Explanatory Memorandum to COM(2004)99 - Visa Information System (VIS) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2004)99 - Visa Information System (VIS). |
|---|---|
| source | COM(2004)99  |
| date | 13-02-2004 |
The development and establishment of the Visa Information System (VIS), which is defined by the Council as a system for the exchange of visa data between Member States i, requires the elaboration of a comprehensive legal framework. Since a political orientation by the Council is still required for basic elements of the VIS, a fully fledged proposal for a legal instrument concerning the establishment of the VIS will be presented at a later stage. Such a further legal instrument will define in particular the system and its operation, including the categories of data to be entered into the system, the purposes for which they are to be entered and the criteria for their entry, the rules concerning the content of VIS records, the rights of access for authorities to enter, update and consult the data and rules on the protection of personal data and its control.
The present proposal is aimed at allowing the development of the VIS to take place by means of Community financing as of 2004 and in accordance with the relevant provisions of the Treaty, whereas the national infrastructures shall be developed within the responsibility of Member States.
Contents
On 20 September 2001, the JHA Council, in point 26 of its conclusions, invited the Commission to submit proposals for establishing a network for information exchanges concerning visas issued.
The European Council meeting in Laeken on 14-15 December 2001 asked the Council and the Member States, in point 42 of its conclusions, to take steps to set up a common visa identification system.
The Communication from the Commission to the Council and the European Parliament on the Development of the Schengen Information System II of 18 December 2001, expressed: 'A new function for exchanging information on visas issued would involve information that is already obtained from or required of visa applicants. A visa function of this kind could be useful, in particular as an identification tool for the following purposes: combating terrorism and organised crime, ensuring the authenticity of issued visas at external borders, improving the examination of visa applications to make it easier to check the bona fide status of travellers (starting from the second application for a visa), facilitate movement for travellers who have lost their documents, and contributing towards returning illegal residents.'
In the comprehensive plan to combat illegal immigration and trafficking of human beings in the European Union, adopted by the JHA Council on 28 February 2002 and based on the Communication from the Commission to the Council and the European Parliament on a common policy on illegal immigration of 15 November 2001, among the measures and actions concerning visa policy contained in this plan, provision is made for the development of a European Visa Identification System to complement the concept of more secure documents.
Point 36 of this plan refers to the conclusions of the JHA Council held on 20 September 2001 and states: 'A series of reflections and feasibility studies should be instigated and could explore whether such a common electronic system could complement the concept of security documents in order to create a dual identification process based on secure documents and a database'.
Point 37 states that 'in order to ensure that the services responsible have information which is as full and helpful as possible, this database should not only contain details of visas issued but also data concerning visas applied for and refused'.
Point 38 adds that 'such a system could include information which is already gathered or required from the visa applicant today, such as personal particulars. In addition, an electronic photo could be taken and stored, together with the biometric data of the applicant. Travel documents should also be scanned and stored, which would have two major advantages. First, subsequent manipulations of the travel document could be easily detected by comparison of the travel document with its image. Secondly, the stored image of the travel documents could be used to obtain new travel documents quickly, when a person is obliged to leave the country but tries to conceal his or her identity. Anyway, the development of such a system should be based on a clear definition of needs and objectives as well as a thorough evaluation of existing initiatives (including the possibilities already offered by the SIS and VISION) and resources to be mobilised'.
The JHA Council adopted Guidelines for the introduction of a common system for an exchange of visa data on 13 June 2002 i. According to these guidelines the Visa Information System (VIS) is a system for the exchange of visa data between Member States, which "must meet the following objectives:
(a) constitute an instrument to facilitate the fight against fraud, by improving exchanges of information between the Member States (at consular posts and at border crossing points) on visa applications and responses thereto;
(b) contribute to the improvement of consular cooperation and to the exchange of information between central consular authorities;
(c) facilitate checks that the carrier and the holder of the visa are the same person, at external border checkpoints or at immigration or police checkpoints;
(d) contribute to the prevention of 'visa shopping';
(e) facilitate application of the Dublin Convention i determining the State responsible for examining applications for asylum;
(f) assist in the identification and documentation of undocumented illegals and simplify the administrative procedures for returning citizens of third countries;
(g) contribute towards improving the administration of the common visa policy and towards internal security and to combating terrorism."
