with expulsion. this body should have full jurisdiction and should be able to determine all aspects of the matter and to re-examine all the facts of the case. if in practice the appeal to the competent court was bound to fail.4. Jabari) and. In procedures in which the government invoked national security grounds. national courts or authorities should be able: – to assess the credibility of the government’s assertion that the national security is at stake (Al-Nashif ). Based on Article 6 (1). the ECtHR ruled that national courts or authorities should be able to prevent the execution of measures causing irreparable or irreversible harm to human rights. This competence of national courts or authorities should include the power: – to issue binding decisions (Hornsby. in the procedures concerning the right to family life. Jabari). . Furthermore. the applicability of Article 6 (1) ECHR on immigration procedures would not lead to greater procedural protection in immigration procedures. annotation to the Maaouia judgment. Considering the legal Schengen framework and the legislative powers based on Title IV TEC (see Chapter 9). the ECtHR did not deal with the need for compliance by national governments with the judicial decisions of foreign courts. it is doubtful whether the classical arguments for the differentiation between civil and criminal law procedures on the one hand and immigration law procedures on the other hand still apply. p.80 Secondly. Other. the acquired procedural rights of immigrants can be withdrawn or limited whenever this is considered 79 80 Nicholas Blake and Raza Husain. Immigration. As far as I know. the United Kingdom (Article 13). and Iatridis v. 241 M. based on Article 6 (1).272 Chapter 8 In both Hornsby v. Asylum and Human Rights. the ECHR offers other mechanisms which provide for access to judicial courts in immigration cases. 2003. the ECtHR has already rejected the argument of force majeur as a reason why lesser procedural guarantees should apply to immigration law procedures. Kuijer. 762–779. NJCM Bulletin 2001. Article 6 (1) sometimes includes stricter rules than Article 13 ECHR. the claim of state sovereignty does not seem to be a strong argument to justify the non-application of Article 6 in this field. For example. considering the criteria for a “fair trial” given in Article 6 (1) and its further development by the ECtHR. 8. 6. it is necessary to establish that governments are obliged to comply with the decisions of independent courts or authorities.5. no. the current standards of immigration procedural law cannot be regarded as a matter of course. p. . Greece. Non-application of Article 6 (1) ECHR to Immigration Law Procedures: Failure or No Loss? It has been argued that. This requirement of binding (judicial) decisions can be considered an important criterion to be taken into account when assessing the effectiveness of remedies within the framework of the use of the SIS or other EU databases. for the current law on effective remedies. Oxford/New York: Oxford University Press. for example with regard to the requirement of a judicial review and “speedily access to courts” of the claim in question. As we have seen above. As we will see in Part III. it can no longer be said that immigration policy is matter of state sovereignty only.79 Based on Article 13 and other provisions. more urgent reasons exist to explain why it could be desirable for the ECtHR to reconsider its interpretation of Article 6 (1). the ECtHR found that with regard to the question of whether remedies are effective. However. As pointed out by Van Dijk and Van Hoof: “It is submitted that the most satisfactory way to end legal uncertainty and maximize effective legal protection is to recognize – as an example of ‘evolutive interpretation’ – that the first paragraph of Article 6 is applicable to all cases in which a determination by a public authority of the legal position of a private party is at stake. Antwerpen/Oxford: Intersentia 2006. for example in cases involving students or businessmen. . 538. Aside from the incorporation of this human right in the EU Charter. Thirdly. 28957/95. the ECtHR repeatedly confirmed its commitment to interpreting the human rights as protected in the ECHR with “adynamic and evolutive approach” and that it attaches importance to a European or international consensus. 11 July 2002.81 A final and perhaps more important reason is the development in EU law. van Hoof. within the law of the 27 EU Member States. van Dijk and F. the United Kingdom. As mentioned above. a broad application of Article 6 would eliminate situations in which it is unclear whether the right of an effective remedy applies in immigration appeals where no human rights are at issue. The authors of this Charter explicitly confirmed that the scope of this right goes beyond the field of civil and criminal law. as incorporated in the EU Charter on Fundamental Rights. Goodwin v.82 81 82 P. Theory and Practice of the European Convention on Human Rights. higher standards apply with regard to the scope of Article 6 (1) ECHR than the standards which apply in the States of the Council of Europe. In this light. p. no.Effective Remedies in Immigration Procedures: ECHR 273 necessary by the national governments. also extending to measures in the field of asylum and immigration law. we will see in the next two Chapters how the right to effective remedies gradually became rooted in EU law. §§ 74 and 84–85. Article 6 (1) ECHR is used as a model for the right to a fair trial. regardless of whether the rights and obligations involved are of a private character and regardless of whether the claim concerns a public law relationship”. it seems logical that the ECtHR should abandon its narrow approach with regard to Article 6 ECHR. It is possible that the ECtHR accepts that. The application of Article 6 (1) ECHR on immigration procedures would provide a set of minimum standards from which governments may not deviate. However. . security and justice.”1 1. asylum. Introduction The Treaty of Maastricht of 1992 added a new objective of the Union to Article 2 of the EU Treaty (hereafter TEU): “to maintain and develop the Union as an area of freedom. 24. Towards an Area of Freedom. p. pp. immigration and the prevention and combating of crime”. it would appear that the preference is to pay lip-service to important principles and cite relevant human rights instruments rather than to move towards the construction of a modern legal framework guaranteeing the application of the rule of law in the enlarged EU of the 21st century. 237–262. 7. 2005. July 1998.Chapter 9 Effective Remedies under EC Immigration Law “Even though the constitutional traditions of all Member States and the jurisprudence of both the Strasbourg and Luxembourg courts underlines that the right to an effective remedy for all within the jurisdiction of Member States (which includes decisions made in embassies and consulates) is an important legal and human right. According to the heads of states. Printed in the Netherlands.2 One of the central goals of this Area of Freedom. in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls.”4 The Tampere Conclusions further state that common policies on asylum and immigration “must be based on principles which are both clear to our own citizens 1 2 3 4 R. including a five-year programme for the Area of Freedom.12 2002. Security and Justice. Digital Borders and Real Rights. Recital 2 of the Tampere Conclusions. © 2008 Koninklijke Brill NV. it “would be in contradiction with Europe’s traditions to deny such freedom to those whose circumstances lead them justifiably to seek access to our territory. 275–302. the European Council stated that this freedom should not be regarded as the exclusive preserve of the Union’s own citizens. OJ C 325. . The Need for Effective Legal Protection in Immigration Matters. Communication of the Commission. Article 2 of the TEU. Security and Justice. EJML. Cholewinski. Evelien Brouwer.3 In the Tampere Conclusions of 1999. Security and Justice is to safeguard the legal protection of individuals. COM (1998) 459. EB.1. 238. p. OJ 04. including EU citizens and their family members and Turkish migrant workers.8 2. See. but also for those applying for a residence permit or visa in one of the EU Member States. The Hague/ Boston/London: Martinus Nijhoff Publishers 1997. .276 Chapter 9 and also offer guarantees to those who seek protection in or access to the European Union. The Hague/London/Boston: Kluwer Law International 1999. third-country nationals are still “subject to an underdeveloped legal regime at the EU level”?7 This Chapter describes to what extent the right to effective remedies is embedded in EC immigration law.1964. the European Council explicitly recognised the obligation of the EU legislator to provide procedural guarantees not only for those residing lawfully in the EU.04. including rules on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy. Directive 2004/38/EC on the Right of Citizens and their Family Members to Move and Reside Freely within the EU 2. I will describe in the following sections the relevant provisions of the different immigration law instruments adopted on the basis of Title IV TEC and compare these provisions with the rules which apply to more privileged categories of persons. Cholewinski (2005). Directive of 25 February 1964. This principle was laid down at an early stage in Directive 64/221/EC. or is there differentiation between different categories of persons? To answer these questions. Fair Immigration Proceedings in Europe.”5 With this phrase. Staples The legal status of third country nationals resident in the European Union. Protecting the Free Movement of EU Citizens and their Family Members One of the fundamental principles of Community law is the freedom of movement of EU citizens. For a general study on the rights of third-country nationals in EU law I refer to: H. pp. Italic is mine. What has been achieved since the Tampere Conclusions with regard to the right of judicial protection in the different instruments adopted in the field of immigration and asylum law?6 Do individuals have a right to access to courts with regard to immigration law decisions. that compared to EU citizens and their family members.9 Based on case law of 5 6 7 8 9 Recital 3. public security or public health in the EC. Boeles. Does this right apply indiscriminately to third-country nationals residing legally on the territory of one of the EU Member Sates or seeking access to the EU. which applies indiscriminately to third-country nationals residing in or seeking access to the EU? Or it is fair to state. for an elaborate study of effective remedies in European immigration law in the period before the Tampere Conclusions: P. 850–857. in the words of Cholewinski. only in exceptional situations. the relevant provisions of Directive 2004/38 are Articles 30 and 31. available at http://www.2004. C-36/75. Adopted on 29 April 2004. the ECJ ruled that a Member State may neither refuse to issue a residence permit to a third-country national married to a national of a Member State. CEPS Working Document No. In the new Directive. or to expulsion decisions. the new rules enhance the procedural rights of EU citizens and their family members. Mouvement contre le racisme. Belgium. [1975] ECR 1219.10 Based on these rules and the criteria as developed by the ECJ. it has been recognised that.12 On 30 April 2006. nor issue an order expelling him from the territory. Compared to the rules in Articles 8 and 9 of the former Directive 64/221. One of the most important criteria as defined by the ECJ is that Member States may.13 This Directive codifies the principles as formulated by the ECJ on the basis of the former Directive 64/221. Among other things. OJ L 229/35. It also integrates the different existing instruments with regard to the protection of EU citizens under community law. Directive 64/221 was replaced by a new Directive 2004/38/ EC on the rights of citizens and their family members to move and reside freely within the territory of the Member States. solely on the grounds that his visa expired before he applied for a residence permit. invoke reasons of security. who entered the territory of that Member State lawfully. to stay there and to move within it may only be refused when this person “represents a genuine and sufficiently serious threat affecting one of the fundamental interests of society”.be. For our purposes. C-459/99 § 91. duly attested” (Article 3). What Does Free Movement Mean in Theory and Practice in an Enlarged EU?.ceps. ECR [2002] I-6279 and C-459/99. their right to enter the territory of another Member State. § 35. the power of Member States to restrict the right of free movement and residence of EU citizens and their family members is limited.14 As in the former Directive 64/221. Directive 2004/38 also grants beneficial rights to the spouse and family members of EU citizens. in order to enable EU citizens to enjoy their freedom of movement. 10 11 12 13 14 See the judgments of the ECJ in C-60/00. Belgium. Rutili. 29. public order or health grounds to oppose the residence of EU citizens and family members. § 28 and C-30/77. Carrera.Effective Remedies under EC Immigration Law 277 the European Court of Justice (ECJ).06. this protection should also apply to their family members who hold a third-country nationality. Carpenter. [1977] ECR 1999. . this also includes the partner with whom the EU citizen has a “durable relationship. Bouchereau. 208/October 2004. According to established case law. See also S. These provisions describe the procedural guarantees with regard to the right to legal remedies against decisions concerning entry or the refusal to issue or renew a residence permit. l’antisémitisme et la xénophobie ASBL (MRAX) v. [2002] ECR I-6591.11 In the judgment MRAX v. the ECJ recognised the applicability of certain procedural guarantees of Directive 64/221 with regard to procedures reviewing the legality of an expulsion order against a Turkish worker. the right to social benefits and the right to stay within the EU territory.16 In this case. the ECJ ruled on the scope of Directive 64/221 with regard to the rights of an EU national and a Turkish national. the ECJ ruled in two important judgments that individuals enjoying rights under Decision 1/80 should have the same procedural guarantees with regard to these rights as EU citizens under Directive 64/221. Extending the Scope of Protection: Cetinkaya and Dörr-Ünal Based on the association agreements between the EU Member States and third countries. Dörr-Ünal. 7–10. In 1980 the Association Council. Case C-136/03. for an early analysis of this judgment. where appropriate. Cetinkaya. also in view of the future accession of Turkey to the Communities. 2. the Court made an explicit link between rights as protected 15 16 Case C-467/02. nationals of those third countries enjoy a privileged position with regard to the right to work. adopted Decision 1/80 on the rights of Turkish migrant workers. in the Cetinkaya case. that courts should have taken into consideration circumstances which arose after the final expulsion decision of the national immigration authorities in order to assess the presence of an actual threat to public order caused by the personal conduct of the applicant. Peers in the ILPA European Update.15 In this judgment. such an Association Agreement was concluded between the European Communities and Turkey. the same treatment as EU workers. See. In the early 1960s. even if this Directive does not explicitly refer to this category of persons. the persons concerned should “have access to judicial and. According to Article 31 (1) of Directive 2004/38. I will further describe these criteria in section 4 below. S. the ECJ found that national courts should have applied the principles of Article 3 of Directive 64/221 with regard to measures based on public order and security grounds against the applicant. This Decision includes the general principle that Turkish migrant workers should receive.278 Chapter 9 Article 30 of Directive 2004/38 puts more emphasis on procedural guarantees improving the accessibility of legal remedies. [2004] ECR I-10895. established on the basis of this Agreement. . In the Dörr-Ünal judgment of 2 June 2005. public security or health”.2. administrative redress procedures in the host member state to appeal against or seek review of any decision taken against them on the grounds of public policy. June 2005. [2005] ECR I-4759. In 2004. according to the ECJ. This meant. Based on this general principle of equal treatment. p. in the country where they are legally resident. Groenendijk. K. In this judgment. published in JV 3 August 2005. p. Brussels: Bruylant 2006. but in these treaties the principle of equality with EU citizens was deliberately omitted. Therefore. Guild.3. Citizens and Third-country nationals: Differential Treatment or Discrimination?. The ECJ concluded that in order to ensure the effectiveness of the substantive rights as protected in Decision 1/80. Commission v. 2. The EU signed association agreements with those countries as well. p.07. it is essential to grant those workers and their family members the same procedural guarantees as those granted by Community law to nationals of Member States. Action brought on 13 May 2005. as we will see in Chapter 10. The case was removed from the ECJ register on 29 June 2006. no. C-209/05.19 The Commission claimed that Austria had failed to implement the provisions of Directive 64/221. in: J.17 This means that those workers should be granted the same guarantees laid down in Articles 8 and 9 of Directive 64/221. The Relationship between the VIS and SIS and the Freedom of Movement of EU Citizens and Family Members 2.3. However.Y.18 The consequence of this was that the rights of workers from a country whose accession to the EU is far from being accomplished were better protected than those of nationals of other third countries. See also his annotation to the Dörr-Ünal judgment.2005. Carlier and E. OJ C171/10. Austria With regard to the availability of remedies against the refusal to issue a visa to family members of EU citizens. considering that Austrian law lacked certain procedural guarantees such as motivated decisionmaking or the right to appeal against the refusal. 926. In the first place. the Austrian government failed to inform the visa applicant of the full and detailed reasons for 17 18 19 Dörr-Ünal § 67. this differential treatment became less relevant following the Panayotova judgment of 2004 of the ECJ. The Future of Free Movement of Persons in the EU.1. in 2005 the Commission brought an interesting claim against Austria before the ECJ. 9. it is to be expected that the ECJ will continue the same reasoning with regard to Directive 2004/38. On the basis of the reasoning of the ECJ in these judgments. .Effective Remedies under EC Immigration Law 279 by Community law and the ability to invoke these rights before a court. Member States will have to apply the procedural guarantees included in this Directive to Turkish migrant workers and their family members as well. which concerned the rights of Bulgarian nationals under the Association Agreement between the EC and Bulgaria. the ECJ applied its more general approach on effective remedies with regard to rights as protected under Community law to the area of visa and residence rights. 276. 99. such as Bulgaria and Romania in the years before their accession to the EU. VIS. . which emphasises the importance of effective legal protection against decisions registered in SIS. By failing to give adequate reasons for refusing a visa or allowing entry and without first verifying whether the presence of those persons constituted a genuine. However. the risk that wrongful decisions will be simply repeated. Secondly.21 Therefore. SCH/Com-ex. VIS or Eurodac. in which the Contracting States accepted the principle that the names of persons covered by Community law may be entered and kept in the SIS only if that entry is compatible with Community law. Spain did not fulfil its obligations under Articles 1 to 3 and 6 of the Council Directive 64/221. The Spanish government referred to the Declaration of 18 April 1996. The Commission withdrew this claim once Austria fulfilled its obligations under EU law. 2. stating that submitting a renewed application entails the risk that the objectively incorrect decision may simply be repeated. It is not clear whether the Commission was actually thinking about the future registration of (positive and negative) visa decisions in the EU database. During this case. The ECJ observed that their visa and entry had been refused solely on the grounds that they were persons for whom alerts were entered in SIS for the purposes of refusal of entry.20 In this judgment. Judgment of 31 January 2006. Dealt with in section 4. Spain to which I already referred in Chapters 3 and 4. Commission v. 5. Spain In the important judgment Commission v. the existence of such an entry may reasonably be 20 21 C-503/03. However. according to the Spanish government.2. the Spanish government argued that there was no obligation for the Member States to consult the reporting State to check whether the entry is compatible with EC law. with regard to the claim by Austria that the refusal of legal remedies did not harm the interests of the applicant because “submitting a new application is a quicker means of reaching one’s goal than pursuing a legal remedy against the decision”.280 Chapter 9 the visa refusal. Declaration of 18 April 1996. The Commission explicitly disagreed with this argument. The reaction of the Commission is noteworthy. the ECJ declared that Spain infringed the right of free movement of family members of EU citizens by refusing to issue a visa and allow the entry of two nationals of a third country who are family members of European Union citizens solely on the basis of a SIS alert.3. it would have been interesting to see how the ECJ would have dealt with the underlying questions. the ECJ dealt explicitly with decisions based on the SIS. [2006] ECR I-1097.4 of Chapter 3. the government did not grant the visa applicant the same legal protection against this visa refusal as afforded to its own citizens in administrative law procedures. it is precisely this point. (96) decl. present and sufficiently serious threat affecting one of the fundamental interests of society. This also implies that the latter should make supplementary information available to the consulting State to enable it to “gauge. the gravity of the threat that the person for whom an alert has been issued is likely to represent”. See §§ 56–58. The ECJ pointed out that exactly for this purpose the Schengen States had established the network of national SIRENE offices. The Hague: Kluwer Law International 2004. Legal Remedies in Immigration and Asylum Law Based on Title IV TEC The following sections will examine the main instruments which have been adopted in the field of immigration and asylum law based on Title IV TEC. E. For more detailed analysis of the history and meaning of these instruments. EU Citizenship and Migration Law. that the presence of the person concerned in that area constitutes a genuine.”23 3. present and sufficiently serious threat affecting one of the fundamental interests of society”. It is important that the ECJ explicitly refers to this existence of SIRENE offices and the duty of States to consult each other by using the SIRENE network. 2003. the ECJ ruled that each State consulting the SIS should give due consideration to the information provided by the State which issued the alert. 5. 231–255.2. in the specific case. 107–141.1 of the SIRENE Manual. I refer to Peers & Rogers (2006).24 22 23 24 See § 53 of the judgment. 2001. p. and no. Guild. However. The ECJ confirmed that the inclusion of an entry in the SIS in respect of a third-country national who is the spouse of a EU national does indeed constitute evidence that there is a reason to justify refusing him entry into the Schengen Area. and the response must be given within 12 hours. according to the ECJ.22 Even if the Schengen acquis is based on the principle of “genuine cooperation”. which is given in chronological order. Peers. The Legal Elements of European identity. such evidence must be “corroborated by information enabling a Member State which consults the SIS to establish. and the legislative overviews of S. before refusing entry into the Schengen Area. 3. no.Effective Remedies under EC Immigration Law 281 regarded as evidence of a genuine and serious threat. p. According to Paragraph 2. the system put in place must enable requests for information made by the other contracting parties to be answered as soon as possible. In the words of the ECJ: “The network of SIRENE Bureaux was set up specifically to provide information to national authorities faced with difficulties in enforcing an alert. . I will focus on the provisions for legal remedies. Key Legislative Developments on Migration in the European Union. The ECJ explicitly referred to Article 94 of the CISA which expressly authorises the reason for the alert to be stated. This view was not shared by the ECJ. In this overview. EJML. which was based on an initiative of the French Presidency. 2. in accordance with national law. Bruylant: Brussels 2003. since it facilitates access to information about expulsion decisions of the other Member States. “Member States shall ensure that third-country nationals may. Paradise Lost? Exclusion and Expulsion from the EU. The practical meaning of this instrument has been criticised. Eicke. 447–463. It seems more likely that they will prefer their own national mechanisms in order to be able to expel an immigrant more swiftly. OJ L 60. This does not necessarily imply access to a court. The Directive on mutual recognition of expulsion decisions does not take into account the length of time someone has been legally resident in one of the EU Member States: expulsion can be carried out immediately.2004.28 The Directive refers in its preamble and in Article 3 (2) to the duty of Member States to respect human rights as protected in international instruments. in Groenendijk.2001. implementation date was 2 December 2002.282 Chapter 9 3.6.2. the implementation and scope of the content of the remedies are to a large extent left to the scrutiny of the national legislator.26 To meet the potential financial barriers preventing the Member States using this instrument. Groenendijk.27 The implementation of Directive 2001/40 is closely linked to the use of the Schengen Information System. See T. Guild & Minderhoud (2003). Directive 2001/40/EC on Mutual Recognition of Expulsion Decisions In Directive 2001/40/EC on mutual recognition of expulsion decisions. Despite these provisions there is a risk that the practical implementation of the Directive will lead to an infringement of these rights because Member 25 26 27 28 OJ L 149/34. p. but also of the Family Reunification Directive and the Directive on long-term residents (see below). 27. The Emergence of a European Immigration Policy. especially because Member States may prefer not to use the procedures of this Directive in order to find out whether another Member State issued an expulsion order against the person in question. . the Council adopted Decision 2004/191. 167. nor does the Directive provide for the suspensive effect of such procedures. See K. setting out the criteria and practical arrangements for the compensation of the financial imbalances resulting from the application of Directive 2001/40. bring proceedings against any measure referred to in Article 1”. in P. De Bruycker. The Directive on mutual recognition of expulsion decisions: symbolic or unbalanced politics?. is to facilitate the expulsion of illegal or inadmissible immigrants present within the territory of the EU Member States. This could in practice lead to a situation which is in breach not only of Directive 2004/38.25 The goal of this Directive.1. p. including the ECHR and the 1951 Convention on the Status of Refugees. Article 4 of Directive 2001/40 provides that. The Directive does not include any further rules or procedural guarantees for such remedies. 791. the national court or authority involved will have to assess whether the national law of the issuing state has been correctly applied. Nor does the Directive include an explicit right to legal remedies in the situation that a person is enforced to return when his or her temporary protection has been ended. persons who have been excluded from the benefit of temporary protection or family reunification by a Member State have “the right to mount a legal challenge” in this Member State.7). nor on the availability of legal remedies against the refusal of asylum. This means that the national court or authority of the expelling state will have to rule on the legality of the decision of a court or authority of the issuing state. Implementation date for this Directive elapsed on 31 December 2002.31 On the basis of Article 29 of this Directive. 7. The Directive does not include rules on the asylum procedure. Member States tried to avoid overburdened refugee determination and asylum procedures.29 Interestingly.2001. because the rules of the Directive on minimum standards for asylum procedures will apply (see below section 3. .8. The Directive seeks to harmonise the national programmes for temporary protection and to create a basis for financial burden-sharing between Member States with regard to the reception of these persons. 29 30 31 See the legal analysis of Directive 2001/40 in Peers & Rogers (2006) p. 3. Article 22 (1) only provides that Member States must take the necessary measures to ensure “that the enforced return of persons whose temporary protection has ended and who are not eligible for admission is conducted with due respect for human dignity”.30 This Directive has its origins in the attempt by Member States to deal with humanitarian crises outside the EU and with large numbers of persons seeking asylum within the EU. 453–485.2. p. The Directive on temporary protection provides that persons enjoying temporary protection in a Member State must be able to apply for asylum any time in that Member State (Article 17).Effective Remedies under EC Immigration Law 283 States will rely on foreign expulsion decisions and their compatibility with human rights standards. the legal procedure in the expelling state will have to deal with the question of whether the criteria of Article 3 (1) apply: is the expulsion decision still in force and has it not been suspended? Furthermore. OJ L 212. Directive 2001/55/EC on Minimum Standards for Temporary Protection Council Directive 2001/55/EC of 20 July 2001 includes minimum standards for providing temporary protection in the event of a mass influx of displaced persons. Whether this attempt has been successful is questionable: see Peers & Rogers (2006). By giving these persons temporary protection. Article 5 of the Directive obliges Member States to give asylum seekers written information on their obligations and rights. the Directive does not include specific criteria with regard to the right to legal remedies.32 These safeguards especially concern the duty of Member States to inform the persons in question. is important for the accessibility of legal remedies. According to Article 5 (1). . in a language that the applicants may reasonably be supposed to understand. Directive 2003/9/EC on Minimum Standards for the Reception of Asylum Seekers The Directive 2003/9/EC setting forth minimum standards for the reception of asylum seekers of 27 January 2003 includes some important procedural safeguards for individuals lodging an application for asylum in one of the Member States. Limits on such access may be imposed only on grounds relating to the security of the centres and facilities and of the asylum seekers. Implementation date: 6 February 2005.2003. “within a reasonable time not exceeding fifteen days” after they have lodged their application for asylum with the competent authority. Article 5 (1) obliges Member States to ensure that applicants “are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions.” The information mentioned in Article 5 (1) must be given in writing and. Only “where appropriate”. including health care. Article 21 (1) of the Directive obliges Member States to ensure “that negative decisions relating to the granting of benefits under this Directive or decisions taken under Article 7 (decisions with regard to their residence and 32 OJ L31. Article 14 of the Directive also stipulates that legal advisors or counsellors to asylum seekers and representatives of the United Nations High Commissioner for Refugees or recognised non-governmental organisations shall be granted access to accommodation centres and other housing facilities in order to assist the said asylum seekers. however. as far as possible.3. As with the other EC instruments on immigration and asylum dealt with in this Chapter. of “at least any established benefits and of the obligations with which they must comply relating to reception conditions”. Member States must consider according to Article 22 (2) any compelling humanitarian reasons which may make return impossible or unreasonable in specific cases. Member States must inform asylum seekers. according to which Member States must give information on the availability of legal assistance. 3. This latter exception runs the risk of being interpreted widely. as we have seen in the previous Chapter it must respect the procedural guarantees as defined by the ECtHR. 6.284 Chapter 9 In the situation of enforced return. The provision in this Directive. may this information also be supplied orally.2. 34 A later draft of the Council of 2002 referred to the right to apply “to the administrative bodies and courts of the Member States concerned”. this recital urges Member States to provide for “effective legal redress” in order to ensure this protection.2004. . Only with regard to expulsion decisions.35 This option was then replaced by the much vaguer definition of “the right mount a legal challenge”. With regard to expulsion decisions. Article 12 (5) explicitly provides for a right to legal aid for long-term residents lacking adequate resources on the same terms as nationals of the Member State in which they reside. Directive 2003/109/EC on Long-Term Resident Third-Country Nationals In 2003. the Directive on long-term residents explicitly requires the availability of judicial remedies. in cases where an expulsion decision has been adopted. which included an explicit right of access to courts. Referring to the decisions of the ECtHR. the national legislator must also provide for procedures for access to legal assistance. a judicial redress procedure is available to the longterm resident in the Member State concerned. 5533/03. Article 22 of the amended proposal of the draft Directive of 3 February 2003. This Directive was to be implemented by the Member States by 23 January 2006. 10009/03. 23.33 This Directive differentiates between expulsion decisions and decisions concerning applications for long-term residence permits.01. the person should have “the right to mount a legal challenge in the Member State concerned”. The Member States adopting this text apparently wanted to maintain the option of procedures other than judicial redress. See Articles 11 (3) and 22 (2) of the Commission proposal COM (2001) 127. They rejected the earlier proposal by the Commission. the Council adopted Directive 2003/109/EC concerning the status of thirdcountry nationals who are long-term residents. Member States should ensure that. but may also provide for more levels of remedies. with regard to the refusal of long-term resident status. the withdrawal of a status or the refusal to renew a residence permit. doc. EB) which affect asylum seekers individually may be the subject of an appeal within the procedures laid down in the national law.” According to the same provision. the Member States must “at least in the last instance” grant the asylum seeker the right of appeal or review before a judicial body. Council doc. It is unclear what precisely is meant by “legal challenge”. 13 March 2001. The importance of reinforced protection of long-term residents against expulsion is also confirmed in recital 16 of the preamble to this Directive. 3.4. 33 34 35 OJ L 16/44–53. According to Article 12 (4) of the Directive. See also the draft of 4 June 2003.Effective Remedies under EC Immigration Law 285 freedom of movement. Article 20 (2) of this Directive provides that. This means that the Member States must provide for a right to apply for review or appeal in last instance. According to Article 21 (2). 36 Earlier drafts of the Directive on family reunification included an explicit right for the applicant and family members to apply to a national court against the rejection of a family reunification application.10. See former draft of 9 August 2002. or a removal order.2003. The legality of this Directive has been challenged by the European Parliament before the ECJ. 10857/02. According to Article 18 of the Directive on family reunification. COM (1999) 638 of 11 January 2000. In its judgment in the case European Parliament v. also provided for the right of the applicant and/or family members to have “a de facto and de jure right to apply to courts”. It may therefore be no coincidence that this latter Directive includes a similar vague provision on legal remedies. The decision should be notified to the third-country national. the procedure and the competence according to which the right to appeal is to be exercised is to be regulated by the Member States. 9 August 2002.5. the ECJ. Council doc. obliging national authorities to give reasons for any decision rejecting an application for a residence permit. Council. referring to Article 18 of Directive 2003/86. The ECJ emphasised that the implementation of 36 37 38 OJ L 251/12–18. See further Chapter 10.37 A second proposal by the Commission. . of 2002. OJ C 116 E/66.2000 and Article 18 of the amended proposal COM (2002) 225.4. stressed the role of national courts for the interpretation of this Directive. a withdrawal or refusal to renew a residence permit. 3. European Parliament v. See Article 16 of the initial proposal by the Commission. The implementation deadline was 3 October 2005. 03. 10857/02. Directive 2003/86/EC on the Right to Family Reunification The negotiations on the aforementioned Directive on long-term residents took place during almost the same period as the negotiations on Council Directive 2003/86/EC on the right to family reunification of 22 September 2003. Article 10 (1) explicitly requires that the notification should specify the possible redress procedures available and the time limit for taking action. See the judgment of the ECJ of 27 June 2006. the Council. national courts would have the task not only of assessing the lawfulness of the administrative decision but also of considering the factual circumstances within which the decision was taken. Member States should ensure that the sponsor and/or the members of his/her family have “the right to mount a legal challenge where an application for family reunification is rejected or a residence permit is either not renewed or is withdrawn or removal is ordered”. According to Article 18 (2) of the Directive on family reunification. “in accordance with the notification procedures under the relevant national legislation”.38 On the basis of this latter proposal. 26. in the case C-540/03.286 Chapter 9 An important development is the inclusion of Article 10 (1) in the Directive on long-term residents. § 106. no longer than nine months from the date the application was lodged.40 The Dublin II Regulation is based on the so-called ‘single application’ principle. Article 19 (2) of the Regulation states that the decision referred to in paragraph 1 must be motivated. it is incumbent upon them to refer a question to the Court for a preliminary ruling in the circumstances set out in Articles 68 EC and 234 EC”.02. .6. As with the Directive on long-term residents. the Directive on family reunification obliges Member States to issue the decision in question in writing. this decision should include information on the place and date of 39 40 C-540/03. According to Article 19 (1) of this Regulation. 3.39 The importance of preliminary proceedings and the role of national courts will be dealt with further in Chapter 10. this information should be submitted as soon as possible but. stating that this decision must include the reasons for rejection. prohibiting a person from applying for asylum in more than one country. Under exceptional circumstances.2003. as provided in Article 18 thereof. According to Article 5 (4) of the Directive on family reunification. in any event. “linked to the complexity of the examination of the application” this time limit may be extended. 25. when a requested Member State accepts responsibility for an applicant. If necessary. Member States may decide not to examine an asylum application and to refer the asylum applicant to the authorities of another Member State. ‘the Member States shall ensure that the sponsor and/or the members of his/her family have the right to mount a legal challenge where an application for family reunification is rejected or a residence permit is either not renewed or is withdrawn or removal is ordered’. It will also inform the applicant that he or she will be transferred to the responsible Member State. Based on these criteria. Regulation 343/2003/EC (Dublin II) Regulation 343/2003/EC of 18 February 2003 on the responsibility for the application for asylum in the EU Member States (Dublin II Regulation) provides criteria for establishing which Member State is responsible for the examination of an asylum application submitted in one of the Member States.” According to the ECJ. setting out the grounds on which it is based. “if those courts encounter difficulties relating to the interpretation or validity of the Directive.Effective Remedies under EC Immigration Law 287 the Directive is subject to review by the national courts “since. This decision should also contain details of the time limit for carrying out the transfer. OJ L 50/1. the Member State in which the application for asylum was lodged must notify the asylum applicant of its decision not to examine the application. the decision not to examine an asylum application may be subject to an appeal or review. OJ C 291 E/143. . According to Article 39(4).288 Chapter 9 the applicant’s scheduled appearance. and Peers & Rogers (2006). 15198/03. Battjes. 13. European Asylum Law and International Law. p. the competent court or bodies may decide to suspend the implementation of the transfer on a case-by-case basis.12. Leiden/Boston: Nijhoff Publishers 2006. Again. 10235/03. 3. refusals to re-open the examination or refusals to further examine their applications. This review or appeal does not automatically suspend the refuted decision. Directive 2005/85/EC on Minimum Standards for Asylum Procedures Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status was adopted in December 2005.2005. if he is travelling to the responsible Member State under his own steam. OJ C 62 E/231 and the amended proposal COM (2002) 326. or decisions on the withdrawal of the refugee status. for a more extensive analysis of this Directive: H. Member States may lay down time limits for the court or tribunal examining the decision of the determining authority. Decisions taken on asylum applications include decisions on the inadmissibility of the application or with regard to refusals of entry at borders or in transit zones where the person applied for asylum. 367–452. Article 39 (2) obliges Member States to provide time-limits in their national laws. asylum seekers may exercise this right against decisions taken regarding their asylum applications. for example on subsidiary protection or temporary protection. See. for the original proposal of this Directive: COM (2000) 578. 289 ff. for the Council negotiations: doc. See. the text of the provision as finally adopted by the Council offers weaker protection compared to earlier proposals by the Commission. It includes basic principles and standards with regard to the asylum procedures within the EU Member States. Only if national law so provides.. According to Article 39 of this Directive. p. It does not apply to other instruments adopted with regard to the protection of refugees. without specifying these safeguards further. 10279/02. According to the same Article 19 (2).41 This Directive is limited to the procedures with regard to the granting and withdrawing of refugee status under the Geneva Convention on the status of refugees of 1951.42 Article 39 (1) of this Directive explicitly stipulates that asylum applicants “have the right to an effective remedy before a court or tribunal”. together with “other necessary rules” for the applicant to exercise his or her right to effective remedies.7. See. These proposals included an explicit right to effective remedies before a court and also made it clear that this remedy should entail the possibility of an examination of both 41 42 Directive 2005/85/EC of 1 December 2005 OJ L 326/13. implementation date is 1 December 2007. 05. since many refugees are only recognised during the appeal process and an erroneous determination in the first instance would have serious consequences.43 Furthermore. See. the initial proposals included the obligation to grant. amendment 45. 13 June 2005. With regard to decision-making. Hungary voted against and Slovenia abstained. suspensive effect to the appeal proceedings. It includes rules on the measures and powers of authorities controlling the movement of persons at the external borders of the EU. OJ L 105/1. Article 38 (2) of the Directive on asylum procedures states that the decision to withdraw refugee status should include the reasons for this refusal and information about how to challenge this decision.Effective Remedies under EC Immigration Law 289 facts and points of law.1. The report as adopted by the European Parliament concerns A6-0188/2005.47 43 44 45 46 47 See Article 38 of proposal COM (2000) 578 and Article 38 of proposal COM (2002) 326. The decision and the information referred to should be given in writing. Regulation 562/2006/EC on the Rules Governing the Movement of Persons at Borders (Schengen Borders Code) Regulation 562/2006/EC on the Community Code governing the movement of persons at the borders (Schengen Borders Code) replaces the Schengen Common Manual on Border Control. pending the outcome of his or her asylum procedure. Article 33 of proposal COM (2000) 578 and Article 39 (3) and (4) of proposal COM (2002) 326. The current text of Article 39 (2) leaves it to the discretionary power of Member States to decide whether and in which situations the asylum seeker is allowed to remain on the territory of the Member State.2004. for the Commission proposal: COM (2004) 391. under certain circumstances. .4. The only condition formulated in Article 39 (2) is that these rules should be in accordance with their international obligations.2006. See the Report A6-0222/2005 of 29 June 2005.8.46 The Schengen Borders Code was adopted by a decision of the Council on 21 February 2006. Effective as from 13 October 2006. 3. Refusals at the Border 3. The adopted text is entirely based on the proposal which was agreed upon in spring 2005 by the European Parliament (EP). made it possible to adopt the Regulation during its first reading in the Council. the suspensive effect of asylum appeals would be a critical safeguard. Regulation 562/2006 of 15 March 2006. 26. the Commission and the Council on the basis of the co-decision procedure of Article 251 TEC. 13.8. Close coordination between the three institutions or the tripartite agreement which was reached during negotiations on the Schengen Borders Code.45 According to the LIBE Committee.44 The LIBE Committee of the European Parliament proposed that legal remedies against a refusal of asylum should always have the effect of allowing the applicant to remain in the Member State pending its outcome. 2. provisional version 2004/0127 (COD). stating the precise reasons for the refusal. This decision must be taken by an authority empowered by national law and shall take effect immediately. in the Schengen Borders Code.290 Chapter 9 During these negotiations in 2005. this right to appeal. border guards are obliged to issue a refusal form to third-country nationals 48 49 Draft report. OJ L261/36. persons refused entry shall have the right to appeal in accordance with national law. Council Decision 2004/574/EC. Considering the reluctance of Member States to place persons seeking entry at their external borders in a very strong position. According to Article 13 (3) of the Regulation. other proposals by MEP Cashman extending the rights of individuals were accepted by the Council and the Commission. This proposal was also rejected.8. .2004. The decision should be given using a standard form. who must acknowledge receipt of the decision to refuse entry by means of that form. 15. the rapporteur of the EP. third-country nationals should be given a written indication of contact points able to provide information on legal representatives competent to act on behalf of a third-country national. This standard form must be handed to the third-country national concerned.2005. proposed on behalf of the EP. a third-country national who is refused entry based on the criteria of this Directive may only be refused entry by a substantiated decision. a right to obtain financial compensation has however been deleted from the final text. a standard refusal form was included in the former Common Manual on Border Control. The EP further proposed adding the ability for Member States to suspend the entry into force of a refusal of entry if they consider it appropriate to do so. to the Regulation (to be examined in the next section). As from 1 June 2004. 3. The right to remedies against refusals at borders is included in Article 13 of the Regulation 562/2006. Part B.49 This decision has been incorporated into part B of the Schengen Borders Code of 2006. The Inclusion of a Standard Refusal Form By a Council Decision of 2004. For this purpose. dropped some of his initial amendments which would have improved the legal status of persons across EU borders.48 This proposal included the right to financial compensation for possible damage suffered as a result of ill-founded refusals. Cashman. Mr. 6. A proposal to include. as set out in Annex V. On the basis of Article 13 (2). This included a right to financial compensation in the case of a wrongful decision. On the other hand. Article 13 (3) now even states that initiating an appeal process shall not suspend the decision to refuse entry.8. mentioned above. is a very important achievement which survived the negotiations between the three EU institutions.3. the text of the standard refusal form explicitly states that the third-country national “may appeal against the refusal of entry as provided for in national law” Secondly. SIS. or a national database for the purpose of refusal of entry. for example. The refusal grounds are listed in the standard refusal form from A to I. Firstly. the Dutch delegation. 50 51 COM (2005) 391. 19 January 2006.51 According to this report. the fact of carrying a false or falsified visa or residence permits. the lack of valid travel documents.Effective Remedies under EC Immigration Law 291 refused entry at the borders. Furthermore.9. 141814/05. The limitative enumeration of refusal grounds makes it clear to both the border authorities and the third-country national that a refusal at the borders cannot be based on other grounds. the proposed Article 12 (3) provides that legal aid shall be made available to those who lack sufficient resources insofar as such aid is necessary to ensure effective access to justice. Proposal for a Directive on Returning Illegal Staying Third-Country Nationals In September 2005. . 1. The decision on the standard refusal form is important for two reasons. These grounds include. public order and security grounds. as well as registration in the European database. visa or residence permits. Member States should substantiate the refusal decision and indicate references to national legislation with regard to the available remedies. has expressed the view that the Commission proposal grants thirdcountry nationals who are subject to return procedures “excessive rights and guarantees”. 3. the principles as included in this proposal will probably be watered down during the negotiations in the Council legislation process. supported by the delegations of Greece. This gives the person concerned a right to refute the reasons for refusal and subsequently to appeal against this decision. the remedy must either have suspensive effect or include the right of the third-country national to apply for the suspension of enforcement of the return decision or removal order. Italy and Poland. the European Commission published a proposal for a Directive on returning illegally staying third-country nationals. representation and. The report on one of the first discussions of the Council Working Party dealing with this proposal supports this expectation. where necessary. Taking into account the experiences with regard to the adoption of the other instruments described above. according to the refusal form.50 Article 12 of this proposal includes “the right to an effective judicial remedy before a court or tribunal to appeal against or to seek review of a return decision and/or removal order”. In addition. Denmark. According to this proposal. linguistic assistance.9. the proposal includes the right to obtain legal advice.2005. 292 Chapter 9 3. 3. See.10. in some Member States a visa refusal should be in writing. for individuals whose 52 53 54 55 The Common Consular Instructions of 14 December 1993. OJ L 176. Council Decision 1999/435/EC.2.07. Visas 3. The answers from the Member States revealed many differences in the applicable rules. Draft Community Code on Visas In July 2006.10. nor to motivate this decision. The Instructions include procedural provisions with regard to the refusal of a visa application at the consulates or embassies of the Schengen States. p. 10. amended and incorporated into EU law. Schengen Common Consular Instructions The rules to be applied by EU consulates and embassies with regard to visa applications have been laid down in the Schengen Common Consular Instructions for diplomatic missions and consular posts of 14 December 1993. R. In 2002.258.55 Article 23 (3) of the draft proposal includes.52 These instructions. two Member States said they had no procedures at all for appealing against visa refusals.2002 and OJ 2004 L 5/74.1999. for an amended version OJ C 313. The answers to the questionnaire further established that when a visa is refused on the basis of a foreign SIS report based on Article 96 CISA. With regard to the available remedies against visa refusals. including the rules on notification.54 According to these answers. 16. Draft proposal for a Regulation establishing a Community Code on Visas. as amended by a decision of the Executive Committee on 28 April 1999. the European Commission proposed a draft Regulation including a Community Code on Visas which should replace the Schengen Common Consular Instructions. the grounds for visa refusals and legal remedies. Council doc. 8929/02. most of the Member States do not inform the visa applicant as to which Member State reported this person to SIS. . the EU Presidency forwarded a questionnaire to the Member States in order to obtain information on the available visa procedures in the different EU Member States.12. if national law provides for the duty to motivate a visa refusal. Cholewinski (2005).10. Exceptionally.1. COM (2006) 403.53 The object of this questionnaire was to establish whether there was any need for harmonisation in this field. VISA 69 COMIX 319 (21 May 2002). the Instructions require that this refusal refer to the reasons for this refusal as listed in Article 15 in conjunction with 5 of the Convention Implementing the Schengen Agreement (CISA). These provisions do not oblige Member States to provide for remedies against a visa refusal. only became public when they were incorporated into the Schengen acquis. 19 July 2006. See. in other States not and in some Member States no reason is given at all. for the answers. Article 23 (2) of the proposal states that the decision of the visa refusal should state the precise reasons for the refusal. The draft Regulation does not oblige Member States to provide for legal remedies against a decision rejecting a request to extend a visa or a decision annulling or revoking a visa.1. Based on Article 8. The rules on this appeal are.” The jurisprudence of the ECJ on this Directive should be awaited to clarify the relationship between this criterion in the consideration and the less stringent criteria of the text of the Directive. . stating that: “In all events. the person concerned should “have access to judicial and. Article 31 (1) of the new Directive 2004/38 explicitly refers to the possibility of non-judicial remedies.1. administrative redress procedures in the host member state to appeal against or seek review of any decision taken against them on the grounds of public policy. Contrary to the Schengen rules. judicial redress procedures should be available to Union citizens and their family members who have been refused leave to enter or reside in another Member State. the right to appeal. individuals protected by this Directive should also have access to courts. In the absence of judicial proceedings. Criteria for Effective Remedies in EC Immigration Law 4. Articles 8 and 9 of the former Directive 64/221 did not require that individuals who claim that their rights under this Directive have been breached to have access to a judicial court. If these administrative procedures included the access to courts. public security or health”. Member States were obliged to provide the same legal remedies to persons falling within the scope of this Directive as those that are available to their own nationals in respect of administrative decisions.Effective Remedies under EC Immigration Law 293 visa has been refused. where appropriate. however. given using the standard form set forth in the Annex to the proposal. This form should also be used when a visa is refused at the border. recital (26) of this Directive includes a more explicit standard. this Directive had already been adopted in 1964 when administrative courts were absent in most of the Member States.1. still within the competence of the Member States. This means that it allows Member States to provide for appeal to administrative authorities as long this administrative redress procedure meets the criteria of Article 31 (2) to (4). According to this Article. However. The draft further stipulates that the applicants must receive written information about the contact points “able to provide information on representatives competent to act on behalf of the applicants in accordance with national law”. Directive 2004/38 As we have seen above. 4. However. Judicial or Non-Judicial Court? 4. Article 6 of Directive 64/221 obliged Member States to inform the person concerned about the reasons of public order. the ECJ did 56 See Boeles (1997). and Pecastaing. unlike Directive 64/221. it is doubtful whether this implies that Member States are no longer obliged to provide the same legal remedies as those available to their own nationals to those falling within the scope of this Directive. However. This information should include the time limit within which the person concerned should leave the country. 383–384. C-98/79 [1980] ECR 691. . With regard to expulsion decisions only. According to Article 7. C-115 and 116/81 [1982] ECR 1710. the refusal to issue or renew a residence permit or the expulsion decision should be communicated to the person concerned. the EC legislator explicitly granted Member States the choice of providing nonjudicial remedies. Directive 2004/38/EC Compared with the former Directive 64/221. Article 30 of Directive 2004/38 puts more emphasis on procedural guarantees improving the accessibility to legal remedies. p. For example. 4.2. more stringent rules. the implementation of the right to remedies is left to the scrutiny of the national legislator. the national legislators are bound by other. The ECJ made it clear in its case law based on Article 9 that the available legal remedies should at least include two important safeguards: the court or tribunal must be independent and the court or authority should have full competence.294 Chapter 9 we have seen above that Member States should offer the procedural guarantees of Article 9 of the Directive.1. Likewise. it is not clear whether a person should have access to a judicial court. In Chapter 10. Accessibility 4. I will argue that. despite these vague norms. the Directive on long-term residents. security or health underlying the refuted decision. He refers to the judgments in Adoui and Cornuaille. not explicitly based on the principle of non-discrimination compared to nationals of the host Member States concerned.56 The provisions of Articles 30 and 31 of Directive 2004/38 are. the Directive on family reunification and the Directive on temporary protection only refer to the availability of “a right to mount a legal challenge in the Member State concerned”. Such a limited interpretation seems contrary to the inclusion of the non-discrimination principle in preamble 20 of the Directive.1. the Directive on long-term residents explicitly requires the person to be expelled to have the right to judicial redress against this decision. EC Asylum and Immigration Law In the asylum and immigration law instruments adopted under Title IV TEC. According to these texts.2. 4.2. In its jurisprudence. the time allowed for leaving the territory should not be less than one month from the date of notification. With regard to the principle of informed decision-making. it is useful to refer to the decision MRAX v. Apart from “duly substantiated cases of urgency”. the ECJ concluded that these procedural guarantees would be rendered largely ineffective if entitlement to them were excluded in the absence of an identity document or visa or where one of those documents has expired. important developments have taken place in EC law. the persons concerned should be notified in writing of any decision restricting their rights of entry or residence on public policy. the time allowed for the person to leave the territory of the Member State. This requirement has been codified in Article 30 Directive 2004/38. public security or public order grounds. Belgian State [2002] ECR I-6591. this notification should specify the court or administrative authority with which the person concerned may lodge an appeal and. According to the Directive 2003/109 on long-term residents. where applicable. § 13. any decision rejecting an application for a residence permit has to be notified in writing to the third-country national. In the judgment in Adoui and Cornuaille.2. the ECJ established on the basis of Directive 64/221 that the person concerned should be informed of the grounds of public policy. Adoui and Cornuaille. however.2. Based on Article 30 (3). Furthermore. [1982] ECR -1665. Belgium.58 4.57 According to this judgment. the notification should be made in such a way as to enable the person concerned to understand the content and effect of the decision. notification of the grounds must be sufficiently detailed and precise to enable the person to defend his interests. by applying formal requirements. the ECJ did stress the importance of accessible remedies and the duty of Member States not to hamper this accessibility by placing procedural obligations upon the applicant. In this case. . EC Asylum and Immigration Law Accessibility to legal procedures requires that individuals be informed of their rights. This decision should specify the available redress procedures and the time limit for taking action. public security or public health upon which the decision taken in his case is based unless this is in conflict with the security of the state. in which the ECJ ruled that Member States should not impede access to the minimum procedural guarantees as laid down in Article 9 of former Directive 64/221. C-459/99 MRAX v. Finally.Effective Remedies under EC Immigration Law 295 not go into specific requirements regarding the accessibility of legal remedies. The Directive 2003/86 on family reunification also obliges Member States to ensure that negative decisions should be in writing and that these 57 58 C-115/81 and 116/81. According to Article 30 of this Directive. Directive 2004/38/EC Article 31 (3) of Directive 2004/38 explicitly requires that the redress procedures shall allow for an examination of the legality of the decision. his or her age. including the obligation to inform the person concerned of the available remedies. dealing with the expulsion of an EU citizen by another Member State. in its jurisprudence with regard to the Directive 64/221. as well as of the facts and circumstances on which the proposed measure is based. This means that the new Directive explicitly obliges Member States to provide for legal remedies in which courts (or competent authorities) are able to examine the substance of the case and to weigh the different interests at stake with regard to decisions regarding the expulsion of EU citizens and their family members. In particular. for instance. As we have seen above.3. As mentioned above. state of health and his or her social and cultural integration. particularly in view of the requirements laid down in Article 28. As far back as the Santillo case of 22 May 1980. the ECJ held that a national court or authority should take into account the positive developments and elimination of a real threat if. 4. These considerations include. the competent court or authority should be able to assess the substance of the refuted decision by the national authorities. Article 28 (1) of the Directive obliges Member States to take into account different considerations before reaching an expulsion decision. the criterion of social and cultural integration may lead to diverging policies in the individual Member States.1. which should state the procedures for appeal. With regard to EU citizens and their family members. the instruments adopted in the field of asylum law also provide for informed decision-making. with the decision to expel a person. border officials refusing a person entry at the border are obliged to issue a standard refusal form which includes the obligation to inform the person of the available remedies.3. Scope of Review 4. The practical meaning of this provision very much depends on how Member States will apply these criteria. This latter provision deals. as we have seen above. Based on an amendment in 2004 to the Common Manual applicable to border control. between the date of the decision . The procedure should further ensure that the decision is not disproportionate. in order to provide an effective remedy. This means that the new Directive explicitly obliges Member States to provide for legal remedies in which courts (or competent authorities) are able to examine the substance of the case and to weigh the different interests at stake. The Schengen Borders Code of 2006 further requires that entry shall only be refused by a substantiated decision. the ECJ made it clear that.296 Chapter 9 decisions should include the reasons of rejection. how long the EU citizen has resided in the other Member State. In this judgment. Therefore. the ECJ confirmed that a Community national should be entitled to apply. including the expediency of the measure in question. Judgment of 29 April 2004. C-482/01 and C-493/01. the second was a French national. The duty of national courts to assess the compatibility of national measures with EC law was reaffirmed in the Olazabal case. if the courts would not consider facts which occurred after the last government decision to expel the person concerned.60 In this judgment. the ECJ dealt with decisions by the UK authorities by which two EU citizens.Effective Remedies under EC Immigration Law 297 to expel and the date of judicial scrutiny of that decision.61 The first applicant held both Irish and Iranian nationalities. the ECJ considered whether this territorial ban was in breach of EC law laying down the principle of free movement of workers. § 75 and § 82. Radiom and Shingara. According to the Court. Furthermore. para. the measure must be appropriate to secure the achievement of the objective goals which it pursues and must not go beyond what is necessary.59 This requirement was repeated in the Orfanopoulos case of 2004 in which the ECJ emphasised the necessity for substantial scrutiny by the courts during the judicial procedure. In Radiom and Shingara. for this reason. a balance should be struck between the legitimate interests of the authorities and the special legal position of the person concerned taking into account the fundamental character of the free movement of persons. to have his or her situation re-examined if he considers that the circumstances justifying the denial of his entry into the country no longer exist. the ECJ declared that the intervention on the part of the “competent authority” mentioned in Article 9(1) of the former Directive 64/221 must make it possible for an exhaustive examination to be made of all the facts and circumstances. Adoui and Cornuaille. were refused entry on the basis of public order and public security grounds. [1982] ECR 1665. a long period has elapsed. convicted in Bilbao. Furthermore. Judgment of 17 June 1997. the ECJ made clear that it is “for the national courts to determine whether the measures taken in this case do in fact relate to individual conduct which constitutes 59 60 61 62 C-131/79.15. under Articles 8 and 9 of Directive 64/221. C-100/01. see §§ 40–44. before the decision is definitively adopted. The ECJ held that decisions prohibiting EU citizens from one Member State entering another Member State derogate from the fundamental principle of freedom of movement. According to the ECJ. who was suspected of having ties with the Spanish group ETA and. the ECJ held that national procedures would infringe the procedural guarantees of Directive 64/221. See also the associated cases 115/81 and 116/81. . such a decision could not be of unlimited duration. C-65 and C-111/95. 26 November 2002.62 This case concerned the territorial ban affecting a Spanish worker in France. §§ 43–44. In this case. the ECJ developed important criteria for balancing the different interests at stake. national courts have the explicit task of assessing the lawfulness and proportionality of the measures or decisions at stake. and whether they comply with the principle of proportionality”.08. However. EC Asylum and Immigration Law The instruments of asylum and migration law adopted under Title IV TEC do not include an explicit obligation for national courts to assess the substance of the refuted administrative decisions or to balance the interests at stake. In the preambles both to the Directive on family reunification and to the Directive on long-term residents.298 Chapter 9 a genuine and sufficiently serious threat to public order or public security. discussed in Chapter 8. In the judgment European Parliament v. In conclusion. concerning Directive 2003/86 on family reunification. based on the jurisprudence of the ECJ regarding Directive 64/221 and according to the new Directive 2004/38. in the second recital of the preamble to this Directive. the Council. the Council (not yet reported but see information in OJ C 190/1. national courts or authorities should observe the protection of human rights as protected in the ECHR. renewal or withdrawal of residence permits and with regard to decisions to expel a third-country national. When a person asserts his or her right of appeal against any of the decisions referred to above. the ECJ made it clear that Member States are bound to observe the principles as recognised in the EU Charter. 63 Case C-540/03. the Member States acknowledged the obligation to respect fundamental rights as protected in the ECHR and the Charter of Fundamental Rights of the EU when adopting measures on the basis of these directives.63 The ECJ referred in this judgment to the fact that. 4. 12.2006). these instruments do include substantial criteria for the decision-making of national authorities with regard to the issue. the EC legislator itself acknowledged the importance of the Charter. the competent court or authority should assess whether the decision is taken in accordance with the criteria of the instruments in question.3. including the right to family life as protected in Article 7. European Parliament v. §§ 38 and 58. National courts should therefore consider whether measures taken on the basis of these instruments interfere with the human rights of the person concerned. .2. Article 3 (2) of the Directive on mutual recognition of expulsion decisions provides for an explicit obligation to respect human rights and fundamental freedoms. In particular. Furthermore. with regard to the protection of family members of EU citizens residing in or seeking access to a EU Member State. public security or health. in the same judgment the ECJ emphasised that to ensure the effectiveness of their individual rights under the Association Agreement. as well as their admitted family members to take advantage of the guarantees laid down in Articles 8 and 9 of the Directive 64/221. Apart from some exceptions. §§ 67–68. However.1. This means. procedures in which the national decision is reviewed according to the text of these 64 65 Dörr-Ünal.65 4.4. These safeguards include the ability of a national court to grant an interim order to suspend enforcement of that decision. Article 9 of Directive 64/221 provided for additional guarantees in the event that national law does not offer judicial remedies or the legal remedy lacks suspensive effect. it is essential that Turkish workers be granted the same procedural guarantees as those granted by Community law to EU nationals. Competence of Court or Authority 4. §§ 48–57. Dörr-Ünal.64 The ECJ made this conclusion with regard to the claim of the EU citizen in this case. according to the Court. .Effective Remedies under EC Immigration Law 299 4. the relevant decision cannot be taken before the applicant has obtained the opinion of a competent authority. the ECJ ruled that the procedural guarantees set forth in Articles 8 and 9 of this Directive would preclude national law under which appeals brought against a decision to expel have no automatic suspensive effect and where there is no competent authority to review such decisions. According to Article 9 (1). Based on the Dublin II Regulation and the Directive 2005/85 on minimum standards on asylum. In its judgment in the Dörr-Ünal case. In general.4. the person concerned may not be removed from the national territory before the decision on the interim order has been taken. as we have seen above. that Member States must permit those migrant workers. the applicable provisions are rather poorly formulated.4. If they do. most of the instruments discussed above do not include the ability to order the suspension of national decisions or measures. Directive 2004/38/EC Article 31 of the new Directive 2004/38 contains additional procedural safeguards with regard to the right of access to judicial or administrative procedures against any decision taken against them on the grounds of public policy. EC Asylum and Immigration Law The question of whether remedies are practically effective depends on the powers of the national courts to order specific measures or to apply sanctions.2. The EC instruments on asylum and immigration law described above do not explicitly oblige national authorities to comply with the courts’ decisions in individual cases. However. Not only someone’s nationality. This includes the ability for national courts or competent authorities to prevent the execution of measures causing irreparable or irreversible harm to human rights or. This differentiation in available remedies is visualised by the matrix attached at the end of Part II. depends on the applicable law and procedures. Different Regimes? In Community law. (2) accessibility. two important developments are relevant in this field of improving the legal protection of third-country nationals residing within or seeking access to the EU. different legal regimes apply to different categories of persons. . for each instrument in question. despite these vague norms or the lack of suspending procedures in EC law. exclusively in the field of asylum law. health care or education. 5. privileged migrant workers and their family members gained a stronger position compared to non EU citizens. in Bigo & Guild (2005). When examining the available provisions on effective remedies more closely. the right to reside and the access to social welfare. the right to work. (3) scope of review and (4) competence of the courts or independent authorities involved. this differentiation in rights seems to be reflected in the applicable rules on legal remedies in EC immigration law. EU citizens. especially the right included in Article 3 ECHR. The Legal Framework: Who is Entitled to Move?. if necessary. including data protection law. the national procedures should provide essential safeguards for the person involved. or their family members. The matrices show. it follows from the case law described in Chapter 8 that.300 Chapter 9 instruments may have suspensive effect under certain circumstances. Here too. the claim in question and the nationality of the individual concerned. but also his or her legal status of residence determine the right to free movement. The question of whether and when effective remedies are necessary on the basis of EC law. Guild. the insertion of 66 See E. based on Directive 2004/38. A first positive achievement is the explicit inclusion of a right to appeal by the third-country national in the different instruments on immigration and asylum as adopted on the basis of Title IV TEC.66 Considering the instruments described above. which criteria regarding the right to effective remedies apply with regard to (1) the requirement of judicial or nonjudicial remedies. Summary: Different Laws. to order interim or suspensive measures. Although these provisions often lack precise and detailed procedural guarantees. when human rights are at stake. there can be no mistake that these provisions do not offer the same standards as those which apply to nationals of EU Member States. as well as other EC instruments of asylum and immigration law stipulate that national authorities should inform the person concerned in writing. The Schengen Borders Code. I will consider how the lack of specific safeguards in EC immigration and asylum law relates to the general principles of EU law on the right to effective remedies. A second achievement is the obligation of informed decision-making in the different instruments discussed above.Effective Remedies under EC Immigration Law 301 the right to a legal remedy in these different fields of law can no longer be overlooked by the national legislators of the EU Member States. the EC instruments on immigration and asylum law do not provide explicit guarantees with regard to scope of the available remedies and the competences of the courts or independent authorities involved. In conclusion. Some provisions even require that this decision should inform the person of the remedies which are available and of the applicable time limits within which the appeal has to be lodged. In the following Chapter. providing him or her with the reasons for the decision. . Procedural and substantial guarantees for the remedies at stake seem to be left to the scrutiny of the national legislator. . Evelien Brouwer. Introduction In Chapters 6 to 9. Printed in the Netherlands. and the right to such protection is one of the general principles of law stemming from the constitutional traditions common to the Member States. Finally. 303–326. See also P. [2002] ECR I-6677. © 2008 Koninklijke Brill NV. The First Principle: Incorporation of Human Rights in EU Law Initially. In this Chapter I will argue. The founding treaties of this cooperation did not include references to the protection of human rights or the rule of law. that the national legislators are generally obliged to include in their immigration law procedures effective remedies for third-country nationals when implementing EU or EC law. Fair and Effective Immigration Procedures in Europe?. However. Boeles. p. Digital Borders and Real Rights. I will try to convey how this obligation goes beyond the often vague and open norms included in data protection law and the instruments based on Title IV TEC described in Chapter 9. That right has also been enshrined in Articles 6 and 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. 2005. in section 6. pp. . EJML 7. cooperation within the framework of the European Community started as a purely economic matter. § 39. 213–218. I described the legal framework with regard to the availability of and criteria for effective remedies in the field of data protection and immigration law. on the basis of three basic principles of EU law. Unión de Pequeños Agricultores.”1 1. 1 C-50/00. in my view. 2. I will formulate minimum criteria for effective remedies which.Chapter 10 Effective Remedies in the EU: A Matter of Basic Principles “Individuals are […] entitled to effective judicial protection of the rights they derive from the Community legal order. can be derived from the law described in this and the previous Chapters of Part II. Judgment of 14 May 1974. In the Nold II case of 1974. [1970] ECR 1146. See. Nold II. Oxford: Oxford University Press 1999. and Ph. Oxford: Oxford University Press 2003 (fifth edition). Judgment of 12 November 1969. apart from the constitutional traditions of the Member States. the ECJ repeated this general principle in the Internationale Handelsgesellschaft judgment. One year later. as guaranteed by the European Convention for the 2 3 4 5 6 7 T. Internationale Handelsgesellschaft. The EU and Human Rights.304 Chapter 10 based on both the jurisprudence of the ECJ and the amended texts of the EU Treaties. for a detailed analysis of the relationship between the EU and human rights: R. the current Article 6 (2). City of Ulm case in 1969.4 In this judgment. The Hague: Kluwer 1999. C-4/73. Alston (ed. [1974] ECR 507.5 In this judgment. there can no longer be any doubt that the contemporary EU is based on the rule of law and respect for human rights. The foundations of European Community Law. international treaties for the protection of human rights should also be used as guidelines for the interpretation of Community law by the ECJ. The first judgment in which the ECJ explicitly established that the implementation of Community law should respect fundamental human rights was the Stauder v.7 The new Article F (2).1992. Lawson. OJ C 191. C-29/69.). Stauder. . Judgment of 17 December 1970. C-11/70. the ECJ went further by stating that. of this Treaty stated that “The Union shall respect fundamental rights.2 The emphasis on human rights and the rule of law in the judgments of the ECJ is generally seen as an answer to the concerns of Member States with regard to the protection of human rights within the legal order of the Communities. the binding role of human rights as protected in the ECHR and the importance of constitutional traditions in the Member States for EU law were explicitly recognised in the EU Treaty. [1969] ECR 419. Het EVRM en de Europese Gemeenschappen. the ECJ confirmed the applicability of the ECHR within the legal framework of the Communities.7. 61.C.6 With this judgment. Hartley. With the Treaty of Maastricht of 1992. the ECJ explicitly referred to the constitutional traditions of the Member States as the inspiration for the protection of these rights. the ECJ made its famous reference to the meaning of human rights principles for EU law: “Interpreted this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court”. as protected in the European Convention on Human Rights (ECHR). 29.3 Safeguarding human rights and the rule of law is considered a prerequisite for the legitimacy of the European Union and the loyalty of its Member States towards this legal framework. Europese Monografieën no. OJ C 042. Treaty of Nice. C-159/90. the ECJ has dealt on various occasions with the human rights protected in the ECHR. for example. Grogan. In different judgments. In these judgments. ERT. OJ C 340. For example. Cases C-101/01.1993.10 In its case law. democracy. the Grogan case of 4 October 1991 and ERT of 18 June 1991.11. Cases C-46/87 and C-227/88. the ECJ emphasised the importance of protection of the fundamental right to privacy as protected in Article 8 ECHR.1997. and the rule of law” are the founding principles for the Union and are principles which are common to the Member States. the ECJ applied Article 8 ECHR to underline the obligation for national authorities to take into account the right to family life and to respect the principle of proportionality.9 Finally. in both the Lindqvist and Österreichischer Rundfunk judgments. Akrich. 15. C-482/01 and C-493/01 (joined cases) [2004] ECR I-5257. OJ C 80. [2002] ECR I-6279. the ECJ affirmed that this fundamental right formed the basis for data protection rules included in the EC Directive 95/46 on the protection of personal data.3. with the adoption of the EU Charter of Fundamental Rights in 2000.11 As we have seen in Chapter 7. 10. [2003] ECR I-9607 and Orfanopoulos. as general principles of Community law. the ECJ applied the right to family life as an important factor in assessing the lawfulness of the refuted decisions.Effective Remedies in the EU: A Matter of Basic Principles 305 Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States. a new Article 6 (1) was added to the EU Treaty which stated that. [1989] ECR 2859. [1991] ECR I-2925. [2003] ECR I-4989. the right to freedom of information played a role in the judgments in Hoechst of 21 September 1989. the European Council not only confirmed the importance of the ECHR for the legal framework of the EU. Lindqvist. SN 180/1/93 Rev. [2003] ECR I-12971 and C-456/00. [1991] ECR I-4685 and C-260/89.12 With regard to immigration law procedures and the protection of freedom of movement. “liberty. in which the ECJ explicitly refers to preamble 2 to this Directive. Carpenter. 1. See also the judgment European Parliament v.2001. . respect for human rights and fundamental freedoms.8 With the Amsterdam Treaty of 1997 entering into force on 1 May 1999. Österreichischer Rundfunk. Hoechst. C-540/03 [2006] ECR I-5769. 10.” The inclusion of the rule of law and human rights as one of the requirements of EU membership in the so-called Copenhagen criteria confirmed its importance as a founding principle for the legal order of the EU. but it also developed its own set of human rights.13 8 9 10 11 12 13 European Council 21–22 June 1993.2. Council. See. § 18. in order to safeguard the rights protected by Community law or EU law. Johnston claimed that the decision violated her rights under EC Directive 76/207 regarding the equal treatment of men and women in employment relations. The Second Principle: Effective Remedies to Secure Rights Conferred by EU Law 3. See also C-294/83. This is to be distinguished from the principle discussed in the previous section.” Johnston. which is also laid down in Articles 6 and 13 of the ECHR. which refers to the binding role of 14 15 16 17 C-222/84 Johnston [1986] ECR 1651.17 It should be emphasised that.16 With regard to this case. Of general importance is the conclusion in this judgment that. Mrs. Les Verts v. forwarded by the national court to the ECJ. § 23. this right means that Member States should take measures which are “sufficiently effective to achieve the aim of this directive and that the rights thus conferred may be effectively relied upon before the national courts by the person concerned”.1. [1986] ECR 1339. The Johnston Principle The second principle refers to the general principle of EU law that.15 According to the ECJ. concerned the scope of the judicial remedies provided for in Article 6 of this Directive 76/207. § 18. individuals should be able to invoke these rights before national courts and authorities. .14 This case dealt with a challenge by a female police officer against the decision of the Northern Ireland police force not to renew her employment contract. Johnston. the ECJ concluded that the applicable national procedure prevented Mrs. “Community law requires effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law”. The ECJ formulated this principle explicitly in the Johnston judgment of 1986. Article 6 reads: “Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3. this reflects a general principle of law underlying the constitutional traditions common to the Member States. Johnston from challenging the refuted decision and therefore did not meet the criteria of Article 6 of this Directive. According to the ECJ. European Parliament. in this judgment. 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities. § 17.306 Chapter 10 3. The preliminary question. the ECJ refers to Articles 6 and 13 ECHR to support the general principle of providing effective remedies to protect Community rights. This decision was based on a temporary policy excluding women from certain operations requiring police officers to carry firearms. Issues of Harmonisation and Differentiation. National Remedies Before the Court of Justice. Unectef v. Recalling its earlier conclusion in the Johnston case that this requirement reflects a general principle of Community law. the ECJ confirmed that this would be a fundamental right which the Treaty conferred individually on each migrant worker in the Community. within the legal system of the EU and its Member States. This case concerned the Dutch immigration law system in which the granting of a residence permit is made dependent on a long-term visa to be obtained before the person concerned enters the Dutch territory (known as the ‘mvv-vereiste’). C-222/86. In its Heylens judgment. [1987] ECR 4097. 