OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 7 July 2022(1)
Case C‑88/21
Regionų apygardos administracinio teismo Kauno rūmai
joined parties:
Lietuvos Respublikos vidaus reikalų ministerija
(Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania))
(Reference for a preliminary ruling – Second generation Schengen Information System (SIS II) – Decision 2007/533/JHA – Articles 38 and 39 – Alerts on objects for seizure or use as evidence in criminal proceedings – Execution of the action based on an alert – National rule prohibiting the registration of a vehicle against which an alert has been entered in SIS II – Deletion of alerts – Article 17 of the Charter of Fundamental Rights of the European Union – Right to property – Proportionality)
I. Introduction
1. On 14 June 1985, the Heads of State and Government from a handful of Member States came together in a small commune in Luxembourg to sign the first agreement (the Schengen Agreement) (2) paving the way towards a European space without internal border controls: the Schengen Area.
2. Over the ensuing years, that shared European space has not only evolved in size (geographically, with the increase in the number of Contracting Member States), but also with respect to the body of EU law – known as the Schengen acquis (3) – which guarantees the proper functioning of the Schengen Area and ensures cooperation between the Member States.
3. While the advancement towards an area without internal frontiers has enabled EU citizens to move more freely, such developments have come, in parallel, with the responsibility of establishing and maintaining a high level of security in the territories of the Member States through measures which, on the one hand, prevent and combat crime and, on the other hand, improve coordination and cooperation between police and judicial authorities. Indeed, it is stating the obvious that free movement may also inevitably facilitate cross-border criminal activity.
4. The present case concerns one of the key tools created in view of that responsibility, namely the second generation Schengen Information System (‘SIS II’), which aims precisely at preserving such security and border management in Europe. In that context, the Court is asked to interpret one of the main instruments governing SIS II, that is to say Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II), (4) and more specifically Article 39 thereof.
5. The present case provides the Court with an opportunity to clarify the obligations placed upon, and the discretion left to, the competent authorities of the Member States in circumstances where an alert has been entered in SIS II for the seizure of an object or its use as evidence in criminal proceedings, but that alert is no longer considered relevant.
II. Legal framework
A. European Union law
1. Decision 2007/533
6. Pursuant to Article 3(1) of Decision 2007/533, for the purposes of that same decision:
‘(a) “alert” means a set of data entered in SIS II allowing the competent authorities to identify a person or an object with a view to taking specific action;
(b) “supplementary information” means information not stored in SIS II, but connected to SIS II alerts, which is to be exchanged:
…’
7. Article 8(1) of Decision 2007/533 states that ‘supplementary information shall be exchanged in accordance with the provisions of the [Sirene] Manual and using the Communication Infrastructure. …’.
8. Chapter IX of Decision 2007/533, entitled ‘Alerts on objects for seizure or use as evidence in criminal proceedings’, is composed of Articles 38 and 39. Article 38, entitled ‘Objectives and conditions for issuing alerts’, provides that:
‘1. Data on objects sought for the purposes of seizure or use as evidence in criminal proceedings shall be entered in SIS II.
2. The following categories of readily identifiable objects shall be entered:
(a) motor vehicles with a cylinder capacity exceeding 50cc, boats and aircrafts;
…’
9. In accordance with Article 39 of Decision 2007/533, entitled ‘Execution of the action based on an alert’:
‘1. If a search brings to light an alert for an object which has been located, the authority which matched the two items of data shall contact the authority which issued the alert in order to agree on the measures to be taken. …
2. The information referred to in paragraph 1 shall be communicated through the exchange of supplementary information.
3. The Member State which located the object shall take measures in accordance with national law.’
10. Article 45 of Decision 2007/533, which concerns the retention period of alerts on objects, lays down that:
‘1. Alerts on objects entered in SIS II pursuant to [Decision 2007/533] shall be kept only for the time required to achieve the purposes for which they were entered.
…
3. Alerts on objects entered in accordance with Article 38 shall be kept for a maximum of 10 years.
…’
11. Pursuant to Article 49(2) of Decision 2007/533:
‘Only the Member State issuing an alert shall be authorised to modify, add to, correct, update or delete data which it has entered.’
