2012年-CEPS欧洲政策研究中心_The_Schengen_Information_System_and_the_EU_Rule_of_Law_9页_88kb

The Schengen Information System and the EU Rule of Law Summary

1. Introduction

This Policy Brief summarizes the findings of a case study on the development of the Schengen Information System II (SIS II), conducted as part of the INEX project, which focuses on converging and conflicting ethical values in the EU's internal and external security strategies. The study examines the governance and decision-making processes during the design and development of SIS II, which is a key component of the EU's Area of Freedom, Security and Justice (AFSJ). SIS II was chosen for analysis due to its central role in EU internal security, its association with inefficient policymaking, and the ethical concerns surrounding its new functionalities, such as biometric data storage.

2. Key Findings

2.1 SIS II Shaped by the Politics of Emergency

• The development of SIS II was heavily influenced by emergency-driven agendas, particularly in the wake of the 9/11 attacks and the Madrid bombings.
• These events justified a security-oriented logic that prioritized new functionalities without clear legal basis.
• The urgency to expand Schengen to 2004 accession countries led to an unrealistic timetable, sidelining proper policy-making procedures like impact assessments and democratic debate.

2.2 Fragmented Decision-Making and Intergovernmental Tensions

• The project has been marked by fragmented decision-making and a struggle between Community and intergovernmental methods of cooperation.
• Despite the Commission's increased legislative powers, member states have retained significant control over SIS II through a complex network of expert working groups.
• The proposal for an intergovernmental alternative (SIS I+RE) by Austria, France, and Germany represents a direct challenge to the Commission's role in managing EU IT systems.

2.3 Weak Rule of Law, Transparency, and Democratic Accountability

• The design and development of SIS II lacked transparency, democratic accountability, and adherence to the rule of law.
• Key decisions were made in closed-door Council working groups, limiting opportunities for public debate and scrutiny.
• The European Parliament's role was constrained, particularly through the use of informal trialogue procedures, which hindered its ability to fully assess the implications of SIS II.

2.4 Marginalisation of Proportionality and Fundamental Rights

• Proportionality and fundamental rights considerations were sidelined during the development of SIS II.
• No comprehensive assessment of the necessity, added value, or impact on fundamental rights was conducted prior to its development.
• The introduction of new functionalities, such as biometrics and interoperability with other databases, raises significant ethical concerns that remain unresolved.

3. Policy Recommendations

• Evidence-Based Approach: Future EU information management strategies should prioritize evidence-based policy-making over incident-driven approaches. This includes a thorough assessment of the necessity, efficiency, proportionality, and impact on fundamental rights of new IT systems.
• Proportionality and Rights Compliance: SIS II should not be implemented until it is proven to be proportionate, safe, and reliable. The European Commission's Directorate-General for Justice, Citizenship and Fundamental Rights and the Fundamental Rights Agency (FRA) should conduct fundamental rights assessments, including comparisons with the current SIS.
• Realistic Timetables: Unrealistic political timetables should be avoided, especially in sensitive areas like security and migration. They risk undermining democratic and judicial oversight, leading to inefficiency and potential violations of fundamental rights.
• Democratic Oversight: The European Parliament must be fully involved in the policy process for large-scale IT systems. It should be provided with sufficient time to scrutinize proposals and ensure democratic accountability.
• Balanced Expertise and Stakeholder Input: Expert input should be balanced with broader perspectives, including those from civil society and practitioners. Formal partnerships with data protection bodies like the European Data Protection Supervisor and Article 29 Data Protection Working Party are recommended.
• Transparency and Safeguards in New Agency: The establishment of an IT agency for managing large-scale systems should include clear legal safeguards to prevent function creep and ensure compliance with the principle of purpose limitation. The agency must operate transparently and be subject to democratic oversight by the European Parliament.
• Ethical Integration in Policy Development: The ethical dimension must be central to future policy strategies. All new databases and technologies should be evaluated for their impact on individuals, with data protection by design becoming a mandatory feature. Individuals must be properly informed of their rights and protected against data inaccuracies and negligent exchanges.

4. Conclusion

The development of SIS II highlights the challenges of balancing security imperatives with the principles of the rule of law, transparency, and democratic accountability. The case study underscores the need for a more structured, rights-based, and transparent approach to the design and implementation of large-scale IT systems in the EU. These recommendations aim to guide future EU policy strategies to ensure they are both effective and compliant with fundamental rights.