29.12.2012 EN Official Journal of the European Union L 359/32 COUNCIL REGULATION (EU) No 1273/2012 of 20 December 2012 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (recast) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 74 thereof, Having regard to the proposal from the European Commission, Having regard to the opinion of the European Parliament (1), Whereas: (1) Council Regulation (EC) No 1104/2008 of 24 October 2008 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (2) and Council Decision 2008/839/JHA of 24 October 2008 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (3) have been substantially amended. Since further amendments are to be made, they should be recast in the interest of clarity. (2) The Schengen Information System (SIS) set up pursuant to the provisions of Title IV of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (4) (the ‘Schengen Convention’), and the further development, thereof, SIS 1+, constitute essential tools for the application of the provisions of the Schengen acquis as integrated into the framework of the European Union. (3) The development of the second generation Schengen Information System (SIS II) was entrusted by the Council to the Commission pursuant to Regulation (EC) No 2424/2001 (5) and Decision 2001/886/JHA (6). Those acts expired on 31 December 2008 prior to the completion of the SIS II developments. They therefore needed to be supplemented firstly by Regulation (EC) No 1104/2008 and by Decision 2008/839/JHA and subsequently by this Regulation and Council Regulation (EU) No 1272/2012 of 20 December 2012 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (7) at the latest until the termination of the migration from SIS 1+ to SIS II or until a date to be fixed by the Council, acting in accordance with Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (8) and Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (9). (4) SIS II was established by Regulation (EC) No 1987/2006 and by Decision 2007/533/JHA. This Regulation should be without prejudice to the provisions of those acts. (5) Certain tests of SIS II are provided for in Council Regulation (EC) No 189/2008 (10) and in Council Decision 2008/173/JHA (11). (6) The development of SIS II should be continued and should be finalised in the framework of the SIS II global schedule endorsed by the Council on 6 June 2008 and subsequently amended in October 2009 in the light of orientations given by the Council of 4 June 2009 (Justice and Home Affairs). The new version of the SIS II global schedule was presented by the Commission to the European Parliament and the Council in October 2010. (7) A comprehensive test of SIS II should be conducted in full cooperation between the Member States and the Commission, in accordance with the provisions of this Regulation. As soon as possible after its completion, that test should be validated as provided for by Regulation (EC) No 1987/2006 and Decision 2007/533/JHA. Only test data should be used for the purpose of the comprehensive test. (8) Member States should perform a test on the exchange of supplementary information. (9) As regards SIS 1+, the Schengen Convention provides for a technical support function (C.SIS). As regards SIS II, Regulation (EC) No 1987/2006 and Decision 2007/533/JHA provide for a Central SIS II composed of a technical support function and a uniform national interface (NI-SIS). The technical support function of Central SIS II should be located in Strasbourg (France) and a backup in St Johann im Pongau (Austria). (10) In order to better manage the potential difficulties brought about by the migration from SIS 1+ to SIS II, an interim migration architecture for SIS should be established and tested. The interim migration architecture should have no impact on the operational availability of SIS 1+. A converter should be provided by the Commission. (11) The Member State issuing an alert should be responsible for ensuring that the data entered into SIS is accurate, up to date and lawful. (12) The Commission should remain responsible for Central SIS II and its communication infrastructure. This responsibility includes the maintenance and continuation of the development of SIS II and its communication infrastructure, including at all times the correction of errors. The Commission should provide coordination and support for the joint activities. The Commission should provide, in particular, the necessary technical and operational support to the Member States at Central SIS II level including the availability of a helpdesk. (13) The Member States are and should remain responsible for the development and maintenance of their national systems (N.SIS II). (14) France should remain responsible for the technical support function of SIS 1+, as expressly provided for in the Schengen Convention. (15) Representatives of the Member States participating in SIS 1+ should coordinate their actions within the framework of the Council. It is necessary to set out a framework for that organisational action. (16) In order to support Member States in opting for the most favourable technical and financial solution, the Commission should initiate without delay the process of adapting this Regulation by proposing a legal framework for the migration from SIS 1+ to SIS II which better reflects the technical migration approach outlined in the Migration Plan for the SIS Project (the ‘Migration Plan’) adopted by the Commission after a positive vote by the SIS-VIS Committee on 23 February 2011. (17) The Migration Plan envisages that within the switchover period all Member States, consecutively, will perform their individual switchover of the national application from SIS 1+ into SIS II. It is desirable from a technical point of view that Member States that have switched over be able to use the full scope of SIS II from the time of the switchover and not have to wait until other Member States have also switched over. Therefore, it is necessary to apply Regulation (EC) No 1987/2006 and Decision 2007/533/JHA from the time of the initiation of the switchover by the first Member State. For reasons of legal certainty, the period of switchover should be kept as short as possible, and should not exceed 12 hours. The application of Regulation (EC) No 1987/2006 and Decision 2007/533/JHA should not prevent Member States, which have not switched over yet or which have had to fall back for technical reasons, from using SIS II limited to SIS 1+ functionalities during the intensive monitoring period. In order to apply the same standards and conditions to alerts, data processing and data protection in all Member States, it is necessary to apply the SIS II legal framework to the SIS operational activities of the Member States which did not yet switch over. (18) It is necessary to maintain the application of certain provisions of Title IV of the Schengen Convention on a temporary basis by incorporating those provisions into this Regulation as they provide the legal framework for the converter and the interim migration architecture during the migration. The interim migration architecture for the operations of SIS 1+ allows SIS 1+ and certain technical parts of the SIS II architecture to operate in parallel during a limited transitional period which is needed to make possible an incremental migration from SIS 1+ to SIS II. (19) Regulation (EC) No 1987/2006 and Decision 2007/533/JHA provide that the best available technology, subject to a cost-benefit analysis, should be used for Central SIS II. The Annex to the Council Conclusions on the further direction of SIS II of 4-5 June 2009 laid down milestones which should be met in order to continue with the current SIS II project. In parallel, a study has been conducted concerning the elaboration of an alternative technical scenario for developing SIS II based on SIS 1+ evolution (SIS 1+ RE) as the contingency plan, in case the tests demonstrate non-compliance with the milestone requirements. Based on these parameters, the Council may decide to invite the Commission to switch to the alternative technical scenario. (20) The description of the technical components of the interim migration architecture should therefore be adapted to allow for another technical solution, and in particular the SIS 1+ RE regarding the development of Central SIS II. SIS 1+ RE is a possible technical solution to develop Central SIS II and to achieve the objectives of the SIS II laid down in Regulation (EC) No 1987/2006 and Decision 2007/533/JHA. (21) The SIS 1+ RE is characterised by uniqueness of means between SIS II development and SIS 1+. The references in this Regulation to the technical architecture of SIS II and to the migration process should therefore, in case of implementation of an alternative technical scenario, be read as the references to SIS II based on another technical solution, as applied mutatis mutandis to the technical specificities of that solution, in keeping with the objective to develop Central SIS II. (22) In any technical scenario, the result of migration at central level should be availability of the SIS 1+ database and new SIS II functionalities, including additional data categories, in the Central SIS II. In order to facilitate data loading it should be specified that deleted data as referred to in Article 113(2) of the Schengen Convention will not be migrated from SIS 1+ to SIS II. (23) The Commission should be empowered to contract out to third parties, including national public bodies, tasks conferred upon it by this Regulation and tasks relating to the implementation of the budget, in accordance with Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (12) (the ‘Financial Regulation’). Any such contract should respect the rules of data protection and data security and take into account the role of the relevant data protection authorities applicable to the SIS, in particular the provisions of the Schengen Convention and of this Regulation. (24) As regards the financing of the development of the Central SIS II based on an alternative technical solution, it should be covered by the general budget of the Union while respecting the principle of sound financial management. In accordance with the Financial Regulation the Commission may delegate budget implementation tasks to national public sector bodies. Following the political orientation and subject to the conditions laid down in the Financial Regulation, the Commission would be invited, in case of switchover to the alternative solution, to delegate the budget implementation tasks related to the development of the SIS II based on SIS 1+ RE to France. (25) Regulation (EC) No 1987/2006 and Decision 2007/533/JHA, as well as Decision No 574/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing the External Borders Fund for the period 2007 to 2013 as part of the General Programme Solidarity and Management of Migration Flows (13), included SIS II national developments among the eligible actions to