Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

PIKAMÄE

delivered on 13 January 2022 (1)

Case C‑520/20

DB,

LY

v

Nachalnik na Rayonno upravlenie Silistra pri Oblastna direktsia na Ministerstvo na vatreshnite raboti

(Request for a preliminary ruling from the Administrativen sad Silistra (Administrative Court, Silistra, Bulgaria))

(Reference for a preliminary ruling – Judicial cooperation in criminal matters – Second generation Schengen Information System (SIS II) – Decision 2007/533/JHA – Articles 38 and 39 – Alert on objects for seizure or use as evidence in criminal proceedings – Execution of the action based on an alert – Measures to be taken – National rules and administrative practices requiring the competent authority to perform the requested action)

1.        In the present case, the Court is asked by the Administrativen sad Silistra (Administrative Court, Silistra, Bulgaria) to give a preliminary ruling on the interpretation of Article 39 of Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II). (2)

2.        The Court will thus have the opportunity to provide for the first time, in its forthcoming judgment, clarifications on the mechanism established by that legal instrument with a view to supporting judicial cooperation in criminal matters, in the case of objects for which an alert has been issued in SIS II for their seizure or use as evidence in criminal proceedings. (3) More specifically, it will have to determine the extent of the discretion left to the competent authorities of the Member States in executing the action based on the alert and in undertaking the steps required further to such execution.

I.      Legal context

A.      EU law

3.        Articles 38, 39, 45, 48 and 49 of Decision 2007/533 are relevant provisions in this case.

B.      Bulgarian law

4.        Article 84 of the Zakon za Ministerstvoto na vatreshnite reboti (Law on the Ministry of the Interior, ‘the ZMVR’) (4) provides as follows:

‘(1)      Police authorities may temporarily seize an object for which an alert has been issued for the purpose of searches in the SIS and/or in the databases of the International Criminal Police Organization (Interpol).

(2)      The person at whose premises the object sought for the purposes of paragraph 1 is located shall be asked to surrender it voluntarily. A report confirming the voluntary surrender of the object shall be drawn up; that report shall be signed by the person surrendering the object located …

(3)      If the person refuses to surrender the object within the meaning of paragraph 1, that object shall be seized and a report on its seizure drawn up. …

…

(6) … The surrender or seizure shall be notified to the Member State which entered the alert for the purpose of searches in the SIS and/or in the Interpol database.

(7)      The Member State which entered the alert for an object sought in the SIS and/or the Interpol database shall be notified by the competent specialist authority within the Ministry of the Interior.

(8)      … If, within a period of 60 days, the Member State which entered the alert requests the return of the object, that object shall be returned to the person stated in the request within a period of 7 days, on the decision of the head of the competent unit referred to in paragraph 6.

(9)      … If, within a period of 60 days, the Member State which entered the alert does not request the return of the object, that object shall be returned to the person who surrendered it or from whom it was seized within a period of 7 days, on the decision of the head of the competent unit referred to in paragraph 6.

…’

II.    The facts at the origin of the dispute, the main proceedings, the question referred for a preliminary ruling and the procedure before the Court

5.        EF, a Bulgarian national, purchased a car using a loan taken out with a Norwegian bank called Santander Consumer Bank. It appears that, in May 2016, EF ceased making repayments on that loan and that that bank thus passed the file to Lindorff AS to collect the debt. In response to a request for voluntary payment and an enforcement warning, EF advised that company that the vehicle in question was in Bulgaria. That vehicle had in fact been sold to AB, the duly registered owner in that State, who had sold it on to the applicant in the main proceedings, DB. DB had purchased the vehicle in March 2017 in Varna (Bulgaria) and had registered it.

6.        On 24 May 2017, an alert was entered and registered by Norway in the national Schengen Information System (‘N.SIS’) for the seizure of a car described as a ‘object – stolen, misappropriated or otherwise lost’ and duly identified, including by its chassis number.

7.        On 26 May 2017, the Bulgarian police located, in a car park in Silistra (Bulgaria), the vehicle registered to DB and, following a search conducted in the ‘Search Activity’ automated information system of SIS II, found that its chassis number matched that of the vehicle for which Norway entered an alert. On the basis of Article 84(3) of the ZMVR, that vehicle and its registration certificate were seized from DB.

8.        Following an exchange of information between the Bulgarian and Norwegian Sirene Bureaux, an order for the return of the objects seized was issued by the head of the Silistra Police Department. It is apparent from the grounds of that order that the Norwegian Sirene Bureau had entered an alert for the vehicle in question in connection with the prosecution of an offence classified as fraud or breach of trust, committed on 23 December 2014 in Hordaland (Norway).

9.        The Norwegian commercial company Santander Consumer Bank, the vehicle’s owner, stated that it wanted the vehicle to be returned to it, and instructed the company Lindorff, represented in Bulgaria by the company Plam EOOD, accordingly.

