Council Implementing Decision (EU) 2020/1745 of 18 November 2020 on the putting into effect of the provisions of the Schengen acquis on data protection and on the provisional putting into effect of certain provisions of the Schengen acquis in Ireland

• CELEX: Implementing Decision (EU) 2020/1745
• Articles: 5

Article 1

1.   The provisions referred to in point (a)(ii) of Article 1 of Decision 2002/192/EC, in so far as they relate to data protection, including the relevant provisions of the acts constituting the developments of the Schengen acquis adopted after the adoption of Decision 2002/192/EC and listed in the Annex to this Decision, shall be put into effect by and apply to Ireland in its relations with the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden, as from 1 January 2021.

2.   The following provisions, including the relevant provisions of the acts constituting the developments of the Schengen acquis adopted after the adoption of Decision 2002/192/EC and listed in the Annex to this Decision, shall be put into effect by and apply to Ireland in its relations with the Kingdom of Belgium, the Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Republic of Croatia, the Italian Republic, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, Hungary, Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland and the Kingdom of Sweden, on a provisional basis and subject to the conditions specified in this Decision, as from 1 January 2021:

(a)

the provisions referred to in point (a)(ii) and (iii) of Article 1 of Decision 2002/192/EC, in so far as they relate to the functioning of SIS; and

(b)

the remaining provisions referred to in Article 1 of Decision 2002/192/EC.

3.   By way of derogation from paragraph 2 of this Article:

(a)

Article 27 of the Schengen Convention, including Directive 2002/90/EC and Framework Decision 2002/946/JHA, which constitute its subsequent developments, as well as Decisions 2008/149/JHA and 2011/349/EU, shall be put into effect by and apply to Ireland, on a provisional basis, as from 1 January 2022 at the latest;

(b)

the Decision of the Executive Committee of 22 December 1994 shall be put into effect by and apply to Ireland, on a provisional basis, as from 1 July 2022 at the latest.

Ireland shall notify to the Council the date from which it will commence the application of the provisions referred to in this paragraph.

4.   As from 4 January 2021, SIS alerts as defined in point (a) of Article 3(1) of Decision 2007/533/JHA and as referred to in Chapters V (alerts in respect of persons wanted for arrest for surrender or extradition purposes), VI (alerts on missing persons), VII (alerts on persons sought to assist with a judicial procedure), VIII (alerts on persons and objects for discreet checks or specific checks) and IX (alerts on objects for seizure or use as evidence in criminal proceedings) of that Decision, as well as supplementary information and additional data as defined in points (b) and (c) of Article 3(1) thereof, connected with those alerts, shall be made available to Ireland in accordance with that Decision.

5.   As from 15 March 2021, Ireland shall enter data into SIS and use the SIS data, as well as supplementary information and additional data referred to in paragraph 4, in accordance with Decision 2007/533/JHA.

Article 2

1.   By 30 June 2021, evaluation visits shall be carried out in Ireland in accordance with the relevant procedures provided for in Regulation (EU) No 1053/2013, in order to verify whether SIS is functioning properly and whether Decision 2007/533/JHA is being applied correctly.

2.   By 31 December 2021, evaluation questionnaires shall be sent to, and evaluation visits shall be carried out in, Ireland in accordance with the relevant procedures provided for in Regulation (EU) No 1053/2013, in order to verify whether the requirements concerning all relevant legislation and operational activities have been satisfied and the provisions of the Schengen acquis relating to judicial cooperation, drugs cooperation, police cooperation and Article 26 of the Schengen Convention are being applied correctly.

3.   The evaluation reports drawn up in accordance with the relevant provisions of Regulation (EU) No 1053/2013 shall take into account the state of preparation for the application or, if applicable, provisional application, by Ireland of the provisions referred to in Article 1(3) of this Decision.

4.   The evaluation reports shall be submitted to the Council. Those reports shall conclude whether the conditions for the application of the relevant provisions of the Schengen acquis in the particular area have been met by Ireland. In case an evaluation report concerning one of the areas judicial cooperation, drugs cooperation, police cooperation or Article 26 of the Schengen Convention concludes that the conditions for the application of the relevant provisions of the Schengen acquis in Ireland in that area have not been met by Ireland, that evaluation report shall explicitly state if and how the non-implementation of those conditions affects the proper functioning of SIS. In the light of the findings and the assessments contained in those evaluation reports, Article 15 of Regulation (EU) No 1053/2013 shall apply.

5.   By way of derogation from Article 16 of Regulation (EU) No 1053/2013, Ireland shall provide the Commission and the Council with an action plan to remedy any deficiencies identified in the evaluation reports within one month of the date of adoption of the recommendations referred to in Article 15 of that Regulation.

In case the Commission concludes in its assessment that the action plan provided by Ireland is inadequate or in case the evaluation reports identified any of the deficiencies as seriously affecting the proper functioning of SIS and that deficiency is not remedied by Ireland within a period of six months from the date of adoption of the recommendations referred to in Article 15 of Regulation (EU) No 1053/2013, Ireland shall cease to be entitled to have an operational access to SIS until the conditions for the application of those provisions have been met by Ireland.