2. Regulation (EC) No 1986/2006
12. Pursuant to Article 1(1) and (2) of 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: (5)
‘1. Notwithstanding Articles 38, 40 and 46(1) of [Decision 2007/533], the services in the Member States responsible for issuing registration certificates for vehicles, as referred to in [Council] Directive 1999/37/EC [of 29 April 1999 on the registration documents for vehicles (OJ 1999 L 138, p. 57)], shall have access to the following data entered into SIS II in accordance with Article 38(2)(a), (b) and (f) of [Decision 2007/533] for the sole purpose of checking whether vehicles presented to them for registration have been stolen, misappropriated or lost or are sought as evidence in criminal proceedings:
(a) data concerning motor vehicles with a cylinder capacity exceeding 50 cc;
…
2. Services as referred to in paragraph 1 that are government services shall have the right to access directly the data entered in SIS II.’
3. The Sirene Manual
13. Within the SIS II framework, and in accordance with the provisions laid down in Commission Implementing Decision (EU) 2015/219 of 29 January 2015 replacing the Annex to Implementing Decision 2013/115/EU on the Sirene Manual and other implementing measures for the second generation Schengen Information System (SIS II),(6) and the annex thereto (‘the Sirene Manual’), Member States exchange supplementary information relating to alerts entered in SIS II. In order for SIS II to function effectively, that exchange of information is carried out by the Sirene Bureaux.
14. The Sirene Manual was adopted to facilitate the work of the Sirene Bureaux, to reflect better the operational needs of users of SIS II involved in Sirene operations, and to improve consistency of working procedures.
15. Recital 4 of the Sirene Manual states, inter alia, that ‘an alert entered in SIS II is to be kept only for the time required to achieve the purpose for which it was entered’.
16. Section 8 of the Sirene Manual specifically covers ‘alerts on objects for seizure or use as evidence (Article 38 of [Decision 2007/533])’. Section 8.4 of the Sirene Manual, entitled ‘Deletion of alerts on objects for seizure or use as evidence in criminal proceedings’, provides that an alert shall be deleted upon:
‘(a) the seizure of the object or equivalent measure once the necessary follow-up exchange of supplementary information has taken place between Sirene Bureaux or the object becomes subject of another judicial or administrative procedure (e.g. judicial procedure on good faith purchase, disputed ownership or judicial cooperation on evidence);
(b) the expiry of the alert; or
(c) the decision to delete by the competent authority of the issuing Member State.’
17. Pursuant to Section 2.2.2 of Appendix 2 to the Sirene Manual, the authorities of the Member State that has located the object must, in accordance with national law, (i) seize the object or take all necessary provisional measures, (ii) identify the person in possession of the object, and (iii) contact the Sirene Bureau of the issuing Member State.
B. National law
18. Point 3 of the Lietuvos Respublikos vidaus reikalų ministro įsakymas Nr. 1V‑324 dėl Lietuvos nacionalinės antrosios kartos Šengeno informacinės sistemos nuostatų patvirtinimo (Order No 1V‑324 of the Minister for the Interior of the Republic of Lithuania regarding approval of the regulations for the Lithuanian national second generation Schengen Information System) of 17 September 2007 (‘the National SIS II Provisions’) provides that the Lithuanian National SIS II (‘N.SIS II’) is established and operates on the basis of EU law.
19. In accordance with Point 25 of the National SIS II Provisions, the public undertaking Regitra is granted access to the N.SIS II data list on wanted motor vehicles and their trailers, the national vehicle registration register and registration documents of wanted motor vehicles.
20. Pursuant to Points 13 to 13.3 of the Rules for the registration of motor vehicles and their trailers, approved by Order No 260 of the Minister for the Interior of the Republic of Lithuania of 25 May 2001 (‘the Registration Rules’), the public undertaking Regitra shall inform the police when, inter alia, the applicant wishes to register a vehicle whose engine or number plate, or the vehicle itself, is registered in the register of wanted vehicles, in Lithuania’s N.SIS II.
21. Point 14 of the Registration Rules states that after informing the police in the cases provided for in Points 13.1 to 13.3 of the Registration Rules, vehicles mentioned in Point 13.1.1 of those rules may be registered only after they have been deleted from the register of wanted vehicles, that is, the N.SIS II.