be co-financed under the External Borders Fund (EBF). Commission Decision 2007/599/EC of 27 August 2007 implementing Decision No 574/2007/EC of the European Parliament and of the Council as regards the adoption of strategic guidelines for 2007 to 2013 (14) further identified SIS II as one of the five strategic priorities under the EBF, recognising the importance of supporting the coherent and timely development of the national projects alongside the central SIS II. Since the adoption of those legal acts, the SIS II project received a significant reorientation in the course of 2010, after the completion of an important test campaign, the ‘Milestone 1’. Furthermore, the evolutions in the use of the SIS by the Member States led to a need to update the SIS II technical requirements concerning performance and storage capacity which affected the costs of the SIS II project both at central and national level. (26) With regard to the migration process from SIS 1+ to SIS II, the evolution in requirements and the advances made in the completion of the SIS II project led to a redefinition of the migration architecture, of the migration calendar and of the testing requirements. An important part of the activities that would now be required at Member State level for the migration to SIS II were not anticipated at the time when Regulation (EC) No 1104/2008 and Decision 2008/839/JHA were adopted or at the time when the financial package and the multiannual programmes under the EBF were drawn up. It is, therefore, necessary to partly realign the cost distribution principles for the migration from SIS 1+ to SIS II. Certain national activities related to that migration, in particular in connection with the participation of Member States in migration-related testing activities could be co-financed from the SIS II budget line of the general budget of the Union. That possibility should cover specific and well-defined activities beyond, and not to coincide with, other SIS II related actions which would continue to be supported under the EBF. The financial assistance thus provided under this Regulation should be complementary to that provided by the EBF. (27) In relation to the co-financing provided under this Regulation, appropriate measures should be taken to prevent irregularities and fraud and the necessary steps should be taken to recover funds lost, wrongly paid or incorrectly used, in accordance with Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (15), Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (16), and Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (17). (28) In order to ensure uniform conditions for the implementation of this Regulation, taking into consideration the financial impacts of the decision upon Member States, which should remain fully involved when the Commission exercises its implementing powers, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (18). (29) The Commission and the Member States should continue to cooperate closely during all steps of the development of the SIS II and the migration from SIS 1+ to SIS II in order to complete the process. In the Council conclusions on SIS II of 26-27 February 2009 and 4-5 June 2009, an informal body consisting of the experts of the Member States and designated as the ‘Global Programme Management Board’, was established to enhance the cooperation and to provide direct Member States support to the central SIS II project. The positive result of the work of that group of experts and the necessity of further enhancing the cooperation and the transparency of the central SIS II project justify the formal integration of the group of experts into the SIS II management structure. A group of experts, called the Global Programme Management Board, should therefore be formally established to complement the current SIS II organisational structure. In order to ensure efficiency as well as cost effectiveness the number of experts should be limited. The activities of the Global Programme Management Board should be without prejudice to the responsibilities of the Commission and of the Member States. (30) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (19) applies to the processing of personal data by the Commission. (31) The European Data Protection Supervisor is responsible for monitoring and ensuring the application of Regulation (EC) No 45/2001 and is competent to monitor the activities of the Union institutions and bodies in relation to the processing of personal data. The Joint Supervisory Authority is responsible for supervising the technical support function of the current SIS 1+ until the entry into force of the SIS II legal framework. National Supervisory Authorities are responsible for the supervision of the processing of SIS 1+ personal data on the territory of their respective Member States and remain responsible for monitoring the lawfulness of the processing of SIS II personal data on the territory of their respective Member States. This Regulation should be without prejudice to the specific provisions of the Schengen Convention as well as of Regulation (EC) No 1987/2006 and of Decision 2007/533/JHA on the protection and security of personal data. That SIS II legal framework provides that the National Supervisory Authorities and the European Data Protection Supervisor ensure the coordinated supervision of SIS II. (32) The migration from SIS 1+ to SIS II is a complex process which, despite extensive preparation by all stakeholders, entails significant technical risks. It is desirable for the legal framework to provide for the necessary flexibility to respond to unexpected difficulties which the central system or one or several national systems could face during the migration process. Therefore, while for reasons of legal certainty the switchover phase and the intensive monitoring period during which the interim migration architecture continues to exist should be as short as possible, the Council should, in case of technical difficulties, be enabled to fix the final date for the termination of migration in accordance with Article 55(2) of Regulation (EC) No 1987/2006 and Article 71(2) of Decision 2007/533/JHA. (33) Since the objectives of this Regulation, namely setting up the interim migration architecture and migrating the data from SIS 1+ to SIS II, cannot be sufficiently achieved by the Member States and can, therefore, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary to achieve those objectives. (34) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. (35) In order to give effect in 2012 to the financial facility which could be provided to Member States from the general budget of the Union in accordance with this Regulation, this Regulation should enter into force on the day following its publication. (36) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (20) which fall within the area referred to in Article 1, point G, of Council Decision 1999/437/EC (21) on certain arrangements for the application of that Agreement. (37) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning 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 (22) which fall within the area referred to in Article 1, point G, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (23). (38) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning 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 (24) which fall within the area referred to in Article 1, point G, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (25). (39) In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark, annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law. (40) This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (26); the United Kingdom is therefore not taking part in its adoption and is not bound by it or subject to its application. (41) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with 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 (27); Ireland is therefore not taking part in its adoption and is not bound by it or subject to its application. (42) This Regulation is without prejudice to the arrangements for the partial participation of Ireland and the United Kingdom in the Schengen acquis as determined by Decisions 2000/365/EC and 2002/192/EC respectively. (43) As regards Cyprus, this Regulation constitutes an act building upon, or otherwise related to, the Schengen acquis within the meaning of Article 3(2) of the 2003 Act of Accession. (44) The European Data Protection Supervisor was consulted and delivered an opinion on 9 July 2012 (28), HAS ADOPTED THIS REGULATION: Article 1 General purpose 1. The Schengen Information System (SIS), set up pursuant to the provisions of Title IV of the Schengen Convention (SIS 1+), shall be replaced by a new system, the Schengen Information System II (SIS II), the establishment, operation and use of which is regulated by Regulation (EC) No 1987/2006. 2. In accordance with the procedures and the division of tasks set out in this Regulation, SIS II shall be developed by the Commission and the Member States as a single integrated system and shall be prepared for operations. 3. The development of SIS II may be achieved by implementing an alternative technical scenario characterised by its own technical specifications. Article 2 Definitions For the purposes of this Regulation, the following definitions shall apply: (a) ‘Central SIS II’ means the technical support function of SIS II containing a database, the ‘SIS II database’, and a uniform national interface (NI-SIS); (b) ‘C.SIS’ means the technical support function of SIS 1+, containing the reference database for SIS 1+ and the uniform national interface (N.COM); (c) ‘N.SIS’ means the national system of SIS 1+, consisting of the national data systems which communicate with C.SIS; (d) ‘N.SIS II’ means the national system of SIS II, consisting of the national data systems which communicate with Central SIS II; (e) ‘converter’ means a technical tool to allow consistent and reliable communication between C.SIS and Central SIS II, ensuring the functionalities provided for in Article 10(3) and allowing the conversion and synchronisation of data between C.SIS and Central SIS II; (f) ‘comprehensive test’ means the test referred to in Article 55(3)(c) of Regulation (EC) No 1987/2006; (g) ‘test on supplementary information’ means functional tests between the SIRENE Bureaux. Article 3 Subject matter and scope This Regulation defines the tasks and responsibilities of the Commission and the Member States participating in SIS 1+ with respect to the following tasks: (a) the maintenance and continuation of the development of SIS II; (b) a comprehensive test of SIS II; (c) a test on supplementary information; (d) the continuation of the development and testing of a converter; (e) the establishment and testing of an interim migration architecture; (f) the migration from SIS 1+ to SIS II. Article 4 Technical components of the interim migration architecture In order to ensure the migration from SIS 1+ to SIS II, the following components shall be made available to the extent necessary: (a) the C.SIS and the connection to the converter; (b) the communication infrastructure for SIS 1+ allowing the C.SIS to communicate with the N.SIS; (c) the N.SIS; (d) Central SIS II, NI-SIS and the communication infrastructure for SIS II allowing the Central SIS II to communicate with N.SIS II and the converter; (e) the N.SIS II; (f) the converter. Article 5 Main responsibilities in the development of SIS II 1. The Commission shall continue to develop the Central SIS II, the communication infrastructure and the converter. 