11. including Articles 6 and 13.20 3.19 This latter requirement is repeated in later judgments. See §§ 14 to 17. See M. the ECJ also confirmed the obligation for national authorities to state the reasons for national decisions affecting the fundamental rights of individuals conferred by the EC Treaty. In the Heylens judgment. Panayotova. “the existence of a remedy of a judicial nature against any decision of a national authority refusing the benefit of the right to free access to employment is essential in order to secure for the individual effective protection for his right”. [1997] ECR I-3395. the ECJ made it clear that the general principle of effective remedies in relation to Community rights also applies to immigration law procedures. However. § 19. who were Bulgarian nationals. p. Referring to its 18 19 20 21 Judgment of 15 October 1987. Applying the Johnston Principle to EC Immigration Law: The Panayotova Case In the Panayotova judgment of 16 November 2004. enjoying special protection under the Association Agreement between the EC and Bulgaria of 1994. this would depend on whether “the procedural rules governing the issuing of such a temporary residence permit” would not make the exercise of the rights conferred by the Association Agreements impossible or excessively difficult. The ECJ concluded that in principle the Association Agreements (including the Agreements with Poland and Slovakia) did not preclude a system of prior control on the issue of a residence permit. . Sodemare. Oxford and Portland. C-327/02. Dougan. C-70/95.Effective Remedies in the EU: A Matter of Basic Principles 307 the ECHR. Heylens.21 The question arose of whether this Dutch requirement could be invoked against the applicants. the ECJ applied the principle of effective remedies directly to the right to freedom of movement of workers. Oregon: Hart Publishing 2004. According to the ECJ.18 The Heylens case concerned the refusal of the French authorities to recognise the foreign diploma of a Belgian football trainer.2. which prevented him from working for a French football club. including the rights of the ECHR. defended and represented. . Everyone shall have the ability of being advised.23 The ECJ extended the scope of this general right to individuals who claim to have rights under EC law. the ECJ added the more general consideration that. for a general right to effective judicial remedies.3.24 This Charter provides. which incorporates the jurisprudence of the ECJ described above. “Community law requires effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law”. Article 47 is important because it combines the criteria of Article 6 and Article 13 ECHR. As we have seen in the previous Chapter. Article 47 of the EU Charter In 2000. 16. 3. Member States are obliged to grant Turkish migrant workers the same procedural guarantees as those granted to EU citizens by the former Directive 64/221. the ECJ derived the right to legal remedies from the principle of freedom of movement and the principle of equality. and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings. Legal aid shall be made available to those who lack sufficient resources insofar as such is necessary to ensure effective access to justice. in Article 47. Article 47 states: 1. 2. the ECJ further stated that the scheme applicable to such long-term visas must be based on “a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within reasonable time. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. On the basis of these principles.12. described in Chapter 9. in its earlier judgments in the Dörr-Ünal and Cetinkaya cases. in the Maaouia judgment 22 23 24 Panayotova § 27. the European Council adopted the EU Charter of Fundamental Rights. The importance of the Panayotova case lies in the fact that in this judgment the right to accessible and effective remedies is directly based on the constitutional principles of EU law. Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. 3. OJ C 310. Compare §§ 64–65 of the Dörr-Ünal judgment and § 27 of the Panayotova case.” It is important to stress that.22 In this Panayotova judgment.308 Chapter 10 earlier ruling in the Johnston case.2004. p. Immigration. see also C-459/99. Peers. Aside from the references to this Charter made in the literature and by the Advocate General in opinions before 25 26 27 C-294/83. The inclusion of the right to effective remedies as a human right is important because it includes the right of possible advice. when this is necessary “to ensure effective access to justice”. MRAX v. 2001. Les Verts.25 Furthermore. [2002] ECR I-6591 and C-50/00. the content of Article 47 was based on the jurisprudence of the ECJ and can therefore already be regarded as codification of existing EU law. defence or representation for the person concerned. In the first place. the EU Member States will amend the text of the Charter that had already been adopted several years before the adoption of the Constitutional Treaty. the future of this Constitutional Treaty has become uncertain.Effective Remedies in the EU: A Matter of Basic Principles 309 of 2001 the ECtHR explicitly refused to apply Article 6 ECHR to immigration law procedures. Since the negative results of the referenda in France and the Netherlands in 2005. Belgium. Unión de Pequeños Agricultores. As we have seen above. namely that the implementation of the right to effective remedies should be in accordance with the criteria developed by the ECtHR on Article 13 ECHR. The explanatory memorandum to Article 47 now states that. This wide interpretation is justified by the consequence “that the Community is a community based on the rule of law as stated by the ECJ in Les Verts v.26 Article 47 thus not only broadens the scope of applicability of Article 6 ECHR within the scope of the TEC. it is not expected that. the EU Charter has already achieved a certain status within EU law regardless of whether or not it will be inserted in the Constitutional Treaty. the explanatory memorandum confirms what was concluded in earlier judgments of the ECJ. when redrafting the Constitutional Treaty. the right to a fair hearing is not confined to disputes relating to civil law rights and obligations. As in the abovementioned Johnston case C-222/84. . on the basis of Article 47 (3). [2002] ECR I-6677. Secondly. but also incorporates the more explicit criteria of Article 13 ECHR. since it is not restricted to civil and criminal law cases. European Parliament in 1986”. 141–169.27 This means that the criteria developed by the Strasbourg Court on the basis of Article 13 apply equally to national procedures in which national authorities have applied or should have applied community law. The EU Charter on Fundamental Rights was meant to achieve direct legal effect within the EU Member States with the entry into force of the EU Constitutional Treaty. Furthermore. in Community law. [1986] ECR 1339. legal aid should be made available to those who lack sufficient resources. this uncertainty about the Constitutional Treaty is unlikely to affect the meaning of the Charter or its Article 47. However. Asylum and the European Union Charter of Fundamental Rights. EJML 3. S. C-176/03.4. § 68. § 42 and of AG Ruiz-Jarabo Comer. the ECJ ruled that Member States are bound to observe the principles which are recognised in the EU Charter. the Council. in § 37.310 Chapter 10 the ECJ28. will amend the current EC and EU Treaties. Unibet. 11177/07. See for the text of the Presidency conclusions of 21/22 June 2007. C-540/03. Amendment 45 in the Report Kreissl-Dörfler. the Council dealing with the Family Reunification Directive 2003/86. . In this judgment.33 This Treaty. The mere availability of legal remedies will not be sufficient to meet 28 29 30 31 32 33 See the opinion of AG Kokott in C-503/03. the Charter is quoted in judgments of the Court of First Instance (CFI) and the ECJ. In its conclusions. this Court not only referred to the earlier jurisprudence of the ECJ with regard to the right to effective remedy as a general principle of Community law. 3. European Parliament v. § 209 [2003] ECR II-2957.29 In the judgments of the CFI. T-177/01. P&O European Ferries v. 23 June 2007. 29 June 2005. where the EC legislator itself acknowledged the importance of the EU Charter of Fundamental Rights. and C-432/05. this Directive 2005/85 was adopted in December 2005.31 The ECJ explicitly referred to the second recital of the preamble to the Family Reunification Directive. Spain. ECR II-2365 and T-116/01. the LIBE Committee of the European Parliament referred to Article 47 of the EU Charter to support its proposal to include the suspensive effect of the proceedings in the draft Directive on minimum standards in asylum procedures. [2002] §§ 41 and 42. C-540/03 § 38. In June 2005. the EU head of states finally decided at their summit of June 2007 that the Constitutional Treaty would be replaced by a “Reform Treaty”. European Commission. dealt with below. European Parliament v. Jégo-Quéré. the Council. See for references by the ECJ: C-540/03. §§ 38 and 58 [2006] ECR I-5769. Relationship Between the General Principle and Secondary EC Legislation The principle that the enjoyment of Community rights requires Member States to provide for effective judicial scrutiny of decisions affecting those rights is important for the assessment of the national implementation of the EC immigration and asylum law. including the right to family life of Article 7. As we saw in Chapter 9. Commission v. the ECJ also emphasised that the Charter is to be regarded as the codification of general principles of EU law and the constitutional traditions of the Member States. A6-0222/2005.30 In its judgment European Parliament v. the European Council decided that Article 1 of the EU Treaty will contain a cross reference to the Charter on Fundamental Rights giving it legal binding value and setting out the scope of its application.32 After lengthy debates to overcome the institutional impasse of the EU caused by the outcome of the referenda in France and the Netherlands. but also to Article 47 of the EU Charter. to be adopted at the end of 2007. At this point it also important to refer to the judgment in the case Köbler v. Preliminary Proceedings: The Responsibility of National Judges and Legislators On the basis of Article 234 TEC. national courts did not have the power to grant interim relief. This case concerned the interpretation of Article 243 of the Community Customs Code (Regulation 2913/92). The Third Principle: Effective Judicial Remedies to Ensure a Uniform and Clear Interpretation of EC Law 4. [2003] ECR I-10239. the ECJ declared that it is up to the legal system of each Member State to designate the court competent to determine disputes relating to that reparation. According to the ECJ. National courts 34 35 36 C-226/99.Effective Remedies in the EU: A Matter of Basic Principles 311 the criteria set by the ECJ and included in Article 47 of the EU draft Constitution. in which the ECJ confirmed that Member States are obliged “to make good damage caused to individuals by infringements of Community law for which they are responsible”. Köbler. The ECJ concluded that these weaker provisions in the EC Customs Code should be interpreted in accordance with the more general principle of legal protection. .1.34 This provision conferred the power to suspend implementation of contested decisions made by national customs authorities exclusively upon the national customs authorities. In its judgment. The general principle of and criteria for effective remedies will overrule the provisions in specific EC instruments if these latter instruments offer less protection to the individual concerned. this principle also applies “where the alleged infringement stems from a decision of a court adjudicating at last instance where the rule of Community law infringed is intended to confer rights on individuals. Austria. the ECJ has jurisdiction to give a preliminary ruling on the interpretation of the Treaty and on the validity and interpretation of Community acts. C-224/01. see §§ 17–19. the ECJ explicitly stated that the provision in the Community Code “cannot limit the right to effective judicial protection”.35 According to the ECJ. a court asked to decide on a dispute governed by Community law must be in a position to grant interim relief in order to ensure the full effectiveness of the judgment to be passed on the existence of the rights claimed under Community law.36 In this judgment. C-224/01 § 59. [2001] ECR I-0277.. National courts may ask the ECJ to give such a preliminary ruling if they consider this necessary for their own judgments. the breach is sufficiently serious and there is a direct causal link between that breach and the loss or damage sustained by the injured parties”. 4. This was clarified by the ECJ in the Siples judgment of 2001. Siples Srl. Member States should take all appropriate measures to ensure fulfilment of the obligations arising from the Treaty or resulting from action taken by the institutions of the Community and to facilitate the achievement of the Community’s tasks. this issue is to be forwarded to the Community Court. This obligation upon both national courts and authorities to ensure that this system of legal remedies described by the ECJ works can also be based on the principle of cooperation provided for in Article 10 TEC (formerly Article 5). On the other hand. The Principle of Effective Protection of Community Law Rights. §19. Article 68 (1) TEC. this system requires the ECJ to analyse the legal problems under Community law submitted by national courts and to provide a generally applicable interpretation. [1990] ECR I-2433. For national courts.39 According to Article 10 TEC. in: David O’Keeffe. Unión de Pequeños Agricultores. 235. it places an obligation on national courts to ensure that when an issue of Community law is at stake and needs to be clarified. the ECJ reasoned that the Treaty has established a “complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions and has entrusted such review to the Community Courts”.312 Chapter 10 against whose decisions no judicial remedy is possible.37 The legal system as envisaged in Article 234 also implies the duty of Member States to establish a system of legal remedies and procedures which ensures respect for the right to effective judicial protection. Factortame and Others. On the one hand. C-213/89. In the judgment in Unión de Pequeños Agricultores (25 July 2002). based on Article 234 (2). p. 37 38 39 John Temple Lang. always forward a preliminary request to the ECJ if such a question is raised. C-50/00. should in this case. the ECJ explicitly ruled that the communitarian system of judicial review. . This system of preliminary references guarantees a clear and coherent interpretation of Community law. requires Member States to provide for legal remedies and procedures. [2002] ECR I-6677. in which national courts can or should refer a preliminary question to the ECJ regarding the validity of acts of the institutions. this ‘principle of effectiveness’ means a duty to ensure full application and uniform interpretation of Community law and to eliminate the unlawful consequences of a breach of Community law either directly or by ensuring effective compensation for the damage resulting from it. Judicial Review in European Union Law. The Hague: Kluwer Law International 2000. provides that a court against whose decision no judicial remedy is possible is obliged to forward a preliminary question to the ECJ when it considers this necessary for the judicial sentence in the case concerned. and Article 177 (now Article 234 TEC) on the other hand.38 Referring to the provisions in Article 173 (now Article 230 TEC) and Article 184 (now Article 241 EC) on the one hand. which applies to the instruments adopted under Title IV TEC. This obligation upon Member States to provide effective remedies to safeguard the mechanism of preliminary references has been explicitly acknowledged in the recitals of the Directive 2005/85 on minimum standards on asylum procedures.41 These factors provide a minimum set of criteria for what the ECJ considers an authority or body which is able to offer the effective judicial review as required in the EU legal system described above. .2. and C-407/98. Abrahamsson.Effective Remedies in the EU: A Matter of Basic Principles 313 The judgment in Unión de Pequeños Agricultores has led to the proposal of a new provision in Article I-29 of the draft Constitutional Treaty on the tasks and organisation of the Court of Justice. C-54/96. is important because it links the competence of national courts to forward preliminary questions to the ECJ with the obligation of Member States to provide judicial remedies. also with regard to the examination of the relevant facts. if inserted in the new Reform Treaty. 40 41 OJ L 326/13. Since this principle of effective judicial remedies codifies an essential element of the EU legal system confirmed in the case law of the ECJ.40 Recital 27 of the Directive states: “It reflects a basic principle of Community law that the decisions taken on an application for asylum and on the withdrawal of refugee status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. 4.2005. Whereas the first sentence of Article I-29 (1) describes the general task of the ECJ to “ensure that in the interpretation and the application of the Constitution the law is observed”. [2000] ECR I-5539. See. This provision. the second sentence requires Member States to provide “rights of appeal sufficient to ensure effective legal protection in the field of Union law”. the ECJ applied a number of factors in assessing whether the national authority had to be considered a ‘court or tribunal’ within the meaning of Article 234 (formerly 177 TEC). Criteria of National Courts Which Fall within the Meaning of Article 234 TEC In a series of judgments in which it had to deal with the question of the admissibility of a preliminary request from a national authority.” The reasoning of this recital is not limited to asylum procedures. – the independence of the authority or body. [2000] ECR I-10497. [1997] ECR I-4961. These factors include: – the authority or body should be established by law. 13. The effectiveness of the remedy. Dorsch Consult. depends on the administrative and judicial system of each Member State as a whole. it also applies to procedures concerning the rights and obligations in other instruments adopted under Title IV TEC. for example. C-195/98. Österreichischer Gewerkschaftbund.12. and the application of the rule of law. the legality of which is contested.”45 In my view. C-424/99. Effective Remedies. 9 January 2007. where the refuted decision by the Austrian authorities was only reviewed by an independent advisory board of experts. the Schengen Information System and other EU databases such as VIS and Eurodac? Which principles and criteria apply with regard to the rights of third-country 42 43 44 45 C-1/05. Opinion of 27 April 2006. the above criteria for “court or tribunals” within the meaning of Article 234 TEC must be applied with regard to the question of whether an individual has access to “effective remedies”. annotation P. Zuckerfabrik.314 – – – – Chapter 10 the permanence of the authority or body. the ECJ has held that national courts should be able to suspend the refuted national measure when the legality of this measure is challenged through preliminary proceedings: “The coherence of the system of interim legal protection requires that national courts should also be able to order suspension of enforcement of a national administrative measure based on a Community Regulation. Published in Jurisprudentie Vreemdelingenrecht 2007/31. in Commission v. Austria. . the ECJ dealt with the preliminary request from the Swedish immigration board.1. § 25. referring to this authority as “referring court”. 5. [1991] ECR I-415. in the case of Jia v. 321. For example.42 In his opinion to this case. The reference to “court or tribunal” in Article 234 TEC does not imply that only judicial courts meet the aforementioned criteria. compulsory jurisdiction. the ECJ concluded that the criteria of Article 234 were not met because this board lacked true decision-making powers. Databases and Third-Country Nationals What is the practical meaning of the aforementioned principles for our subject. Towards Minimum Standards for Effective Remedies 5.43 On the other hand. Migrationsverket. hearing appeals from decisions taken by the Swedish immigration board (Migrationsverket). [2001] ECR I-9285. C-143/88. Advocate General Geelhoed explicitly affirmed the competence to refer preliminary questions from the Swedish Utlänningsnämnden on the basis of the consideration that this is an administrative body with quasijudicial powers.44 In various judgments. See also Dougan (2004) p. adversarial proceedings (inter partes). Boeles. but must be implemented in accordance with the general principles of EU law. on the one hand. Thirdly. As we have seen above. the applicable rules of data protection law and the EC immigration and asylum law instruments provide rather ‘open’ norms with regard to the right to legal remedies. with the need for effective judicial procedures in order to enable both national courts and the ECJ to guarantee a coherent and clear interpretation of Community law. The first of these principles is based on the incorporation of human rights and. I tried to establish that such norms should not be considered an empty box. the ECJ explicitly linked the right to judicial protection to the principle that individuals should be able to enforce their rights of Community law. we have seen that in its case law. Data protection law decisions deal with the collection. impartiality and a proper procedure. National legislators should take these criteria into account. the ECHR within the legal framework of the EU. or deletion.2. The criteria developed on the basis of these general principles go much further than the rules adopted in the different instruments at stake. The standards developed by the ECtHR on the right to effective legal remedies. including the system of preliminary references. the ECtHR ruled that judicial review affords the best guarantees of independence. I recall the different decisions at stake. in particular. which have been incorporated in Article 47 of the draft Constitutional Treaty. Criteria for Effective Remedies 5. Immigration law decisions include. including the right “to mount a legal challenge” or “the right to bring an action before court or authority”. looking at the jurisprudence more generally. storage and processing of data. Judicial or Non-Judicial Authority? In its case law with regard to Article 8 ECHR. they include decisions based on these registrations such as the refusal of entry on the basis of a SIS alert. the right to private life. correction. for example decisions to declare a person ‘inadmissible’ or expulsion decisions. immigration law decisions which result in reporting a third-country national in a database. the ECJ associated the legal system of the Community. To recall the conclusion of the ECJ in the Panayotova case. However. Secondly.2.Effective Remedies in the EU: A Matter of Basic Principles 315 nationals registered in these databases and against whom decisions or measures are taken on the basis of the stored information? To answer these questions. not the vague wordings in the Title IV instruments. the ECtHR has held that an independent countervailing mechanism other than .1. 5. apply to the implementation of EC immigration and asylum law whenever human rights are at stake. In this Chapter. when implementing EC law or adopting new measures. I have made a distinction between so-called ‘data protection law decisions’ and ‘immigration law decisions’. For this purpose. On the other hand. or the refusal of the right of access. Member States should therefore provide for “effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law”. impartial tribunal previously established by law. defended and represented. b. one could formulate the following four criteria: a. ability to be advised.316 Chapter 10 a judicial court is acceptable. Aside from the criteria described in the next sections. the ECtHR even concluded that the judicial court in question did not provide an effective remedy because it was not able to assess the full content of the decision or the national authorities were not obliged to await its decision before executing a deportation order. persons must not be informed of surveillance measures. the person concerned should be informed of his or her rights to lodge an appeal. What matters is that both the ECtHR and the ECJ require legal remedies whose scope and effects are equal to the protection of judicial remedies. In the field of data protection law. These rights. Considering the general principles of EU law dealt with above. c. In some cases. b. Therefore. so as to enable him to seek effective remedies before the courts. Only once the use of secret surveillance measures is suspended should the authorities notify the person concerned. under specific circumstances. established by law. In addition. may however be limited on different grounds. fair and public hearing. included in EC Directive 95/46. . Accessibility The jurisprudence of both the ECtHR and the ECJ is clear with regard to the criterion of the accessibility of legal remedies. as long as these institutions offer effective and adequate remedies for the person concerned. correction or deletion of his or her data. the following minimum standards confirmed in the case law of the ECJ with regard to Article 234 TEC apply: a. 5. with regard to the protection of the right to private life. included in Article 8 ECHR. legal remedies should be available within a reasonable time. permanent institution.2. c. the ECtHR accepted that. including legal aid for those who otherwise would have no sufficient means of finding access to legal remedies. written and informed decision-making including information on the reasons for the decision. the distinction between judicial and non-judicial remedies does not really seem to be the issue. d. d. If a national decision or measure interferes or is at risk of interfering with the rights protected in the ECHR or in the EU immigration and asylum law. the general standard is that the data subject should be informed of the fact and purpose of data processing and that he or she also has the right to apply for access. the authority which issued the decision and on the available remedies and the time limits to be applied.2. independent from the national authority taking the decision or measure. 4.2. the national court or authority has a tool for assessing the lawfulness and proportionality of the refuted measure. Spain by the ECJ (C-503/03). Scope of Review National courts or independent authorities should be able to make a substantial review of both legal and factual issues. balance the individual rights against a pressing social need. assess the legitimacy or lawfulness of the measures concerned. In data protection law. Both EU law and the human rights protected in the ECHR give national courts substantial criteria for assessing the lawfulness of administrative decisions.Effective Remedies in the EU: A Matter of Basic Principles 317 These criteria should be seen against the background of the important consideration of the ECJ in the Panayotova case. this concerns the question of whether the administrative authorities acted in conformity with the following principles: the purpose limitation principle. national decisions on expulsion. With regard to the scope of EC immigration law. . national courts or tribunals should 46 Compare the proportionality test as used in the Berrehab judgment of the ECtHR. etc.3. for how long the data will be processed and which authorities may have access to the information. according to which Member States must not establish procedural thresholds impeding the accessibility of effective remedies. c. However. assess the necessity and proportionality of these measures. the purpose of data processing.46 To summarise. Based on these rules. the applicable time limits. In both EU law and with regard to the human rights in the ECHR. b. or the Directives on long-term residents and family reunification. Competences Effective remedies include the power of the courts to prevent execution of measures that are contrary to the ECHR. the right to free movement in Directive 2004/38. the limitation of use and disclosure of information. the principle of proportionality plays an important role. no. balance the competing individual rights. 10730/84) and in Commission v. 5. When implementing immigration law. for example.2. these principles do not seem to include substantial norms. which are to be defined in advance. the Title IV instruments described above include specific rights for third-country nationals. they oblige the data processing authority to satisfy these norms. Therefore. detention or refusal of entry should be in conformity with the obligations regarding human rights in the ECHR and the right to effective remedies in EU law. for example. d. 5. this principle of a substantial review requires that the competent court or other national body should be able to: a. At first sight. (appl. As we saw in Chapter 9. Another important factor in “effective remedies” is that the national court or tribunal is capable of providing redress in respect of the applicant’s complaints. c. the court or authority should have at least the following powers: a. National courts or (data protection) authorities should also be able to order administrative authorities to grant an applicant access to his or her data. b. Some instruments even explicitly rule that a legal remedy does not suspend the refuted decision. to issue binding decisions.318 Chapter 10 have the power to suspend expulsion decisions. This includes the power of national courts to order financial compensation for costs and damages. many migration instruments based on Title IV TEC do not provide for the suspensive effect of the legal procedure. courts or authorities should have the power to order the blocking of data processing or the destruction. or rectification of the information kept in the files. . In the field of data protection law. In summary. erasure. to order (financial) reparation of harm or damage. to grant interim relief from or suspensive effect of a legal procedure. These rules should be read and applied in conformity with the criteria based on the general principles of EU law. refusal to renew or withdrawal of residence permit suspensive effect of remedies against expulsion decisions proportionality and necessity of decision. Heylens. Olazabal. renewal. 2004/38 Sources Differentiation by categories of persons right to mount a legal challenge against decisions of refusal long term residence status. facts and circumstances decision is based Scope of review written notification of any decision restricting rights of entry or residence Accessibility of remedies Criteria for effective remedies in immigration and data protection law procedures Annex to Part II Effective Remedies in the EU: A Matter of Basic Principles 319 . and 20 Directive 2003/109 Jurisprudence ECJ: Johnston. Panayotova. or withdrawal judicial. Dörr-Ünal Article 30 and 31 Directive. RadiomShingara Carpenter. MRAX. particularly in view of expulsion decisions duty to communicate reasons of decisions formal requirements should not impede accessibility of remedies interim order to suspend enforcement decision Competences of court or tribunal legality of decision. 12.‘quasi judicial’ Judicial/ non judicial remedies with regard to expulsion decisions motivated decision specifying possible redress procedures and time limit for taking action respect for human rights compliance with criteria Directive 2003/109 no suspensive effect against decision of refusal.third-country national with long term residence third-country national migrant workers within scope of association agreements third-country national family members of EU citizens EU citizens Articles 10. right of appeal or review only if provided for in national law. information how to challenge decision motivated decision written decision including reasons of rejection right to legal aid on same terms as nationals of Member state in which they reside judicial redress procedure against decisions of expulsion Article 18 Directive 2003/86 Accessibility of remedies Judicial/ non judicial remedies third-country national with a right to family reunification Sources Differentiation by categories of persons (cont. no provision on suspensive effect suspensive effect of remedy against expulsion order Competences of court or tribunal 320 Chapter 10 . non refoulement and non discrimination principle compliance with criteria Directive 343/2003 respect for human rights compliance with criteria Directive 2003/86 Scope of review suspensive effect of appeal under certain circumstances review or appeal will suspend transfer of asylum seeker only of national law provides so. effective remedy before a court or tribunal Article 19 Regulation 343/2003 (Dublin II) Article 39 Directive minimum standards on asylum procedure 2005/85 asylum seekers right to mount a legal challenge against rejection of application for family reunification informed decision. if necessary translation.) respect for human rights and in particular principles recognized in EU Charter. Article 13 Regulation 562/2006 (Schengen Borders Code) Article 4 Directive 2001/40 on mutual recognition of expulsion decisions third-country national at the borders third-country national to be expelled based on decision of another EU Member State Sources Differentiation by categories of persons (cont. 20) Scope of review no suspensive effect no suspensive effect of appeal against refusal at the border Competences of court or tribunal Effective Remedies in the EU: A Matter of Basic Principles 321 . correct application of the national law issuing state respect for human rights respect for human rights and in particular those of EU Charter (Preamble no.) person “may bring proceedings against measures” according to national law “right to appeal” Judicial/ non judicial remedies no provision standard refusal form including reasons for decision and available remedies Accessibility of remedies legality and validity of foreign expulsion decisions. rights and freedoms guaranteed by EU law Differentiation by rights Jurisprudence ECJ: Les Verts v. legality acts of institutions Scope of review order governments “to make good damage caused by infringements of Community law for which they are responsible” appropriate sanctions and remedies for violations of domestic data protection law “grant interim relief in order to ensure full effectiveness of judgment” Competences of court or tribunal 322 Chapter 10 . Article 47 EU Charter. European Parliament Köbler. defended and represented within reasonable time Accessibility of remedies Community EU law rights. permanent institution Judicial/ non judicial remedies legal aid for those who lack sufficient resources ability of being advised. fundamental human rights. Siples Srl. Article 234 TEC Sources independent and impartial tribunal. ) emphasis on ‘independence’ judicial remedies. erasure or destruction data. right of access to personal data accountability data owner for unlawful data processing courts have to ascertain whether interference meets requirement of foreseeability and necessary to protect legitimate aims compliance with rules of Article 8 of the Charter right to be informed right of access to personal data purpose specification data processing. temporary ban ensure compliance with rules of Article 8 Charter Competences of court or tribunal Effective Remedies in the EU: A Matter of Basic Principles 323 . rights of access to data legitimacy of registration procedural guarantees Scope of review principle of transparency and purpose specification Accessibility of remedies data protection authorities: order blocking. national data protection authorities. independent supervisory mechanism Judicial/ non judicial remedies duty to inform data subject. and supranational data protection authority (EDPS) control by an independent authority remedies according to national law.data protection rights Jurisprudence ECJ: Österreichischer Rundfunk case Article 22 EC Directive 95/46 Article 8 EU Charter on Fundamental Rights Article 8 Data Protection Convention 1981 Sources Differentiation by rights (cont. 6 ECHR Sources Differentiation by rights (cont.Kruslin Articles 8.) non judicial remedies accepted if “sufficient safeguard against abuse” or “independent controlling mechanism by which conflicting interests at stake could be balanced” independent and impartial tribunal (judicial court) “judicial control affords best guarantees of independence.right to private life. Gaskin. Huvig. Ahmut. Leander. Sen. impartiality and a proper procedure” Judicial/ non judicial remedies notification of secret surveillance measures once these measures have been suspended access within reasonable time access to legal aid and assistance of a lawyer if indispensable for effective access to court general criteria of quality of law: foreseeability and clarity with regard to scope and manner of exercise of competences and powers of authorities Accessibility of remedies balance of different interests at stake necessity and proportionality of measures at stake Scope of review compensation of non-pecuniary damages and costs financial repair for damages caused by use of information adequate and effective remedies appropriate relief Competences of court or tribunal 324 Chapter 10 . including protection of personal infomation and protection of family life Abdulaziz. 13. Jurisprudence ECtHR: Klass. assessing risk at stake. Buzescu. 13 ECHR right of protection against refoulement and torture Jurisprudence ECtHR: Chahal. Chevrol Article 6 (1) ECHR procedural rights detainees civil rights Sources Differentiation by rights (cont.Articles 3. credibility of governmental motive of national security lawfulness of detention protection against arbitrariness of detention “all aspects of the matter” “factual and legal issues relevant to the determination of the dispute” Scope of review power to prevent execution of measures causing irreparable harm powers to order interim orders or suspensive measures power to order release if detention is unlawful financial repair Competences of court or tribunal Effective Remedies in the EU: A Matter of Basic Principles 325 . Al-Nashif Vilvarajah Article 5 (1) and (4) ECHR Jurisprudence ECtHR: Čonka Chahal Jurisprudence ECtHR: Rotaru.) independent authority access to courts Judicial/ non judicial remedies “speedily access” clear written information on available remedies in language understandable to applicants disclosure of reasons Accessibility of remedies substance of Convention rights. . Part III Implementation at the National Level . . . Digital Borders and Real Rights. following a French request. French politicians and public officials were not really aware of the practical implications of the Schengen cooperation.J. French policymakers also criticised the potentially negative effects of lifting internal border controls with regard to the more liberal Dutch approach on soft drugs. on peut aussi penser à l’étendre par la suite à d’autres. in particular. Initially. the Saarbrücken Agreement of 13 July 1984 on the abolition of internal border controls between Germany and France formed the basis for the Schengen treaties of 1985 and 1990. dans le cadre de ces grands systèmes informatiques. although the CISA officially entered into force on 26 March 1995. Introduction As we have seen above. étrangères ou non. Paris: Librairie générale de droit et de jurisprudence. 329–382. 2000. This Saarbrücken Agreement was an initiative of German Chancellor Kohl and French President Mitterrand. Evelien Brouwer. N’en doutons pas : l’avenir d’un certain fonctionnement démocratique européen dépend des réponses que l’on apportera en terme d’exercice des droits et des recours accordés aux personnes. As result. Minister of the Interior Pasqua. E. Preuss-Laussinotte. The reluctance of French politicians to begin implementation of ‘Schengen’ can also be illustrated by the fact that. expressed their reservations with regard to freedom of movement and the lifting of internal border controls.”1 1. there was a 1 S. © 2008 Koninklijke Brill NV. Les fichiers et les étrangers au cœur des nouvelles politiques de sécurité.Chapter 11 France “Il ne faut pas ignorer non plus que ce fichage informatique de grande ampleur a aussi valeur de test à l’égard de tous – pas seulement des étrangers – car ce que l’on teste sur les plus vulnérables. p. right from the start France was in the centre of the political negotiations leading to the Convention on the Implementation of the Schengen Agreement (CISA). It was only during the negotiations leading to the CISA that the French administration and. who became Minister in March 1986. pp. Many of these reservations concerned the consequences of ‘Schengen’ for French immigration policy. Printed in the Netherlands. 153. as provided for in Article 40 CISA. Other reservations expressed by France concerned the right of hot pursuit of suspected criminals by other Schengen States on French territory.A. 2. p. As we saw in Chapter 3.fr and http://www. the choice of headquarters for CSIS (which is in Strasbourg) and the choice of the IT company that was commissioned to develop the NSIS. French official documents and jurisprudence can be obtained from http://www . the French government questioned the public order criteria. with regard to definition of persons to be registered in the NSIS on public order grounds (Articles 99 and 96). at an early stage. During the negotiations.3 Despite France’s concerns and the inclusion of ‘French goals’ into the Schengen treaties. France has much jurisprudence with regard to the use of the NSIS in immigration and visa law cases. on the reintroduction of border controls after 1995: Groenendijk (2004). France extended this for several additional six-month periods. As we will see in the following sections.2 French political motives also played a crucial role with regard to the development and use of the NSIS. 150–170. the order to develop SIS was finally given to a consortium of the AngloFrench SEMA group.1. were not considered a danger to national security (for example. This flag would indicate to the national authorities that. . This jurisprudence gives us a valuable insight into the main legal issues and practical problems with regard to the use of the NSIS in French immigration policy. The text of the Schengen Agreement was published in the Journal Officiel (hereafter JO) 5 August 1986. the SIS alert is not to be implemented on the territory of the ‘flagging state’. the CISA and the establishment of the NSIS has led to important amendments to French law and policy. the French firm Bull and the German company Siemens-Nixdorf. the Palestinian leader Arafat).gouv. Other examples of France’s strong position in the negotiations are the final inclusion of data protection principles in the CISA. After 1986. in order to be able to maintain internal border controls with Belgium on the basis of Article 2. the French legislator had to amend its visa rules and was forced to delete some countries from the list of countries whose nationals needed a visa to enter France and. This problem was solved by the French proposal to insert the option of adding a ‘flag’ to SIS records. the French immigration rules were amended in order to implement the Schengen rules. Schengen in General The French parliament (the Assemblée Nationale and the Sénat) was not informed of the negotiations on the Schengen Agreement of 1985. After this period. according to French criteria. during the first 24 hours of storage.ladocumentationfrancaise. The French government was concerned about the fact that French officials would be obliged to take measures against persons who.2 CISA.fr.legifrance. Parliamentary Involvement with CISA 2.330 Chapter 11 ‘probationary’ period of three months.4 The lack of information 2 3 4 See. foreign parliaments and NGOs. During the discussions. 6399 and 6401. 27 February 1989. a member of the Assemblée Nationale. 4406. Bulletin des Commissions. 863. on 26 June 1991.7 Answering his question. the government informed the French parliament that. In its report of 11 December 1991. this committee was critical of the secrecy surrounding the Schengen negotiations. 30 June 1989 and 12 December 1989. Assemblée Nationale. 167 of the Senate by Xavier de Villepin (rapporteur) and P. p.France 331 before this Agreement was signed seemed to be accepted by the members of the Assemblée Nationale on the basis of the reasoning that this Treaty would only affect ‘internal decision-making’ and not involve the adoption of formal laws. Report no. Assemblée Nationale. 25 May 1989. Sénat.9 The report referred to a Dutch spokesman according to whom the French government apparently urged the Dutch government not to disclose information to its parliament during the Schengen negotiations because this would run the risk of constituting a precedent and could be used as a basis for identical demands from the French parliament. 167. In 1989. Julien Dray.5 To the French Senate. 10.8 It was only after the Schengen states had signed the CISA that the Senate established. Bulletin des Commissions. 8. Sénat. 1991–1992 (I have used the English translation which was produced by the French Senate). See also Assemblée Nationale. it was necessary to read the Dutch newspapers because the Dutch government informed its parliament on a regular basis. Masson (president of the Senate). no. . In 1988. one member of the French parliament stated that. Sénat.assemblee-nationale. Report of a meeting of the Commission on Foreign Affairs of the Assemblée Nationale. p. Report no. in order to harmonise the policy on the movement of persons and to establish compensatory measures for lifting internal border controls. Parliamentary documents are to find at http://recherche. a special ‘control committee’ for examining the implementation and operation of the CISA.10 5 6 7 8 9 10 ‘Puisque ses dispositions touchent seulement au domaine de règlement et non à celui du loi’. 29 June 1989. 1991–1992. 1049. members of the Assemblée Nationale complained that the government had failed to inform the parliament of the planned signature of the CISA. p. p. The only available information came from the press.fr. the government justified this secrecy by referring to the diplomatic character of the negotiations on the Schengen Agreement.6 However. He focussed on which criteria would apply to establishing which country would be responsible for examining an asylum application. the lack of information with regard to the negotiations on the CISA between 1985 and 1990 received critical reactions. Assemblée Nationale. 2613. Question of 24 October 1988. 11 December 1989. the Schengen governments were still discussing the measures requiring regulation in an international treaty. in order to be informed of the content of this second Schengen treaty. questioned the government about the intergovernmental negotiations on the harmonisation of European immigration and asylum law. p. de la République fédérale d’Allemagne et de la République française relatif à la suppression graduelle des contrôles aux frontières communes. Loi 91–737. France was the first Schengen state to ratify the CISA. the French 11 12 13 14 In France. Decision no. if they claim that the proposed law is (partly) in breach of the constitution. the parliament or other institutions. signée à Schengen le 19 juin 1990. on 30 July 1991. The constitutional appeal also concerned the non-applicability of the CISA to the overseas territories of France (DOM-TOM countries) and the fact that this would result in different treatment being given to French nationals living in France and those living in the overseas countries. This Council is a body which examines the compatibility of proposed laws with the French Constitution. JO 1 August 1991. as provided in the CISA. the French parliament was especially concerned about the transfer of sovereignty with regard to the French powers of border and immigration control. Members of the French parliament further criticised the “proliferation of bureaucratic bodies” within the Schengen central negotiating group and the absence of consultation with national parliaments. On the basis of Article 61 of the French Constitution 1958. 91–294. This scrutiny takes place before the law enters into force. caused by the constitutional protection of the right to apply for asylum in Germany. JO no. In its decision of 25 July 1991. the Constitutional Council can be requested by a group of interested persons. 69.13 The text of this Convention was published only five days before the Treaty entered into force. deciding that the content of the CISA did not entail any transfer of powers. They also expressed their fear of an increasing number of asylum seekers coming to France.12 In its opinion. the Constitutional Council dismissed the parliamentary arguments.14 After the ratification and the implementation of the CISA.11 In their request. the members of parliament first questioned whether the decision-making powers of the Schengen Executive Committee. The Constitutional Council therefore concluded that the CISA was not in breach of the French Constitution. the French parliament forwarded the ratification act of the CISA to the French Constitutional Council (Conseil Constitutionnel ). 30 July 1991. .332 Chapter 11 During the discussions on the act to approve the CISA. “the crossing of internal borders without controls on persons. Décret 95–304 du 21 mars 1995 portant publication de la convention d’application de l’Accord de Schengen du 14 juin 1985 entre les gouvernements des Etats de l’Union économique Benelux. was not the same as the lifting or changing of borders which would legally limit the powers of a national state”. JO 27 July 1991. to give its opinion on the constitutionality of a legal proposal. would not mean a transfer of sovereign powers which would interfere with the Constitution. 22 March 1995. Loncle criticised the lack of transparency in the implementation of Schengen. 1476. 17 March 1999. before the signature of the CISA. French parliamentarians and the French government shared the presumption that French data protection legislation of 1978 provided the highest level of protection for individuals.France 333 parliament published extensive reports in 1998 and 1999 on the implementation of Schengen and on the integration of the Schengen acquis in the EU treaties. According to the Council. JO 27 July 1991. 10 June 1999. François Loncle. p. during the parliamentary debate. 1690. In the first place. Their concerns touched especially on the lack of data protection law in the other Schengen states. . Commission des Affaires étrangères. 12 December 1989. i. Decision no. He questioned the need not to disclose the specific motivation for the refusal of visa applications. supported the French motives for maintaining the SIS under the legal framework of the third pillar. 6401. Sur le bilan de la coopération transfontalière dans le cadre de la Convention de Schengen.2. In his report on the integration of the Schengen acquis in the Treaty of Amsterdam of 1998. 17 March 1999. 91–294. 10 December 1998. p. Commission des Affaires étrangères. Loncle.15 2. in which Loncle evaluated the international Schengen cooperation.17 This argument was also put forward in the constitutional appeal by the French parliament on the Schengen Ratification Act. Rapport d’information de l’Assemblée Nationale. Ms. François Loncle. a member of the Assemblée Nationale.16 At the time of ratification. p. members of the French parliament expressed their concerns about the provisions for data exchange and the Schengen Information System.20 He further supported the position held by certain French courts in their judgments with regard to the use of 15 16 17 18 19 20 Rapport d’information de l’Assemblée Nationale 1257. Sur le bilan et les perspectives des Accords de Schengen. 1476. François Loncle. Preuss-Laussinotte (2000). including the provisions of Title VI. The NSIS During the parliamentary debate in 1989.18 In the decision of 25 July 1991. Assemblée Nationale. Jean-Marie Bockel. Assemblée Nationale. 133. L’intégration de l’acquis Schengen. Rapport d’information de l’Assemblée Nationale. 28 June 1989. See also the statement by the former Minister for European Affairs. Rapport d’information de l’Assemblée Nationale. the Constitutional Council also rejected this complaint. L’intégration de l’acquis Schengen. the CISA included an important set of rules for the protection of the rights of individuals with regard to the processing and use of personal information. Sur le bilan et les perspectives des Accords de Schengen. mentioned above. 10 December 1998. Cresson.e. Rapport d’information de l’Assemblée Nationale 1257.19 Much more critical was his report of 1999. 2596. François Loncle. when this refusal is based on SIS registration. Lawyers and Organisations During the period 1989–1990. de Wit. University of Nijmegen 1991. 54624: JO 28 November 2004 p.3. p. 1690.000 hits based on French information in the NSIS). p. question no. French NGOs such as France’s Terre d’Asile. Question Thierry Mariani. Among other things. following a criminal conviction. Questions which were raised concerned the use of the NSIS by French embassies and the further development of the NSIS and NSIS II (see below).S. even if this information concerned minor offences or events which occurred a long time ago. governmental answer: JO 10 February 2004. Loncle was one of the few members of parliament who explicitly paid attention to the problems of individuals with regard to the implementation of their rights under the CISA. the lack of democratic scrutiny and the consequences of the implementation of the CISA on the protection of asylum seekers. Philippe Vuilque (Socialists) explicitly questioned the lack of a suspensive legal remedy for third-country nationals who are expelled on the basis of an Article 96 entry in the SIS.5. 10386 and governmental answer: JO 22 February 2005.2 and 6. Sur le bilan de la coopération transfontalière dans le cadre de la Convention de Schengen. p. he underlined the practical success of the NSIS: the high number of users of the system (in 1998.000 terminals in France were connected to the NSIS) and the high number of persons and objects which had been detected using the NSIS (in 1998: 11. another member of the Assemblée Nationale. 1004. 10 June 1999.000 hits based on information forwarded by other Schengen States and 3. 58 ff. See further details in section 7.24 Humanitarian and charitable organisations participated in a joint 21 22 23 24 Rapport d’information de l’Assemblée Nationale. In the same year. . gave a more positive evaluation of the Schengen cooperation. Master’s thesis. He underlined the importance of the right of access or deletion with regard to information stored in the NSIS.3.23 I will come back to this subject in sections 3. Het Akkoord van Schengen: vergelijkend onderzoek tussen Nederland en Frankrijk. M. just before the signature of CISA. are registered in the NSIS for refusal of entry by the French authorities. He also warned against creating a false sense of security by transforming the European area of free movement into an impenetrable fortress.4. SIS I: Comments NGOs. 9526. p. 30379: JO 15 December 2003.21 After 1999.22 In December 2004. Bockel. particularly if the information was based on manifest mistakes. MRAP and GISTI expressed their concerns about the establishment of a ‘fortresse Europe’. 2. members of the French parliament dealt only incidentally with Schengen and the use of the NSIS.334 Chapter 11 the NSIS.2. Question no.L. 15. in which they do not accept excessive sanctions on third-country nationals who. He advocated a systematic approach for the consultation and further training of national judges regarding these types of problems. Jean-Marie Bockel.4. 1959. which was written on the occasion of the publication of the CNIL annual report. In this special issue.29 2. Plein Droit. SIS II In July 2005. published in JO 5 July 2005. 133 ff. Jacques Fauvet published a critical letter on the development of the NSIS in the French newspaper Le Monde. a member of the Assemblée Nationale. pp. Cimade tries to attract attention for the legal position of third-country nationals who are reported in the NSIS. and Europe as an “area of soft-apartheid”.4. June 1989. together with its counterparts in Germany and Luxemburg. several French lawyers criticised the content of the Schengen treaties in a special issue of Plein Droit. Cimade. Officials of this organisation often have to deal with detained immigrants to whom an expulsion order applies on the basis of a SIS record. Spécial Europe. Paris: July 2004.28 In this article. . Schengen : la circulation sous surveillance. 20 February 2003. Le Monde. the practical consequences of the use of the NSIS for third-country nationals in France were closely followed by the French organisation Cimade.25 In April 1989. Rapport 2003. p. this organisation issued a ‘Manifesto’ in which it expressed its concerns about the consequences of the Schengen treaties on the protection of refugees and the right to asylum in France. Question no. CNIL.27 As we saw in Chapter 7. asked the government to comment on the new proposals for the development of SIS II. Before he became the chairman of CNIL. Fauvet was the general editor of Le Monde. actively lobbied for the inclusion of data protection provisions in the draft texts of the CISA.26 In 1993. CSDA). This organisation supports and informs thirdcountry nationals who are detained in special detention centres in France. Centres et locaux de rétention administrative. a further debate was necessary on the need for harmonisation of the national laws and whether this field should be covered by communitarian law. 69226. 15 November 1989. Europe: un espace de “soft-apartheid”. 9699. describing Schengen as the “freedom of movement under surveillance”. 24 June 1989. the French Data Protection Authority. different organisations and legal experts commented on the new European developments with regard to immigrants and asylum seekers.30 25 26 27 28 29 30 Le Monde. On 24 June 1989. “Community of databases”. Rivière Jérôme.France 335 Commission on the protection of the right to asylum (Commission de sauvegarde du droit d’asile. According to Fauvet. 11. no. no. On a regular basis. Published in Lettre d’Information 74. the chairman of the CNIL. entitled. Fauvet described different problems which would have to be encountered in the light of the different levels of data protection in the Schengen countries. p. After the implementation of the CISA. 6514 and answer of the government: JO 18 October 2005. 1–2. the government was asked firstly not to agree to the proposal of the European Commission to transfer primary responsibility for the practical operation of SIS II from the French government to the European Commission. Implementation of Article 96 CISA 3. Rapport d’Information. Secondly. In its report of April 2006.32 Stressing the general need for the development of SIS II and the extension of its functionalities. Applicable Law Even before the CISA entered into force and before the SIS became operational. for the parliamentary law committee (‘commission des lois’). With regard to the issue of data protection. the committee opposed the proposed harmonisation of the criteria for recording third-country nationals in SIS II and asked its government to insist upon maintaining the current criteria. the authors of this report were concerned that the Commission proposal would affect the efficiency of the use of SIS II in the fight against irregular immigration because 40% of identity checks involving irregular immigrants would take place within the territory of France. in 1992 the French legislator adopted a law to amend the French Immigration 31 32 Rapport no. 25 January 2006 http://www. Document E 2897. the French parliament advocated maintaining the primary responsibility of France for the operation of the central part of SIS II. 174 (2005–2006) de M. not amending the criteria on inadmissible third-country nationals and ensuring access by internal security authorities to data on third-country nationals. not at the borders. 3. the French Minister of European Affairs gave a general description of the state of affairs and the reasons for the development of SIS II.html. the committee dealing with legal issues within French Sénat adopted a resolution on the development of SIS II. . The French government was asked to take into account these conclusions to ensure “an appropriate balance between the right to privacy and the protection of the public order”. 12 April 2006. Richard Yung.1.31 In this resolution. this report by the French parliament only referred to the conclusions formulated by the Article 29 Working Party and the Joint Supervisory Authority of Schengen in their comments on the development of SIS II. 2898. Furthermore. In January 2006.fr/rap/l05–174/l05–174.senat. 2899.336 Chapter 11 In reply to this question. The parliamentary committee was also concerned about the possibility that national security agencies would no longer have access to the data about inadmissible third-country nationals in SIS II during their checks within the national territory. the Assemblée Nationale repeated most of the points expressed by the Senate. Act no. JO 24 March 1995. 7420.33 This amendment included the penalisation of carriers transporting third-country nationals without a valid visa or residence permit and the expulsion of third-country nationals refused entry on the basis of the criteria in Article 5 of the CISA. Only the aforementioned decree of 6 May 1995 33 34 35 36 37 38 Loi no. this is now Article L.38 3. 93–992. Measures for control and identification are regulated by a formal law of 10 August 1993. de 2 novembre 1945 relative aux conditions d’entrée et de séjour des étrangers en France’. . See also Arrêté 31 July 2001. see the following section). both published in Textes de référence JORF. p. amending the French Immigration Act or ‘Ordonnance no 45–2658. As I was unable to retrieve a published version of these circulars. 92–190. National Criteria for Entering Third-Country Nationals into the NSIS There is no formal law or decision which describes the criteria on the basis of which French authorities may report third-country nationals in the NSIS for the purpose of refusal of entry. entered into force 8 March 1996. JO 11 August 1993. 95–577 du 6 mai 1995 relatif au système informatique national du système d’information Schengen dénommé N-SIS. 523–1. and Circulaire du 23 mars 1995 relative à la mise en œuvre de la convention d’application de l’accord de Schengen signée le 19 juin 1990 (dispositions autres que l’asile). which empowered French administrative authorities to expel third-country nationals to the borders on the basis of an Article 96 report in the NSIS (reconduite à la frontière. 10 August 1993. 138.37 The implementation and use of the French NSIS were further regulated in several circulars from the Minister of the Interior. the Minister of the Interior was authorised to start creating the national section of the Schengen Information System. Décret no.34 Based on a governmental decision of 6 August 1993. Arrêté du 6 août 1993. Preuss-Laussinotte (2000). The circulars of 17 and 23 March 1995 on the implementation of the CISA describe the situations in which the French authorities are obliged to consult the NSIS. They also confirm the direct effect of a SIS alert on an inadmissible alien. I had to rely on the description given in: S. 26 February 1992. JO 19 August 1993. Décret 95–315. JO 5 August 2001. Circulaire du 17 mars 1995 du ministère de l’Intérieur ayant pour objet la mise en œuvre de la convention d’application de l’accord de Schengen.France 337 Act of 1945 for the implementation of the CISA.2. JO 7 May 1995.35 The general purpose and use of the French NSIS were laid down in a ministerial decree (Ministry of the Interior) of 6 May 1995. This amendment also included the provision from (the former) Article 26 bis of the Immigration Act. even if this alert has been forwarded by another Schengen State.36 A decree of 23 March 1995 provided for the legal basis for the installation of the national SIS database at the French Ministry of the Interior and for the establishment and tasks of the French SIRENE office. p. These decisions normally relate to the irregular stay of the third-country national concerned or the withdrawal of his or her residence permit. a person will be registered in the NSIS on the basis of an administrative expulsion decision. AFPR). with regard to Article 96. Firstly. Informal figures for 2004 establish that 60% of the data in this category had been forwarded by the Ministry of the Interior and 40% by the prefectures. A French court may issue such a formal ban on entry in conjunction with the criminal conviction of a third-country national. more precisely the Direction of Public Liberties and Legal Affairs (Direction des libertés publiques et des affaires juridiques). It is unclear whether this notification includes the information that the person will be automatically registered in the FPR and NSIS files. The expulsion decision (known as E12 files) should be notified to the person in question. this decree generally follows the categories as described in Articles 95 to 99 CISA. The specific motivation for such a decision regarding these files in the NSIS (file TE02 or opposition à entrée en France) is secret. based on a decision by the Ministry of the Interior (arrêté d’expulsion) or the local prefects (arrêté préfectoral de reconduite à la frontière. .1. see further section 6. Aside from this circular of 6 May 1995. a SIS registration may be based on a judicial decision implying a ban on entry (Interdiction du territoire français or ‘ITF’. a third-county national may be reported in the French NSIS on the basis of a decision by the Ministry of the Interior. This category of registration thus corresponds to the criteria of Article 96 (3) CISA. Thirdly. or file IT01).338 Chapter 11 defines the categories of data to be recorded into the NSIS and the authorities with access to the NSIS. in reply to a questionnaire to the Schengen Joint Supervisory Authority on the implementation of Article 96 CISA. there are three categories of decision based on which thirdcountry nationals are reported in the NSIS for the purpose of refusal of entry. Article 3 of this decree refers to “third-country nationals reported for the purposes of refusing entry on the basis of an administrative or judicial decision”. The legal basis for this decision is included in L 213–1 of the French Immigration Act 2006.39 In general.41 This formal ban decision has two effects: it forbids 39 40 41 This information was given by persons from the police. CNIL and CIMADE.40 Secondly. More specifically. The amendment of the Immigration Act in 2003 (Loi Sarkozy) was aimed at limiting the use of this ‘double punishment’ (double peine). With regard to the data to be entered into the NSIS. According to a report forwarded by CNIL in 2005 to the Schengen Joint Supervisory Authority. I therefore had to rely on the information which has been forwarded to me by the persons I contacted or interviewed during this research. establishing that the entry or residence of the person concerned in France is a danger to the public order (menace à l’ordre public). there is no formally published information on the criteria used for the application of Article 96 CISA. in: K. If a file is deleted from FPR. Circulaire du 17 mars 1995. 29.42 To summarise. P. However. the authorities competent to decide whether a person may be recorded in the NSIS for the purposes of Article 96 CISA are the French Ministry of the Interior. A coordinating role is assigned to the central department of border police within the French Ministry of the Interior (Direction Centrale de la Police aux Frontières or DCPAF) with regard to the decisions on inadmissibles and thus the registrations in the NSIS on the basis of Article 96 CISA. p. See Ph. see Preuss-Laussinotte (2000). when implementing Article 96 CISA. The authority responsible for the information held in FPR is the central criminal documentation service (service central de documentation criminelle).44 According to the Minister in the same circular. the French military police (la gendarmerie) and the judicial authorities. deletion from the NSIS does not mean that the data will automatically be deleted from FPR. the Minister of the Interior stressed the responsibility of the French authorities with regard to protecting the public order of the other Schengen partners. Hailbronner. This department was established in 1999. The authorities authorised to forward information to the NSIS are the French national police. Vol. Giraud. Theoretically. 31–41. if a person has been expelled on the basis of an expulsion decision (reconduite à la frontière).43 In his circular of 17 March 1995. his or her data should be deleted from the NSIS. If the forwarding authorities do not want to have this data stored in the NSIS. they have to declare this explicitly to the authorities responsible for this file. . February 2005. In practice. registration in the NSIS follows the prior registration of thirdcountry nationals in the French police information system: Fichier des Personnes Recherchées (FPR.1 below). p. 138. Trier: ERA Series of Publications. In practice. Weil (eds. for the three categories of files mentioned above. which is a branch of the Ministry of the Interior. replacing the former central department on immigration control and the fight against illegal immigration (DICCILEC). the data forwarded to FPR will automatically be recorded in the NSIS. the heads of the French départements or the prefectures (les préfectures) and the courts ordering a formal ban on entry.France 339 the alien from remaining on (or re-entering) France and. In general.). see section 4. From Schengen to Amsterdam. it has been established that such data were maintained in the NSIS on the basis of the second category: the ministerial decision establishing that the person concerned is a danger to the public order. for national authorities this registration in 42 43 44 Interview with Cimade. it empowers the French authorities to expel this person. These two latter categories of criteria can be regarded as the implementation of Article 96 (2) CISA. secondly. the file will automatically be deleted from the NSIS as well. L’Expérience de la France dans la mise en oeuvre de Schengen. Towards a European Immigration and Asylum Legislation. JO 7 May 1995.4. More specifically with regard to immigration tasks. The French SIRENE office holds a special 45 46 Décret no. . 3. whereas the French NSIS is held in Paris and the CSIS in Strasbourg. 7420. 95–577 du 6 mai 1995. p. JO 24 March 1995. Operation of SIRENE The French SIRENE office is under the direct responsibility of the Ministry of the Interior. Foreign Affairs. It also provides that customs agents will be informed of the existence of other information held in the NSIS.340 Chapter 11 the CISA would imply ‘a predetermination mechanism’ (dispositif de prédétermination) for inadmissible persons.45 This list does not clearly describe which authority has access to which information. The authorities concerned are: officials and agents of the SIRENE office. Justice and Financial Affairs. in general. 3. an alert in the SIS on the basis of Article 96 CISA should result in the automatic refusal of entry to the person concerned. the Minister of the Interior is expected to cooperate with the Ministers of Defence. See Article 4 of the decree no. 95–315 establishing the SIRENE office. the French decree includes officers of the local police and of the central administration with the Ministry of the Interior who are competent with regard to the policy regarding the entry.46 The office of SIRENE is located in Nanterre. This would imply that. with the exception of the information about missing persons as intended in Article 98 CISA. Authorities with Access to NSIS Data Article 5 of the Decree of 6 May 1995 includes a limitative but long list of authorities entitled to gain access to the information held in the NSIS. Article 5 only requires that the authorities listed may have access to the information “within the framework of their competences”. residence and expulsion of third-country nationals and with regard to missing persons. Officials of the Ministry of Foreign Affairs and consulates and the consular sections of embassies may have access to the NSIS files with regard to the issue of visas. 23 March 1995.3. the judicial authorities. With regard to the operation of this organisation. more specifically the central division of the judicial police (Direction Central de la Police Judiciaire). officers of the national police and officials of the national military police (gendarmerie) in the exercise of their tasks as administrative police or judicial police. Article 5 of this decree also empowers customs agents to gain access to the information concerning non-admissible third-country nationals. 47 48 49 Circular of 12 May 1995 on the consultation of SIRENE France with regard to the application of the Schengen Convention. 1690. Refusal of Entry or Residence Based on Article 96 CISA According to the two circulars by the Minister of the Interior of 17 and 23 March 1995.47 As in the other Schengen States. he or she can be allowed entry or residence.” Cited in Preuss-Laussinotte (2000). residence permits should be refused if the person is recorded in the NSIS as ‘to be refused entry’. an intermediary role. except on humanitarian grounds or in fulfilment of international obligations. the French SIRENE office performs. 3. The information held in the NSIS should also be checked every time a third-country national presents himself to the French authorities or is questioned by the police. 10 June 1999. the French SIRENE office should be available on a 24-hour basis. the circulars refer to the Geneva Convention and the ECHR.48 3. According to these circulars. if a person suffers from a serious illness. In 1999. ou qui est interpellé par la police ou dont vous avez à traiter le dossier au regard du séjour ou d’un éloignement ponctuel. entered into force on 8 March 1996.1. Mr. pointed out the extended tasks of the French SIRENE office and proposed increasing the practical and financial resources of this organisation.or herself to a public office or is interviewed by the police”. .5. et donc pour la vérification de la situation du SIS de tout étranger qui se présente à vos guichets. “especially if the person has strong links with France”. p. With regard to the surveillance of third-country nationals. as in other countries. The French immigration authorities are required to consult the French SIRENE office if a person who is found to be in an irregular situation in France and who is applying for a visa or a (renewal of ) a residence permit is recorded in the NSIS for the purpose of refusal of entry. Assemblée Nationale. an example of humanitarian grounds could be the situation that. the situations in which the French authorities are obliged to consult the NSIS include the procedures for issuing residence permits and regarding expulsions.France 341 file which makes it possible to record the additional information necessary for the implementation of Articles 95 to 100 of the CISA. 138. p.49 According to this circular.5. Textes de référence JORF. Bockel. no. a member of the Assemblée Nationale. Circular 23 March 1995: “C’est le cas pour la procédure de délivrance des titres de séjour et pour l’éloignement. These files include fingerprints. Article 96 Hits: Duties and Responsibilities of French Authorities The circular of 23 March 1995 explicitly indicates that the French authorities are obliged to consult the NSIS as soon a “third-country national presents him. 38. With regard to the international obligation. This rule is based on the presumption that the foreign decision on which the report in the NSIS is based should be a final or enforceable decision (décision exécutoire). JO 28 November 2004. Expulsion of Third-Country Nationals on the Basis of Article 96 CISA Even in 1992. notifiée et dont les délais de recours sont expirés. p. the administrative tribunal of Lyons decided that.4. based on an amendment to the French Immigration Act. p.342 Chapter 11 3. published immediately after the entry into force of the CISA in 1995. . the possibility of a suspensive remedy against these expulsion orders has been limited in the French Immigration Act. Answering the parliamentary question from Philippe Vuilque with regard to the lack of suspensive remedies.53 It is however questionable whether the French authorities are actually obliged.4. Cimade. Ciuciu). Centres et locaux de rétention administrative. based on an amendment in 2003 to the French Immigration Act. 6 April 1995. It allows the local prefecture or police to order the direct expulsion of a third-country national reported for the purpose of non-admission in the NSIS. 10386 and JO 22 February 2005. no. In one of the first judgments. the person concerned can be detained. As we will see below. in section 6. the Minister of the Interior made it clear that a foreign Article 96 report in the NSIS may be regarded as an enforceable decision taken by another Schengen partner. p. which entered into force at the same time as the CISA. Rapport 2003.” See the ministerial answer to the question by Vuilque. no.52 If this expulsion cannot be enforced immediately. “… le signalement ne fait donc que rappeler l’existence d’une décision exécutoire prise par un autre membre. In its 2003 report on the retention and expulsion of third-country nationals. the expulsion decision is to be annulled.50 On the basis of this provision.4.2.4. & Ms.5. an appeal against an expulsion order based on a foreign SIS report will have no suspensive effect. a new paragraph was added to Article 26bis on the expulsion of third-country nationals. the heads of police may issue an expulsion order to thirdcountry nationals who are reported in the NSIS on the basis of Article 96.51 This provision applies to third-country nationals who are in an irregular situation on French territory. 1959. Paris: July 2004.54 This question is important because. to check whether the foreign Article 96 report is based on a definitive decision or whether they may presume the finality of this foreign decision. 133. Decision of Tribunal administratif de Lyon. “Reconduites d’office à la frontière fondées sur un signalement aux fins de non-admission dans le SIS”. the French NGO Cimade noticed an increase in the number of expulsions based on Article 96 of the CISA. based on this presumption of a final foreign decision. when issuing an expulsion order. 92–190 of 26 February 1992 implementing CISA. 9501291–9501292 (Mr. 54624. donc par hypothèse. if it cannot be established by the French authorities that the foreign alert in the NSIS is based on a final decision. as we will see in section 6.55 50 51 52 53 54 55 Act no. Total amount of Article 96 reports in 2003 was 778. Source: Statewatch website. the so-called ‘Loi Chevènement’ extended the duty to motivate refusals of visas to several categories of visa refusals including decisions based on a SIS registration. 53. 52. the quantity of data on third-country nationals is relatively modest. persons refused a visa would be more reluctant to accept this refusal.56 In general. no. news April 2005. 740.58 The exchange of information between the central authorities and the consulates or embassies takes place through a secured information network: the RMV or Réseau Mondial Visa (see further section 4.886 Article 96 reports. 8 September 1999. Les refus de délivrance des visas fondés sur une inscription au Système Information Schengen.61 Although the total number of reports in the SIS submitted by the French authorities remained high over the years. See Preuss-Laussinotte (2000).France 343 3. approximately 7% of the Article 96 reports in the NSIS are submitted by the French authorities.631 Article 96 reports. no. See the parliamentary report on visa policy (“sur les moyens des services des visas”) of Yves Tavernier. Source: report C SIS Exploitation team 01/01/2005. paradoxically. except on humanitarian grounds or to fulfil international obligations. Article 96 Hits and Visa Applications The French authorities involved in issuing visas to third-country nationals are obliged to consult the NSIS. Assemblée Nationale. 2095. p. 82.5% were entered by the French authorities.7% (out of 778. 3.000 or 43% involved third-country nationals to be refused entry on the basis of Article 96. According to Tavernier. the total number 56 57 58 59 60 61 62 The rules of the CISA with regard to visa applications were implemented in the ministerial circular of 23 March 1995 mentioned above.57 This amendment to the French Immigration Act has led to a significant increase in procedures against visa refusals. 177. if a person has been reported in the NSIS for the purpose of being refused entry.5.8% (out of 785.000 alerts concerned persons. Cultures & Conflits 49–50. Compare the data when the SIS first became operational with more recent data: in June 1995.886 (source: Statewatch report April 2005). of the total of 714. The Practical Use of the NSIS in France Compared to the number of SIS reports by other Schengen States.000 data items (including cars and passports) were reported by French authorities in the NSIS. of which 76.3. See also C.62 In 2002.383 are registered by France) and to 2004: 6. this increase in administrative appeals cannot be explained solely by the new obligation of informed decision-making. this person is to be refused a visa. . In 1998.60 On 1 January 2005.3 below). member of the Assemblée Nationale. but also. 53. 1803.195 are French). because of the more liberal visa policy: in the light of this liberalisation. Report.487 alerts or 7.59 This percentage has remained more or less the same over the past few years: compare to 2003: 6. Saas.078 files based on Article 96 CISA.6. 2003. As we have seen above. 4. such as the local prefecture. the total number of French alerts involving persons had dropped to 103. Some of these ‘sub-files’ contain information on third-country nationals. input into the NSIS is based on the information stored in the FPR.2.398 or 35. Since the 1970s.6% of these reports involving persons concerned third-country nationals to be refused entry. 52. persons against whom a court has issued a formal residence ban and persons who are to be refused entry or residence on public order grounds. as described in the next section. 83–84. of which 53. General Database on Foreigners: AGDREF Another important database on foreigners is the so-called AGDREF (système informatisé de gestion des dossiers des étrangers en France) which was established in 63 64 Source: Bigo & Guild (2003). only 257 hits occurred in other Schengen countries on the basis of a French Article 96 registration (0. each to be used for different tasks and indicating the procedure for the consulting authorities.1. This system is held by the police and the French state police (gendarmerie) for judicial. In 2005. The FPR is divided in 20 ‘sub-files’.9% concerned Article 96 alerts. p. Consultation of the FPR is compulsory for those authorities dealing with third-country nationals.5%).64 The SIS was partially modelled on this French system. In the same year. FPR and the French central database on third-country nationals. this file has been the subject of a large computerisation project. 147. The French authorities recorded 3. may simultaneously check (parts of ) the NSIS.487 or 51.027 hits on third-country nationals based on a foreign (mostly German) report. military and administrative purposes. In 2002. Intermezzo: French Policy Governing Third-Country Nationals 4. the competent authorities.000 of which were alerts involving individuals. After the implementation of the CISA. . Police File on Searched Persons As we have seen above.084. the storage of information in the NSIS is linked to the central police file on searched persons (Fichier des Personnes Recherchées or FPR) which is held under the shared responsibility of the Ministry of Justice and the Ministry of the Interior. French reports on ‘inadmissibles’ travelling in other Schengen countries led to a relatively small number of ‘hits’.63 4.344 Chapter 11 of alerts on persons and objects entered by the French authorities was one million. See Preuss-Laussinotte (2000). including persons whose presence is considered a danger for the public order. to allow verification by the French authorities of the residence status of thirdcountry nationals. According to the ministerial decree of 29 March 1993. allowing for a more complete management of files on foreigners and. See further: Dictionnaire Permanent. civil status. c. for the efficient registration of legally resident third-country nationals. especially. identification number. There is no formal legal basis for this network. profession. 4.3.68 The goal of this French system is to improve visa application procedures. including a file on the information as forwarded by visa applicants and the so-called 65 66 67 68 On the basis of a ministerial decree of 27 September 1982. Fichiers informatiques.fr/rubriques/b/b5_lois_decrets/recherche. This visa network in fact contained different files. the French authorities competent to deal with immigrants have simultaneous access to FPR. the French government established a worldwide visa information network for use by the embassies and consular posts abroad (Réseau Mondial Visa or RMV). to ensure the delivery of residence permits and applications for a residence permit or renewal and administration. Database with Regard to the Issuing of Visas Following the introduction of a general visa obligation in September 1986. d. AGDREF is maintained under the responsibility of the Ministry of the Interior. among other things. for the categories of data to be registered on EU nationals in AGDREF: Circular of 11 October 2004. avoiding the risks of falsification. Droit des étrangers. 891. AGDREF also includes information about the residence permits issued to EU and EEA nationals. .67 As mentioned above. the nationality. b.65 This system was modernised in 1993. and. only a decision (arrêté) by the Ministry of Foreign Affairs of 20 June 1989 providing for the creation of this system. to allow the compilation of statistics for use by the Ministry of the Interior.gouv. the goals of this system are:66 a. AGDREF and the NSIS. although other rules apply with regard to which categories of data are to be stored. p.interieur . visa and other conditions of entry of the foreigner concerned. JO 30 March 1993. allowing for the exchange of information on visa applicants between the different French authorities concerned. NOR/INT/D/04/00124/C available at: http://www. The information to be stored in AGDREF includes.France 345 1982 by the French government for the purpose of issuing residence permits. See. last update of 1 June 2005. to improve procedures with regard to the legal and administrative situation of foreigners. the decision of March 1996 describes the Schengen network as a ‘prolongation’ of the French system. replaced by L. Fingerprinting Third-Country Nationals The French government promoted the use of biometrics for the implementation of border control and visa policy at an early stage. 01–019. visas issued and visas refused.71 69 70 71 Ministerial decree of 22 August 2001. known as RMV2. JO 25 April 1997. Act of 24 April 1997. déliberation no. 4. including the reasons for not issuing a visa. as well as a file compiled by the chief of the consular post on ‘undesirables’. the French visa system was replaced by a more extensive and modern version. Based on a ministerial decree of August 2001. Decision (‘Arrêté’) of 8 March 1996.70 The aim of this Réseau de Consultation Schengen is the mutual consultation between the Schengen partners on certain ‘sensitive’ visa applications. except data forwarded by other Schengen states. The decision of 1996 provides that this consultation network be linked to the French World Visa Network (Réseau Mondial Visa). the French authorities obtained direct access to the data stored in the NSIS on the basis of Article 96 CISA during application of a visa. These latter files are comparable to the former files of opposition in the original RMV. In fact. held by either the Ministries of Foreign Affairs and of the Interior or the local consular posts. RMV2 includes different databases: a file on visa applications. Moreover. information on visa applications can be stored for two years. include information on third-country nationals whose visa applications merit particular attention. except refusals of visas which are to be stored for five years. 97–396. Through the RMV. . There is a right to direct access to the data in this system.4. JO 21 March 1996. An amendment in 1997 to the French Immigration Act (Loi Debré) provided for the possibility of collecting. According to this French decision. A (partial) positive recommendation on a draft text for this decree was issued by the CNIL on 15 May 2001.69 RMV2 can be considered a predecessor to the European VIS because it establishes a centralised system of visa applications.346 Chapter 11 ‘files of opposition’ which are files on third-country nationals. The use of the Schengen consultation network with regard to visa applications is implemented by a French decision of 1996. 611–3 of the Immigration Act 2004). JO 14 September 2001. RMV2 includes a file on the persons or organisations inviting a visa applicant and the so-called consular and central files of attention (fichiers d’attention). Direct access to the NSIS is regulated in Article 2 of the ministerial decree of 22 August 2001. These files. processing and storing the fingerprints of third-country nationals in AGDREF (Article 8–3 of the former Act. compiled for example by the Minister of the Interior on the basis of the FPR. no. storage and electronic processing of digital fingerprints and photographs of visa applicants. 611–6) allowing for the collection. 530 ff. 97–389 DC. 2003–1119. fingerprints have not been stored in AGDREF as a result of practical deficiencies in this system. Conseil Constitutionnel no.html#toc5. In its decision of 22 April 1997 on the draft of this Loi Debré. 611–3) of the Immigration Act also allows agents empowered explicitly by the Ministry of the Interior and the state police (gendarmerie) to consult the central fingerprint database (Fichier automatisé des empreintes digitales or FAED) which is used for police purposes. An important problem was caused by the fact that much of the data held in AGDREF is out of date. For example. who were found illegally on French territory or who were to be expelled from French territory. the same problem occurred with regard to Eurodac and the NSIS. au séjour des étrangers en France et à la nationalité. p. . http://www. the vice-president of CNIL referred to hundreds of thousands of French nationals who are wrongly stored in AGDREF. An amendment to the Immigration Act in 2003 extended the possibility of collecting fingerprints with regard to third-country nationals who have been checked when crossing external borders and who did not possess the necessary documents for legal entry. Oral hearing of the committee of inquiry on immigration.senat. De Bruycker. the French authorities would fail to delete information from this database on persons who had acquired French nationality. Hearing 21 December 2005. 22 April 1997.72 As we saw in the previous chapters. F. Julien-Laferrière. JO 27 November 2003.75 Based on this provision in the Immigration Act.France 347 This measure was aimed at third-country nationals applying for a long-term residence permit. in: J.fr/bulletin/20051219/ immigration. the proposed possibility in this law to give officials of the Ministry of the Interior and the gendarmerie access to files of digital fingerprints belonging to the French organisation for the protection of asylum seekers and stateless persons (Office français de protection des réfugiés et apatrides or OFPRA) was considered contrary to the constitutional protection of asylum seekers. as established by the French Data Protection Authority.74 This included a new Article 8–4 (now: L. French Senate. at a consulate abroad or at the external borders of one of the Schengen States.Y. JO 25 April 1997. the Minister of Foreign Affairs issued a decree on 25 November 2004 on the 72 73 74 75 In December 2005. In practice. Article 8–3 (or the new L. Loi no.73 However. Paris: Bruylant 2005. La loi no 2003–1119 du 26 Novembre 2003 relative à la maîtrise de l’immigration. Carlier & Ph. Immigration and Asylum Law of the EU: current debates. the French Constitutional Council rejected the argument from complainants that the administrative measure of taking and recording the digital fingerprints of foreigners applying for a residence permit would include an excessive breach of individual liberty as protected in the French Constitution. 