III. Facts, national proceedings and the questions referred
22. On 13 November 2015, D.R. purchased a vehicle in Germany on the basis of a contract concluded with the company A.M. Transports. That vehicle was deregistered one week later from the German register and transported to Lithuania where it was resold to another person.
23. On 22 February 2016, the new owner attempted to register the vehicle in Lithuania but was unable to do so as an alert had been entered in SIS II for that vehicle, issued in Bulgaria on 23 December 2015, since it had allegedly been stolen.
24. The Lithuanian authorities informed the Bulgarian authorities that the vehicle had been found and a criminal investigation in respect of that vehicle was opened. However, by decision of 21 September 2016 of the Marijampolė District Prosecutor’s Office (Lithuania), that investigation was brought to a close, concluding that no criminal offence had been committed in Lithuania. By the same decision, the vehicle in question was returned to D.R. and the owner of the vehicle at the time of its alleged theft, namely NABKO HOLDING GRUP (Bulgaria), was informed and provided with D.R.’s details.
25. However, for more than three years, the competent authorities in Bulgaria did not take any action to remove the alert for the vehicle from SIS II.
26. On 20 February 2019, D.R. asked the regional division of VĮ Regitra (‘Regitra’) to register the vehicle in Lithuania. Nevertheless, that regional division refused that request. Although the applicant challenged that decision, Regitra upheld that decision on the basis of Point 14 of the Registration Rules given that the data relating to the search for the vehicle in Bulgaria had been entered in SIS II and continued to appear on the system.
27. The applicant brought an appeal against Regitra’s decision before the Regionų apygardos administracinio teismo Kauno rūmai (Regional Administrative Court, Kaunas Division, Lithuania). In that court’s view, the national provision relied upon by Regitra in upholding its original decision appears to restrict disproportionately the vehicle owner’s right of ownership and the right to dispose of his or her property. Indeed, the prohibition on the registration of the vehicle applies for an indefinite period of time and cannot be adapted to the specific circumstances of each case.
28. Against that background, that national court decided to refer the case to the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) in order for it to examine those issues. That court shares the doubts expressed by the Regionų apygardos administracinio teismo Kauno rūmai (Regional Administrative Court, Kaunas Division). In particular, given that certain provisions of the Registration Rules were introduced to guarantee the objectives of the Schengen acquis and contribute to the overall functioning of SIS II, the referring court wonders whether those rules are compatible with EU law.
29. Accordingly, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Must Article 39 of [Decision 2007/533], in particular Article 39(3), be interpreted as imposing an obligation to prohibit the registration of objects for which an alert has been issued in the Schengen Information System notwithstanding the fact that the alert is no longer relevant (the vehicle has been located; the criminal procedure in the Member State where the vehicle was located has been discontinued in the absence of a criminal offence committed in that Member State; the State that entered the alert has been informed but fails to take action to remove the alert from the system)?
(2) Must Article 39 of [Decision 2007/533], in particular Article 39(3), be interpreted as obliging a Member State which has located an object for which an alert was issued pursuant to Article 38(1) of the decision to lay down rules of national law that would prohibit any actions with the located object other than actions by which an objective referred to in Article 38 (seizure or use as evidence in criminal proceedings) would be attained?
(3) Must Article 39 of [Decision 2007/533], in particular Article 39(3), be interpreted as allowing Member States to lay down legal rules which would provide for exceptions to the prohibition on registering vehicles for which an alert has been entered in SIS pursuant to Article 38 of the decision, after the competent authorities of the Member State have taken steps in order for the State which entered the alert to be informed about the located object?’
30. Written observations have been submitted by the Latvian, Lithuanian, Netherlands and Portuguese Governments, as well as by the European Commission.
IV. Analysis
31. By its three questions, which it is appropriate to examine together, the referring court is essentially asking whether Article 39 of Decision 2007/533, on the one hand, requires the Member States to prohibit the registration of a vehicle, for which an alert has been entered in SIS II, and, on the other hand, precludes derogations to such a prohibition in circumstances where the alert is considered no longer to be relevant.