2. France shall make available and operate C.SIS in accordance with the provisions of the Schengen Convention. 3. The Member States shall continue to develop N.SIS II. 4. The Member States participating in SIS 1+ shall maintain N.SIS in accordance with the provisions of the Schengen Convention. 5. The Member States participating in SIS 1+ shall make available and operate the communication infrastructure for SIS 1+. 6. The Commission shall coordinate the activities and provide the necessary support for the implementation of the tasks and responsibilities referred to in paragraphs 1 to 3. Article 6 Continuing development Implementing acts necessary to continue the development of SIS II as referred to in Article 5(1), in particular the measures necessary for the correction of errors, shall be adopted in accordance with the examination procedure defined in Article 17(2). Implementing acts necessary to continue the development of SIS II as referred to in Article 5(3), in so far as that concerns the uniform national interface ensuring the compatibility of N.SIS II with Central SIS II, shall be adopted in accordance with the examination procedure defined in Article 17(2). Article 7 Main activities 1. The Commission together with Member States participating in SIS 1+ shall conduct a comprehensive test. 2. An interim migration architecture shall be set up and a test of that architecture shall be performed by the Commission together with France and the other Member States participating in SIS 1+. 3. The Commission and the Member States participating in SIS 1+ shall perform the migration from SIS 1+ to SIS II. 4. The Member States participating in SIS 1+ shall perform a test on the exchange of supplementary information. 5. The Commission shall provide the necessary support at Central SIS II level for the activities referred to in paragraphs 1 to 4. 6. The activities referred to in paragraphs 1 to 3 shall be coordinated by the Commission and the Member States participating in SIS 1+ acting within the Council. Article 8 Comprehensive test 1. The comprehensive test shall not start before the Commission has declared that it considers that the level of success of the tests referred to in Article 1 of Regulation (EC) No 189/2008 is sufficient to begin such a test. 2. A comprehensive test aiming at confirming, in particular, the completion by the Commission and the Member States participating in SIS 1+ of the necessary technical arrangements to process SIS II data and the demonstration that the level of performance of SIS II is at least equivalent to that achieved with SIS 1+ shall be performed. 3. The comprehensive test shall be executed by the Member States participating in SIS 1+ for the N.SIS II and by the Commission for the Central SIS II. 4. The comprehensive test shall follow a detailed schedule defined by the Member States participating in SIS 1+ acting within the Council in cooperation with the Commission. 5. The comprehensive test shall be based on the technical specifications defined by the Member States participating in SIS 1+ acting within the Council in cooperation with the Commission. 6. The Commission and the Member States participating in SIS 1+ acting within the Council shall define the criteria for determining whether the necessary technical arrangements to process SIS II data are completed and the level of performance of SIS II is at least equivalent to that achieved with SIS 1+. 7. The test results shall be analysed using the criteria referred to in paragraph 6 of this Article, by the Commission and the Member States participating in SIS 1+ acting within the Council. The test results shall be validated in accordance with Article 55(3)(c) of Regulation (EC) No 1987/2006. 8. Member States not participating in SIS 1+ may participate in the comprehensive test. Their results shall not affect the overall validation of that test. Article 9 Test on supplementary information 1. The Member States participating in SIS 1+ shall conduct functional SIRENE tests. 2. The Commission shall make available Central SIS II and its communication infrastructure during the execution of the test on supplementary information. 3. The test on supplementary information shall follow a detailed schedule defined by the Member States participating in SIS 1+ acting within the Council. 4. The test on supplementary information shall be based on the technical specifications defined by the Member States participating in SIS 1+ acting within the Council. 5. The test results shall be analysed by the Member States participating in SIS 1+ acting within the Council. The Member States participating in SIS 1+ shall ensure that the global test result is transmitted to the European Parliament. 6. Member States not participating in SIS 1+ may participate in the test on supplementary information. Their results shall not affect the overall validation of that test. Article 10 Interim migration architecture 1. An interim migration architecture shall be set up, consisting of the components as set out in points (a) to (f) of Article 4. The converter connects Central SIS II and C.SIS for a transitional period. The N.SIS are connected to C.SIS, the N.SIS II to Central SIS II. 2. The Commission shall provide a converter, the Central SIS II and its communication infrastructure as part of the interim migration architecture. 3. To the extent necessary, the converter shall convert data in two directions between the C.SIS and Central SIS II and keep C.SIS and Central SIS II synchronised. 4. The Commission shall test the communication between Central SIS II and the converter. 5. France shall test the communication between C.SIS and the converter. 6. The Commission and France shall test the communication between Central SIS II and C.SIS via the converter. 7. France, together with the Commission, shall connect C.SIS via the converter to Central SIS II. 8. The Commission, together with France and the other Member States participating in SIS 1+, shall test the interim migration architecture as a whole in accordance with a test plan provided by the Commission. 9. France shall make available data for test purpose, if necessary. Article 11 Migration from SIS 1+ to SIS II 1. For the migration from C.SIS to Central SIS II, France shall make available the SIS 1+ database and the Commission shall introduce the SIS 1+ database into Central SIS II. Data of SIS 1+ database referred to in Article 113(2) of the Schengen Convention shall not be introduced into Central SIS II. 2. The Member States participating in SIS 1+ shall migrate from N.SIS to N.SIS II using the interim migration architecture, with the support of France and of the Commission. 3. The migration of the national system from SIS 1+ to SIS II shall start with the data loading of N.SIS II, when that N.SIS II is to contain a data file, the national copy, containing a complete or partial copy of the SIS II database. The data loading as described in the first subparagraph shall be followed by a switchover from N.SIS to N.SIS II for each Member State. The switchover shall start on the date to be fixed by the Council, acting in accordance with Article 55(2) of Regulation (EC) No 1987/2006, after the conditions of Article 55(3) of that Regulation are met. The switchover from N.SIS to N.SIS II for all Member States shall be completed within no more than 12 hours. The national applications for the exchange of supplementary information shall migrate to s-TESTA network in parallel with the switchover. The migration shall be terminated following an intensive monitoring period. That intensive monitoring period shall be limited in time, and shall not exceed 30 days from the date of the switchover of the first Member State. The migration shall follow a detailed schedule provided by the Commission and the Member States participating in SIS 1+ acting within the Council. 4. The Commission shall assist in coordination and support of the common activities during the migration. Article 12 Substantive legal framework For the data loading phase of the migration referred to in the first subparagraph of Article 11(3), the provisions of Title IV of the Schengen Convention shall continue to apply to the SIS 1+. As from the switchover of the first Member State from N.SIS to N.SIS II, as referred to in the second subparagraph of Article 11(3) of this Regulation, Regulation (EC) No 1987/2006 shall apply. This Regulation shall continue to apply to the interim migration architecture during the entire migration as referred to in Article 11(3). Article 13 Cooperation 1. The Member States and the Commission shall cooperate for the execution of all the activities covered by this Regulation in accordance with their respective responsibilities. 2. The Commission shall in particular provide the necessary support at Central SIS II level for the testing of and migration to N.SIS II. 3. Member States shall in particular provide the necessary support at N.SIS II level for the testing of the interim migration architecture. Article 14 Replacement of the national sections by N.SIS II 1. The N.SIS II may replace the national section referred to in Article 92 of the Schengen Convention, in which case the Member States need not hold a national data file. 2. If any of the Member States replace their national section by N.SIS II, the compulsory functions of the technical support function towards that national section as referred to in Article 92(2) and (3) of the Schengen Convention shall become compulsory functions towards Central SIS II, without prejudice to the obligations referred to in Article 5(1) and Article 10(1), (2) and (3) of this Regulation. Article 15 Processing of data and keeping of records in Central SIS II 1. The Central SIS II database shall be available for the purpose of carrying out automated searches in the territory of each Member State. 2. Central SIS II shall provide the services necessary for the entry and processing of SIS 1+ data, the online update of N.SIS II national copies, the synchronisation of and consistency between N.SIS II national copies and the Central SIS II database and provide operations for initialisation and restoration of N.SIS II national copies. 