The European Council in Seville on 21-22 June 2002 called on the Council and the Commission, within their respective spheres of responsibility, to attach top priority to the introduction of a common identification system for visa data, in the light of a feasibility study and on the basis of the guidelines from the Council.
The Commission had launched on 16 September 2002 a feasibility study on technical and financial aspects of the VIS, whose results were submitted to the Council in May 2003.
Building upon the Conclusions of the European Council of Laeken and Seville, the JHA Council of 5-6 June 2003 underlined the importance of creating a common European system for an exchange of visa data and welcomed the feasibility study, as presented by the Commission. It also confirmed the objectives for such a Visa Information System (VIS) as set out in the guidelines adopted by the Council on 13 June 2002, and invited the Commission to continue its preparatory work on the development of the VIS in cooperation with Member States on the basis of a centralised architecture, taking into account the option of a common technical platform with SIS II, without delaying the development of SIS II i.
Referring to the Council conclusions of 5 June 2003 on the development of the Visa Information System (VIS), the European Council of Thessaloniki of 19-20 June 2003 (in point 11 of its conclusions) deemed necessary that, "following the feasibility study by the Commission, orientations should be determined as soon as possible, in order to satisfy the preferred options, with regard to the planning for the development of the VIS, the appropriate legal basis which will permit its establishment and the engagement of the necessary financial means, while respecting the financial perspectives. In this framework a coherent approach is needed in the EU on biometric identifiers or biometric data, which would result in harmonised solutions for documents for third country nationals, EU citizens' passports and information systems (VIS and SIS II). The Council requests that the Commission prepare the appropriate proposals, starting with visas, while fully respecting the envisaged timetable for the introduction of the Schengen Information System II."
The establishment of the VIS requires the elaboration of a further fully fledged proposal, depending on political orientation by the Council on basic elements of the VIS.
Ahead of that further legal instrument, this first Decision gives to the Commission the mandate to prepare the technical development of VIS and to provide the required legislative basis to allow for the inclusion in the Community budget of the necessary appropriations for the technical development of VIS and the execution of that part of the budget. Furthermore the Commission shall be assisted by the SIS II committee i in accordance with the management procedures. It is appropriate to use that existing Committee in particular in view of synergies between the VIS and SIS II as well as of the general concern to rationalise the number of committees.
This Decision is without prejudice to the adoption in future of the necessary legislation establishing and describing in detail the operation and use of VIS. Such a further legal instrument will define in particular the system and its operation, including the categories of data to be entered into the system, the purposes for which they are to be entered and the criteria for their entry, the rules concerning the content of VIS records, the rights of access for authorities to enter, update and consult the data, and rules on the protection of personal data and their control.
This Decision is founded on Article 66 of the EC Treaty. It concerns the development of a system for cooperation via the exchange of visa data between Member States 'which have abolished checks at their internal borders' and participate 'in the system of free movement without checks at internal borders' i. Therefore the Decision does not concern substantial visa policy measures. Since the VIS involves the exchange of visa data between the relevant departments of the administrations of the Member States responsible for issuing and checking visas, Article 66 TEC is the appropriate legal basis, as it enables the Council to take measures to ensure cooperation between the relevant departments of the administrations of the Member States in areas covered by Title IV TEC, as well as between those departments and the Commission i.
According to Article 67 i TEC, the Council shall act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament during the current transitorial period of five years following the entry into force of the Treaty of Amsterdam. From 1 May 2004 the Council shall act by qualified majority after consulting the European Parliament, as laid down in the Protocol on Article 67 TEC, adopted at Nice.
Since the initiative relates to the exchange of visa information between Member States which have abolished checks at their internal borders and participate in the system of free movement without checks at internal borders, it constitutes a measure to support the common visa policy, and thus a development of the Schengen acquis. The procedures laid down in the Association Agreement i concluded by the Council and the Republic of Iceland and the Kingdom of Norway concerning the latters' association with the implementation, application and development of the Schengen acquis are therefore applicable.