32. After recalling, very briefly, the text and function of Article 39 of Decision 2007/533 (A), I shall address the first issue raised by the referring court: whether that provision requires the Member States to prohibit the registration of a vehicle for which an alert has been entered in SIS II (B). Subsequently, I will provide clarification as to when such an alert ought to be deleted, before turning to the second issue raised by the referring court: whether EU law precludes a national rule prohibiting the registration of a vehicle where an alert is no longer relevant or up to date (C).
A. A brief introduction to Article 39 of Decision 2007/533
33. SIS II, which entered into operation on 9 April 2013, constitutes an essential tool for guaranteeing a high level of security within the area of freedom, security and justice of the European Union, as well as for ensuring the application of the provisions of the Schengen acquis. In order to achieve such objectives, the system was designed to enable the security authorities of the Member States to upload specific information in SIS II, and exchange supplementary information so that specific action could be carried out. In that regard, SIS II contains, notably, alerts relating to certain objects, such as banknotes, firearms and vehicles that have been stolen, misappropriated or lost.
34. As regards such objects, an alert may be entered, inter alia, for the purposes of seizure or use as evidence in criminal proceedings pursuant to Article 38 of Decision 2007/533. In that context, Article 39 of that decision – the provision which is at the heart of the present case – concerns the action to be undertaken by the authorities of the Member State which located the object (‘the executing Member State’) for which the authorities of another Member States (‘the issuing Member State’) entered an alert in SIS II.
35. Article 39(1) of Decision 2007/533 requires the authorities of the executing Member State to contact the authorities of the issuing Member State ‘in order to agree on the measures to be taken’. In turn, paragraph 3 of that provision requires the executing Member State to ‘take measures in accordance with national law’.
36. As Advocate General Pikamäe recently emphasised, the wording of that provision is not an example of precision. However, Section 2.2.2 of Appendix 2 to the Sirene Manuel – which is meant to provide clarity as regards the action to be taken by the executing Member State – explains that such action is structured around the following three steps: first, the seizure of the object or the adoption of all necessary provisional measures; second, the identification of the person in possession of the object; and, third, the contacting of the Sirene Bureau of the issuing Member State in order to agree on the measures to be taken. (7)
37. With that said, I shall now turn to the first issue that is raised by the questions referred, namely whether Article 39 of Decision 2007/533 requires the Member States to prohibit the registration of a vehicle for which an alert has been entered in SIS II.
B. Does Article 39 of Decision 2007/533 require the Member States to bar registration of a vehicle?
38. In addressing that issue, it should be noted, at the outset, that the various observations submitted in the present proceedings contain differing opinions as to the manner in which that question ought to be resolved. Whereas the Latvian and Lithuanian Governments take the view that Article 39 of Decision 2007/533 does require the Member States to introduce a rule to that effect, the Netherlands and Portuguese Governments take the opposite view. For its part, the Commission takes a somewhat middle position between those two: Article 39 of Decision 2007/533 precludes, at least initially, the registration of the vehicle. However, a Member State would no longer be required – in the Commission’s view – to bar the registration of the vehicle when the objective for which the alert was entered in SIS II has been attained.
39. In short, although the points raised by the Latvian and Lithuanian Governments and the Commission give rise to pertinent considerations, I essentially agree with the Netherlands and Portuguese Governments.
40. To begin, it must be borne in mind that, according to settled case-law, in interpreting a provision of EU law, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (8)
41. In the present case, it is undisputed that Article 39 of Decision 2007/533 is formulated in broad, general terms. The same is also true, in fact, for Section 2.2.2 of Appendix 2 to the Sirene Manual, which, as noted above in point 36, clarifies the exact action to be taken by the authorities of the executing Member State before contacting the authorities of the issuing Member State.
42. Neither of the two provisions refers expressly to an obligation of the Member States to prohibit the registration of a vehicle for which an alert has been entered in SIS II. Nor, in my view, can such an obligation be read as being impliedly provided for in those provisions.
43. Section 2.2.2 of Appendix 2 to the Sirene Manual refers to ‘all necessary provisional measures’ as an alternative to the seizure of the object located, while Article 39(1) of Decision 2007/533 refers merely to ‘measures to be taken’ that are to be agreed with the issuing Member State. Therefore, the provisional measures to be adopted unilaterally by the executing Member State are only envisaged as constituting a substitute to the (arguably more effective) seizure of the object in question, whereas the measures to be adopted following the exchange of information between the authorities of the executing and issuing Member States are those that have been agreed upon by those authorities.