3. Without prejudice to the relevant provisions of Title IV of the Schengen Convention, the Commission shall ensure that every access to and all exchanges of personal data within Central SIS II are recorded for the purposes of checking whether or not the search is lawful, monitoring the lawfulness of data processing and ensuring the proper functioning of Central SIS II and of national systems, data integrity and security. 4. The records shall show, in particular, the date and time of the data transmitted, the data used to perform searches, the reference to the data transmitted and the name of the competent authority responsible for processing the data. 5. The records may only be used for the purposes referred to in paragraph 3 and shall be deleted at the earliest one year, and at the latest three years after their creation. 6. Records may be kept longer if they are required for monitoring procedures that are already under way. 7. The competent authorities referred to in Article 60(1) and Article 61(1) of Decision 2007/533/JHA in charge of checking whether or not a search is lawful, monitoring the lawfulness of data processing, self-monitoring and ensuring the proper functioning of Central SIS II, data integrity and security, shall, in accordance with the provisions of Decision 2007/533/JHA, have access, within the limits of their competence and at their request, to those records for the purpose of fulfilling their tasks. Article 16 Costs 1. The costs arising from migration, the comprehensive test, the test on supplementary information, maintenance and development measures at Central SIS II level or concerning the communication infrastructure shall be borne by the general budget of the Union. 2. The costs arising from installation, migration, testing, maintenance and development of the national systems as well as from the tasks to be performed by the national systems under this Regulation shall be borne by each Member State concerned as it is provided for by Article 119(2) of the Schengen Convention. 3. Complementing the financial assistance provided by the External Borders Fund, the Union may provide a financial contribution to the expenditures of the Member States for their migration and migration related testing activities performed under Articles 8, 9, Article 10(8) and Article 11 of this Regulation to cover specific and well-defined activities. The Union contribution related to the activities referred to in the first subparagraph shall take the form of grants as provided for by Title VI of the Financial Regulation. That contribution shall not exceed 75 % of the eligible expenditures of each Member State and it shall not exceed EUR 750 000 per Member State. The Commission shall appraise, decide and administer the co-financing operation in accordance with the budgetary and other procedures, in particularly those laid down in the Financial Regulation. Each Member State requesting such a financial contribution shall prepare a financial forecast indicating a breakdown of the operational as well as administrative costs of the activities related to the testing and migration. Where Member States use Union funds for their expenditures, those expenditures shall be reasonable and comply with the principles of sound financial management, in particular, value for money and cost-effectiveness. Member States shall present a report to the Commission on their use of the Union contribution by not later than six months following the date of switchover fixed by the Council, acting in accordance with Article 55(2) of Regulation (EC) No 1987/2006. Where the Union contribution is not implemented or is implemented inadequately, partially or late, the Union may reduce, withhold or terminate its financial contribution. Where the Member States do not contribute or contribute only partially or late to the financing of activities referred to in the first subparagraph, the Union may reduce its financial contribution. 4. The Court of Auditors shall be entitled to carry out the appropriate audits in liaison with national audit bodies or with the competent national departments. The Commission shall be empowered to carry out all the checks and inspections necessary to ensure the proper management of the Union funds and to protect the Union’s financial interest against any fraud or irregularity. To this end, the Member States shall make available all the relevant documents and records to the Commission and the Court of Auditors. 5. The costs of installing and operating the technical support function referred to in Article 92(3) of the Schengen Convention, including the cost of lines connecting the national sections of SIS 1+ to the technical support function, and of activities performed in conjunction with tasks conferred upon France for the purpose of this Regulation shall be borne jointly by the Member States as it is provided for by Article 119(1) of the Schengen Convention. Article 17 Committee procedure 1. The Commission shall be assisted by the Committee established by Article 51 of Regulation (EC) No 1987/2006 (the ‘Committee’). The Committee shall be a committee within the meaning of Regulation (EU) No 182/2011. 2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 applies. 3. Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply. Article 18 Global Programme Management Board 1. Without prejudice to the respective responsibilities and activities of the Commission, the Committee, France and the Member States participating in SIS 1+, a group of technical experts, called the Global Programme Management Board (the ‘Board’), is hereby set up. The Board shall be an advisory body for assistance to the central SIS II project and shall facilitate consistency between central and national SIS II projects. The Board shall have no decision-making power nor any mandate to represent the Commission or Member States. 2. The Board shall be composed of a maximum of 10 members, meeting on a regular basis. A maximum of eight experts and an equal number of alternates shall be designated by the Member States participating in SIS 1+ acting within the Council. A maximum of two experts and two alternates shall be designated by the Director-General of the responsible Directorate-General of the Commission from among the Commission officials. The meetings of the Board may be attended by other experts of Member States and Commission officials directly involved in the development of the SIS II projects, at the expense of their respective administration or institution. The Board may invite other experts to participate in the Board’s meetings as defined in the terms of reference referred to in paragraph 5, at the expense of their respective administration, institution or company. 3. Experts designated by the Member States acting as Presidency and incoming Presidency shall always be invited to participate in the Board’s meetings. 4. The Board’s secretariat shall be ensured by the Commission. 5. The Board shall draw up its own terms of reference which shall include in particular procedures on: — alternative chairmanship between the Commission and the Presidency, — meeting venues, — preparation of meetings, — admission of other experts, — communication plan ensuring full information to non-participating Member States. The terms of reference shall take effect after a favourable opinion has been given by the Director-General of the responsible Directorate-General of the Commission and by Member States participating in SIS 1+ meeting within the framework of the Committee. 6. The Board shall regularly submit written reports about the progress of the project including advice which has been given, and its justification, to the Committee or, as appropriate, to the relevant Council preparatory bodies. 7. Without prejudice to Article 16(2), the administrative costs and travel expenses arising from the activities of the Board shall be borne by the general budget of the Union, to the extent that they are not reimbursed from other sources. As regards travel expenses of the members in the Board designated by the Member States participating in SIS 1+ acting within the Council and experts invited pursuant to paragraph 3 of this Article which arise in connection with the work of the Board, the Commission’s ‘Rules on the reimbursement of expenses incurred by people from outside the Commission invited to attend meetings in an expert capacity’ shall apply. Article 19 Reporting The Commission shall submit by the end of every six month period, and for the first time by the end of the first six month period of 2009, a progress report to the European Parliament and the Council concerning the development of SIS II and the migration from SIS 1+ to SIS II. The Commission shall inform the European Parliament of the results of the tests referred to in Articles 8 and 10. Article 20 Repeal Regulation (EC) No 1104/2008 is repealed. References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table set out in Annex II. Article 21 Entry into force and applicability This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union. It shall expire upon the termination of the migration as referred to in the third subparagraph of Article 11(3). If that date cannot be complied with due to outstanding technical difficulties related to the migration process, it shall expire on a date to be fixed by the Council, acting in accordance with Article 55(2) of Regulation (EC) No 1987/2006. This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties. Done at Brussels, 20 December 2012. For the Council The President E. FLOURENTZOU (1) Opinion of 21 November 2012 (not yet published in the Official Journal). (2) OJ L 299, 8.11.2008, p. 1. (3) OJ L 299, 8.11.2008, p. 43. (4) OJ L 239, 22.9.2000, p. 19. (5) OJ L 328, 13.12.2001, p. 4. (6) OJ L 328, 13.12.2001, p. 1. (7) See page 21 of this Official Journal. (8) OJ L 381, 28.12.2006, p. 4. (9) OJ L 205, 7.8.2007, p. 63. (10) OJ L 57, 1.3.2008, p. 1. (11) OJ L 57, 1.3.2008, p. 14. (12) OJ L 248, 16.9.2002, p. 1. (13) OJ L 144, 6.6.2007, p. 22. (14) OJ L 233, 5.9.2007, p. 3. (15) OJ L 312, 23.12.1995, p. 1. (16) OJ L 292, 15.11.1996, p. 2. (17) OJ L 136, 31.5.1999, p. 1. (18) OJ L 55, 28.2.2011, p. 13. (19) OJ L 8, 12.1.2001, p. 1. (20) OJ L 176, 10.7.1999, p. 36. (21) OJ L 176, 10.7.1999, p. 31. (22) OJ L 53, 27.2.2008, p. 52. (23) OJ L 53, 27.2.2008, p. 1. (24) OJ L 160, 18.6.2011, p. 21. (25) OJ L 160, 18.6.2011, p. 19. (26) OJ L 131, 1.6.2000, p. 43. (27) OJ L 64, 7.3.2002, p. 20. (28) OJ C 336, 6.11.2012, p. 10. ANNEX I REPEALED REGULATION WITH ITS SUCCESSIVE AMENDMENTS Council Regulation (EC) No 1104/2008 (OJ L 299, 8.11.2008, p. 1). Council Regulation (EU) No 541/2010 (OJ L 155, 22.6.2010, p. 19). ANNEX II CORRELATION TABLE Regulation (EC) No 1104/2008 This Regulation Article 1 Article 1 Article 2 Article 2 Article 3 Article 3 Article 4 Article 4 Article 5 Article 5 Article 6 Article 6 Article 7 Article 7 Article 8 Article 8 Article 9 Article 9 Article 10 Article 10 Article 11 Article 11 Article 12 Article 12 Article 13 Article 13 — Article 14 Article 14 Article 15 — — Article 15 Article 16 Article 16 — Article 17 Article 17 Article 17a Article 18 Article 18 Article 19 — Article 20 Article 19 Article 21 — Annex I — Annex II