348 Chapter 11 experimental establishment of a central database for the storage of fingerprints of visa applicants.76 The database, to be used for two years at seven consulates and some border police posts, holds information on each visa applicant, including his or her digital fingerprints and digital photographs. This experiment implies creating the first database in France with an integrated registration of (and access to) biometric data and other personal information. On the basis of Article 7 of the ministerial decree, the visas issued by the French authorities will contain a special electronic device, including the personal and biometric data of the visa holder. This device can be a contactless chip, which should be “sufficiently secured to protect the visa holder against risks of intrusion or détournement de pouvoir”. In 2006, the government extended the term of the pilot by three years, and also extended its scope of application.77 The French Data Protection Authority, CNIL (Commission Nationale Informatique et Libertés, see section 5 below), concluded that the establishment of a file with biometric data on an experimental basis was acceptable, provided the law strictly defined the conditions for management and access and that security measures were taken.78 However, the CNIL opposed the registration of biometric data of those third-country nationals whose visas had been refused, considering this neither justified nor necessary. In its advice on this proposal, the CNIL explicitly motivated this by arguing that, for the implementation of border control, only the fact of being in possession of a visa is relevant, not whether he or she has previously applied (or not) for a visa. The CNIL repeated its concerns about the risk of stigmatising those persons who are refused a visa in a statement published on 21 December 2004, since these persons, being entered into this system, would be refused a renewed application for a visa.79 The French experiment with storing fingerprints of visa applicants can be seen as a pilot for the European Visa Information System or VIS. As we have seen, the VIS will contain biometric data on visa applicants whose applications are rejected. 4.5. ‘ELOI’: File on Expelled Persons Based on a ministerial decision (arrêté) of 30 July 2006, a new file has been established to facilitate the expulsion of irregular immigrants.80 In this new database, or ELOI, personal information will be stored for three years. This time limit begins after the case on the person has been closed. The file includes, among 76 77 78 79 80 Decree of 25 November 2004, no. 2004–1266, JO 26 November 2004. Décret of 26 April 2006. See GISTI, Les Visas, Les Cahiers Juridiques, Paris: GISTI September 2006, p. 12. Opinion no. 2004–075, 5 October 2004, JO 4.12.2004. See L’expérimentation de visas biometrique: la position de CNIL, advice of 21 December 2004. JO no. 190, 18 August 2006. France 349 other things, a photograph of the third-country national, the languages spoken, his or her profession, as well as information about any children, the persons with whom the third-country national was staying in France and persons who visited the third-country national during his or her detention for expulsion. French NGOs, including Cimade, GISTI and the Ligue de Droits de l’Homme lodged a request in October 2006 for annulment of this new measure before the French Conseil d’État.81 In March 2007, the Conseil d’État annulled on procedural grounds the decision of 30 July 2006.82 The Conseil d’État ruled that the adoption of the ELOI decision failed to meet the requirements of Article L. 611–3 and L. 611–5 of the French Immigration Act according to which such a decision must be taken in a procedure before the Conseil d’État and following the advice from the CNIL, the French Data Protection Authority. 5. Rights and Legal Remedies in Data Protection Law 5.1. Background to French Data Protection Law The French Act on Data Processing, Data Files and Individual Liberties (Loi relatif à l’informatique, aux fichiers et aux libertés, hereafter LIFL) belongs to the so-called first generation of legislation on data protection.83 The public debate on the so-called ‘Safari Plan’ with regard to the joint use of all electronic files in the public sector encouraged the legislator to publish the first drafts of privacy bills.84 The ministerial decree of 8 November 1974 included the government’s intent to propose, within six months, measures “to guarantee that the development of information technology in the public, semi-public and private sector would be realised, respecting private life, individual liberties and public liberties.” A Commission on Information Technology and Freedoms (Commission Informatique et Libertés) was set up to investigate the situation in France and other countries and to study the earlier work done by organisations such as the OECD, UNESCO and the Council of Europe. On 27 June 1975, this commission presented the Rapport Tricot to the French President, which included a 81 82 83 84 http://www.gisti.org/doc/actions/2006/eloi/index.htm. CE Decision of 13 March 2007, no 297888, 297896, 298085. Loi no 78–17 of 6 January 1978 ‘relative à l’informatique, aux fichiers et aux libertés’. Last amendment by Loi no 2006–64 of 23 January 2006, JO 24 January 2006. An English version can be downloaded from http://www.cnil.fr. See also A.C.M. Nugter, Transborder Flow of Personal Data within the EC. A comparative analysis of the privacy statutes of the Federal Republic of Germany, France, the United Kingdom and the Netherlands and their impact on the private sector, Deventer: Kluwer Law Taxation Publishers 1990. 350 Chapter 11 draft bill.85 This draft included a proposal for the establishment of a national ‘Commission on Information Technology and Liberties’ (Commission Nationale Informatique et Libertés, hereafter referred to as the CNIL) to be assigned supervisory, consultative and regulatory functions. Due to amendments required by the French Senate, this Commission was to be partly composed of members of the parliament. The Senate amended the original legislative proposal in order to extend the scope of applicability to non-automated files. Instead of Loi relatif à l’informatique et aux libertés, the French data protection law became the Loi relatif à l’informatique, aux fichiers et aux libertés. Article 1 LIFL includes the general principle which lies at the heart of French data protection law: Information technology should be at the service of every citizen. Its development shall take place within the context of international co-operation. It shall not violate human identity, human rights, privacy or individual or public liberties.86 This principle illustrates the broader scope and goals of the French data protection law, compared to other national laws. On the one hand, it affirms that data processing, in the first place, should serve every citizen and should not be in breach of the citizen’s rights, private life or his human identity. This ‘positive motivation’ for data processing would explain why the explanatory memoranda to bills introducing new databases always emphasise the positive effects for individuals as well. For example, Articles 8.3 and 8.4 of the French Immigration Act dealing with the registrations of third-country nationals start with the sentence: “To ensure a better protection of the rights of residence of third-country nationals in a regular situation”.87 On the other hand, this general principle confirms the importance of international cooperation in this field. The French law emphasises the liberties of citizens, whereas the German law and, later, the Dutch law, are more focussed on the protection of privacy or personality. Since 1978, the French Data Protection Act has been amended several times, including amendments to adapt the LIFL to the current provisions and standards of EC Directive 95/46 on the protection of personal data. Although the French Data Protection Act was a model for this Directive, the French legislator was obliged to rephrase ‘its national principles’ in accordance with the wordings chosen in the Directive. For example, the former Article 2 of LIFL included the 85 86 87 Rapport de la Commission Informatique et Libertés, Tome I et II, La Documentation Française, 1975. “L’Informatique doit être au service de chaque citoyen. Son développement doit s’opérer dans le cadre de coopération internationale. Elle ne doit porter atteinte ni à l’identité humaine, ni aux droits de l’homme, ni à la vie privée, ni aux libertés individuelles ou publiques.” “Afin de mieux garantir le droit au séjour des personnes en situation régulière.” France 351 important principle forbidding decision-making with legal or judicial effects in relation to individuals, based solely on the automated data processing intended to evaluate certain aspects of the data subject’s personality. Based on this French principle, a comparable provision was provided in Article 15 of EC Directive 95/46. This Article 15 however added two exceptions to the general prohibition of ‘automated decision-making’: with regard to the signature or execution of a contract concerning which the individual was given the opportunity to put forward his or her opinion and with regard to decisions which satisfy the demands of the person concerned. These more limited wordings in the EC Directive have been incorporated into the definition of the new Article 10 LIFL. Also based on the EC Directive, the French legislator introduced the possibility of the appointment of data protection officials in business or local communities, similar to existing provisions in Germany, Sweden and the Netherlands.88 Hereafter, I refer to the French Data Protection Act of 2004 as ‘LIFL 2004’. 5.2. Third-Country Nationals and the Right of Data Protection Based on the wording of Article 1 LIFL, “information technology should be at the service of every citizen”, one could doubt whether this general principle and the further rules of data protection apply indiscriminately to citizens and non-citizens. In general, French law provides for differentiation with regard to the protection of constitutional rights for foreigners: it is accepted that not every constitutional right applies in the same way to French citizens and foreigners. With regard to the right of privacy and data protection, their applicability to third-country nationals seems to be influenced on the one hand by the jurisprudence of Article 8 ECHR of the Strasbourg Court and, on the other hand, by the opinions of the Constitutional Council. This institution made clear in different advisory opinions regarding draft laws on the registration of foreigners, that legal safeguards as protected by the French data protection act also apply to third-country nationals. In its opinion of 13 August 1993, the Constitutional Council referred to the fact that the legislator explicitly extended the application of the data protection act to third-country nationals.89 With regard to the draft law regarding the storage of fingerprints of foreigners applying for a residence permit, the Constitutional Council stated in its decision of 22 April 1997 that it is the task of the legislator to determine the measures applying to third-country nationals, “while respecting the constitutional principles and taking into account the public interest involved”.90 In this decision, the Council stressed the link between, on the one hand, the right 88 89 90 Loi no. 2004–801, 6 August 2004, JO 7 August 2004. Conseil Constitutionnel no. 93–325 DC, 13 August 1993, JO 18 August 1993. Conseil Constitutionnel no. 97–389 DC, 22 April 1997, JO 25 April 1997. 352 Chapter 11 to individual liberty and the guarantees as provided by the French Data Protection Act and, on the other hand, the requirement of the proportionality between the infringement of this liberty and the proposed police fingerprinting measures. As we saw in section 4.4, the Constitutional Council decided with regard to this proposal that fingerprinting in general was not disproportionate. However, the proposed access by security agents to the files of the French authority responsible for asylum applications (OFPRA) was rejected, since this access would deprive asylum seekers and refugees of their constitutional protection to asylum which includes the confidentiality of their data.91 5.3. NSIS and Applicable Rules In general, the French Data Protection Act applies to the management and use of the NSIS. However, there are certain exceptions or limitations concerning the applicability of LIFL.92 For example, according to Article 7 of the decree on the NSIS of 6 May 1995, the ‘right of opposition’ or the right to demand the prohibition of further processing of one’s personal data does not apply to the NSIS. In the following sections, I will describe other exceptions to the rights and legal remedies of third-country nationals stored in the NSIS. 5.4. Duty to Inform the Data Subject Article 32 ff. LIFL provides for the duty of responsible persons or authorities to inform the data subject of the purpose, consequences and destination of personal information held. The person should also be informed of his or her rights. This duty does not apply, on the basis of Article 32 V and VI, to files used on behalf of the State for the purpose of national security, defence and public order, or for the purpose of the enforcement of criminal convictions or security measures if this exception is necessary for the purpose pursued. Moreover, data processing for the purpose of the prevention, investigation, establishment or pursuit of criminal facts does not fall within the duty to inform the data subject. From this general rule, one could deduce that the authorities are not obliged to inform third-country nationals of their registration in the NSIS for the purpose of nonadmission because these reports are generally justified by the authorities as serving to maintain the public order. 5.5. Right to Access, Correct or Delete Data 5.5.1. Direct and Indirect Access The French Data Protection Act distinguishes between direct and indirect access by individuals to their personal information held in data files. Article 39 ff. 91 92 See, for a more detailed analysis, Preuss-Laussinotte (2000), p. 235. Décret no. 95–577. France 353 LIFL describes in general the right of access. With regard to data processing in the interests of national security, defence or public order, the individual request for access has to be addressed to the French Data Protection Authority or the CNIL (see the following section), in accordance with Article 41 LIFL. This Authority will then appoint one of its members to begin the necessary investigation and procedures. The CNIL has to inform the person that a member of the CNIL has started the verification procedure. With regard to the right of access to the data held in the NSIS, Article 6 of the NSIS decree of 6 May 1995 stipulates that the right to access is to be exercised in conformity with Article 39 (now 41) of the LIFL. This means that the right of access has to be asserted through the CNIL.93 Based on a theory of indivisibility of data files, it was generally accepted that if a public file contains information which should be kept secret in the interests of national security, direct access to the whole file should be denied. Before 2002, with regard to a request for access to the NSIS, the NSIS was considered an ‘indivisible’ file. In the light of the partial use of the NSIS for national and public security purposes, both the government and the CNIL considered the procedure of indirect access applicable. In a judgment of 6 November 2002, the highest French administrative court (Conseil d’État) departed from its earlier jurisprudence on indivisibility with regard to information stored on the basis of Article 96 CISA.94 In this case, Moon, the head of a religious movement, applied for access to the information entered in the NSIS on behalf of the German authorities on the basis of Article 96 CISA. Mr. and Mrs. Moon are South Korean nationals, who are resident in the United States and leaders of the religious organisation known as the Unification Church.95 The reason for this (extended) registration is based on German concerns that the visit by Mr. and Mrs. Moon (born in 1920 and 1942 respectively) would pose a threat to the public order. Mr. Moon and his wife started procedures in different EU Member States in order to be granted access to one of those countries, despite the German alert. In its judgment, the Conseil d’État explicitly distinguished between, on the one hand, information held in the NSIS, communication of which would affect the interests of national security, defence or public order and, on the other hand, 93 94 95 Décret no. 95–577. CE 6 November 2002, Sun Myung X (Moon), no. 194295–219587. Most of the jurisprudence of the Conseil d’État and other French courts can be downloaded from http:// www. legifrance .gouv.fr, or, partially, via: http://www.conseil-etat.fr/ce/home/index.shtml. This judgment has been commented upon by R. Errera in: Public Law, 2003, p. 187. As we will see in the next chapters on Germany and the Netherlands, the Moon couple lodged judicial remedies against this SIS report in those countries as well. Only in 2007, on the basis of a decision of the German Federal Administrative Court, the German authorities withdrew the alert on Mr. Moon. The report on Mrs. Moon remained in the SIS on the basis of a French decision. 354 Chapter 11 information which would not affect these interests if communicated. With regard to the second category, the highest administrative court decided that the responsible authorities, or the CNIL with the consent of these authorities, would have to communicate these data to the person concerned. In order to implement the consequences of this judgment, the French legislator amended Article 39 LIFL.96 Based on this amendment, information can be communicated directly by the CNIL to the person concerned, if the CNIL concludes that the communication of the personal data to the data subject does not interfere with the interests of national security, defence or public order. The amendment also made it possible for the regulation which is the basis for the data processing in the field of security, defence or public order, to provide for the possibility of giving the person concerned direct access to his or her data, “if this does not interfere with the goals of the files”. With regard to the information held in the NSIS, this means that the right to indirect access still applies. Only if this would be provided for in a special regulation, a right to direct access would be possible but, so far, such a regulation has not been adopted.97 In 2005, the extended power of the CNIL to communicate ‘insensitive’ information directly to the person concerned was restricted again. Based on a decree from 2005, this information may not be communicated by the CNIL if this is prohibited by the authority responsible for the data processing.98 This means that it is no longer the CNIL which decides whether the information can be directly communicated or not. Notably, with regard to the establishment of the French visa information system, or RMV2 (see above), the legislator has chosen for a “mixed right to access” in Article 6 of the decree of 22 August 2001.99 With regard to the information recorded in respect of visa applications, the applicants can assert their rights to access directly with the consulate or embassy where the visa application was lodged, however, information which has been recorded in attention files (fichiers d’attention) which is likely to pose a risk to state security, defence or public security, is only accessible thro ugh the right of indirect access, which is through the mediation of the CNIL. 5.5.2. Application for a Right to Access and Time Limits The LIFL itself does not include a time limit within which the CNIL has to deal with the request from the data subject. More specific rules for the implementation 96 97 98 99 Loi no. 2003–239 of 18 March 2003. The organisation Cimade, in its report on administrative retention of 2003, criticised the lack of an individual right to direct access with regard to SIS and advocated the adoption of such a rule, p. 135. Décret no 2005–1309, JO 22 October 2005. Ministerial decree of 22 August 2001, JO 14 September 2001. France 355 of LIFL are laid down in the ministerial decree of 20 October 2005.100 Articles 86–87 of this decree deal with the right to access to files relevant to state security, defence or public security. In accordance with Article 87, the CNIL should respond within four months to an application for access (this means informing the applicant of the facts discovered by the CNIL). Within this period of four months, the national authority to which the CNIL has forwarded the individual application has a period of three months within which to respond. If the CNIL is to collect information from a data protection authority in another EU Member State or a third country, this period of four months will not commence, according to Article 87 (3), until the CNIL receives the information from these authorities. This means that persons applying for information about their record in the NSIS can face lengthy delays before the Data Protection Authority will respond to their application. Especially in the case of third-country nationals threatened with expulsion based on information stored in the NSIS, the road to the CNIL will often prove ineffective.101 The length of the procedures of indirect access through the CNIL can be illustrated by a case which was brought before the Conseil d’État in 2004.102 This case concerned an individual who applied to the CNIL for the right to indirect access to his data, held in the NSIS. He was informed by the CNIL on 28 November 1997 that a member of the CNIL had started investigations. By a decision of the administrative court in Paris of 26 May 1999, the CNIL was ordered to reply within two months. Almost four year later, during which time the CNIL did not respond, the CNIL was again ordered to reply, this time by the highest administrative court, in a judgment of 12 February 2003. Finally, in an answer of 17 November 2003, nine months later, the CNIL informed the applicant about his NSIS report. In its judgment of 5 July 2004, when the case was again brought before this court, the Conseil d’État did not refer to the length of time within which this procedure took place. The Court only established that the CNIL did finally respond to the request from the applicant which would have rendered null and void the application for the annulment of the CNIL acts.103 5.6. Composition, Tasks and Powers of the French Data Protection Authority (CNIL) The French Data Protection Authority (CNIL) consists of 17 members: four Members of the French Parliament (two from the Senate and two from the 100 101 102 103 Décret no 2005–1309, JO 22 October 2005. This problem was highlighted in the Cimade report on administrative detention of 2003, p. 133. Conseil d’État, CE 5 July 2004, X, no. 210185. In its annual reports, CNIL acknowledged the length of these procedures. See, for example, the 24th report on 2003, p. 51. 356 Chapter 11 National Assembly); two members of the Economic and Social Council (Conseil économique et social ); two members or former members of the Council of State or Conseil d’État; two members or former members of the Cour de Cassation; and two members or former members of the French Court of Auditors (Cour des Comptes). Only five persons are designated as members for the CNIL because of their knowledge of information technology or questions with regard to individual liberties. Three of these five ‘specialists’ are assigned by the government and two by the French parliament. The composition of the CNIL has changed over the years. An important role was filled by Jacques Fauvet, who was chairman of the CNIL between 1984 and 1999 and who, as we saw above, criticised the development of the SIS. The CNIL has primarily advisory tasks. Article 25 LIFL describes the data files which require a positive opinion from the CNIL before their installation. Since the French Data Protection Act was amended in 2004, Article 26 LIFL provides for an important exception to this principle of prior authorisation by the CNIL. Files in the interests of national security, defence or public security, or files used for the prevention, investigation, establishment and pursuit of criminal offences or the enforcement of criminal punishments or security measures no longer require prior approval. According to Article 26 LIFL, these measures only need a motivated and published opinion from the CNIL. This means that police forces can establish new files, even if the CNIL has given a negative opinion on the proposal concerned. For example, in early 2005, the legislator proposed the reinstallation of a database on ‘people accommodating third-country nationals’ (fichier relative aux hébergeants). This file has a long history within the French administration and has been previously withdrawn. The proposal for re-installation was criticised by the CNIL. In its opinion of March 2005, the organisation criticised the extended scope of the information to be held in this file.104 The conclusions in this opinion were only partially followed by the legislator when adopting the final decree on the database.105 Initially, the CNIL had only limited powers. On the basis of Article 45 ff. LIFL, the French Data Protection Authority can issue a warning against the responsible organisation or authority failing to comply with the rules of the French Data Protection Act. If this organisation or authority does not act upon this warning, the CNIL may impose a financial penalty or order the blocking of the data processing. Since the amendment of LIFL in 2004, the CNIL has had the option of imposing financial sanctions if the authority or organisation concerned does 104 105 CNIL, Délib. no. 2005–052, 30 March 2005, see Bulletin Dictionnaire Permanent Droit des Étrangers, no. 137, September 2005, p. 6818. Decree no. 2005–937, 2 August 2005, JO 6 August 2005. France 357 not observe the sanctions issued by the CNIL.106 These sanctions may include fines up to a maximum of € 150,000 for the first ‘offence’, up to a maximum of € 300,000 in case of repeated ‘offences’ within five years of the first sanction by the CNIL becoming definitive. This new competence means an important extension of the powers of the CNIL.107 In June 2006, the CNIL used this new competence for the first time and imposed a fine of € 45,000 on the French bank Crédit Lyonnais. The bank was fined following repeated complaints from customers who were wrongfully registered in central databases of this company.108 In addition to this power of the CNIL to impose sanctions, new ‘offences’ have been added to the criminal code, punishable by fines of between € 100,000 and € 300,000 or even three to five years of imprisonment.109 These offences include, for example, failure by the authority or person responsible for the data processing to inform the individual of the purpose and use of the file and of his rights. Also, if the data processor exceeds he applicable time limits for the storage of information or is keeping data for purposes other than prescribed, this person or organisation risks a fine or imprisonment. The CNIL may submit such cases to the public prosecutor if it finds that the rules of the French Data Protection Law have been breached. During the period under study, the CNIL had only five officials available for its control and investigative functions. This means that systems such as the NSIS, AGDREF and the visa files were rarely, if ever, properly checked. In a press statement in 2005, Alex Türk, president of the CNIL, referred to the increasing number of applications for access to police files which were received by the CNIL.110 According to this statement, this increase was directly related to the different new measures which had recently been taken by the French government in the fight against terrorism. In the same statement, the president of the CNIL stressed that the organisation was no longer equipped to handle the large volume of individual requests and that, therefore, new financial resources would be necessary. 5.7. Practical Information on the Right to (Indirect) Access to NSIS Information The annual reports of the CNIL offer valuable statistical information on the use of the individual right of (indirect) access to data held by government 106 107 108 109 110 Loi no. 2004–801, 6 August 2004, JO 7 August 2004, p. 14063. C. Pallez, L’Exercice du pouvoir de sanction est une révolution culturelle pour la CNIL, Petites affiches, 29.09.2004, no. 195, p. 3. Communication of 4 September 2006, see http://www.cnil.fr. This decision was also published in the French newspapers Le Figaro and La Tribune of 15 August 2006. Based on the ministerial decree on the implementation of LIFL, Code Pénal, Articles 226–16 to 24. Press statement of 20 April 2005. 358 Chapter 11 organisations.111 This also includes data on the annual number of applications with regard to the NSIS. Between 1999 and 2003, approximately 50% of the individual demands for indirect access submitted to the CNIL concerned data held in the NSIS. For example, in 2000, 397 of the 817 applications for indirect access concerned the NSIS and in 2003, 599 of the 1,163 applications. Since 2003, this relative number of applications with regard to the NSIS dropped. Although, in 2004, there was an important increase in applications for access in general, this did not concern the NSIS alerts. Nonetheless, of the total number of 1,970 applications received by the CNIL, 548 concerned the NSIS. The annual report for 2005 does not refer to the general number of applications for indirect access but, in this year, 410 applications concerned SIS alerts. The annual reports of the CNIL also include information on the results achieved with regard to the individual claims submitted to this organisation. According to the annual report for 2005, between 1995 and 2005 the CNIL received a total of 3,142 requests for access with regard to the NSIS. Of these 3,142 applications, 1,059 persons were actually registered in the NSIS. Thirtyseven percent of these reports were entered by the German authorities, 0.7% by the Dutch, 41% by the French and 16% by the Italian authorities. Following intervention by the CNIL, 377 of those 1,059 reports investigated by the CNIL had to be withdrawn from the NSIS. In other words, 35.6% of the files investigated proved unlawful or wrong.112 Note that in 2003 and 2004 this relative percentage of SIS alerts to be withdrawn was higher: of the total of 747 SIS files investigated by 2003, 308 had to be deleted, i.e. 41%. In 2004, of the 913 files investigated, 337 (or 37%) of the SIS alerts had to be withdrawn113 According to the report as forwarded in reply to a questionnaire from the Schengen Joint Supervisory Authority in 2004 on the implementation of Article 96 CISA, the applicable time limits of three years had been observed by the French authorities.114 5.8 Right to Legal Remedies The LIFL does not provide specific rules on legal remedies, nor does this law mention which rules apply when, for example, an individual request for access or correction of his or her data has been refused. It is doubtful whether this lack of an explicit reference to a judicial remedy in the French Data Protection Act is in 111 112 113 114 The reports are published at http://www.cnil.fr and http://www.lesrapports.ladocumentation francaise.fr. 26th Rapport d’Activité CNIL for 2005, published in 2006, p. 23. See the 24th Report for 2003, p. 50 and the 25th Report for 2004, pp. 46–47. Unpublished report of CNIL, 2004. fr/rapports-publics/994001043/index. See http://www. 115 116 117 See. For example. referred to in section 5. successive Ministers of the Interior often responded to current events. the judgment of the Conseil d’État. the general rules of administrative law apply to decisions by the public authorities. 210185. referring to a new. General Background to Immigration Law Since 1980. Code de l’entrée et du séjour des étrangers et du droit d’asile.ladocumentationfrancaise.2 above. apparently more for political than for pragmatic reasons. Article 22 requires national law to provide for judicial remedies. for example. the Loi Debré of 1997 tightened up the immigration rules and provided for the possibility of storing fingerprints. major amendments.117 One of the stated aims of this law was to ensure more efficient and fair immigration control. even if administrative procedures before the national data protection authority are available. Loi no 2003-1119. in order to deal with the increase in numbers of refugees coming from Eastern Europe. This feature is not typical of France.116 An important and major revision project was implemented by the Loi Sarkozy of 26 November 2003 (hereafter the Immigration Act 2003). JO 27 November 2003. A more liberal approach to immigration was included in the amendments of the Loi Chevènement of 1998.1. Again. in which a more liberal visa policy was advocated in order to improve the ‘image’ of France abroad. However. French immigration law has undergone successive. . It occurs in other EU countries as well. the same Minister presented the second Loi Pasqua. on the report by Patrick Weil of 31 July 1997.France 359 conformity with the provision of Article 22 of EC Directive 95/46 on the protection of personal data or Article 111 CISA. in response to terrorist bombings in Paris.5. no. In 1993. These amendments were based. This also applies to decisions by the CNIL. CE 5 July 2004. among other things. which is an administrative authority. An individual may therefore lodge an administrative appeal against the decisions of the CNIL. in response to the terrorist attacks of 1985–1986. the Loi Pasqua tightened up the existing rules on expulsion and promoted the instrument of visa policy as a weapon against terrorism. Rights and Remedies in Immigration Law 6. including the fight against illegal immigration and improvement of the expulsion policy. so-called ‘zero immigration’ policy (immigration zéro). By amending immigration law (and giving these amendments their own names).shtml. This permanent modification illustrates the political and sensitive character of immigration law.115 6. I will refer to this new law as ‘Immigration Law 2006’. For example. 233 ff. the second immigration law reform project of Minister Sarkozy was adopted by the French parliament.2.118 Commentators criticised this so-called lifting of the double peine. and the various amendments withdrawing or reintroducing the suspensive effect of an appeal against an expulsion. as provided in Articles L. I will describe the relevance of the interim procedures before the administrative court with regard to immigration law procedure. Below. including labour migrants. p. and provided for less stringent rules with regard to the admission of certain categories of migrants. au séjour des étrangers en France et à la nationalité. 2003. The most important amendments which are relevant to the use of the NSIS. in addition to the imprisonment of a convicted foreigner. paper for Elise. JO 25 July 2006. Amendments to French Immigration Law and the NSIS Some of the amendment projects described above included changes with regard to the applicable law on the use of the NSIS and the availability of legal remedies. students and researchers. 530–558. including in the field of family reunification. also published in Baldaccini & Guild (2006). JO 25 November 2004. Exceptionalism and the rule of law in the EU: The changes in laws on immigration and asylum in France in response to terrorist fears. concern the (re-)introduction of the duty to motivate visa refusals. Code de l’entrée et du séjour des étrangers et du droit d’asile (Loi Reseda). French immigration law had been re-codified to produce a more readable text. 93 (2) avril-juin 2004.org. in Carlier & De Bruycker (2005). La loi no. 2003-1119 du 26 Novembre 2003 relative à la maîtrise de l’immigration. Julien-Laferrière. and C. his expulsion upon release. p. As we will 118 119 120 121 See D.360 Chapter 11 The Immigration Act 2003 included certain amendments to the law on residence permits. Revue critique de droit international privé. Loi no 2006-911 of 14 July 2006. This Loi Sarkozy 2006 or the Law on Immigration and Integration (Loi relative à l’immigration et à l’intégration) included stricter rules for the admission of third-country nationals. These remedies include the so-called réferé-suspension and réferé-liberté.121 In the following sections. Turpin. 2004-1248. Published at: http://www. the Loi Sarkozy limited the possibility of the so-called ‘double punishment’ (double peine) whereby a judge in a criminal court could order. 521-1 and 521–2 respectively of the Code de Justice Administrative. with the stated aim of improving the integration of legally resident foreigners.119 In 2004. arguing that the Loi Sarkozy only modified the applicable rules and in fact extended its application to new offences. the establishment of a special commission responsible for re-examining visa applications after a refusal by the consul. p. Ordonnance no. Saas. 311–393. . Les nouvelles lois sur l’immigration et l’asile dans le contexte de l’Europe et la mondialisation.libertysecurity.120 Only two years later. F. 6. 24 November 2004. France 361 see in the following sections.gisti.123 According to Article 4 of this law. 6. these remedies are especially important with regard to expulsions based on NSIS reports. Code de Justice Administrative. amending the French Act no. Entered into force on 1 November 2000. to allow the person concerned to apply his right of 122 123 124 125 The availability and meaning of these suspensive procedures in immigration law are extensively dealt with in the report of GISTI. serious doubt must exist with regard to the lawfulness of the decision. 521-1 should be preceded by a procedure on the merits of the case. Article 16 of the Law no.125 In 1997. Loi no 2000-321 relative au droits des citoyens dans leurs relations avec les administrations. for our subject it is important to refer to the French law on the rights of citizens in their relations with the administration. Law on Administrative Justice of 11 July 1979. it was ruled that the aforementioned amendment would be contrary to the obligations deriving from the French Data Protection Act with regard to visa refusals based on information recorded in the NSIS. see http://www. This argument had been forwarded by Patrick Weil in his report to the French legislator of 31 July 1997: “it is necessary to provide the motivation for visa refusals in the case of registration in the NSIS. 9 September 1986. Before 1986.124 Since 1986. two requirements have to be fulfilled: firstly.122 To use this procedure. the urgency of the case must justify suspensive measures and. this law states that if the administrative authorities do not reply to an individual’s application within two months. November 2005. Also.3. not to be confused with the Pasqua laws of 1993). 79–587 of 11 July 1979 with regard to the motivation of administrative acts. this ‘silence’ is to be considered a refusal of the application. Finally. secondly. Duty to Motivate Decisions Article 5 of the Immigration Act as amended in 2003 states that the access to French territory may be refused to an alien whose presence would pose a threat to the public order. data subjects would not be able to assert their rights of access to the data file in accordance with the LIFL. motivated decision. Paris. decisions to refuse visas have been excluded from this general requirement. Act of 12 April 2000. . An appeal for a suspensive measure based on L. JO 13 April 2000. If the authorities were not obliged to justify such decisions. 86-1 025. This requirement was based on the general principle in French administrative law of 11 July 1979 that negative administrative decisions should always be motivated. Utiliser le référé administrative pour la défense des étrangers. with the amendment of the French Immigration Act (Loi Pasqua 1986. these refusals had to be given in a written.org. each administrative decision should indicate the author of the decision. The seven other situations include. in the reintroduction of the duty of motivation with regard to certain categories of visa refusal. Mission d’étude des législations de la nationalité et de l’immigration.4. 65–66: “il conviendrait de prévoir la motivation des refus de visa en raison de l’inscription au SIS. perhaps. To find out the reasons for the NSIS alert. p. Traditionally. except if considerations of national security would prevent this motivation. It was held that the function of administrative courts was to ensure the correct application of the law and not to define the law. Rapports au Premier ministre. French administrative courts have only had a marginal role with regard to the functioning of the administration and the definition of law. p.128 During the parliamentary debate. economic migrants who are entitled to paid employment in France and students who are entitled under French law to receive higher education. Tavernier. Paris: La documentation Française 1997. The Position of the Administrative Court in Immigration Law To understand the role of the court in French immigration law. this would not oblige the authorities to disclose the real motives for the registration in the NSIS since these motives could be kept confidential. with the amendments of the Loi Chevènement. stricter view with regard to the separation of powers.127 Since this amendment to Article 5 (1) of the Immigration Act in 1998. 6. p. since this latter task 126 127 128 129 P. Sénat.1. among others: persons who are a family member of an EU or EEA citizen. 7087. it is necessary to take into account several developments.129 According to the Minister. the person concerned would have to address these other countries. 444.362 Chapter 11 access through the CNIL.”126 This consideration resulted. . in 1998. family members of a French national. JO Déb. JO 12 May 1998. Weil.4. This was a consequence of the general and. the French authorities are obliged to provide grounds for the reasons for the refusal of a visa in eight situations. This jurisprudence will be dealt with in section 7. According to the French Member of Parliament. this duty to motivate visa refusals based on a registration in the NSIS would have led to “an explosive increase” in judicial proceedings before the French Conseil d’État. compared to other countries. One of these situations is when the decision to refuse a visa is based on the fact that this person has been reported in the NSIS for the purpose of refusal of entry. Loi no 98–349 of 11 May 1998. afin que la personne concernée puisse ainsi utiliser son droit d’accès à la CNIL”. Minister Chevènement stressed the limited scope of this duty to motivate. Sessions 27 January 1998. The only information to be communicated to the person concerned would be the fact he or she is registered and by which country or countries. Mr. Legal Remedies 6. Applying judicial selfrestraint. the administrative courts. Another important role was played by the French NGOs. 97–389. This Council. the recognition of an extended role for the administrative courts was supported in different decisions of the Constitutional Council. the national authorities should respect human rights as protected in the European Convention. have started to play a more extensive role with regard to the field of immigration law.130 Despite the wording of Article 66. In its decision on the Act to adopt the CISA. décision no 91–294. the Constitutional Council implicitly accepted the power of the administrative court in this matter. . it became clear that with regard to immigration measures too.France 363 belonged to the sovereign power of the legislator. This exclusive role for the legislator particularly concerned French immigration law. such as GISTI. JO 25 April 1997. Thirdly. In Article 66 of the Constitution. the Constitutional Council explicitly referred to the guaranties in this Treaty with regard to the protection of the respect for personal liberty. An initial reason for this extended role by the administrative courts was the case law of the Strasbourg Court with regard to the European Convention on Human Rights. the Constitutional Council emphasised that this constitutional protection of individual liberty applies to foreigners as well. On the basis of this case law. established by the French Constitution of 1958 as an advisory institution. Articles L. one could refer to another important development with regard to the legal protection of individuals under administrative law. ministerial circulars and individual expulsion orders. entered into force on 1 January 2001. declared the ‘guardian of individual liberties’. JO 27 July 1991. Finally. JO 1 July 2000. which is the introduction of the possibility of an application for interim relief before the administrative courts. 521-1 and 521–2 CJA (Code de Justice Administrative). décision no. Since the late 1970s. the juge judiciaire was opposed to the juge administrative. led by the Conseil d’État. started a test case against the French government on behalf of immigrants with regard to important institutional questions. departed in its conclusions from the traditional distinction between judicial and administrative courts ( juges judiciaire and juges administratives). which is an administrative authority. In various opinions.131 Since these guarantees are to be provided by the French Data Protection Authority. 2000-597 of 30 June 2000. this new law provided the possibility for administrative courts 130 131 132 Conseil Constitutionnel. administrative courts generally respected this discretionary power of the administration. Civil rights organisations. Conseil Constitutionnel. including regulations. the Constitutional Council seemed to favour the competence of the administrative courts with regard to the protection of the rights and liberties of foreigners. Their scope of review extended to different administrative decisions relating to third-country nationals. 22 April 1997. Loi no. 25 July 1991.132 As mentioned above. the French legislator introduced the so-called Commission for Residence Permits (Commission du séjour) which is an administrative consultative authority. Legal Remedies Against a Refusal of Entry French law does not provide for a special remedy against the refusal of entry. especially for those decisions which are excluded from the general rules on suspensive remedies. However. without the written and signed decision. mentioned above. applies to these decisions. As we will see in the following sections. 18 May 2005. 04-50-053. J. Jabeur. 129. This appeal has no suspensive effect. the person could argue before the court that he or she has not been informed of his or her rights. A person refused entry will have to lodge an appeal against the notification of refusal within two months.2. these suspensive remedies are an important tool in the field of immigration law. Since the amendment to the Immigration Act of 1993 (Loi Pasqua). the powers of this Commission have been limited. in: Guild & Minderhoud (2001). where the French Cour de Cassation accepted a written text including the words. suspend the administrative decision or measure. this formal requirement to submit a written statement immediately could imply a barrier on using legal remedies for a given individual.4. as a sufficiently motivated appeal against the refusal of entry. they are with my sister”. as provided in the French Immigration Act. 511-II (1) ). the right to appeal against a refusal of entry should not be impeded by excessively strict formal requirements. advising the head of police when dealing with a request for (the renewal of ) a residence permit. The amendment to the Immigration Act by the Loi Sarkozy of 26 November 2003 included the duty for officials to issue a written motivated decision of refusal of entry. The general administrative procedure.. the court may order the administrative authorities to set the applicant at liberty.134 After this Commission had been dissolved by the Loi 133 134 Court Cass. The former decision will. The person concerned should immediately. This decision may then be executed directly (Article L. The procedure before this Commission only applies to thirdcountry nationals with stronger ties to France.364 Chapter 11 to issue either a suspensive injunction (réferé-suspension) or an injunction of liberty (réferé-liberté). no. With the latter decision. Security of residence and expulsion: protection of aliens in Europe: the French experience.E. “I have a passport. 6. after having obtained this written decision.133 In 1989. This was confirmed in a judgment of 1 May 2005. during the basic procedure. These new requirements were meant to exclude the possibility that. The heads of police or préfets are no longer bound by the decisions of this Commission. Malabre. . 1st civ. p. in practice. I have all the documents. As a general principle. declare in a written and signed statement whether he or she intends to use the possibility of appeal against this refusal. 3. See.135 The establishment of this special commission of appeal has been justified by the French legislator because of the enormous caseload weighing on the administrative court with regard to decisions regarding visa refusals. 10 November 2000. JORF. See further GISTI. the person concerned may apply to the administrative court. September 2006. P. the suspension of a visa refusal has been ordered in cases where this measure seemed necessary to offer the applicant the possibility of caring for minor children. which falls under the organisation of the French Ministry of Foreign Affairs. 2000-1093. now called the Commission du titre du séjour. Despite the compulsory procedure before this Commission. Weil (eds). May 2003 and its updated version: Les Visas. Since 1 December 2000.France 365 Debré in 1997. Only when this commission sustains the administrative negative decision. this increase in judicial procedures against visa refusals based on the NSIS. The applicant may appeal against the negative advice of the commission. Paris.3. Vol. Paris: GISTI. its practical meaning remains relatively weak. visa applicants now first have to address a special commission of appeal (Commission de recours contre les décisions de refus de visa). for the criteria as developed by the Conseil d’État. Utiliser le référé administrative pour la défense des étrangers. a spouse or family members in need of help. See P. the report of GISTI. . the Loi Chevènement re-installed a new Commission. The Commission. in an urgent situation it is still possible for the applicant to lodge an appeal for a suspensive measure before an administrative court in accordance with Article 521-1 of the French Administrative Act. 6. third-country nationals whose visas had been rejected could lodge an appeal against this refusal with the Conseil d’État as a court of first and last instance. Legal Remedies Against the Refusal of a Visa Before 2000. novembre 2005. After having applied to this Commission. De Schengen à Amsterdam: Questions juridiques et solutions institutionnelles.4. 20–21. is said to be linked to the new requirement of motivated decision-making as provided for in the Loi Chevènement of 1998. La réglementation. Les Cahiers Juridiques. From Schengen to Amsterdam. Hailbronner. in: K. However. the applicant is allowed to lodge an appeal with the administrative court. les recours. p. Trier ERA Series of Publications. p. les textes. When it advises the Ministry of Foreign Affairs to issue the visa. Towards a European Immigration and Asylum Legislation.137 135 136 137 Décret no. As mentioned in section 6. or the renewed negative decision of the Ministry of Foreign Affairs. Hubert. Although the administrative court applies strict criteria to assess the urgency of the situation. 29. 65–73. Les Cahiers Juridiques. Les visas en France.136 This commission for appeals against visa decisions should be addressed within two months of the individual having been notified of the refusal. 1999. has only an advisory role. Paris: GISTI. the Ministry is allowed to uphold its initial negative decision. 138 6. the Minister of the Interior addressed the local prefectures on several occasions. the Minister of the Interior published a report according to which.366 Chapter 11 The French law on visas is almost silent with regard to which criteria apply to visa refusals or to the issue of visas.6%. these annulations are based on the grounds that the third-country complied with all the general visa conditions or that the visa refusal is in breach with his right to family life. the number of current expulsions increased by 68. 521-1 ff. This category of expulsion is regulated by Article L. 139 (2005). traditionally. In reply to 138 139 140 See GISTI (2006). 531–3 of the Immigration Act 2006. unless this person is registered in the NSIS on the basis of a final decision (décision exécutoire) by one of the other Schengen States. This expulsion decision is provided for in Articles L. See Articles L.512-2 jo. 523-1). Bulletin of the Dictionnaire Permanent Droit des Étrangers. of the French Immigration Act 2006. p.140 This latter exception was added by an amendment to the Loi Sarkozy of 2003 and is based on Directive 2001/40 on the mutual recognition of expulsion decisions. . the administrative court has only a marginal role in assessing the lawfulness of decisions by the French authorities to refuse visas. Both decisions (expulsion and reconduite à la frontière) can be issued by the local prefects or by the Minister of the Interior. described in section 7. 531–3 of the French Immigration Act. The first category concerns the decision to expel foreigners who reside legally on French territory and who are ordered to leave France for reasons of public order or national security. p. Only procedures against an expulsion in the second category (arrêtés reconduite à la frontière) will automatically suspend the decision for the first 48 hours. based on the fact that this person is in France illegally. Therefore. The jurisprudence on visa refusals and the NSIS. Only if the court establishes that there has been a manifest error of evaluation (“erreur manifeste d’appréciation”) can the administrative decision be annulled.4. no. however these persons are to be informed and heard in advance.4. 511-1 and L. The second category concerns the decision of the French authorities to expel a person to the external border (reconduite à la frontière). Generally. demanding a more active expulsion policy with regard to unwanted or illegal third-country nationals. The lack of suspensive remedies with regard to expulsion orders on the basis of a foreign SIS report has been questioned in the French Parliament. or if the expulsion is based on a foreign expulsion decision. After 2001. 6775.139 Procedures against expulsions in the first category have no suspensive effect (Article L. between 2001 and 2005. show that the Conseil d’État used this marginal role on a regular basis to quash refusals of visas. In 2005. 25. Legal Remedies Against Expulsion French law distinguishes between two categories of expulsion. ”142 This presumption is. wrong because Article 96 CISA does not include the requirement that the alert can only be based on a final decision by national authorities. or to order the liberation of this person if he is detained in one of the French detention centres. Le juge administrative français face à l’application de la Convention de Schengen dans ses dispositions sur le droit d’asile. In practice. Just one week after the NSIS became operational. See the ministerial answer to the question of Vuilque. for an overview of this early jurisprudence on NSIS. p.141 This presumption would. pp. 521–2 of the French Administrative Act. The Minister added that “hypothetically” it may be presumed that this foreign decision is notified to the person concerned and that the applicable time limits for appeal have expired. 1959.France 367 these questions. M. 521-1 and L. according to this Minister. the administrative court of Strasbourg issued the first judgment on the NSIS. 59–60. 3–2000. French case law with regard to the use of the NSIS in immigration law has been steadily generated. . Both the référé-suspensive and the référé-liberté could be relevant for a person to be expelled on the basis of a SIS report. “Le signalement justifie donc une reconduite sans délai et sans recours suspensif dès lors que l’intéressé a déjà eu la faculté d’exercer un recours contre la décision exécutoire qui est à l’origine de ce signalement. the persons to be expelled may invoke the suspensive remedies as based on Articles L. notifiée et dont les délais de recours sont expirés”. if the court is convinced of the need to suspend the possible expulsion. As mentioned above. Case Law 7. justify immediate expulsion since the person concerned “would already have had the possibility to appeal against the decision which forms the basis for the SIS report. in which the court annulled a decision to expel a thirdcountry national on the basis of a SIS entry. See. p. Igel c/Préfet de la Moselle. E. 10386 and JO 22 February 2005. but also (as we will see in the next Chapters) in Germany and the Netherlands. the Minister of the Interior made it clear that foreign decisions to register a third-country national in the NSIS are to be considered definitive decisions. Bilan juridictionnel de l’application en France des accords de Schengen. no. 54624: JO 28 November 2004. Aubin. Introduction Since the NSIS became operational. third-country nationals do not always have the right to appeal against the decision which forms the basis for their registration in SIS. however.143 7. in France. 3 April 1995. 829–862. Revue de droit Public no. TA Strasbourg. p. donc par hypothèse.144 The most important judicial 141 142 143 144 “… le signalement ne fait donc que rappeler l’existence d’une décision exécutoire prise par un autre membre.” See further the GISTI report of 2005.1. even internationally. in the famous Hamssaoui judgment. See. Hamssaoui. Mme. no. 190384. Adjudicating Schengen: National judicial control in France. which dealt with the refusal of short-stay visas. In its judgment. 9 June 1999. 198344. the Conseil d’État refers only to the State which reported the person in the NSIS (l’État auteur du signalement). based on the fact that this person is registered in the NSIS. the court annulled the refusal of a long-term visa. One could therefore argue that. should indicate the foreign state which entered the applicant in the NSIS. Duty to Inform the Data Subject The duty of the French authorities to motivate their decisions based on registrations in the NSIS has been a regular subject of the decisions by administrative courts in immigration law. the Conseil d’État uses the words “state” and “authority”. the court ruled on the duty of the French authorities to inform data subjects on the State or authority issuing a SIS alert. no. concern the refusal of entry or a residence permit based on an Article 96 report. 220420. In later judgments. M. it does not seem that the Court actually meant to extend the duty of information in this way. but also of which specific authority within this State reported the person into the NSIS .146 7. .148 145 146 147 148 CE 9 June 1999. according to this Court. Forabosco. 2000/1.368 Chapter 11 procedures involving Article 96 CISA are the procedures against expulsion orders and the decisions based on which visa applications have been rejected. for an extended analysis of these and other French judgments on SIS. and CE 9 June 1999. With regard to refusals of visas. Decision of 9 June 1999. European Journal of Migration and Law. the courts did not accept the mere reference by French authorities to the existence of the SIS report. Other procedures. However.147 The Court referred in this decision directly to the statements by Minister Chevènement during the parliamentary debate on the amendments providing for this duty to motivate certain categories of visa refusals. given the fact that the Court refers to the parliamentary history of this provision (during which reference is only made to the foreign state) and the fact that the Court does not give any other explanation. acknowledging the power of national courts to assess the legitimacy of foreign decisions to report a third-country national in the NSIS.2. 419–439. Important milestones in the jurisprudence. In 1999. were the Hamssaoui and Forabosco judgments by the Conseil d’État in June 1999. p. CE 20 February 2002. 198344.145 In the first judgment. In the second judgment. et Mme. the authorities have to inform the visa applicant not only of which State. the Conseil d’État ruled that decisions refusing a visa to a person. Elspeth Guild. as well as with regard to expulsion decisions or refusals of entry to the territory. no. which resulted in a lesser volume of case law. no. Boucetta. M. but not the reasons for this report. according to the Minister. no. The higher court of Paris explicitly stated that such a reference could not replace the obligation to motivate the decision to refuse entry in question. In a judgment of 20 February 2002. even if the provisions of the CISA did not apply to the French overseas department. no.149 The same conclusion was reached by the administrative court of appeal of Paris with regard to the decision to refuse entry. During the procedures of this case. Boucetta. 0301352. In a decision of 2004. 18 November 2004. 220420.154 This case concerned the question of whether the sole fact of being registered in the NSIS for the purpose of refusing entry to a third-country national was sufficient motive for the refusal of a visa. the administrative tribunal of Pau held that a decision by a prefect to expel a person on the basis of a German SIS report was unlawful because the prefect failed to indicate the date on which the German authorities had forwarded this report to the NSIS.3). 003366. Faifer. Barzilay. Cour administrative d’appel. Here. Other judgments in which lower courts held that the motivation for expulsion decisions based on a SIS record was insufficient: TA Nice 16 July 2002. CE 10 January 2003. no. c/ Préfet de la Haut Garonne. no 223395.153 An interesting issue was dealt with in the judgment of the Conseil d’État in the Joorawon case of 10 January 2003. the Conseil d’État decided that a French decision rejecting a visa. TA Pau. CE 20 February 2002. the applicant had to apply to the French Data Protection Authority for his right of indirect access. no. the Paris court considered that the mere reference in the decision to the fact that Minin was a danger to the public order. 023061. no. see section 6. the Minister of the Interior had argued several times that the application for entry by Minin had to be considered a request for access to his information. without mentioning any facts of circumstance. should indicate the State forwarding this report to the NSIS. did not fulfil the legal obligations regarding motivation (as provided in the general administrative law of 1979.151 French jurisprudence is not clear on whether an administrative decision based on the SIS information forwarded by other Schengen states should indicate the reasons for these foreign reports. TA Lille 16 May 2002.France 369 The Conseil d’État established further in the Hamssaoui judgment that the duty to inform the applicant as mentioned above cannot be replaced by referring to the possibility for the applicant to apply to the French Data Protection Authority for his or her right of indirect access to the information. based on a SIS report.152 A broader interpretation of the duty of motivation was given in the aforementioned judgment in the Minin case. decision of 18 January 2001. 99PA02845. TA Toulouse 24 October 2000. Minin.150 This case concerned a third-country national. who had been refused access to French territory based on a registration in the NSIS. . Ali Mohamed Noorani Joorawon. no. whose 149 150 151 152 153 154 See also the judgment CE 28 July 2000. Valencia. 021741. Therefore. 205435. no. Anton. Minin. Revue du Droit Public. solely on the basis of the fact that the applicant was reported in the NSIS for the purpose of being refused entry. 190384.370 Chapter 11 consulate (at Port Louis. unlawful decisions. Bilan juridictionnel de l’application en France des accords de Schengen. who was married to a French national. CE 9 June 1999. Even if this latter ground could have been a legally justified ground for refusal of a visa application. Chambre syndicale du Transport Aérien and CE 29 December 1997.3. no. in which the government replaced the initial (unlawful) motivation for a negative decision during the proceedings for a lawful motivation. The Court rejected this separate meaning or effect of a SIS report. p.156 However. both were resident in France. the French Conseil d’État did however accept this so-called ‘substitution of motivation’. Since the consulate erroneously motivated the decision to refuse a visa. the entry of the person into France would be contrary to the public order of France. CE 22 July 1994. . Ms. Forabosco. the Conseil d’État ruled that French courts were not competent to assess the legality of foreign decisions. French law includes the principle that an administrative decision can be annulled by the court if this decision is based on prior.157 In this decision. the Court explicitly stated that. which was taken solely and mistakenly on one ground. The case concerned a Romanian national. the Conseil d’État explicitly confirmed the competence of the administrative courts to deal with the question on the lawfulness of a foreign report in the NSIS based on Article 96 CISA. In its judgment. dealing with an individual appeal against an administrative decision which is based on a report for non-admission. 2000. based on the SIS report. that even if the CISA did not apply to the consulate concerned. Forabosco in the NSIS. Thorel. 3. Mauritius) had refused the visa application. this did not legitimise the refuted decision. no. The government. considering that the record in the NSIS was justified by the grave offences of which the applicant was accused. the consulate committed a legal error (une erreur de droit). CE 6 February 2004. reasoned during this case. no. to 155 156 157 See.155 7. in its Forabosco judgment of 9 June 1999. see: Emmanuel Aubin. 847. the Conseil d’État departed from this line. This error could not be replaced by the argument of the Minister of Foreign Affairs that. Planning to stay with her husband. Hallal. In 1994. 240560. In later judgments. Le juge administratif français face à l’application de la Convention de Schengen dans ses dispositions sur le droit d’asile. This visa was refused on the basis of the German registration of Ms. “it is the task of the administrative court. for example. she applied for a visa for a longer stay at the French consulate in Bucharest. the entry of the person could be regarded as a danger to the public order. Assessing the Validity of Foreign SIS Reports In general. Krouf. the Court considered that there were justified grounds for annulling the refusal of the visa. and Mme. See also C.162 In a judgment from 2003. no. 224877. The French Court ruled that these motives did not fulfil the criteria of Article 96 CISA and annulled the refusal of the visa. Gheorghita. Forabosco asylum in Germany. no. no. even if it is made by a foreign administrative authority. but was reported by the German authorities in the NSIS because he had left Germany without informing the German authorities. This application had been rejected by the French visa authorities 158 159 160 161 162 163 “Mais considérant qu’il appartient au juge administratif. Iqbal. CE 15 March 2002. Kouchi. before this judgment. 209037. an Algerian national. CE 13 December 2002. Forabosco. 2004. but on a removal decision against this person.161 As a result of this entry. CE 23 May 2003. Gheorghita Catrina. Matumona. In a case where it became evident that a German decision to report a person in the NSIS was not based on a refusal to grant asylum.” The fact that a visa had been issued to Ms. According to the Conseil d’État. M.France 371 consider the legitimacy of this report. no. de se prononcer sur la bien-fondé du moyen tiré du caractère injustifié de ce signalement alors même qu’il a été prononcé par une autorité administrative étrangère. which was neither reported nor suspended. for a short-stay visa for France. 237934. this motive did not fall within the limitative grounds mentioned in the second and third paragraphs of Article 96 CISA.163 This case concerned the application by a Romanian national. where she describes French jurisprudence with regard to the German criteria on the input of rejected asylum seekers into NSIS: ‘Les refus de délivrance des visas fondés sur une inscription au Système Information Schengen’. had obtained refugee status in Germany. Cultures & Conflits 49–50. saisi de conclusions dirigées contre une décision administrative fondé sur le signalement d’une personne aux fins de non-admission. the Conseil d’État explicitly dealt with the (limited) power of the French administrative courts to assess the lawfulness of foreign decisions based on which the foreign authorities issue a SIS alert.”158 The Conseil d’État established that the motive of the German report was based solely on a decision which had denied Ms. Mr. 221818. In this case. Saas. CE 11 July 2001. 236190. Mr. no. did not prevent the Court annulling the former decision by which the visa was refused. the highest French administrative court found this motive in conformity with the criteria of Article 96 (3) CISA. no. CE 9 July 2001. 206644. Kouchi had been refused a short-stay visa by the French consulate in Algiers. Therefore.160 Another German motive for registration in the NSIS was rejected in a decision by the Conseil d’État of 13 December 2002. Kouchi. .159 The Conseil d’État repeated this conclusion with regard to the unlawfulness of German decisions to report rejected asylum seekers in the NSIS in later judgments. X. CE 29 July 2002. Moon).165 In the new judgment. Finally. the Court added that these courts were not competent to assess the lawfulness (légalité) of the foreign decisions which formed the basis of the SIS reports.372 Chapter 11 because of an Italian Article 96 alert based on a previous illegal stay by the applicant in Italy. the French authorities were justified in deciding. Moon. in the case of Mr.” CE 2 June 2003. notably. 219588. the Court reasoned that the applicant. dealing with an application for access to the NSIS data now submitted by the spouse of Mr. The Court argued that even if this Commission had made a legal error by basing the conclusion that the applicant would pose a threat to the public order solely on the SIS report by Italian authorities. Moon in the NSIS. 164 165 “… il n’est en revanche pas compétent pour statuer sur la légalité des décisions des autorités des autres Etats parties qui fondent ce signalement.1). who did not refute the fact that the residence ban by the Italian authorities was one of the motives as provided in Article 96. that the German SIS report was not based on any legal or factual error. Hak Ja Han M (Mrs. . Gheorghita against this visa refusal was then rejected by the special commission of appeal against refusals of visas. no. Moon. However. The appeal of Mr. The Court argued that. This latter assessment is much easier to make than the assessment of whether a foreign alert is in accordance with the law of a foreign State which requires knowledge of this foreign law.5. The competence for national courts is restricted to the assessment of whether a SIS alert and the motivation for this alert are in accordance with the provisions of the CISA. and Mrs. without making a ‘manifest error of appreciation’. would have led to the same decision: that is refusal of the visa. Therefore. based on the information submitted by the German government with regard to the reasons for her report in the NSIS. the instructions deriving from Articles 5 and 96 CISA. Dealing with the appeal against the decision of this commission. the application to annul the refusal of rectification made by the CNIL was rejected. the Court repeated its earlier conclusion that the French administrative courts are competent to assess the lawfulness (caractère injustifié) of foreign reports in the NSIS.164 Therefore. the Conseil d’État upheld the decision of the CNIL not to forward information on the NSIS report to Mrs. Moon (see also section 5. the Conseil d’État also seemed reluctant to assess the lawfulness of the German reasons for reporting Mr. The highest French administrative court seemed to refer to the impossibility for national courts to assess whether decisions by foreign authorities are taken in conformity with their foreign legislation. could not effectively establish (“ne saurait utilement se prévaloir” ) that the Italian residence ban would have been irregularly imposed or would have been disproportionate to the offences committed by the applicant. 229306. no. . considering the circumstances of the case. This application had been rejected by the French embassy in Bucharest in August 1999. 425. CE 12 February 2003. the possibility for his spouse to join him in Algeria.France 373 7. X. AJDA 20 March 2001. The applicant maintained that the refusal of his visa involved a breach of his right to private and family life. CE 10 March 2004. This application was rejected on the basis of his registration in the NSIS to be refused entry. In another case. it is necessary to know the reasons for the SIS record. 212315. Unfortunately. X. 284–286. who held French nationality. p. the fact that there were no children. The husband applied for a short-stay visa to join his spouse in France.167 Consideration of the right to family life also played a role with regard to a case concerning the application for a long-stay visa by an Algerian national. These circumstances included the recent character of the applicant’s marriage. The legal interests of the foreigner in working and staying in France have also been 166 167 168 169 CE 25 October 2000. I have no information on whether the requested information actually has been submitted by the government.166 The case concerned a Romanian national who was married to the applicant. Cucicea-Lamblot. no. finally. an Algerian national applied for a short-stay visa to visit his parents and family in France. commented upon by R. with whom he was not allowed to cohabit. Duty of Authorities to Balance Interests In its decision of 25 November 2000. The Conseil d’État therefore ordered the French Ministry of Foreign Affairs to forward to the administrative judge within two months the relevant information with regard to the NSIS alert. 2001. p. since the applicant did not submit that it was impossible for his parents and family to visit him in Algeria. The Court denied there was a breach of his right to private and family life. Mme. the Conseil d’État made it clear that decisions with regard to visa applications may cause an infringement of human rights protected in the ECHR. to understand whether the visa refusal involved a breach of the right to private and family life under Article 8 ECHR. the assumption that the presence of the applicant on French territory could cause an actual threat to the public order and.169 The administrative courts not only regard human rights. since he was married to a French national. The Conseil d’État did not consider this refusal as a disproportionate breach of his right to private and family life. such as the protection of family life. Errera in Public Law. Cucicea-Lamblot.168 This applicant had been reported in the SIS by the German authorities after he was sentenced to 490 days of imprisonment for a drugs offence. as a reason to annul the refuted decision based on a SIS report. no. 252269.4. The Court concluded that. this was the case in a judgment of 29 July 2002. For example.173 170 171 172 173 CE 30 December 2003. the Conseil d’État accepted a period of seven years between the date when this person was reported in the NSIS and the date when the French authorities had refused him a visa based on this report. X. 229580. 237808. the Conseil d’État decided on a case where the French consul in Casablanca rejected the application by a Moroccan national for a long-term visa on the basis of an Article 96 SIS report. no. The person was reported by the Italian authorities based on the person’s non-compliance (“non-respect” ) with the Italian immigration law.171 The applicant maintained that he previously resided in Germany as the spouse of a German national but that. In 2003. In its judgment. . during this period. In a comparable case brought before the Conseil d’État in 2003. The Conseil d’État rejected his appeal. This case concerned an Algerian national who had been reported by both German and Spanish authorities in the NSIS because he had failed to comply with the national regulation on the entry or residence of third-country nationals. CE 29 July 2002. In another judgment of 4 November 2002.170 In some cases. The Conseil d’État emphasised that the applicant stayed and worked on a regular basis in France between 1993 and 2000 and that he could not be regarded as a danger to the public order solely on the basis of the fact that he acted in breach of the Italian immigration law. he had never posed a threat to the public order. CE 14 November 2003. X. 240090. CE 4 November 2002. the decision of this Commission was based on a “manifest wrong appreciation” (“une erreur manifest d’appréciation”). Ramdane. arguing that these circumstances did not affect the lawfulness of the decision by the French embassy. since this decision was in conformity with the provisions of the CISA. the Court upheld the decision by the special Commission on visa applications in which (in 2001) an Algerian national had been refused a visa on the basis of a report entered in the NSIS by the German authorities. no. X. based on a German report in the NSIS for refusal of entry. the Conseil d’État accepted that the authorities did not make any attempt to balance interests. no.374 Chapter 11 weighed by the courts when assessing a visa refusal on the basis of a SIS report.172 Without going into the interests of the individual concerned. the Court found the visa refusal justified provided the applicant did not reveal that the report had been withdrawn by the foreign states. According to the Conseil d’État. based on an expulsion order from 1993. 234462. no. dealing with a Cameroon national whose short-stay visa had been rejected. the Court annulled the decision of the Commission de recours contre les décisions de refus de visa by which the applicant’s appeal against the decision of the consul was rejected. 179 In 2006. 023061. 761-1 of the French administrative law (Code de Justice Administrative). This power has been used by the administrative courts to order either the suspension of the refuted expulsion.175 In one case. administrative courts can order the Minister of Foreign Affairs to provide the court with further information on the reasons for refusing a visa to the applicant. an important remedy for persons facing a negative decision based on the NSIS are the suspensive procedures based on French administrative law. no. no. et Mme A. On the basis of Article L. 186082. nos. Mbow. costs of travelling or a lawyer. The fact that during the procedure. 276829. the French State was ordered to pay 1. no. Valencia. no. TA Lille. unlawful.174 Furthermore. Bafandi. Dealing with visa refusals.500 euros to a Senegalese visa applicant. the Conseil d’État uses this power on a regular basis. Abdelli. M. 298660.176 Three years later however. M. p. no. See for the use of the référé-liberté: TA Pau. Mejri. visa refusal.180 174 175 176 177 178 179 180 See. 238288. was no reason for the Conseil d’État to reject his application for financial repair based on the first. because the Court found that the refusal to issue him a visa was a disproportional infringement of their right to family life. 206277. p. or to order the release of the person detained if there are serious doubts as to the lawfulness of the underlying Article 96 report or the proportionality of the refuted decision.178 This also concerns damage which is caused by a visa refusal. et Mme. A et Mme A. Amouche. . French administrative law includes the power of courts to condemn the State to repair damage which is caused by wrongful administrative acts. and CE 27 November 2006. M. 02820.177 Generally. CE 15 November 2006. 59–60. 31 May 2002. after the French consul in Dakar refused him a visa on the basis of an unlawful Italian SIS Article 96 alert. with regard to the suspension of expulsion: TA Nice. Powers of the Court As we have seen above. M. See also GISTI (2006). in a comparable case. no. For example.5. Barzilay. in 2002. but also immaterial damage. CE 6 October 1999. the Conseil d’État considered the fact that the Minister did not provide the court with the requested information as adequate grounds for annulling the rejection of the visa application. Sahin. the Conseil d’État condemned the French State to pay an Algerian visa applicant and his French spouse 2. 021741. the Conseil d’État explicitly held that it was not competent to order the withdrawal of the SIS report. no. CE 6 December 2002. CE 11 March 2002. such as the separation of a family. 298272. 16 May 2002.France 375 7. 222137–222258. no. Described in GISTI (2005). the applicant obtained a French visa because the Italian authorities withdrew his alert. no. CE 10 November 2006. 29. 16 July 2002. See for example CE 6 December 2002.000 euros. if necessary.1. there would be no objection to the NSIS alert in question “from the point of view of data protection law” (du point de vue du droit en matière de protection des données). the Conseil d’État clarified the duty of the national data protection authorities to verify the lawfulness of an alert in the NSIS and to collect information from the national data protection authorities of other Member States if necessary. even if parts of the files concerned matters of state security. Mr. The applicant requested both the French authorities and the French Data Protection Authority. one cannot deduce whether he already held French nationality at the time of registration by the German authorities. the CNIL had contacted the German Data Protection Commissioner on the basis of Article 114 (2) CISA. This provision requires national data protection authorities to check the data entered in the SIS and. the Conseil d’État disapproved of the way in which the CNIL dealt with this case and concluded that it had not fulfilled its obligation under Article 114 (2) CISA. The CNIL was satisfied with this information and informed the applicant. 194295. CNIL. Duty to Play an Active Role when Assessing the Validity of a Foreign Alert The decision of the Conseil d’État is important in the Skandrani case. to contact a foreign supervisory authority if the alert was entered by a foreign state. no. From the judgment. Based on a decision of 6 November 2002 by the Conseil d’État in the Moon case. dealing with a French national living in France. The Conseil d’État found that the CNIL had not acted in conformity with the duty imposed by Article 114 (2) because 181 182 183 CE 6 November 2002. no. This German Commissioner subsequently informed the CNIL that. At his request. 7.6. The applicant especially complained about the procedure followed by the CNIL. Right of Indirect or Direct Access: Divisibility of the Data Files In section 5. Skandrami.6. 275216. according to information from one of the regional data protection authorities.183 In this judgment. I described the applicable rules with regard to the right to indirect and direct access by a data subject to his or her personal information held by the public authorities. In its judgment of April 2006.182 This person had been reported by the German authorities in the NSIS on the basis of Article 96 CISA because of his past activities for a Tunisian opposition group. the CNIL obtained the possibility of granting partial access to the requested information.181 Based on this decision.376 Chapter 11 7. Moon. or whether he became a French national later. accordingly. Skandrani. Assessing the Role of the CNIL 7.6. to have his unlawful registration in the SIS annulled. the former rule of the “indivisibility of data files” in the Data Protection Act was changed to a more liberal approach to the right to access.1. M. CE 7 April 2006. .2.5. In 2004. a visa had been refused by the Austrian authorities. Therefore. Notably. In its decision. the CNIL was ordered to provide this information within two months. it had not been provided with sufficient information by the CNIL to assess the reasons for the SIS report in question. This case concerned the case of Mr. Therefore. The Conseil d’État refers in its judgment to the decision of the Austrian Data Protection Authority only with regard to the question of whether 184 CE 27 February 2006. the Austrian Data Protection Authority ordered the French authorities to delete the alert concerning this person. Power of Foreign Data Protection Authorities In a decision of February 2006. it had failed to act in accordance with the criterion of “in close coordination”.3. 7. the applicant had been refused entry to French territory in 2000. This caused a small ‘diplomatic’ uproar and the French authorities refused to delete the data from the SIS.184 On the basis of this French alert. Cherney before the Conseil d’État concerned the fact that the CNIL failed to reply for more than two months to his request to have his data rectified in the SIS. the Conseil d’État considered the possibility that the applicant had been reported in the NSIS on national security grounds and that these grounds could not to be communicated to the applicant. one year after the first decision by the CNIL..France 377 this requires that checking the accuracy of the SIS report should be performed “in close coordination” with the other data protection authorities. 274928. the claim against the French government was dropped because the applicant had been informed by the French Minister of the Interior. an Israeli national living in Israel.6. Cherney. was annulled. no. that this alert would be ‘blocked’ (suppression) for the French part of the SIS. where the CNIL only relied on this single answer from the German authorities and had not asked for further information to support this answer. M. The applicant appealed against both negative decisions. In 2001. the decision by the CNIL whereby the applicant was informed that his procedure had been closed. However.A. In this decision. the Conseil d’État dealt indirectly with the powers of national data protection authorities to order foreign authorities to delete a wrongful SIS alert. nor with the opportunity to assess the lawfulness of the refusal of the CNIL to rectify or delete the data in question. in this procedure. the decision of the refusal of entry was annulled by the administrative court of Cergy-Pontoise. declaring the French alert unlawful. The claim by Mr. reported by the French authorities in the NSIS. the Conseil d’État concluded that. The reason I mention this judgment by the Conseil d’État at this point is because it handled an earlier decision by the Austrian Data Protection Authority. during the procedure. The French administrative court found that. . This lack of information makes it difficult to obtain a clear picture of the reasons why third-country nationals may be reported as inadmissibles by the French authorities. par lui-même. According to the Conseil d’État. for this question. In general.185 Unfortunately. this report may be based on a court’s decision including a formal residence ban (interdiction du territoire français). on the basis of which Schengen States are obliged to enforce the final decisions of courts or authorities dealing with individual SIS alerts (see Chapter 7. Thirdly. may “possibly” be grounds for these authorities to give an order to the French authorities. if it considers a SIS report by a foreign country erroneous or unlawful. there are three categories of decision on the basis of which a thirdcountry national may be reported in the NSIS for the purpose of refusal of entry. a SIS report can be based on a decision to prohibit entry by the Ministry of the Interior. in the latter category of decisions. The Conseil d’État refers. however. Conclusions 8. Firstly. d’incidence sur la légalité de la décision attaquée”. this may be based on an expulsion decision issued by the local prefecture or the Ministry of the Interior. according to which a national data protection authority. it cannot be deduced that the French administration applies a strict interpretation of the criteria as mentioned in Article 96 CISA. . il n’a pas. Implementation of Article 96 CISA French statutory law does not provide a detailed regulation implementing the Article 96 criteria for the registration of third-country nationals in the NSIS. Secondly. It is also difficult to find out whether.378 Chapter 11 such an earlier decision could give grounds for concluding that the French alert was unlawful. s’agissant d’un signalement français.4).1. une saisine des autorités françaises par les autorités de ce pays. to the rule in Article 106 CISA. 8. section 8. From the available information. The criteria used for taking these decisions are not public and. This decision is generally based on an illegal stay or the withdrawal of a residence permit from the person concerned. may issue advice to foreign authorities. this advice. allowing for the use of biometrics and the networking of different 185 “que si l’avis de la Commission d’information et des libertés d’Autriche en date du 7 juin 2005 est éventuellement susceptible de fonder. Since 2001. this order does not influence the lawfulness of the refuted decision. the Conseil d’État does not refer to the meaning of Article 111 (2) CISA. dealing with a French alert. the French government has been developing large information systems. with regard to the second category of decisions. based on public order grounds. the different prefectures in France all apply the same criteria. even secret. 186 The CNIL also established that. as we have seen above. in a specific regulation. French politicians held the view that their French data protection law offered a high level of protection to individuals. the person concerned has to assert his or her right of access to SIS information through the intermediary of the CNIL. This doubt about the reliability of SIS information is supported by the information from the CNIL. French officials have simultaneous access to different systems and the national visa network is linked to the Schengen consultation network. 