44. The existence of significant leeway for the executing Member State in this context is further supported by Article 39(3) of Decision 2007/533 according to which the measures to be taken must be ‘in accordance with national law’.
45. Accordingly, I cannot see any textual element in Article 39 of Decision 2007/533 which would suggest that, expressly or impliedly, there is an obligation for the executing Member State to adopt certain specific measures that go beyond the possible seizure of the object (or equivalent measures) and the identification of the person that possesses the object. In particular, nothing indicates the existence of an obligation of the Member States to bar the registration of vehicles for which an alert has been entered in SIS II. (9)
46. That finding appears corroborated by a systemic interpretation of the relevant EU law provisions and related pieces of EU legislation.
47. First, no provision or recital of Decision 2007/533 provides any additional detail as to how the Member States are meant to (or, for that matter, may) comply with their duty to ‘take measures in accordance with national law’ under Article 39 of that decision. Moreover, as I have already observed, the Sirene Manual does not contain any statement to that effect beyond what is provided for in Section 2.2.2 thereof. (10)
48. Second, as suggested by the Netherlands Government, it is useful to turn to Regulation No 1986/2006 since that is the regulation which grants the services in the Member States responsible for issuing registration certificates for vehicles access to data stored in SIS II. Article 1(1) of that regulation, read in conjunction with recital 8 thereof, explains that such access is provided to the competent services for the administrative ‘purpose of checking whether vehicles presented to them for registration have been stolen, misappropriated or lost or are sought as evidence in criminal proceedings’. Arguably, therefore, had the EU legislature wished to preclude those authorities from registering a vehicle for which they detect an alert in SIS II, it would have expressly laid down a provision to that effect in that regulation.
49. It thus seems to me that it was a conscious choice of the EU legislature not to introduce any specific detail as to the exact measures that the Member States are to adopt for the purposes of executing an alert entered in SIS II under Article 38 of Decision 2007/533. The legislature intended to leave a wide margin of discretion to the Member States in that respect.
50. In that light, and in line with such discretion, I observe that a number of Member States do in fact permit, or at least do not expressly preclude, the registration of vehicles even where an alert for such a vehicle has been entered in SIS II. After all, registration is simply the formal process of determining the owner or user of a vehicle, largely for the purposes of taxation or detection of law breaches.
51. However, the Latvian and Lithuanian Governments argue that a more rigorous interpretation of Article 38 of Decision 2007/533 would be more consistent with the overall objectives pursued by that decision, and that the interpretation suggested in this Opinion would deprive partly Article 39 of Decision 2007/533 of its effectiveness.
52. In that regard, it must be recognised that a national measure which prohibits the registration of vehicles for which an alert has been issued appears to be capable of contributing to ensuring ‘a high level of security within the area of freedom, security and justice of the European Union’, that being the overarching objective of SIS II. (11) Similarly, such a measure also seems suitable to enhance the effectiveness of alerts entered in SIS II pursuant to Article 38 of Decision 2007/533.
53. Indeed, although a national rule containing an absolute prohibition on the registration of a vehicle for which an alert has been entered in SIS II is not a measure directly aimed at the seizure of that vehicle or its use as evidence in criminal proceedings, such a measure may nevertheless help to prevent the vehicle in question from being used or sold, thus minimising the risk that that vehicle evade seizure or that it cannot be used as evidence in criminal proceedings. For that reason, a national rule such as the one at issue in the present case may in fact assist the competent authorities when it comes to taking the steps necessary to execute an alert and fulfil the objectives laid down in Article 38 of Decision 2007/533.
54. Be that as it may, these arguments do not necessarily lead one to the conclusion that it is in fact mandatory, for the Member States, to introduce a rule such as that at issue in their national laws.