Summary: Border-free travel – new EU control system (SIS II) Border-free travel – new EU control system (SIS II) SUMMARY OF: Council Regulation (EU) No 1273/2012 - migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) WHAT IS THE AIM OF THE REGULATION? The regulation recasts into a single act the 2 legislative acts (Regulation (EC) No 1104/2008 and Council Decision 2008/839/JHA) that governed the migration from the first-generation Schengen Information System (SIS1+) to the second generation Schengen Information System (SIS II). The reason for this recast is: that the Lisbon Treaty had in the meantime abolished the pillar structure of the previous Treaties which required two separate acts andat the same time, that it was felt necessary to include in the legal framework some additional flexibility to face the costs relating to the complex migration process still under way. KEY POINTS The 2 previous legislative acts — part of the text of which had become obsolete and could not be amended in their previous form — are merged into a single legal instrument, in accordance with the Lisbon Treaty. In addition to the recast of the 2 previous acts, the regulation integrates changes in form as well as content in order to take into account the complex migration process that is under way. What is new about SIS II? It is a more up-to-date system offering additional functionalities. Among other improvements, it allows the use of biometrics, new types of alerts and the possibility to link different alerts, such as an alert on a person and a vehicle. The development of this state-of-the-art IT system as one of the largest of its kind worldwide required a longer time frame due to the changing legal, technical and political environment as well as rigorous testing phases to ensure a high level of performance and security. Testing of SIS II For the SIS II to become fully operational, a battery of tests is planned for a long preparatory phase prior to its activation — including a comprehensive test involving the testing of all the key SIS II components. The success of this test is both a technical and legal precondition for the entry into force of the SIS II. Switchover to the new system Within the switchover period, after the loading of data from SIS 1+ into SIS II via a converter, all participating EU countries, consecutively, perform their individual switchover of the national application from SIS 1+ into SIS II. A country that has switched over should be able to rapidly use the full scope of SIS II from the time of the switchover and not have to wait until other participating EU countries have also switched over. The switchover period should therefore be kept as short as possible, and should not exceed 12 hours. Monitoring phase to test the system In order to ensure that the new system is reliable and to better manage potential difficulties in migration, both systems coexist and remain synchronised via a converter during a limited transitional period. The application of certain provisions of Title IV of the Schengen Convention is maintained on a temporary basis by incorporating those provisions into this regulation, as they provide the legal framework for the converter and the interim migration architecture during the migration. Financing and costs arising from migration In view of the fact that an important part of the activities that are now required at participating country level for the migration to SIS II were not anticipated at the time when the 2008 Regulation and Decision were adopted or at the time when the financial package and the multiannual programmes under the External Borders Fund (EBF) were drawn up, the distribution of costs are partly realigned. Certain specific and well-defined national activities related to the migration, in particular testing activities, could be co-financed from the SIS II budget line of the EU’s general budget, in so far as they would be complementary and would not coincide with other SIS II-related actions which would continue to be supported under the EBF. Territorial provisions For reasons of legal clarity, due to the fact that these 2 EU countries do not take part in the Schengen acquis* of which this regulation constitutes a development, a separate and parallel regulation has been adopted, applicable only in Ireland and the United Kingdom . FROM WHEN DOES THE REGULATION APPLY? The regulation applies since 30 December 2012. It expires upon the termination of the migration as set out in the regulation. BACKGROUND The Schengen Information System (SIS) was initially set up to apply the Convention implementing the Schengen Agreement of 14 June 1985 between the governments of the countries of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders. The SIS further developed as SIS 1+ as the Schengen acquis was integrated into the framework of the European Union following the Treaty of Amsterdam. The system contained information on persons who may have been involved in serious crimes or who may not have the right to enter or stay in the EU. It also contained alerts on missing persons, in particular children, as well as information on vehicles, firearms, bank notes and identity documents that may have been stolen, misappropriated or lost. With rapid technological development and the geographical extension of the SIS, a second generation SIS (‘SIS II’) became necessary. SIS II was established by Regulation (EC) No 1987/2006 and by Decision 2007/533/JHA. All EU countries taking part in the SIS II successfully finished the test phase in 2013. This allowed to switch over permanently to SIS II on 9 April 2013. On 9 May 2013, the European Agency for the operational management of large scale IT systems in the area of freedom, security and justice (eu-LISA) took over responsibility for the day-to-day running of the SIS II central system. For further information: Schengen Information System (European Commission) Questions and Answers: Schengen Information System (SIS II) (European Commission). KEY TERMS Acquis: the body of common rights and obligations that are binding on all EU countries, as EU members. MAIN DOCUMENT Council Regulation (EU) No 1273/2012 of 20 December 2012 on migration from the Schengen Information System (SIS 1+) to the second generation Schengen Information System (SIS II) (recast) (OJ L 359, 29.12.2012, pp. 32-44) RELATED DOCUMENTS Regulation (EC) No 1986/2006 of the European Parliament and of the Council of 20 December 2006 regarding access to the Second Generation Schengen Information System (SIS II) by the services in the Member States responsible for issuing vehicle registration certificates (OJ L 381, 28.12.2006, pp. 1-3) Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the establishment, operation and use of the second generation Schengen Information System (SIS II) (OJ L 381, 28.12.2006, pp. 4-23) 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, pp. 63-84) Regulation (EU) No 1077/2011 of the European Parliament and of the Council of 25 October 2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 286, 1.11.2011, pp. 1-17) last update 17.10.2017


27.10.2012 EN Official Journal of the European Union L 299/5 DIRECTIVE 2012/28/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 October 2012 on certain permitted uses of orphan works (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 53(1), 62 and 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (1), Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, are engaged in large-scale digitisation of their collections or archives in order to create European Digital Libraries. They contribute to the preservation and dissemination of European cultural heritage, which is also important for the creation of European Digital Libraries, such as Europeana. Technologies for mass digitisation of print materials and for search and indexing enhance the research value of the libraries' collections. Creating large online libraries facilitates electronic search and discovery tools which open up new sources of discovery for researchers and academics who would otherwise have to content themselves with more traditional and analogue search methods. (2) The need to promote free movement of knowledge and innovation in the internal market is an important component of the Europe 2020 Strategy, as set out in the Communication from the Commission entitled ‧Europe 2020: A strategy for smart, sustainable and inclusive growth‧, which includes as one of its flagship initiatives the development of a Digital Agenda for Europe. (3) Creating a legal framework to facilitate the digitisation and dissemination of works and other subject-matter which are protected by copyright or related rights and for which no rightholder is identified or for which the rightholder, even if identified, is not located — so-called orphan works — is a key action of the Digital Agenda for Europe, as set out in the Communication from the Commission entitled ‧A Digital Agenda for Europe‧. This Directive targets the specific problem of the legal determination of orphan work status and its consequences in terms of the permitted users and permitted uses of works or phonograms considered to be orphan works. (4) This Directive is without prejudice to specific solutions being developed in the Member States to address larger mass digitisation issues, such as in the case of so-called ‧out-of-commerce‧ works. Such solutions take into account the specificities of different types of content and different users and build upon the consensus of the relevant stakeholders. This approach has also been followed in the Memorandum of Understanding on key principles on the digitisation and making available of out-of-commerce works, signed on 20 September 2011 by representatives of European libraries, authors, publishers and collecting societies and witnessed by the Commission. This Directive is without prejudice to that Memorandum of Understanding, which calls on Member States and the Commission to ensure that voluntary agreements concluded between users, rightholders and collective rights management organisations to licence the use of out-of-commerce works on the basis of the principles contained therein benefit from the requisite legal certainty in a national and cross-border context. (5) Copyright is the economic foundation for the creative industry, since it stimulates innovation, creation, investment and production. Mass digitisation and dissemination of works is therefore a means of protecting Europe's cultural heritage. Copyright is an important tool for ensuring that the creative sector is rewarded for its work. (6) The rightholders' exclusive rights of reproduction of their works and other protected subject-matter and of making them available to the public, as harmonised under Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (3), necessitate the prior consent of