8.1. In 2005. Judicial and Non-Judicial Remedies The French administrative courts have assumed an important role with regard to the protection of third-country nationals reported as inadmissibles in the NSIS. 186 This latter assumption however seems unlikely because. One of the reasons for this weak position is the applicability of the right to indirect access to SIS information. defence or public order. to provide for direct access to files.France 379 databases. the CNIL has not used its power to provide partial information from the NSIS. until 2005.3. such as AGDREF. it is possible. so far. The annual reports of the CNIL establish that.3. this extended power for the CNIL was even narrowed again on the basis of a ministerial decree. with regard to the NSIS. as long this information does not affect national security. The possibility for the CNIL to communicate the ‘non-sensitive’ parts of public files to the person concerned has also been extended. only concerns the individuals who actually made use of their right to be informed of their report in the SIS. combined with the evidence that basic systems. looking at the current provisions applying to the NSIS. 8. almost twothirds of the applicants requesting verification of their data were not registered in NSIS. . We may wonder whether this result is only the top of the iceberg of all the information on third-country nationals stored in the NSIS or. in 2004.2. the regulation referred to above has not been adopted yet and. by chance. a relatively large percentage (35% to 40%) of the data investigated by the CNIL on the basis of an individual request had to be deleted. which generally causes long delays. However. These developments. On the basis of this indirect access. the NSIS still held files on EU nationals stored for the purpose of non-admission. Data Protection and the NSIS At the time of the negotiations on the CISA. the French data protection law does not seem to place the individual in a very strong position. although this is unlawful. lack updated information. Based on a judgment by the Conseil d’État in 2002 and an amendment to LIFL in 2003. NSIS and the Right to Effective Remedies 8. Nevertheless. may cause problems with regard to reliability of information held in the NSIS. in general. we have seen that four members of the CNIL are members of parliament and thus have a political status. the Conseil d’État generally applied a strict interpretation of Article 96. 8. especially the Conseil d’État.2. I did not come across any reasons which may give rise to doubts with regard to the independence or impartiality of the French administrative courts. the courts in the case law described above generally require the applicants to submit information to support their claims. Scope of Review In their jurisprudence. 8. have formulated certain important principles with regard to measures taken or decisions made on the basis of the NSIS. second and third paragraphs. Since 1998. In their jurisprudence with regard to the use of NSIS. During my study. This provision does not however apply to decisions based on “final decisions of other Schengen authorities” as recorded in the NSIS (see below). Theoretically. an important problem for the accessibility of remedies is that third-country nationals who. correction or deletion of data. in order to be able to make such a balanced decision. according to which the administration may not issue legally binding decisions if they are based solely on automated data files. are expelled on the basis of a SIS report. especially the Conseil d’État. the French Immigration Act has explicitly obliged French visa authorities to motivate visa refusals if these are based on information held in the NSIS. the administrative courts affirmed their competence to assess whether foreign SIS reports are in accordance with the criteria of Article 96 CISA. However.3. In its judgments. the administrative courts. This duty is in line with the general principle of French data protection law. are not informed of the reasons for this decision and do not have any possibility of refuting their expulsion. these courts. emphasised the importance of informed decisionmaking. In practice. the French courts generally require balanced decisionmaking especially. This composition does not add to the independence of this organisation. Accessibility The French law on administrative remedies in immigration law is quite complex and has been changed several times based on amendments to French immigration law or based on decisions by the Conseil d’État. the administrative courts annulled insufficiently motivated decisions based on a NSIS alert. by decision of the préfecture. The Conseil d’État however ruled that . in situations where human rights are involved.3.3. Three of the five ‘IT specialist’ members of the CNIL are appointed by the government. respecting the margin of appreciation of the immigration and consular authorities.380 Chapter 11 Although. With regard to the functioning of CNIL in the field of individual applications for access. In many cases. but not exclusively. Furthermore. third-country nationals may lodge an appeal against these decisions and have automatic suspension for 48 hours. With regard to the scope of review of the CNIL. Due to the large workload of the CNIL and the lack of sufficient financial and personal resources.3.4. In general. Particularly in the case of third-country nationals threatened with expulsion based on information stored in the NSIS. The Conseil d’État used this power on a regular basis when dealing with unlawful visa refusals. we have seen that it is difficult for third-country nationals to assert their rights to (indirect) access because of the lengthy procedures before the CNIL. This is based on what I believe to be the wrongful presumption of the French government that these foreign reports are to be considered final decisions and that the person concerned could have lodged an appeal in the country forwarding this report. Competences The recognition by the Conseil d’État of the inherent power of the national courts to demand further information from the French administration concerning the reasons for a SIS alert is important. the road to the CNIL will often prove ineffective. or for the purposes of criminal investigation and prosecution or security. on the basis of which the CNIL no longer has an approval role with regard to the establishment of government files in the interests of state security. . procedures against an expulsion order will suspend the refuted decision for the first 48 hours. could invoke the suspensive remedies as provided under administrative law. To my knowledge. In general. this may be grounds for annulling the refuted decision. However. defence and public order. in 2004 its position was weakened by an amendment to the LIFL. threatened with expulsion on the basis of such a SIS alert. French courts apply strict criteria with regard to the required urgency for the use of this procedure. it is questionable whether this organisation is able to perform its ‘supervisory’ function very actively with regard to the NSIS. If these authorities do not provide the court with this information or the court finds this information insufficient. An important tool used by the CNIL is the power to issue fines up to a maximum of € 300. An important limitation regarding the right to legal remedies against decisions based on a foreign SIS alert is that this remedy has no automatic suspensive effect if this alert is based on a foreign expulsion decision. French administrative courts may condemn the State to repair damage which is caused by unlawful measures or decisions.France 381 it was not competent to assess whether the decision forming the basis for the foreign SIS report is in accordance with the law of the reporting state. These persons may have been long expelled before it is established whether the NSIS data are wrong or unlawful.000 if a data processing authority acts in breach of the rules of the French Data Protection Act. including decisions based on SIS alerts. this power has not yet been used with regard to SIS alerts. 8. A third-country national. . As we have seen above. During the negotiations. first and foremost. urged by their police organisations to seek the further development of international judicial and police cooperation. 383–444. this only happened in a late stage of the negotiations. Digital Borders and Real Rights. On the other hand. welche die Ausländerverwaltung förmlich binden. on the one hand. Providing a complete picture of the German implementation of Schengen law would require thorough research of data and case law in each of the German Länder. The authorities in the different German states (Länder). . wäre es im Interesse der Waffengleichheit unverantwortlich. AZRG. They will give. the German government was. Neuwied-Kriftel: Luchterhand 1998. Weichert. 1 Th. especially the Schengen Information System. die wenigen datenschutzrechtlichen Regelungen außer Acht zu lassen. Angesichts des strengen rechtlichen Bindungen. It is not easy to describe the implementation of the CISA in Germany and.Chapter 12 Germany “Nur durch die Löschung unzulässig gespeicherter Daten kann sicher gestellt werden. VIII. Kommentar zum Ausländerzentralregistergesetz. Printed in the Netherlands. The following sections should not be considered such a complete overview. function quite autonomously. denen die Ausländer unterworfen sind. because of the federal structure of Germany. pp. the practical operation of the NSIS and the registration of thirdcountry nationals. including the sharing of information. Introduction As one of the initiators of the Schengen Agreements. German data protection authorities and specialised lawyers urged the German government to support the inclusion of data protection rules in the draft Convention Implementing the Schengen Agreement (hereafter CISA).”1 1. p. especially. Evelien Brouwer. daß diese Informationen nicht in für den Betroffenen negativen Entscheidungen berücksichtigt werden. including police forces and data protection authorities. Germany played an important role in the development and the architecture of ‘Schengen’. © 2008 Koninklijke Brill NV. 4 These parliamentary questions focussed especially on the future of German officials working at the internal borders. II. Despite the fact that the autonomy and multitude of the organisations involved render it more difficult to draw general conclusions. It appears.11. However. while. the federalisation of German law and administration has also its advantages for this research. 2. one week before the planned signature by the Schengen governments. BGBl.2 As in the other Schengen countries. when referring below to ‘Parliament’.1. Parliamentary questions: Bundestag Drucksache 11/3104. forwarded by the members of the Social Democratic Party (SPD). On 8 December 1989.1988. two days later. however. Entry into force notified on 20 April 1994. 12. This would explain why. during the parliamentary debate on 2 3 4 Law on the CISA 15 July 1993. 1010 ff. compared to the reports of their centralised counterparts in France and the Netherlands.1988. I will generally mean the Bundestag only. This includes the Bundestag and Bundesrat. on 26 September 1989. p. 631. who were at risk of losing their jobs.) 1993 II. Bundesgesetzblatt (Federal Law Gazette. Schengen in General Germany ratified the CISA on 15 July 1993. especially concerning their legal protection. the Federal Parliament received a formal draft of the CISA. the annual reports by the different Data Protection Authorities of the German provide us with considerably more information on the practical and legal issues of the NSIS. answers by the federal government: Bundestag Drucksache 11/3594. As we will see in the following sections.384 Chapter 12 a general description of the general rules and principles which are applicable throughout the federal state. the government informed its parliament in November 1988 of the cooperation between the Schengen states on the basis of the Schengen Agreement of 1985. p. 30. the German government initially did not share much information on the Schengen negotiations with the German parliament. From the laws and the case law I have found. Parliamentary Involvement with CISA 2.10.3 Members of the Federal Parliament repeatedly criticised the lack of information given by the German government with regard to the draft provisions of the CISA. Only after an extended list of questions. that informal texts of the draft treaty were already in circulation in September 1989. the Green party (Die Grünen) was still urging the government to publish the draft texts of the CISA. I will try to deduce general rules on the registration and use of data concerning ‘inadmissible aliens’ in the NSIS. . hereafter BGBl. Gesetz zum Schengen Übereinkommen. 154 ff.12. and the parliamentary debate of 18. 26.6 But. see p.1989. Members of the German parliament pressed their government not to sign the CISA in December 1989 before the issues with regard to its application in the former DDR had been resolved. Hampshire: Ashgate 2001. for an extended review of the consequences of this ‘Europeanisation’ on German and French asylum policies: S. 11/12277. FAZ 16. Bonn. on 9 November 1989.7 An important and controversial issue dealt with during these debates was the proposed amendment of the right to asylum as protected in the German Constitution (Grundgesetz).2989. Frankfurter Rundschau. 12. the ‘one-chance only’ principle which was included in the CISA. Bundestag Drucksache 12/2453. the other Schengen partners did not accept the German proposal to attach a statement. on the one hand. other members of parliament were able to quote from the draft provisions of the CISA. Draft proposal. This event. implying that the former DDR would not be considered a ‘third country’ with regard to the application of the CISA by (West) Germany. When it was finally signed on 19 June 1990.12. the CISA was the first international treaty which recognised the reunification of the former East and West Germany. 30 April 1992. Amendment Article 16 of the Constitution. in May 1990.09. See. the German government was able to inform its parliament that the other partners had agreed to lift the visa requirement for DDR citizens and to postpone the entry into force of the CISA until the date of the formal reunification of Germany. was the reason for postponing the signature of the CISA. There was clear tension between.Germany 385 Schengen. after the fall of the Berlin Wall.9 5 6 7 8 9 See the request from the Greens: Bundestag Drucksache 11/5245. on the other hand. . Wahlperiode. Bundestag Drucksache 12/2112. 14.09. Bundestag Drucksache. Without extending the application of the CISA to the territory of the former DDR.8 A draft proposal to amend the German constitutional right to asylum resulted in long and tense parliamentary discussions on the values of the German asylum policy. Lavenex.5 The debate in the Federal Parliament became more lively in 1989. New and more in-depth discussions with regard to the content and consequences of the Schengen cooperation took place during the parliamentary debate on the act to ratify the CISA on April 1992. Aldershot. 18 February 1992.1989.1989. The Europeanisation of Refugee Policies. 89 Sitzung. Bonn will DDR bei Unterzeichnung des Schengener Abkommens mit einbeziehen. Between human rights and internal security. Initially. former DDR nationals would still need a visa to enter the Schengen territory. Kohl will Schengener Zusatzabkommen im Frühjahr unterzeichnen. former Article 16 of the German Constitution which protected the right to asylum and the duty deriving from this right to consider every asylum application and. 6. based on a compromise between the SPD and the Christian parties (CDU/ CSU) and the liberal party (FDP). a proposal to amend the text of Article 16 of the Constitution was adopted on 26 May 1993.1993. still included the constitutional right of politically persecuted persons to enjoy asylum. the presumption of safe countries.03. Letter of 27. the German section of Amnesty International expressed its concerns about the proposed refugee definition in Article 16 of the German Constitution and criticised the democratic deficit during the negotiations on the CISA. Stellungnahme von Amnesty International zum Gesetzentwurf des Bundesregierung zu dem Schengener Übereinkommen vom 19 Juni 1990. Comments by German non-profit organisations with regard to the ratification of the CISA dealt mostly with the limitation of the constitutional right to asylum. 17. politicians became more focussed on the use of the NSIS for immigration control purposes.386 Chapter 12 The SPD members of parliament initially insisted on prior harmonisation of EU asylum policy before any amendment of the German constitution. With regard to this latter subject. including the incorporation of the Dublin principle (no access to the asylum procedure if another EU Member State is responsible for the asylum application). Only after the reunification of the former DDR with West Germany and the extension of German’s eastern borders. replacing the provisions of 16 (2).1992. However. 10 11 12 See Bundestag Drucksache 12/160. hereafter BKA) and the police forces in the Länder was an important example for the building of the NSIS. in a letter of March 1992. . only the FDP and SPD factions in the Federal Parliament (Bundestag) supported the request of the Dutch parliament to assign competence to the Court of Justice with regard to the interpretation of the CISA. Other important issues playing a role during the ratification procedure were the democratic accountability of Schengen and the lack of competence for the Court of Justice. the German legislator added several exceptions to this right. Bundestag Drucksache 12/14034.2. The draft bill was published in Bundestag Drucksache 12/4152.12 The German experience with regard to data exchange on searched persons and objects between the Federal Criminal Police Department (Bundeskriminalamt.10 The new Article 16A. and the provision of accelerated asylum procedures for manifestly unfounded asylum claims. For example. The NSIS and Data Protection The development of the NSIS was closely linked to the general aim of the German government to compensate for the loss of internal border controls.11 2. Finally. in a declaration of 16 September 1989. However. These standards included. rejecting the proposal for the establishment of the NSIS because citizens would have grounds to fear that their data would be stored alongside data on criminals without their knowledge.15 The Greens proposed. the right of every person to demand access to or correction and deletion of his data in every Schengen State and. the German government stressed in its reply to the parliament that the current German data protection standards should be used as minimum standards in the forthcoming agreements.09. the SPD members required an independent control mechanism in each state and a joint data protection authority. persons wanted for secret surveillance.13 Answering this question. the Schengen partners had reached agreement on the following categories of data to be stored in this common system: persons and objects searched for criminal prosecution.1988. From the Fraktion Die Grünen: 11/5245 (Datenschutzrechtliche Probleme einer Europäischen Fahndungsunion). . but formulated seven minimum standards for data protection. Furthermore.11. 28. The parliament was further informed that a discussion was continuing with regard to the registration of persons to be taken into custody for public order and security reasons (Gefahrenabwehr). persons whose place of residence was searched for criminal investigation and. finally. No decisions were reached with regard to data protection issues. 30. The SPD did not go that far. persons whose place of abode was searched (Aufenthaltsermittlung).10.1988 and Bundestag Drucksache 11/3594. the federal government stated that a common information system would be necessary to prevent persons being searched by one of the Schengen States from escaping this search by crossing internal borders. 12. from the SPD Fraktion: 11/5023 (Datenschutzrechtliche anforderungen and das Schengener Informationssystem). The Data Protection Convention of 1981 and the Recommendations with regard to the police sector of the Council of Europe 13 14 15 Bundestag Drucksache 11/3104.1989. finally. Bundestag Drucksache 11/12277. the right to legal remedies against non-compliance with the aforementioned rights.Germany 387 In the first written inquiry by the German parliament. precise and binding criteria for the NSIS alerts. submitted to the government in 1988 on the implementation of the Schengen Agreement of 1985. only one question concerned the need to exchange police information.14 This debate was based on two inquiries with regard to the data protection issues: one from the Green party and one from the SPD. among other things. The first parliamentary discussion on the data protection implications of the Schengen cooperation took place on 28 September 1989. unwanted aliens from third countries to be expelled. According to this reply. Bundestag Drucksache 11/6458. 10th Annual report of the Federal Data Protection Authority. they had already been taken into account by the Schengen negotiators. based on the first report of the Joint Supervisory Authority. including the liberals. France. the SPD members emphasised that there should be no exchange of information though the NSIS before these data protections standards had been implemented.19 It is interesting that. Finally. Bundestag Drucksache 11/12278.20 He quoted from the annual report of the Federal Data Protection Authority in which the Minister’s plans were cited. The parliamentary members of the other parties and the representative of the Government described these proposals by the SPD as outdated. 16 17 18 19 20 Bundestag Drucksache 11/12282.388 Chapter 12 should apply as minimum standards. Therefore.16 Another important issue during the debate on data protection standards.1993. Ten years later. were less reluctant towards the use of central databases and biometrics at the borders. during a conference of the Federal Data Protection Commissioner and the data protection authorities of the Länder. the other parties argued. and Luxembourg in March 1989. a member of the liberal party. politicians. The proposed standards were based on the conclusions of the meeting of the data protection authorities of Germany. pp. Wolfgang Lüder.04.18 In October 1989. were the concerns of the German members of parliament with regard to the level of data protection in the other Schengen states. One member referred to the fact that Belgium had no data protection law at all and Luxembourg and the Netherlands no law on police files.6.1992. 17. taking place outside the scope of the NSIS. expressed his concerns about the plans of the German Minister of the Interior to establish an “automated border control mechanism”. as well as during the debate on the ratification act of the CISA in 1993. . The German parliament discussed the NSIS only occasionally once it had become operational. In 1997. These plans would include the inclusion of biometric data in travel documents. 30. 95–96. was considered an important positive side-effect of the Schengen cooperation.17 The fact that ‘Schengen’ implied that the other Schengen states were obliged to adopt data protection laws as well. including data on the movement of travellers. would be unacceptable to the liberal party. 28 September 1989. these authorities expressed their concerns with regard to the level of data protection in the CISA applicable to the conventional exchange of personal data. Bundestag Drucksache 12/7279. Lüder made it clear that central police registration at the borders. during the ratification debate in 1993. Bundestag Drucksache 12/14016. 22 However.Germany 389 members of parliament questioned the functioning and especially the lack of a legal basis for the SIRENE organisation. 30.03. In March 2006. the number of hits and the number of terminals in Germany giving the authorities access to the SIS.2006. Bundestag Drucksache 15/4142. the government forwarded data on the current use of SIS. but did not deal at all with the current deficiencies of SIS I or the legal protection of data subjects. In November 2004.11. especially. 8. 21 22 23 24 Bundestag Drucksache 13/8385. the German parliament was informed of the development of SIS II in the annual reports of the Federal Data Protection Commissioner. 24.23 These questions concerned the content of political discussions at EU level with regard to SIS II and. .2006. the proposals on the interoperability and synergy between SIS II and VIS. Answer by the Federal government: Bundestag Drucksache 15/368. 17th (1997–1998) and 18th (1999–2000) annual reports of the Federal Data Protection Commissioner.3. the right to data protection and informational self-determination (see below) would be sufficiently guaranteed. the German government was questioned not only about the exchange of information between internal security agencies in the EU. the government stressed that SIS II would remain basically a search tool (Fahndungssystem) and denied that the current goal of SIS would be changed by the development of SIS II. Bundestag Drucksache 16/868. SIS II To my knowledge. The questions about SIS I and SIS II concentrated on the possibility of increasing the efficiency of SIS II. but also on the future development of the SIS. Answering these questions.21 2.3.24 Quoting from the reports of the German data protection commissioners (see below).2004. 9. members of the German parliament referred to the lack of any substantial debate with regard to the development of SIS II.1997. 11. Answer by the government was published in: Bundestag Drucksache 16/1044. the questions and concerns raised in these reports were not followed by parliamentary questions. the German parliament did not make any substantial inquiry into the development of the second-generation SIS. In these answers. before 2004. Bundestag Drucksache 15/850 and Bundestag Drucksache 14/5555 respectively. In 1999 and 2001.08.11. they expressed their concerns about the current problems with regard to the reliability of the information in SIS II and the lack of data protection rules. According to the government in this same response. including the number of reports registered by the German and other Schengen authorities in the SIS.2004. The AAH-SDÜ are difficult to read and often refer to the general laws as mentioned above. The instructions are not binding in law. BGBl. Law changing the name of Bundesgrenzschutz into Bundespolizei. 2004. The rules included in the German immigration law are only indirectly applicable with regard to the registration of third-country nationals. 25 26 27 With the Immigration Act of 30 July 2004 (Zuwanderungsgesetz) the former Aliens Act (Ausländergesetz) was replaced by the Residence Act (Aufenthaltsgesetz). Implementation of Article 96 CISA 3. nr. 2002. It is unclear to what extent the German immigration offices currently apply these instructions. the criteria based on which the German authorities may report data on third-country nationals in the NSIS for the purpose of refusing entry are not regulated in a formal law. p. but without direct reference to the CISA. At the time of completion of this study. Baden-Baden: Nomos Verlaggesellschaft 2001. Applicable Law As in the Netherlands and in France. More specific rules with regard to the storage of data in the NSIS and its use are set forth in ministerial instructions of 1998: the “General instructions with regard to the implementation of the CISA” (Allgemeine Anwendunghinweise zum Schengener Durchführungsübereinkommen.und zum Ausländerrecht. No official publication available: published in G.25 The same is true for the Federal Police Act (Gesetz über die Bundespolizei) of 2005. Since these rules are the only available guidelines. 5 August 2004. As we will see below. hereafter referred to as AAH-SDÜ). The full title of the Immigration Act 2004 is: “Act to control and restrict immigration and to regulate the residence and integration of EU citizens and foreigners. . 41.” An official English translation of this law is available at http://www.06.1. BGBl. I. both German data protection authorities and national courts refer to the AAH-SDÜ when dealing with questions on the interpretation of the applicable rules.2005. it was unclear whether or when they will be reviewed. 1818.bund. The AAH-SDÜ are based on the former Aliens Act. 21.bmi. but does not explicitly refer to the implementation of Article 96 CISA or to the storage of information in the NSIS itself. the Residence Act 2004 (Aufenthaltsgesetz) assigns general competence to immigration authorities to store data on third-country nationals in police files for specific purposes. Renner (introduction) Verwaltungsvorschriften zum Staatsangehörigkeits.27 The AAH-SDÜ have been developed by the Federal Minister of the Interior with the aim of coordinating the application of the Schengen rules by the different immigration offices in the Länder. Teil I. p. 575 ff.de.390 Chapter 12 3.26 This law which replaced the former Border Police Act or Bundesgrenzschutzgesetz includes rules with regard to the duty and powers of the Federal Police to store and exchange information on third-country nationals. 547 ff.2. removal (Zurückschiebung). These rules provide for the registration of third-country nationals who are either expelled. Stoppa. is forbidden from re-entering Germany. Either persons are reported into the NSIS to be refused entry on the basis of public order and security grounds (96 (2) ) or based on a prior decision of expulsion. The German Residence Act differentiates between the requirement to leave federal territory (Ausreisepflicht). Infringement of this prohibition of stay or entry is a criminal 28 29 30 There are approximately 650 immigration offices in Germany.1. removal or deportation (96 (3) ). the input of information on third-country nationals for the purpose of refusal of entry on the basis of Article 96 CISA is performed by the German police. Persons to be Expelled. Auflage. finally. the Federal Police forwards the information about persons on behalf of the BKA.28 A limited interpretation of Article 96 CISA has been advocated by Westphal. the ban on entry (Einreise. General Rules In practice. an instructor at the Federal Police Academy (formerly the Border Police Academy).1 of the general instructions. or by the Federal Police (former Bundesgrenzschutz or Border Police) and the BKA. Westphal & E. National Criteria for Entering Third-Country Nationals in NSIS 3. V.2. According to him. deported or removed. Ausländerrecht für die Polizei. deportation (Abschiebung) and. the decision to store information in the NSIS is taken either by the immigration offices in the Länder (Ausländerverwaltung). The implementation of Article 96 in German law and practice is based on a strict differentiation between the two categories as described in Articles 96 (2) and 96 (3).30 On the basis of § 11 (1) Residence Act. AAH-SDÜ. I use the words included in the official English translation.Germany 391 3. 3. a person who is ordered to leave the country or has been expelled. The BKA cannot report thirdcountry nationals in the NSIS itself. Article 96 would not allow the systematic storage of data on third-country nationals in the NSIS.2.und Aufenthaltsverbot). Removed or Deported Registration on the basis of Article 96 (3) is based on § 11 (1) together with 50 (7) of the Residence Act 2004 (§ 8 (2) and § 42 (7) of the former Aliens Act) and section 2. These data are mostly reported in the NSIS by German immigration offices (Ausländerbehörden).2. p.29 3. However. removed or deported. expulsion (Ausweisung). Lübeck: 2007. . both the Federal Police as well as the police in the Länder.2. Each report in the NSIS would have to be based on an individual decision and each decision would require the balancing of the different interests at stake. The majority of data in the NSIS reported by the German authorities concerns the latter category. 1. 31 32 The rules on removal and deportation are provided in §§ 57–58. This includes. . German immigration officers are obliged to report a third-country national who falls within the scope of § 11 of the Residence Act to the NSIS without delay.32 Both the prohibition of stay or entry and the time limit of this re-entry ban should be registered in the NSIS. 4. immigration officers often do not restrict the re-entry ban at all.1. decisions concerning the violation of immigration law.3 and 4. The first category includes convictions for intentionally committed offences including custodial sentence for at least three years. however. criteria based on which the authorities will usually expel a third-country national (Regelausweisung) and. thirdly. this requires an active role on the part of the third-country national involved. The second category includes criminal convictions and/or the reasonable belief that this person is or was a member of a terrorist organisation or supports such an organisation. The criteria for expulsion decisions (and thus for registration in the NSIS on the basis of Article 96 (3) ) are provided in §§ 53–55 and 57 of the Residence Act 2004. drugs offences.392 Chapter 12 act in accordance with § 95(2) Residence Act and is punishable by a term of imprisonment of a maximum of 3 years or a fine. A third-country national has the right to apply for a restriction of the re-entry ban in time.2 AAH-SDÜ. §§ 2. immigration offices should take into account the length of stay in Germany of the person concerned and the consequences for the remaining family members with legal residence in Germany (§ 55 (3) ). As we will see below.2. Immigration authorities will have to assess the different interests at stake in the third category of situations as described in § 55 Residence Act.4. With regard to decision-making in this latter category.31 These rules include a distinction between three categories of expulsion: criteria based on which a third-country national must be expelled (Zwingende Ausweisung). they do not always have a lawyer who could inform them of their rights after their expulsion. but also custodial sentences for smuggling of foreigners. third-country nationals are not aware of this right because they are not informed by immigration officers. situations in which the authority concerned has discretionary power (Ermessensausweisung). In practice. or the fact that the person or his or her family is claiming social security funds. among other things. The first criterion is comparable to the ‘sliding-scale’ mechanism in the Netherlands (see Chapter 13). This re-entry ban is the formal grounds for storing data on third-country nationals into the NSIS on the basis of Article 96 (3). Additionally. no. Saas. which means the person is no longer permitted to stay in Germany. the immigration offices do not differentiate between the AZR and the NSIS and.35 In my view. based on the assumption that this person has not left Germany. See also on this practice: C. immigration offices still continue this unlawful registration in the NSIS. Les refus de délivrance de visa fondés sur une inscription au Système Information Schengen.3.34 If an asylum application has been rejected. see further section 4. Cultures et Conflits 2003. asylum seekers who have gone into hiding or who have left Germany independently may only be registered in the AZR or INPOL.5. automatically report this person to the German aliens administration (Ausländerzentralregister or AZR. However. the person may lodge an appeal against this decision and the deportation order. described in section 6. section 7.3. for the purpose of arrest or of finding their place of abode. unlawfully registered in the NSIS by German immigration offices.Germany 393 3. Chapter 11. in practice. 49–50. Only if this appeal is rejected by the court. this practice is caused by an unclear provision in the AAH-SDÜ.2. See recent annual reports by the German Data Protection Authorities of different Länder. During this period of time. these asylum seekers are also stored in the NSIS. as we will see hereafter. This unlawful practice has been commented on in various reports and by various authors. it will. The AAH-SDÜ explicitly forbid the registration of third-country nationals in the NSIS solely for the purpose of tracing the place of abode of the person concerned. This practice led in 1999 to the famous judgment of the highest administrative court in France. this does not lead automatically to a prohibition of entry of this person. Based on § 11 (1) of the German Residence Act. . often. Forabosco. see above.1 below). The border officials are required to return the document to the immigration office issuing this form. If this latter office does not receive the form within the prescribed time. 33 34 35 Conseil d’État.3.33 The illegal storage of data on asylum seekers has its origins in an administrative procedure which is applied in Germany to persons whose asylum application has been definitively rejected. The decision is linked to a time limit within which the person must leave Germany. Unlawful Data Storage Regarding Rejected Asylum Seekers The practical implementation of Article 96 (3) CISA resulted in a large number of rejected asylum seekers who were. Despite this information and the communications which have been specifically directed by the Ministries of the Interior to their immigration offices. The person will receive an official warning from the immigration office that he is obliged to leave Germany and receives a form (Grenzübertrittbescheinigung’) which he has to hand to the border officials upon actually leaving Germany. declaring this German practice unlawful. but not in the NSIS. the above time limit will apply. 2. confidential rules. Generally. 3. para.1. 2003–2004. Interview with Volker Westphal. in many cases.3. it seems that the most important grounds being used for the storage of this category of third-country nationals is internal security (Gefahrenabwehr). using further information. Registration Based on Public Order and Security Grounds The second category concerns Article 96 (2) CISA and alerts on persons to be stored in the NSIS on public order or security grounds. the Federal Police will use the following criterion for this registration: the greater the current danger or risk at stake. the Federal Commissioner for Data Protection (see section 6. this category of third-country nationals is reported by the Federal Police (formerly the Bundesgrenzschutz or Border Police) on behalf of the BKA. The Data Protection Commissioner found that.394 Chapter 12 According to § 2. they seem to be the only available guideline for the authorities involved. the Federal Agency for the protection of the Constitution (Bundesamt für Verfassungsschutz) and the Ministry of Foreign Affairs. the less concrete the suspicions against the person concerned need to be. 5.8. Although they are in principle competent to do so.5) investigated the criteria being used for registration based on Article 96 (2). 2005.38 The Commissioner especially focussed on the responsibility of the Federal Police to check the legality and proportionality of these reports. before forwarding the data to the NSIS. According to the Data Protection Commissioner.37 In 2003. .4. 20th Report (Tätigkeitsbericht) of the Federal Data Protection Commissioner. A second problem which was raised by the Data Protection Commissioner in his report of 2003 concerned the persons reported on the basis of information from the Bundesverfassungsschutz or Bf V. immigration offices may report third-country nationals to the NSIS on the basis of Article 96 (2) if an expulsion has been planned but not implemented because the person concerned went into hiding or left Germany independently. Even if these rules are non-binding.36 However. The criteria upon which third-country nationals are to be entered in the NSIS on the basis of Article 96 (2) are described in internal. this check was not appropriately performed and that the Border Police did not check.2.2 of these instructions. In general.3.2 and para.2. whether the legality of the NSIS alerts is guaranteed. 3. German immigration offices will rarely report third-country nationals in the NSIS on the basis of Article 96 (2). the NSIS should only contain information on individuals on the basis of risks established by general police standards (“wenn eine Gefahrenlage nach 36 37 38 Polizei Dienst Vorschrift 384-I and II. It seems odd that commentators never took into account the ambivalent rules included in these rules from 1998. In his evidence. the Federal Data Protection Commissioner and the data protection authority of Hesse. the Data Protection Commissioner referred to several examples in which the category of Article 96(2) was misused for storing individuals in the NSIS against whom another State has issued an extradition arrest. 12 May 2003. Germany also inputs data on persons on the UN terrorist lists into the NSIS. “for the protection of the free democratic constitution of Germany” or for “purposes of public security”. Deutscher Bundestag. This meant that persons 39 40 41 Written evidence of the hearing of witnesses. 22.39 He referred to the reporting of third-country nationals. managed by the Ministry of the Interior. based on Article 96 (2). with the approval of the Federal Ministry of the Interior.Germany 395 polizeirechtlichen Maßstäben vorliegt” ). As we have seen above. Source: interviews held in 2005 with officials of the BKA. 3. to prevent them from entering the Schengen territory. only Article 99 CISA (secret surveillance) would allow registration based on national security grounds forwarded by national intelligence services. Since these persons cannot be extradited because of the applicable laws in the requesting states allowing for death penalty or the use of torture. 2. for example. Outcome of Article 36 Committee. 60. section 3. Germany agreed to include these persons in the NSIS on behalf of the other Schengen States. Therefore. the German authorities list these persons in the NSIS.3.41 Thirdly. in the NSIS for the purpose of refusal of entry on the sole basis of information from national security agencies.2005. including foreign organisations. Article 96 (2) had been used to store information on persons on the basis of information from the Bf V. but whose extradition was prohibited by German law. p. These hearings concerned the parliamentary inquiry on the fraudulent visa policy of staff members in the German embassy at Kiev. 27. Untersuchungsausschuss. into the NSIS. 9182/03. Sitzung. In the Beginning: Storing Old Data in the NSIS In the run-up to the operational start-up of the NSIS between 1994 and 26 March 1995. This practice was confirmed by the head of the SIRENE office at the BKA during a parliamentary hearing in 2005. in an informal agreement of the Schengen Working Party of 2004. . Also dealt with in Chapter 4. he (wrongly) suggested that the Federal Data Protection Commissioner would have approved this practice. this registration. the BKA simply copied the existing files on third-country nationals from the Federal Police file. The Data Protection Commissioner was critical that. INPOL. There is no official decision on this matter but. was performed for 75 of the 500 listed persons because the others could not be properly identified for the purpose of the NSIS. suspected terrorists or members of the Taliban.06.40 Until 2005. 019 were submitted by German authorities. On 1 January 1997.078) in SIS.022 Article 96 reports in the SIS. Neue Wachstumringe im SIS. Busch. according to information submitted by the government to the parliament.000 records on third-country nationals to be refused entry and. the Federal Criminal Police Department (BKA).45 In 2000. This resulted in the deletion of 207. 176. the immigration offices of the Länder.000 police agencies had access to the NSIS. 52% were accounted for by the German border police.44 – – – – – In 1998. Busch (1999). 42 43 44 45 46 H. . H.993 came from the German authorities. This is still almost 25% of total alerts concerning third-country nationals (714. compared to the other Schengen states.396 Chapter 12 were registered in the NSIS for offences which occurred more than ten years ago and for reasons which were not envisaged in the CISA. which forced the German authorities to check the need for further storage.46 In 2005. p. the German authorities consulted the NSIS 65 million times. the Federal Office for the Recognition of Foreign Refugees (Bundesamt für die Anerkenning Ausländische Flüchtlinge. Authorities with Access to NSIS Data According to the annual report from the SIRENE Working Party to the Council. performing more than 5 million checks each month.497 reports in the NSIS. p. 10 December 2004. Another. on 1 January 1998. – the diplomatic and consular posts. This and further clean-up operations after 1999 resulted in a further decrease in German reports on third-country nationals in the NSIS. As a result. 80–84. of the 603. 14. 01/01/2005. On 1 January 2005. Bürgerrechte & Polizei/CILIP 63 (2/99). ‘only’ 289.4.43 3. Germany was for a long time responsible for the majority of data in the NSIS. Kriminalistik 1/00. and – the parliamentary committee on police and security matters. Tuffner. p. Report by the C. 80–84. the Federal Police (former Border Guard or Bundesgrenzschutz). 40.42 A large ‘clean-up operation’ was performed by BKA in 1997. According to the report in the Council document 16023/04.SIS Exploitation team. the following German authorities are authorised to have direct access to the category of Article 96 CISA (data on third-country nationals to be refused entry): the police forces of the Länder . 444. Das Schengener Informationssystem. or BAMF). smaller ‘clean-up operation’ took place in 1998 on the basis of the three-year time limit of Article 112 CISA.392 reports on third-country nationals were reported in the NSIS by the German authorities. of the 536. M. 4. The German Residence Act differentiates between situations in which the border authorities are obliged to refuse a person entry and situations in which they have a margin of appreciation.1.6. The way in which this checking takes place is discussed in section 6.000). Refusal of Entry According to § 1.47 The government could give only an approximate number of the Federal authorities which had access to the NSIS in 2005 (12. if they do not have the required residence permit. SIRENE plays an intermediary role between national authorities and the authorities in other Schengen states based on the consultation procedure of Article 25 CISA.5 AAH-SDÜ. the SIRENE office in Wiesbaden performs the role of a 24-hour helpdesk for the different German offices involved in the NSIS.1. Article 96 Hits: Duties and Responsibilities of German Authorities 3. but did not have any information on the number of terminals with access to the NSIS in the Länder. It is located at the BKA premises in Wiesbaden. With regard to the applicable rules and practical problems.5. p. 6. 3. SIRENE does not check the lawfulness of the grounds for the national alerts.2.6. German officials have the general duty to check the NSIS with regard to every decision based on immigration law (ausländerrechtliche Entscheidung).Germany 397 there were 70 million consultations. . The functions of and the relationship between SIRENE and the immigration offices in the Länder are regulated in § 2. SIRENE is responsible for checking whether the applicable time limits of the alerts in the NSIS are respected. coordination and political negotiations regarding Schengen.2. Federal police officers at the borders may refuse somebody entry if they have a reasonable motive to believe that the person intends to stay for purposes other than those communicated to the German authorities or if he or she does not meet the requirements of 47 Bundestag Drucksache 16/1044. As a result of the central position of the BKA with regard to the implementation. Functioning of SIRENE SIRENE is part of the BKA. 3.3 AAH-SDÜ. SIRENE also seems to have an important role with regard to the practical implementation of the NSIS. On the basis of §§ 14 and 15 Residence Act. individuals should be refused entry if they are not in the possession of the required travel documents. or if a re-entry ban applies to this person on the basis of § 11 (1). The function of SIRENE Germany is comparable to its counterparts in the Netherlands and France. As in the other countries. a third-country national can only be directly expelled on the basis of an Article 96 (3) alert by German authorities. this information will be forwarded to the consulate or embassy involved.1. In the situation where persons have been reported to the NSIS by German authorities on the basis of 96 (2).1. Each visa application is checked against data stored in the AZR and in the NSIS on the basis of Article 96 CISA.3. This organisation. a German official can only remove or refuse this person entry at the borders (Zurückschiebung) but not expel him once he is in the country. as well as the SIS and other databases such as the German police file INPOL. since this would mean that German officers – whenever they obtain a hit in the SIS on a person during a check within the German territory – cannot expel this person immediately. . whether the person in question is reported as ‘inadmissible’. submitted to the Ministry of Foreign Affairs and from this organisation to the Federal Administration (Bundesverwaltungsamt). 48 Bundestag Drucksache 16/1044. will check by consulting the AZR. This is also laid down in § 5.3. This means that the refusal of entry based on an Article 96 (3) alert is only imperative if it is based on the re-entry ban of § 11 (1) of the Residence Act. If the person is reported as such.398 Chapter 12 Article 5 of the CISA. On the basis of this information. in this situation this problem would not arise. in accordance with Article 5 CISA. A person cannot be immediately expelled on the basis of 96 (3) alerts which are reported by other Schengen States.1. a visa can only be issued if the applicant meets (among other things) the requirements of the CISA. 3.3.2 and 5.48 Every visa application is through a German electronic network. So. in these latter situations. In these situations. they will also be stored for the purpose of arrest in INPOL. responsible for the Central Aliens Administration or the AZR (see below). The BKA has criticised this regulation (which only applies in Germany).2.6. the German official will have to issue a separate administrative decision. 3. the visa application will be automatically rejected without further inquiry.3. This means. This means that. p. nor on the basis of Article 96 (2) alerts reported by German and foreign authorities. German consulates and embassies have no on-line access to the NSIS.6.1 AAH-SDÜ. Expulsion of Aliens on the Basis of an Article 96 CISA Hit Based on the rather complicated regulation of §§ 5. 5.3 AAHSDÜ. embassies and consular posts are obliged to refuse this person a visa. if the person has been recorded in the NSIS for the purpose of refusal of entry. Article 96 Hits and Visa Applications Based on § 6 of the German Residence Act. Bundestag Drucksache 10/5859. A. This central database. This includes persons having applied for asylum or a residence permit (visa applications excluded). Juni 1996 (GMBl.07. Weichert. Die informationellle Sonderbehandlung von Immigrantinnen und Flüchtlingen. or persons falling within the categories listed in § 2 (2) of the AZRG.53 Their objections 49 50 51 52 53 Gesetz über die Errichtung des Bundesverwaltungsamtes. a centralised administration of aliens living in Germany (Ausländerzentralregister. Further rules are included in Verordnung zur Durchführung des AZR-Gesetzes (AZRG-DV) vom 17. BGBl. both the legislator and commentators became aware that this large database on aliens required a formal legal basis.51 4. p.lfd. I. BGBl. Mai 1995 (BGBl. NJW 1994.2. 1996. hereafter AZRG) entered into force on 1 October 1994. p. functioned for 40 years without a formal legal basis. hereafter AZR) has been established.de/beschlue/ent47. This Act on the central aliens administration (Gesetz über das Ausländerzentralregister. http://www. 334). etc. information is stored on every non-German national (including EU nationals) residing (not temporarily) in Germany. Intermezzo: German Policy Governing Third-Country Nationals 4. Content of the AZR Based on Article 4 of the Immigration Act (Zuwanderungsgesetz) 2004.86. Heft 50.html.m-v. Initially. 695) und der Verwaltungsvorschrift zum AZR-Gesetz (AZR-VV) vom 4.2. The Central Aliens Administration or the AZR 4. 3276 and Th.1. 9 and 10 March 1994. I.2 below).50 It would nevertheless take more than ten years before this law was adopted. long the largest database on individuals in Germany.1. 12/7520. 16.52 The Federal Data Protection Commissioner and the data protection authorities of the Länder expressed their concerns with regard to the AZR at their meeting in 1994. extradited persons. § 6: “The Federal Administration Office holds for the purpose of the administration the Central Administration on Aliens [AZR] on the aliens residing in Germany”. Bundestag Drucksache 12/6938. p. .Germany 399 4. there was only a legal reference to this registration in the Act on the Federal Administration of 28 December 1959.1. Bürgerrechte & Polizei-CILIP 45 (2/1993). many organisations and commentators opposed the functioning of the AZR. the Federal Agency for Migration and Asylum is the authority responsible for the AZR. The Need for a Legal Basis Since 1953. Das Ausländerzentralregistergesetz. persons against whom an expulsion order has been issued. Schriever-Steinberg. 2265. I. In the AZR.1. 829. Although welcoming the legal basis for the AZR. p.49 After the famous Volkszählungsurteil in 1983 (see section 6. The automation of this administration started in 1967. Ausländererfassung in der Bundesrepublik. bfdi. Information provided by the Bundesverwaltungsamt. http://www. 103–105. published in InfAuslR 2/2002. http://www.57 Data on foreigners. In September 1995. 7.de (Dec.3 million to 6. 91. the AZR included 23. this did not preclude applicants from using the available remedies in specialist lower courts.7 million concerning third-country nationals residing in Germany. the number of foreigners in Germany reported in this central file dropped from 7. 6.56 Later. The Constitutional Court.58 The Data Protection Commissioner concluded that the storage of data on EU citizens could be necessary.7 million data on persons. This complaint was rejected by Federal Constitutional Court in 2001. Finally. five years after his death or ten years after his last departure from Germany. the centralised functioning of the administration of foreigners and the large group of public authorities with on-line access to foreigner administration.000 German organisations. They were also concerned about the fact that this database would be accessible by police and internal security organisations and that the data stored in the AZR was not directly obtained from the persons themselves.BvR 1970/95. http://www.bmi.bund. In 2005. the President of the European Parliament submitted a petition to the Federal Data Protection Commissioner concerning the fact that the AZR includes information on EU citizens and questioning whether this was not in breach of EC Directive 95/46. they opposed the possibility included in the AZR law of retrieving information from the database about a group of persons. Migrationsbericht 2005. 19th Report Bundesdatenschutzbeauftragten. the BAMF announced that these numbers were wrong. however. 166. BAMF. for instance. 2006). According to the Constitutional Court.de.10.bund.7 million. These data are still referred to in a publication of March 2005 of the BAMF. p. lawyers and members of civil rights organisations who were concerned about the individual rights of the persons registered in the AZR lodged a constitutional complaint (Verfassungsbeschwerde) against the AZRG.bmi. including EU citizens. are to be erased from the AZR when the foreign national acquires German citizenship. according to the 54 55 56 57 58 Bundesverfassungsgericht 10. In 1999.55 By 2004. recognised that the German AZRG did not include a right of information for the data subject. http://www. However. p. of whom 2.3 million were nationals of EU Member States.bva. .400 Chapter 12 concerned.bund. in other words using certain common criteria. and was used by more than 6. 2001–2002.de. as required by EC Directive 95/46 on the protection of personal data.de.2001 . according to official statistics from the Federal Agency for Migration and Refugee Policy (BAMF). p.54 The rejection was based on the grounds that the law included adequate possibilities for legal remedies for individuals affected by the use of the central foreigner administration.3 million foreigners had apparently stayed in Germany. Immigration Law and Policy. After the AZR had been reorganised in 2004.bund. using profiling techniques. p. the Oberverwaltungsgericht of North Rhine-Westphalia lodged a preliminary request regarding the registration of EU citizens in the AZR. Immigration. the European Commission began legal proceedings against Germany before the Court of Justice. 6.3. 361. Amendments on the Basis of the Prevention of Terrorism Act The German Prevention of Terrorism Act (Terrorismusbekämpfungsgesetz. the prohibition of restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State (first paragraph of Article 43 TEC).2001. 59 60 61 62 According to the Federal Data Protection Commissioner in its 20. Schily.1. and Terrorism: How do they relate in Germany?. See. claiming that the registration of EU nationals is in breach of the nondiscrimination clause of Article 6 of the EC Treaty. Tätigkeitsbericht 2003–2004 para. hereafter TBG) of 20 December 2001 extended the competences of German authorities in the field of internal security and data control. Speech of 16. the systematic storage of data on all EU citizens residing in Germany would be unlawful. 2002 I. the Federal Internal Security Agency (Verfassungsschutz) obtained increased powers to retrieve information from.1. 4. the requirement of necessity under Article 7(e) of 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. Asylum. 177 ff.2001. BGBl. with the argument that.Germany 401 Data Protection Authority. Brouwer. the former Minister of the Interior. telecommunication and postal organisations. Germany. cited in the position of the German Data Protection Association of 25. b. c.09.62 With regard to information exchange in general. Heinz Huber v. Catz & Guild (2003). Germany: Controlling Data. Davy. in: Brouwer.59 On 28 December 2006. This law entered into force on 9 January 2002. “data protection should not result in terrorist protection”.4. I found no further information on this procedure. See also: U. in: Baldaccini & Guild (2006). The new competences in the field of information exchange and recording were justified by a spokesman for Mr.60 The German court submitted the question of whether the general processing of the personal data of EU citizens in the AZR is compatible with: a.10. 27 ff.61 This law provided the basis for a variety of measures facilitating the gathering of information by security agencies and police. On 7 July 2004. for instance. Case C-524/06. for a general overview of this legislation: E. p. the prohibition of discrimination on the grounds of nationality against citizens of the Union who are exercising their right to move and reside freely within the territory of the Member States (first paragraph of Article 12 TEC in conjunction with Articles 17 TEC and 18(1) TEC). . Datenschutz für Flüchtlinge nach der Anti-Terror-Gesetzgebung. The new § 12 (1) AZRG allows the collection of data on a group of persons on the basis of the more general criterion of “for the prevention of danger”. change to the Federal Protection of the Constitution Act). the possibility of group profiling has been further expanded. for example if the public authorities want to send special information to this group. 15 November 2001. Finally. This practice of group profiling or Gruppenauskunft is allowed. . The information retrieved by these organisations may be recorded for 5–10 years. granting organisations such as the police. In November 2001. a new provision in AZRG (§ 3) made it possible to store information on the religion of the person concerned in the AZR if this person forwarded this information voluntarily. With § 13 (7) of the TBG. It is also possible to forward information on groups of aliens from the AZR to police or security officials. including on-line access. p. 4–9. the Federal Police (former Border Police) and the customs authorities easier access to this database. a new paragraph has been inserted in the AZRG. instead of the former narrower requirement of “actual present danger”.64 In this position paper. Weichert.63 Many organisations have expressed concerns about the discriminatory and stigmatising effects of the provisions under the TBG. the German Data Protection Association published a position specifically referring to the consequences of the draft TBG for foreigners. This measure involving the profiling of aliens does not meet the same. which especially relates to the data protection of foreigners. allowing wider use of the data stored in the AZR. even dangerous provision” by Th. § 16 V (1) 1 of the Asylum Procedure Act allows for the fingerprints of asylum seekers to be compared automatically with police data. Article 1(6) TBG introduced the obligation for the Federal Agency for the Recognition of Foreign Refugees and the German immigration offices to forward information voluntarily to the Internal Security Agency. firstly. Asylmagazin 4/2002. particularly the restrictive measures aimed at asylum seekers and immigrants. The TBG included some amendments to the AZRG. in the form of the registration and the exchange of information. if this is necessary for national security or a criminal investigation. stricter rules of profiling as regulated in the general police laws. 63 64 This new provision has been described as a “useless. the association criticised the extra measures taken to control third-country nationals. German Data Protection Association (Deutsche Vereinigung für Datenschutz) with relation to the provisions in the draft TBG.402 Chapter 12 airlines and financial organisations (Article 1 TBG. § 12 AZRG already provided for the exchange of information on groups of aliens meeting the same criteria. when this is in the interests of this particular group of persons. each time there are actual indications that this data exchange is necessary for the execution of the tasks of this latter institution. With the TBG. Computer Profiling or Dragnet Searching (Rasterfahndung) 4. including the withdrawal of a visa. In 2005. These time limits have been changed to five and 10 years respectively. the time limits applying to the storage of data in the visa database were extended. Federal Data Protection Commissioner. Although this database has been in existence since 1953 as a complement to the AZR.65 By 2004. as amended by Article 13(9) TBG. Introduced by Horst Herald. p. Using this system. The Federal Criminal Police Office.10. Rasterfahndung means ‘raster or grid search’.3. the amendment provided for the recording of photographs in the visa database. 19th Report 2001–2002. including 3 million decisions with regard to visa applications and 1. 2003–2004. Before 11 September 2001: Tracking RAF Terrorists The practice known as computer profiling or dragnet searching (Rasterfahndung 68) was developed by the BKA during the 1970s.3. Based on the assumption that specific criteria apply to the searched person or group of persons. data regarding visa applications were to be stored for two or three years.66 Prior to the decision-making on VIS taken at EU level. Act of 14. Literally. allowing every embassy and consular post to enter their data on visa applications. the EU Visa Information System is based on the same idea.1. the Federal Police and the immigration offices of the Länder are authorised to have access to the visa database. the German visa database only included records on every visa application forwarded to one of the German embassies or consular posts. See the 20th Report of the Federal Data Protection Commissioner. 41. but also all decisions made with regard to this application are recorded.4.Germany 403 4.2005. para. Originally. Visa Information System The German visa database (Visadatei) is the second largest personal database in Germany. Before this amendment. The three-year time limit applied to visa applications by third-country nationals from certain countries and was justified on the basis of internal security reasons.AZRG-DV). information on large numbers of persons is further reduced by deleting those persons who do not meet all of these criteria. Moreover. other embassies can discover whether an applicant has already applied for a visa from another German representative.7 million photographs. I 2982. in 2000 the German government launched a pilot project – VISA 2000. . On the basis of § 29 AZRG. it was only legalised with the AZRG in 1994. 4.2. 6. the president of the BKA between 1971 and 1981. computer profiling was developed 65 66 67 68 § 19 of the implementing rules to the AZRG (Verordnung zur Durchführung des Gesetzes über das Ausländerzentralregister . not only visa applications.8 million records on persons.2. The use of and information to be stored in this database are regulated in §§ 28–33 AZRG. This project includes an automated data processing network. the German visa database held 10.67 As we have seen in Chapter 5. Bischof. a suspected member of the radical left-wing organisation. the German law against organised crime provided a legal basis for so-called ‘repressive’ computer profiling. the laws of the German Länder regulating the tasks and powers of the police provided for the possibility of computer profiling for the general purpose of preventing danger (Gefahrenabwehr). 362–363. p. .A.2. the use of Rasterfahndung was deleted from the Länder Police Act (Landespolizeigesetz) in August 2001.70 These laws included different criteria on the situations in which computer profiling is allowed. The first time computer profiling was claimed to have been used was in 1979. including Mohammed Atta. had been living in Hamburg for years. Jrg. This technique is used to retrieve information on suspected persons by comparing different public and nonpublic databases using a sociological and psychological ‘profile’ of the person targeted. the legislator of Bremen reintroduced its legal basis for Rasterfahndung. Based on the assumptions that a terrorist would only rent accommodation of 1–3 rooms. p. B.A. when the German police arrested Rolf Heißler. 37. On 25 October 2001. involving the use of computer profiling. after the terrorist attacks in the United States. In Bremen. Europäische Rasterfahndung – grenzenlose Sicherheit oder gläserne Europäer?. the RAF. This use of computer profiling was critically received in the public arena. however. 367 ff. police forces started searching for possible 69 70 B.3. After 11 September 2001: Tracking ‘Islamic Terrorists’ During a meeting of the police forces of the German Länder in October 2001. the Federal Minister of the Interior banned the further use of this method. The opposition was based largely on the concerns of individual data protection and the fact that this practice lacked any legal basis. This decision was taken because research by the FBI showed that one or more of the hijackers of the US airplanes. confined to the investigation of certain criminal acts and bound by formal requirements such as control by the judiciary and the duty to report the use of profiling to the Federal Data Protection Commissioner. Schleswig-Holstein and Lower Saxony. Heft 4–2004. it was decided that the police forces would start computer profiling.69 In 1992. were brought out into the open. because of the persistent critical views of this practice and the apparently ‘quite’ situation which would not require such intrusive methods. Kritische Justiz. responsible for the attacks of 11 September 2001. With the exceptions of Bremen. When other operations of the BKA. On the basis of a profile provided by the BKA. the German police was able to trace Heißler by comparing the different relevant databases. would not register with the local municipality and would only pay his water and electricity bills in cash. 4. Bischof (2004).404 Chapter 12 into a specialised technique by the German police. The information found by comparing population registers. that the practice of computer profiling was primarily the responsibility of the German Länder and that. 3/4). the BKA encountered different problems during the operation. in February 2002.71 Although the BKA played an important role in the whole operation. Nothing doing? Taking stock of data trawling operations in Germany after 11 September 2001.01. between October 2001 and January 2002. concluded that the goal of the dragnet search operation.2002. 140 persons were directly contacted by the police. the Federal government could not give much information on the current results. . 30. known as sleepers (Schläfer). p. May-August 2005 (Vol. had not been achieved ‘yet’. 22. the BKA stated that the data profiling operation had ceased. the Commission on Internal Security (Kommission Staatsschutz). having no children. speaking different languages. M.000 male students were ‘checked’ and. under the auspices of Ministry of the Interior. Statewatch. to find more ‘sleepers’ in Germany. such as a lack of coordination with the various Länder and a lack of sufficient resources.Germany 405 fundamentalist Muslim terrorists living inconspicuously in Germany. Kant. 71 72 73 Der Tagesspiegel. In Hamburg alone. frequently applying for a visa and obtaining or holding a flying qualification. Answering a question from the PDS in the German Parliament on the extent and the effects of the measure. According to this unpublished report. the central aliens administration or AZR and the registers of universities/polytechnics. 19. residing legally in Germany. A special Coordination Group on International Terrorism (Koordinierungsgruppe Internationaler Terrorismus.73 In a final report. as such. Bundestag Drucksache 14/8257. On 30 March 2003. This included the lack of staff to analyse the available information. the government considered the measures legal and proportional. 15 no. The profile used for this search was based on the identity of three perpetrators of the US attacks and included criteria such as: being male and Muslim without being fundamentalist in public. according to a German newspaper. was forwarded by the Länder to the BKA. The BKA stored the information thus gathered in a specially created database on ‘sleepers’: Verbunddatei Schläfer. the special database on ‘sleepers’ was erased on 30 June 2003 and all the comparative data was deleted on 21 July 2003. on the basis of this ‘check’. being (technically) a student. the Federal government announced.2002. the gathering of information using data profiling took place under the auspices of the different Länder. 18. KG IntTE) coordinated the interpretation of the information and the provision of further profiles.02.72 In the light of the applicable security regulations in the different Länder. In a press release of 24 October 2001. Az. the Court of Appeal ruled on the same date that the retrieval of information was disproportionate and therefore an infringement of the 74 75 76 77 Stellungnahmen zum Sicherheitspaket II anlässlich der Pressekonferenz im Haus der Demokratie und Menschenrechte am 24. the Federal Data Protection Commissioner called for an extensive debate on the usefulness and legality of this computer profiling practice after 11 September. p.nrw. dealing with the complaint from a German national. In the majority of the judgments found. according to the applicable laws of the Länder. the local population office and universities provided the police with information on all males aged between 18 and 40. Decision of 8 February 2002. In North Rhine-Westphalia. the use of his personal data had been considered legal because the applicant fell within the category of “the required proximity to a dangerous situation” purely because of his nationality.406 Chapter 12 NGOs. . lower standards may be applied to judge the actual risk of a potential danger if the expected damage is substantial. such as the right to privacy. data protection authorities and politicians strongly opposed the practice of Rasterfahndung to trace Muslims living in Germany. However.2001 in Berlin. When a Jordanian national lodged a complaint with the competent courts. several German courts passed judgment on complaints from persons about the forwarding of their personal data to the police either by universities or population offices.76 The available German jurisprudence with regard to this practice shows differences in interpretation depending on whether there is “a current actual danger to internal security”.htm. The Data Protection Commissioner considered a timely debate especially necessary in view of the fact that the German government tried to extend this practice to the other EU Member States.olg-duesseldorf. 3 Wx 351/01. is a condition for lawful computer profiling. which. freedom of religion and the presumption of innocence. 55.10.de.de/terror/stellung. the German Data Protection Association advocated the termination of the computer profiling because it constituted a violation of constitutional and human rights for certain groups. 20th Report Federal Data Protection Commissioner 2003–2004.cilip.74 In its annual report for 2003–2004. the courts accepted the prognosis of risk as presented by the local and Federal governments for the justification of the use of data profiling.77 The Court of Appeal ruled on 8 February 2002 that. regarding a decision as to whether there is a current danger to internal security. Assessment of Data Profiling by Lower German Courts Between January and November 2002. http://www.3.3. In these latter judgments.cilip. See for an overview and publication of this jurisprudence: http://www.de.75 4. the Court of Appeal in Düsseldorf (Oberlandgericht) upheld the decisions of the lower courts. http://www. the practice of computer profiling was declared unlawful. 84 T 8/02. For example.02. In April 2002. 1 W 89–98/02 (84 T 278. Az.de. both courts relied on various press statements by the Minister of the Interior. http://www.2 below).2002. the authorities should have assessed whether a less intrusive method could be applied. 22. the period between 19 September and 15 October 2001. 308. OVG (1 L1106/O1. Az.02. Az. the court found that the data profiling could have been limited to males holding the nationality of or born in one of the states listed as a ‘risk country’.2002. Oberlandesgericht Rheinland-Pfalz.78 According to the Düsseldorf Court of Appeal. upon request.nrw. the administrative court of Hamburg explicitly found that there was a current threat of danger during the period when the disputed computer profiling took place. and Landgericht Wiesbaden. as well as several students from Israel and France. 6. The courts ruled that the data exchange in question was unlawful because there was no current threat to internal security. the court of Berlin ruled that when the damage to be feared is substantial. Az. i. 15. Verwaltungsgericht Hamburg. In this case.2002. stipulating that the court gave a too narrow definition of what constituted a threat to the internal security. On 22 March 2002. Az. 16. the Administrative Court of Appeal of Rheinland-Pfalz annulled the decision of the lower court.02.81 The Berlin judgment dealt with the appeal of students from Muslim countries. the judgments of both the Amtsgericht in Berlin and the Landgericht in Wiesbaden dealt with public and private organisations which had submitted to the police.80 According to this judgment.olg-duesseldorf.Germany 407 applicant’s right to informational self-determination (see section 6.4. the fact that the Federal government had announced in parliament on 12 September 2001 that there were no indications that terrorist attacks would occur in Germany did not rule out the existence of a current threat of danger. LG Berlin. Amtsgericht Tiergarten.79 The Court of Appeal concluded that this measure was effective and proportionate.3. 12 B 10331/02. . data regarding young male Muslim students from different databases. 288.01. 14 VG 446/02. 4 T 707/01.82 In line with the decision of the Court of Appeal of Düsseldorf. 27. 78 79 80 81 82 Decision of 8 February 2002.02. In a judgment of 27 February 2002. lower standards could be applied to the ‘prognosis’ of that danger. 348–351/01. or males who were Muslim. 3 Wx 357/01.e. Az. This reasoning was based solely on “the real chance that terrorist attacks would occur again”. 289. Kammergericht Berlin. 309. the higher civil court (Kammergericht) of Berlin annulled the decision of the Amtsgericht in Berlin. With regard to this latter assessment on the current threat to Germany. In other judgments. in which it was decided that computer profiling was illegal and disproportionate.MZ). the Constitutional Court explicitly referred to the extended scope of the collection of information by the German authorities. 1 BvR 518/02.3. 10 G 4510/02. “For those persons whose constitutional rights it affects.84 This refuted practice of data profiling occurred between 2001 and 2004.4. objecting to the transmission of personal data by his university to the police. cited in this judgment.bundesverfassungsgericht. Az. especially when it concerns. the risk of becoming the subject of further administrative control measures.000 others) the police in North Rhine-Westphalia had gathered personal information using data profiling. 8. The Constitutional Court also referred to the possibility of stigmatising a group of persons in public life. According to the government. The court found that the police order based on which the data communication took place was not preceded by the necessary balance of interests and lacked a specific legal basis. ordering the cessation of further data exchange between the university and the police. the information gathered did not lead to any suspects. . the very fact of police data profiling having been carried out according to certain criteria – if it becomes known – can have a stigmatising effect on those who meet these criteria. http://www. The consideration of the Constitutional Court is important. I refer to a judgment of November 2002. for those whose constitutional rights are affected. This judgment. 4. (…) Furthermore.2 million data items within North Rhine-Westphalia. when the administrative court of Giessen dealt with a claim from a Moroccan student. The Constitutional Court and Data Profiling – Rasterfahndungsurteil Four years after the practice of data profiling had formally ceased.83 This court granted him a temporary injunction. (…) It is relevant. according to which data profiling implies. of 4 April 2006.11. persons from specific countries who are also Muslim.2002. In its judgment. the Constitutional Court published an important judgment in which it made clear that data profiling is only justified under special and specified circumstances. The Constitutional Court decided that this use of data profiling. was a disproportionate breach of the applicant’s constitutional right to privacy. with regard to the intensity of the effects of the data profiling carried out since 83 84 Verwaltungsgericht Giessen.408 Chapter 12 Finally. the use of many different information systems and the higher risk for the person concerned of becoming a target of criminal investigation through this use of data profiling.de. as in the refuted practice of data profiling. data profiling means a higher risk of becoming the target of further official investigative measures. Decision of 4 April 2006. This has been demonstrated to a certain extent by the outcome of the data profiling implemented since 11 September 2001. concerned the complaint by a Moroccan student concerning whom (and 11. based on an earlier transmission of 5. to be stored in a database. the German Constitutional Court found that the general situation of threat prevailing since the events of 11 September 2001 or the threat of terrorist attacks apparently caused by current foreign policy positions or military operations were not sufficient reasons to justify this practice of data profiling. (…) So fällt etwa für die Rasterfahndungen. (…) Ferner kann die Tatsache einer nach bestimmten Kriterien durchgeführten polizeilichen Rasterfahndung als solche . Vorurteile zu reproduzieren und diese Bevölkerungsgruppen in der öffentlichen Wahrnehmung zu stigmatisieren. September 2001 durchgeführten Rasterfahndung gezeigt. 17 June 1993. womit stets auch das Risiko verbunden ist.”) Wolfgang Lüder (FDP) in Deutscher Bundestag. in Madrid and London. Translation Claire Singleton (“Die Rasterfahndung begründet für die Personen. the insertion of biometric data into the residence permit was envisaged in the new Residence Act of 2004. a member of the Liberal Party (FDP) refers to the plans by the German Minister of the Interior to establish “partly automated border control (teilweise automatisierten Grenzkontrolle).87 Since that time. which always involves the risk of spreading prejudice and stigmatising these population groups in the public perception. September 2001 durchgeführt wurden. biometric 85 86 87 Para.”85 The Court concluded that such a measure could only be justified on the basis of a specific threat of an attack which would cause substantial harm. Mr. where the threat is based on concrete facts. See also 14th Report of the Federal Data Protection Commissioner. . Based on Article 78 (3) of the Residence Act. 4. in deren Grundrechte sie eingreift. In 1993. For example. Sitzung Berlin. 14016.wenn sie bekannt wird . ein erhöhtes Risiko. die diese Kriterien erfüllen. Dies hat etwa der Verlauf der nach dem 11. 12. Ziel weiterer behördlicher Ermittlungsmaßnahmen zu werden.eine stigmatisierende Wirkung für diejenigen haben. 110–112. that it is targeted at foreigners of certain origins and Muslim beliefs. the former Minister of the Interior.4. 163. After the terrorist attacks in the US and. during the discussions in the German Parliament with regard to the NSIS. pursued a dynamic approach to the projects involving the use of biometrics for security purposes. dass sie sich gegen Ausländer bestimmter Herkunft und muslimischen Glaubens richten. the use of biometrics for the purposes of identity and immigration control was already on the agenda of the German government. a residence permit may include: a photo. Wahlperiode. Biometrics and Border Control Long before the discussions started at EU level. im Hinblick auf deren Eingriffsintensität ins Gewicht. die nach dem 11. Schily.86 These plans were to include the use of biometric data (fingerprints and length of hand) in travel documents. Finally. the use of biometrics has regularly reappeared on the German political agenda. later.Germany 409 11 September 2001. 600 persons volunteered. federal database. law enforcement authorities will have “online-access” to the passport data (Eilfall ). The German parliament (Bundestag) agreed in May 2007 with the amendment of the German passport law (Passgesetz) providing for the registration of biometrics into the German passports. In 2005. Furthermore. was to check the reliability of iris recognition for verification and identification purposes. 62. http://dip.88 The purpose of this project. the test was also intended to check whether the inclusion of biometrics in travel documents could be used to search for wanted persons recorded in police files. the amended text provides that only in emergency cases. gender. Because of general objections in German policy against the central storage of biometric data. The digital photographs and fingerprints only will be inserted into the chip included in the passport. such as INPOL and the NSIS. Rights and Legal Remedies: Generally Applicable Rules 5. for which 8. 24 May 2007.89 During the parliamentary discussions. the opposition parties against this amendment. a pilot project was launched with regard to the use of biometrics at the German embassies and consular posts abroad. the amended passport law explicitly provides that the passport data will not be stored into a central. Article 19 (4) Constitution The right to legal remedies for everyone whose constitutional rights are affected by public administration has been incorporated in Article 19 (4) of the German Constitution: 88 89 20th Report of the Federal Data Protection Commissioner 2003–2004.de/ . The coalition parties CSU/CDU and SDP voted in favour. On 12 February 2004. it was the German government which actively supported the use of biometrics. the Minister of the Interior launched a pilot project on automatic border control supported by the use of biometrics. The use of an ‘automatic reading zone’ (including data on name. nationality and residence permit) allows the German authorities to record. date of birth. hands or face and possibility of encrypted storage. They did not mention that during the negotiations at the EU level. the government and its coalition parties justified this proposal by stressing the obligation to implement EC law on biometric passports.1. With regard to the latter. p. 5. See for the parliamentary discussions and plenary voting: Plenarprotokoll 16/100. transmit and use these data from the automatic reading zone in the performance of their tasks.bundestag.410 Chapter 12 data: fingerprints. Drucksache 16/4138. These latter. that the courts should have access to information which forms the basis of the refuted decision. 90 91 92 BVerfG 18. in a judgment of 27 October 1999. In order to guarantee the right to effective judicial protection in accordance with Article 19 (4) of the Constitution.7.1973.92 This right includes the duty to transmit the information to the courts even if the files concerned are labelled as confidential for national security reasons. BVerfG 27. include for example the right to free assembly (Article 8) and free movement within the federal territory (Article 11). . the Constitutional Court ruled. the Constitutional Court stressed the importance of legal remedies with appropriate safeguards to guarantee individuals effective judicial protection.10. Soweit eine andere Zuständigkeit nicht begründet ist. which was based on a list of suspected persons compiled by the Bavarian police after the attacks by a Palestinian organisation in Munich during the Olympic Games. partly because the decision to refuse this right would not infringe the data protection rights of the applicant.1999. 1 BVR 23 155/73. so steht ihm der Rechtsweg offen.Germany 411 “Wird jemand durch die öffentliche Gewalt in seinen Rechten verletzt.” The German Constitution differentiates between constitutional rights which apply universally and other rights which apply to German nationals only. in order to be able to assess the legality of this decision.3. In this and subsequent judgments. 20–21. 1 BvR 385/90. in which the Court refers to its earlier judgments.90 The Constitutional Court dealt in this case with an expulsion measure against persons of Palestinian Arabic origin. The applicable procedures should give the claimant not only access to the courts. BVerfG 16. so-called basic or civil rights for Germans (Deutschen-Grundrechte or Bürgerrechte).91 The guarantees as defined by the Constitutional Court included the possibility for the court to review the content of the administrative decision and the requirement that access to courts should not be made too difficult by formal requirements. The case concerned the claim from an employee whose labour contract with a Bavarian governmental agency was not renewed on the basis of secret information from the German intelligence service (Verfassungsschutz). but also the right to be effectively heard. see para. The Bavarian government denied the individual’s right to have the secret information assessed by an independent court. ist der ordentlichen Rechtsweg gegeben (…). the Constitutional Court emphasised that the right to legal remedies on the basis of Article 19 (4) applies in full to individuals holding a foreign nationality. As long ago as 1973. who claim that their constitutional rights are affected. 2 BVR 2131/95.1999. According to the Court. This practice was based on an amendment to the German Constitution of 1968.95 This provision and the general rule in Article 19 (4) are the basic principles with regard to the right to effective remedies and have been further developed in the jurisprudence of the Federal Administrative Court and other courts. in the Klass judgment of 1978 the ECtHR dealt with the relationship between the right to privacy as protected in Article 8 ECHR and the interests of the State to protect internal security. “Vor Gericht hat jedermann Anspruch auf rechtliches Gehör.” BVerwG 14.1980. Kommers. Before this case was brought before the Strasbourg Court. Another important provision in the German Constitution is Article 103 (1). . A constitutional complaint regarding this amendment was forwarded by several German citizens. this should as far as possible eliminate the risk of irreparable damage being caused by the immediate execution of the administrative measure. permitting wiretaps and other interferences with private letters and telephone conversations.1970.P.97 The amendment stipulated that “recourse to the courts shall be replaced by a review of the case by bodies and auxiliary agencies to be appointed by parliament”. 5. p. but everything to do with the applicant’s right to effective judicial protection. The Klass Case Before the German Constitutional Court As we saw in Chapter 6. about the lack of judicial review 93 94 95 96 97 98 BVerfG 9.1973.06.2. “if necessary to combat foreign and domestic enemies”. D.01. BVerfG 15. second edition.12. Gerhard Klass.412 Chapter 12 The Constitutional Court set this argument aside as irrelevant. Finally. firstly. 1 C 15. stating explicitly that the right to offer the court the possibility of access to the information during the judicial process had nothing to do with data protection rights or the right to self-determination.03. the German Constitutional Court was questioned in 1970 on the legitimacy of the disputed legislation on eavesdropping.2002. 2 BvR 316/80.96 The criteria developed on the basis of these principles are also relevant to immigration and data protection law. Durham and London: Duke University Press 1997. 228. 1 BvL 14/72. which states that everybody has the right to be heard before a court. in its case law the importance of the possibility for courts to grant a temporary injunction (vorläufigen Rechtschutz93 or zeitgerechten Rechtschutz94).03. Az. among them a senior state prosecutor. 2 BvF 1/69. the Constitutional Court stressed.98 These applicants complained. The Constitutional Jurisprudence of the Federal Republic of Germany. BVerfG 27. According to the Constitutional Court. is still fulfilled. the Constitutional Court considered this was not in breach of the general principle of the separation of powers. the substantive limits and procedural safeguards of the statute satisfied the constitutional principles of legality and proportionality. the Court made clear that the lack of judicial control is only acceptable in exceptional circumstances. claiming that their rights under Articles 6. 