55. Apart from the textual elements referred to above, one must not lose sight of what SIS II essentially is and how it is meant to operate. SIS II is – as the name itself makes unmistakably clear – an information system. (12) Decision 2007/533 is intended to establish and regulate a joint information system, (13) whose immediate aim is to ‘[support] operational cooperation between police authorities and judicial authorities in criminal matters’. (14)
56. Accordingly, Decision 2007/533 is, fundamentally, an instrument adopted for the purpose of setting up an information system and laying down the rules that are necessary to make that system operational: who is to manage the system, what information should be included and how, when should information be added and deleted, and so forth. The philosophy underpinning SIS II is simple: national authorities should exchange information and establish cooperation.
57. Conversely, the purpose of Decision 2007/533 is not to lay down substantive rules on what the national authorities must do beyond that which expressly contained in Appendix 2 to the Sirene Manual, that is (i) seizing the object (or adopting equivalent provisional measures) and identifying the person that is in possession of that object and (ii) cooperating with the authorities at the appropriate level established.
58. Such rules are not harmonised by EU law, but rather are entirely governed by national law. (15) That is so, even where such rules are capable of (i) contributing to the objective of ensuring a high level of security within the area of freedom, security and justice, and/or (ii) enhancing the effectiveness of alerts entered within SIS II.
59. With regard to the latter aspect, I would simply add that, in the EU system, the principle of effectiveness implies, first and foremost, that the interpretation of EU rules should ensure a minimum of effectiveness in order to avoid reducing their existence to a mere formality, and to exclude interpretations leading to absurd or improper results. The principle of effectiveness should not be understood as a means of maximising the reach and efficacy of EU rules, especially when to do so goes beyond the clear intentions of the EU legislature. (16)
60. In conclusion, I take the view that Article 39 of Decision 2007/533 does not require the Member States to prohibit the registration of a vehicle for which an alert has been entered in SIS II.
61. However, it is equally clear to me that there is nothing in Decision 2007/533 which, at least in principle, precludes the Member States from introducing a rule to that effect. As mentioned in points 52 and 53 above, such a measure may indeed ensure that the objects indicated in an alert, once found, can subsequently be seized or used as evidence in criminal proceedings, thereby contributing to the attainment of the overarching objectives pursued with the establishment of SIS II.
62. Yet, as with any other national rule or measure adopted with a view of implementing EU legislation at national level, such a rule must be compatible with the other rules and principles flowing from EU law more broadly, including the Charter of Fundamental Rights of the European Union (‘the Charter’).
63. That latter point brings me onto the discussion of whether the answer above holds true in circumstances where the alert entered in SIS II is considered no longer relevant in so far as the purpose for which that alert was entered has been satisfied.
C. Does Article 39 preclude the Member States from barring the registration of a vehicle when an alert in SIS II is considered no longer relevant?
64. It must be recalled that it is for the national court alone to assess and establish the factual circumstances of the present case. It is clear from its order for reference that the referring court takes the view that the alert entered in SIS II for the vehicle at issue is no longer relevant.
65. Where such a premiss is accurate, the referring court points out that a national rule that lays down an absolute prohibition on the registration of a vehicle for which an alert has been entered in SIS II, and which cannot be adapted to specific individual circumstances, for instance, where that alert is no longer relevant or up to date, raises questions regarding the compatibility of that national rule with EU law, in particular with the right to property and the principle of proportionality.
66. For the purposes of providing the national court with an answer that is as helpful as possible, I shall first consider the question of when an alert should be deleted (1), before considering whether those observations of the referring court have merit (2).
1. Deleting an alert
67. Article 45 of Decision 2007/533 sets out the retention period of alerts on objects. It follows from that provision, read in the light of recital 13 of that decision, that alerts are to be kept only for the time required to fulfil the purposes for which they were entered. As soon as the conditions for maintaining an alert are no longer fulfilled, the issuing Member State must delete the alert without delay. (17) An explanation as to when an alert on an object is considered to have achieved its purpose and should be deleted is provided for in the Sirene Manual. (18)
68. However, what is clear from Article 39 of Decision 2007/533, and the Sirene Manual more generally, is that cooperation via communication – particularly in the form of (i) an initial contact in order to agree upon the measures to be taken and (ii) additional communication through the exchange of supplementary information – is indispensable to the execution of an alert and necessary for achieving the purpose for which an alert was entered in SIS II.
