Smart Borders – Not DP Smart Enough

June 16, 2013

At their most recent plenary meeting on 5 and 6 June 2013, the Article 29 Working Party adopted an opinion on ‘Smart Borders’, the proposals for an Entry Exit System (EES) and a Registered Traveller Programme (RTP) for the Schengen Area that were presented by the Commission on 28 February 2013. The Opinion focuses, in particular, on serious concerns regarding the proposed Entry Exit System.

The Entry Exit System proposal envisages a centralised storage system for entry and exit data of third country nationals admitted for short stays to the Schengen area, whether required to hold a Schengen visa or not. Rather than having passports stamped on entry to and exit from the Schengen Area, data relating to the identity of the visitor and length and purpose of stay will be entered in the system on entry and will be checked on exit, to ensure that the third country national has not exceeded the maximum permissible stay. A centralised system means that the data can be checked no matter where the third country national exits the Schengen Area. The primary purpose of the system is allegedly to counteract the problem of overstay in the Schengen Area of third country nationals who originally entered for a short stay (max 90 days out of 180 days) on a valid visa or for a valid purpose.

The Working Party recognises the need for integrated border management of the external borders of the EU and acknowledges that improving the management of migration flows and preventing irregular migration are legitimate purposes. However, the Entry Exit System proposed would essentially create a new very huge database and must therefore meet the threshold of being ‘necess ary in a democratic soc iety’ in order to justify its impact on the right to protection of personal data as set out in Article 8 of the EU Charter of Fundamental Rights.

In its opinion the Working Party highlights that the added value of an Entry Exit System to achieve its aims is not a sufficient test to prove its necessity and its proportionality in terms of its impact on fundamental rights. The Working Party’s opinion furthermore calls into question whether the Entry Exit System can be effective in achieving its own stated aims. Even if it were accepted that the proposed system provided significant added value, the opinion concludes that the added value of the Entry Exit System to achieving its stated aims does not meet the threshold of necessity which can justify interference with the rights under Article 8 of the EU Charter of Fundamental rights. Furthermore, the opinion expresses the view that the added value of the proposed system is not proportionate to the scale of its impact on fundamental rights in relation to each of its aims, and that alternatives exist to meet its aims.