2777 ff. but not without formulating important guarantees to be applied with regard to the use of personal information by internal security agencies. Klass and others lodged a claim before the institutions in Strasbourg. BVerfG 65.99 This decision and the reference of the Court to “militant democracy” can only be understood by taking into account the violent events in Germany at that time. had been breached. BVerfG 23.Germany 413 of administrative acts limiting the constitutional rights of citizens and. the essential point is that the rationale for the separation of powers. stating: “the legislator is bound by the constitutional order. appointed or established by parliament and operating within the framework of the executive department. 5.3. As we have seen. while respecting the basic concept of human dignity. secondly. impair or destroy the existence of the state while claiming the protection of rights granted by the Constitution”. According to the Constitutional Court. Rule of Law: T he Principle of Proportionality Another principle which is important in the field of immigration and data protection law is contained in Article 20 (3) of the German Constitution. 99 100 Paras. In exceptional cases. According to the Court. the ECtHR rejected this claim as well. namely reciprocal restriction and control of state power. according to the Court. 27–28. This provision affirms the principle of the rule of law. . The Constitutional Court rejected this complaint using the concept of a “militant democracy” which would require interpreting the Constitution so that “enemies of the Constitution must not be allowed to endanger. And even then. the administration and the judiciary by the legislation and by the law”. 1333. this notion of the rule of law implies the duty of proportionality (Verhältnismässigkeit or Übermaßverbot) as a standard which generally applies to every state measure. With regard to the claim of the lack of independent judicial control.. 8 and 13 ECHR. After this rejection of their constitutional claim. about the fact that the amendment would infringe the “essential content of the constitutional right”. the separation of powers would allow legal protection against acts by the executive furnished not by the courts but by independent institutions. 1 [44].100 In the literature. BVerfGE 92. Hailbronner in: J. with a complementary right to financial compensation.4. Act of 21 January 1960. Maurer. general administrative principles are set forth in the Administrative Act of 1976 (Verwalt-ungsverfahrengesetz. the so-called Feststellungsklage refers to the request for a formal declaration on the (non-)existence of a legal right. A final option is the use of the so-called Fortsetzungsfeststellungsklage: this is an appeal for confirmation that the refusal concerned was in breach of the applicable law. 387. Die Rechtsstellung von Ausländern nach staatlichem Recht und Völkerrecht. This appeal can be relevant in the situation where a person is seeking the prohibition of the transfer of his or her data to other authorities. The first two claims. this confirmation may prohibit the repetition of unlawful decisions. BGBl.101 5. hereafter. p. Furthermore. Furthermore. the Anfechtungsklage and Verpflichtungsklage are regulated in § 42 VwGO and include the request to order the annulment of a decision or the withdrawal (or issue) of an administrative decision respectively. This objection has to be forwarded within one month of the administrative decision being notified to the applicant concerned. Such confirmation can give the applicant the right to ‘rehabilitation’. Fourthly. § 68 ff VwGO). the VwGO differentiates between five types of judicial claim. Torsten Stein (eds.4. but only describe those rules which are also relevant to data protection and immigration law. . See for a general description: H.103 I will not discuss the details of the German administrative law. whether they are residing lawfully or unlawfully. München: Beck 2002.A. or the invalidity of a decision (§ 43 VwGO). 1960. the VwGO102) is applicable with regard to administrative decisions based on the German Residence Act (§§ 77 ff ). Teil 1. I 1976. Allgemeines Verwaltungsrecht.1. 1253.414 Chapter 12 it is considered that the principle of proportionality also applies to measures in the field of immigration law. depending on which specific action or measure is required of the administration. Difference in Remedies The Federal Act on the Procedures of Administrative Courts (Verwaltungsgerichtsordnung. It can be invoked by third-country nationals in Germany.104 In the first place. 17. hereafter. Frowein. the Leistungsklage (see § 43) is the claim for a judicial order requiring the administration to act or to abstain from certain action. the VwVfG). Berlin/Heidelberg: Springer Verlag 1987.). Thirdly. BGBl. With regard to the rights on legal remedies. German administrative law provides for the general possibility of objection to the administrative authorities (Widerspruch. 101 102 103 104 K. Applicability of Administrative Procedural Law 5. Az. such as the threat of harm to life. In those cases. the courts may order a temporary injunction. Baden-Baden: Nomos Verlaggesellschaft 2001.und zum Ausländerrecht. an individual has the 105 106 G. a request for objection to an administrative decision (Widerspruch) or an appeal before a national court against such a decision. Verwaltungsvorschriften zum Staatsangehörigkeits.105 This. According to Renner. one of these public grounds as referred to in § 80 (2) would be a registration in the NSIS. 5. in a case before the administrative court of Düsseldorf (see section 8. 24 L 2837/02.4. applying both § 80 (5) and § 123 VwGO. would be a far-reaching consequence. On the basis of this latter provision. 133. Renner (introduction).3. p. Complementary to this general provision of § 80 (2) VwGO. this court confirmed that the person in question had a legal interest in having the effects of the withdrawal of his residence permit suspended and his data deleted from the NSIS.4. Both remedies may be applied within the same case. “if there is a risk that through changing circumstances the exercise of rights will be made impossible or will be hindered”.Germany 415 5. § 84 of the Residence Act describes three decisions against which an appeal for review or judicial review does not have suspensive effect: this includes a refusal to issue or to renew a residence permit. his appeal against this decision would have no suspensive effect. Verwaltungsgericht Düsseldorf. these interests should be motivated in writing. This would mean that if a person appeals against an expulsion decision based on the NSIS. . Temporary Injunction German administrative law provides the possibility for individuals to lodge a request with a national court either for the suspensive effect (aufschiebende Wirkung) of an administrative decision on the basis of § 80 (5) VwGO or for the issue of a temporary injunction (einstweilige Rechtsschutz) on the basis of § 123 VwGO. These exceptions include situations where public interests or the pressing needs of the authorities involved in the decision-making require the immediate execution of the measure. however. This duty to motivate does not apply if the authorities involved have to take immediate action in response to emergency situations. will have automatic suspensive effect (aufschiebende Wirkung) except in the situations as described in § 80 (2). health or property. nor would the immigration offices have to inform the persons why the immediate execution of the measure in question is necessary. commentator on German immigration law. InfAuslR 10/2002.2. Suspensive Effect of Legal Remedies On the basis of § 80 (1) VwGO.2 below). If § 80 (5) does not apply because there is no administrative decision (Verwaltungsakt) yet against which an appeal can be lodged.106 For example. 7 August 2002. 8. in its conclusion. Kommentar zum Bundesdatenschutzgesetz. Background and General Principles of German Data Protection Law109 The German Federal Data Protection Law (Bundesdatenschutzgesetz) entered into force on 1 January 1979. For this interpretation. 5. the adoption of data 107 108 109 Verwaltungsgericht Giessen.416 Chapter 12 right to submit a claim on the basis of § 123 VwGO. the Federal Administrative Court (Bundesverwaltungsgericht) emphasised the applicability of the criteria of Article 6 (1) ECHR on effective remedies in procedures based on asylum and immigration law. Az. The Federal Administrative Court referred. the decision was in breach of the applicable rules. Az. it was explicitly stated that the criteria of Article 6 ECHR apply. Baden-Baden: Nomos Verlaggesellschaft 2003. A general and informative overview of the history and principles of German data protection law is given by S. In this explanatory memorandum. . Since the higher court in this case reached a decision without giving the applicant the opportunity to submit to oral examination. Legal Remedies and Data Protection Law 6.2002. Applicability of 6 ECHR In a decision of 2002.107 Since there was no (public) administrative decision allowing this communication of data. At the level of the Länder.01.11.). to the explanatory memorandum of the legislator to the new amendments to this procedure. the applicant had no possibility of lodging an application against an administrative act itself. The case dealt with the question of whether the applicable German rules on accelerated procedure required the applicant to have been orally heard. when granting a temporary injunction on the basis of § 123 to ban the further communication of data concerning the applicant by the university to the police. BVerwG 14. it was irrelevant whether the procedure dealt with ‘civil rights’ or not. This has been confirmed by the administrative court of Giessen. This law set an example for data protection laws in other European countries.2002. The applicant claimed that this constitutional right to be heard had been breached during the procedure before the German Court of Appeal.3. 6.5. The Court concluded that German administrative procedural laws had to be interpreted in accordance with this “Article 6 ECHR orientation” by the legislator.108 The case concerned a Turkish Kurd threatened with expulsion to Turkey after his asylum request had been rejected.1. Simitis (ed. 10 G 4510/02. 1 C 15. Kommers (1997). BGBl. A person.2. lodged a constitutional appeal with the Constitutional Court. The right to privacy played an important role with regard to the balancing of interests. The Volkszählungsurteil Fourteen years later. 1. BVerfG 15. the Constitutional Court dealt again with the German census act in its judgment of 15 December 1983. such as data protection rules. 6.1990. Constitutional Right to Informational Self-determination 6. the Hesse law of 1970 was actually the first data protection law in Europe. the Court however held that this did not affect the “most intimate realm into which a state may not intrude”.12. 2003. the so-called Volkszählungsurteil. 66.2. hereafter BDSG 2001) was amended again.111 Unlike the Dutch history of data protection law. p. but was not seen as an appropriate basis for a general and preventive regulation. This law entered into force on 23 May 2001. p. He contested in his claim that this compulsory disclosure of private information. In this judgment. As we saw in Chapter 7.Germany 417 protection laws took place between 1970 and 1992.112 In 1960. for an English summary of both this judgment and the Mikrozensusurteil: D. not to be intruded upon by the state. even if for statistical purposes. 6.1. p.2. the Constitutional Court gave its famous definitions of “inner space” or Innerbereich of the right to self-determination. 1 BvR 209/83. who had been fined 100 DM for refusing to supply his information. BVerfGE 65 E 40. this time as a result of the necessary implementation of the EC Directive 95/46.P. the Constitutional Court ruled for the first time on the constitutionality of the federal law on the census population. as envisaged in this Act and to be held in 1981. See. I. The Mikrozensus Urteil In the Mikrozensus Urteil of 1969. included a more practical application of data protection rules by reducing the administrative obligations compared to the first law. Dealing with the collection of the information described above. Bundesdatenschutzgesetz 2001. 27 BVerfGE I. . BGBl. in Germany the right to privacy was never considered the starting point for this field of legislation. 2954 ff.2. The Federal Data Protection Law.1983. violated his constitutional right to human dignity under Article 1 of the German Constitution.110 In 2001. the Federal Data Protection Law (Bundesdatenschutzgesetz 2001.12. amended in December 1990. this law was amended to require additional information on vacations and recreational trips by household residents. 299 and 323. 110 111 112 113 Gesetz von 20.113 The population census. 114 115 BGBl. taking into account the new possibilities of modern information technology. They further argued that the provisions of this law. including lawyers. See. The Court pointed out certain general problems or risks resulting from the use of information technology and the gathering of personal information. Simitis (2003). The Court derived the right of individuals “to be protected from unlimited collection.115 First of all.114 The claimants argued that the implementation of this law would be in breach of their general right to privacy (allgemeines Persönlichkeitsrecht) as protected under Article 2 (1) in conjunction with Article 1 (1) of the German Constitution. Nevertheless. combined with the extensive use of computers. and transmission of personal data as a condition of the development of his or her free personality under the modern conditions of data processing” directly from the rights as protected in Article 2 (1). Unlike the situation at the time of the Mikrozensus Urteil. the Court described in a clear and comprehensive way the new relationship between individuals and their government resulting from the extended powers of the latter. in conjunction with Article 1 (1). p. use. or even more so. The case concerned the collective claim before the Constitutional Court of a group of persons. based on the use of information technology. The applicants claimed. The extended possibilities of the use of information technology also played an important role in the considerations of the Court. 14 ff. with regard to current developments. Secondly. among other things. was in breach of the constitutional principle of legality (verfassungsrechtliches Bestimmtheitsgebot). the combination of a general overall collection of personal information from the population. information technology had developed. that the law did not adequately guarantee that the information collected for statistical purposes would be stored anonymously and remain so. on the importance of this judgment: S. caused a general feeling of concern. The Constitutional Court only confirmed the latter claim.418 Chapter 12 caused a general protest movement. p. As in the Netherlands ten years later. storage. These considerations are still valid. the Constitutional Court affirmed in this case that data protection or the right to informational self-determination (informationelles Selbstbestimmungsrecht) based on the general right to privacy (Persönlichkeitsrecht) is a constitutional right. which included the possibility of forwarding the data collected for other purposes. 369 – VZG 1983. of the German Constitution. these specific considerations in which the Court described the scope and value of the general right to privacy have been extremely important for subsequent developments with regard to the rights of data subjects. . I. but did not consider the general aim and purposes of the Volkszählungsgesetz in breach of the Constitution. against the new German Act on the population census which was adopted on 25 March 1982. One of these guarantees is the prohibition. the constitutional rights of aliens would not be endangered by this use of the files. 6. the Constitutional Court dealt with a claim with regard to files on aliens kept by the immigration offices. on collecting personal information by anticipation or ‘stockwise’ if these data are to be used for non-statistical purposes (Verbot der Sammlung personenbezogener Daten auf Vorrat). since this task could be derived from the general supervisory task of the immigration 116 BVerfG.116 The case concerned the claim by a group of persons whose application for deletion and destruction of their files had been denied. I already cited the important paragraphs in which the Constitutional Court referred to the risk of an individual who. knowing that his participation in an assembly or civil action could be registered by the government. without giving this individual the opportunity to check the accuracy or use of this picture. recognising that the right to informational self-determination is not unlimited. the considerations of the Constitutional Court urged the legislator to look more closely at the provisions applicable to data processing in the public sector. by emphasising the need for procedural and organisational guarantees and for restricting the multifunctional use of information.1. but kept in paper files. including organisational and procedural measures designed to safeguard the individual from infringement of his right to personality. The Duty of Immigration Offices to Keep Complete Files In the same year as the Volkszählungsurteil. 310/83. will refrain from exercising his constitutional rights. based on its citizens’ freedom to act and cooperate. The Court further referred to the danger of building integrated information systems using which an overall ‘personality picture’ (Persönlichkeitsbild ) could be compiled of individuals. Thirdly. the Court defined the function and importance of data protection law.1.3. not computerised. self-determination is a prerequisite for a free democratic society. Finally. unlike the AZR. information shared by different authorities. but also the common well-being: according to the Court. the Court emphasised that. The Court did not consider that retaining these files required a special legislative basis. 1983.Germany 419 For example. Although Germany already had its Data Protection Law of 1977.2. the judgment is important because. section 4. This effect would not only affect the individual’s chances of development. Heft 38. p. Published in NJW. as formulated by the Court. could lead to the situation that individuals have no control on the use and accuracy of their data”. 2135. “the use of networks. Decision of 6 June 1983. In Chapter 7. These files were. the Court defined specific guarantees which should be offered by the legislature. 2 BvR 244. . According to the Court. This conflict lies at the heart of the central values and problems which mark the German policy with regard to data surveillance on the one hand and data protection on the other. based on the supplementary conclusions in this judgment. p. B. In this conclusion. 1973. The Court explicitly stated that immigration offices have a duty to investigate on their own behalf the accuracy of the available information. . was in the interests not only of the administration. including negative or disputed facts. Die Amtshilfe.4. according to the Court. The judgment referred to is BVerfGE 49. A Constitutional Dilemma: Amtshilfe Versus informationelle Gewaltenteilung There seems to be a conflict between two principles which are central to the German interpretation and understanding of the rule of law. nor to the relationship between the refuted manual files of the immigration offices with the AZR. Such a duty would. such a duty would be “the cornerstone of general immigration law”. whenever requested.117 I doubt whether such a general conclusion could be inferred from this case. 2446. On the contrary. the Court stated that maintaining files and the duty to keep these files complete. one could say that the Court even stressed the additional importance of those rights for third-country nationals. Unlike the Volkszählungsurteil. Schlink.420 Chapter 12 authorities as provided in § 20 of the (former) Aliens Act. According to the Court. not relieve the authorities of their obligation to check whether the information stored is still relevant before making a decision on the basis of this information. What is interesting is the explicit consideration the Court makes in relation to this duty of the administration to keep the files on immigrants complete. In its judgment. Forsthoff. 168 [184]. Berlin: Duncker & Humblot 1982. This duty is written into Article 35 of the German Constitution and 117 118 119 Th. Ein Beitrag zu einer Lehre von der Gewaltenteilung in der Verwaltung.2. Weichert (1993).118 6. but also of the immigrants. the Court did not refer in this judgment to the consequences of the automation of files. The rejection of the constitutional claim in this case has been interpreted by Weichert to mean that the Constitutional Court attached less importance to the protection of the right to self-determination of non-German citizens than of German citizens. The first principle is the so-called principle of administrative cooperation or Amtshilfe. the Court referred to an earlier decision in which the Constitutional Court confirmed the duty of immigration authorities to consider and evaluate the private interests of the person concerned when making a decision.119 This principle refers to the constitutional duty of administrative officials. which at that time was already computerised. to provide reciprocal legal and professional cooperation. Lehrbuch der Verwaltungsrechts. NJW 1978. E. This principle is especially supported in literature dealing with the purposes of data protection law. the German commentator Podlech supported a general ban on public authorities using information which transgressed their functional borders or powers. According to the court. this would be an unacceptable infringement of the individual right to informational self-determination. DVR 1972/ 1973. Tjeenk Willink 1985. we find the principle of the informational division of powers or informationelle Gewaltenteilung. also in the field of Amtshilfe. Verwaltungsgericht Giessen. 149 ff. Podlech.J. without abandoning the principle of administrative cooperation or Amtshilfe.E. for other purposes. A. the authorities concerned should strike a balance between the advantages of data profiling and the constitutional right to informational self-determination and data protection of the person concerned. It emphasises the importance of sharing available resources within the public administration. the importance of decentralising informational powers is emphasised both in German literature and by the courts.3. this (old) German principle of mutual aid can be compared to the ‘principle of availability’ which has recently been introduced at EU level for cooperation between criminal prosecutors. section 4. In fact.und Verwertungsverbote”.120 In the 1980s. Az. Die Grundprobleme des Informationsrechts.11. 120 121 122 123 H.122 The difficult relationship between the principle of Amtshilfe on the one hand and the principles deriving from data protection law on the other hand is illustrated in the judgment of the administrative court of Giessen dealing with the practice of Rasterfahndung. Verfassungsrechtliche Probleme öffentlicher Informationssysteme. officials can be required to provide each other with (personal) information if available. For example. individuals should be protected against “alienation of purpose” or Zweckentfremdung by prohibiting the transfer or the further use of data.121 Although this “informational division of powers” has never been implemented or accepted in its strict meaning.123 In this judgment. The Court explicitly stated that if non-anonymous personal information gathered for statistical purposes were to be transferred for administrative purposes. . In contrast to Amtshilfe. 8. Therefore. Based on this principle. Bull. 10 G 4510/02.2002. preventing information collected for a specific purpose only from being used or transferred by other authorities as well.Germany 421 applies to officials both at Federal level and at the level of the Länder. Zwolle: W.P. the court ordered the university of Giessen to cease further transmission of the applicant’s data to the police. Inaugural speech Universtity Tilburg. p. the German Constitutional Court stressed the importance of a clear and legal distinction between statistical administration and other public administrations.3. See above. “Amtshilfefester Schutz gegen Zweckentfremdung durch Weitergabe. the Constitutional Court made some general considerations which are relevant with regard to the scope of data protection law vis-à-vis third-country nationals stored in the AZR and on the availability of legal remedies. the Court explicitly stated that if those rights were refused by the authorities. Principles of Data Protection and the NSIS 6. include the possibility of a fast-track procedure whereby a prohibition of processing could be ordered until a final court decision. For “effective protection” of the individual against unlawful data processing.10.1. the Constitutional Court ruled that the law and thus the AZR were not unconstitutional and that the questions which arose with regard to the data protection issues were questions of “ordinary law” (einfachen Rechts). as provided for in § 35 AZRG. as well by the German legislator. SIRENE forwards automatic reports to the authorities concerned.124 Referring to the right of correction and deletion of data. .422 Chapter 12 6. 1 BvR 1970/95 published in InfAuslR 2/2002.2. 91–95. This is confirmed by the Constitutional Court. 124 BVerfG. In this case. In 1991. such a remedy should. after these informational obligations had been criticised by administrative staff and lawyers. the violation of special limitations or “other reasons for expulsion”.2001. in 2001 the Constitutional Court dealt with a collective complaint against the law regarding the central aliens administration (AZRG). On the basis of these new provisions.1. p. The Applicability of Data Protection Principles and the Right to Informational Self-determination in Immigration Law The applicability of data protection principles in the field of immigration law and the fact that the constitutional right to privacy is not a privilege solely for Germans has never been seriously disputed. according to the Court. Time Limits As we have seen above. 6. in 1990. the public authorities were obliged to inform the competent immigration authorities as soon they acquired information about the illegal residence of an alien. as we saw in section 4. Secondly.4. these legal requirements were further specified. SIRENE is responsible for controlling the time limits for the storage of data in the NSIS.4. For this task. a legal basis was established for the exchange of data on aliens (§§ 75–80) to meet the constitutional requirement with regard to the right of informationelle Selbstbestimmung. 10. informing them that the time limit is due to expire. however. following an amendment to the Aliens Act (Ausländergesetz).3. the applicants have the right to remedies before the administrative courts. In this judgment. which should be dealt with by the specialised courts (Fachgerichte). Firstly. 2. the annual report of the Berlin Authority. certain re-entry bans for which persons can be reported in the NSIS under Article 96 (3) apply for six years. 6. including the purpose of this processing and the authorities that have access to this data. the first automatic SIRENE report which is sent to these authorities does not have any practical effect. is the alert in the NSIS automatically deleted. . The ratification 125 This practice has been criticised by the various data protection authorities of the Länder. As a consequence. The immigration offices are merely asked to check the need for further storage. Duty to Inform the Data Subject Federal law and the law of the German Länder both apply with regard to the use of the NSIS. which describes this practice as a general problem (“typische Fallgestaltung” ). This means that. However. On the basis of German immigration law. This does not include information on the fact that this ban involves registration in the NSIS. for example. if such notification would require unreasonable efforts by the authorities. a person whose data has been reported without his or her knowledge should be informed of this data processing.Germany 423 In these reports. or if the data processing is envisaged explicitly in formal law. data on third-country nationals in the NSIS Germany are generally stored for six years. on the basis of § 19a BDSG. In accordance with the rules of EC Directive 95/46. it is doubtful whether the German ratification act of the CISA or the general instructions as laid down in the AAH-SDÜ fall within this definition of ‘law’. The AAH-SDÜ do not include such a duty and § 82 (3) Residence Act only obliges authorities to inform a third-country national of the re-entry or residence ban.4.datenschutz -berlin. if they do not react to this first warning. when a second report is forwarded by SIRENE and if the local authorities do not respond or if they do not provide any reasons why the alert should be stored for a longer period. See. See also the 34th Report of the Hessian Data Protection Authority of 31 January 2005. Only after six years. However. the authorities are asked whether the information should be stored for a further period. 2001. they are not obliged to consider whether a storage period of longer than three years is necessary. In general. these laws. http://www.125 This practice is contrary to the current rules of the CISA. in practice. Irrespective of the question of whether the first two exceptions would apply in this case. as far as I know. this duty does not apply in three situations: if the person has been informed of the data processing by other means. therefore. instead of three years. p. 51. do not include any obligation to inform third-country nationals of the fact that they are reported in the NSIS.de. 38. p. nothing happens. This is interpreted by German immigration officers to mean that this time limit of six years for the re-entry ban also applies to storage in the NSIS and. the wordings of which run the risk of being interpreted widely. By 2005.127 The Federal Data Protection Commissioner received approximately 30 applications per month for access to data stored in the NSIS by individuals. the application may be addressed to the Federal or Länder authority which forwarded the data to the NSIS. The latter regulation. § 19 (4) BDSG provides for three exceptions to the right of access. Firstly. 550. this request can be forwarded to different authorities. if the notification would affect public order and security or would infringe the public well-being of the Federal State or the Länder. correction or deletion of their information stored in the NSIS. individuals have the right to submit a request for access and. correction and deletion is regulated in §§ 19 and 20 of the BDSG. . is not a formal law. In the first place. the purposes for which this information is being processed and the authorities that have access to this information. or if the information concerned has to be kept confidential on the basis of legal or other requirements or in the interests of third parties. the BKA had received between 500 and 600 applications annually concerning individual requests for access. This means they may choose to forward their request of access. May 2005.3. Correction and Deletion In accordance with the provisions of Articles 109 and 110 of the CISA. possibly. Finally.128 If this application falls within its field. p. but may also directly address the organisation holding the data. Source: interview with BKA. Source: interview with officials of the Federal Data Protection Commisioner and the Hesse Data Protection Commissioner. correction or deletion of their data in the SIS. Individuals have a right to direct and indirect access. 6. correction or deletion to the Federal Data Protection Commissioner or the authorities of the Länder. This includes the right of the data subject to be informed of the information which is processed with regard to him or her. Right of Access. the right of access may be denied if such notification would endanger the fulfilment of the public tasks of the authority involved. the Federal Data Protection Commissioner 126 127 128 See. the applicant may directly address the Federal Criminal Police Department (BKA) in Wiesbaden. the AAH-SDÜ. the right of access.4. In Germany.126 Generally. Secondly. May 2005.424 Chapter 12 act does not provide detailed rules on the German criteria for reporting thirdcountry nationals in the NSIS but only approves the establishment of the NSIS and the fact this NSIS will be used by the Schengen States. for more practical information: Westphal & Stoppa (2007). the application may be forwarded to the Federal Data Protection Commissioner or the data protection authority of the country responsible (depending on which authority forwarded the data to the NSIS). which is the responsible authority for the NSIS in general. Germany 425 will himself deal with such an application and will ask the BKA for its view. the data protection authorities in Germany seem to play a larger role with regard to the functioning and use of the NSIS. On the other hand. The annual reports from the authorities in the Länder and from the Federal Data Protection Commissioner are a useful source of information with regard to the functioning of the NSIS. The importance of these authorities could be explained in the first place by the historical emphasis on data protection in Germany. based on the new Act on the Freedom of Information. 2722. BGBl. I S. If the application falls within the competence of the data protection commissioners of the Länder. the Federal Data Protection Commissioner and the authorities of the Länder performed an investigation into the practice of the use and registration of data on third-country nationals based on Article 96. .1.5. Supervision by Data Protection Authorities 6. the controlling task of the data protection authorities seems to deal more with general issues with regard to the use of the NSIS. either by the Federal Data Protection Commissioner or by the commissioners of the Länder. In 2004. than with the handling of individual complaints. the registrations of third-country nationals and the general problems encountered in these fields. in the sense that their powers or functioning are enhanced by the shared responsibility of the Federal Data Protection Commissioner and the authorities in the states or Länder. The Federal Commissioner for Data Protection and Freedom of Information Since 1 January 2006. 6. 6. Secondly. This review was coordinated by the German Federal Data Protection authority and formed part of the international review initiated by the Joint Supervisory Authority in 2003–2004. the data protection authorities in Germany are in a relatively favourable position.5. The results of these investigations were published in the annual reports of the Federal Data Protection Commissioner and the data protection authorities in the Länder. the application will be forwarded to these authorities.2.129 The tasks of this authority with regard to the supervision of data 129 Informationsfreiheitsgesetz of 5 September 2005. the applicant will be informed of the results of the inquiry. the name of the Federal Data Protection Commissioner (Bundesbeauftragten für den Datenschutz) has changed to the Federal Commissioner for Data Protection and Freedom of Information (Bundesbeauftragte für den Datenschutz und die Informationsfreiheit). In every case.5. Introduction Compared to their counterparts in France and the Netherlands. I will refer to the ‘Federal Data Protection Commissioner’. if he or she assumes that his or her rights have been affected by the collection. Any person may forward a complaint to the Federal Data Protection Commissioner. Some data protection authorities are more closely involved with the NSIS.426 Chapter 12 processing and the right to data protection have not been changed. In the first place. In 2004. the Data Protection Commissioner publishes an annual report on the basis of § 26 (1) BDSG 2001. Every two years. This low number can be explained by different factors. the term of office of the Data Protection Commissioner is five years. The appointment of the data protection authority and the scope of financial resources of this organisation are decisions taken in the parliaments of the Länder. In accordance with § 22 (3) BDSG 2001. renewable only once by another period of five years. the task of the Federal Data Protection Commissioner only extends to federal agencies. The Federal Data Protection Commissioner is elected by the Federal Parliament (Bundestag) following nomination by the government. 6. relatively small. On the other hand. the data protection authorities of this specific state will be competent. Some authorities are able to rely on more staff and financial resources than others. In the following sections. however. For example. the Hesse Data Protection Commissioner is quite active with regard to the NSIS which can .3. The number of individual complaints with regard to the NSIS dealt with by the Federal Data Protection Commissioner is. individuals may forward their claims immediately to the administrative authority concerned on the basis of their right to direct access. the right to be granted access to the premises of the federal authorities and the right to make proposals to improve data protection (§ 24 BDSG 2001). as we have seen. As long as the data fall under the responsibility of an authority in one of the Länder. the Data Protection Commissioner examined 107 requests. His powers include questioning the responsible authorities. Data Protection Authorities of the Länder The organisation of the data protection authorities of the Länder (Ländesbeauftragte für den Datenschutz) and their policy with regard to their working fields are different in each country.5. These figures include requests made by foreign (mostly French) data protection authorities regarding individual alerts. This explains why these issues are closely related to the political make-up of the parliaments. The controlling powers of the Federal Data Protection Commissioner only apply to federal public agencies. as we have seen above. Not every data protection commissioner is able to give high priority to controlling the NSIS. processing or use of personal data by public authorities of the federal government (§ 21 BDSG 2001). One hundred and fifteen requests were dealt with by the Federal Data Protection Commissioner in 2003 with regard to records on third-country nationals in the NSIS. Germany 427 be explained by the fact that its organisation is based in the same city as the Federal Criminal Police Department or BKA (Wiesbaden). A summary of the findings of this investigation can be found in the 20th report of the Federal Data Protection Commissioner: 2003–2004.3) and the fact that the local authorities disregarded the applicable time limits. There is also a special working group on third-country nationals.3. in many cases. 20% of the records in the NSIS concerned people of unknown residence. together with the Federal Data Protection Commissioner. Furthermore. during the period of this study. As mentioned above.2.131 6. 50% of the Article 96 (3) records were associated with the unlimited re-entry ban of § 8 (2) of the former Aliens Act (§ 11 Residence Act) which was also considered illegal. the local immigration offices entered rejected asylum seekers into the NSIS on the basis of Article 96 (3). their work is coordinated in different working groups attended by the specialist members of the data protection authorities.4. 10. 3. For example.130 The Data Protection Commissioner in Dresden. to whom the NSIS was a relatively new issue. Peter Schaar. p.5. the annual reports of the data protection authorities include interesting information on the practical implementation and current problems of the NSIS. in 2000 and 2001. 5th Report of the Landesbeauftragten für den Datenschutz Sachsen-Anhalt (April 1999 to March 2001). one of its officers was member of a working group of the Schengen Joint Supervisory Authority. . Although the different data protection authorities of the Länder act quite autonomously. As mentioned above.2.132 The reports by the different data protection authorities established that the data held in the NSIS by the German authorities were often not updated or correct and data were not deleted after the expiry of the time limits. para. Inquiry of the Data Protection Commissioners on Article 96 CISA Of particular interest are the findings of the data protection authorities of the German Länder concerning the implementation of Article 96 CISA during a study in 2003–2004. The inquiry included a group of 400 records in the NSIS which were provided at random by the BKA to the Federal Data Protection Commissioner. 130 131 132 See the 14th and 15th Reports of the Data Protection Commissioner of North Rhine-Westphalia. It considered the problem of wrongful Article 96 (3) reports on rejected asylum seekers (see section 3. expressed concern in his annual report of 1999–2001 about the fact that. the Data Protection Commissioner of North Rhine-Westphalia reported on the large number of SIS entries which were in breach of the provisions of the CISA. which is not legal grounds for the Article 96 entry.2. this inquiry was initiated by the Schengen Joint Supervisory Authority. In its judgment on the central aliens administration. . the authority discovered that the report in the NSIS was only for the purpose of Aufenthaltsermittlung and was therefore unlawful. the annual reports of the data protection authorities of the different Länder establish comparable findings. BverG 1BvR 1970/95. in 2004. Competence of the Administrative Court As we have seen above.135 Some reports lacked a proper legal basis and.134 This mainly concerned registrations in the SIS for more than three years. the need for which was not individually checked.6. the need for further storage had not been motivated by the responsible authorities in accordance with Article 112 CISA. in 2001 the Constitutional Court confirmed the applicability of the right to administrative appeal with regard to data processing in the public sector. this data protection commissioner found that the time limits had been exceeded. the data protection commissioner of Baden-Württemberg. with regard to other reports.2. found many irregularities with regard to these files.1.2001.136 This right applies irrespective of the question of whether the data processing of information results in an administrative decision affecting the individual. p. Aside from these conclusions in their reports for the JSA inquiry. or AZR. 10% of the registrations checked by the Hessian authorities were unlawful.6. For example. 25th Report 2004. Six of these 49 cases concerned individuals whose asylum request had been rejected.133 In many other cases (the report does not mention any numbers) the necessary time limit for the SIS registrations was not sufficiently documented or checked. 3. German administrative procedural law provides different possibilities for individual appeals. who randomly checked 49 files on third-country nationals in the NSIS and INPOL. See the German Constitutional Court in its decision on the Central Aliens Administration. In five of these cases. In addition. According to the annual report from the Hessian data protection authority. in many cases. the Data Protection Commissioner of Baden-Württemberg discovered that the reports included EU citizens despite the fact that this is prohibited under EU law. 6. North Rhine-Westphalia.428 Chapter 12 Furthermore. the data protection authority of North Rhine-Westphalia checked 80 of the Article 96 alerts held in the NSIS at random. In this 133 134 135 136 17th Report of 2003–2004.10. The majority of third-country nationals stored in INPOL for the purpose of arrest had been reported without the necessary judicial warrant. Legal Remedies 6. para. 33rd Report of the Hesse Data Protection Commissioner. 10. the data protection authorities found that. Finally. 19 ff. 7.000. the public authorities have a duty to repair the financial damage.Germany 429 case. a major revision of this law took place in 1990. This includes the right to appeal for a temporary injunction. p. One of the aims of this revision was to provide more detailed rules for the immigration authorities and thus reduce their wide margin of appreciation. .2. claiming a ban on data processing until a final judgment by the court. 552.137 6. the German BDSG includes a maximum amount for financial compensation of € 130. This is provided for in §§ 7 and 8 of the Federal Data Protection Act (BDSG). Legal Remedies and Immigration Law 7. irrespective of whether they are at fault or carry any responsibility for this damage.1. correction or deletion. However.6. It is also possible to lodge an administrative appeal against the decision to refuse the right to access. According to this latter provision. requesting a ban on further data processing or transmission of the personal information to other authorities. Right to Financial Compensation An individual’s right to financial compensation is important if he or she has suffered damaged from wrongful or unlawful data processing. General Background to German Immigration Law The first German Aliens Act derives from 1965. The person concerned may appeal against this refusal with the administrative court which is competent in the district of the local authority refusing the individual’s claim on the basis of § 52 (5) VwGO. the Court confirmed that a data subject should have the right to lodge an appeal (Leistungsklage) with the administrative court. Unlike the Dutch Data Protection Act. so as to offer the individual ‘effective protection’ against unlawful data processing. This extended duty to repair financial damages was introduced with the amendment of the BDSG in 1990. § 8 BDSG explicitly covers financial compensation with regard to automated data processing by public authorities. According to the Constitutional Court. The right to financial redress covers material and immaterial loss. administrative courts have a duty to assess the constitutionality and legal basis of data processing. The “casuistic supra perfection” allegedly makes the Residence 137 Westphal & Stoppa (2007). the Aliens Act of 1990 and the more recent Residence Act (Aufenthaltsgesetz) of 2004 have been criticised because of their complicated and detailed regulations. ) Handbuch des Verfassungsrechts der Bundesrepublik Deutschland. 551. in writing or in electronic form. even in 1972. p. a decision to limit the right of residence in time or space and for decisions or measures of expulsion (Ausweisung and Abschiebung). on the basis of § 77 Residence Act.430 Chapter 12 Act unreadable for the average reader and even fails to meet the constitutional principle of the rule of law in the sense that immigrants are unable to trace their rights and duties. a refusal or limitation of a visa does not require the written form. According to § 77 (2). In the field of immigration law. 410. It seems doubtful whether the lack of informed decision-making at the first level is in accordance with criteria of effective remedies under Article 19 (4) or 20 (3) of the German Constitution or the general principles of EU law and the ECHR as described in Part II of my study.1 we have seen that. (eds.139 138 139 E.138 In section 5. a motivation or a duty to inform the applicant of his or her right to appeal. p. Westphal & Stoppa (2007). only when the person concerned lodges an objection against this refusal. Based on § 39 VwVfG. Duty to Motivate Decisions According to general rules of administrative law. BerlinNew York: Walter de Gruyter 1995. 7. In practice. an administrative decision in writing or in electronic form requires motivation of the factual and legal reasons for the decision. the Constitutional Court made clear that the right to legal remedies as offered by Article 19 (4) of the Constitution applies in its entirety to non-citizens. an administrative decision may be communicated to the person concerned orally. Decisions on visa applications and refusals of entry at the borders are exempt from this obligation. we will discuss certain exceptions and limitations to these rights as provided in the Residence Act 2004. or by other means. the written form is always required for a refusal of a residence permit. Benda et al. the second decision (Zweitbescheid ) by the administrative authority (embassy or consulate) will include a written motivation and information about legal remedies (Rechtsbehelfbelehrung). We have also seen that the administrative procedural rules with regard to the rights of appeal and judicial review in principle apply to immigration law decisions. In the following sections. . Only if the individual expresses an actual interest in being informed in writing or electronically is the administrative authority obliged to comply with this request (see § 37 (1) and (2) of the German Administrative Procedures Act.2. This does not include any right to a translation of this decision. VwVfG). no.3. the lack of duty to submit a translated decision seems problematic. This is not always the court which is responsible for the border crossing district. 95 [99 ff ]. Based on § 42 VwGO. 7. Legal Remedies 7. § 52.3. a person who has been refused entry may request the competent court to order that leave of entry be granted (Verpflichtungsklage auf Einreisegewährung). BVerfGE 40. As we saw in section 5.140 7.3. an application for review of or appeal against a refusal of entry does not suspend the refuted decision. refusal of a short-term visa (for tourist purposes) or the refusal to issue a visa or travel document at the borders is not open for review or judicial appeal. Legal Remedies Against a Visa Refusal On the basis of § 83 Residence Act. the second decision (if this confirms the negative decision) should include notification of the reasons for refusal and the available legal remedies. from the viewpoint of both EU law and German constitutional principles.2. A person whose long-term visa has been refused can either immediately lodge an appeal before the Berlin Administrative Court or ask for review by the embassy or consular post which rejected the application.4.3. 2 (4) VwGO applies with regard to this procedure. The duty of the administrative authorities to resolve language and translation problems for persons not fluent in the German language has been stressed in decisions of both the Federal Administrative Court and the Constitutional Court. but is now the Court of Berlin. Legal Remedies Against Refusal of Entry According to § 84 of the Residence Act 2004. a person can either lodge an appeal for suspension on the basis of § 80 (5) VwGO against an expulsion or deportation decision.3. or apply for a temporary injunction based on § 123 VwGO. This used to be the Administrative Court (VWG) of Cologne. Legal Remedies Against Expulsion An expulsion (or deportation) decision should include information on the available remedies and the possibility of lodging an appeal within seven days of issue of the deportation order (§ 58a (4)). 7. The appeal should be lodged with the competent court of the district of the Ministry of Foreign Affairs (Auswärtiges Amt).3. If the person appeals against the negative decision. These persons are instructed to contact the German embassies or consular posts in their country of origin.1. . 140 BVerwG DVbl 1978–888.Germany 431 In addition. Such an appeal should be lodged with the court of the district in which the Federal Police has its offices. Case Law 8. who had lived in Germany for more than 20 years. the court explicitly considered the meaning and relationship of the various paragraphs of Article 96 CISA. Verwaltungsgericht Berlin. Az. according to Article 96 CISA. Despite the fact that the criminal charge against him had been dropped.2 of Chapter 9). The court ordered the German authorities to treat the applicant as if his residence permit had never been withdrawn and to delete the registration in the NSIS. the Turkish national had been recorded in the NSIS in April 1999 for the purpose of refusal of entry. The public prosecutor withdrew the charge on October 2003. In this judgment. An application 141 142 Verwaltungsgericht Düsseldorf. he was expelled from Germany.1. the court made it clear that not only were there no valid grounds for the withdrawal of his residence permit. He was prosecuted for falsifying legal documents and then.432 Chapter 12 8. on the grounds that the guilt of the person concerned was limited (the person denied he knew the visa was fake) and the fact that prosecution would have limited meaning for the public interest because he had left Germany. but also that such a withdrawal was. where he was found in possession of a fake French Schengen visa. 1 A 151. 24 L 2837/02. His application was rejected and he was ordered to leave Germany. In a decision by the administrative court of Berlin of 3 December 2004. not valid grounds for his record in the NSIS. in the summer of 2002. The court did not consider whether the SIS report was in breach of the applicant’s rights under the Association Decision 1/80 between the EC and Turkey (see section 2. 3 December 2004. The court of Düsseldorf affirmed the applicant’s right to a temporary injunction to prevent his expulsion. in his arrest by the Dutch border police. the Berlin border police recorded his name in the NSIS for the purpose of refusal of entry.04.141 In this case. had been withdrawn in March 1999 by the German authorities because he had not reported within the prescribed time and his place of residence was thus considered unknown. Based on this withdrawal of his residence permit. Az. in order to leave Germany. 7 August 2002.142 The underlying case concerned a person from BosniaHerzegovina. Record in the NSIS in Conformity with Criteria of Article 96 CISA? In an interim judgment of 7 August 2002. This NSIS alert resulted. the administrative court of Düsseldorf court clearly demonstrated that the reasons forwarded by the government for the entry of a third-country national in the NSIS were in breach of the applicable rules in Article 96 CISA. he passed through the border control agency from Berlin. . InfAuslR 10/2002. the long-term residence permit of a Turkish employee. following which he was kept in detention with the intention of sending him back to Turkey. in July 2003. On 24 June 2003. who applied for asylum in Germany for the first time in 1994. the fact that the person was suspected of having committed a serious offence (schwere Straftaten) would made the SIS record lawful on the grounds of 96 (2) (b) CISA. The court did not deny that the second criterion of Article 96 (2) applied. The authorities argued that. However. merely offences (Vergehen). Under German law. the reasoning of the court makes sense.Germany 433 to delete the record was refused by the German authorities on the grounds that the suspected criminal behaviour of the person concerned would imply a threat to security and public order. See Westphal & Stoppa (2001). 409. with regard to a registration which is based purely on suspicion. p. the interpretation of a “serious offence” would have to be interpreted in accordance with the requirements of the criteria under 96 (2) (a). even if there had been no conviction. falsification of legal documents and illegal entry into and exit from German territory. Although the direct link which the court makes between the criteria of Article 96 (2) and (3) can be argued. The court questioned this interpretation of “serious offence” in Article 96. did not concern crimes. This interpretation is that third-country nationals may be reported in the NSIS for crimes which are punishable by a sentence of “one year and more”. this judgment. is important. for the registration of a convicted person in the NSIS for refusal of entry. The offences of which the person was suspected. according to the court. rather than “at least one year or more”. or Verbrechen. In German: instead of: “die mit einer Freiheitsstrafe von mindestens einem Jahr bedroht ist”. The Berlin court was rigorous in its interpretation with regard to the legitimacy of the reasons forwarded by the German authorities to record this person in the NSIS. crimes carrying a sentence of at least one year are considered crimes. latter meaning being literally the text of Article 96 (2) (a). Since 96 (2) a required conviction of an offence carrying a penalty involving deprivation of liberty at least one year. the Berlin court criticised the extensive interpretation of Article 96 (2) by the German authorities. Therefore. the second criterion under (b) could not be interpreted as allowing registration in the NSIS for (suspected) less serious offences. which seems to focus on a rather technical interpretation of Article 96. for which no conviction was required.143 In my opinion. spokesmen for both the BKA and the (Former Border) Police expressed their disagreement with this judgment.144 It is worrying or at least odd that. In the words of the court. . the court ruled that the registration was not in accordance with Article 96 CISA and ordered the German authorities to delete the data from the NSIS. it would be illogical. to require that this conviction involves a crime (Verbrechen) whereas. Although not dealing with it explicitly. until this judgment 143 144 During interviews. a criminal offence which does not meet this “threshold” would be sufficient. “ein Delikt dass mit eine Strafe bis zu einem Jahr oder mehr bedroht ist”. if the underlying decision to store information into the NSIS is illegal.3.434 Chapter 12 by the Berlin court. as we have seen above.146 Although the court considered that the registration in the NSIS was not an administrative decision (no “Verwaltungsaktqualität” ) and thus had no direct effect. it is only relevant whether the storage of his or her data is unlawful. the administrative court of Berlin. there is a related discussion in the German literature on whether the CISA implies that officials have to check whether information stored in the NSIS is in accordance with the law. 24 L 2837/02. according to the court. 145 146 147 148 149 As we will see in Chapter 13.8. whether an individual could appeal directly against this decision. considered the question of whether a SIS record can be seen as an administrative decision with direct implications for the individual. 3. 8. VG Kassel 23. Az.149 In the judgment. This discussion is connected to the question whether. Az.2. InfAuslR 10/2002. Unlike the Düsseldorf court. This question was dealt with in the judgment by the administrative court (Verwaltungsgericht) of Düsseldorf in its decision of 7 August 2002. thus. this automatically means that an administrative decision based on this information is illegal as well.145 The question at issue is whether a SIS record can be regarded as an administrative decision (Verwaltungsakt) with direct legal effects for the data subject and. InfAuslR 1999. the German courts ruled that carriers were not obliged to check whether the underlying expulsion was justified. V. p. of no relevance to the assertion of this individual’s right to have data deleted from the NSIS.12. the courts did not even require any incidental control.147 For this right. 1 A 151.3. Az.1. Direct Legal Effects of a SIS Alert In their case law. 7.2002. in its judgment of 3 December 2004 (see the previous section). 364. Except in cases where the underlying decision was clearly (öffensichtlich) illegal. on the basis of Article 80 (5) 3 VwGO the court found there was a substantive claim by the applicant because.04.148 These cases concerned administrative orders for carriers to return expelled persons to their country of origin. Also covered in section 8. Verwaltungsgericht Düsseldorf. the storage of data on third-country nationals for minor offences seems to have been an accepted practice in Germany. Westphal. the SIS report and its underlying decision were considered unlawful.2004.1995.1998. Westphal answers this question in the negative. In relation to the legitimacy of SIS alerts. 12 VE 1310/95. . Verwaltungsgericht Berlin. VG Frankfurt. 7. Referring to a comparable issue dealt with in judgments by administrative courts. German courts had to deal with the question whether a SIS alert has direct legal effect. 11E3067/94. the same question arose in the Netherlands. Az. 2002. Furthermore. Az. The importance of this right to informational self-determination and the duty to balance decision-making has been confirmed in the German jurisprudence with regard to practice of Rasterfahndung after 11 September 2001. the proportionality of the measures or decisions taken against an individual. OLG Düsseldorf. it empowers national courts to assess. we have seen in section 4. Duty to Balance Interests The German principle of proportionality or the “Verhältnismässigkeitsprinzip” plays an important role in both data protection and immigration law.3. illustrates that the court did not accept a broad interpretation of Article 96 (2) as justification for a SIS entry. 3 Wx 357/01 and 3 Wx 351/01. 8. one could argue that this conclusion with regard to private carrier organisations cannot be applied to governmental authorities. Although many courts approved the (temporary) use of this measure. by the administrative court of Berlin.3.3. derived from this constitutional right. Spain the responsibility of national authorities to check the lawfulness of SIS alerts before enforcing them. As we saw in section 6. .150 8. Furthermore. as we gave seen in Chapter 9. 150 151 See section 2.3. the courts made it clear that the data search on foreigners and German nationals would have to meet the principle of proportionality. the jurisprudence on related matters could indicate that national courts will also apply the proportionality test to the NSIS. However.151 This difference in appreciation could however be explained by the fact that the Court of Appeal had to assess the lawfulness of measures taken directly after the events of 11 September 2001. Dealing with the question whether the data profiling measure was disproportionate.2. considering the responsibility of Member States to ensure that their acts are in conformity with EU law and international human rights standards. referred to in the previous section.2. in each individual case.Germany 435 this would have been different. On the other hand. the Volkszählungsurteil concerned the duty of the public authorities to balance the public interest to be served by data gathering against the individual right to privacy (Persönlichkeitsrecht) and the right. it obliges administrative authorities to weigh the different interests at stake whenever they take an individual decision.3. This principle is regarded as being directly connected to the constitutional principle of the rule of law. that the Court of Appeal of Düsseldorf applied different criteria to nationals of states listed as a “risk country” and German citizens respectively. On the one hand. the decision. to informational self-determination. Although I have not found any judgments which dealt explicitly with the principle of proportionality in relation to the use of the NSIS.2 in Chapter 9. with regard to family members of EU citizens the ECJ confirmed in Commission v. in its judgment of 21 July 2004.2003. http://www. it was justifiable to require a person crossing the German borders to ‘carry’ rather that to ‘possess’ a legal travel document or passport. This latter court confirmed the importance of the right to appeal. Az. once expelled to their country of origin or to a third country. Although such a legal interest had been denied in the judgment of 11 December 2003 by the Court of Appeal of Kassel152.2003. based on Article 2 of the CISA. The Frankfurt court based this explicitly on the possibility for the applicant to obtain financial reimbursement if the expulsion were to be annulled by the court. composed differently. Competence of National Courts to Assess Validity of Foreign SIS Report To my knowledge.de.2004. 12 TG 2668/03 and 12. answered this question in the affirmative in two other judgments in 2003 and 2004.4. 152 153 154 VGH Kassel.12. Since the applicants in both cases were expelled on this ground (they were not carrying a passport). Az. 19. it has not led to any in-depth discussions on the powers of national courts to assess the legitimacy of foreign administrative decisions.153 The administrative court of Frankfurt am Main.2004.hessen.vg-frankfurt . also ruled in the affirmative on this issue.de. but also against the decision to report the person to the NSIS on the basis of Article 96 (3) CISA as a direct consequence of this expulsion.justiz. the decision of the French Conseil d’État on the unlawfulness of the German records on rejected asylum seekers did not pass unnoticed in Germany. However. the central question in these cases was whether. Az. this practice was scrutinised more closely by the data protection authorities. the German courts had to consider the question of whether they still had a legal interest in appealing against this expulsion. Of course. This was affirmed by both courts. Az.436 Chapter 12 8. http:// www. Based on this judgment.01.11. Access to Remedies After Expulsion? One important question which has been dealt with by the German courts is whether third-country nationals. VGH Kassel.07.hessen. 8. 1 E 2479/04.justiz. 12 TG 3204/03.vg-kassel. there are no judgments in which a German court explicitly dealt with the lawfulness of a foreign SIS alert.154 In both the Frankfurt judgment and judgment of the Court of Appeal of Kassel of 19 November 2003. . The Court of Appeal of Kassel also dealt with the lawfulness of the decision to report the third-country national in the NSIS on the basis of Article 96 CISA. 21.5. 9 TG 546/03. 11. the same court. not only against the expulsion decision. Verwaltungsgericht Frankfurt am Main. still have any legal interest in lodging an appeal for an interim measure. 155 156 157 158 BVerfG 5. Moon was extended for another 3 years. BVerfG.2000. 12 TG 2668/03. for example on the basis of illegal detention (breach of Article 5 ECHR). By making it impossible for their leader to meet members of his religious organisation.2006. the German church section of the Unification Church.157 In 2006. VG Koblenz. Moon would pose a danger to German youth and thus would cause a threat to public order and security. BvR 1908/03 and OVG.07.158 In this section. 10. VG 3 K 938/98.6. A 11437/06. Az.12.KO and OVG Koblenz. 1 C 35.09.03. Article 96 CISA and Freedom of Religion: The Moon Case An interesting issue has been raised before the Federal Administrative Court with regard to the storage of data regarding the leader of a religious movement (the Unification Church or Vereinigungskirche) in the NSIS by the German authorities. not Mr.2001.Germany 437 In a judgment of December 2001. In the same year. This organisation held that the residence ban applicable to their leader. These reasons of the German government were cited by the Federal Administrative Court in its judgment BVerwG. 8. even after expulsion. 9. 19 April 2007. Moon and his wife in the NSIS in 1995 for the purpose of refusal of entry.156 In 1998. This measure was based on the general concern of the German government that a stay by Mr. 9. would cause an infringement of their constitutional right of freedom of religion (Article 4 (1). and Mrs. Mr. and Mrs. Az.11. Az. Moon. however.11.00. even once the person has already been expelled and has to take legal action from abroad. 2 BvR 527/99. VGH Kassel. Their claim. the storage of the alert on Mr. on the basis of Article 96 (2) CISA.2001. OVG 11 A 10349/99. Az. Moon. (2) of the German Constitution).155 The Court stressed the special interests for the applicant to initiate such a procedure. these members would be prevented from exercising their right to freedom of religion. This would enable him or her to forward a claim for financial compensation.11. I will shortly summarise the main findings of the courts when dealing with the Moon case. To prevent his arrival in Germany. the Constitutional Court confirmed the importance of the possibility of using the right to legal remedies against expulsions.1998. 19. the Border Police of Koblenz had registered Mr. see also the judgment of the administrative higher court of Kassel. lodged an appeal against the SIS alert before the administrative court. Also their public performances could lead to “violent reactions” (heftigen Reaktionen) in Germany. had been rejected in appeal and in higher appeal. the Constitutional Court annulled these decisions and referred the case back to the Court of Appeal or Oberverwaltungsgericht of Koblenz. The government argued that the activities of the leaders of the Unification Church would pose a threat for “the personal development of young people in Germany”. . Az. 13. which declared the SIS alert unlawful. In its judgment of June 2002. the administrative appeal court delivered a much more strict interpretation of the freedom of religion as formulated by the Federal Court in its judgment July 2001.6. 1 C 35.160 Among other things. However. Moon were in breach of the right of freedom of religion of its members. in this case. and Mrs. referring to earlier satellite and internet meetings which were organised by this church. BVerwG 4.2002. Az. and Mrs. according to the theology of the Unification Church. the Court did not deny the existence of a right to freedom of religion of third parties with regard to the SIS alert on their leader. p. InfAuslR 2004.00. the Federal Administrative Court reached its first decision in this case. the Court did not go into the question of whether the “public order and security grounds” as forwarded by the Koblenz authorities justified the Article 96 (2) record on Mr.9. InfAuslR 2001. . 38. In this judgment. Although the Federal Administrative Court confirmed the claim of the applicants that the court of Koblenz had made an overly strict interpretation of the “specific significant meaning of a visit of a religious leader”. 1 B 288. OVG 12 A 10349/99. the Federal Administrative Court emphasised that this judgment did not mean that with regard to future visits to be planned by the Moon couple. “if the visit of the leader. the Court recognised the relationship between a residence ban and the constitutional rights of others. Moon had been registered in the NSIS for the first time) the Federal Administrative Court rejected the appeal against the judgment of the Koblenz Court. Generally. In its final consideration. it held that there were no sufficient grounds to conclude that the refuted decision of the German authorities not to grant entry to Mr. in this judgment.161 Again. The question of whether these standards would give the applicants a subjective right in this case was referred back to the Koblenz Oberverwaltungsgericht. 509.2003.07. would have significant meaning for the common exercise of this religion”. According to the Court. it did not examine the lawfulness of the SIS alert itself.438 Chapter 12 In July 2001. a residence ban on a religious leader could be in breach of the constitutional right to freedom of religion of others. and Mrs. the Federal Administrative Court focussed on the freedom of religion of members of a religious movement and on the relationship of this right with the possibility or otherwise for these members to meet their religious leader. the personal presence of the leader at religious meetings would not be an absolute prerequisite. the Court would rule in the same way.2001. Az. p. Moon in the NSIS. The Federal Court stressed that it was the duty of the state to take into account the interests of the religious movement concerned.159 In its judgment. according to the standards of current religious doctrine. the Koblenz Court held that.02. In September 2003 (eight years after Mr. Az. OVG Koblenz 7. 159 160 161 BVerwG 10. § 3.2007. the alerts on Mr. For this conclusion. 19. The Constitutional Court therefore criticised the fact that the Federal Administrative Court made its own assessment of whether a meeting of the members of the Unification Church and their leader was of specific significance for their religious belief. especially when taking into account the interests of the applicants (members of the Unification Church). The Constitutional Court explicitly ruled that the SIS alert which is based on Article 96 (2) CISA. Furthermore. Moon could be justified. The German authorities did not lodge an appeal against this decision. and Mrs.164 162 163 164 BVerfG 9. . Az.162 The Constitutional Court ruled that the constitutional right to freedom of religion included not only the right to expression of that belief but also to enable certain practices of religion of which the content was mainly to be decided by the religious community itself.11. OVG Koblenz. and Mrs. during the procedure.04. Moon was still registered by the French authorities in the SIS for the purpose of refusal of entry. The Constitutional Court emphasised that the question whether a personal encounter between a religious leader and its members was of specific importance for this religious movement. in June 2007. Moon were deleted from the SIS. in its judgment of 19 April 2007. Finally. BvR 1908/03. According to the Constitutional Court. However. A 11437/06. the Constitutional Court emphasised that the Federal Administrative Court did not assess whether the alert in the SIS was in accordance with the applicable laws. in 2007. the Constitutional Court held that there were no reasons to believe that the SIS alert on Mr. the Court of Appeal found that this right could not be limited on the basis of “vague assumptions of fear” (vage geltend gemachten Befürchtungen).163 According to the Court. Moon. the Administrative Court of Appeal ruled that the German SIS alert on Mr. Mrs. and Mrs. it was not clarified why the visit of Mr. requires the availability of “substantial grounds” ( gewisse Erheblichkeit) that the presence of the third-country national poses a threat to public policy or security. Considering the importance and special weight of the constitutional rights of the members of the Unification Church.Germany 439 In November 2006. the German government did not produce convincing arguments to justify the refusal of entry of Mr. Moon was unlawful.2006. and finally. the Constitutional Court annulled the judgment of the Federal Administrative Court and handed the case back to the Court of Appeal of Koblenz. after twelve years of litigation. More importantly. and Mrs. the Court referred to the examples listed in Article 96 (2) including the fact that the person has been convicted or that there are serious grounds to believe that he or she will commit serious crimes in future. and Mrs Moon implied such risk. was not a matter to be decided by the governmental institutions. one can dispute the interpretation of the Article 96 (3) criteria and the way these criteria are implemented in German law. These criteria are. Both the criteria for and the effects of an Article 96 report lack transparency. German data protection authorities reported on the many mistakes and the illegal practices with regard to the storage of data on third-country nationals in the NSIS. the reports by the German Data Protection Commissioners confirm that the immigration authorities in Germany are still submitting data on these grounds. The criteria for the input of third-country nationals who are to be refused entry into the NSIS are not explicitly provided for in a formal law. Although the registration of rejected asylum seekers in the SIS is formally forbidden. the observance of the time limits and the criteria being used for the registration of third-country nationals. Even before 2004. Important developments in this . with regard to the meaning of “an offence carrying a penalty involving deprivation of liberty of at least one year”. both courts and data protection authorities seem to rely on the accuracy of the provisions in the general instructions. since they are the only standards applicable in this field. on the one hand.440 Chapter 12 9. removal or deportation. On the other hand.2. however. Germany: Strong Tradition of Collecting and Protecting Data Germany has long-term experience with gathering personal information and the use of databases to maintain internal security. This is interpreted to mean that a wide range of minor offences would justify a ban on residence for the whole Schengen territory by storing data concerning these persons in the NSIS. The interpretation of Article 96 (2) by the (former Border) Police and BKA can also be disputed. Nevertheless. These instructions are not. which is connected to a decision of expulsion.1. based on the re-entry ban of § 11 (1) of the German Residence Act. they are based on the confidential rules on national security and public order criteria as applied by the German police. Conclusions 9. the AAH-SDÜ. 9. legally binding and it is unclear whether and how they are applied by each individual immigration office. however. An important source of information on the implementation of Article 96 CISA is provided by the investigation performed in 2004 by the Federal Data Protection Commissioner and the data protection authorities in the Länder on behalf of the Joint Supervisory Authority. Based on these instructions. This investigation highlighted the fact that there are many problems with regard to the reliability of the information held in the SIS. More detailed rules for the German immigration offices are laid down in ministerial instructions of 1998. Implementation of Article 96 CISA The German rules with regard to the implementation of Article 96 CISA are not easy to decipher. German administrative procedural law also provides different possibilities for individual appeal. correction or deletion of data. the right to legal remedies for everyone whose constitutional rights are affected by public administration is protected in Article 19 (4) of the German Constitution. In this judgment of 4 April 2006. German immigration law includes a general right to appeal. A person may also lodge an administrative appeal against the decision to refuse the right to access. German data protection lobbyists such as Simitis and other lawyers played an important role with regard to the drafting of not only the German data protection laws. With regard to data processing.3. On the other hand.1. The judgment of the German Constitutional Court on the practice known as Rasterfahndung after the events of 11 September 2001 also marked an important development in German law and policy. With the exception of short-term visa applications and ‘manifestly unfounded asylum claims’.Germany 441 field have been the establishment of INPOL and experimenting with the use of data profiling or Rasterfahndung in the fight against the RAF in the 1970s. referring to the selected criteria on which the data profiling was based. The Constitutional Court explicitly emphasised the risk of stigmatisation of certain groups of (foreign and Muslim) individuals residing in Germany. The ‘Census Judgment’ or the Volkszählungsurteil by the Constitutional Court in 1983 was decisive for the future development of German law as well as being influential in other European countries. In this judgment. This right forms an important basis for the question of whether the person concerned actually has access to ‘effective remedies’. Since 1953. . The establishment of a central visa database and the use of biometrics for the identification and verification of travellers had been on the German agenda since long before the negotiations at EU level touched on these issues. the German Court raised the right of data protection (informationelle Selbstbestimmung) to a constitutional level and defined important criteria for the protection of individuals. the Court ruled that the applied measures of data profiling were in breach of the constitutional right to privacy of the persons whose information it concerned. the German government took a leading role with regard to the development of the NSIS and later with regard to the ‘computerisation’ of border control. NSIS and the Right to Effective Remedies As we saw in section 5. 9. Based on its own experiences. Germany has a central administration for aliens – a database which only acquired a legal basis in 1994. but perhaps just as important in this field has been the protection of the constitutional right to effective remedies (Article 19 (4) GG) in German jurisprudence. but also the data protection rules in CISA and EC Directive 95/46. Germany has a strong constitutional history of data protection and the protection of the right to personal life or privacy. Separate from the development of data protection law. 442 Chapter 12 During my research. of others. as established by the German data protection authorities.3. in their decisions on the use of these methods. and in 2006 the Constitutional Court. This practice seems to be in breach of the more general principles of German administrative law with regard to the duty of motivated decision-making. More in general. including the question of whether a SIS report is a separate administrative act open to legal remedies. In the Rasterfahndung judgment of 4 April 2006. in this case the freedom of religion. 9. Twelve years after the German authorities had entered their data into the SIS. the courts also made it clear that. governments are obliged to balance all the interests at stake and to consider the proportionality (Verhältnismässigkeit) of the chosen method. the German courts accepted national security reasons as the justification for the temporary use of data profiling. considering the large number of illegal or incorrect registrations in the SIS. the importance of available effective remedies including the possibility of a temporary injunction. German courts emphasised the importance of being heard in immigration. both the Federal Administrative Court and the Constitutional Court emphasised the duty of the administrative authorities to resolve language and translation problems for those persons not able to understand the German language. Moon in the SIS. the Court of Appeal of . However. Accessibility The accessibility of legal remedies in Germany seems to be especially hampered by the lack of knowledge of the third-country national about his or her registration in the NSIS. In these few decisions. The principle of proportionality played an important role in the more recent case-law dealing with the registration of Mr. the Constitutional Court made it clear that data profiling is only justified under special and specified circumstances. the German courts dealt with different issues. As we have seen above.and asylum law procedures. I found only a surprisingly small number of cases. In 2003. and Mrs. in these judgments. This is caused by the lack of transparent rules on the implementation of Article 96 CISA and the fact that the immigration authorities will not inform the person that he or she has been reported in the NSIS.3. With regard to the practice of Rasterfahndung. 9.2. the German courts carefully scrutinised the lawfulness of the registrations and considered whether the SIS report complied with the criteria of Article 96 CISA.1. The jurisprudence on the NSIS is to be read together with the jurisprudence on the German practice of data profiling or Rasterfahndung since 11 September 2001. Scope of Review In the few decisions I found on the use of SIS. the Federal Administrative Court. recognised the relation between the refusal of entry based on a SIS alert and the protection of the human rights. seeking a ban on further data processing or the transmission of the personal information to other authorities if this data processing is considered unlawful. Finally. as has been confirmed repeatedly by the German courts. the German Court made it clear that the possibility for the court to have access to the information during the judicial process had nothing to do with data protection rights or the right to informational selfdetermination. it is important that an individual has the right to financial compensation whenever he or she suffers damage resulting from wrongful or unlawful data processing. 9. as we have seen above. In the case law described above. in a judgment in 1999.3. or an interim order to prevent the expulsion of the person concerned.1999. These orders included the deletion of the SIS alert in question. the Constitutional Court emphasised the importance for courts of having access to information based on which the decision has been taken.3. includes the possibility of obtaining a temporary injunction or of having the effects of the administrative decision suspended. Competences The right to appeal under immigration law includes different possibilities for restoring the interests of the applicant. in order to guarantee an effective remedy. 165 BVerfG 27. the annulment of the refuted decision based on the SIS registration.1). This. This right to financial compensation is provided for in the Federal Data Protection Act and covers material and immaterial loss.Germany 443 Koblenz finally ruled that the Article 96 (2) alert was disproportional and therefore unlawful. In these judgments. the Constitutional Court confirmed that a data subject should have the right to lodge an appeal with the administrative court.165 In this judgment. Finally. 1 BvR 385/90. but everything to do with the applicant’s right to effective judicial protection. In a judgment on the AZR (dealt with in section 6.10. the Koblenz Court followed the earlier judgment of the Constitutional Court in this case. different German courts issued a binding order to the administration involved when they found that a SIS alert did not comply with the criteria of Article 96 CISA.6. the courts established clear and comprehensive criteria with regard to the principle of proportionality and the ‘effectiveness’ of legal remedies. With this conclusion. Other important judgments are those of the Constitutional Court and the Federal Administrative Court with regard to the constitutional right to informational self-determination and the right to effective judicial protection. . . Steenbergen. Digital Borders and Real Rights. pp. In general.D. In time. Evelien Brouwer. Printed in the Netherlands. 1 J. it is not easy to repair them. These reasons included the economic advantages of the abolition of internal border controls. as well as the possibility of enhancing cooperation between police forces and of harmonising asylum and immigration law. 445–510. ‘Schengen’ would have to be replaced by EU measures. the Dutch government held the view that intergovernmental cooperation in the field of immigration and asylum law was to be considered a temporary measure. this country was already cooperating in the field of visa and immigration policy with Belgium and Luxembourg. p. 29–60. 1999. Introduction Before the Netherlands joined France and Germany in their bilateral discussions on the abolition of internal border control. European Journal of Migration and Law 1.M. All the King’s Horses … Probabilities and Possibilities for the Implementation of the New Title IV EC Treaty. Seeing the sensitivity of Member States in this field.”1 1. The Dutch government had different reasons for believing it useful to extend this cooperation to France and Germany.Chapter 13 The Netherlands “Easy as it is to point at the deficiencies of the SIS. the Benelux agreement of 1960 was an important source of inspiration for the later Schengen negotiations. © 2008 Koninklijke Brill NV. In fact. . there is little chance that consensus can be reached on clear and precise common criteria to report a person into such a computer system. A step forward would already be a limitation of the reporting grounds. 11. no. this new measure would not be a formal legal result of the CISA. As of 1988–1989. Parliamentary Involvement with CISA 2. as was later admitted. 17. 300.446 Chapter 13 2. Identificatieplicht: oplossing of oorzaak van problemen. . 20 031. Staatsblad 2004. Organisational measures which received much attention during parliamentary debates included. Reeks Recht & Samenleving no. this law was adopted in 1993 and entered into force on 1 January 1994. the financial and organisational problems which occurred during the preparation of the Dutch airport Schiphol for Schengen. the legal and organisational implications of the draft CISA were scrutinised by the ‘Schengen specialists’ in the Dutch parliament. Official Journal of the Lower House of Parliament (hereafter: Handelingen Tweede Kamer) 22 142.5 A legal proposal including the obligation of individuals to identify themselves using an identity card in certain situations was submitted to the Dutch parliament in July 1992. for a general history of Dutch policy with regard to the legal duty of identification.4 Although. no. according to the government this would be necessary “to improve efficient control on immigrants within the territory”. no. Handelingen Tweede Kamer 1986–1987. ‘Schengen’ in General The CISA was ratified by the Netherlands on 30 July 1993. Even during the discussions on the approval of the Schengen Agreement of 1985. Despite opposition from civil society and certain political parties (including the larger Socialist Party).6 Meanwhile. members of the Second Chamber submitted a long list of questions on the content and practical effects of the draft 2 3 4 5 6 7 8 Dutch Journal of Treaties (hereafter: Tractatenblad ) 1993. no. Act of approval published in Dutch Official Journal (hereafter: Staatsblad) of 24 February 1993. Handelingen Tweede Kamer 1989–1990. no. see Handelingen Tweede Kamer 1995–1996. See.2 The Dutch parliament approved the CISA on 23 February 1993. These changes took place between the date of ratification (1993) and the date the treaty became effectively operational in the first Schengen states (26 March 1995). 1–2. for example. University of Nijmegen: GNI 2002.7 Despite the lack of transparency and the secrecy surrounding the negotiations on the CISA. no. 113. the Dutch government announced that the introduction of the general duty of individuals to carry an identity card (algemene identificatieplicht) would be necessary to make up for the abolition of internal border controls. debate of 12 June 1989. the Dutch parliament was relatively closely involved with regard to the CISA. no. 19 326.1. Staatsblad 1993. the duty of identification has been extended pursuant to a new law which entered into force on 1 January 2005. 660. 115. (Belgium and Luxembourg ratified the CISA on 31 March 1993). 19 326. published on 27 August 1993. 138. Böcker.8 One year before the signature of the CISA.3 The implementation of the CISA in the Netherlands included amendments to the applicable law and practical measures. Memorandum of the Minister of Justice. A. p. the role of the European Parliament during the Schengen negotiations.9 These questions had been drafted by a Dutch NGO. 19 326. Curtin and H. the Dutch Refugee Council and the aforementioned Meijers Committee.10 One of the central concerns of the Council of State was the fact that the CISA provided rules on which state should be responsible for an asylum application.11 Based on a draft by this latter organisation. Handelingen Tweede Kamer 22 140. This new power for the national parliament with regard to binding decisions taken within the intergovernmental framework of Schengen was at that time quite unique. but later also taken up by other countries. See. the Council of State (Raad van State) has to give its prior recommendation on the proposal. See D. for the ratification act of the Maastricht Treaty: Staatsblad 1992.The Netherlands 447 Convention. Meijers. no. 138. Meijers et al. the Meijers Committee. without harmonising the national asylum laws. The Principle of Open Government in Schengen and the European Union: Democratic Retrogression?. 