rightholders to the digitisation and the making available to the public of a work or other protected subject-matter. (7) In the case of orphan works, it is not possible to obtain such prior consent to the carrying-out of acts of reproduction or of making available to the public. (8) Different approaches in the Member States to the recognition of orphan work status can present obstacles to the functioning of the internal market and the use of, and cross-border access to, orphan works. Such different approaches can also result in restrictions on the free movement of goods and services which incorporate cultural content. Therefore, ensuring the mutual recognition of such status is appropriate, since it will allow access to orphan works in all Member States. (9) In particular, a common approach to determining the orphan work status and the permitted uses of orphan works is necessary in order to ensure legal certainty in the internal market with respect to the use of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations. (10) Cinematographic or audiovisual works and phonograms in the archives of public-service broadcasting organisations and produced by them include orphan works. Taking into account the special position of broadcasters as producers of phonograms and audiovisual material and the need to adopt measures to limit the phenomenon of orphan works in the future, it is appropriate to set a cut-off date for the application of this Directive to works and phonograms in the archives of broadcasting organisations. (11) Cinematographic and audiovisual works and phonograms contained in the archives of public-service broadcasting organisations and produced by them, should for the purposes of this Directive be regarded as including cinematographic and audiovisual works and phonograms which are commissioned by such organisations for the exclusive exploitation by them or other co-producing public-service broadcasting organisations. Cinematographic and audiovisual works and phonograms contained in the archives of public-service broadcasting organisations which have not been produced or commissioned by such organisations, but which those organisations have been authorised to use under a licensing agreement, should not fall within the scope of this Directive. (12) For reasons of international comity, this Directive should apply only to works and phonograms that are first published in the territory of a Member State or, in the absence of publication, first broadcast in the territory of a Member State or, in the absence of publication or broadcast, made publicly accessible by the beneficiaries of this Directive with the consent of the rightholders. In the latter case, this Directive should only apply provided that it is reasonable to assume that the rightholders would not oppose the use allowed by this Directive. (13) Before a work or phonogram can be considered an orphan work, a diligent search for the rightholders in the work or phonogram, including rightholders in works and other protected subject-matter that are embedded or incorporated in the work or phonogram, should be carried out in good faith. Member States should be permitted to provide that such diligent search may be carried out by the organisations referred to in this Directive or by other organisations. Such other organisations may charge for the service of carrying out a diligent search. (14) It is appropriate to provide for a harmonised approach concerning such diligent search in order to ensure a high level of protection of copyright and related rights in the Union. A diligent search should involve the consultation of sources that supply information on the works and other protected subject-matter as determined, in accordance with this Directive, by the Member State where the diligent search has to be carried out. In so doing, Member States could refer to the diligent search guidelines agreed in the context of the High Level Working Group on Digital Libraries established as part of the i2010 digital library initiative. (15) In order to avoid duplication of search efforts, a diligent search should be carried out in the Member State where the work or phonogram was first published or, in cases where no publication has taken place, where it was first broadcast. The diligent search in respect of cinematographic or audiovisual works the producer of which has his headquarters or habitual residence in a Member State should be carried out in that Member State. In the case of cinematographic or audiovisual works which are co-produced by producers established in different Member States, the diligent search should be carried out in each of those Member States. With regard to works and phonograms which have neither been published nor broadcast but which have been made publicly accessible by the beneficiaries of this Directive with the consent of the rightholders, the diligent search should be carried out in the Member State where the organisation that made the work or phonogram publicly accessible with the consent of the rightholder is established. Diligent searches for the rightholders in works and other protected subject-matter that are embedded or incorporated in a work or phonogram should be carried out in the Member State where the diligent search for the work or phonogram containing the embedded or incorporated work or other protected subject-matter is carried out. Sources of information available in other countries should also be consulted if there is evidence to suggest that relevant information on rightholders is to be found in those other countries. The carrying-out of diligent searches may generate various kinds of information, such as a search record and the result of the search. The search record should be kept on file in order for the relevant organisation to be able to substantiate that the search was diligent. (16) Member States should ensure that the organisations concerned keep records of their diligent searches and that the results of such searches, consisting in particular of any finding that a work or phonogram is to be considered an orphan work within the meaning of this Directive, as well as information on the change of status and on the use which those organisations make of orphan works, are collected and made available to the public at large, in particular through the recording of the relevant information in an online database. Considering in particular the pan-European dimension, and in order to avoid duplication of efforts, it is appropriate to make provision for the creation of a single online database for the Union containing such information and for making it available to the public at large in a transparent manner. This can enable both the organisations which are carrying out diligent searches and the rightholders easily to access such information. The database could also play an important role in preventing and bringing to an end possible copyright infringements, particularly in the case of changes to the orphan work status of the works and phonograms. Under Regulation (EU) No 386/2012 (4), the Office for Harmonization in the Internal Market (‧the Office‧) is entrusted with certain tasks and activities, financed by making use of its own budgetary means, aimed at facilitating and supporting the activities of national authorities, the private sector and the Union institutions in the fight against, including the prevention of, infringement of intellectual property rights. In particular, pursuant to point (g) of Article 2(1) of that Regulation, those tasks include providing mechanisms which help to improve the online exchange of relevant information between the Member States' authorities concerned and fostering cooperation between those authorities. It is therefore appropriate to rely on the Office to establish and manage the European database containing information related to orphan works referred to in this Directive. (17) There can be several rightholders in respect of a particular work or phonogram, and works and phonograms can themselves include other works or protected subject-matter. This Directive should not affect the rights of identified and located rightholders. If at least one rightholder has been identified and located, a work or phonogram should not be considered an orphan work. The beneficiaries of this Directive should only be permitted to use a work or phonogram one or more of the rightholders in which are not identified or not located, if they are authorised to carry out the acts of reproduction and of making available to the public covered by Articles 2 and 3 respectively of Directive 2001/29/EC by those rightholders that have been identified and located, including the rightholders of works and other protected subject-matter which are embedded or incorporated in the works or phonograms. Rightholders that have been identified and located can give this authorisation only in relation to the rights that they themselves hold, either because the rights are their own rights or because the rights were transferred to them, and should not be able to authorise under this Directive any use on behalf of rightholders that have not been identified and located. Correspondingly, when previously non-identified or non-located rightholders come forward in order to claim their rights in the work or phonogram, the lawful use of the work or phonogram by the beneficiaries can continue only if those rightholders give their authorisation to do so under Directive 2001/29/EC in relation to the rights that they hold. (18) Rightholders should be entitled to put an end to the orphan work status in the event that they come forward to claim their rights in the work or other protected subject-matter. Rightholders that put an end to the orphan work status of a work or other protected subject-matter should receive fair compensation for the use that has been made of their works or other protected subject-matter under this Directive, to be determined by the Member State where the organisation that uses an orphan work is established. Member States should be free to determine the circumstances under which the payment of such compensation may be organised, including the point in time at which the payment is due. For the purposes of determining the possible level of fair compensation, due account should be taken, inter alia, of Member States' cultural promotion objectives, of the non-commercial nature of the use made by the organisations in question in order to achieve aims related to their public-interest missions, such as promoting learning and disseminating culture, and of the possible harm to rightholders. (19) If a work or phonogram has been wrongly found to be an orphan work, following a search which was not diligent, the remedies for copyright infringement in Member States' legislation, provided for in accordance with the relevant national provisions and Union law, remain available. (20) In order to promote learning and the dissemination of culture, Member