According to Article 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland i, and 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 i, the United Kingdom and Ireland are not taking part in the adoption of the Decision and are not bound by it or subject to its application.
Pursuant to the Protocol on the position of Denmark annexed to the TEU and the TEC, Denmark will not participate in the adoption of the Decision and is therefore not bound by it or subject to its application. Given the fact that the Decision is an act which aims to build upon the Schengen acquis in accordance with the provisions of Title IV of the TEC, Article 5 of the above-mentioned Protocol applies.
Since the initiative constitutes an act building upon the Schengen acquis or otherwise related to it within the meaning of Article 3 i of the Act of Accession, it shall only apply in a new Member State pursuant to a Council decision and the conditions laid down in that provision.
The proposal provides the appropriate legislative basis for the use of the general budget of the European Communities to develop a common system for the exchange of visa data between Member States, which consists of a Central Visa Information System (CS-VIS), a National Interface in each Member State (NI-VIS) and the communication infrastructure between the CS-VIS and the National interfaces. As this Decision constitutes a development of the Schengen acquis, Iceland and Norway must be associated. These objectives cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and impact of the action, be better achieved at Community level.
The development of VIS will require substantial work on the implementation of the technical platform, including overall project management. In addition, further legislative developments should be considered in relation to future functionalities and the various options with respect to the operation of VIS in the medium to long term. The present initiative therefore does not go beyond what is necessary to achieve their objective.
The impact of the development of the VIS, which consists of a Central Visa Information System (CS-VIS), a National Interface in each Member State (NI-VIS) and the communication infrastructure between the CS-VIS and the National Interfaces, on the Communities' budget is outlined in the Financial Statement (Annex).
That financial statement indicates the budget needed for the development of the VIS as of 2004 regarding alphanumeric data and photographs, whereas - depending on the decision of the Council - the biometrics component and possibly a component for the use of scanned documents could be developed at a later stage.
These budget figures do not cover the impact on the national infrastructures in Member States beyond the national interfaces, which shall be developed by the Member States. Thus an additional financial burden will be borne by the Member States for the development of these infrastructures, in particular for the adaptation of existing national systems to the VIS, the world-wide connections to their consular posts and their equipment, shipping and training. As one element for the respective assessment of each Member State the feasibility study provides cost estimates for offices issuing visas on the basis of a standard configuration.
Article 1
This Article provides in its first paragraph that a system for the exchange of visa data between Member States, to be known as 'the Visa Information System' (VIS), is hereby established and that the VIS shall enable to enter and up-date visa data and to consult these data electronically by authorised national authorities, which will be defined in the second legal instrument.
Paragraph 2 provides that the VIS shall be based on a centralised architecture, as decided by the JHA Council of 5-6 June 2003, and that the VIS shall consist of a 'Central Visa Information System' (CS-VIS), an interface in each Member State ("National Interface" - NI-VIS), which shall provide the connection to the relevant central national authority of the respective Member State, and the communication infrastructure between the Central Visa Information System and the National Interfaces.
This Article gives the mandate to the Commission to develop the VIS as defined in Article 1 and clarifies that the national infrastructures beyond the National Interfaces shall be developed by the Member States.
These Articles provide that the measures necessary for the development of VIS shall be taken in accordance with the management procedure set out in Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission i, and that the Commission shall be assisted by the SIS II committee as set up by Article 5 i of Council Regulation (EC) No 2424/2001 of 6 December 2001 on the development of the second generation Schengen Information System (SIS II) i.
Furthermore, Article 3 describes such measures: Point (a) concerns the design of the physical architecture of the system including its communication network, point (b) technical aspects of the use of the system, including the confidentiality, transmission, storage and deletion of information, point (c) technical aspects of the testing and deployment of the system, and point (d) technical aspects of the migration, integration and support.
Article 4 (2)-(3) stipulate that Articles 4 and 7 of Decision 1999/468/EC apply and that the Committee shall adopt its rules of procedure; it determines also the period laid down in Article 4 i of Decision 1999/468/EC.
Pursuant to this provision, the Commission is under an obligation to submit yearly progress reports to the European Parliament and the Council concerning the development of the VIS.
These provisions determine the date of entry into force of the Decision and stipulate that it is addressed to the Member States.