161–240. 22 140. the Dutch government decided to submit the proposal to the parliament. exceptionally.13 A comparable provision has also been included in the approval act of the Maastricht. the competence of the Court of Justice. for instance. no. of the Treaty of Amsterdam. Democracy. the use of SIS and the availability of legal remedies (see below). no. before legal drafts are forwarded to parliament. Amsterdam and Nice Treaties. A critical analysis of the CISA was given in a special issue on Schengen of the Dutch Law Journal by members of the Meijers Committee and other lawyers. B. Article 2 of the law of 24 February 1993. p. Nederlands Juristenblad.14 9 10 11 12 13 14 Handelingen Tweede Kamer 1988–1989. Handelingen Tweede Kamer 1990–1991. advised the Dutch government not to submit the act of approval to parliament. this Council of State was critical with regard to the content of the CISA and.. Staatsblad 1993.12 According to this provision. the Dutch government was obliged to publish and to submit to the Dutch parliament each draft decision by the Schengen Executive Committee with binding effects on the Netherlands. Staatsblad 1998. the Dutch parliament agreed upon an important provision to be incorporated into the ratification act of the CISA. including the Dutch section of Amnesty International. In its report on the approval act of the CISA of 8 April 1991. . Utrecht: Forum 1997. 11. 8. In the Dutch legislative process. the Dutch Centre for Immigrants. Despite this negative advice. 31 January 1991. The Council of State also questioned the provisions for the exchange of personal information. 737. The Dutch parliament was provided with information and comments by Dutch NGOs. 12 June 1989. based on the parliamentary resolution Van Traa-De Hoop Scheffer. Italy enacted a similar provision. in: H. future plans with regard to the harmonisation of asylum law and visa policy. Migrants and Police in the European Union: the 1996 IGC and beyond. no. the inadequate protection of privacy and the lack of unifying supranational judicial control with regard to the implementation of CISA. 25–26. 692. They covered. no. . no.17 Many of the parliamentary questions submitted during the negotiations on the CISA in June 1989 concerned the future use of the SIS. 10.673. Among other things. making up for the abolition of internal border controls. computerised database to be used by police forces in different countries met with strong criticism in the Dutch media and the parliament. which was denied by the Dutch government. 14 December 1988.20 Once the SIS became operational. except for the input by the Dutch authorities. Official data of C. members of the Dutch parliament only incidentally dealt with the functioning of the SIS.SIS exploitation team for 1 January 2005. Handelingen Tweede Kamer 19 326. they referred to the conclusions of the JSA that the national SIS files in the various Schengen states did not include the same information. p. Furthermore. 7. no. no. the question arose of whether rejected asylum seekers would be registered in the SIS. this estimate was relatively close to the current numbers. the Dutch government informed its parliament of the feasibility study which was undertaken with regard to the establishment of the SIS. 13. For example. 8. of which 17.15 The government described the SIS as an indispensable tool or as a ‘conditio sine qua non’. In 1988. Handelingen Tweede Kamer 1987–1988. See the written reaction by the Secretary of State for Justice. 19 326. 12 June 1989.000 of which would be forwarded by the Dutch authorities. that national security measures were either inaccurate or lacking and that the Schengen states did not make sufficient use of the possibilities of encryption.16 The information to be stored in the SIS would be to safeguard public order and security in the Schengen territory and to fight criminality. 7 January 1988.18 These questions dealt with the availability of legal remedies against the reporting of personal data in the SIS and whether there would be a duty to inform a person about this registration (see below).21 15 16 17 18 19 20 21 Handelingen Tweede Kamer 1987–1988. 17 June 1997.2. 11. 50. Handelingen Tweede Kamer 1988–1989. The Dutch government estimated that the SIS would contain data on 800. Handelingen Tweede Kamer 1989–1990. 11. which was overestimated.239 alerts were submitted by the Netherlands. 19 326. 19 326. in 2005 the number of alerts on all categories of persons recorded in the SIS was 818. 19 326. no. 12 June 1989. 170. members of parliament questioned the government about the current use and organisation of the SIS.19 Compared to the more recent data on input into SIS. 19 326. no. Based on this report by the Schengen Joint Supervisory Authority (JSA) on the period 1995–1997. 30 June 1988.000 persons.448 Chapter 13 2. Handelingen Tweede Kamer 1989–1990. Parliamentary Discussions on SIS The establishment of a central. no. 29 December 1997. 161. 19 326. 1085. . Handelingen Tweede Kamer 1996–1997. a member of the Dutch Parliament raised questions on the security and the accessibility of NSIS information following an incident in Belgium. the lack of judicial control in combination with the lack of harmonised criteria for registration in the NSIS was a matter of general concern.27 In answer to these questions.SIS.6. 19 326.23 Another incident resulting in parliamentary questions was the conduct of the French authorities in impeding research by members of the Joint Supervisory Authority during their investigation of the CSIS premises in Strasbourg. 2. 1997–1998. 11. members of parliament questioned the legal protection of individuals registered in the SIS. no. The Minister of Immigration responded that. 19 326. Aanhangsel van de Handelingen. no. p. Aanhangsel van de Handelingen. Occasionally. 531.22 These reports concerned the audit by the Dutch Court of Auditors (Algemene Rekenkamer) and by the Dutch Data Protection Authority.26 In particular. This concerned permanent staff members of the Belgian SIRENE office who were suspected of having forwarded information to members of a criminal organisation.3. no. 166. the Dutch authorities forwarded 15. 26 Handelingen Tweede Kamer 1989–1990. members of the Dutch parliament submitted questions on security issues in response to incidents with the SIS and SIRENE. the government stated that an individual could invoke his or her right to legal remedies in each country where a NSIS office is located.25 This answer did not result in any further questions or discussions. 1085. based on figures from 1 January 2005 from the C. Parliamentary Discussions on the SIS and the Availability of Legal Remedies Even before the date of signature of the CISA.The Netherlands 449 The functioning of the SIS was raised again during the parliamentary debates in response to the publication of two Dutch audits which were performed on the functioning of the NSIS in 1997. Handelingen Tweede Kamer 1989–1990. 8. 19 326. 1997–1998. no. For example. 22 23 24 25 26 27 Handelingen Tweede Kamer 1996–1997. a member of the Dutch parliament asked how many third-country nationals were registered by the Dutch authorities in the SIS. p. 17 April 1997. 23 June 1997. in 1997.24 In 2005.5 and 3. including courts of other Schengen states. 12 June 1989. The legal remedies open to individuals would be those as provided for in national law. p. 531. even if these incidents occurred abroad. The Dutch government explicitly emphasised that the different countries would have to respect each judgment by the national courts.377 Article 96 alerts to the SIS. They will be discussed in sections 3. The national laws of the Schengen states would have to comply with these rules. This lack of procedural rules was however resolved. Handelingen Tweede Kamer 1990–1991. According to the Council of State. there was no clear rule on the right to legal remedies against an alert for the purpose of refusal or expulsion. B. the proper implementation of ‘Schengen’ would require the harmonisation of the law and practice of the Schengen countries in certain relevant fields. p. nothing would prevent this individual from starting the same procedure in another Schengen country. The advisory body questioned whether a national court could make a declaration on the legitimacy of alerts stored by another Schengen state in the SIS. the Council of State proposed giving the European Court of Justice (ECJ) a supervisory role with regard to the implementation of the CISA.28 According to the Council of State. the government noted that if one country rejected the request and subsequent appeal by the applicant. The Council of State also regretted that the negotiating partners did not first harmonise the relevant material and procedural rules. As we have seen above.29 According to the government. according to the government. B. the applicant could ask the issuing state to implement the court’s decision.450 Chapter 13 In the aforementioned recommendation of 8 April 1991 on the Dutch approval act for the CISA. potentially. If the court decided that the alert should be deleted from the SIS. This concern about the lack of a supervisory judicial authority to interpret the provisions of the CISA was shared by some members of parliament. . for example. 43–45. In its response. the Dutch government disagreed with the conclusion of the Council of State that the CISA would not provide clear rules on the legal remedies. this court could ask the issuing state for further information. A court would assess the grounds submitted by the applicant in an individual procedure and. by the principle in the CISA regarding the mutual recognition of national court decisions. In addition. the use of alerts and the protection of privacy. The Dutch government held that only the procedural rules of the legal remedies had not been harmonised. Supervision by an international judicial authority would be necessary. 22 140. In the same advice on the approval act of the CISA. 28 29 Handelingen Tweede Kamer 1990–1991. this information is not accurate because. the CISA contained ‘fully’ harmonised rules on the standards for entering data. the criteria of Article 96 are not very precise. the Council of State explicitly dealt with the meaning of Article 111 CISA with regard to the judicial remedies. 22 140. or at least ‘urgently required’. The national court in the other Schengen state would then be competent to start a new independent investigation into the lawfulness of the alert. to ensure this harmonisation of law. no. C.. p. The Competence of the EC Court of Justice. Meanwhile. 2001–2002. The government referred to the fact the Schengen Agreements were temporary measures. Aanhangsel van de Handelingen.31 This protocol did not receive enough support from the other Schengen states and has therefore never been adopted. 425. this proposal regarding the role of the Court of Justice remained on the political agenda of the EU Member States. p. 256–278. including the ECtHR. 2.4. However. 161–240. including the freedom of movement and visa policy.30 Based on a draft by this NGO and the ensuing discussions in the parliament. . at the time of my research (2004–2006). these cases could be submitted to current international institutions. there would be no reason to establish separate Schengen authorities with judicial control over the implementation of Schengen law. prior to EC regulations. Nevertheless. in: H. According to the government.A. proposed adding a Protocol on the role of the Court of Justice to the ratification of the Schengen Agreement of 1985. the Dutch Data Protection Authority was to take over responsibility for the distribution of information about the NSIS. 31 January 1991. In 1991.33 In their answers.32 In 2001.The Netherlands 451 Initially. in other fields of law as well. A. Schengen: The Way of no Return?. Meijers. Therefore. Woltjer. this organisation had not disseminated any information with regard to the NSIS. see p. Meijers et al. See also the contribution by H. Maastricht Journal of European and Comparative Law 2 (1995). the CISA. JR91–179. Nederlands Juristenblad. the aforementioned NGO. Parliamentary Debate on SIS II Compared to the critical attitude of the Dutch parliament with regard to the establishment of SIS I. p. Groenendijk. the initiator and former chairman of the Meijers Committee in the special issue on Schengen. the Minister of Justice and the Secretary of State for Foreign Affairs confirmed that the information leaflets developed by the Joint Supervisory Authority had still not been distributed in the Netherlands “due to a misunderstanding”. and the agreement between the Schengen countries and Poland of 29 March 1991. the government replied to parliament that there were no intentions to develop such an institution. 203. A New Immigration Law for Europe?. the Meijers Committee. the development of SIS II was discussed only marginally. The Ministry of Foreign Affairs would however provide general information on the content of the Schengen Agreements. 30 31 32 33 Annex to a letter from the Meijers Committee to Dutch NGOs of 17 May 1991. Utrecht: Dutch Centre for Immigrants 1993. 52. the Dutch government submitted a draft for a Protocol regulating the power of the Court of Justice to its Schengen partners on 11 November 1991. a member of the Dutch parliament questioned the government on the absence of any information campaign for citizens with regard to the use of SIS. available on the Senate’s special Europa website: http://www. Proposal by the Italian and Spanish delegation in 2001. 6164/5/01. Staatscourant 19 November 2002.nl. for example.34 In this letter. In this same letter. The Minister did not inform the parliament of the fact that. Although he admitted that more organisations would gain access to SIS II. 128949. the consequences of these proposals for the privacy rights of individuals and changing SIS II into an investigative tool. In his response.452 Chapter 13 On the few occasions when the Senate or the Second Chamber of parliament made an inquiry about SIS II. the Staatscourant. The most extensive inquiry into SIS II was included in a letter from the sub-committee on Justice and the Interior of the Senate of 26 November 2002. the possibility of searching SIS on the basis of incomplete data. as we saw in Chapters 4 and 5.03. the inaccuracy of data held in the current SIS would be the subject of continuous concern. the Minister described this publication as a mixture of “Wahrheit und Dichtung”. 8ee. he emphasised that the responsible Council Working Group was not considering any proposal to link SIS II to other databases. COM (2003) 771. even in December 2003. the Minister of Justice was asked to provide the Senate with information on the development of SIS II in relation to the accession of new EU Member States. 23 490.37 Moreover.europapoort. even before 2003 different Member States had submitted extensive proposals with regard to the use of SIS II. Letter from the Minister of Justice of 8 July 2003.35 The Minister informed the Senate that the European Parliament was consulted on the SIS developments and that every decision (binding and non-binding) on SIS II would be submitted to the Dutch parliament. SIS II would remain a database for daily use by national officers on a hit/no hit basis. It was six months before these questions were answered by the Minister of Justice. According to the Minister. Other questions raised by the Senate concerned the involvement of the European Parliament in the decision-making on SIS II. The parliament did not question which lessons could be learned from the current use of the NSIS or whether this system was effective with regard to its goals. they rarely raised fundamental questions. no. Handelingen Tweede Kamer 2002–2003.36 In this publication.38 34 35 36 37 38 Doc. whether the Dutch parliament would be informed of every decision regarding SIS II and whether the purpose of SIS II would be changed. According to the Minister. . the Minister of Justice responded to parliamentary questions in reaction to an earlier publication by in the Dutch government journal. the journalist Jelle van Buuren dealt with the proposals for the interoperability of different databases. the European Commission recommended the technical integration of SIS II and VIS in its Communication on the second generation SIS and synergies with SIS II and VIS. 282. 495 and Staatsblad 2001. many of these critical issues in the former draft of the Regulation would have been improved by later amendments. 23 490. “within its general purpose. but indicated. This reform concerned. in September 2006 the Minister of Justice gave a written response to a letter from the Meijers Committee regarding a draft text of the SIS II Regulation. the authorities to be granted access to it and the safeguards to be provided for the legal protection of individuals. 23 490. 144. the legal rights inherent in different residence permits were unified. According to the Minister. 2005–2006. The Aliens Act 2000 provides rules on the different categories of residence permits and documents. 3. attempts would be made to adapt SIS II to changing circumstances”. the legal remedies and the rules 39 40 41 42 Handelingen Tweede Kamer 2002–2003. the rules governing the procedures were simplified and the right to administrative review was withdrawn.40 Invited by members of the parliament. 427. Some of these positive amendments would even be based on the efforts of the Dutch government during the negotiations in the Council. 23 490. no. Sources of Immigration Law The general rules of immigration law are laid down in the Dutch Aliens Act 2000 (Vreemdelingenwet 2000). This letter from the Meijers Committee of 13 April 2006 was written by the author and is available at http://www.39 In a response dated September 2003.1. however. In order to shorten the available asylum procedures.commissie-meijers. To prevent asylum seekers from filing successive procedures to achieve more secure status. the Minister of Justice again emphasised that the SIS II would remain a hit/no hit database. the asylum procedure. no. Furthermore. Letter from the Minister of Justice of 25 September 2003 in reply to parliamentary questions. an amendment of Dutch asylum law. Socialist Party (PvdA) member Aleid Wolfsen questioned the proposed purpose and content of SIS II.The Netherlands 453 During discussions on the forthcoming meeting of the JHA Council in June 2003. According to the Minister. that this was not a final option. Handelingen Tweede Kamer 2003–2004. . firstly. the Dutch NGO questioned the rules on the deletion of data on third-country national acquiring EU citizenship and of third-country nationals with privileged rights under EC law.41 In this letter. no. no. 293. the Meijers Committee criticised the inaccurate rules relating to legal remedies for individuals. Implementation of the SIS and Registration of Third-Country Nationals 3. This law was adopted on 23 November 2000 and entered into force on 1 April 2001. Staatsblad 2000.nl.42 The Aliens Act 2000 replaced the former Aliens Act 1965. no. Handelingen Tweede Kamer. 26 106. Royal Decree (Koninklijk Besluit) 22 July 2002.3. include substantive criteria for policy measures. Staatscourant no. 4.47 However. More specific and detailed rules are included in the Aliens Decree 2000 (Vreemdelingenbesluit 2000).48 Further rules on visa policy not provided for in the Schengen law would be incorporated into the general Aliens Act 2000. 60. 20 June 2006. immigration law and policy falls under the responsibility of the Secretary of State for Justice. The issue of visas is only partially dealt with in the Dutch Aliens Act. following the recommendation of November 2005 by the Dutch Advisory Committee on Immigration Law (Adviescommissie Vreemdelingenzaken’). a separate visa law would not be necessary due to the existing and directly binding Schengen rules. Before going into the criteria based on which third-country nationals can be registered in the NSIS. no. In particular. the post of Minister of Immigration has been abolished. Since then. decision 2006/16. Regulation 562/2006. Between 22 July 2002 and February 2007. which are neither adopted nor systematically approved by parliament. . In 2002. Staatscourant 1814. no.44 These circulars. The Aliens Circular 2000 includes instructions from the Minister of Immigration and Integration (hereafter referred to as the Minister of Immigration) to the national immigration officers and to border guards. 140.46 The Minister of Foreign Affairs is empowered to issue visas in accordance with the applicable Schengen rules and the agreements between the Benelux countries. with the installation of the new government Balkenende IV. the government dropped this proposal in 2006.2006. the government announced that a new comprehensive act on Dutch visa policy was being prepared. it should be noted that the Dutch Aliens Act 2000 uses the 43 44 45 46 47 48 Since February 2007. Staatscourant no.43 The instructions with regard to border controls as provided by the Aliens Circular have been amended in accordance with the Schengen Border Code. 7 and Staatsblad 2002. 4. the Aliens Regulation 2000 (Vreemdelingenvoorschrift 2000) and the Aliens Circular 2000 (Vreemdelingencirculaire 2000). no. Initially. Handelingen Tweede Kamer 2000–2001. p. the Minister of Immigration and Integration was responsible for decisions in the field of immigration and integration law.454 Chapter 13 on the expulsion and detention of third-country nationals. the fact that these rules are often changed makes it difficult to assess which provisions currently apply. these instructions were given by the Minister or the Secretary of State for Justice. Letter from the Minister for Immigration.45 The combination of the Aliens Act 2000 with the different ministerial circulars and decisions makes the applicable law opaque. 418. According to this recommendation. Announced in a general memorandum of 18 July 2002 on the visa law (Hoofdlijnennotitie Visumwet). See Vreemdelingencirculaire. just060521. It finds its basis in a Decree (Souverein Besluit) of 1813. 24. p. the formal residence ban had been introduced into the former Aliens Act. R.8 of the Dutch Aliens Decree 2000. den Houdijker. In the following sections. Migrantenrecht 5/01. See.49 Although these categories are based on different regulations and have different legal consequences. Formal Residence Ban Unlike the second category of ‘inadmissible aliens’ (see below).M.2. Een gemiste kans. I will use the word ‘aliens’ when the provision in question also refers to EU or EEA nationals. EU/EEA. according to legal provisions. Steenbergen.J. In these cases. -signalering en rechtsbescherming.50 Furthermore. Criteria for Registration in the NSIS With regard to the registration of unwanted persons. According to Dutch law. This duality in Dutch law has a historical basis. 2006. The Hague: Boom Juridische Uitgevers 2005. According to Article 1 of the Aliens Act 2000. 558. p. 3. See. as we will see. Punitief karakter ongewenstverklaring. they shall only be registered in the national investigation file or the Dutch police file.5 to 8. See the Articles 8. J. Of course. however. the criteria for both categories are sometimes very similar. the administrative practice of reporting aliens on the basis of a ministerial instruction was maintained. on the punitive nature of the Dutch residence ban.The Netherlands 455 word ‘aliens’ instead of ‘third-country nationals’. 9. ‘aliens’ includes any person not holding Dutch nationality and who. including Directive 2004/38 discussed in Chapter 9.M. I will refer to ‘third-country nationals’. a decision to refuse entry to a EU/EEA or Swiss citizen or their family members based on such registration must comply with the stringent criteria of EC law.D. Ongewenstverklaring en verblijfsbeëindiging. Kuijer.2. Whereas. 239–243. Heringa. p. should not be treated as a Dutch national. the OPS (see below). for a critical comment.1. based on the Benelux treaties. they can be declared inadmissible on the basis of Article 67 Aliens Act 2000 or reported as inadmissible on the basis of the provisions of the Aliens Circular. Dutch immigration law differentiates between two categories of aliens: persons to whom a formal residence ban has been issued by the Minister of Immigration and Integration (ongewenst verklaarde vreemdelingen) and persons reported as unwanted aliens based on ministerial instructions (ongewenst gesignaleerde vreemdelingen). the formal residence ban (ongewenstverklaring) has an explicit legal basis in Article 67 of the Aliens Act 49 50 51 A. in 1960. The parallel functioning of both categories is however confusing and does not seem logical.5. . Migrantenrecht 6–7. and Swiss citizens cannot be registered in the NSIS for the purpose of refusal of entry. Nederlands Vreemdelingenrecht. F. 144–150. As we saw in Chapter 3. for practical purposes their registration has the same effect: a ban on entry. Otherwise.51 3. 2005/29. the decision to issue a formal residence ban should be based on considerations involving the protection of public order and national security. Article 67 (1) of the Aliens Act 2000 describes the following categories of persons to whom a formal residence ban can be issued: a. In general. a person regarding whom another Schengen or Benelux State submitted a motivated request to the Dutch government to order a formal residence ban. Dutch law provides a ‘sliding scale’ mechanism for the decision to withdraw someone’s residence permit. b.456 Chapter 13 of 2000. Article 3. to withdraw the residence permit. This does not require a criminal conviction. Since February 1990. no. this mechanism stipulates that the residence permit of a person staying for a longer period in the 52 53 54 The implementation rules are laid down in the Aliens Decree 2000 and in the Aliens Circular 2000.53 Article 67 (1) (b) concerns persons who have been convicted and whose residence permit is withdrawn for that reason. A person to whom a formal residence ban has been issued and who is found on Dutch territory is punishable on the basis of Article 197 of the Dutch Criminal Code. This decision. d. including (multiple) convictions for a crime punishable by imprisonment. Decision no. a person who committed a serious crime outside Dutch territory and when a formal residence ban would be in the interests of international relations. c. the Minister was asked to apply the formal residence ban more frequently with regard to illegal immigrants acting in breach of the Aliens Act. e. or a report from the national or a foreign intelligence and security agency. Amendment Aliens Circular. 119. This includes different categories of persons. a person residing without a legal basis in the Netherlands and who has committed more than one offence which is punishable under the Aliens Act (for example if a person does not report his or her stay to the competent authorities within the prescribed time).54 In general. The criterion under (a) is inserted on the basis of a resolution adopted by the Lower House of the Dutch Parliament in 2004. Staatscourant 23 June 2005.86 Aliens Decree 2000. This means he can be sentenced to imprisonment for a maximum of 6 months or to pay a pecuniary fine. a person with a residence permit who is convicted of a crime punishable by a term of imprisonment of 3 years or more. . In this resolution. a person residing without a legal basis in the Netherlands and who poses a danger to public order or national security. should be taken by balancing the public interests and the individual rights of the person at stake.52 The formal residence ban is based on a written decision by the Dutch Minister of Justice. 86 Aliens Decree amended by Tussentijds Bericht Vreemdelingenrecht (TBV) 2002/34 in: Staatscourant 6 August 2002. final convictions. no. the sliding-scale mechanism states that he or she should be sentenced to a term of imprisonment of more than 96 months.55 The Dutch Aliens Act contains strict rules if a third-country national should apply for the withdrawal of his or her residence ban.6 of the Aliens Decree 2000. the person must remain outside Dutch territory for one. paragraph (c) of the Aliens Decree 2000 states that the decision on the extension or withdrawal of residence permits can also be based on foreign. effective 17 June 2002. but the criteria for reporting third-country nationals as ‘unwanted’ in the national police files can be found in the Aliens Circular 2000 (para. Article 3. These rules imply that. p.2).2. This category has no formal legal basis. For example.56 In 2005 and 2006. There are no official time limits for the duration of a formal residence ban. The criteria have been tightened for persons residing in the Netherlands for less than five years and. The decision to report somebody as ‘unwanted’ is based on an instruction from the Dutch Minister of Immigration (now: Secretary of State for Justice) to the officers implementing the tasks of border control and immigration law. . depending on the facts forming the basis for the formal residence ban. Third-Country Nationals Reported as Unwanted The second category. 7.The Netherlands 457 Netherlands can only be withdrawn if the prison sentence to which he or she has been sentenced is also longer. The sliding scale criteria are subject to changes. p. the Minister of Immigration announced stricter rules. It can only be withdrawn by the Minister following an application from the third-country national concerned. third-country nationals reported as unwanted (ongewenst gesignaleerde vreemdelingen) constitutes the largest number of Article 96 reports in the NSIS. With regard to a person who has been in the Netherlands for at least 15 years but less than 20 years. See also NRC Handelsblad 14 September 2006: Vreemdeling bij iedere straf het land uit.57 3. A3/9. five or ten years before he or she can apply for its withdrawal.2.2. including amendments stating that legally resident third-country nationals could be more easily expelled after having committed a criminal offence. This ‘informal residence ban’ is to be considered an 55 56 57 Article 68 Aliens Act 2000 and Article 6. Aanhangsel Handelingen Tweede Kamer 2005–2006.86. Article 3. 4211. the extension of a residence permit can be refused or a residence permit can be withdrawn if a person who has been in the Netherlands for at least three years but less than four years has been sentenced to more than 9 months’ imprisonment. 1983. a residence permit can be withdrawn if the person concerned has repeatedly committed minor offences. c. g. if the person evades supervision. the Dutch Minister of Immigration announced in a memorandum on the Dutch expulsion policy with regard to rejected asylum seekers that it would be necessary to intensify 58 59 Aliens Circular 2000. including a conviction for a minor offence such as shoplifting. as well as the suspicion that a person has ties with terrorist networks. And. for example if the person does not comply with detention or supervision measures listed in Articles 4. . the person hides or does not leave within a reasonable time period”.458 Chapter 13 administrative instruction from the Minister to the border police and the immigration officers to refuse the person entry at the borders or to expel the person if he is found on Dutch territory. but who has (still) not been convicted (two years). Staatscourant 14 July 2006. These criteria are regularly amended or updated.42 to 4. e. if the person has been refused entry or has been expelled because he or she used fake or forged identification or travel papers or deliberately produced travel or identity papers that did not belong to him (five years). p. In practice. 7. d. Unlike the formal residence ban.39 and 4. In general. persons who are reported as unwanted are not informed in advance. removal following a prison sentence of six months or more (no formal residence ban) (five years). removal following a prison sentence from three to six months (three years). if the Minister of Immigration finds there are concrete indications that the person concerned is a danger to national security (ten years). in 2003. 135. this covers a wide variety of reasons for which a person can be reported in the NSIS.52 of the Aliens Decree59 (three years).37–4. a third-country national reported as unwanted is not committing a crime if he or she resides or stays within the Netherlands. the Dutch authorities are instructed to report a third-country national whenever the following criteria apply (the prescribed duration of the alert is given in brackets):58 a. f. removal following a prison sentence of a maximum of three months (two years). public order or national security. the reasons for reporting a person as unwanted in the NSIS are based on danger to public security. According to text of the Aliens Circular of July 2006. unlike the formal residence ban. The original text was: “the person does not cooperate with his identification. as amended by Wijzigingsbesluit Vreemdelingenrecht (WBV) 2006/20. h. b. For example. first expulsion of a non-criminal alien within a period of two years (two years). removal of a third-country national who has been reported (prosecuted) for a crime related to drugs smuggling. no. the highest Dutch administrative court ruled that a confidential report by the national security and intelligence service (AIVD) can form a sufficient basis for the decision to report the person in question as an ‘unwanted person’. the explanatory memorandum to this amendment clarifies that this decision also can be based on other grounds. p. 371. 2004. 4 July 2006. WBV 2005/29. according to the original text. published in Staatscourant 22 September 2004. no. case no. third-country nationals can already be registered after their first removal and for two years instead of one year. TBV 2003/9.64 It was.62 The registration of third-country nationals suspected but not convicted of a crime related to the smuggling of drugs is used especially to facilitate the return of drugs couriers who arrive at Schiphol airport. . In general. p. This Resolution requires states to enhance their border controls in the fight against terrorism.61 Whereas. one can question whether the reporting of ‘suspected terrorists’ in the SIS for the refusal of entry is an efficient tool in combating terrorism. 182. the criterion under (a) has been amended for this purpose. the Minister of Immigration also referred to the duties of Member States pursuant to UN Security Council Resolution 1373. It might have been more appropriate to register the persons in the NSIS on the basis of Article 95 (extradition) or 99 (secret surveillance). emphasised that the use of the confidential report was justified in this 60 61 62 63 64 Handelingen Tweede Kamer 2003–2004. The same Resolution also calls upon states to prevent the commission of terrorist acts by bringing those persons to justice. 15 September 2004. 17 March 2003 and the decision of the Minister of Immigration to amend the Aliens Circular 2000. however. no. 1. rather than on the basis of Article 96 CISA. a person could only be registered for one year in the NSIS following a second removal within two years. 29 344. 14. The decision to report a person ‘as a suspected terrorist’ in the NSIS can be based on a report by the Dutch intelligence and security agency.60 Based on a parliamentary resolution adopted in 2004. In her explanatory memorandum. including the reports of foreign intelligence and security agencies. The criteria listed under (b) and (h) were added in 2003 and 2004 respectively. The criterion mentioned under (h) concerns third-country nationals who are suspected of having connections with terrorist networks. Afdeling Bestuursrechtspraak Raad van State. even if the report itself was not made available to this person. See also my earlier comments to this amendment of the Aliens Circular 2000 in: Migrantenrecht 9/10. However. 10.The Netherlands 459 the use of the SIS for tracking persons staying illegally in the Netherlands after their removal. 200602107/1.63 In July 2006. p. LJN: AY3839. but this issue has not been discussed. 2. . a link has also been maintained with the national Agency for Road Traffic (Rijksdienst voor Wegverkeer – RDW) in cases concerning data on stolen or missing driving licenses. NSIS: Responsibility and Coordination Overall responsibility for the NSIS and SIRENE is in the hands of the Dutch National Police Services (Korps Landelijke Politiediensten. including data for criminal investigation purposes. the Ministry of Justice). 3. not to copy 65 Letter of 27 July 1993. third-country nationals to be refused entry or persons reported as missing were registered in the Dutch national investigation file (Nationaal opsporingsregister or OPS). the Dutch government decided to report only those data relating to facts occurring after the date the SIS became operational.en Naturalisatie Dienst. Practical Implementation and Use of the NSIS 3. i. In some of the categories mentioned above. The person concerned had only denied the content of the (available) information forwarded by the AIVD and had not submitted any further information to support his view that this information was wrong. Anticipating the start of the SIS.3. According to the applicable rules of the CISA. The KLPD is responsible for the storage and use of data in the NSIS.3. the Dutch authorities must explicitly request the C. on missing persons. hereafter the IND) is responsible for the registration and coordination of registrations of third-country nationals. regarding the registration of stolen or missing identification documents. this shared responsibility has consequences for how applications for access to SIS information are being handled. in those cases.3. as envisaged in Article 112 CISA.65 With regard to the input of data into the NSIS. This measure. As we will see below. on 27 July 1993 the Dutch Minister of Justice issued instructions to the national police authorities with regard to the reporting of third-country nationals in the OPS and the NSIS. 376416/93/DVZ. The Dutch Immigration and Naturalisation Department (Immigratie. the general limit of three years for the storage of data. expires before the national time limit given in the Aliens Circular. The IND falls under the competence of the Minister of Immigration (since 2007. 26 March 1995.460 Chapter 13 particular case.e.SIS to extend the retention period. Since March 1998. TBV 75–1. This organisation falls under the responsibility of the Minister of the Interior.1. 3. stolen goods and on third-country nationals. Procedure for Registration in the NSIS Before the SIS became operational. hereafter the KLPD). The Dutch NSIS is linked to the automated municipal population register (Gemeentelijke Basisadministratie or GBA). This resulted in a more uniform and structured organisation of the input of data into the NSIS.3 Aliens Circular 2000. The SIRENE officers formally have to check whether the entry is in conformity with the provisions of the CISA and whether the person has not already been reported by other 66 67 68 69 70 Handelingen Tweede Kamer 1995–1996. Police Act of 9 December 1993. For this purpose.The Netherlands 461 the ‘old’ OPS data into the NSIS. 1–3. third-country nationals registered in the NSIS are no longer recorded in the OPS. with more powers for the central government. a national coordinator has supervised the criteria used by the regional units to enter a person into the NSIS. 5 March 1997. the different regions applied different criteria for the registration of data in the NSIS. Proposal to amend the Police Act of 1993. 25 200.69 The police reorganisation included a decentralised structure with more responsibilities assigned to the regional police forces. . Dutch policy-makers agreed to return to a more centralised approach by the police. no. When the IND approves the alert regarding a third-country national. 3. After this practice had been criticised by the Court of Auditors in 1997 (see below. Handelingen Tweede Kamer 2003–2004. no.66 This decision was made at a time when it had been established that the data stored in the Dutch police files were often inaccurate. no. who will decide whether the alert will be submitted to the NSIS. based on a legal proposal in 2004. The current storage of third-country nationals in the SIS is coordinated by five regional coordinators of the IND. Article A3/9. Staatsblad 1993. To prevent duplicate registration.70 Initially.67 Therefore the Dutch authorities started to clean up these files in order not to ‘contaminate’ the new NSIS files with the old information from the police files. copies of the identity documents to the IND.1. section 3. Whenever a national immigration officer or a border guard considers that a person meets the criteria of the Dutch Aliens Circular 2000. the form is forwarded to SIRENE.68 The timing of the measures to be adopted for the implementation of the CISA almost coincided with the reorganisation of the national police force. of 1 September 2004. the central government issued instructions to the regional departments with regard to the input of data into the Dutch NSIS. Meanwhile. based on this decentralised structure. 724. 140. p. Since 1999. Letter from the Minister of Justice. Trouw 30 November 1993.5). no. 19 326. The IND will contact the regional coordinator.6.1) provides that an officer using this form should forward the fingerprints of the third-country national and. wrong or wrongly spelled. 2. the IND should always be asked to report this person in the NSIS. would ensure that the SIS records were “as clean as possible”. a special form is used (Model M93). The Dutch Aliens Circular (A3/9. if available. Handelingen Tweede Kamer 1996–1997. 27 904. A2/5.5.462 Chapter 13 Schengen states. Article 96 Hits and Internal and Border Controls There are different procedures to be followed by immigration or border control officers with regard to third-country nationals who generate a hit in the NSIS or the Dutch OPS. is tasked with border controls.5 Dutch Aliens Circular 2000 (according to the text applicable in 2006). The Aliens Circular 2000 identifies the procedure following a hit during border control. The requests from Dutch authorities for additional information on a SIS report are forwarded by the regional coordinators to SIRENE. Persons checked while on Dutch territory during an immigration control and registered in the NSIS will be transferred to a local police station or to the Military Police. Only if the person concerned falls within certain categories. Persons encountered at border posts and registered in the SIS or the Dutch OPS for the purpose of refusal of entry should in principle be refused entry. the border officials will have to inform both the Dutch SIRENE office and the IND but. the IND should be consulted first. 9. the IND will be asked to handle the asylum application. if they find a hit for a third-country national. Military Police officers have access to the NSIS and. With regard to the two former tasks. .72 These categories include. a Dutch officer should report every hit he or she finds concerning a person when consulting the NSIS to their national SIRENE office. third-country nationals who claim they have a long-term residence permit and persons whose refusal of entry would be in conflict with serious humanitarian interests. for instance. In general. will have to grant this person access to Dutch territory. If a person has a legal residence permit but is reported in the NSIS.1 of the Aliens Circular 2000. Military Police officers will also have to contact the IND when dealing with a third-country national who meets the criteria for a NSIS alert and who should be recorded in the NSIS.71 The Dutch Military Police (Koninklijke Marechaussee). 3. under the responsibility of the Minister of Defence. 71 72 See A3/9.4.3. they will contact the IND.3. internal immigration control (mobiel vreemdelingentoezicht) and with certain tasks in the asylum procedure. in principle. Also. If a person applies for asylum at the borders. EU/EEA or Swiss nationals (this only applies to hits based on the OPS). during checks for immigration controls within the national territory and during the application for a residence permit or asylum. should the border officer consult the IND. if an important Dutch interest is at stake. where they can be detained in order to be expelled as soon as possible from the Netherlands. and 9. Only in cases of doubt about the residence status of the third-country national. the border police are obliged to consult the responsible authority.3. when it has been established. “for example on the basis of a NSIS alert to be 73 74 D44. the IND must consult the other State on the basis of Article 25 CISA. If it is clear that the residence permit has been issued correctly. the person receives a special form stating that he or she has applied for a residence permit. Secondly. . the IND will also apply the Article 25 CISA procedure. in each individual case. If the report in the SIS concerns a third-country national who applies for asylum. In the latter situations. To summarise. Firstly. TBV 1995/6. If the IND issues a negative decision and there are no legal remedies left against this decision. If the IND issues a residence permit. Dutch border officials will have to forward this application to the IND. p.74 Four years later. the national authorities would have to assess whether a record in the NSIS would be a sufficient reason to refuse this person admission to the Netherlands. the responsible authorities will have to contact the IND. the person should be expelled. Handelingen Tweede Kamer 1999–2000. if a third-country national has a valid (temporary) residence permit for the Netherlands but has been reported by another Schengen state. are they obliged to contact the responsible authorities. the IND should decide on the application. Finally. In 2000. does not fall within the special categories described above and does not file an application for asylum. to decide whether the third-country national should be granted a residence permit. The authority dealing with the thirdcountry national will have to check the lawfulness of the residence permit. Thirdly. if a person applies for a residence permit. a SIS report based on Article 96 CISA should only result in an automatic refusal of admission or in expulsion if this person has no valid residence permit. the third-country national will be entitled to remain in the Netherlands. examine the application for asylum or admission or give leave to enter Dutch territory. no. Only in cases where the officials have doubts about the legal status of this person. the Dutch Minister of Immigration submitted a more stringent interpretation of a SIS alert. he or she should be expelled from the Schengen territory. 25.The Netherlands 463 With regard to third-country nationals applying for a residence permit. the SIS alert should be deleted. During this procedure. 26 732. during the parliamentary debate on terrorism and immigration policy.73 If the residence permit is refused and legal remedies against this refusal are no longer available. The officer involved should inform the IND. According to the Minister. if the person applies for a residence permit and is reported by the Dutch authorities. the Aliens Circular 2000 describes four situations. 12. but has been reported by another Schengen State. if the application concerns a thirdcountry national without a legal residence permit who is reported in the NSIS. this person must be expelled. the Secretary of State for Justice told the Parliament that. the Minister of Immigration also advocated this ‘automatic effect’ of foreign SIS reports on third-country nationals before the Dutch court in the case of Mr. applications for short-stay visas should always be submitted to the Visa Agency. 1–2. Formally.80 3. This means that there is no information on the numbers of alerts stored in 75 76 77 78 79 80 Handelingen Tweede Kamer 2003–2004. Article 96 Hits and Visa Applications The Dutch rules on issuing visas are regulated in the Aliens Circular 2000. Steenbergen (2005). J.1. Therefore. 27 925. even if the Dutch Visa Agency or immigration authority has given leave to issue a visa to a certain third-country national.79 However. the staff of the embassy may still decide to reject the visa application based on the fact that this person has been reported in the SIS.M. 3. p. In cases of doubt. p. As we will see in section 8. hereafter mvv) may only be issued if the Visa Agency has approved the application. political sensitivity. Reaction by the Minister for Immigration to the report of the Court of Auditors on the visa policy (see below).2 Aliens Circular 2000. long-stay visas (or machtiging tot voorlopig verblijf. Its officials and employees. This has been confirmed by an officer of the IND. the responsibility of the embassies themselves has been acknowledged by the National Ombudsman.464 Chapter 13 refused entry” that the person concerned is a danger to public order and security. it is possible that. during the period between updates of this CD-ROM. In general. and Mrs. most of the embassies and consulates were still receiving their information from the CD-ROMS.4.3. 118. no. Moon. however. Kuijer. embassies will be working with outdated files. Only some consular posts are empowered to issue visas autonomously. See for a general overview: A. 62 ff. p. 74.78 The embassies obtain monthly updated versions of the NSIS files on CD-ROM. This means that.5.76 The officials at the Dutch embassies and consulates generally submit a visa application to the Visa Agency (Visadienst) in The Hague. no. under the responsibility of the Minister of Justice (formerly Minister of Immigration). NSIS and Article 96: Facts and Figures The Dutch government does not publish any data on the practical use of the NSIS. B1/1. Handelingen Tweede Kamer 2003–2004. . this person must and in practice shall be refused admission. however. take responsibility for issuing visas to third-country nationals. This problem could be resolved if every Dutch embassy obtained direct access to the NSIS through an international IT network. in 2006. or with regard to certain nationalities (for example China and Iran). operate within the premises and organisation of the IND.77 Staff members of the embassies and consulates do. 9.D.75 As we will see below. this Visa Agency acts on behalf of the Minister of Foreign Affairs. 29 260.4. In the first place. no procedures were in place to record the results of the alerts and the effects of the SIS for police purposes. In 103 cases. 1–2. 25 200. how they were resolved. Audit report.377 in 2005. Handelingen Tweede Kamer 1996–1997. a hit would have led to refusal of entry by the Dutch authorities.81 In 2005. The report by the Court of Auditors on the NSIS was important for several reasons. Audit Report By the Court of Auditors In January 1997. 80% of the 109 foreign hits on reports forwarded by Dutch authorities resulted in a refusal of entry or even expulsion by the authorities in other Schengen states. if so.The Netherlands 465 the NSIS between 1995 and 2006.SIS Exploitation team including data as from 1 January 2003 and 1 January 2005 (unpublished). the Dutch Court of Auditors (Algemene Rekenkamer) published a report on the practical use of the national Schengen Information System. the number of hits based on those alerts or how many third-country nationals were refused entry. the state which reported the person to the SIS was asked to withdraw this alert because the Dutch authorities wanted to give leave to enter to the person concerned. p. In 48% of the 570 hits based on foreign reports. 89% concerned third-country nationals to be refused entry on the basis of Article 96. as well as in response to reported problems within the CSIS system in Strasbourg. no.84 The only information available concerned Article 96 reports. cited in this report. of all the SIS alerts on persons issued by the Dutch authorities. it appears that the number of third-country nationals reported by the Dutch authorities has increased considerably from 9. 3.363 in 2003 to 15. These numbers concerned the period between 1995 and 1996. . From the figures from the CSIS Exploitation team. According to the IND. 8. and – whether there were practical problems and. p. According to the Court of Auditors. 81 82 83 84 Reports of the C. The central questions raised during this inquiry were:83 – whether the national section of the SIS provided for the necessary technical and functional requirements to ensure an efficient use of the NSIS. the organisation criticised the lack of information on the effects of the use of the NSIS. Audit report.5.15. – whether data for the NSIS were submitted correctly and completely.82 The Court of Auditors started this audit because of “the far-reaching consequences of the use of the NSIS for the law and for individual citizens”. a visa or a residence permit on the basis of a SIS report. – whether the available data in the NSIS were used systematically. normal in every new system. Furthermore. the Court of Auditors found that immigrants with a Dutch residence permit were reported by other Schengen States. in many regional police forces. containing information on the functionality and use of the NSIS. Handelingen Tweede Kamer 1996–1997. The audit prompted the authorities to coordinate the use of the NSIS and to solve these problems. As the Court of Auditors admitted in its report.466 Chapter 13 According to the Court of Auditors. 25 200.000 Dutch officials were authorised to retrieve information from the NSIS and more than 500 were allowed to change the data in the NSIS. to clean the national police files and to add relevant information from these files to the NSIS. effective data policy and 85 86 Handelingen Tweede Kamer 1996–1997. the failings found in the operation of the NSIS could be considered “childhood diseases”. the 25 regional police forces applied different criteria with regard to the entry of data into the NSIS. With regard to Article 96 entries. between 1997 and 2006 no such reports were forwarded to the parliament. which means it covered the first years of operation of the SIS. in March 1998 the Minister of Justice announced the measures which had been taken with regard to the entry of data into the NSIS. Following a request from a member of parliament. 4. it would be difficult to reach general conclusions on the practical effects and efficiency of the SIS. due to a lack of information on the current measures taken following hits.85 Earlier in the parliamentary discussions. 4.86 To my knowledge. the Minister of Justice promised to provide the Dutch parliament with a report every six months. The investigation by the Court of Auditors took place between 1995 and 1996. to coordinate the use of the NSIS and to develop national criteria for the input of the SIS data. In response to the parliamentary debate on this report. 8. . it would be necessary to develop a policy for the use of the NSIS in the field of border control by the Dutch police. no. The Court of Auditors advised the government to take measures to facilitate an efficient data policy. 6. the Court of Auditors found that. In many cases. the Minister of Justice stated that the Dutch police would submit data monthly concerning the hits and alerts in the SIS to the IND and that both organisations would discuss the meaning of this information. the Court of Auditors stressed the importance of the integrity of the users. 25 200. The fact that the problems in question were unveiled by the Court of Auditors at this early stage can be seen as an advantage of the practical operation of the NSIS. p. In relation to these findings. no. the Court of Auditors established that more than 7. This lack of information on the efficiency of use of the NSIS has been questioned as well by the Dutch parliament. p. the possibility for recording third-country nationals into the NSIS was unknown. It is important to note the conclusion of the Court of Auditors that. Furthermore. especially Germany. 1. the Dutch authorities failed to act in accordance with the applicable rules with regard to the SIS. p. The central aims of this audit were very general: to investigate the protection of privacy of the NSIS and SIRENE and to assess which measures and procedures are available to protect integrity. Report of 23 October 2003. the CBP 87 88 89 90 91 Letter of 11 March 1997.90 This audit dealt in particular with security issues. 1–2. See p. entrusted with supervising the NSIS. The Court of Auditors did not consider the possibility that there could have been other legal grounds for issuing the visas to the persons concerned. 3. There has been a second evaluation by the Court of Auditors on the implementation of its recommendations. . including the NSIS. 1. 97. November 2004.000 thirdcountry nationals who were refused entry at the borders in 2002.U. since 1997. no. no.The Netherlands 467 security measures.88 In this report.89 According to this report. Handelingen Tweede Kamer 2003–2004. Before publishing the report.789 persons had a valid Schengen visa. The Hague: Registratiekamer. Commenting on these data. In December 1998.6.87 Unfortunately. Twenty-seven persons in this latter group were reported in the SIS and. Rapport no. no. Handelingen Tweede Kamer 1996–1996. 29 260. hereafter CBP) published a report on the audits of the NSIS and SIRENE during 1997 and 1998.91 The audit did not deal with Article 96 alerts in the SIS. Among other things. Audit Report of the Dutch Data Protection Authority The Dutch Data Protection Act (see section 5 below) provides for a national supervisory body. the visas had been issued by Dutch embassies or consulates. The Court of Auditors criticised the fact that Dutch embassy officers did not adequately check international and national files with regard to visa applications. December 1998. 25 200. 4. there has been no such overall and complete audit of the use of the NSIS in the Netherlands. 4 of the report. in these eight cases. the Court of Auditors dealt briefly with the use of the NSIS with regard to the issue of visas. the Court of Auditors found that the national database on visa applications (see below) was not systematically used or updated by the various consular posts. exclusivity and availability. the Court of Auditors published an audit report on the Dutch implementation of the Schengen visa policy. the Court of Auditors concluded that.189. Handelingen Tweede Kamer 2003–2004. in eight cases. Privacy audit NSIS. In 2003. 29 260. the SIRENE offices and one of the regional police forces. 40. The information was gathered from visits by members of the CBP to the premises of the Dutch police and from written questions submitted to the organisations concerned. this Dutch Data Protection Authority (College Bescherming Persoonsgegevens. The CBP visited the KLPD. of the 15. without prior notification to the originating authorities. These responses are included in the report of December 1998. there were too many users with insufficient knowledge of the relevant privacy regulations and seven ‘super users’ (technicians who.92 In 2004. The CBP also criticised security policy and – planning. where three would have been enough. Annual report of the CBP for 2004. The CBP advised doing this periodically. public authorities dealing with third-country nationals have been required to exchange their data with the Dutch Immigration and Naturalisation 92 93 According to a spokesman for the CBP.468 Chapter 13 allowed these organisations to respond to the conclusions and to describe what improvements could be made. the CBP emphasised that there were serious shortcomings in the field of formalisation. will be discussed in section 5. p. According to the CBP. In its findings. implementation and the control of the procedures of data processing and management. The CBP recommended that the authorities improve the management of expiring alerts. was not very detailed.5 below. in the exercise of their work. Intermezzo: Dutch Policy with Regard to the Administration of Data on Third-Country Nationals 4. In reaction to this finding. According to the CBP. General Administration of Immigrants Since 1994. 4. two alerts in the SIS were deleted by the CSIS after expiry of the time limit. no other audits have been undertaken due to a lack of financial and practical means. the KLPD informed the CBP that a list of expiring alerts is periodically submitted by SIRENE to the regional police stations. The Ministry of Justice and the police force involved stated in their response that measures were undertaken to repair the shortcomings described in the audit report. however. the results of this were not published. In 2000. 53.1. the control of logical access to the systems and the administrative organisation of the use of the system and its information. there was limited follow-up of the 1998 audit. have access to all the SIS files and clearances). . the Dutch CBP submitted a report on the implementation of Article 96 CISA to the Schengen Joint Supervisory Authority. the CBP noted that the SIRENE office did not check the legality of requests concerning SIS information. The CBP also discovered that it was possible to gain unauthorised access to the NSIS databases. Since 2000.93 This report which. Furthermore. including documents which have been issued by foreign authorities. – an index file.98 94 95 96 97 98 This obligation was based on Article 48 of the Aliens Act 1994. 25 October 1999. no. 26 106. the BVV contains information on every third-country national admitted or holding a residence permit. 2. This system has been operational since the end of 1995 and was linked to the civilian population administration held by the municipal authorities (Gemeentelijke Basis Administratie or GBA). and – a biometric file. – a ‘document’ file. including documents which have been issued by Dutch authorities to the person concerned. . except short-term visitors who are admitted on the basis of Article 12 of the Aliens Act 2000 and who are not obliged to report to the national authorities within three days of their entry into the Netherlands. In principle.95 The BVV is a system providing different organisations involved in immigration policy with access to the personal and administrative data of 2. On 15 June 2003.96 The establishment of the biometric file within the BVV is a measure taken by the Dutch government in the light of the future implementation of VIS. Tourists and other third-country nationals admitted for a period of up to three months and EU nationals are not registered in the BVV. This system holds different data files. no. Staatscourant 13 June 2003. address.48 of the Aliens Decree 2000 and Article A3/7. hereafter the VAS). etc. not to be confused with the VIS at EU level). 111. including references to every decision or measure which has been taken with regard to the third-country national. The BVV is regulated in section A1/6.94 This mutual exchange of data on third-country nationals was facilitated by the establishment of a general database on thirdcountry nationals (Vreemdelingen Administratie Systeem. 22 112. photographs and the signature of the person concerned. Articles 4. hereafter the BVV).5 million third-country nationals.47 and 4. and vice versa. Handelingen Tweede Kamer 2004–2005.6 of the Aliens Circular 2000. including: – a personal registration file with name. no. date and place of. 364. including fingerprints. Handelingen Tweede Kamer 1999–2000. this is now regulated in Article 107 of the Aliens Act 2000. the VAS was incorporated into the so-called Common Immigration Network (Basis Voorziening Vreemdelingenketen. nationality.97 With regard to visa applications. – a ‘card’ system. embassies and consular authorities report each visa issued into the Dutch visa information system (abbreviated to VIS.The Netherlands 469 Department..3 of the Aliens Circular 2000. The Dutch Linking Act and the Violation of Various International NonDiscrimination Clauses. European Journal of Migration and Law 2000. if the immigration officer considers this necessary. p.101 4. HAVANK is linked to the BVV and. 1. Unlike the NSIS.2. Migrantenrecht 5–6. 168–174. The Use of Biometric Data 4. See also E. Registratie van gegevens en de Koppelingswet. with regard to the data on asylum seekers. p. 1998.99 This law was established to prevent the use of social security. . The implementation of this law is closely related to the establishment and improvement of the computerised national files. Article 54 Aliens Act 2000 requires a third-county national to provide the national authorities with certain information and to cooperate with identification measures. This practice was formalised by Royal Decree in 1994. the third-country national must provide an accurate photograph and. housing or financing facilities. Brouwer. Details of this obligation have been elaborated in Article 4. Royal Decree (Koninklijk Besluit) 30 December 1993.100 If a person is not registered with the Dutch municipal police. As we have seen in the previous chapters. partly because of the major role this system could play in its expulsion policy since it would contain biometric data on every visa applicant. 13. The establishment of VIS was fully supported by the Dutch government. Staatsblad 1994. medical care and other public facilities by individuals who are residing irregularly in the Netherlands.45 Aliens Decree 2000. based on forthcoming EC laws. Handelingen Tweede Kamer 2003–2004. 29 344. this person generally should not be given access to one the facilities mentioned above. 203.102 The fingerprints of asylum seekers and third-country nationals who cannot be identified are recorded in the national ‘HAVANK system’. one could say that the Dutch Linking Act is based on the principle that registration means inclusion.2. fingerprints are taken of every third-country national applying for asylum. p. every visa applicant planning to seek entry to the Netherlands will have his or her fingerprints taken and stored in the European VIS. a third-country national who is not an asylum seeker can only be asked to have his photograph or fingerprints taken if this is 99 100 101 102 103 Staatsblad 1998. no. he must cooperate in having his photograph or fingerprints taken. 8. If requested.1. Third-Country Nationals and their Biometrics In the Netherlands. population or immigrant files.470 Chapter 13 A special measure of Dutch immigration law policy is included in the socalled Linking Act (Koppelingswet) of 1998. no. 185–201. which is based on the principle that registration means exclusion. to Eurodac as well.103 According to the general rule. P. no. Minderhoud. but also in the private sector and for securing passports and ID documents by every EU citizen.M. The Supreme Court condemned the behaviour of immigration officers because not only had they unlawfully withdrawn the passports of the applicants. currently this measure seems to be considered an appropriate identification tool for all kinds of reasons. the fingerprints of asylum seekers were automatically compared to the available data in HAVANK. but also to check whether the asylum applicant posed a risk to public order and security. Article 6 (1) b of EC Directive 95/46 on the protection of personal data prohibits 104 Hoge Raad 19 February 1993. The Supreme Court emphasised that the taking and processing of fingerprints represent a breach of the right to private life as protected in Article 8 (1) ECHR. Whereas. it would only be appropriate under exceptional circumstances to take his or her fingerprints. at both EU and national levels.2. Recent developments. In the light of the developments since 1993. Fernhout and J. Nijmegen: Ars Aequi Libri 1994. If the person in question obtains a valid passport or comparable document which proves his identity.D. 70. immigration or asylum policy. before taking fingerprints.The Netherlands 471 considered necessary by the officer in charge. Initially.2. 14917 in: R.104 In this judgment. whose fingerprints were taken during an identity check. Via Interpol. illustrate that there is a shift in thinking about the scope of the right to private life and the question of whether the taking of fingerprints constitutes a breach of that right. in 1993. Shared Use of Data on Criminals and Asylum Seekers The aforementioned HAVANK system is also used for criminal investigation purposes. Steenbergen. no. it would be interesting to find out whether the Supreme Court would uphold this interpretation of Article 8 ECHR. Rechtspraak Vreemdelingenrecht 1993. This comparison was meant not only to assess whether the person had previously applied for asylum. . they had also taken their fingerprints. these fingerprints were transferred to other States. the fingerprints of the recorded asylum seekers were automatically checked as well. Even if there are grounds for believing the passport or document to be fake or falsified. the national authorities would still have a duty to consider other means of finding out whether the document is genuine or not. As we saw in Chapter 7. the Supreme Court dealt with a claim from a woman who held both British and Nigerian nationality and her Nigerian partner. no. Before 21 October 2001. every time police officers or public prosecutors used HAVANK for criminal investigation purposes. there was general agreement that the taking of fingerprints was an intrusive measure. This rule has its origins in a decision of the Dutch Supreme Court (Hoge Raad ) of 1993. 4. This applies not only in the field of criminal investigation. Examples of such crimes. In the first place. 645. 19 637. Catz & Guild (2003). no. Since the new Dutch Data Protection Act implementing this EC Directive entered into force on 1 September 2001. 65–66.109 It was proposed that the Dutch Aliens Decree be amended. According to this principle. the condition that reasonable doubt must exist that the suspect is a third-country national does not apply. mentioned by the Minister. according to a letter from the Minister of Justice. .107 In these situations. no. law enforcement authorities are only granted access to data regarding third-country nationals if they can establish concrete reasons to believe that the suspect is a third-country national. since it would be contrary to international data protection principles. personal data stored for immigration law purposes cannot be used for other purposes. 19 637. 18 January 2002. p. Since 2001. in: Brouwer. some members of parliament expressed their disappointment with the fact that data on third-country nationals in HAVANK were no longer automatically accessible for both immigration law and law enforcement purposes. by adding a sentence stating that the data taken from immigrants or asylum seekers will also be used for criminal investigation purposes. 12 April 2002. This proposal was rejected by the Dutch Minister of Justice. Handelingen Tweede Kamer 2001–2002. See also Handelingen Tweede Kamer 2001–2002. 645. not explicitly defined purposes. 635.108 In January 2002. in his answers to parliamentary questions.110 105 106 107 108 109 110 Handelingen Tweede Kamer 2000–2001. rape or terrorist acts with potentially serious effects. Handelingen Tweede Kamer 2001–2002. no. 19 637. the Dutch Minister of Justice was obliged to take measures to stop this combined use of HAVANK. Letter of the Minister of Justice.472 Chapter 13 information processed for one purpose from being automatically used for other.105 In December 2001. 583. include murder. 3. The Netherlands: Small steps on beaten tracks. 19 637. 3. this criterion has been extended twice by the Minister of Justice. 19 637. law enforcement authorities may check the information on third-country nationals in HAVANK during criminal investigations with regard to serious crimes affecting ‘the social legal order’ (maatschappelijke rechtsorde). 19 637. the Minister of Justice described the new practice to be followed with regard to the use of fingerprints of third-country nationals for law enforcement purposes with effect from 25 October 2001. p. See also Petra Catz on the parliamentary discussion on the use of fingerprints. Handelingen Tweede Kamer 2001–2002. such as criminal investigations. the Minister of Justice clarified that law enforcement authorities could also have access to data on third-country nationals if they were being sought as witnesses. 22 January 2002. 22 January 2002. no. 642. p. no. 10 December 2001. Secondly.106 Under the new situation. 663. no. Handelingen Tweede Kamer 2001–2002. 13. 1.The Netherlands 473 However.115 However.2. the technical development of this passport and the ongoing discussions at international level on the choice of biometric features hampered 111 112 113 114 115 Answers by Minister of Justice to parliamentary questions. no. the government found such a measure necessary and proportional. A pilot project was launched in June 2005 in Lagos. in June 2001 the Dutch parliament agreed with the proposal to enter biometrics into Dutch passports to fight identity fraud. Aanhangsel. the Dutch government proposed including biometrics in the national passport. in the identification of the person concerned. no. Handelingen Tweede Kamer 2004–2005. 1 November 2005. Between September 2002 and March 2004. as we have seen in Chapter 5.111 4. Storing Biometric Data for Expulsion Purposes In 2003. no. at the EU level the Netherlands supported the proposal to give law enforcement agencies. together with Germany. respectively security agencies access to Eurodac and the VIS. . During discussions with the government. 28 342.113 4. Annex to Handelingen Tweede Kamer 19637. 986. no.114 A draft proposal for a new passport including biometric data was submitted to the Dutch Parliament in April 2002. Referring to “the justified fear of illegal immigration”. 17. 29 344. Handelingen Tweede Kamer 2000–2001. since it would infringe the right of privacy of the individuals concerned. Handelingen Tweede Kamer 2003–2004. see also Rapportage Vreemdelingenketen mei t/m augustus 2005. 1527.4. p. in 49 cases. can be considered one of the forerunners with regard to the development of a passport that includes biometric data.112 The scanning of their fingerprints. Biometrics and Passports and Identity Cards The Netherlands. Even in 1998.2. no. Handelingen Tweede Kamer 2003–2004. would make it much easier to establish the identity of these asylum seekers and the airline on which the person travelled to the Netherlands. in combination with the duty of air carriers to make a copy of travel documents. 43. Handelingen Tweede Kamer 2001–2002. 1. there were 101 requests by the public prosecutor to check the HAVANK database of fingerprints of third-country nationals for investigation purposes: these requests would have resulted. 29 344. The government recognised that a legal basis would be necessary for such a measure. no. 25 764. Italy and the UK. the Dutch government proposed the use and scanning of biometric data from asylum seekers by airlines for the purpose of facilitating the return of rejected asylum seekers.3. where International Liaison Officers take fingerprints from immigrants before they board an aeroplane to the Netherlands. Letter of 10 September 2004.116 4. the BVV. no. The CBP warned against merging the tasks of the police and the intelligence and security agencies and was especially concerned about the protection of a large group of non-suspects. In 2006. this would mean that persons using a false identity 116 117 118 119 120 Handelingen Tweede Kamer 2005–2006. p. 2–3. the government emphasised the necessity of linking different databases and the use of biometrics. 29 200 VI. . the Minister of Justice proposed the compulsory storage of biometric data from every person using a false identity.nl. no. Immigration Files. 30. using risk profiles and matching different databases. the Dutch Data Protection Authority or CBP explicitly disagreed with this new policy. 3. in a policy note on the use of border controls in the fight against terrorism. This would mean that.117 One of the proposed measures was to give the Dutch Intelligence and Security Agency access to the central aliens administration. 3 February 2006 Handelingen Tweede Kamer 2005–2006. 166. no.119 In its response to this letter. the Dutch government decided to launch a feasibility study into the possibility of including a “national security test” in the regular immigration procedure. The new emphasis on ‘data control’ resulted in other proposals for the use of biometrics. the Dutch government finally decided to introduce the electronic passport on 26 August 2006. Implementing Regulation 2252/2004 on the EU passport. the government also stressed the importance of ‘screening’ visa applications using biometrics and by defining the nationalities and categories of person whose visa applications would have to be forwarded to the national intelligence and security agency. On the same occasion. 29 754. the Ministers of the Interior and of Justice stated that. In a letter dealing with the policy of tracing suspected terrorists on its territory. 1.120 According to the Minister. Handelingen Tweede Kamer 2003–2004.cbpweb. the Minister supported “random public and private identity controls” in the fight against identity fraud. Letter from the government on the use of border controls in the fight against terrorism. every application for admission would be checked against the risks to national security.118 In this note. 25764. matching and analysis of information on groups of persons is the key to preventing terrorism”. 24 October 2003. Handelingen Tweede Kamer 2003–2004. “The collection. Border Control and the Fight against Terrorism In response to a recommendation by the Advisory Committee of Immigration Affairs on Immigration Policy and Anti-Terrorism Measures. 30 315. including the use of DNA materials.474 Chapter 13 the final decision-making.3. no. Ministry of Justice. In a letter of 7 June 2004. The letter of the Data Protection Authority of 22 September 2004 can be downloaded from http://www . Press release. 28 685. This fact resulted in new control measures being considered justified. 29 854. According to reports by the Dutch Intelligence and Security Agency. no. 70. including new methods of risk profiling. Act of 28 December 1988. committed by a Dutch national with a Moroccan background. no. connecting immigration and criminal law data.124 An important reason for the establishment of this committee was to remove society’s resistance to plans for the computerisation of the 121 122 123 124 Draft decision on the amendment of the Regulation on the use of DNA during criminal investigation. However. In a letter of 10 November 2004 to the parliament. 43. 7 July 2004. This draft was only questioned by members of the Dutch Senate.The Netherlands 475 “would not be able to know. Alarmed by these protests. the murder of Theo van Gogh. the Netherlands was certainly no pioneer in the development of data protection law. the new focus on internal security was certainly also triggered by the murders of the Dutch politician Pim Fortuyn on 6 May 2002 and of Theo van Gogh on 2 November 2004. even in relation to minor offences. seemed to have changed the political agenda. 30 June 2004. no. 3. the urgent need for new security and antiterrorism measures felt by Dutch politicians was in the first place a reaction to the events of 11 September 2001 and. 29854. Handelingen Tweede Kamer 2004–2005. 665. Rights and Legal Remedies for Individuals under Data Protection Law 5.122 5. the events in Madrid and London. no. Handelingen Eerste Kamer 2003–2004. Royal Decree (Koninklijk Besluit) 21 February 1972. later. 3. Theo van Gogh’s murderer was a member of a group of young fundamentalist Muslims. in 1972 the government established a National Committee on the Protection of Privacy with regard to the Registration of Personal Data. Staatscourant 1972. no. where. just 040640. Staatsblad no. The political debate on the need for data protection law started in 1970–71 in response to civil protests against the proposals for a central population file and the use of information technology for a national census. Also in 2004. .123 Compared to other countries. In particular.121 As in the other Member States. preparing further attacks on Dutch soil. Background to Dutch Data Protection Law The first Dutch Data Protection Act (Wet Persoonsregistraties) entered into force in 1989. the Ministers of the Interior and Justice describe the measures they think are necessary. This Koopmans Committee (named after its chairman) was instructed to prepare a recommendation on the need for legislation to protect privacy.1. when and how they will be caught”. the Minister of Justice proposed registering the DNA of every (suspected or convicted) criminal in the Netherlands. Handelingen Tweede Kamer. C. 32. Ieder heeft. 28 September 1974. 3. this draft was also criticised because the proposed rules would excessively hinder the use of databases.476 Chapter 13 government files. alsmede op verbetering van zodanige gegevens. 2. for example because it required licenses for each registration of personal data. including a draft of a general data protection act. three additional incentives existed for the Dutch legislator to come forward with a proposal. The Hague: Staatsuitgeverij 1977. In July 1985. no.128 At the time this draft was published.129 125 126 127 128 129 As formulated by Ch. p. the Minister of Justice submitted a second draft for a general data protection act. the central conditions of this law were: making data processing transparent. NJB. The first incentive was the incorporation of the right to privacy with regard to data processing as a basic right in the Dutch Constitution in 1983. Another objection was the fact that this draft lacked clear and general principles and did not take into account the new developments in information technology. Article 10. 3. there would not have been a Koopmans Committee”. Handelingen Tweede Kamer 1981–1982. De wet stelt regels ter bescherming van de persoonlijke levenssfeer in verband met het vastleggen en verstrekken van persoonsgegevens. everyone has the right to privacy. was strongly criticised by both parliament and civil society. The law regulates the right of individuals to be informed that their personal data is being recorded or used. 2. in: Het interimrapport-Koopmans: een discussiebijdrage. protecting the position of data subjects and establishing independent supervision. 1030. largely based on the Koopmans draft. 19 095.125 It took five years for the Koopmans Commission to publish its report. p. 1–3.127 This draft. 1–2. This proposal was considered too centralist and bureaucratic. recht op eerbiediging van zijn persoonlijke levenssfeer. afl. Eindrapport Staatscommissie Koopmans Privacy en Persoonsregistratie. Handelingen Tweede Kamer 1984–1985. as well as to correct these data. no. . The law regulates the right to privacy with regard to the recording and provision of personal data. 28.2 of the Dutch Constitution reads: 1. According to the report from 1977. “without the actions against the census.126 It was not until 1981 that the government submitted a first draft for a Data Protection Act to the Dutch parliament. 17 207. behoudens bij of krachtens de wet te stellen beperkingen. Subject to the limitations of or pursuant to the law. In the private sector. Article 10: 1.J. Enschedé at that time. De wet stelt regels inzake de aanspraken van personen op kennisneming van over hen vastgelegde gegevens en van het gebruik dat daarvan wordt gemaakt. Tjeenk Willink 1995.J. 302. were exempt from this duty. after the Dutch regulation on sensitive data was also adopted. such as client or patient records. Zwolle: W. researchers published two evaluation reports regarding the Data Protection Act of 1989. Alphen aan den Rijn/Diegem: Samsom Bedrijfsinformatie bv. The results of the two evaluations.The Netherlands 477 Secondly. 5 and 8. In het licht van de Wet persoonsregistraties: zon. Tractatenblad 1993. together with the necessary modifications to EC Directive 95/46..E. known as the Registration Chamber (Registratiekamer). the private sector was encouraged to develop specific data protection rules. Moreover. This first Dutch Data Protection Act (Wet Persoonsregistraties) provided for a duty to report personal data records to a central data protection authority.J. for the parliamentary discussions. Prins et al. in 1995. As we will see. Overkleeft-Verburg. it became clear that new legislation would be necessary. Norm. it was established that the Data Protection Act had relatively little influence on the actual behaviour of data subjects and data controllers. Wet persoonsregistraties. this Directive was to be implemented before 24 November 1998.132 In these evaluations. Staatsblad 2000. formed the basis of the draft of a new legislation. toepassing en evaluatie.131 The proposal of 1985 was formally adopted in 1989. it only entered into force for the Netherlands on 1 December 1993. in order to implement the provisions of EC Directive 95/46 on the protection of personal data. Whereas this draft required self-regulation for files in the public sector. The new Act on the Protection of Personal Data (Wet Bescherming Persoonsgegevens. however. Handelingen Tweede Kamer 1984–1985. and G. Furthermore. no. hereafter the WBP) entered into force on 1 September 2001. Individuals would not be aware of their rights according to the Data Protection Act and they would lack information on the use of their data held by public and private organisations. no.130 The provisions of the new draft for a data protection law were less extensive and more positively received. nos. the development of data protection law in neighbouring countries motivated the Dutch legislator not to wait any longer to adopt a national law.E. See. The Data Protection Act differentiated between private and public files. Standard files. the Data Protection Act of 1989 provided for legal remedies for the individual in the civil courts. . the ratification of the Data Protection Convention of 1981 required the adoption and implementation of national data protection law. since the lack of a national data protection law would prevent international data exchange with those countries. irrespective whether the data file concerned was held by a public authority or a private organisation. maan of ster?. As we have seen above. 157. In 1995.133 This was three years 130 131 132 133 The treaty was signed by the Dutch government on 21 January 1988. 1995. the regulations which were drawn up for the NSIS and SIRENE files in 1994 were based on this obligation from the former Data Protection Act. Finally. 19 095. See J. Act of 6 July 2000. 