States should provide for an exception or limitation in addition to those provided for in Article 5 of Directive 2001/29/EC. That exception or limitation should permit certain organisations, as referred to in point (c) of Article 5(2) of Directive 2001/29/EC and film or audio heritage institutions which operate on a non-profit making basis, as well as public-service broadcasting organisations, to reproduce and make available to the public, within the meaning of that Directive, orphan works, provided that such use fulfils their public interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, their collections, including their digital collections. Film or audio heritage institutions should, for the purposes of this Directive, cover organisations designated by Member States to collect, catalogue, preserve and restore films and other audiovisual works or phonograms forming part of their cultural heritage. Public-service broadcasters should, for the purposes of this Directive, cover broadcasters with a public-service remit as conferred, defined and organised by each Member State. The exception or limitation established by this Directive to permit the use of orphan works is without prejudice to the exceptions and limitations provided for in Article 5 of Directive 2001/29/EC. It can be applied only in certain special cases which do not conflict with the normal exploitation of the work or other protected subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder. (21) In order to incentivise digitisation, the beneficiaries of this Directive should be allowed to generate revenues in relation to their use of orphan works under this Directive in order to achieve aims related to their public-interest missions, including in the context of public-private partnership agreements. (22) Contractual arrangements may play a role in fostering the digitisation of European cultural heritage, it being understood that publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations, should be allowed, with a view to undertaking the uses permitted under this Directive, to conclude agreements with commercial partners for the digitisation and making available to the public of orphan works. Those agreements may include financial contributions by such partners. Such agreements should not impose any restrictions on the beneficiaries of this Directive as to their use of orphan works and should not grant the commercial partner any rights to use, or control the use of, the orphan works. (23) In order to foster access by the Union's citizens to Europe's cultural heritage, it is also necessary to ensure that orphan works which have been digitised and made available to the public in one Member State may also be made available to the public in other Member States. Publicly accessible libraries, educational establishments and museums, as well as archives, film or audio heritage institutions and public-service broadcasting organisations that use an orphan work in order to achieve their public-interest missions should be able to make the orphan work available to the public in other Member States. (24) This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences, legal presumptions of representation or transfer, collective management or similar arrangements or a combination of them, including for mass digitisation. (25) Since the objective of this Directive, namely ensuring legal certainty with respect to the use of orphan works, cannot be sufficiently achieved by the Member States and can therefore, by reason of the need for uniformity of the rules governing the use of orphan works, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective, HAVE ADOPTED THIS DIRECTIVE: Article 1 Subject-matter and scope 1. This Directive concerns certain uses made of orphan works by publicly accessible libraries, educational establishments and museums, as well as by archives, film or audio heritage institutions and public-service broadcasting organisations, established in the Member States, in order to achieve aims related to their public-interest missions. 2. This Directive applies to: (a) works published in the form of books, journals, newspapers, magazines or other writings contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions; (b) cinematographic or audiovisual works and phonograms contained in the collections of publicly accessible libraries, educational establishments or museums as well as in the collections of archives or of film or audio heritage institutions; and (c) cinematographic or audiovisual works and phonograms produced by public-service broadcasting organisations up to and including 31 December 2002 and contained in their archives; which are protected by copyright or related rights and which are first published in a Member State or, in the absence of publication, first broadcast in a Member State. 3. This Directive also applies to works and phonograms referred to in paragraph 2 which have never been published or broadcast but which have been made publicly accessible by the organisations referred to in paragraph 1 with the consent of the rightholders, provided that it is reasonable to assume that the rightholders would not oppose the uses referred to in Article 6. Member States may limit the application of this paragraph to works and phonograms which have been deposited with those organisations before 29 October 2014. 4. This Directive shall also apply to works and other protected subject-matter that are embedded or incorporated in, or constitute an integral part of, the works or phonograms referred to in paragraphs 2 and 3. 5. This Directive does not interfere with any arrangements concerning the management of rights at national level. Article 2 Orphan works 1. A work or a phonogram shall be considered an orphan work if none of the rightholders in that work or phonogram is identified or, even if one or more of them is identified, none is located despite a diligent search for the rightholders having been carried out and recorded in accordance with Article 3. 2. Where there is more than one rightholder in a work or phonogram, and not all of them have been identified or, even if identified, located after a diligent search has been carried out and recorded in accordance with Article 3, the work or phonogram may be used in accordance with this Directive provided that the rightholders that have been identified and located have, in relation to the rights they hold, authorised the organisations referred to in Article 1(1) to carry out the acts of reproduction and making available to the public covered respectively by Articles 2 and 3 of Directive 2001/29/EC. 3. Paragraph 2 shall be without prejudice to the rights in the work or phonogram of rightholders that have been identified and located. 4. Article 5 shall apply mutatis mutandis to the rightholders that have not been identified and located in the works referred to in paragraph 2. 5. This Directive shall be without prejudice to national provisions on anonymous or pseudonymous works. Article 3 Diligent search 1. For the purposes of establishing whether a work or phonogram is an orphan work, the organisations referred to in Article 1(1) shall ensure that a diligent search is carried out in good faith in respect of each work or other protected subject-matter, by consulting the appropriate sources for the category of works and other protected subject-matter in question. The diligent search shall be carried out prior to the use of the work or phonogram. 2. The sources that are appropriate for each category of works or phonogram in question shall be determined by each Member State, in consultation with rightholders and users, and shall include at least the relevant sources listed in the Annex. 3. A diligent search shall be carried out in the Member State of first publication or, in the absence of publication, first broadcast, except in the case of cinematographic or audiovisual works the producer of which has his headquarters or habitual residence in a Member State, in which case the diligent search shall be carried out in the Member State of his headquarters or habitual residence. In the case referred to in Article 1(3), the diligent search shall be carried out in the Member State where the organisation that made the work or phonogram publicly accessible with the consent of the rightholder is established. 4. If there is evidence to suggest that relevant information on rightholders is to be found in other countries, sources of information available in those other countries shall also be consulted. 5. Member States shall ensure that the organisations referred to in Article 1(1) maintain records of their diligent searches and that those organisations provide the following information to the competent national authorities: (a) the results of the diligent searches that the organisations have carried out and which have led to the conclusion that a work or a phonogram is considered an orphan work; (b) the use that the organisations make of orphan works in accordance with this Directive; (c) any change, pursuant to Article 5, of the orphan work status of works and phonograms that the organisations use; (d) the relevant contact information of the organisation concerned. 6. Member States shall take the necessary measures to ensure that the information referred to in paragraph 5 is recorded in a single publicly accessible online database established and managed by the Office for Harmonization in the Internal Market (‧the Office‧) in accordance with Regulation (EU) No 386/2012. To that end, they shall forward that information to the Office without delay upon receiving it from the organisations referred to in Article 1(1). Article 4 Mutual recognition of orphan work status A work or phonogram which is considered an orphan work according to Article 2 in a Member State shall be considered an orphan work in all Member States. That work or phonogram may be used and accessed in accordance with this Directive in all Member States. This also applies to works and phonograms referred to in Article 2(2) in so far as the rights of the non-identified or non-located rightholders are concerned. Article 5 End of orphan work status Member States shall ensure that a rightholder in a work or phonogram considered to be an orphan work has, at any time, the possibility of putting an end to the orphan work status in so far as his rights are concerned. Article 6 Permitted uses of orphan works 1. Member States shall provide for an exception or limitation to the right of reproduction and the right of making available to the public provided for respectively in Articles 2 and 3 of Directive 2001/29/EC to ensure that the organisations referred to in Article 1(1) are permitted to use orphan works contained in their collections in the following ways: (a) by making the orphan work available to the public, within the meaning of Article 3 of Directive 2001/29/EC; (b) by acts of reproduction, within the meaning of Article 2 of Directive 2001/29/EC, for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration. 