69. It hardly needs to be pointed out that communication about the location of the object to the issuing Member State is not equivalent to arriving at an agreement on the measures to be taken. Communication of such information merely amounts to one step (the initial one) in the overall process. In that regard, it is legitimate for the authorities of the executing Member State to expect that, after having made contact, the authorities of the issuing Member State will respond so that further action can be taken to achieve the purpose for which the alert was entered in SIS II in the first place.
70. If such cooperation takes place, then the object in question will likely be handed over to the authorities of the issuing Member State after its initial seizure. In that context, the purpose of the alert will be considered satisfied and, as such, it should be deleted.
71. Circumstances inevitably exist, however, where the authorities of the executing Member State initiate cooperation – often after seizing the object in question – by contacting the authorities of the issuing Member State, yet the latter authorities fail to respond or take any action.
72. In fact, according to the information provided by the referring court, it appears that the case in the main proceedings may actually exemplify this point. (19) Indeed, after locating the vehicle in question, the Lithuanian authorities contacted the Bulgarian authorities in order to determine the appropriate measures to be taken. However, I understand that, despite the significant time elapsed, the Bulgarian authorities have so far not reacted.
73. In my view, in those circumstances, a national court may very well take the view that the objective pursued by an alert entered in SIS II has, at least in part, been achieved. Indeed, the authorities of the executing Member State reacted to an alert, and initiated contact with their counterparts in the issuing Member State. As such, cooperation between the respective national administrations has been made possible.
74. The alert system at the heart of SIS II rests on the principle of mutual trust, which is the cornerstone of the area of freedom, security and justice. (20) That mutual trust implies that the authorities of the issuing Member State are, in principle, the ones that are competent to decide whether an alert entered in SIS II is relevant and up to date. The authorities of the executing Member State must, as a rule, trust that to be the case and, in principle, cannot call that into question by disregarding such an alert.
75. That said, mutual trust cannot become a form of blind trust. (21) Therefore, when the authorities of the executing Member State contact their counterparts, thus fulfilling their duty of sincere cooperation, but the authorities the issuing Member State do not react within a reasonable period – here, three years – then the authorities of the executing Member State should be able to consider that the alert in question is no longer relevant and may disregard it. (22)
76. It remains the case however that, pursuant to Article 49(2) of Decision 2007/533, only the Member State that issued the alert is able to delete that alert. As such, the authorities of the executing Member State cannot themselves do so and, as long as that alert is still in the system, they are required to take the measures set out in the relevant EU legislation.
77. Nevertheless, nothing precludes the authorities of the executing Member State from amending and/or modifying, depending on the circumstances of the case, the measures adopted with a view to executing an alert that are not required by any EU law provision. That is the case, as explained above, of a national rule such as that at issue. Therefore, it would be entirely possible for those authorities, after having contacted the ones that entered the alert at issue, and where those latter authorities have failed to respond within a reasonable period of time, to decide that a prohibition on the registration of a vehicle for which an alert has been entered in SIS II should no longer be applied if they arrive at the conclusion that that alert, despite still being in the system, is no longer relevant. (23)
78. In any event, the referring court wonders, in essence, whether a Member State is required to lift a prohibition on the registration of a vehicle for which an alert has been entered in SIS II when it arrives at the conclusion that that alert, despite still being in the system, is no longer relevant. In other words, the referring court asks whether EU law precludes a national rule prohibiting the registration of an object, such as a vehicle, for which an alert has been entered in SIS II, where the alert is considered no longer to be relevant.
79. In that regard, I agree with the referring court that such a national rule may indeed give rise to a number of concerns vis-à-vis the right to property enshrined in Article 17 of the Charter, according to which everyone has the right to own, use, and dispose of his or her lawfully acquired possessions. I shall, therefore, now turn to that issue below.
2. The right to property and proportionality
80. First, it is worth recalling that the fundamental rights enshrined in the Charter are binding on the Member States when acting in the scope of EU law. (24) The national rule at issue, which ties the registration of a vehicle to an alert entered in SIS II, pursuant to specific provisions of Decision 2007/533, as well as the rules laid down in the Sirene Manual, naturally falls within the scope of EU law. As such, that rule must comply with the fundamental rights enshrined in the Charter.