478 Chapter 13 after the deadline for implementation of the EC Directive 95/46 had expired. The WBP removed the general difference between public and private files, except for the criteria of legal purposes for the processing of personal data and with regard to the regulation on legal remedies. Compared to the previous law, the national Data Protection Authority (with a new name: College Bescherming Persoonsgegevens, hereafter CBP) acquired additional powers, including the power to impose administrative fines and to use coercive measures. The terminology used in the WBP is more in line with EC Directive 95/46. Among other things, the new WBP envisages a decentralised control mechanism, via the appointment of data protection officers within private and public organisations. Furthermore, the WBP includes a simplified reporting system which only applies to computerised databases. The duty for data controllers in the public sector to draw up and publish specific regulations on the use of their data files has been withdrawn. According to Article 45 WBP, a decision with regard to a request for access, correction or deletion of personal data taken by an administrative authority falls within the scope of the Dutch Administrative Act, or Algemene Wet Bestuursrecht (AWB). This means that, with regard to those decisions in relation to the use of the NSIS, the general administrative rules apply (see further below). Apart from the general rules in the WBP, sectoral laws also apply to the processing of personal data in specific fields. Since 1955, a special act has applied with regard to the use of judicial and criminal files.134 The aforementioned law regarding the civil population administration of the municipal authorities (Wet Gemeentelijke Basisadministratie) of 1995 also includes specific data protection standards. The Act on Police Files of 1990 (Wet Politieregisters) also applies to data recorded in the SIS for police and criminal investigation purposes.135 5.2. NSIS and the Applicable Rules on Data Protection The WBP applies to data registered on the basis of Article 96 CISA. With the new WBP, the former duty to draw up separate rules for public files has been replaced by a duty to report these files to the Dutch Data Protection Authority.136 In accordance with Article 27 WBP, the authorities responsible for public files have to include information in these reports about, for instance, the authority 134 135 136 Wet op de justitiële documentatie en de verklaringen om het gedrag, Staatsblad 1955, no. 395. Act of 21 June 1990, houdende regels ter bescherming van de persoonlijke levenssfeer in verband met politieregisters, Staatsblad 1990, no. 414. The legislator is preparing a complete revision of this law. Based on the former law of 1989, specific rules (reglementen) were adopted for NSIS and SIRENE with regard to the data on third-country nationals, published in: Staatscourant 90, 16 mei 1994, p. 17–18. These rules no longer apply. The Netherlands 479 responsible for the data processing, the data which are to be recorded, the purpose of the data processing and the authorities or organisations which have access to the data. The reports can be consulted on the public website of the Data Protection Authority. It is, however, difficult to find a report of a specific registration without knowing the number of this report. In the report on the NSIS which was submitted to the Dutch Data Protection Authority, the KLPD and the IND both declare themselves responsible for the NSIS.137 This means that a data subject may contact both organisations when requesting information about being registered in the NSIS, or when applying for correction or deletion of his data. However, as we will see below, based on an informal agreement between the KLPD and the IND, every application regarding SIS alerts, including those concerning third-country nationals to be refused entry, is dealt with initially by the privacy officer of the KLPD. 5.3. Duty to Inform the Data Subject Articles 33 and 34 of the Dutch WBP describe the duty of the data controller to inform the data subject with regard to the processing of his or her data. In accordance with the provisions of Articles 10 and 11 of EC Directive 95/46, Dutch law differentiates between two situations. Firstly, Article 33 WBP describes a situation where the data controller collects the information from the person himself. At the time of this collection, the person is to be informed of the identity of the authority responsible for the data processing, the purpose of the data processing, as well as any further information which is necessary to guarantee the ‘proper and fair processing of the information’. The duty to inform does not exist if the person already has this information. The second rule in Article 34 WBP concerns a situation where the information has not been obtained from the data subject personally. This provision will, in my view, apply mostly to Article 96 CISA reports in the NSIS. According to Article 34 WBP, the data subject has to be informed at the time the information is stored or, if the information is meant to be disclosed to third parties, at the time the data is disclosed for the first time. However, three important exceptions to this principle exist. Firstly, the duty does not apply if the data subject already has this information. Secondly, the duty to inform does not apply when the provision of such information would be impossible or would require a disproportionate effort by the responsible authority. If this exception applies, the data controller 137 Report no. 1230270, available in the public register of reports (meldingen) on the website of the Dutch Data Protection Authority: http://www.cbpweb.nl. 480 Chapter 13 has to make a record of the source of the information concerned (Article 34 (4) WBP). Thirdly, the duty to inform the person concerned does not apply if the recording or disclosure of this information is explicitly envisaged by national law. In the latter situation, the data controller has to inform the data subject at his or her request about the legal provision which is the basis for the storage or disclosure of the information about him or her (Article 35(5) WBP). With regard to the NSIS, none of these exceptions seems to apply. Firstly, an individual reported in the NSIS for the purpose of non-admission is not informed of this registration. A person against whom a formal residence ban has been issued is informed of the formal residence ban, but not the SIS alert. Also, persons falling within the second category (‘reported as inadmissible’) are generally not informed at all. During interviews held for this research, spokesmen for both the KLPD and the IND held the view that the persons reported in the NSIS would generally be aware they had done ‘something wrong’ and, for that reason, would know about their NSIS registration. However, as we have seen above, there are many situations in which a third-country national will not be aware he or she is reported in the SIS, for example when he or she is prosecuted (but not convicted) for a drugs crime or suspected of having connections with terrorist networks. But also a person leaving the Netherlands without reporting this to the local authorities can be reported in the SIS without his knowledge. It was also assumed that it would be too difficult to locate and inform all persons of their registration in the NSIS. For these reasons, it was not considered necessary or feasible to inform third-country nationals personally at the time of registration. However, this argument does not apply to persons who have been issued a formal residence ban. As we will see below, this decision is to be given in person and to include information on the reasons for this decision. It does not seem a disproportionate effort to add to this information that he or she will also be reported in the NSIS. With regard to the second category, perhaps this argument applies to persons who have already left Dutch territory and are difficult to trace. Even in these situations, however, it should be possible to inform the legal representative of the person concerned or to leave information at the person’s last known address. A third reason why the aforementioned exceptions do not apply is the fact that, as we have seen above, both categories of decision lack a formal legal basis. The formal residence ban itself is envisaged in the Aliens Act 2000, but the fact that the person will be reported in the NSIS is not. The second category of reported third-country nationals is only envisaged in the Aliens Circular 2000. To summarise, this would mean that the failure of national authorities to inform third-country nationals of the fact that they have been reported in the NSIS is in breach of the Dutch WBP as well as EC Directive 95/46. The Netherlands 481 5.4. Right to Access, Correction or Deletion of the NSIS Data According to Articles 109 and 110 of the CISA, the right of an individual to request access to, correction or deletion of his or her data held in the SIS can be asserted in each Schengen country in accordance with the law of the state in which it is asserted. With regard to the Dutch NSIS, these rights are laid down in Articles 35–36 WBP. In 2005, only ten years after the SIS became operational, a new section was included in the Aliens Circular 2000, describing the procedures to be followed by the Dutch immigration and police officers when dealing with an individual request for deletion.138 In principle, data subjects may forward their requests for access, correction or deletion directly to the responsible authorities concerned, which means either the IND or the Department of National Investigation and Information (DNRI, formerly the CRI) of the Dutch police force, KLPD. The shared responsibility between the KLPD and the IND with regard to the entry of third-country nationals into the NSIS used to cause confusion for third-country nationals and their lawyers with regard to which authority was to be addressed. In order to solve this problem, both organisations reached an unpublished ‘working arrangement’ on how to handle the requests mentioned above. On the basis of this arrangement, the IND will forward all requests regarding an Article 96 alert to the privacy officer of the KLPD. Even if the alert has been registered in the NSIS, the KLPD will be asked to consider the application first. This means in practice that when an applicant applies to the IND for the withdrawal of a Dutch Article 96 alert, this request is first forwarded by the IND to the KLPD. When the latter organisation establishes that the person has been reported in the NSIS by the Dutch authorities, the request will be returned to the IND. The Dutch Data Protection Authority was not involved in the negotiations on this arrangement. The individual applications as described above should be answered in writing within four weeks. The privacy officer of the KLPD received approximately 100 requests for information regarding NSIS alerts in 1998.139 Since 2004, the number of request has been approximately 200 per year, 80% of which concern Article 96 reports.140 These numbers have not been published. 138 139 140 Wijziging Vreemdelingencirculaire, Decision no. 2005/29, Staatscourant 23 June 2005, no. 119. Dutch inquiry made for the Justice report: The Schengen Information System. A human rights audit SIS (2000). According to the data protection officer of the KLPD. No official data have been published. 482 Chapter 13 5.5. Role of the Data Protection Authority The tasks and powers of the Dutch Data Protection Authority or CBP are described in Articles 51–74 of the WBP. Since data subjects may submit their requests for access, correction or deletion directly to the data controller in question (see above), the CBP only intervenes when complaints between the individual and the competent authority cannot be resolved. This explains why the Dutch Data Protection Authority is relatively rarely involved with regard to complaints or questions about the use of the NSIS. If an individual requests access to his or her data in the SIS in one state and the data has been forwarded to the SIS by another Schengen state, the requested state will contact this latter state if the subject can be granted access to his or her data (according to Article 109 of the CISA). In the Netherlands, the data protection officer of the KLPD himself will make contact with the foreign authorities in the reporting state. Only if this officer does not receive a (timely) response from the reporting state, the CBP will be asked to intervene. Between 1995 and 2000, the CBP received only four complaints with regard to the NSIS. In 2004, approximately ten complaints dealing with the NSIS were forwarded to the CBP.141 The CBP has investigative powers, either at its own initiative or when requested by an interested party.142 The CBP may start an audit with regard to the data processing of any organisation, in both the public and private sectors. During this audit, the members of the CBP are entitled to gain access to the premises of the data controller without his or her permission (Article 61 (2)). The possibility for the Dutch CBP to impose a financial fine is limited to the situation where the responsible authority has violated the rules on reporting the data processing. This means that the CBP cannot impose a fine if the data owner violates the rules on the fair use of the personal data, the rules on data retention limits, security or accuracy. The CBP also has no power to impose a fine if a data controller does not respond within the prescribed time to a request for access to personal data. For the JSA inquiry in 2004 regarding Article 96 entries (mentioned in section 3.6), the CBP requested the cooperation of the Dutch police organisation and the IND.143 For this inquiry, the CBP only investigated 15 or 0.1% of the 12,167 Dutch alerts on third-country nationals which were held in the NSIS in 2004. According to a staff member of the CBP, the choice for this small-scale review was related to the limited time and capacity of the CBP. The information submitted to the JSA with regard to the Dutch implementation of Article 96 141 142 143 According to a spokesman for the Dutch CBP. Article 60 WBP. I received the Dutch reports from the CBP following a formal application for access to public documents. The Netherlands 483 CISA has been scarce. It did not include any details on the criteria being used for reporting third-country nationals as ‘inadmissible’. Nor did it describe any individual case studies. Generally, the CBP found, with regard to these alerts, that the data were accurate, up to date and lawfully processed. The CBP only found irregularities with regard to two out of 15 alerts in the NSIS, which is still more than 10%. In one case, the CBP found that the entry of a report on an irregular migrant had no legal basis. In the other case, the CBP found that the time limit for the storage of an alert had been exceeded by two months. The findings of this inquiry have not been published and were only submitted to the responsible authorities in 2006. Unlike the annual reports of the German data protection commissioners, the annual report of the CBP does not include any details of the findings.144 As in other countries, the Dutch Data Protection Authority is under-resourced to perform all its legal tasks. In 2006, the CBP publicly announced that it was forced to interrupt its work with regard to giving advice or information in more complicated matters because of a lack of sufficient means. In the longer term, this work could be reduced by applying more stringent criteria with regard to new requests for information.145 5.6. Right to Legal Remedies According to the former Data Protection Act of 1989, the data subject had access to the civil courts with regard to data processing in both the public and private sectors. Since this was considered more logical, the current WBP differentiates between the private sector and the public sector (Articles 45 and 47). The administrative court is now competent with regard to individual appeals against data processing within the public administration. With regard to data processing in the private sector, the individual still has to apply to a civil court. Since the WBP applies to Article 96 alerts, a third-country national has a right to appeal according to the rules of administrative law. The right to a legal remedy concerns the following decisions: – the refusal to inform the data subject of whether his or her data is processed (Articles 30 (3) and 35 (1) of the WBP); – the refusal to give the person access to his or her data (Article 35 (2)); – the refusal to correct or delete the information concerned (Article 36); and – the refusal to inform the data subject of the third parties who received information regarding the data subject and those who were informed of the fact that this data has been corrected or deleted, as requested by the data subject (Article 38(2)). 144 145 Annual report of the CBP for 2004, p. 53. CBP, Press note of 7 August 2006, http://www.cbp.nl. 484 Chapter 13 The decisions are regarded as decisions taken by an administrative authority under Dutch administrative law (Article 45 WBP). Paradoxically, unlike the WBP, the Act on Police Files of 1990 maintained the competence of the civil courts. If a person has been refused access, correction or deletion of his or her data in a police file, he or she may lodge an appeal to a civil court against this refusal within four weeks (Article 23 (1) and (6) of the Act on Police Files). We will see below that, when dealing with an application as referred to above, the civil court of Haarlem ordered the Spanish government to withdraw an alert concerning an extradition warrant (Article 95) from the NSIS. 6. Rights of Third-Country Nationals under Immigration Law146 6.1. Application of Principles of Administrative Law The general administrative law incorporated into the Dutch Act on Administrative Law (Algemene Wet Bestuursrecht or AWB) applies to the procedures for review and remedies under immigration and visa law. Decisions to refuse entry, access or a visa, as well as the failure to decide within the prescribed period, are considered an administrative decision by the responsible authorities. The administrative procedures of review and (higher) appeal apply to these decisions (or lack thereof ). The Aliens Act 2000, however, includes some important exceptions to these general rules of administrative law. These exceptions include shorter time limits with regard to the exercise of the right to appeal and longer periods in which the authorities or the court may deal with the appeal. Furthermore, the Aliens Act 2000 provides for specific rules with regard to the competence of the court, the scope of review and the suspensive effect of a court decision. Decisions on visa applications and applications for a temporary residence permit are explicitly considered administrative decisions (beschikking) to which the right to an administrative review and appeal applies (Article 72 of the Aliens Act 2000). Also, practical measures by the public authorities against third-country nationals are considered administrative decisions. As we will see below, in section 7.2, based on this wide interpretation of an administrative decision, the Dutch courts rejected the narrow view of the Minister of Immigration and the IND, according to which a report in the NSIS on third-country nationals is not an administrative decision or act. As a consequence of the applicability of administrative law, the general principles of fair administration as laid down in the AWB are to be applied to immigration 146 See also H. Staples, Adjudicating the Schengen Agreements in the Netherlands, European Journal of Migration and Law 2, 2000, p. 49–83. The Netherlands 485 law decisions. Some of these principles can be considered important with regard to decision-making based on SIS alerts. In the first place, Article 3:4 AWB obliges administrative authorities to strike a clear balance between the interests at stake before taking a decision. Furthermore, according to Article 3:45, when a negative decision is made, individuals should be informed of their rights of review or appeal. Decisions taken by administrative authorities should be appropriately motivated and indicate the reasons and the legal provision on the basis of which the decision has been taken (Article 3:46 AWB). Another relevant provision in the AWB is the duty of the authorities to forward applications if they are wrongfully addressed to the competent authority (doorzendplicht, Article 2:3 AWB). This means that if a person submits his or her request for access or information regarding a SIS alert to an administrative authority which is not competent to deal with this request, this authority should forward the request to the competent authorities. 6.2. Informed Decision-making at the Borders Initially, a refusal of entry at the borders did not require a written decision, except for decisions with regard to EU and EEA citizens. However, according to Article A2/5.2.1 of the Aliens Circular 2000, border officials were obliged to give the third-country nationals a leaflet describing the available remedies. In 2006, the provisions of the Aliens Circular 2000 were amended in accordance with the rules of Regulation 562/2006 on the Schengen Borders Code.147 As we saw in Chapter 9, Article 13 (2) of this Regulation states that border officials may only refuse a person admission on the basis of a substantiated decision, stating the precise reasons for refusal. According to the new Article A2/5.5.2, a refusal of entry should be submitted in writing using a standard form which also refers to the available legal remedies. This is the standard form as included in Annex V to Regulation 562/2006. Interestingly, as early as July 2006, the District Court of Haarlem annulled an oral decision by a border official, in which a young Nigerian woman had been refused entry to the Netherlands.148 The Court referred, regarding this decision, to the new rules stating that the decision should be given in writing. The Court rejected the view of the Minister of Immigration that the amended rule in the Aliens Circular 2000 was non-binding and would allow exceptions under certain circumstances. According to the Court, the requirement of a written decision was such an essential safeguard for the persons concerned that the refuted decision should be annulled. 147 148 WBV 2006/16. Judgment of 24 July 2006, LJN AY6520, http://www.rechtspraak.nl. 486 Chapter 13 6.3. Information on the Formal Residence Ban As we have seen above, there are special rules with regard to persons to whom a formal residence ban has been issued on the basis of Article 67 Aliens Act. Before the decision on the formal residence ban is taken, the person concerned should be heard in advance in conformity with the general principles of administrative law (4:8 AWB).149 The Minister should also submit relevant information on the reasons for this decision. A decision to impose a formal residence ban should be given personally to the person concerned or, if this is not possible, should be published in the Dutch Official Journal, the Staatscourant. The person in question should be offered a leaflet in multiple languages concerning the formal residence ban.150 This leaflet (Model M130) includes information on the reasons why this person has been declared unwanted, the consequences of his or her further stay in the Netherlands (criminal act according to 197 Criminal Law Code), the possibility of raising an objection to this decision and on his or her legal remedies. This leaflet does not inform the person of his or her registration in the NSIS. 6.4. Time Limits for Decisions in the Field of Immigration Law Article 25 of the Aliens Act 2000 provides that, with regard to a request for a residence permit, the national authorities have to make a decision within six months of receipt of the application. This period during which a decision must be made can be extended by another six months if the Minister of Justice needs additional information from third parties or the Public Prosecutor. During the parliamentary debate on these time limits, the Green Left Party (Groen Links) opposed this extension, claiming that, “developments in the electronic age should have led to shorter decision periods, rather than an extension”.151 With regard to visa applications, the time limit for decision-making is eight weeks and, with regard to a temporary residence permit or a long-stay visa, it is three months. In practice, it has been established that the IND has difficulty meeting these time limits with regard to its decision-making.152 149 150 151 152 See section A5 of the Aliens Circular 2000. Article 3:41 of the Dutch Administrative Law. Handelingen Tweede Kamer 1999–2000, 26 732, no. 7. This was criticised, for example, in a general report by the Court of Auditors on the functioning of the IND, Handelingen Tweede Kamer 2003–2004, 29 495, no. 1–2. The Netherlands 487 6.5. Legal Remedies 6.5.1. Right to Review153 In immigration law procedures (not including asylum applications), a thirdcountry national should submit an application for review to the Minister of Justice within four weeks of the negative decision being issued (Article 69 of the Aliens Act 2000). In regular administrative law procedures the applicant has six weeks to apply for review (Article 6:7 AWB). With regard to the time limit within which the administrative authority should make a decision, the same rule as provided for in general administrative law applies to immigration law procedures. According to Article 7:10 AWB, the national authority should make a decision within six weeks of receiving the request for review. Based on Article 73 of the Aliens Act 2000, an individual request for review or appeal against the refusal of a residence permit will suspend the effect of the negative decision, except in the situations described in Article 73 (2). These exceptions are: if the person concerned has no temporary residence permit, which is required to obtain a residence permit, if the person concerned is a danger to public order or national security or if the person is convicted by final decision of the court of a crime punishable by imprisonment of three years or more. In 2002, in the memorandum on visa policy mentioned above, the Dutch government proposed withdrawing the right to apply for an administrative review with regard to decisions on visa applications.154 Instead, the person concerned would be given a direct right of appeal to the court against the refusal of a visa. This measure would shorten the time of the visa procedure. Furthermore, the government announced that it would maintain the duty to give reasons for the refusal of visa applications, but would make the burden of proof a greater responsibility for visa applicants. These proposals have not yet been adopted. It should be observed that, in its report of 23 October 2003 regarding Dutch visa policy, the Court of Auditors found differences between the consular posts with regard to the policy and practice of issuing visas.155 One of these differences concerned the way in which negative decisions were motivated and the possibilities for review and rights of appeal. 153 154 155 In the following sections, I will not deal with the special rules applying to asylum law procedures or with regard to the detention of immigrants. Handelingen Tweede Kamer 2000–2001, 26 106, no. 4 and no. 6. Handelingen Tweede Kamer 2003–2004, 29 260, no. 1–2, p. 22. 488 Chapter 13 6.5.2. Right to Appeal Within four weeks of the refuted decision by the immigration authorities, a person may lodge an appeal with the court (Article 69 Aliens Act 2000). This time limit is shorter than the time limit which applies to regular administrative law procedures, which is six weeks. Article 71 of the Aliens Act 2000 provides for a centralised mechanism of the right to appeal to the District Court of The Hague. However, in order to reduce its workload, this Court has specialist aliens chambers or ‘seats’ in all the other District Courts in the Netherlands. According to Article 73 of the Aliens Act 2000, if a person lodges a review or an appeal against the rejection or the withdrawal of a residence permit, this decision will be suspended. Only if the refusal or withdrawal is based on the fact that the thirdcountry national has no temporary residence permit or is related to reasons of public order and national security, will the remedy have no suspensive effect. A third-country national may also apply to the court for a temporary provision (Article 78 Aliens Act 2000). These temporary provisions may include the obligation of the immigration authorities to grant a person access to Dutch territory or to lift a detention order. 6.5.3. Right to Higher Appeal Article 84 Aliens Act 2000 provides for the right of higher appeal to the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State). According to Article 69 of the Aliens Act 2000, this higher appeal has to be lodged within one week of the decision by the lower court. On the basis of Article 84 (b) Aliens Act 2000 there is no right of higher appeal with regard to refusals of visas for a stay of three months or less and with regard to decisions by border control authorities obliging third-country nationals to remain within a prescribed area. According to the government in the explanatory memorandum, a right of higher appeal in such cases would be of less or relatively little interest.156 In the Dutch literature, the position of the highest administrative court in immigration law cases has been criticised.157 Especially with regard to asylum law procedures, commentators found that the administrative court adopts an unbalanced approach, by accepting a wide margin of appreciation for the Minister of Immigration and the IND and by placing an excessive burden of proof on the third-country national. Accordingly, the rights of the applicants 156 157 Handelingen Tweede Kamer 1998–1999, 26 732, no. 3, p. 81. See S. Essakkili, T.P. Spijkerboer, De marginale toetsing in asielzaken, NJB, Afl. 2006/33, no. 1439, T.P. Spijkerboer and B.P. Vermeulen, Vluchtelingenrecht, Nijmegen: Ars Aequi Libri 2005, p. 288, and R.H. de Bock, De omvang van het geding, Nijmegen: Ars Aequi Libri 2004. no. Despite the current low number of judgments. It could also mean that individuals are more often affected by the use of the NSIS. The ECtHR repeated its conclusions of the Selmouni v. also with regard to Article 95 alerts (persons wanted for extradition).1.The Netherlands 489 would be interpreted too narrowly. 2. even if he had failed to exhaust domestic remedies as required by Article 35 (1) of the Convention. This increase could indicate that individuals and their lawyers become more aware of their rights and the available remedies. The ECtHR declared the claim of the applicant admissible. The ECtHR based this conclusion on the narrow interpretation of the Administrative Jurisdiction Division in earlier decisions with regard to the subjects of ‘internal flight alternative’ and the ‘singled out’ requirement. However. the available decisions. annotation A. no.B. there has been an increase in case-law dealing with SIS. the Netherlands.159 According to the ECtHR. Salah Sheekh that his expulsion would expose him to a treatment in breach of Article 3 ECHR (protection against torture or inhuman or degrading treatment or punishment). this criticism found support in the judgment Salah Sheekh v. published in NJCM-Bulletin (2007). Case Law 7. 1948/04. 179–194. Salah Sheekh §§121–123. the Netherlands of the ECtHR. Another important source of (non-binding) case law on the NSIS can be found in the decisions by the Dutch National Ombudsman. Terlouw. In January 2007. This authority 158 159 Salah Sheekh v. give an important insight into major questions with regard to the applicable law on Article 96 entries in the Netherlands. These subjects were substantial to the claim of mr. Introduction: Extent and Importance of Dutch Case Law I found fewer than 20 judgments by Dutch courts on the application of Article 96 CISA and the SIS between the date the SIS became operation in the Netherlands (25 March 1995) and September 2006. 7. that “the obligation to exhaust domestic remedies is limited to making use of those remedies which are likely to be effective and available in that their existence is sufficiently certain and that they are capable of redressing directly the alleged violation of the Convention”. France case. 11 January 2007.158 This case dealt with the appeal of a Somali asylum seeker against the decision of the Dutch authorities to expel him to Somalia. . p. in practice further appeal with the Dutch Administrative Jurisdiction Division would have stood “virtually no prospect of success”. since 2005. together with their annotations. The possibility for national authorities. Legal Status of Article 96 Reports: Possibility of Legal Redress In several procedures in which a third-country national disputed the lawfulness of a SIS report. Some of these cases concern the rejection of a visa application on the basis of an Article 96 entry. the Court based its conclusion that an alert is not an administrative decision on the exception grounds of Article 5(2) CISA. under certain circumstances. This view has been rejected by lawyers and finally by the Dutch courts as well. Even if not binding. it was held that the person in question could not appeal directly against a NSIS alert. did the District Court of Amsterdam accept the arguments of the Minister. which was not followed by other 160 161 See.160 Only in one of the first decisions in 1999 in which this question was raised. Holterman. for example Th. 96 and K. these decisions cannot be overlooked when dealing with the practice of the Dutch authorities. This conclusion. he submitted a direct request to the IND to delete this information from the NSIS. to grant a person leave to enter the national territory was sufficient reason for the Court to rule that the decision to issue an alert was a non-binding decision. the Minister of Immigration held the view that the decision to report a third-country national in the NSIS is not an administrative decision. The Ombudsman receives an important number of complaints regarding visa applications at Dutch embassies abroad. .7 below. during the oral submissions. discussed in section 7. The applicant motivated his appeal by stating that the alert in the NSIS was a decision with legal implications. Groenendijk. Neither the IND nor the Court accepted this reasoning. In its judgment. The IND declared the request inadmissible. Decision of 24 September 1999. annotation K. Interestingly. whereupon the applicant filed an appeal with the Court. an officer from the IND had initially confirmed that an alert is an administrative decision. Boeles in their annotations to the judgments referred to below. the National Ombudsman formulated important principles with regard to the obligations of administrative law and the use of the NSIS in immigration law procedures. Migrantenrecht 1994/5. These investigations take place either at the initiative of the Ombudsman or following an individual complaint. but only include an opinion on whether the public authority concerned behaved properly (behoorlijk) or not. The decisions of this authority are not binding. Ongewenst signalering getoetst.2. Based on this reasoning. had been informed by the IND that he was registered in the NSIS. This statement was later withdrawn in a written memorandum. against which legal redress should be possible. Jurisprudentie Vreemdelingenrecht 2000/8.161 The case concerned a Nigerian national who. Therefore. Groenendijk and P. at his request. 7. p.490 Chapter 13 investigates the behaviour of the public authorities. In its decisions. The IND refused to delete their SIS reports. the President of the Court referred especially to the right to judicial remedies as provided for in Article 111 CISA. The view of the Dutch immigration authorities that an alert in systems such as the NSIS and the OPS is not covered by the notion of an administrative decision was also rejected by the Court of The Hague in a decision of 8 March 2002. the Court held. The Court denied such an interest. the applicant could have appealed against this refusal. since he could have applied for a visa (or a temporary residence permit. The applicants. that they had been repeatedly expelled or had evaded expulsion. Jurisprudentie Vreemdelingenrecht 2000/59. If this application were to be rejected. The President granted the temporary measure to suspend the SIS alert until four weeks after the final decision. With this decision. still in Nigeria. Jurisprudentie Vreemdelingenrecht 2002/162. because he found there was at least a reasonable doubt about whether the disputed SIS report was in conformity with Article 96 CISA. the Court chose a formal and narrow interpretation of the interests and rights at stake. 5 January 2000. In his judgment. is open to criticism. national authorities are competent to depart from a SIS report for the refusal of entry does not imply that this report has no legal consequences in other situations where these exceptional circumstances do not apply. the President ruled that even if other legal procedures based on the Dutch Data Protection Act were available.164 162 163 164 See Groenendijk in his annotation to this decision (ibid. under certain circumstances. . were registered by the Dutch authorities in the NSIS on the basis of the criterion as provided for in the Aliens Circular. Decision of 8 December 1999.The Netherlands 491 courts in later judgments. the District Court of Amsterdam also dealt with the question of whether the applicant had any interest in the withdrawal of his SIS alert. The President explicitly ruled that a NSIS alert is to be considered a decision that is intended to have legal effects.162 During this procedure. the IND stated that this appeal was inadmissible because the applicants should have used the procedure under the Dutch Data Protection Law.) and Boeles in his annotation to the judgment of the Court of The Hague. Jurisprudentie Vreemdelingenrecht 2000/51. The Polish workers appealed against this refusal on the basis of the Dutch Aliens Act and subsequently sought a temporary provision to suspend the alert during this procedure. Rejecting the claim of inadmissibility of the IND.163 This case concerned eight applicants of Polish nationality who had asked the IND to delete the reports concerning them in the NSIS. During the procedure. this would not stand in the way of the special procedure based on the Aliens Act. at the applicants’ request. the President of the Court of The Hague reached the opposite conclusion. or mvv) first when he was. In another judgment from 1999. at the time of the procedure. working illegally in Dutch greenhouses. The fact that. Not until one year later. Wijziging Vreemdelingencirculaire. it was again explicitly 165 166 Court of The Hague. In the same judgment. the Dutch authorities should have made a decision with regard to this request at once even if. the Court of The Hague again emphasised that an alert should be considered an administrative decision with legal effects in accordance with Article 72 (3) Aliens Act 2000 and therefore falls within the scope of Article 1:3 AWB. Staatscourant. . 23 June 2005. Decision 2005/29. The German national submitted a letter to the Dutch authorities.492 Chapter 13 This case concerned a German national who was reported by the Dutch authorities into the OPS police file (not NSIS) for a violation of the Dutch Opium Act. describing the procedures to be followed with regard to individual remedies against alerts registered in the NSIS. The applicant appealed against this letter from the Minister. no.4. on the one hand. was the applicant informed that his request had been forwarded to the special department of the Dutch police (KLPD). Despite these judgments. the IND and the former Minister of Immigration maintained the view that a SIS report is a practical measure against which no right of appeal is possible. the procedure by the applicant which is directed against the refusal to withdraw the SIS alert.3. whether this report could be withdrawn. Therefore. A3/9. 119. and the procedure which is directed against the (informal) decision to report a person as an unwanted alien. the initial letter from the applicant should be taken as a complaint against the decision to declare him an unwanted alien. after repeated requests. This judgment will be dealt with further in section 7. the Court ordered the Dutch immigration authority to decide within six weeks on the request against the report as an unwanted alien. the Court concluded it was competent to deal with the case at stake. if so. the Court also rejected the formal reasoning of the Minister that the applicant should have addressed the KLPD first. in which he asked both whether he was reported as unwanted alien and. the KLPD still had to consider the request for deletion of the alert. According to the Court.3. In June 2005. AWB 04/24331. In its decision. the Aliens Circular 2000 was amended. even if it could be argued that the decision to report a person as unwanted was not intended to have legal effects. decision of 11 March 2005. provided that the rules on administrative remedies apply. The Minister of Justice did not respond to this request. See para. What is important is the explicit statement by the Court that.166 In this text in the Aliens Circular. no.6. in which the Dutch courts recognised the direct legal effects of a SIS alert. Breda session. In a judgment of 2005. it still has to be considered a “measure by an administrative authority against an alien” in accordance with Article 72 (3) of the Aliens Act 2000. The Court explicitly differentiated between. Aliens Chamber. in parallel to this procedure.165 Therefore. the Court concluded that it was not competent to assess the lawfulness of the alert itself.2. the Dutch courts were hesitant to consider themselves competent to rule on the lawfulness of decisions taken by other Schengen States. As a result of this expulsion. Referring to the special procedures of the then applicable Data Protection Act of 1989. . It does stress. Jurisprudentie Vreemdelingenrecht 1999/269. the Court rejected the complaint.168 This case concerned the appeal of an American national whose entry to Dutch territory was refused based on a NSIS report by the German authorities pursuant to Article 96 CISA. the merits of this case have not been dealt with in further proceedings. Foreign Administrative Decisions Initially. He applied to the Court of Haarlem. requesting a temporary suspension of the refusal of entry. 7. including the suspension of expulsion.3. however.3.3. In 1998.The Netherlands 493 stated that a national decision to report a SIS alert into the NSIS is not an administrative decision. 167 168 Jurisprudentie Vreemdelingenrecht 2000/59.1. The American national was detained by the Dutch border guards in order to await his expulsion.167 To my knowledge. Assessing the lawfulness of the SIS alert and finding that the person was not reported on unlawful grounds. The President did not reach any substantive conclusions. that “procedures against a refusal to withdraw such a SIS report should be in accordance with Article 111 CISA”. he was expelled by the German authorities to the United States. 7. but stated that it was unclear whether the Dutch implementation rules met the procedural and the material requirements of the former Border Control Circular (now included in the Aliens Circular 2000). The American had been refused a residence permit by the German authorities because he had no health insurance and because he had applied for social security assistance. National Administrative Decisions In the abovementioned judgment of 8 December 1999 on the Polish applicants. Conformity with Article 96 CISA 7. the President of the Court explained that a person recorded in the SIS has the right to challenge the lawfulness of this SIS alert even if another state is responsible for the correctness and accuracy of these data. the President of the Court of The Hague explicitly questioned whether the disputed alert in the NSIS was in conformity with Article 96 CISA. In his judgment of 18 August 1999. An example of such a careful approach is the decision of 18 August 1999 by the President of the Haarlem Court. he was reported by the German authorities in the SIS. Only if it were crystal clear (zonneklaar) that the SIS report is illegal did the Court believe it would be competent to order temporary measures. . The Dutch Data Protection Authority was asked to negotiate and to ensure that the French alert would be deleted. to delete the data from the SIS and to inform third parties who had access to the SIS data that the data had been deleted. The Court of Appeal did not accept the argument made by the applicant that this field of law was ‘unexploited’. The decision by the French Ministry of the Interior to reject this request was annulled by the French administrative court in a decision of 2 April 1999. annotation E. the Court of Appeal of The Hague annulled the decision by the lower court and rejected the claim of the applicant. Administratiefrechtelijke Beslissingen 2002/10. When he was informed by the latter institution that the French authorities had refused to delete his record.169 The procedure in this case is complex because the applicant applied simultaneously to both the French and Dutch authorities.170 Unlike the District Court. In a judgment of 16 November 2000. the Dutch authorities as well before the Court of The Hague. in an interim decision. the Dutch CBP found that the alert was not in breach of the CISA and rejected the request of the applicant. The Court. Brouwer. The applicant’s lawyer asked the department of the KLPD dealing with the NSIS to withdraw the report. the Court of Appeal found no justification for the fact the applicant failed to respect the prescribed time limits when lodging an appeal against the Dutch state. a year later. annotation P. concluded that when assessing the national SIS it was competent to deal with the lawfulness of a foreign alert. without the applicant having access himself. however. asked the applicant to give consent for the Court to take note of the underlying documents of the alert the file. According to the Court of Appeal. Based on the information which the Dutch Data Protection Authority received from its French colleagues. even though the applicant had failed to observe the applicable time limits. The Court was asked to order the Dutch and French authorities to provide information on the alert.494 Chapter 13 The competence of national courts to rule on the lawfulness of alerts reported by the authorities of other Schengen States was more elaborately dealt with in a decision by the Court of The Hague (civil chamber) of 5 January 2000. The applicant in this case (of unknown nationality) first submitted a request for withdrawal of the alert with the French authorities. Boeles. The Court of The Hague held that the complaint against France was not admissible. reasoning that a Dutch court is not competent to deal with a complaint against another state.R. the applicant was duly informed by the Dutch 169 170 Jurisprudentie Vreemdelingenrecht 2000/51. The Dutch government successfully appealed against this decision. which would justify the delay. Considering it necessary to have all the necessary documents. This request was refused. the person submitted an appeal against the French authorities and. The Court declared the application against the Dutch government admissible. the Court. In this judgment. 10 November 2005. She also submitted a complaint to the Dutch CBP. but the reasoning of the Court can be applied to reports on third-country nationals as well. the prosecution was interrupted by the Spanish authorities. According to the data protection officer of the KLPD. it took a long time before the Spanish authorities were willing to execute this order. Therefore. Following the applicable procedure under the Dutch Act on Police Files. Unfortunately.rechtspraak. she submitted a request to the Dutch authorities responsible for the NSIS. no. met with strong resistance from the Spanish authorities. This Court. the Court of Appeal did not deal further with the competence of national courts to assess the lawfulness of decisions by foreign authorities.171 This judgment is important as it could pave the way for other courts when dealing with the interpretation of Article 111 CISA. the Haarlem Court dealt with an Article 95 report. Nevertheless. In 2005. obliging national authorities to enforce the national judgments mutually. 171 Judgment of the Court of Haarlem (civil chamber) of 6 December 2005. for the first time a District Court (civil chamber) ordered the authorities of another Schengen State to remove a SIS alert. decided that the report in the NSIS was unlawful. This was only done after lengthy procedures and diplomatic pressure from the Dutch authorities. She was detained but.nl. who had been arrested in 1993 in Spain. the KLPD. Whereas the latter organisation informed the applicant that the alert itself was not unlawful. the applicant lodged an appeal against the negative decision by the Dutch Data Protection Authority before the civil chamber of the Court of Haarlem. to have her NSIS report deleted. 79543/HA.The Netherlands 495 Data Protection Authority and was even assisted by a lawyer. due to a lack of evidence against her. the KLPD repeatedly petitioned the Spanish authorities to have this report deleted. the Court ordered the Spanish government to delete this report. . assessing the facts described above and the fact that the Spanish authorities had never lodged an official extradition request for this applicant. The applicant was a woman (of unknown nationality) residing in the Netherlands. She was suspected of involvement with criminal drugs-related offences. See also the judgment of the Court of Alkmaar. in an admirably short sentence. The Spanish authorities did not respond to any of these requests. The Court ruled that it was clear that the Article 95 report issued by the Spanish authorities did not serve the purposes for which this report was actually intended. the woman took action unsuccessfully against the Spanish authorities for the withdrawal of this request for extradition. LJN: AW2418. the Spanish authorities reported her in the NSIS in 1996 for the purpose of arrest for extradition (Article 95 CISA). The follow-up to this judgment showed that Article 111 CISA. published at: http://www. For several years. Finally. promises from Mr. Moon was declared unlawful. A Foreign Alert: The Moon Case As we have seen in the chapters on Germany and France. Jurisprudentie Vreemdelingenrecht 2006/69. This temporary provision was granted on the 21 October 2005. In order to reach this decision. which was allegedly breached by the refusal to grant them permission to visit the Netherlands. and Mrs. This refusal resulted in several procedures before the Dutch courts. In 2005. and Mrs. despite an alert by another Schengen State. however. These cases and. In one of the Dutch cases. despite the German alert.6 of the previous chapter.3. As we saw in section 8. Moon not to seek public attention or contact with the press during their visit. in which the applicants sought entry to the Netherlands. with the question of why the Dutch government refused to apply the provision of Article 5 (2) CISA. 1999 and 2000. These procedures dealt. the right to freedom of religion of the members of the Unification Church was finally recognised by the German courts and the alert on Mr. Olivier. they also lodged an appeal with the Dutch courts against the decision of the IND and the Minister of Immigration refusing them entry to the Netherlands. the Moons invoked freedom of religion. and Mrs. and Mrs. 172 District Court of Amsterdam.3. Mr. the Minister took the view that the applicants had no right of appeal since there was no administrative decision. the view taken by the Dutch government during the procedures. they applied for a temporary provision to the District Court of Amsterdam.172 The Court ordered the Dutch authorities to treat the Moon couple as third-country nationals not to be refused entry on the basis of Article 5 CISA. Initially. . Three judgments from 2005 and 2006 deserve attention at this point. 21 October 2005. the Court first rejected the formal viewpoints of the Minister. Mr. Moon began proceedings against the refusal of the Minister of Immigration to grant them access to the Netherlands. These visits were allowed under certain conditions. In order to make it possible to visit the Netherlands for three days in November 2005. especially.496 Chapter 13 7. In 2005. As in other procedures described above. among other things. In 2005. leaders of the religious organisation the Unification Church proceeded more then 12 years against their registration in the SIS by German authorities. illustrate the practical scope and meaning of the principle of mutual trust inherent to the SIS. annotation B. in connection with Article 3 of the Aliens Act 2000. the Dutch authorities had allowed the Moons several times temporary access to the Netherlands for short visits. which made it possible to grant a third-country national access to its territory on humanitarian grounds. Moon. among other things. for three days in the period around 3 November 2005. These visits occurred in 1997. the Dutch Minister of Immigration refused the applicants permission to enter Dutch territory for a short visit. Moon. since it did not provide any 173 District Court of Amsterdam. Even if the Court considered that the lawfulness of the German alert could not be discussed during this procedure. it referred to the earlier decisions of the Dutch government. but also because of “the changed situation with regard to security in the world”. especially considering the fact “that Europe was getting stronger”. and Mrs. The Court. With regard to the more recent decisions of the German court. the Court found that these were not substantiated during the proceedings. In a letter of 18 May 2005. 1 November 2005. the Dutch Court stressed that these judgments were applicable to the German situation and could not “have any meaning for the (Dutch) dispute at issue”. The Minister of Immigration appealed against this temporary provision. Secondly. the Minister argued that ‘citizens’ could not invoke the provision of Article 5 (2) CISA because it was not directly applicable. the German officer had emphasised the German objections to a visit to the Netherlands by Mr. Firstly. and to the earlier statement by the German authorities that they would not object to such a temporary admission. it emphasised that the German alert affected the applicants “within the Dutch legal framework” based on the intention of the Dutch authorities to deny the applicants the right of entrance. With regard to the alerts of the two other Schengen States. however. Both appeals were rejected by the Court on 1 November 2005. The Court also rejected the arguments of the Minister with respect to the content. This argument was rejected by the Amsterdam Court. the applicants asked the Court to impose a penalty of € 1 million per day in the event of non-compliance by the Dutch authorities. . The Court ruled that the Dutch government attached legal consequences to the German alert and therefore the applicants should have the right of appeal against the decision of the Minister which made it clear they would be refused entry. which was cited during this procedure. the French and the Portuguese authorities had also reported the Moons as unwanted in the SIS. granting the Moons access to the Netherlands. the Minister of Immigration stressed the increasing importance of “respecting the SIS alerts of other Schengen partners”. AWB 05/48358. the Minister of Immigration produced a memo dated 27 October 2005 at a meeting between the IND officers and a German liaison officer.173 Interestingly. rejected this argument as unfounded. AWB 05/48355. apart from Germany. During the same appeal procedure. All these grounds were rejected by the Dutch Court. the Dutch government was able to forward further information on the ‘lawfulness’ of the German alert. referring to the meaning of Article 111 CISA.The Netherlands 497 Among other things. it was held that. during this procedure. In its conclusion. During this meeting. the memo of October 2005 was considered irrelevant as well. Finally. it was stated that. Thirdly. in several judgments the German courts concluded that the alert in question was lawful. the Minister held that they had not been formally refused entry. The Court rejected the Minister’s viewpoint. so as to allow the applicants to make their travel arrangements. the District Court of Amsterdam refused to consider the application for a temporary provision. In this case. there was no decision against which they could lodge an appeal.175 They also claimed that the decision of the Minister was insufficiently motivated. is important because the Court firmly rejected a new formal ground which was invoked by the Minister of Immigration to limit the applicants’ right of appeal. annotation E. 174 175 District Court of Amsterdam. Since the applicants had not yet travelled to the Netherlands and had not submitted their request at the border to the appointed officers. Rechtbank Amsterdam. after which the applicants again lodged an appeal for a temporary provision. AWB. it should be noted that the applicants are South Korean nationals who are not obliged to hold a visa in order to enter the Netherlands for a short stay. The Court ordered the Dutch government to reach a new decision within six days of the date of publication of this judgment. In this judgment. 23 March 2007. This request was declared inadmissible by the Minister of Immigration. and Mrs. this time only for 24 hours. Therefore. In March 2007. Moon should be granted access was a decision to be taken by the Dutch border police. but decided immediately on the merits of the appeal. The third judgment (in fact two judgments) was issued by the same District Court on 23 June 2006. According to the Minister. Their only way of knowing whether they would be admitted to Dutch territory before starting their journey was to ask for this permission in advance. Jurisprudentie Vreemdelingenrecht 2007/245. 23 June 2006. AWB 06/27382. This judgment. Moon of 2 June 2006 for admission into the Netherlands.174 These judgments concerned a renewed application from Mr. the District Court of Amsterdam rejected the appeal of Mr. the question of whether or not Mr. The Court stated that it is the responsibility of the Minister of Immigration to decide whether or not to refuse entry to the Netherlands. and Mrs. the applicants referred to their rights of freedom of religion and freedom of speech as protected in Articles 9 and 10 ECHR. . the Minister acted unlawfully when she rejected this request as inadmissible. although dealing with the same issue. Brouwer. In these judgments. according to the Minister. Moon against a renewed negative decision of the Minister of Immigration. At this point. Since the request by the applicants of 2 June 2006 was to be considered a request for an administrative decision. and Mrs. 06/27348.498 Chapter 13 information on new facts or circumstances which should have lead to the withdrawal of the temporary provision. the Court did not deal with the substantial grounds on which the Moons were registered in the SIS.R. the Dutch authorities should reconsider the circumstances of the case.176 7. In the proceedings on the merits of this case. annotation A.The Netherlands 499 Based on rather formal grounds. overrode the interests of the applicant.177 This judgment concerned the case of a Jordanian applicant recorded in the NSIS by the Dutch authorities because of his use of a false passport. Judgment of 10 January 2001.2. In this particular case. Based on the provisions of Article 34 of the former Data Protection Act 1989. According to the court. Balance of Interests – Proportionality of a SIS Report In 2001. even if the potential negative effects of this alert arise in another Schengen State. Terlouw. and Mrs. Moon had been granted access to the Netherlands. Since the use of false documents was rightly considered a serious crime. the President of the Court of The Hague ruled on the duty for national authorities to assess the proportionality of retaining an alert in the NSIS. As we saw above. Judgment of 14 March 2001. both from 2005. the applicant requested the President of the civil court to order the Dutch authorities to withdraw the alert from the NSIS. Rechtspraak Vreemdelingenrecht 2001/52. the Court found the entry in the NSIS legitimate. concerned the question of whether the Dutch authorities are obliged to assess the proportionality of the decision to record a person as unwanted in the NSIS. Accordingly. the interests of the state.178 The Court further rejected the government’s view that Article 96 CISA would leave no margin of appreciation regarding the applicant’s circumstances and the severity of the criminal acts he committed (false documents). Jurisprudentie Vreemdelingenrecht 2001/52. when dealing with the request to withdraw the SIS alert. This request was rejected by the President of the Court of The Hague in a judgment of 10 January 2001. Nevertheless. the President emphasised that. the President found that there was a duty for the IND to assess the circumstances of the case before reporting this person to the NSIS. in section 3. . even if in previous years Mr. two judgments. to keep out third-country nationals who pose a threat to public order or state security. The first judgment of the 176 177 178 Appeal against this judgment is pending.B. that there is a duty for the authorities to assess the proportionality of retaining the SIS entry. Interestingly. the act of using false identity papers or travel documents is one of the criteria mentioned in the Aliens Circular for reporting third-country nationals in the NSIS for a period of five years. the Amsterdam Court this time rejected these claims and held that the Minister rightly had put more weight on the “Schengen obligations”. the Dutch authorities were not obliged to specify the reasons of this refusal.4. the Court of The Hague agreed with the argument of the applicant’s lawyer. the ministerial decision rejecting his first request did not include an appropriate clause on the applicable time limits. the applicant applied for withdrawal of the formal residence ban. Boeles. He applied for a review of the decision to report him and. the applicant’s 179 180 Decision of 11 March 2005. During that time. JV 2005/447. The Court found that the applicant had not forwarded any individual or specific grounds based on which the Dutch authorities should have withdrawn or limited the territorial scope of the SIS alert. With regard to the procedural aspects of this case. based on which he was reported in the NSIS. annotation P. Unfortunately. In 2004. the Dutch authorities did not contact the Spanish authorities with regard to Article 25 (2) of the CISA. In this judgment. According to the Court. to withdraw the SIS limit or to limit the effect of this alert to Dutch territory or in time.500 Chapter 13 District Court of Breda concerned a person (of unknown nationality) who had been reported in the NSIS for five years by the Dutch authorities. The Court. the Court considered in more detail the consequences of a Dutch alert with regard to the residence rights of a third-country national in another Schengen State. based on administrative law. during the procedure before the Court. did not accept the applicant’s claim that his stay in Spain would be made impossible as result of the Dutch report.179 This report was based on the fact that he had used fake or falsified travel or identity documents. the applicant held a valid residence permit for Spain and. no. As in the other judgments described above. LJN AU3548. the District Court of Alkmaar dealt with a comparable case. the applicant held that the Dutch decision to maintain the report in the NSIS constituted a breach of his right to family life in Spain. for some reason. the Spanish authorities refused to renew his residence permit on the basis of the Dutch alert. in its judgment. however. Both requests were rejected by the Dutch Minister of Immigration. Decision of 24 August 2005. In this judgment. . deletion of the report.180 The case concerned a Colombian national against whom a formal residence ban had been issued by the Dutch authorities in 1998. no. AWB 04/24331. In 2003. contrary to Article 8 ECHR. This request was rejected and. however. at the same time. this Court ruled that the person in question had a right to appeal against the refusal to withdraw the alert and declared the appeal admissible. The applicant had only argued that the Dutch authorities should have used their inherent right. the Dutch government failed to strike a ‘fair balance’ between the circumstances of his family life on the one hand and Dutch interests in maintaining the formal residence ban on the other hand. According to the applicant. the Court did not enquire why the Dutch authorities had not applied this consultation procedure. In the same year. the Court found that the applicant was not to blame for the fact that he failed to respect the applicable time limits for forwarding his appeal. responsible for respecting the human rights of the applicant. These Directives include the obligation for national authorities to consider the different interests and rights at stake before taking a removal decision. but also based on the EC Directive 2003/86 on family reunification and Directive 2003/109 on long-term resident third-country nationals. 03/890. For example in one case.5. These judgments show that it is not inconceivable for a national court to grant an individual financial compensation if it is established that this person suffered financial loss caused by a (wrongful) SIS alert. The Court denied the direct relationship between the Dutch decision to report the applicant in the SIS and the Spanish decision not to renew his residence permit. I refer briefly to judgments in which Dutch courts ordered financial compensation with regard to (wrongful) decisions in the field of immigration law. According to the Court. In the first place – and it would be interesting to know whether a civil court would not have made a different assessment – one could argue that there is a clear causal link between the Dutch alert and the Spanish decision to withdraw the applicant’s residence permit.182 The Court found that. 111. no. 2. when she was not allowed to work. it could be reasoned that the Dutch authorities should have taken into account the family life of the applicant in Spain as well. It would be the responsibility of the Spanish government to decide whether a residence permit should be granted or not and to consider the applicant’s right to family life as protected under Article 8 ECHR. One could agree with the conclusion of the Court that the Spanish authorities are.181 However. in the first place. it is arguable whether the Dutch government does not have any responsibility with regard to the rights of the person concerned. Note the Court’s comment that it presumes. 8 December 2005. These authorities should strike a balance between the interests at stake: the Dutch residence ban or the applicant’s right to reside in Spain and to enjoy his family life. due to the lengthy procedure. Secondly. Right to Financial Compensation Although they are not related to the Schengen Information System. that Spain would comply with its treaty obligations towards the applicant. . the Dutch formal residence ban did not in itself prevent the applicant from enjoying his family life in Spain. published in NAV. April 2006.The Netherlands 501 claims were rejected. 7. as has been pointed out by Boeles in his annotation to this judgment. the District Court of The Hague considered the claim of an Iranian refugee that she had lost income from work and pension during the five years of her asylum procedure. the 181 182 See also Boeles in his annotation to this judgment. the Dutch authorities have obligations not only based on Article 8 ECHR. ibid. no. described in Chapter 9. p. Therefore. on the basis of the principle of mutual trust between the states (interstatelijk vertrouwensbeginsel ). District Court Assen. 2 October 2006. In a second decision. See District Court Groningen. In this case. In different judgments. . the Court had to assess the lawfulness of an Article 95 alert by the Italian authorities for the purpose of arrest for extradition. 1 February 2006. The applicant had asked the Dutch police authorities (KLPD) to have this SIS alert deleted. In different judgments. this Court explicitly declared itself competent to deal with this case on the basis of Article 111 CISA. in order to rule on the lawfulness of this SIS report. LJN: AR7219. the Dutch authorities are ordered to pay € 70 to € 95 for each day a person was unlawfully detained. in 1983.6. On the basis of the information forwarded by the Italian government.183 Financial repair also has been granted to a third-country national who was detained on the basis of an unlawful decision to declare the person unwanted. the Court decided that. LJN: AY9280. 22 December 2006. judgment of the District Court Amsterdam. This request was rejected on the grounds that the Dutch authorities could not delete a foreign alert in the SIS.186 The Court therefore decided to invite officers of the Italian SIRENE office to give testimony during the further course of the proceedings.185 7. a Dutch court submitted a preliminary request for the first time on the interpretation of a provision in the CISA regarding the SIS to the Court of Justice (ECJ). Preliminary Request to the ECJ In 2005. In an initial decision.184 Generally. The person in question lodged an appeal with the Court of Den Bosch. Importantly. LJN: AV0808. the Court decided to submit a preliminary question on this case to the ECJ. the cooperation of the Italian government was required. courts granted financial repair to third-country nationals who had been detained with a view to their expulsion. The applicant’s lawyer held that the Italian alert was contrary to the ne bis in idem principle as laid down in Article 54 CISA. but whose expulsion could not be enforced for different reasons.502 Chapter 13 Minister of Immigration had acted incorrectly. Judgment of 16 July 2004. the Court concluded that it was 183 184 185 186 See for example. even though the alert in question could only be deleted by the Italian authorities. This question was raised during a civil law procedure by the Court of Den Bosch. AWB 06/58704.815 for loss of income for the five years she was unable to work. because the decision to report him in the NSIS would be based on an Italian conviction from 1999 for a crime for which his client had already been convicted in the Netherlands. The person in question was granted € 20. the Dutch authorities were ordered to grant financial compensation to third-country nationals who had been unlawfully detained. section 2. by submitting preliminary requests regarding legal questions which the court considers too difficult to answer. See the judgment of the District Court Den Bosch of 4 April 2007. ECR I-9327. 187 188 189 190 See. Case C-150/05. In this judgment.4 and Chapter 9. secondly. I have dealt with this judgment before in Chapter 3. which forms the basis for a national SIS alert. LJN: BA2132. the ECJ concluded that the lack of harmonisation of national criminal law. It also submitted the question of whether a judgment in which the applicant was (partially) acquitted of the charge fell within the meaning of “final disposal of a trial” as meant in Article 54 CISA. section 4.The Netherlands 503 unclear whether the offences of which the applicant had been convicted in Italy for a second time had to be regarded as the same offences of which the person had been convicted in 1983 in the Netherlands.2. Therefore.187 This procedure illustrates that national courts can play an active role with regard to conflicts arising in the field of the application of SIS. might create “as many barriers to freedom of movement within the Schengen area as there are penal systems in the Contracting States” (paragraph. Spain which dealt with an alert based on Article 96 CISA. The ECJ also made it clear that the ne bis in idem principle of Article 54 applies in respect of a decision by the judicial authorities of a Contracting State whereby the accused is acquitted finally due to lack of evidence. the Dutch court was given a tool to declare the Italian alert in the SIS unlawful and to order the Italian authorities to withdraw this alert. Van Straaten v. to be understood as the existence of “a set of offences which are inextricably linked together. irrespective of the legal classification given to them or the legal interest protected”. the Netherlands. firstly. This judgment should be taken together with its earlier judgment in Commission v. for the first judgment of the ECJ on the interpretation of Article 54 CISA: 11 February 2003. The ECJ ruled on this case in its judgment Van Straaten of 28 September 2006.190 In this judgment. 47). the ECJ considered that the relevant criterion for the purposes of the application of Article 54 is the identity of the material acts. in the combined cases C-187/01(Gözütok) and C-385/01 (Brügge). With this decision by the ECJ.188 The ECJ answered both questions from the Dutch court in the affirmative and clarified the narrow meaning of the “same offences” as intended in Article 54 CISA. by inviting foreign authorities to submit their view on the facts of the case and.3. the ECJ clearly established that there are important limitations with regard to the sovereignty of Member States to decide on the basis of foreign reports in the SIS. .189 The consideration of the ECJ on the lack of harmonised criteria and its relation to the freedom of movement is also important with regard to the SIS alerts based on immigration law. this rejection was not based on the SIS alert. After consultations between the Dutch authorities and the reporting state (Germany). the National Ombudsman emphasised this interest on the part of the applicant: “From the point of view of an active duty to inform individuals and the principles of fair administration. . the applicant had initially been informed by the Dutch Visa Agency that there was no objection to the decision to issue a long-stay visa (mvv) to her husband. report no. In a report from 1999. but on the grounds that the applicant concerned did not meet all the requirements for residence with a partner. Decision of 29 October 2003. the embassy in Rabat informed the applicant in June 2002 that no visa was to be issued and that she had to contact the Visa Agency. so he could have submitted a complaint earlier. The Ministry of Foreign Affairs rejected the request for a visa. Duty of Informed Decision-making The National Ombudsman repeatedly emphasised the importance of informing individuals in visa application cases adequately and in a timely manner.7. claiming that the embassy. However. 2003/388. The Ombudsman 191 192 Report of 8 July 1999.504 Chapter 13 7.1. Despite this positive advice from the Visa Agency. the Visa Agency informed the applicant that her husband was registered into the SIS by German authorities. In his report. but the embassy still refused to do so on the basis of the SIS alert. Decisions of the National Ombudsman 7. 1999/300. Six months later.” The National Ombudsman reached a comparable conclusion in a decision dated 29 October 2003. the applicant argued that it was important for him to be informed of the alert. no. “which could mean” that he would not be allowed to enter the Netherlands.191 The person concerned applied to the Dutch embassy in Bucharest in 1996 for a visa for a longer stay (machtiging tot voorlopig verblijf or mvv). a Moroccan national who wanted to stay with his Dutch spouse in the Netherlands. the entry in the SIS was withdrawn and the applicant finally received his visa. The embassy forwarded this request to the national Visa Agency (Visadienst). the Dutch Visa Agency authorised the embassy to issue a visa. the Ombudsman concludes that the authorities should have informed the person of the SIS alert. On 11 September 2002. The person lodged a complaint with the National Ombudsman.7. The right to be informed also applies when alerts have been forwarded by other countries. failed to inform the person of the fact that he was registered in the SIS. when forwarding the request to the Dutch Ministry. noting that the applicant had been recorded in the SIS as a person to be refused entry. Even if the negative decision by the Ministry of Foreign affairs was not based on the SIS alert. the National Ombudsman found that the Dutch authorities neglected their active duty to inform the applicant about the fact that he was registered in the SIS.192 In this case. The Netherlands 505 emphasised first of all that embassies have their own responsibility for issuing visas, despite prior advice from the Dutch Visa Agency. In this case, the denial of the visa was not considered unjustified. However, the Ombudsman concluded that the Visa Agency had failed in its duty to inform the applicant adequately, correctly and completely. In his reply of 11 September 2002, the Visa Agency failed to inform the applicant of the precise meaning of a SIS alert and on the reasons why information about her spouse had been recorded. Moreover, the Visa Agency should have informed the applicant of how long the negotiations with the German authorities would take and when a definitive decision, based on the information acquired from these authorities, was to be expected concerning the visa application. 7.7.2. Duty to Make Decisions in Good Time In another case, the National Ombudsman was asked to consider an individual complaint about the way her husband’s visa application had been handled by the Dutch Visa Agency.193 The Turkish husband of the applicant was registered in the NSIS by the German authorities with regard to an attempt to trade one gram of heroin. During subsequent consultations between Dutch and German authorities, it was found that the German prosecutor had dropped the case. The applicant complained, among other things about the long delay (six months) between the date of the first application for a long-stay visa (mvv) and the date when she was informed there was no objection to issuing the visa to her husband. The National Ombudsman concluded that the Dutch Visa Agency exceeded the time limits of 8 weeks, prescribed in Article 4:14 AWB, to decide on a visa application. Furthermore, while this time limit was exceeded, the Visa Agency failed in its duty to inform the applicant of the reasons for the delay. With regard to the third complaint by the applicant, regarding the way the Visa Agency had dealt with the information based on the SIS, the National Ombudsman did not find the authorities had behaved improperly. The responsible officer had contacted the German authorities according to the applicable rules. 7.7.3. Duty of Proportional Decision-making Finally, in a decision dated 1998, the National Ombudsman questioned the need for a NSIS alert based on Article 96.194 The applicant, an asylum seeker of Azerbaijani nationality, complained about the fact that he was recorded by the Dutch Immigration and Naturalisation Office in the national investigation file, OPS, without justified grounds. The person was registered in OPS in 1995 193 194 Decision of 28 January 2000, report no. 2000/28. Decision of 14 May 1998, report no. 1998/164. 506 Chapter 13 because his asylum application had been rejected and he failed to report to the responsible authorities. After having applied for asylum a second time, his asylum request was accepted and during this second asylum procedure he resided lawfully within the Netherlands. However, the applicant and his family had also been registered by the German authorities in the SIS, because of their withdrawal from supervision measures. As a consequence of the entry in the OPS and the German SIS alert, the asylum seeker was arrested in 1997 and detained for a certain period by the police in Flevoland. The National Ombudsman stated in his conclusions that persons should only be recorded in the OPS for as long as strictly necessary. Since the applicant had a residence permit during his asylum procedure, the report from 1995 in the OPS should have been withdrawn. With regard to the German SIS alert, the Ombudsman concluded that the Dutch authorities had not acted appropriately either, as they did not issue a form to the applicant, which would have shown that the applicant was residing lawfully in the Netherlands during his asylum procedure. 8. Conclusions 8.1. Implementation of Article 96 CISA The criteria based on which third-country nationals can be reported into the NSIS for the purpose of non-admission are defined by the Ministry of Immigration (since 2007: Justice) without any involvement of the national parliament. This applies to both categories of person to be registered into the NSIS: the formal residence ban and third-country nationals to be reported as unwanted. Although, with regard to the second category, the Aliens Circular 2000 offers centralised rules on the situations in which data can be stored in the NSIS, these criteria can be broadened by the responsible Minister on a fairly ad hoc basis. The application of these criteria leaves a considerable margin of appreciation for the national authorities involved. At an early stage of the implementation of CISA, it was established that there were differences in application between the national police regions. For the purpose of coordinating the application of Article 96 CISA, regional ‘SIS coordinators’ and, at central level, one national coordinator have been appointed. No updated information is available about how this coordination works and on which criteria third-country nationals are currently reported into the NSIS. Considering the consequences of being registered in the NSIS as an inadmissible person, the Dutch criteria in the Aliens Circular could be described as reasonably ‘light’. Even minor offences or the fact of being suspected of such an offence can lead to a SIS alert based on Article 96. Special doubts can be raised about the The Netherlands 507 proportionality of the criterion that if a person fails to report within the prescribed period to the immigration authorities, he or he will be reported in the NSIS for three years. According to Article 96 (2) and 96 (3) CISA, decisions to report somebody as unwanted may only be based on two grounds. Firstly, the presence of the person must be considered a threat to public policy or security. Secondly, if a third-country national fails to comply with national regulations concerning entry and, based on this failure, has been subjected to deportation or refusal measures, including or accompanied by a ban on residing on the national territory. With regard to the former criterion, the Schengen governments have a margin of appreciation to define the situations in which this threat applies, but it is clear that not all the criteria as provided for in the Aliens Circular 2000 fall within the general condition of “a threat to public policy or security”. With regard to the second criterion, the Dutch provisions allow for the registration of a third-country national in the NSIS even if he or she has not been the subject of expulsion. As we have seen above, someone can even be reported in the NSIS if he or she fails to comply with national immigration rules. Therefore, one has to conclude that the Dutch criteria are not in conformity with the criteria of Article 96 CISA.195 8.2. Data Protection and Data Control As in Germany and France, between 2001 and 2006, there has been increasing emphasis in the Netherlands on the use of databases and the storage of personal information as the ultimate solution to different problems. Different measures have been proposed and adopted to extend the powers for national authorities to carry out identity checks or to control persons in the Netherlands. Compared to the strong public resistance in the 1970s to a central population registration and the census, current developments do not meet with many critical responses. This lack of public discussion could be explained by the fact that, in the Netherlands, the principal notions of the right to privacy or informational self-determination or even the division of powers are less dogmatically developed than, for example, in Germany. As we saw in the previous Chapter, in this country the lawfulness and proportionality of, for example, ‘data profiling’ and the central aliens administration received a much more critical response. 195 See also P. Boeles, who argues that some of the Dutch criteria are in breach of the general criteria and purpose of Article 96, in his annotation to the decision of the Court of The Hague of 5 January 2000 mentioned in section 7.3.2. above, Jurisprudentie Vreemdelingenrecht 2000/51. See also my conclusions in: Grensbewaking en het SIS, in: E. Brouwer, K. Groenendijk (eds.), Derdelanders in de Europese Unie, Utrecht: Forum 2001, p. 49. 508 Chapter 13 8.3. NSIS and the Right to Effective Remedies 8.3.1. Judicial and Non-judicial Remedies From the law described above, it follows that a person registered in the NSIS for the refusal of entry may start various proceedings against this registration or against decisions based on the NSIS alert. Generally, the rules of administrative law will apply and the administrative court is competent to deal with both decisions based on the Dutch Data Protection Act and immigration law decisions. The Dutch Data Protection Authority or CBP has a relatively limited role with regard to individual complaints or questions on the NSIS files. This is due to the system chosen in Dutch data protection law, in which individuals can directly contact the police or immigration authorities involved. The CBP will only be involved as an intermediary when, for example, foreign authorities have to be consulted with regard to individual claims and this causes long delays. The Data Protection Authority, the National Ombudsman and the lower Dutch courts involved with the applications of third-country nationals reported in the NSIS meet the criteria of independent authorities: they are permanent institutions, established by law and independent of the national authority issuing the refuted decision or measure. In practice, the data protection officer of the KLPD performs a crucial and active role with regard to individual requests dealing with their registration into the NSIS. This authority will deal in the first place with individual requests for information stored within the NSIS, including when this concerns third-country nationals reported as inadmissible. Only when Dutch alerts are involved, these applications will be submitted to the Dutch immigration authorities or the IND. The accessibility of this authority is generally known and, during the time of my research, even lawyers and NGOs in other Schengen States contacted the KLPD data protection officer when dealing with NSIS alerts regarding their clients. Formally, the data protection officer does not respond to the requests of ‘an independent authority’ which is part of the national governmental organisation which is also responsible for executing the NSIS alerts. However, in practice, this officer may be more effective than the Dutch Data Protection Authority. 8.3.2. Transparency – Accessibility of Remedies The application of the general principles of administrative law means that, with regard to decisions based on SIS entries, the Dutch authorities should inform this person accurately. This active duty to inform, concerning decisions based on the NSIS entries, has been emphasised by the National Ombudsman. However, in practice, national authorities do not comply with this obligation and thirdcountry nationals are not informed of the decisions to report them in the NSIS. There is a formal difference between the formal residence ban and the decision to The Netherlands 509 report a third-country national as inadmissible. The person in question is only informed of decisions into the former category and has a direct right to appeal. However, the information given to the third-country nationals does not include the information that the person is registered in NSIS and that the person will be refused entry by other Schengen states as well. This lack of information hinders the accessibility to legal remedies. A third-country national who has a reason to believe he or she is reported in the NSIS will first have to ask for confirmation of the report and may then lodge an appeal for the withdrawal of this report. It is important that, in different judgments, the Dutch courts found that the national authorities may not hinder the accessibility of legal remedies based on formal requirements. For this reason, Dutch District Courts rejected the repeated statement by the Dutch Minister of Immigration that the decision to report someone in the NSIS is not an administrative decision for which a direct remedy is possible. Despite these judgments, the Minister of Immigration maintained this formal interpretation in the Aliens Circular. In the aforementioned Moon case, the District Court of Amsterdam rejected the formal reasoning of the Minister of Immigration, according to which a request to review an earlier decision refusing the Moon couple leave to enter would be inadmissible. The Minister maintained that there was no formal decision by the border guards against which Mr. and Mrs. Moon could lodge an appeal. The Court made it clear, however, that the applicants cannot be asked to travel to the Dutch border first in order to appeal against the decision to refuse them entry even if, based on earlier letters from this Minister, they knew their (short) stay would be refused. As mentioned above, the data protection officers of the KLPD are easily accessible and seem to handle complaints or questions from the persons concerned regarding the NSIS adequately and in the shortest time possible. The problems and delays in answering those questions occur mostly when other (national or foreign) authorities have to be contacted. 8.3.3. Scope of Review Based on the application of the general principles of administrative law, the administrative authorities must weigh the different interests at stake before reporting a person to the SIS or before making a decision or taking a measure on the basis of a SIS report. This duty has been acknowledged by several courts. According to these judgments, the responsible authorities should weigh the different interests at stake not only before reporting a person in the NSIS, but also when a person is refused entry on the basis of a Dutch or foreign SIS report. This interpretation, if it were generally followed, means firstly that national authorities cannot report a person into the SIS ‘automatically’ once the legal criteria are met. Secondly, it means that a SIS alert should not have automatic implications. 510 Chapter 13 The authorities involved should always assess the proportionality of the effects of the refusal of entry together with the circumstances and interests of the person concerned. During the judicial procedure in the Moon case, the Minister of Immigration expressed the more formal position that the reports by other Schengen countries should in general be observed. This position on the ‘automatic effect’ of SIS alerts (interstatelijk vertrouwensbeginsel ) was also held by this Minister during parliamentary debates on immigration law and anti-terrorism measures. According to the Minister and the IND, there would be little scope for national considerations with regard to the admission of third-country nationals reported in the NSIS by other Schengen States. With few exceptions, Dutch courts generally have been reluctant to accept this position and required additional information from the Dutch government as to why, in this specific case, no exception could be made. On the other hand, the courts also required additional information from applicants to support their claims that a NSIS report is unlawful or disproportionate in that specific situation. If no such information is submitted during the procedure, this was considered sufficient reason to reject this claim. 8.3.4. Competences In immigration law procedures, Dutch courts can issue temporary provisions such as ordering the national authorities to grant a person access to Dutch territory or to lift a detention order. Until 2006, the case-law in which this competence was used with regard to the Schengen Information System is scarce. However, the decision of the Haarlem Court to order the Spanish authorities to withdraw a NSIS alert based on Article 95 CISA can be considered an important breakthrough in the way Dutch courts handle individual claims against NSIS reports. Another important example is the judgment in the Moon case of the Amsterdam Court of 21 October 2005 in which the Dutch authorities were ordered to grant the Moons temporary access to Dutch territory, despite the German alert in the SIS.196 Furthermore, even if they do not relate to NSIS alerts, the judgments described in section 7.5 illustrate that national courts have the power to impose financial fines on national authorities in immigration law procedures in the case of unlawful or untimely decisions. Considering the powers of the Data Protection Authority, it should be seen as unfortunate that this authority only can impose a financial fine when a data controller does not report a registration to the CBP. With regard to infringements of more substantial standards of data protection law, the CBP has no such power. 196 Only in 2007, as we have seen above, the Amsterdam Court took up a more formal position and refused the applicants’ request for a temporary provision granting them access for two days to the Netherlands. Chapter 14 Conclusions “… in an age when the freedom of movement, especially across borders, is considered essential for the full development of private life, especially for people such as the applicant, who have family, occupational and economic ties in more than one country, denial of that freedom by the State without any good reason constitutes a serious failure on its part to discharge its obligations to those under its jurisdiction.”1 1. Third-Country Nationals: Their Data and Their Rights In December 2006, the German Presidency of the EU announced that the German delegation was “preparing a proposal for a Council decision concerning access to Eurodac by Member States’ police and law enforcement authorities for the purposes of preventing, detecting or investigating criminal offences, in particular terrorist offences.”2 The Presidency Programme on Police and Judicial Co-operation of 22 December 2006 explicitly refers to the need for “Expanding the European information network” in relation to the use of SIS, VIS and Eurodac.3 In the same Programme, the proposed access to Eurodac by law enforcement authorities was justified by stating that: “Frequently, asylum-seekers and foreigners who are staying in the EU unlawfully are involved in the preparation of terrorist crimes, as was shown not least in the investigations of suspects in the Madrid bombings and those of terrorist organizations in Germany and other 1 2 3 İletmiş v. Turkey, 5 December 2005, appl. no. 29871/96, § 50. This judgment is only available in French, the quotation is from the ECtHR press release, 6.12.2005. The original text of § 50 reads: “A une époque où la liberté de circulation, et en particulier la circulation transfrontalière, est considérée comme essentielle pour l’épanouissement de la vie privée, surtout quand il s’agit de personnes, tel le requérant, ayant des liens familiaux, professionnels et économiques ancrés dans plusieurs pays, refuser cette liberté sans aucune motivation à une personne relevant de sa juridiction constitue, de la part d’un Etat, un manquement grave à ses obligations.” 16982/06, 20 December 2006. 17102/06, 22 December 2006, p. 3. Evelien Brouwer, Digital Borders and Real Rights, pp. 511–536. © 2008 Koninklijke Brill NV. Printed in the Netherlands. 