2. The organisations referred to in Article 1(1) shall use an orphan work in accordance with paragraph 1 of this Article only in order to achieve aims related to their public-interest missions, in particular the preservation of, the restoration of, and the provision of cultural and educational access to, works and phonograms contained in their collection. The organisations may generate revenues in the course of such uses, for the exclusive purpose of covering their costs of digitising orphan works and making them available to the public. 3. Member States shall ensure that the organisations referred to in Article 1(1) indicate the name of identified authors and other rightholders in any use of an orphan work. 4. This Directive is without prejudice to the freedom of contract of such organisations in the pursuit of their public-interest missions, particularly in respect of public-private partnership agreements. 5. Member States shall provide that a fair compensation is due to rightholders that put an end to the orphan work status of their works or other protected subject-matter for the use that has been made by the organisations referred to in Article 1(1) of such works and other protected subject-matter in accordance with paragraph 1 of this Article. Member States shall be free to determine the circumstances under which the payment of such compensation may be organised. The level of the compensation shall be determined, within the limits imposed by Union law, by the law of the Member State in which the organisation which uses the orphan work in question is established. Article 7 Continued application of other legal provisions This Directive shall be without prejudice to provisions concerning, in particular, patent rights, trade marks, design rights, utility models, the topographies of semi-conductor products, type faces, conditional access, access to cable of broadcasting services, the protection of national treasures, legal deposit requirements, laws on restrictive practices and unfair competition, trade secrets, security, confidentiality, data protection and privacy, access to public documents, the law of contract, and rules on the freedom of the press and freedom of expression in the media. Article 8 Application in time 1. This Directive shall apply in respect of all works and phonograms referred to in Article 1 which are protected by the Member States' legislation in the field of copyright on or after 29 October 2014. 2. This Directive shall apply without prejudice to any acts concluded and rights acquired before 29 October 2014. Article 9 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 29 October 2014. They shall forthwith communicate to the Commission the text of those provisions. When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 10 Review clause The Commission shall keep under constant review the development of rights information sources and shall by 29 October 2015, and at annual intervals thereafter, submit a report concerning the possible inclusion in the scope of application of this Directive of publishers and of works or other protected subject-matter not currently included in its scope, and in particular stand-alone photographs and other images. By 29 October 2015, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive, in the light of the development of digital libraries. When necessary, in particular to ensure the functioning of the internal market, the Commission shall submit proposals for amendment of this Directive. A Member State that has valid reasons to consider that the implementation of this Directive hinders one of the national arrangements concerning the management of rights referred to in Article 1(5) may bring the matter to the attention of the Commission together with all relevant evidence. The Commission shall take such evidence into account when drawing up the report referred to in the second paragraph of this Article and when assessing whether it is necessary to submit proposals for amendment of this Directive. Article 11 Entry into force This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union. Article 12 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 25 October 2012. For the European Parliament The President M. SCHULZ For the Council The President A. D. MAVROYIANNIS (1) OJ C 376, 22.12.2011, p. 66. (2) Position of the European Parliament of 13 September 2012 (not yet published in the Official Journal) and decision of the Council of 4 October 2012. (3) OJ L 167, 22.6.2001, p. 10. (4) Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights (OJ L 129, 16.5.2012, p. 1). ANNEX The sources referred to in Article 3(2) include the following: (1) for published books: (a) legal deposit, library catalogues and authority files maintained by libraries and other institutions; (b) the publishers' and authors' associations in the respective country; (c) existing databases and registries, WATCH (Writers, Artists and their Copyright Holders), the ISBN (International Standard Book Number) and databases listing books in print; (d) the databases of the relevant collecting societies, in particular reproduction rights organisations; (e) sources that integrate multiple databases and registries, including VIAF (Virtual International Authority Files) and ARROW (Accessible Registries of Rights Information and Orphan Works); (2) for newspapers, magazines, journals and periodicals: (a) the ISSN (International Standard Serial Number) for periodical publications; (b) indexes and catalogues from library holdings and collections; (c) legal deposit; (d) the publishers' associations and the authors' and journalists' associations in the respective country; (e) the databases of relevant collecting societies including reproduction rights organisations; (3) for visual works, including fine art, photography, illustration, design, architecture, sketches of the latter works and other such works that are contained in books, journals, newspapers and magazines or other works: (a) the sources referred to in points (1) and (2); (b) the databases of the relevant collecting societies, in particular for visual arts, and including reproduction rights organisations; (c) the databases of picture agencies, where applicable; (4) for audiovisual works and phonograms: (a) legal deposit; (b) the producers' associations in the respective country; (c) databases of film or audio heritage institutions and national libraries; (d) databases with relevant standards and identifiers such as ISAN (International Standard Audiovisual Number) for audiovisual material, ISWC (International Standard Music Work Code) for musical works and ISRC (International Standard Recording Code) for phonograms; (e) the databases of the relevant collecting societies, in particular for authors, performers, phonogram producers and audiovisual producers; (f) credits and other information appearing on the work's packaging; (g) databases of other relevant associations representing a specific category of rightholders.

Summary: Wider access to copyright material — orphan works Wider access to copyright material — orphan works SUMMARY OF: Directive 2012/28/EU — certain permitted uses of orphan works WHAT IS THE AIM OF THIS DIRECTIVE? It is designed to promote the digitisation of and lawful intra-EU online access to orphan works* contained in the collections of libraries, educational establishments, museums, archives, audiovisual heritage institutions and public service broadcasting organisations. These organisations have a public interest mission to: preserve, restore, reproduce, and provide online access to their collections, for cultural and educational reasons. After completing the diligent search* these organisations will be permitted to use orphan works for these purposes. KEY POINTS Scope The directive applies to works protected by copyright that are first published or, in the absence of publication, broadcast (shown on television or online, i.e. visual media, rather than written media) in a EU country. The directive applies to several categories of works: published books, newspapers, magazines or other writings; works embedded or incorporated in the above categories; cinematographic or audiovisual works and phonograms. Status of orphan work The organisations covered by the directive must ensure that a diligent search for rightsholders is carried out in good faith by consulting the appropriate sources to verify the orphan work status. The directive indicates that EU countries must determine the appropriate sources and include a list of sources that should at least be consulted when performing a diligent search. Material that is considered as orphaned in one EU country has the same status in all other EU countries. In an event if rightsholder of what is considered to be an orphan work reappears, the directive envisages the possibility of putting an end to the orphan work status and receiving fair compensation. Database A single, Europe-wide, publicly accessible online database will be set up, containing information on orphan works, including: results of searches for rightsholders; use made of orphan works by organisations; any changes in the orphan work status of works used. This ensures that both the organisations carrying out the searches and the rightsholders can find information about identification and use of orphan works. Permitted uses Organisations covered by the directive may use an orphan work only to achieve aims related to their public-interest missions: to make the orphan work available to the public; to reproduce the orphan work for the purposes of digitisation, making available, indexing, cataloguing, preservation or restoration. The organisations may generate revenues in the course of such uses, for the exclusive purpose of covering their costs of digitising orphan works and making them available to the public. FROM WHEN DOES THE DIRECTIVE APPLY? The directive has applied since 29 October 2014 and it had to become law in the EU countries on the same day. BACKGROUND Orphan works database (EUIPO Observatory). KEY TERMS Orphan Works: works like books, newspaper and magazine articles and films that are still protected by copyright but whose authors or other righstholders are not known or cannot be located or contacted to obtain copyright permissions. Diligent search: thorough search aiming to identify and/or locate the author of copyright materials or other rightsholders. MAIN DOCUMENT Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (OJ L 299, 27.10.2012, pp. 5-12) RELATED DOCUMENTS Regulation (EU) 2017/1001 of the European Parliament and of the Council of 14 June 2017 on the European Union trade mark (codification) (OJ L 154, 16.6.2017, pp. 1-99) Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights (OJ L 129, 16.5.2012, pp. 1-6) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, pp. 10-19) See consolidated version. last update 14.06.2018