Development of the Schengen Area
On 14 June 1985, five Member States, Belgium, France, Germany, Luxembourg and The Netherlands, signed an agreement to create a territory without borders and provide a common policy on temporary entry of persons and cross-border police co-operation. This became known as the ‘Schengen Area’. The name was taken from the name of the town in Luxembourg, on the border with France and Germany, were such agreement was signed. Thereafter this intergovernmental co-operation expaned to include other Member States.
Taking as a basis the Schengen Agreement on the gradual abolition of checks at common borders, on 19 June 1990, there was the signature of the Schengen Convention between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic. The contracting parites to the Convention, Belgium, Germany, France, Luxembourg and The Netherlands have decided to fulfil the resolve expressed in the Agreement to abolish checks at their common borders on the movement of persons and facilitate the transport and movement of goods at those borders. Accordingly, in order to reconcile freedom and security, this freedom of movement was accompanied by so-called "compensatory" measures. This involved improving co-ordination between the police, customs and the judiciary and taking necessary measures to combat important problems such as terrorism and organised crime. In order to make this possible, an information system known as the Schengen Information System was set up to exchange data on people's identities and descriptions of objects which are either stolen or lost.
The Schengen Information System (SIS)
The SIS is an information system that allows the competent authorities in the Member States to obtain information regarding certain categories of persons and property. Member States themselves provide information through their national section (NSIS) which is then connected to the central data centre. The system establishes communication among all Member States and provides the end-users access to such information online which is necessary to fulfil the direct function. It is thus a vital factor in the smooth running of the area of security, freedom and justice. It contributes to the implementation of the provisions on the free movement of persons and to judicial co-operation in criminal matters and police co-operation.
The Schengen Joint Supervisory Authority (JSA)
The JSA is the Joint Supervisory Authority, set up by the Convention implementing the Schengen Agreement (article 115 (1)), to be responsible for supervising the technical support function of the Schengen Information System (SIS).
This authority consists of two representatives from each national data protection authority of the various Schengen Member States. In accordance with its composition and the competences conferred upon it, the JSA is an independent body with real authority powers.
Besides the task of supervising the technical support function of the SIS, the JSA has to examine any difficulties of application or interpretation that may arise during the operation of the SIS. The JSA has also been assigned the task of delivering opinions and the task of harmonising legal practice and interpretation at national level, in accordance with Council of Europe Convention No. 108 for the Protection of Individuals with regard to Automatic Processing of Personal Data and with the Council of Europe Committee of Ministers’ Recommendation R (87) 15 regulating the use of personal data in the police sector. Such Recommendation was transposed in Maltese Law under the Data Protection Act by virtue of Legal Notice 142 of 2004.
Personal Data Processed by the SIS
Pursuant to the provisions of the Schengen Convention, in particular articles 94-100, the SIS shall process the information supplied by the Contracting Country and such data is related to persons, objects and vehicles. The processed data in relation to a person is limited to the following information:
- surname and forenames, any aliases possibly entered separately;
- any specific objective physical characteristics not subject to change;
- first letter of second forename;
- date and place of birth;
- sex;
- nationality;
- whether the persons concerned are armed;
- whether the persons concerned are violent;
- reason for the alert;
- action to be taken.
Other information, in particular the data listed in the first sentence of Article 6 of the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, concerning sensitive data, shall not be authorised.
The Convention lays down the reasons where an alert may be included in the SIS and these are when there is an:
- Arrest for extradition purpose;
- Alert on aliens for whom an alert has been issued for the puprose of refusing entry;
- Alert on missing persons, missing minors and persons who must be detained following a decision by a competent authority;
- Alert on the witnesses, persons summoned to appear before the judicial authorities in connection with criminal poceedings in order to account for facts for which they are being prosecuted, or on persons who are to be served with a criminal judgement or a summons to report in order to serve a penalty involving deprivation of liberty;
- Alert on persons or vehicles for the purposes of discreet surveillance or of specific checks, for the purpose of prosecuting criminal offences and for the prevention of threats to public security.
What are your rights in relation to your personal data processed in the Schengen Information System?
The Schengen Convention lays down the rights of persons in relation to the personal data processed by the Schengen Information System which can be exercised in accordance with the law of the country; the Data Protection Act, Cap. 440 of the Laws of Malta.
The citizen has the right to:
- have access to data relating to him which has been entered in the Schengen Information System;
- have factually inaccurate data relating to the person corrected or in the case of unlawfully stored data pertaining to him deleted;
- bring before the Courts or the authority competent under the national laws and action to correct, delete or obtain compensation in connection with an alert involving him;
- request the Supervisory Authority to check the data concerning him which has been entered in the SIS and the use made of such data.
National Supervisory Authority
The Office of the Data Protection Commissioner is the national supervisory authority to carry out independent supervision of the data file of the national section of the Schengen Information System and for checking that the processing and use of data entered in the SIS does not violate the rights of the data subject. For this purpose, this Office will have access to the data file of the national section of the Schengen Information System.
For further information, you can reach this Office at the following contact details:
Office of the Data Protection Commissioner
2, Airways House
High Street
Sliema, SLM 1549.
Tel: (356) 2328 7100
Fax: (356) 2328 7198
E-mail: commissioner.dataprotection@gov.mt
The Joint Supervisory Authority for Schengen issues guidance on the right of access
The Joint Supervisory Authority (JSA) for Schengen, which is responsible for the joint supervision of the Schengen Information System (SIS), has issued a guide for exercising the right of access. The JSA consists of representatives from each national data protection authority of the various Schengen Member States.
The guidance addresses the arrangements and procedure for exercising the right of access to the SIS in all Schengen States. It focuses on general principles and definitions relating to SIS providing some case scenarios requiring a particular procedure.
While intended mainly for those with a professional interest in right of access (e.g. Data Protection Agencies, Police, Lawyers) it is also meant to provide practical information which may be consulted by anyone interested in the subject.
Click here to view the guidelines on the right of access (Maltese version)
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