512 Chapter 14 Member States…”.4 This statement illustrates how, in recent policy, third-country nationals both legally and illegally resident within the EU are increasingly linked to acts of terrorism or crime. At the time of completing this study, the future use of SIS II, VIS and Eurodac and the possible interlinking of these databases is still unclear. What is clear – and what I have tried to develop further in this study – is that governmental powers to collect, store and use personal information on third-country nationals are not unlimited. Governments have to take into account the rights of these individuals and the general principles of the rule of law. These rights stem from different fields of law: privacy law, data protection law, immigration law and EU law. In order to be able to enforce these rights, in Chapter 10 I advocated a general right to effective remedies for third-country nationals reported in a database, such as the SIS. After having summarised the relevant rights, in section 4 below, I will examine the question of whether the development of the so-called “European information network” can be reconciled with the basic principles of data protection law as described in Chapter 7. In section 5, I summarise my main findings with regard to the law and practice in France, Germany and the Netherlands. Finally, I will consider the new Regulation 1987/2006 regarding SIS II of December 2006 against the background of my findings on “SIS I”. In an attempt to learn from the past, I will formulate some recommendations for the future. However, before going into the legal boundaries of the so-called “European information network”, I make some general remarks with regard to the use of databases in the field of border and immigration control. 2. Third-Country Nationals: Their Data Considering the development of the aforementioned databases on third-country nationals, one could note that this development is based on two presumptions, both of which can be criticised. Firstly, the decision-making seems to lack sufficient information on the expected efficiency and reliability of those systems. Secondly, the use of the EU databases is increasingly linked to the idea that immigrants must be considered potential criminals or terrorists. Based on this presumption, third-country nationals risk to be more exposed to supervision and control measures than EU citizens. 4 Ibid., p. 6. Conclusions 513 2.1. Questioning the Efficiency and Quality of the Information Network The decision-making on the technical feasibility of SIS II, Eurodac and VIS preceded the political decisions on the desirability or even necessity of these systems.5 The decisions to develop Eurodac, VIS and SIS II were taken without a fundamental discussion of the expected efficiency of these systems, the consequences for individual rights or the need to balance the interests at stake. For example, considering the relatively large number of data held on “inadmissible migrants” in SIS I, one would also expect a relatively high “success rate” for the use of this database. In other words, if national authorities consult the NSIS during external or internal border controls or police checks, it seems likely that these authorities will more often find “hits” on the basis of an Article 96 alert than based on other alerts. However, we have seen that, starting in 2001, statistics on the use of SIS I establish that alerts on third-country nationals to be refused entry result in relatively a small number of hits.6 This seems to indicate that, although the Schengen States are reporting a large number of “inadmissibles” in the SIS, the success or efficiency of this registration is relatively low. Furthermore, the aforementioned measures are based on an absolute trust in the reliability and efficiency of the information held in these systems. The question is whether this trust is justified, considering the available information on the accuracy and lawfulness of data held in the current SIS. The national evaluations of Article 96 alerts, performed in 2004 for the Joint Supervisory Authority, showed that in the three countries (France, Germany and the Netherlands), the SIS included wrongful or unlawful data on third-country nationals. In particular, the reports of the French and German data protection authorities established that, in many cases, the data were stored in SIS I for unlawful purposes, that they were not deleted within the required time limits or that they were inaccurate. With regard to Eurodac, we have seen that the annual reports of the Commission did not include an overall cost-benefit analysis of the use of Eurodac, including questions on whether Member States or the EU save money by being able to send asylum seekers back to other EU countries or receive asylum seekers from other countries, or whether it is efficient to “redistribute” asylum seekers within the EU. Looking at the table of hits based on Eurodac, one could ascertain a status quo among the larger countries in terms of receiving or sending asylum applicants. Eurodac, SIS II and VIS will all include biometric data to be used as a search tool and as a mechanism to interlink the different systems. This use of biometrics 5 6 See, for the decision-making on Eurodac: Aus (2006), p. 15. As we have seen in Chapter 3, national authorities in the 15 states using the SIS in 2006 found only 21,090 hits based on Article 96 alerts. 514 Chapter 14 as an identification tool or search key has been criticised by different organisations and experts, due to its unreliability and vulnerability to fraud. Finally, the involvement of a large group of EU and non-EU Member States may also affect the quality of the information. Diverging criteria on the basis of which personal data are stored by national authorities put the quality and accuracy of these data at risk. As a result, the efficiency of these databases for their purposes, including countering terrorism, must be questioned. 2.2. Identifying, Tracking or Stigmatising Immigrants? SIS II, Eurodac and the VIS have the common feature that they are centralised large-scale databases focussing on the registration and the identification of thirdcountry nationals. The creation of these centralised databases is closely linked to the aim of the EU governments to obtain an extra tool or mechanism for controlling the entry and movement of migrants. This includes persons staying irregularly on their territory and migrants declared inadmissible by national authorities, as well as “regular migrants” such as visa applicants and asylum seekers. SIS II, VIS and Eurodac will not only be accessible at the external borders of the Member States, but also within the national territory and at embassies and consulates in third countries. The use of these European databases implies a presumption on the legal or virtual status of an individual. This means that the rights or legal position of a person are “constructed” on the basis of the information held on this person in these files. A third-country national reported in SIS II on the basis of Article 24 of Regulation 1987/2006 is presumed “inadmissible” based on public order or security grounds or because he or she would have infringed national immigration law. A hit based on Eurodac implies that the person concerned is presumed to have arrived through the territory of another Member State and thus may be sent back to this country. Finally, a person whose visa has expired according to the information stored in VIS could be expelled when his or her VIS record is checked by a national authority. The fact that these databases are to be used for both immigration law and criminal law purposes implies that persons registered for immigration law purposes will be at greater risk of being affected by law enforcement measures or secret surveillance. Identity checks and the consultation of the above databases are generally based on data profiling. Using general criteria dealing with the “risk factors” of specific categories of persons, authorities place these groups of persons under extra surveillance. This “criminalisation” of individuals especially affects certain groups of third–country nationals, for example, persons applying for asylum or citizens requiring a visa to come to the EU.7 7 See further section 3.4 below. Conclusions 515 3. Third-Country Nationals and Their Rights 3.1. Recovering the Right to Privacy The powers of national authorities to collect, store or use personal information are limited by the right to privacy, protected by Article 8 ECHR and further developed in the case law of national courts, the ECtHR, and the ECJ. The collection and storage of a large amount of data, for a lengthy or even undefined period, may under certain circumstances cause a breach of the right to private life of the individuals concerned. These circumstances include, for example, if the data concern the past or political life of the person in question, if the data were not provided voluntarily or if the storage of these data has consequences for the daily life of the persons or limit their freedom of movement. To protect the right to privacy, national legislation should provide for procedural safeguards as defined by the ECtHR. These safeguards include, for example, explicit limitations on the exercise of powers to store and use personal information; the duty to inform persons in advance with regard to the storage of their information; definition of situations in which information may be disclosed to others, and; safeguards protecting the quality of data and protecting sensitive data. As established in Chapter 6, the limitations formulated by the ECtHR apply on several grounds to our subject: the registration of third-country nationals in EU databases. In the first place, the ECtHR emphasised that surveillance measures such as the systematic collection and storage of personal information by governments fall within the scope of protection offered under Article 8 ECHR. Secondly, it is clear that the right to privacy is at stake if “sensitive” information such as biometric data is to be registered in SIS II and VIS. Thirdly, the frequent controls to be performed on the basis of this registration may cause disproportionate interference with the traveller’s right to privacy, including his freedom of movement. This is especially the case when these controls are combined with practices often embarrassing for travellers, such as taking the person aside, questioning the person, collecting biometric data and carrying out body searches. Fourthly, based on plans for the interoperability of EU databases described above and the proposals for access to these systems by internal security agencies, it is clear that SIS II is becoming a tool for surveillance measures. Furthermore, the Commission is preparing a proposal for an entry-exit system to control whether a third-country national is “overstaying” his or her visa or residence permit. These proposals might lead to the semi-permanent control over the movement of the persons registered in SIS II, VIS or Eurodac, which is facilitated by the use of biometric data and the inclusion of these data in passports and visas. 2. This conclusion should be considered as an important assignment to the EU legislator and Member States. 3. Furthermore. the ECtHR explicitly ruled that “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures”. the prohibition of discrimination (Article 14). the emphasis on data surveillance measures affecting specific groups of persons based on their ethnic origin or nationality is difficult to reconcile with the non discrimination principle in Article 14 ECHR. long-term resident thirdcountry nationals and third-country nationals who have the right to family reunification. certain categories of “privileged” third-country nationals gained extra protection. In general. As we have seen in Chapter 8. Furthermore. for example. Furthermore. In its judgment. to asylum seekers.516 Chapter 14 3. this Court defined some important criteria for the effectiveness of the available remedies in immigration law procedures. the relevancy of this right in the field of border controls has been emphasised by the ECtHR in Timishev v. the right to family life (Article 8). denied a visa or detained or expelled on the basis of a SIS registration can be annulled if this decision violates the human rights of the third-country national concerned. Immigration Law and the Protection of Human Rights With regard to immigration law decisions based on the data held in the SIS. The ECtHR ruled that a selective approach towards Russian nationals of Chechen ethnicity constituted a violation of Article 14 ECHR in combination with Article 2 of the 4th Protocol (dealing with the freedom of movement). As we have seen in Chapter 8. The relevant rights in the ECHR include in particular the right of protection from torture or inhuman treatment (Article 3). as well as freedom of religion (Article 9) or speech (Article 10). Rights and Freedoms Guaranteed by EU Law In Chapter 9 we saw that different instruments adopted on the basis of Title IV TEC grant rights. . national authorities have to take into account the protection of human rights as protected in the ECHR and other international treaties. Even if the jurisprudence of the ECtHR is very casuistic. Russia. a decision by which a person is refused entry. the right to liberty (Article 5 (4) ). we have seen that the ECtHR refuses to accept grounds of “national security” or “overburdened immigration law procedures” as sole justification for limiting the rights of individuals to legal remedies. such as the family members of EU citizens. Turkish migrant workers or persons deriving rights from special agreements between the EU and third countries. the ECtHR applies more stringent criteria with regard to claims based on Article 3 ECHR.3. the transparency of the use of personal information and databases. 8 I will come back to this subject in section 6. Here.4. It should be noted however. It enables an individual to exercise the right of access. Member States are explicitly envisaging the future use of personal information. Spain. In Chapter 7. the ECJ left no doubt about the fact that an automatic refusal of entry or a visa to a third-country national who is married to an EU citizen. dealing with the new Regulation 1987/2006. 1. At EU level. among other things. Furthermore. Data Protection Rights In general. deletion and correction and obliges the authorities to take these requests seriously and to handle them within a preset or reasonable time limit. The following paragraphs should only be considered as a first exercise to describe the tension between data protection law and the current measures of “data surveillance” in the EU. To take this negative decision without verifying whether the person concerned imposes a genuine and sufficiently serious threat to the fundamental interest of society implied a breach of the rights as laid down in Directive 2004/38.2. the principle of purpose limitation is undermined by the inclusion of vague and open criteria in the applicable rules and the new emphasis on the interoperability of information systems and the availability of information. including limits on the use and disclosure of personal information. I will set out why in my view current EU measures are difficult to reconcile with these principles.Conclusions 517 There is some tension between the rights of the categories of persons mentioned above and the possibility of these persons being reported in the SIS for the refusal of entry. the limitation on the processing of sensitive data and the ban on automated decision-making. that this subject requires a more in-depth analysis.8 3. data protection law provides for procedural guarantees safeguarding. solely on the basis of a SIS alert. In the following paragraphs. I described the central principles of data protection law and considered the added value of data protection.1. violates the principle of free movement which is central to the communitarian system. In 2006. This transparency regarding the use of data allows the individual to be informed of the authority collecting his or her information and of the purposes of this data processing. I have argued that the primarily procedural norms of data protection are closely tied to more substantial criteria such as the non-discrimination principle. unknown at the time of its registration. the creation of large. this tension became clear in the judgment of the ECJ in the case of the Commission v. . In their proposals for the storage of biometrics and the interoperability of different databases. multipurpose databases such as VIS and SIS II is in conflict with this principle of purpose limitation. The establishment of these databases also conflicts with the principle that “aimless data collection” should be banned. diverging implementation of EU standards and non-compliance with time limits affect the quality and accuracy of the data. 3. SIS II and VIS will also include information which is based on “soft data” rather than . and eventually third countries. obliging border officials to inform a person in writing of the reasons for refusing him entry. possibly. that national authorities are using SIS for different purposes and that authorities disregard the rules protecting the rights of individuals. EU measures in the field of Freedom. The principle that data holders or processors should take measures to guarantee the quality of data is jeopardised by the establishment of large. As we observed. including the retrieval of information on “potential or possible terrorists”. in France. third-country nationals are not informed at all about their registration in the SIS I. However. showed that the reliability of the information stored in SIS is dubious. such as time limits. The findings of the national data protection authorities with regard to Article 96 CISA. Eurodac and SIS II. Generally. Security and Justice are increasingly based on the general assumption that migrants within the EU are to be treated as suspected persons or potential terrorists. it is questionable whether. Germany and the Netherlands. With regard to the use of SIS I. diverging criteria based on which personal data are stored by national authorities. multipurpose databases. as well. in measures aimed at combating terrorism) or ethnic origin (data on foreigners used for immigration control) erode the principle based on which extra safeguards are to be provided for sensitive or special categories of data. EU legislation allowing for the collection and storage of specified information such as health (biometric data) and religious beliefs (especially Muslims. An example is the Schengen Borders Code. impedes the transparency of the storage and further use of personal information in these systems. This policy also has a negative impact for the position of migrants and their further integration into the society of EU Member States. As mentioned above. Such a policy runs against the general accepted principle of non-discrimination and equality. Furthermore. discussed in Part III. in their fight against terrorism. persons whose data are stored by one Member State will not be aware that these data are accessible to the authorities of the other Member States. which is one of the goals of the extra protection of sensitive or special categories of data.518 Chapter 14 2. the national authorities are still considering the importance of treating “soft data” and “hard data” differently. 4. One of the valid reasons for border officials to refuse a person entry to their territory is an alert in the SIS. the data protection principle of transparency is bolstered by the rules on informed decision-making in EC immigration and asylum law. we have seen that generally. This means that the aforementioned obligation enables the person refused entry to find out that he or she is registered in the SIS. The creation of multipurpose central databases such as the VIS and. National legislation already provides for accepted limitations to this principle. Generally. The use and storage of biometrics also may cause problems with regard to the quality of information. the principle of individual participation includes the right of data subjects to be informed.Conclusions 519 “hard data”. to imply an additional and less acceptable deterioration of this principle. However. Member States are prepared to rely increasingly on the national decisions of foreign authorities. A “primary key” can be described as an instrument enabling the identification of a person and. as we have seen with regard to the use of SIS I. in tax law or in traffic law. based on this identification. the distinction between reliable “hard data” and unreliable “soft data” becomes blurred. these rights seem to be difficult to achieve due to a lack of knowledge about the existence of databases and the fact of being registered at all. these rights are subject to limitations. Furthermore. The extended use of systems such as SIS. these rights have been incorporated in the legislation dealing with EU databases described above. national authorities report individuals on the basis of suspicions that this person has committed a serious crime or is involved in terrorist activities. 6. in practice. As emphasised by the EDPS. This makes it difficult not only for the person involved. explicitly have warned against the use of biometrics as a “primary key”. Also. Since biometrics are always based on probabilities. they will never deliver the unambiguous key that is by definition required for a primary key for databases. Formally. The principle of security of information systems containing personal data generally receives a lot of attention in EU policy. but especially for the user authorities and the courts or supervisory authorities involved in assessing which information is accurate and which is not. as we have seen with regard to SIS I. For example. such use will probably result in a breach of the principle of data quality. Different proposals explicitly . however. Different specialists and data protection authorities. Through these systems. it is not easy for individuals to ascertain which authority is responsible for the data processing or to find information about the available rights and remedies. VIS and terrorist lists seems. including the EDPS. for example. Since these decisions are stored in shared information systems and based on the so-called principle of mutual trust. There is a risk that due to the interlinking of databases such as SIS II and VIS and the access granted to internal security organisations. 7. a very rapid search through different databases. their right of access to information and the right to request correction or deletion. 5. the use of these systems will lead to “automatic decisions” which are difficult to refute by the individual concerned. The ban on automated decision-making is not an absolute right of data protection. for example. National and EU policy-makers are also investing in the so-called “Privacy Enhancing Technologies”. The Right to Effective Remedies In my study. The non-discriminatory application of data protection is included in EC Directive 95/46 and the Data Protection Convention. independent EU “Management Authorities” or “Agencies” must be accompanied by clear rules on accountability. The principle of accountability is included in the different legal instruments concerned. These exceptions include the need to safeguard national security. On these grounds. refusal of entry. considering the responsibility of EU institutions or Member States for the management of the central databases of SIS II.520 Chapter 14 refer to technological safeguards protecting data systems against loss. Article 8 of the EU Charter explicitly stipulates that “everyone has the right to protection of personal data concerning him or her”. I pointed out certain weaknesses which. liability and transparency. As we have seen in Chapter 7. 4. detention). Eurodac or VIS. However. and the increase in numbers of authorities (including those from non-EU Member States) and organisations gaining access to these systems are likely to result in a loss of security. their multipurpose use. even if data protection law itself does not discriminate. the centralised storage of data. are inherent in the . In practice. withdrawal of residence permit. refusal of visa application. in practice. 9. I have made a distinction between data protection law decisions (refusal of the right of access. may be different for different groups. a problem of accountability may arise. the use of these legal limitations of certain rights could result in the discriminatory application of data protection principles. Although not explicitly covered in my study. destruction or unauthorised access. Therefore. In the fight against terrorism. in my view. public security or criminal investigation. data subjects’ rights may be restricted on the basis of legal exceptions as described in Article 13 of EC Directive 95/46. its practical implementation. 8. They provide for rules on the liability of the data processor for damage suffered by individuals caused by the use of information systems for which the data controller is responsible. correction or deletion of his or her information. Member States may restrict certain rights of individuals. defence. expulsion. data controller. The creation of separate. the way individual applications for access or information will be treated. recipients of information) and the right to access. certain activities by governmental organisations are targeting foreigners or individuals with a Muslim background. including the right to obtain information on the data processing in question (purposes. residence permit. correction or deletion) and immigration law decisions (report of “inadmissibility” in SIS. In the words of the ECJ in the Panayotova case. In Chapter 10. the available remedies and the applicable time limits. For example. the scope of review by data protection authorities is restricted and the independence and efficiency is threatened by their lack of power and financial resources. on the criterion of accessibility. the right to effective remedies follows on from the legal system within the Community which includes the system of preliminary references. EC instruments on asylum and immigration generally refer to the right to legal remedies for third. Member States must provide for “effective judicial scrutiny of the decisions of national authorities taken pursuant to the applicable provisions of Community law”. this duty to inform third-country nationals of their rights remains void if national laws do not provide for these rights. The first of these principles is based on the incorporation of human rights and the ECHR within the legal framework of the EU. arguing why the right to effective remedies applies to both immigration law and data protection law decisions relating to the use of databases. we have seen that the decision-making should be in writing. As we have seen. the right to remedies is necessary in order to enable both national courts and the ECJ to guarantee a coherent and clear interpretation of Community law. Secondly. defended and represented during the procedure. The court or tribunal dealing with the individual complaint or . Secondly. indicate the reasons for the decision and include information on the authority taking the decision. I derived the following minimum criteria: access to an impartial tribunal. or the effects of the remedies. the scope. and further developed by the ECtHR. It is clear that the standards on the right to effective legal remedies in the ECHR. but the applicable rules are not very detailed with regard to the content. To guarantee the accessibility of remedies there must be access to legal aid for those “who otherwise would have no sufficient means of finding access to legal remedies”.country nationals. apply to the implementation of EC immigration and asylum law in cases where human rights are at stake. established by law and independent of the national authority taking the decision or measure. I pointed out the right to judicial protection to enable individuals to enforce their rights under Community law. Procedural guarantees are left to the scrutiny of the national legislator and access to an independent court or tribunal is not always guaranteed. Thirdly. such as the SIS. Although there are some positive developments with regard to the duty of informed decision-making. I developed three principles of EU law. Here. The legal remedies should be available within a reasonable time and the person concerned should have the option to be advised. which might be a judicial or a non-judicial authority provided it is a permanent institution. the criteria developed on the basis of these general principles go much further than the rules adopted in the different instruments at stake.Conclusions 521 procedures in both data protection and immigration law. From the law described in Part II of my study. Finally. these criteria are defined by the government without scrutiny by the national parliament. This applies. However. in the words of Boeles. if a person is reported for the latter grounds. Germany and the Netherlands 5. Furthermore. In other words. Only in the Netherlands are the criteria more transparent. in our case. to impose binding decisions or fines and. the exact reasons for such a residence ban remain secret. there is no formal publication of the criteria applied. In addition. In Germany too. has found that the alerts were unlawful or wrong in a large number of these cases (almost 40%) indicates that there is a real problem with regard to the lawfulness of the data stored in SIS I. In France. national data protection authorities (both at federal level and in the Länder) repeatedly pointed out the unlawful practice of national immigration offices in reporting rejected .522 Chapter 14 appeal should be able to consider all relevant aspects of the case. Since the applicable criteria are not published in France or Germany. In Germany. This means that the court or tribunal should be able to grant interim relief or suspensive effect to a legal procedure. there is no formal definition of the criteria. its “scope of review” should include the legitimacy or lawfulness of the measures concerned and the necessity and proportionality of these measures. a court or tribunal should have sufficient powers. as well as to the decisions or measures which are based on those SIS reports. In these three countries. to the decisions of national authorities to report individuals in the SIS. the court or tribunal should be able to balance the individual rights against a pressing social need or to balance the competing interests at stake. since they are explicitly laid down in the Aliens Circular 2000. if necessary. 5. the criteria based on which third-country nationals may be reported in SIS I are not very clear. National Criteria for Storing Third-Country Nationals in SIS I In both France and Germany. The decision to report a third-country national is based on either an administrative decision (by the Minister of the Interior or the prefecture) or a judicial decision. CNIL.1. when investigating SIS alerts following individual requests. the registration of a third-country national as “unwanted” in SIS I can be based on his or her irregular stay or the withdrawal of his residence permit. The fact that the French data protection authority. Comparing the Law and Practice in France. these rules are regularly amended and further extended. aside from ministerial instructions of 1998 and the criteria as included in Article 96 CISA itself. it is difficult to assess whether they meet the criteria of Article 96 CISA. to “overcome fait accompli”. In France. to order (financial) repair of damage. as well as on the grounds of public order. Based on this assumption of a “final decision”. CNIL. meaning that a person who wants to know whether he or she is reported in the SIS and on what grounds must apply to the CNIL. assuming that the person involved could already have lodged an appeal against this decision in the issuing State. in this particular case. the annual reports by the German data protection authorities established the unlawfulness and inaccuracy of the information held on third-country nationals. The applicable criteria in the Netherlands must be regarded as very broad and are difficult to reconcile with the criteria of article 96 (2) and (3) CISA. the Dutch authorities referred before courts to “the changed situation with regard to security in the world” and the increasing importance of “respecting the SIS alerts of other Schengen partners”. SIS and Data Protection Rights of Individuals In France. in general.Conclusions 523 asylum seekers in the SIS. if the authorities find a report for the purpose of refusal of entry. the responsible Ministers underlined the importance not only of a systematic input of data into the NSIS. Also. the persons may directly address the authorities concerned with an application for access. the “presumption of inadmissibility” even has consequences for the availability of legal remedies in cases of expulsion. Also in 2005 and 2006. The French Data Protection Act includes the principle of “indirect access”. national authorities are expected to report a person in the SIS as soon he or she meets the criteria for a SIS alert. 5. The French legislator considers a foreign SIS alert as a “final decision” by another Schengen State. individuals will have to submit their request concerning data held in the SIS to the privacy officer . More recently. clearly disputable foreign alert. These arguments were used to justify the refusal of entry to persons on the basis of a. In the Netherlands. This negative decision was remarkably because in previous years. Based on this policy. correction or deletion of their data. a person may be reported in the SIS for relatively minor offences or even on the basis of a suspicion. the same applicants had been granted access to the Netherlands in spite of the foreign alert.2. in France and the Netherlands. Germany and the Netherlands. the right to suspensive remedies against expulsion orders on the basis of these foreign reports has been limited in the French Immigration Act. In France. this person should automatically be refused entry. the latter policy has been advocated with regard to reports on the basis of public order or security grounds. According to the Dutch criteria. In Germany and the Netherlands. This procedure leads to lengthy procedures and the rights of the applicant are dependent on an active approach by the French Data Protection Authority. In the Netherlands. but also of a systematic refusal of entry based on a SIS report. Additionally. national law provides no duty for public authorities to inform a person that he or she is reported in the SIS. not least because of the potential discovery of irregularities in the SIS II or other databases. seem to result in a more active scrutiny of the functioning of the SIS. Generally. the French and German data protection authorities have the competence to impose heavy penalties on organisations or persons who act in breach of the applicable data protection rules. Whereas both the French CNIL and the German Federal Data Protection Commissioner received more than 500 individual applications annually for (indirect) access to the NSIS alerts (not only Article 96 alerts). Unlike the Dutch Data Protection Authority. the reports of the German data protection authorities included important conclusions with regard to the data held on third-country nationals and the findings were thoroughly discussed in the various annual reports by these data protection authorities. each with their own resources and staff. However. The German and French data protection authorities seem to be more actively involved in individual applications with regard to the SIS than the Dutch Data Protection Authority. the procedure chosen for requests from third-country national seems illogical and time-consuming. This was explained by a lack of time and capacity.524 Chapter 14 of the Dutch police force. These general inquiries or audits make national authorities aware of their obligations regarding the lawfulness and quality of data held in the SIS.167 Dutch alerts on third-country nationals to be refused entry. the data protection authorities only performed very marginal research on the Article 96 alerts. This officer will then return this request to the immigration officer for processing. This very low number of applications with regard to SIS information in the Netherlands could be explained by the active role of the privacy officer in the Dutch police force. Despite these short-comings. the Dutch CBP only dealt with fewer than ten individual applications per year. A person who applies to the Immigration Office with the request for information will be informed that he or she should apply first to the privacy officer of the police force. In particular. The reports were not officially published. the CBP. the national data protection authorities investigated the Article 96 alerts held in the SIS I within the framework of the general inquiry by the Schengen Joint Supervisory Authority. . the parallel functioning of the Federal Data Protection Commissioners and the data protection authorities in the Länder. The latter officer dealt with approximately 200 applications each year. In France and the Netherlands. the Data Protection Authority only investigated 15 out of a total of 12. In the Netherlands. in all three countries the data protection authorities lack financial and personal resources. Although this officer is easily accessible and wellinformed. in Germany. It also emphasises the “watchdog” role of national and European data protection authorities. In 2004. future investigations performed by national (or European) data protection authorities should be encouraged. It may be explained by the relatively weak position of CNIL.3. it has been possible to observe a more active and critical approach by the Dutch courts. This might be explained by the more active role of the data protection authorities in Germany. This resulted in the Van Straaten judgment by the ECJ. 5. dealing with the interpretation of the ne bis in idem principle of Article 54 CISA. There seems to be no single explanation for this amount of jurisprudence in France. but also seems to be related to a lack of information by the individuals and lawyers involved. With few exceptions. visa refusals must be issued together with a motivated decision. In the Netherlands. the considerations of this authority with regard to the obligation of informed. When such a refusal is based on a SIS alert. timely and proportional decision-making are important and deserve more attention in further research. as well as those dealing with related issues such as data profiling. provide some important general principles on the lawfulness and proportionality of the measures involved. one civil court submitted a preliminary request to the ECJ. The Dutch National Ombudsman has dealt regularly with complaints from persons with regard to their registration in the SIS.3. two important decisions dealing with SIS by the Conseil d’État in 1999 resulted in a more general awareness of the rights and legal remedies for third-country nationals reported in the SIS. Effective Remedies 5. Furthermore. the applicant will be directly informed of the fact that he or she is registered in the SIS.3. the Conseil d’État in particular ruled on . In France.1. This “awareness” could explain why French lawyers became more active in launching judicial procedures when dealing with a SIS alert. With regard to an Article 95 alert in SIS I (extradition). The high number of French judgments with regard to visa refusals based on SIS alerts has been explained by the amendment of the French Immigration Act in 1998. Although these decisions are non-binding. Since 2005. Accessibility In the three countries. the very few judgments dealing with the SIS. I found very few German judgments dealing with the SIS. However. On the basis of this amendment.Conclusions 525 5. the national courts underlined the importance of the accessibility of legal remedies. urging individuals to seek judicial review earlier. the national courts initially seemed cautious when dealing with SIS alerts and were reluctant to develop any general principles with a view to the use of the SIS.2. Case Law There is a striking contrast between the high number of judgments by French courts with regard to Article 96 alerts in the SIS and the scarcity of case law in Germany and the Netherlands. Dutch courts increasingly have been emphasising the obligation of Dutch authorities to assess the proportionality of maintaining alerts in the SIS. . This argument has been explicitly rejected by the Dutch courts (except for one early decision in 1999). not only in its Hamssaoui judgment of 1999.3.526 Chapter 14 the necessity of informed decision-making. Scope I found only French and Dutch judgments with regard to the question of whether a national court can assess the lawfulness of a foreign alert. However. 5. this competence was explicitly denied in a judgment of 2003 by the French Conseil d’État.3. stressing the fact that a SIS alert does result in direct legal effect for the person involved. the French authorities refused to implement the decision in 2005 by the Austrian Data Protection Authority. the courts in France. it recognised that such a decision by a foreign data protection authority could be used as grounds for the French data protection authorities to order the French authorities to delete the alert. Dealing with the same case. Also in Germany. For example. the national authorities contended that a thirdcountry national cannot lodge an appeal directly against the SIS alert itself since this would have no direct legal effect within the meaning of administrative procedural law. rather than assessing the lawfulness of a foreign administrative decision. In the case law I found. courts found this argument irrelevant and found themselves competent to deal with the lawfulness of the SIS alert itself or the decision on which the SIS alert was based. In the very few cases I found.4. 5. For example. In both Germany and the Netherlands. the national courts explicitly found themselves competent to assess whether foreign alerts were in accordance with the criteria of Article 96 CISA. In both countries. Germany and the Netherlands did not consider themselves competent to question whether an immigration law decision on which a foreign alert is based is taken in accordance with the national law of that foreign state.3. Competences Article 111 CISA on access to legal remedies is based on the principle of mutual recognition of courts’ decisions with regard to SIS alerts. the French Conseil d’État seemed to deny the competence of a foreign data protection authority to order the authorities of another state to delete the information from the SIS. the decisions of a national data protection authority or a court ruling that a foreign authority should delete a SIS report met with strong resistance from the national authorities involved. Especially in France. This means that national courts find themselves competent to assess whether a foreign alert falls within the applicable criteria of Article 96 CISA (or 24 of the new Regulation on SIS II). but repeatedly in other judgments as well dealing with visa refusals. several courts explicitly ruled that the German practice of reporting rejected asylum seekers was unlawful. In both countries. which ordered the French authorities to delete an Article 96 alert from the SIS. the courts clearly did not accept the formal grounds on which the national administration sought to restrict accessibility to legal remedies. or if he does not submit complete information on time (which may be for reasons beyond his control). with regard to the first criterion. On the basis of the first criterion. This also includes a third-country national concerning whom there are serious grounds for believing that he has committed serious criminal offences or concerning whom there are clear indications of an intention to commit such offences on the territory of a Member State. finding that an Article 95 alert (extradition) did not meet the CISA criteria. For example. The definitions of “serious criminal offences”. These criteria are problematic for two reasons. The New SIS II Regulation 1987/2006: Learning from the Past? 6.1. a Dutch court. third-county nationals may be reported to the SIS on the basis of an immigration law decision which involves his expulsion. These reasons for reporting someone in the SIS seem disproportionate. involving the national data protection authorities and the privacy officer of the Dutch police force. Only after diplomatic pressure. Firstly. third-country nationals may be reported in the SIS based on public order or security grounds. Also this decision met with strong opposition from the Spanish authorities. This includes a third-country national who has been convicted of an offence by a Member State which is punishable by a term of imprisonment of at least one year.1. Criteria for Reporting Third-Country Nationals in SIS II 6. ordered the Spanish authorities to withdraw this alert from the SIS. Article 24 of the SIS II Regulation maintained the same criteria as in Article 96 CISA. Lack of Harmonisation Which lessons have been drawn from more than ten years of using the SIS I? Considering the criteria of third-country nationals to be reported in the SIS II. . these criteria include two categories of decision.1. Based on the second criterion. refusal of entry or removal. 6. were the Spanish authorities willing to follow the court’s decision and to delete the SIS reports. “serious grounds” and “clear evidence” leave the Member States a wide margin of interpretation and allow them to extend the categories of serious offences every time this is considered politically necessary or desirable. third-country nationals may be expelled and subsequently registered in the SIS if they have violated a relatively unimportant rule of immigration law.Conclusions 527 In a judgment of 2005. we have seen that these criteria offer a very low threshold for the registration of “inadmissible third-country nationals” in the SIS. third-country nationals may be reported for minor offences. considering that this measure results in a ban on entry to the entire EU territory for a minimum of three years. he or she may be registered in the SIS. Firstly. the current text in the new Regulation 1987/2006 is disappointing. if a person applies too late (by even a day or a week) for the renewal of his or her residence permit. As we have seen. Secondly. Article 24 (1) explicitly provides that appeals against these decisions ‘shall lie in accordance with national legislation’. “The challenge of the Schengen system is the basis on which common control of the definition of risk should be founded. “to achieve a higher level of harmonisation of the criteria for entering the alerts”. in which national courts or tribunals are able to assess the criteria for SIS reporting and refusal. For example. Germany and the Netherlands. 28. resulting in registration in the NSIS. the attempt of the European Commission to achieve this harmonised approach was not accepted by the governments of the EU Member States. third-country nationals may be declared inadmissible or “unwanted’ on the basis of confidential reports from internal security agencies.9 The harmonisation of the criteria for reporting persons in the SIS II is also necessary to provide the individual in question with effective remedies. Furthermore. the SIS II Regulation explicitly includes a “proportionality clause” which goes further than the former proportionality clause of Article 94 CISA. Furthermore. The Commission will then. The need for a common interpretation of the reasons for excluding an individual from the territory of the EU derives both from the principle of equal treatment and the duty of Member States to respect the rights of third-country nationals as described above (ECHR. but also whether this case is “adequate and relevant” to warrant an entry in the SIS II. family reunification). it is unfortunate that the development of SIS II was not used to provide for more harmonised criteria. Despite this lack of harmonised criteria.528 Chapter 14 Secondly. in addition to this proportionality clause. Article 24 (5) Regulation regarding SIS II only states that the Commission shall review the application of this Article three years after the Regulation enters into force. compared to the provision of Article 96 CISA. This information cannot be effectively scrutinised by the individual or by the courts. For these reasons. use its right of initiative and make the necessary proposals to amend this provision. This Article 21 provides that a Member State issuing an alert should not only determine whether the case is “important enough”. Article 24 of the Regulation 1987/2006 requires that every decision to issue an alert on a third-country national be taken on the basis of an individual assessment. in France. the new SIS II Regulation includes two important limitations with regard to the criteria for reporting third-country nationals in the SIS.” . As we have seen. based on this review. p. rights of employees under third country agreements. the fact that these decisions are based on the national discretionary power of the States causes a problem for the national courts or authorities in assessing the lawfulness of SIS reports. 9 See also Guild (2001). Secondly. a SIS alert based on the suspicion of a serious criminal offence opens the door for very wide application. In the first place. .1. although this has been proposed by the Commission. Until a further harmonisation of criteria takes place. effective remedies for the person involved. the duty to delete a report as soon as a Member State becomes aware that the person concerned falls within one of these categories is only effective if accompanied by stricter safeguards. the possibility of imposing fines if national authorities act in breach of the applicable law and.2. last but not least. Based on Article 25 (2). This provision does not describe the procedure to be followed when the Member States disagree upon the action to be taken.Conclusions 529 These two limitations and the explicit reference to the possibility of appeal offer national courts and data protection authorities a tool to assess the lawfulness and proportionality of reporting third-country nationals in the SIS II. This includes the safeguarding of applicable time limits for the storage of data. data on recognised refugees or EU citizens respectively are not automatically or swiftly deleted. Protecting EU Citizens and Beneficiaries of EC Law The drafters of the SIS II Regulation clearly have taken into account the recent jurisprudence of the ECJ with regard to the protection of rights of EU citizens and beneficiaries of EU law. 6. if a hit is found for a third-country national who is a beneficiary of the Community right of free movement. However. to delete data on third-country nationals who become family members of EU citizens. the lack of material criteria should be compensated by procedural guarantees. Furthermore. Article 30 of the Regulation 1987/2006 includes the obligation for Member States to delete alerts on persons reported in SIS II on the basis of Article 24 as soon as the Member State issuing the alert is informed or becomes aware that the person has acquired the citizenship of any State whose nationals are beneficiaries of the Community right of free movement. Therefore. including the right to financial compensation. This Regulation does not oblige Member States. or when one Member State does not respond “without delay” to the request from the other State. the extra safeguards included in this Regulation still provide for some ‘loopholes’. as prescribed by European or national law. This could mean that those persons are registered in the SIS II in conflict with the criteria of the Directive on long-term resident third-country nationals or the Directive on family reunification. informed decision-making. The practice of the current use of the SIS and Eurodac has shown that unless the person concerned actively pursues the deletion of his own record. the executing state must immediately consult the issuing Member State via the SIRENE office in order to decide “without delay” on the action to be taken. Even if the duty to delete an alert from the SIS II were extended to the aforementioned categories of third-country nationals. it is questionable whether this rule will be effectively implemented. Nor does it include such an obligation for long-term resident thirdcountry nationals. if not all the cases in which an alert on a third-country national to be refused entry is recorded in SIS II. three months must be considered a very long waiting period. according to Article 42 (2) of the SIS II Regulation. Article 41 (7) of the Regulation 1987/2006 stipulates that the person concerned should be informed as soon as possible and in any event no later than three months from the date of application for correction or deletion. Also this latter exception runs the risk of being interpreted and applied very widely. Member States are exempt from their duty to provide information where the personal data (read: the data stored into the SIS II) have not been obtained from the third-country national in question. Article 42 (2) of the SIS II Regulation includes some important limitations to this right. as we have seen in Chapter 7. With regard to the right to access. especially for a person applying for a short-term visa or trying to gain access to the territory of one of the Schengen States. detection and prosecution of criminal offences”. Finally. investigation. can they seek judicial redress against this registration. Furthermore. however. because these persons would generally be aware they had done ‘something wrong’ and. “in particular in order to safeguard national security. Data Protection Rights 6. defence. for that reason. the duty to inform the third-country national does not apply where national law allows for this right to be restricted. As we have seen in the previous Chapter.2. However. National authorities could be tempted to invoke this exception frequently as well. Firstly. However. Right of Information Only once individuals are informed about the registration of their data or of their legal remedies. the Dutch authorities held the view that it is not necessary to inform third-country nationals of their registration in the SIS I. together with a copy or a reference to the national decision which is the basis for the SIS II alert. does not specify precisely which information should be submitted to the person concerned and implies the risk that national authorities will only give the applicants short notice that his or her application for access is being processed. third-country nationals who are the subject of an alert should be informed in accordance with 10 and 11 of EC Directive 95/46. according to Article 42 of the SIS II Regulation. applies in many. which circumvents the provision in Article 11 of the EC Directive 95/46. This information must be provided in writing. With regard to the followup given to the exercise of his rights of correction or deletion. would know about their NSIS registration. correction or deletion of information. This provision. In principle. public security and the prevention.1. .530 Chapter 14 6. it is important that Article 41 (6) of the SIS II Regulation provides that the individual “shall be informed” as soon as possible and in any event no later than 60 days from the date he or she applied for access. the information must not be provided if “the provision of information proves impossible or would involve a disproportionate effort” or “where the third-country national already has the information”. This exception.2. often take a long time. For this reason. correct or delete the item in question without delay. national supervisory authorities and the EDPS must cooperate actively. . if necessary. This rule had already been included in Article 106 (2) and (3) CISA. by exchanging supplementary data. their power to act is limited if a national administration fails to respond in a timely manner to the questions involved. it is important that the new Regulation regarding SIS II provides for the cooperation of the different data protection authorities involved.2. it shall. if the aforementioned Member States are unable to reach agreement within two months. but the new provision now includes a time limit.Conclusions 531 As we have seen above. “within the framework of their responsibilities and shall ensure coordinated supervision of SIS II”. requesting such authority or body to exercise its powers or responding to a request from such authority or body”. Article 46 (f ) of Regulation 45/2001 regarding the processing of data by Community institutions and bodies states that the EDPS should cooperate with the national supervisory authorities to the extent necessary for the performance of their respective duties. the fact that there is no time limit within which the issuing State should delete or correct the refuted data also makes it doubtful whether this rule will be effective in practice. Other instruments regarding immigration and asylum law adopted under Title IV TEC also include provisions concerning the duty of informed decision-making. Furthermore. it will be difficult to establish exactly when a Member State has to inform an issuing State of the alleged wrongfulness or unlawfulness of an alert. stating the procedures for appeal. these information rights are bolstered by the rights included in EC immigration and asylum law. Even if the national data protection authorities are actively involved. 6.2. In addition. The EDPS then has to act jointly with the national supervisory authorities as mediator. inform the issuing Member State at the earliest opportunity and no later than ten days after it became aware of the “said evidence”. “in particular by exchanging all useful information. Article 34 (3) and (4) of the Regulation 1987/2006 provides for a special procedure if a Member State has evidence that information stored in SIS II is incorrect or unlawful. According to Article 34 (4). the Member State not issuing the alert shall submit the case to the EDPS. The issuing State must then check the communication and. if a Member State not issuing the alert has evidence suggesting that an item of data is factually incorrect or has been unlawfully stored. The Schengen Borders Code obliges authorities refusing a person entry to their territory to issue a substantiated and written decision. According to Article 46 (1). Cooperation Between Data Protection Authorities Practice with the current SIS has shown that procedures by which an individual seeks to obtain information about the reasons for a SIS alert or to have this alert deleted from the SIS. According to Article 34 (3). In practice. the right of any individual to bring an action before the national court or authority in connection with an alert relating to him or her should be maintained. it is a positive achievement that Article 44 (3) of the SIS II Regulation obliges Member States to ensure that their national supervisory authorities have sufficient resources to fulfil the tasks entrusted to them under this Regulation. including the requirement of “individual assessment” of Article 24 and the proportionality clause of Article 21 of the Regulation on SIS II. This evaluation should be used for strengthening the legal position of third-country nationals in the SIS II and not for weakening the rules on remedies. is almost the same as included in Article 111 CISA with regard to SIS I. as well as the provision that Member States should mutually enforce the final decisions of national courts or authorities (see below). This allows national courts or data protection authorities to impose sanctions when necessary. The accessibility of remedies could be improved by an explicit provision in the SIS II Regulation . data protection authorities lack sufficient resources to perform their numerous tasks efficiently. they will have to deal with the question of whether this report infringes the rights of the person involved. including his or her human rights and the rights deriving from EU law. Article 43 (3) of the SIS II Regulation stipulates that the rules on remedies will have to be evaluated by the Commission by 17 January 2009. I referred to the individual right to a financial claim based on Article 6 (1) ECHR with regard to damage resulting from decisionmaking based on the use of the SIS. 6. The implementation of this Article 43 should be in accordance with the general principles on effective remedies as described in Chapter 10. To ensure that the rights of individuals are respected with regard to the storage and use of data held in the SIS. proportionate and dissuasive penalties” in accordance with national law.3. If this provision should be redrafted. This means that national courts (or competent authorities) should have the power to decide on the lawfulness of (national and foreign) reports or the decisions or measures based on these reports.532 Chapter 14 Finally. this new provision should be complemented with strict rules on the liability of the data holder or data user. Right to Remedies The wording of the right to remedies in Article 43 of Regulation 1987/2006. In Chapters 6 and 8. as cited in Chapter 7. Article 49 of the SIS II Regulation obliges Member States to ensure that any misuse of data entered into the SIS II or any exchange of supplementary information contrary to this Regulation is subject to “effective. This assessment includes the issue of whether the SIS II alert responds to the criteria of Article 24 of the Regulation on SIS II. The implementation of this provision therefore needs careful scrutiny by national parliaments. Furthermore. National courts or authorities should be able to assess the proportionality of the reasons for reporting a person in the SIS. At the time of this research. as well as Eurodac and VIS. In Part III. Where national authorities do not have any problem recognising and enforcing foreign SIS reports. on the national implementation of “Schengen”.Conclusions 533 obliging Member States to inform a person as soon he or she is registered in the SIS II of the alert and the available remedies. pp.10 Furthermore. discussing the competence of national courts to consider foreign administrative decisions. Based on the principle of sovereignty. 238. they generally find it difficult to accept the binding force of decisions by foreign courts or data protection authorities. p. . 29–60. Cholewinski (2005).4. obliging the Member States mutually to enforce the national judgments with regard to the SIS alerts. advocating the systematic implementation of foreign reports in the SIS. Droit Administratif. In my view. national courts must be able to submit questions to courts in other Member States on the meaning and content of their national law. 7 ff. it is held that national courts cannot assess the lawfulness of foreign administrative decisions. it must be observed that the sovereignty of the national legislator is limited under EC immigration and asylum law. The very use of a database such as SIS I or SIS II already implies a loss of sovereignty. Le dépassement du caractère national de la juridiction administrative française: le contentieux Schengen. The question is whether this principle is still valid in this field of law.12 According to Gautier. This mechanism was proposed by Gautier. the option of a “preliminary transnational question” (question préjudicielle transnationale) could be complemented by the establishment of one specialised coordination point within the court system in each 10 11 12 “Having to refuse a person entry because of having to blindly follow the instruction of another state is also loss of sovereignty”. p. 6. policy-makers referred to this principle of mutual trust between the Schengen States. is based on the principle that authorities should respect and enforce the alerts entered by the authorities of other Member States on the basis of the principle of “mutual trust”. May 2005. M. The use of SIS I and SIS II. It should be clear that the principle of mutual trust at the heart of the Schengen cooperation involves the mutual enforcement not only of the national decisions to report a person in the SIS. Mutual Enforcement of National Decisions Article 43 (2) of the new Regulation regarding SIS II includes the same principle as in Article 111 (2) CISA. Steenbergen (1999). we have seen that in France and the Netherlands in particular. but also of the court’s decisions on the lawfulness of the SIS reports.11 The principle of the mutual enforcement of national courts’ decisions as included in CISA and the new SIS II Regulation could be enforced by the establishment of so-called “transnational preliminary procedures”. Gautier. in the White Paper on the Internal Market. These coordination points could ensure that each request from a foreign court dealing with a SIS alert is dealt with in a timely and efficient manner. These checks would be seen as. A comparable mechanism has been chosen for the SIRENE manual with regard to the coordinating role of national SIRENE offices for the administrative authorities when dealing with a SIS alert and the issue of residence permits and visas.11. it would have been better to draft these controlling measures in such a way that individuals would not need to seek legal redress. Even if we are able to grant individuals effective remedies. Once the above measures are applied. it may become difficult to restore these rights and freedoms. seven days a week and must respond within 12 hours of submission of the request. “a constant and concrete reminder to the ordinary citizen that the construction of a real European Community is far from complete”. Final Remarks In 1985. 16. It is clear that these measures entail a risk to the protection of human rights such as the right to privacy and the right to data protection. 1.5. 14 June 1985. The question arises of whether these new measures are not precisely the same as those which the Commission tried to abandon in 1985. the Commission underlined the symbolic meaning of borders by stating that the formalities affecting individual travellers were. even though these controls were often no more than spot checks. This procedure could be accompanied by appropriate time limits. Brussels.534 Chapter 14 Member State. but also the freedom of movement of persons and the principle of non-discrimination.4. These rights and freedoms protect both non-EU citizens and EU citizens. . These offices operate 24 hours a day.13 7. Considerations 47 and 48 of the White Paper. The Commission did not foresee the development of high-tech control and surveillance measures to which individuals travelling around Europe are now exposed. The establishment of the “European information network” includes the storage of data in large-scale databases. ensuring a swift response by the authorities involved. the increase in identification measures and the use of biometrics.2006. para.14 The Commission referred to the police checks relating to the identity of persons and the safety and customs checks concerning the goods they were carrying. COM (85) 310. 13 14 OJ L 317/41. “the outward sign of an arbitrary administrative power over individuals and an affront to the principle of freedom of movement within a single Community”. a preliminary procedure will not restore the rights of the person concerned. There is a special task for judges using their powers in the broadest extent. Without their knowledge on the applicable laws and available rights and remedies. whether they work for NGOs assisting immigrants. Dealing with databases such as the Schengen Information System. balancing the different interests at stake and assessing the lawfulness of decisions involved. Finally. courts must be made aware of their power to submit preliminary requests to the Court of Justice. I would like to stress the important role of individual practitioners. in the long-term it might help to safeguard a coherent and clear interpretation of EU law. In a field were the use of databases and the mutual recognition of national decisions become increasingly important. .Conclusions 535 To make a final conclusion. Even if. the position of third-country nationals seeking protection and access to justice will remain weak. courts should be able to look further than their own national laws. or as a lawyer or a judge. in the short term. they should be competent to assess the lawfulness of foreign decisions affecting individual’s rights. . 1–32. Revue de droit Public. Barnard & J. p. Baldaccini and E. 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OJ 1994 C 13/1 (unpublished) .......................................... 297 C-101/01 Lindqvist [2003] ECR I-12971 ... the Netherlands [1991] ECR I-2637 .......... 223............. 313 C-226/99 Siples Srl............ 322 C-482/01 and C-493/01 Orfanopoulos and Oliveri (joined cases) [2004] ECR I-5257 ................................................................... 311...................... 277..................... 15 C-143/88 Zuckerfabrik [1991] ECR I-415 ........ 306 C-281/85 Germany.......................................... 64.................................. 304 C-36/75 Rutili [1975] ECR 1219 ................... 44.......... 277.... 323 C-50/00 Unión de Pequeños Agricultores [2002] ECR I-6677 ........ 305 C-159/90 Grogan [1991] ECR I-4685 ............ 189... 279........ 319 C-294/83 Les Verts [1986] ECR 1339 ............................................................ 319 C-100/01 Olazabal [2002] ECR I-10981............................... Belgium [1989] ECR 997 ................... 305..... 294.... 312 C-60/00 Carpenter [2002] ECR I-6279.... 297 C-222/84 Johnston [1986] ECR 1651 ...... 319 C-465/00 Österreichischer Rundfunk [2003] ECR I-4989 ...................... Denmark and United Kingdom v......... 295......................................556 Jurisprudence C-4/73 Nold II [1974] ECR 507 . 305.....Brügge (joined cases) [2003] ECR I-1345 ................. 307............ the Netherlands.... 305 C-109/01 Akrich [2003] ECR I-9607 .................. 297 C-115-116/81 Adoui and Cornuaille v............................. 296........................... 315............................... 197.. 303.............................................................................. 62............................................. 308.......... 309..... 277 C-30/77 Bouchereau [1977] ECR 1999 ...................... 313 C-407/98 Abrahamsson [2000] ECR I-05539 .......... 307 C-54/96 Dorsch Consult [1997] ECR I-4961 . Heylens [1987] ECR 4097 ....................... 311...... 306... 319 C-70/95 Sodemare [1997] ECR I-3395 ................................ 277 C-131/79 Santillo [1980] ECR 1585 .... 307..... 297 C-327/02 Panayotova [2004] ECR I-11055 ....................... 309......... 20 C-65/95 and C-111/95 Shingara and Radiom (joined cases) [1997] ECR I-3343 .................... 18 C-222/86 Unectef v............ JO 25 April 1997 ........... 317... Cucicea-Lamblot...................... Forabosco.... Bafandi...................... 333 13 August 1993..... 310 Pending: C-524/06. 198344 ................................................................. no........................... 351 22 April 1997........................................... 503..... 319 C-503/03 Commission v......... 205435 ...... 370 CE 9 June 1999........... 280... 375 CE 28 July 2000....................... no.............. Chambre syndicale du Transport Aérien...... Germany .. Jabeur..... 370 CE 6 October 1999................ 373 CE 9 July 2001......gouv. 369 CE 25 October 2000................. no.................... 278.................. no.................... Migrationsverket JV 2007/31 ...... Council [2006] ECR I-5769 ........ 351..................... 314 C-150/05 Van Straaten [2006] ECR I-9327 ... no........................ 97–389 DC... 235.. no......... 310......... Heinz Huber v...... 364 Conseil d’État CE 22 July 1994........................... 310 T-116/01 P&O European Ferries v........ 368 CE 9 June 1999....... 332...... 190384 .............. Matumona............ 517 C-540/03 Parliament v........... European Commission [2003] ECR II-2957 .............. 98............. Hamssaoui......... no....... 305 C-1/05 Jia v...................... 299........... M............fr) Conseil Constitutionnel 25 July 1991...................... 93–325 DC JO 18 August 1993 ...... 308....... 435...................... 04-50-053 . no.... 363 Cour de Cassation 18 May 2005..................... 140325 .......................... 91–294..... 186082 . 278 C-136/03 Dörr and Ünal [2005] ECR I-4759 ......... 286..................legifrance... 370 CE 29 December 1997................ 368............ 401 Court of First Instance T-177/01 Jégo Quéré [2002] ECR II-2365 ........... 145606 ................. 8............................ 503 C-241/05 Bot [2006] ECR I-9627 ........... 347...... et Mme. Faifer.. Spain [2006] ECR I-1097 .. 212315 ............ 371 ....... 310 France (most of the following decisions can be found at http://www.......................... 209037 ............................................................... no........... 218...................... no............................. no. no. Thorel.. JO 27 July 1991 ......... 45 C-432/05 Unibet (unpublished) ...................... 64.Jurisprudence 557 C-467/02 Cetinkaya [2004] ECR I-10895 ......... ......... 237934 ....... Ramdane................. and Mme.. X.. 377 CE 7 April 2006.... no...... 371 CE 10 January 2003......................................................................... 353... 375 CE 15 March 2002. Skandrani...... 376 CE 6 December 2002......... 18 January 2001................ A et Mme A. Igel c/Préfet de la Moselle............................... no..... 229580 ..... 367 Tribunal administratif Lyon........ Hak Ja Han X........................... 371 CE 29 July 2002.... 376 CE 10 November 2006.. 371 CE 29 July 2002................. 252269 ................................ 238288 ... 375 CE 27 November 2006........ X.............. 234462 .. no..................... no....... M............... 236190 ...................... M.... no.......... 210185 .................................................. A et Mme A........ 24 October 2000....... 369................A............ 369 CE 11 March 2002....... no.. no.... no. no.................. no. 355..................... M... 240560 . no.... X........ and Mme........ 369 Tribunal administratif Tribunal administratif Strasbourg..................... 375 CE 13 December 2002......................... no............ 194295–219587................. 275216 ........... 02820... 31 May 2002........... Sahin.......... Noorani Joorawon.............. no..... c/ Préfet de la Haut Garonne............................... no............... Hallal................... Krouf......... X............. 372 CE 14 November 2003........ 359 CE 27 February 2006.... 16 May 2002........... M... 99PA02845 ........... Valencia.... X...... no........... 206277 ... 374 CE 6 November 2002........................ no. no........... 375 Tribunal administratif Pau...................... Mbow........ M................. 374 CE 4 November 2002.............. no... 375 .................. Ciuciu. 222137–222258 ..... 274928 .. 219588 ..... X..... 240090 ............ 342 Tribunal administratif Toulouse........ 276829.... 237808 ........ no................................ 371 CE 20 February 2002...... 371 CE 2 June 2003. no..................................... 373 CE 5 July 2004..................... Sun Myung X (Moon)..... 220420 .. 370 CE 10 March 2004............. no. 374 CE 6 February 2004....... 3 April 1995 ...... 229306 .......................... no...................... no...................... 369 Tribunal administratif Lille....................................................... Boucetta................... Abdelli......................... no............. Kouchi.............. 003366 ........ 223395 .............................. X............. Minin.. no...... no... no......... Gheorghita Catrina......................... 374 CE 30 December 2003............ 369 CE 12 February 2003. 368.558 Jurisprudence CE 11 July 2001............... Mejri..... 9501291–9501292........... no.. 021741 ............................ M.. 224877 ........... (Moon)... 298660.......... 373 CE 23 May 2003.................................................... 6 April 1995.. 375 Cour administrative d’appel Cour administrative d’appel de Paris.................. M.... 221818 .... 298272... 206644..... 375 CE 15 November 2006.......... et Mme........... Amouche.................... M.......... Iqbal........... no............. no.. 375 CE 6 December 2002........ .............. 407 07............. 439 ........2001.............. 1 BvR 385/90 ............. 1 C 35. 0301352 ..... 12 A 10349/99 .............................. 438 19.. 436 Oberverwaltungsgericht Düsseldorf (http://www... 1 BvR 518/02 ............................................... 443 BVerfG 10.... 438 Verwaltungsgerichtshof Kassel (http://www................... 2 BvR 2131/95 ... 416 BVerwG 04. 428 BVerfG 05..........02 ....1999.09......... 437..............09........03... Heft 48.............. Az............................... 375 Tribunal administratif Pau.........1999. 411.... 12 TG 3204/03 ....................... 417 BVerfG 16..2001.......... Az............11........................12.................................................01 ..... 369 Germany Bundesverfassungsgericht (http://www.........2002................Jurisprudence 559 Tribunal administratif Nice. 412..2006.. 198... 310/83 ............ Az. no.. 16 July 2002............. 411 BVerfG 27................04..........hessen............... 3 Wx 351/01 . 422...10. BvR 1908/03 ......................nrw............00 ..... Az.............2004..................2002 Az.bundesverfassungsgericht.. 406 8 February 2002....................bundesverwaltungsgericht........ BVerfGE 65 E 40 ........de) BVerwG 10.......................................12. 2 BvF 1/69 ............03.................1973...... 3 Wx 357/01 ............................vg-kassel..... 2 BvR 244........................................ 412 BVerfG 06.................... 437........... 439 Bundesverwaltungsgericht (http://www........06....... A 11437/06 ..... 1 B 288......................06....2006.11.. 12 B 10331/02 ...........2007...1983..1983..............07................. 1 BvL 14/72 . BvR 1970/95 ..............12. 369........ 411 BVerfG 26. Anton........03.. Barzilay...2002....................2001........... 2446 .07.......... Az.. 1 C 15.1980.......1978.... 412 BVerfG 09.... 12 TG 2668/03 . 419 BVerfG 15............ 420 BVerfG 27... Az...........de) 8 February 2002................ 2 BvR 316/80 ..... 19 November 2004............................... 1 BvR 23 155/73 . 9 TG 546/03 ..... no..3..... 436 12.....12.. 407 Oberverwaltungsgericht Koblenz (http://cms.....01........ 438 BVerwG 14...............olg-duesseldorf.................................1973......................... 408 BVerfG 09................... Az.... 437 11..2003......de) 19.1970................. 436...........de) 22............... Az.....06........ 437 BVerfG 04.......04..................... 023061 .................................................................. p........ 1 BvR 525/77 NJW 1978..de) BVerfG 15.... Az...........2003...............rlp....................................justiz. Az...10.................2003..... 412 BVerfG 18....... 400................. 1 BvR 209/83........justiz.......... 2 BvR 527/99 . .hessen... Az.... 14917........ Az.. Az.. 432.......de) . 408.1995....juris.. 4 T 707/01 . 416........... 1 A 151/04 ..... 421 Verwaltungsgericht Frankfurt am Main..02.. Az.... Az.............. Az.KO (http://cms...... 07..nrw.. 407 Landgericht Landgericht Wiesbaden......... Az............hessen.....rlp..................560 Jurisprudence Verwaltungsgericht Verwaltungsgericht Frankfurt am Main.......hessen..........04..08.................2002............. 434 Amtsgericht Amtsgericht Tiergarten..de) ....nl) Afdeling Bestuursrechtspraak Raad van State 4 July 2006.de) ........03.. Az. 434 Verwaltungsgericht Giessen.......... 11 E 3067/94 (http://www.. 436 Verwaltungsgericht Berlin... case no. 07............rechtspraak...... 21..2002..... Az........11.... 15. 12 VE 1310/95 (http://www.............hessen......... 407 The Netherlands (many of the following decisions can be found at http://www...... RV 1993/70 .. 471 .... 3 December 2004.... 10 G 4510/02 (http://www..01... 432.... VG 3 K 938/98................ 434 Verwaltungsgericht Koblenz. 27...... LJN: AY3839 ....03..2004..........justiz......02.........vg-frankfurt..............................de/cgi-bin/laender_rechtsprechung/ha_frameset......de) ..... 459 Hoge Raad 19 February 1993..2002 zur Rasterfahndung – Az...... 415.. 14 VG 446/02 (http://lrha..................... 23..de) .1998... 434 Verwaltungsgericht Kassel.......... 407 Kammergericht Kammergerichts Berlin... 24 L 2837/02.11...........2002..............justiz..vg-kassel.2002.. 16.....vg-frankfurt.02..... 6... no..1998...justiz....... 09. 84 T 8/02 ......... 1 E 2479/04 (www........... Az.......... Az.vg-kassel...07..justiz.py)..de) .. 1 W 89–98/02 ...justiz.justiz...... 407 Verwaltungsgericht Düsseldorf....... 08.................. 437 Verwaltungsgericht Hamburg.............................. 200602107/1.. InfAusIR 10/2002 (http://www...... .nationaleombudsman............... 494. April 2006.................................... 503 Nationale Ombudsman (http://www................ 6 December 2005... 495 Rechtbank Haarlem..... 8 March 2002................. 502 Rechtbank Breda.. 497 Rechtbank Alkmaar....................................... 505 Decision of 28 January 2000............ 493 Rechtbank Den Haag.................................................... 491.... AWB 06/27382....... 111 ............ 492... 8 December 1999. 491.... report no........ 498 Rechtbank Den Bosch of 4 April 2007....... report no. 21 October 2005.. 03/890 NAV no. JV 2000/59 ............ 14 March 2001....................... no........ 502 Rechtbank Amsterdam.. 16 November 2000.. JV 1999/269 ...... 10 November 2005.......................... 501 Rechtbank Groningen......... 485 Rechtbank Amsterdam.............Jurisprudence 561 Gerechtshof Gerechtshof Den Haag....... 2000/28 ....... 24 July 2006.. 496 Rechtbank Amsterdam. LJN: AY9280 ... 494 Rechtbank Rechtbank Haarlem.... LJN: AR7219 ... 500 Rechtbank Alkmaar... AWB 06/58704.. 79543/HA ...................................................................... 2003/388 ...... 505 Decision of 29 October 2003.......... 490 Rechtbank Den Haag............................nl) Decision of 14 May 1998................................... JV 2007/245 ............................ AWB 05/48358 ................................... JV 2002/162. 500 Rechtbank Amsterdam.......................... 507 Rechtbank Den Haag...... JV 2000/51 .................. 10 January 2001.. 493 Rechtbank Amsterdam........... AWB................ 1 February 2006. 491 Rechtbank Den Bosch...... 23 March 2007. no........... 18 August 1999................ 06/27348 ................ report no. 2.......................... 504 ... 22 December 2006.... 1998/164 ... 2 October 2006................ JV 2006/69 ................... AB 2002/10..... 498 Rechtbank Haarlem....... JV 2005/447 ....... 8 December 2005..... LJN: AV0808 ...... LJN: BA3547......... LJN: BA2132 ..... p........ LJN: AU3548............... 11 March 2005....... 499 Rechtbank Den Haag........... RV 2001/52 .......... 1 November 2005.... 24 September 1999.. 499 Rechtbank Den Haag... 5 January 2000.. LJN AW2418 ........................ 495 Rechtbank Den Haag.................... 24 August 2005............................ AWB 04/24331 ...... 16 July 2004......... JV 2000/8........................ JV 2001/52 . LJN: AY6520 ...... AWB 05/48355... 23 June 2006.... 502 Rechtbank Amsterdam.......... 502 Rechtbank Assen...... . 358. 56. 142. 472. 422. 120. 77. 514. 371. 408. 399. 518. 323. 428. 442. 143. 281. 393. 391. 393. 294. 473 BKA 9. 37. 313. 15. 136. 374 Commission du titre du séjour 365 Common Consular Instructions 14. 223. 391. 525 Commission de recours contre les décisions de refus de visa 365. 435. 369. 445. 27. 43. 334. 366. 24. 250. 137. 203. 403. 386. 264. 507. 399. 27. 121. 526. 447. 346. 139. 500. 252. 90. 416. 222. 356. 420. 498. 393. 357. 191. 338. 320. and Justice 29 Asylum 2. 403. 391. 427. 36. 430 Ad Hoc Group of Immigration 24 Afdeling Bestuursrechtspraak van de Raad van State 488 AGDREF 344. 234. 379 AIVD 459 algemene identificatieplicht 446 Amsterdam Treaty 29. 443 AZRG 383. 462. 423. 436. 359. . 407. 376. 385. 140. 471. 313. 394. 364 D data profiling 158. 133. 352. 74. 292 Conseil d’État 9. 381. 440. 396 Bundesverwaltungsgericht 416 C CNIL 9. 300. 429 Ausländergesetz 390. 448. 269. 525 Data Protection Convention 148. 213. 525. 284. 402. 179. 520 Direction Central de la Police Judiciaire 340 double peine 338. 335. 211. 370. Printed in the Netherlands. 365. 124. 331. 360 Evelien Brouwer. 46. 23. 374. 229. 273. 163. 126. 295. pp. 349. 32. 423 Abschiebung 391. 174. 42. 177. 231. 283. 157. 349. 405. 453. 421 Area of Freedom. 42. 356. 513. 26. 531. 219. 362. 353. 376. 207. 181. 31. 39. 217. 260. 463. 139. 346. 135. 360. 262. 200. 524. 119. 373. Digital Borders and Real Rights. 477. 155. 211. 299. 185. 442. 497. 209. 345. 165. 514. 296. 350. 396. 63. 28. 492. 355. 406. 398. 380. 432. 359. 433.Index A AAH-SDÜ 390. 34. 487. 187. 289. 392. 332. 315. 436. 123. 101. 522. 183. 204. 394. 301. 186. 526 Constitutional Treaty 309. 355. 372. 315 Copenhagen criteria 40. 403. 375. 424. 426. 316. 190. 363. 310. 310. 265. 398. 409. 399. 387. 215. 348. 288. 377. 424. 371. 502. 402. 470. 488. Security. 305 Amtshilfe 202. 523. 189. 419. 501. 405. 347. 484. 379. 221. 473. 398. 404. 516. 47 biometrics 135. 379. 122. 386. 427. 41. 521. 72. 188. 29. 486. 372. 125. 190. 458. 298. 141. 505 AZR 393. 41. 247. 429 Benelux Agreement 20. 563–566. 400. 422 B BDSG 417. 421. 138. 353. 114. 120. 395. 212. 381. 533 Aufenthaltsgesetz 390. © 2008 Koninklijke Brill NV. 362. 287. 357. 267. 30. 134. 117. 380. 409. 368. 422 Ausreisepflicht 391 AWB 478. 487. 3. 275. 523. 150. 60. 397. 128. 440 Bundesamt für Verfassungsschutz 394 Bundesgrenzschutz 390. 428. 57. 118. 305 Cour de Cassation 356. 505. 214. 132. 441. 377. 402. 220. 347. 397. 347. 178. 187. 38. 257. 441. 405. 354. 400. 335. 185. 184. 240. 482. 508. 460. 461. 57. 138. 233. 289. 141. 248. 3. 310 EU citizenship 97. 517 Interpol 24. 286. 305. 77. 373. 230. 336. 220. 464. 172. 133. 100. 194. 514. 123. 231. 494. 19.564 Index Dublin Convention 2. 297. 120. 403. 229. 268. 220. 125. 375. 471 J Joint Supervisory Authority (JSA) 10. 84. 249. 124. 228. 401. 14. 509 . 308. 249. 308. 480. 202. 394. 24. 92. 488. 451. 156. 126. 400. 162. 132. 74 HAVANK 470. 118. 448 JSA 66. 305. 127. 528 interoperability principle of 2. 490. 15. 272. 64. 130. 103. 174. 231. 220 Europol 13. 241. 128. 317. 237. 468. 466. 473. 185. 452. 238 expulsion 21. 471. 283. 66. 126 E EDPS 127. 191 European Arrest Warrant 14. 25. 254. 479. 133. 501. 85. 150 Dublin Regulation 118. 479. 229. 51. 3. 190. 298. 101. 118. 132. 211. 14. 366. 121. 273 family life right to 152. 280. 203. 228. 290. 230. 413. 29. 178. 138. 231. 65. 519. 137. 21. 384. 335. 323. 113 internal borders 16. 117. 332. 73. 226. 130. 472. 139. 473 Hoge Raad 471 I IND 9. 63. 324. 34. 111 European Data Protection Supervisor (EDPS) 127. 516 family reunification 41. 150 EU Charter of Fundamental Rights 193. 25. 497. 257. 92. 360. 298. 32. 142. 500. 520. 481. 515. 87. 255. 208. 492. 345. 56. 24. 428. 81. 65. 124. 227. 246. 119. 245. 511. 256. 406. 26. 534 G GBA 199. 484. 475. 70. 106. 440. 421 informationelles Selbstbestimmungsrecht 418 interdiction du territoire français 378 interlinking 101. 491. 339. 123. 150. 78. 66. 421 informationelle Gewaltenteilung 420. 33. 131. 132. 93. 41. 84. 106. 305. 503. 174. 515. 324. 174. 412. 398 external borders 2. 73. 533 Eurojust 13. 74. 294. 465. 251. 496. 60. 105. 251. 133. 347. 460. 242. 13. 144. 515. 72. 16. 528. 511. 173. 133. 83. 85. 389. 515. 163. 87. 114. 85. 91. 75. 375. 389. 75. 320. 531 ELOI 348 entry/exit system 134. 513. 17. 495. 169. 14. 480. 287. 276. 105. 60. 467. 448. 35. 141. 529 financial repair right to 242. 143. 56. 135. 470. 219. 463. 256. 22. 46. 87. 47. 453 Eurodac 2. 105. 30. 219. 91. 30. 32. 482 K KLPD 9. 514 F FAED 347 fair trial right to a 162. 35. 174. 469 Gendarmerie 9 H Hague Programme 31. 172. 512. 243. 77. 144. 65. 45. 285. 32. 502 FPR 338. 107. 481. 91. 134. 53. 342. 407. 325. 387 internal security 3. 122. 120. 136. 492. 191. 516. 7. 177. 126. 346 freedom of movement 7. 519. 510 informational division of powers 201. 307. 501. 119. 39. 508. 310. 22. 329. 151. 10. 385. 262. 245. 152. 113. 128. 118. 149. 314. 143. 74. 97. 94. 486. 28. 529. 344. 282. 117. 518. 81. 94. 460. 502. 516. 134. 177. 347. 295. 245. 482. 143. 20. 499. 462. 279. 271. 442. 359. 108. 202. 516. 401. 491. 435. 488. 528. 531 sensitive data 150. 132. 409. 167. 223. 502. 430. 189. 435 preliminary proceedings 44. 456. 522. 47. 366 M Mikrozensusurteil 417 N national security 2. 337. 164. 440. 359. 303. 321. 389. 58. 520. 485. 420. 300. 517 Nordic Passport Union 21 O OECD 179. 246. 269. 310. 353. 352. 413. 212. 314. 362. 365 Loi Pasqua 359. 517 Single Market 18. 61. 71. 364. 281. 58. 357. 441. 454. 533. 296. 21. 165. 291. 517 R Rasterfahndung 403. 314. 519 Treaty of Amsterdam 41. 484. 315. 294. 333. 275. 83. 359. 487. 312. 208. 304 Treaty of Rome 15 U Übermaßverbot 413 . 411. 375. 435. 195. 314. 264. 152. 347. 474. 287. 366. 204. 353. 415. 364. 321. 340. 313. 379. 35. 478. 154. 448. 421. 358. 157. 318. 42. 142. 217. 71. 299. 488. 325. 95. 58. 315. 529. 379. 381. 345. 314. 72. 38. 360. 43. 240. 422. 151. 128. 289. 52. 208. 311. 458. 222. 183. 59. 240. 533. 522 T Tampere Conclusions 30. 306. 144. 266. 207. 305. 240. 166. 319. 292. 156. 223. 312. 319. 525. 204. 54. 364 Loi Sarkozy 338. 377. 257. 518. 535 questions 44. 90. 313. 289. 502. 205. 342. 200. 57. 535 request 44. 396. 521. 39. 512 S Schengen acquis 36. 442 RMV 343. 63. 352 ongewenst gesignaleerde vreemdelingen 455. 23 SIRENE 9. 174. 116 suspensive effect 5. 435. 330. 164. 521. 248. 298. 165. 275. 447 Treaty of Maastricht 8. 320. 443. 362. 103. 505 P Passport Union 16 Persönlichkeitsrecht 418. 58. 521. 457 ongewenst verklaarde vreemdelingen 455 ongewenstverklaring 455 OPS 455. 535 565 proportionality principle of 94. 525. 311. 223. 306. 287. 158. 276 terrorist lists 79. 365 Loi Debré 346. 86. 40. 166. 209. 96. 101. 507. 349 OFPRA 347. 107. 197. 92. 68. 356. 109. 515. 315. 65. 477. 341. 41. 351. 97. 282. 150. 397. 49. 196. 76. 360. 534 SIRPIT 99. 460. 402. 275. 317. 333 Schengen Borders Code 62.Index L LIFL 349. 346 rule of law 40. 290. 459. 213. 96. 167. 198. 352. 477. 467. 99. 121. 69. 87. 350. 462. 240. 311. 312. 256. 317. 182. 201. 404. 413. 356. 401. 89. 468. 63. 309. 97. 207. 245. 499. 324. 58. 360. 361. 58. 366. 89. 152. 510. 48. 462. 53. 213. 239. 175. 461. 401. 267. 253. 354. 301. 395. 381 Loi Chevènement 343. 71. 352. 89. 395. 394. 100. 219. 169. 502. 525. 336. 44. 460. 252. 532 Prüm Treaty 46 purpose limitation 185. 210. 57. 525. 442. 107. 81. 222. 406. 449. 175. 287. 271. 361. 533. 167. 502. 306. 313. 305. 530 non-discrimination principle 221. 247. 399. 479. 441 Vreemdelingenbesluit 2000 454 W WBP 477. 399 . 419. 199. 480. 481. 442 Volkszählungsurteil 197. 435. 483. 97. 417. 107. 115. 398 Zuwanderungsgesetz 390. 395 Vreemdelingencirculaire 2000 454 Vreemdelingenwet 2000 453 V Verfassungsbeschwerde 400 Verhältnismässigkeit 413. 202. 478. 484 Z Zurückschiebung 391.566 Index UN Security Council Resolution 1373 459 UN terrorist list 79. 482.