To establish whether Ireland has remedied the identified deficiencies and whether the conditions for application of the relevant provisions of the Schengen acquis have been met, the Commission shall submit to the Council an assessment at the end of the six-month period referred to in the second subparagraph. The Commission shall also transmit that assessment to the European Parliament.

In case the assessment concludes that the conditions for the application of the relevant provisions of the Schengen acquis necessary for the proper functioning of SIS have not been met by Ireland, the Council shall, within one month of the date of that assessment, by means of an implementing act:

(a)

set a date from which point (a) of Article 1(2), Article 1(4) and (5), shall cease to apply; and

(b)

adopt the transitional measures necessary to ensure the exchange of supplementary information concerning alerts issued in SIS before the date referred to in point (a) of this subparagraph.

eu-LISA shall make the necessary arrangements to disconnect Ireland from SIS.

The Council shall, as appropriate, examine the situation with a view to adopting a new decision, by means of an implementing act, setting the date for the provisional putting into effect by Ireland of the provisions referred to in point (a) of Article 1(2) of this Decision.

6.   Without prejudice to paragraph 5 of this Article, upon successful completion of the evaluations, the Council shall, by 31 December 2022, in accordance with Article 4(1) of Decision 2002/192/EC read in conjunction with Article 4 of Protocol No 19, examine the situation with a view to adopting an implementing decision setting the date for the final putting into effect by Ireland of the provisions referred to in Article 1(2) and (3) of this Decision.

The implementing decision referred to in the first subparagraph of this paragraph shall take into account the state of application of the provisions referred to in Article 1(3).

Article 3

This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union .

It shall apply as from 1 January 2021.

Article 4

This Decision shall apply in accordance with the Treaties.

Schedules & Appendices

ANNEX List of acts constituting developments of the Schengen acquis which shall be provisionally put into effect by Ireland

ANNEX

List of acts constituting developments of the Schengen acquis which shall be provisionally put into effect by Ireland

1.

Council Act of 29 May 2000 establishing in accordance with Article 34 of the Treaty on European Union the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (provisions referred to in Article 2(1) of that Convention) ( OJ C 197, 12.7.2000, p. 1 ).

2.

Council Directive 2001/51/EC of 28 June 2001 supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June 1985 ( OJ L 187, 10.7.2001, p. 45 ).

3.

Council Act of 16 October 2001 establishing, in accordance with Article 34 of the Treaty on European Union, the Protocol to the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (provisions referred to in Article 15 of that Protocol) ( OJ C 326, 21.11.2001, p. 1 ).

4.

Council Directive 2002/90/EC of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence ( OJ L 328, 5.12.2002, p. 17 )  ( 1 ) .

5.

Council Framework Decision 2002/946/JHA of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence ( OJ L 328, 5.12.2002, p. 1 )  ( 2 ) .

6.

Council Decision 2003/170/JHA of 27 February 2003 on the common use of liaison officers posted abroad by the law enforcement agencies of the Member States ( OJ L 67, 12.3.2003, p. 27 ).

7.

Council Directive 2004/82/EC of 29 April 2004 on the obligation of carriers to communicate passenger data ( OJ L 261, 6.8.2004, p. 24 ).

8.

Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union ( OJ L 386, 29.12.2006, p. 89 ).

9.

Council Decision 2006/560/JHA of 24 July 2006 amending Decision 2003/170/JHA on the common use of liaison officers posted abroad by the law enforcement agencies of the Member States ( OJ L 219, 10.8.2006, p. 31 ).

10.

Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) ( OJ L 205, 7.8.2007, p. 63 ).

11.

Council Decision 2008/149/JHA of 28 January 2008 on the conclusion on behalf of the European Union of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ( OJ L 53, 27.2.2008, p. 50 )  ( 3 ) .

12.

Council Decision 2011/349/EU of 7 March 2011 on the conclusion on behalf of the European Union of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis , relating in particular to judicial cooperation in criminal matters and police cooperation ( OJ L 160, 18.6.2011, p. 1 )  ( 1 ) .

13.

Council Regulation (EU) No 1053/2013 of 7 October 2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen ( OJ L 295, 6.11.2013, p. 27 ).

14.

Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA ( OJ L 119, 4.5.2016, p. 89 ).

15.

Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU ( OJ L 312, 7.12.2018, p. 56 ).

16.

Regulation (EU) 2019/1240 of the European Parliament and of the Council of 20 June 2019 on the creation of a European network of immigration liaison officers ( OJ L 198, 25.7.2019, p. 88 ).

17.

Regulation (EU) 2020/493 of the European Parliament and of the Council of 30 March 2020 on the False and Authentic Documents Online (FADO) system and repealing Council Joint Action 98/700/JHA ( OJ L 107, 6.4.2020, p. 1 ).

( 1 )   This provision shall be put into effect provisionally as from 1 January 2022.

( 2 )   This provision shall be put into effect provisionally as from 1 January 2022.

( 3 )   This provision shall be put into effect provisionally as from 1 January 2022.