81. Having said that, I have no difficulty in reaching the conclusion that a national rule such as that at issue constitutes a limitation to the right to property. Indeed, due to such a rule, a person who possesses a vehicle for which an alert has been entered in SIS II may be unable to use it or dispose of it in a manner that he or she so wishes. (25)
82. Nevertheless, pursuant to Article 52(1) of the Charter, limitations may be imposed on the exercise of the rights recognised therein, as long as the limitations are provided for by law, respect the essence of those rights and freedoms, and, subject to the principle of proportionality, are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
83. As I have already noted above, such a national rule may facilitate the execution of an alert in so far as the prohibition laid down therein helps to minimise the risk that the vehicle in question evade seizure or cannot be used as evidence in criminal proceedings.
84. It is worth recalling that alerts entered in SIS II under Article 38 of Decision 2007/533 relate to objects that have quite often been stolen, misappropriated or lost, or may even pose a danger to wider society, for instance, in the case of firearms. The execution of such alerts is thus carried out so that a particular object may be seized or used as evidence in criminal proceedings, in the general interest of the public. Indeed, the seizure of dangerous objects reduces their presence on the streets of Europe, while the seizure and use as evidence in criminal proceedings of objects that have been stolen or misappropriated assists in bringing justice to the victims of crime.
85. There is, therefore, little doubt that a national rule which prevents the registration of a vehicle until the alert for that object is no longer in SIS II is adopted in the interest of the public and aims to contribute to the overall objectives of general interest pursued by the European Union, in particular, in the area of freedom, security and justice.
86. Be that as it may, I am of the view that – because of certain features – a rule such as that at issue may cause unnecessary and disproportionate interferences with the right to property of certain individuals.
87. Indeed, the national rule at issue applies ad infinitum. In other words, the restriction laid down therein as to when a vehicle may be registered is capable of being imposed for an indefinite period of time because, so long as an alert for a particular vehicle entered in SIS II remains on the system, it is simply not possible to register the vehicle in question in Lithuania.
88. Moreover, that national rule is not capable of being adapted to specific individual circumstances, for instance, to the fact that an alert is no longer relevant. It does not, therefore, grant the authorities deciding on the registration of a vehicle a possibility to decide on the applicability of that restriction.
89. To my mind, a national rule such as the one at issue does go beyond what is necessary to achieve the objectives of general interest pursued, and does affect in a disproportionate manner the right to property of individuals which find themselves in a situation such as that in the present case, namely, where the purpose for which an alert on a vehicle entered in SIS II has been satisfied, and where, therefore, the alert ought to have been deleted by the issuing Member State, but such action has not yet been taken.
90. Where such circumstances arise, then it becomes difficult to square the notion that such a restriction on the right to property – in the form of the national rule at issue as it stands – continues to be necessary for the purposes of executing that very alert, or, more broadly, for the objectives and proper functioning of SIS II.
91. The inability for an individual to use or dispose of a vehicle in a manner that he or she so wishes, because an alert for that object is still entered in SIS II, seems to me disproportionately to prejudice that individual’s right to property, when the reason for which that alert remains on the system is due to the failure of the authorities of the issuing Member State to respond to, and cooperate with, the authorities of the Member State which located the object in question.
92. Therefore, I am drawn to the conclusion that a national rule which lays down an absolute and indefinite prohibition on the registration of a vehicle goes beyond what is necessary and constitutes a disproportionate interference with the right to property in Article 17 of the Charter in circumstances where an alert entered in SIS II is objectively no longer relevant even though the alert remains on the system.
V. Conclusion
93. In the light of the foregoing, I propose that the Court answer the questions referred for a preliminary ruling by the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) as follows:
– Article 39 of Council Decision 2007/533/JHA on the establishment, operation and use of the second generation Schengen Information System (SIS II) does not require the Member States to prohibit, nor does it preclude them from prohibiting, the registration of an object, such as a vehicle, for which an alert has been entered in SIS II.
– Article 17 of the Charter of Fundamental Rights of the European Union precludes a national rule that lays down an absolute and indefinite prohibition on the registration of a vehicle, even in circumstances where an alert entered in SIS II remains in the system despite being considered no longer relevant.