10.      On 6 June 2017, the Bulgarian police authority received from Plam EOOD a request to hand over the vehicle seized. That authority thus contacted the Bulgarian Ministry of the Interior requesting that that ministry ask Norway to send a formal request for the return of the vehicle. On 4 July 2017, that vehicle was handed over to the manager of Plam EOOD, CD. On 12 July 2017, the two number plates and the vehicle’s registration certificate were returned to the applicant.

11.      DB and his spouse LY brought an action before the referring court to challenge the lawfulness of the order made by the defendant police authority in the main proceedings for the vehicle at issue to be handed over to Plam EOOD on the basis of Article 84(8) of the ZMVR, claiming that Norway’s entry of the alert in SIS II was unjustified in the absence of compelling evidence that criminal proceedings relating to that vehicle had been initiated and conducted in Norway. The applicants in the main proceedings also filed with that authority a request for the immediate return of the vehicle on the grounds that it had been seized forcibly and that there was no basis in law or in fact for its seizure. Having received an express rejection of that request from that authority, they brought an action before the referring court to challenge that rejection. That second case was stayed pending resolution of the case in the main proceedings.

12.      In the case in the main proceedings, the referring court asked the defendant authority to provide an extract from the criminal code in force in the Kingdom of Norway, together with a duly produced translation into Bulgarian, including the paragraphs used to register in SIS II the alert relating to the car at issue; that authority failed to do so. At the hearing on 8 July 2020, that court also informed the abovementioned authority that it fell to the authority to furnish an official response from the Norwegian police authorities as to whether criminal proceedings relating to that vehicle had been initiated in Norway and, if so, which offence formed the subject of those proceedings and which stage they had reached. Following that request, a letter from the head of the Sirene department at the ‘International Operational Cooperation’ Directorate of the Ministry of the Interior was submitted at the hearing on 26 August 2020, in which it is stated that the file and the investigation relating to the vehicle were closed on 10 July 2017 because the vehicle had been located and repatriated to Norway.

13.      The referring court has doubts as to whether the vehicle at issue was the subject of any criminal proceedings in Norway (5) and takes the view that, if not, the alert entered in SIS II fell outside the scope defined in Article 2 of Decision 2007/533 and, therefore, was in breach of the objective pursued by the creation of SIS II as defined in that decision.

14.      In the light of those considerations, the referring court asks about the compatibility with Decision 2007/533 of a national legislative provision, such as Article 84 of the ZMVR, that requires the Bulgarian competent authorities to seize any object for which an alert has been issued for the purpose of searches in SIS II and, if the Member State that issued the alert requests the return of that object, and to hand over the object in question to that State, without those authorities being able to argue, in the course of that procedure, that the entry of the alert as described in the preceding point was in some way unlawful. In that connection, the referring court notes, inter alia, that any owners acting in good faith, such as the applicants in the main proceedings, would thus be denied any legal protection.

15.      In those circumstances, the Administrativen sad Silistra (Administrative Court, Silistra) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

‘Must Article 39 of … Decision [2007/533] and in particular Article 39(3) thereof, be interpreted as meaning that it allows national rules and administrative practices under which, if the competent executing authority has valid reason to conclude that the alert entered in the SIS is not covered by the objectives for which it has been registered, and in particular the objectives laid down in Article 38(1), that authority can and must refuse to execute it?’

16.      Written observations were submitted by DB, the Bulgarian Government and the European Commission.

III.  Analysis

A.      Preliminary observations

17.      This question must, in my view, be reformulated. In that regard, it should be observed that that question, as envisaged by the referring court, appears to be purely hypothetical in nature and, for that reason, the answer provided by the Court could not contribute to the resolution of the dispute in the main proceedings.

18.      The referring court is in fact asking the Court about the compatibility with Article 39 of Decision 2007/533 of national provisions or administrative practices that require execution of an alert entered in SIS II to be refused by the authorities of the executing Member State where those authorities consider that that alert does not come under the objectives pursued by that decision.

19.      As I have already made clear, it is, however, apparent from Article 84 of the ZMVR that Bulgarian legislation does not under any circumstances allow the competent national authorities to issue such a refusal in situations as described by the referring court. On the contrary, those authorities are acting under circumscribed powers, since, when an object for which an alert has been issued for the purpose of searches in SIS II is located, those authorities are obliged to seize it and, if they subsequently receive a request to that effect from the Member State that issued the alert within a period of 60 days from the notification of the seizure to that State, to return it to the person stated in the request.

20.      I therefore invite the Court to reformulate the question, but not to the effect proposed by the Commission. According to the Commission, the referring court would like to ascertain whether the Bulgarian law is compatible with Decision 2007/533 inasmuch as it provides for an unconditional repatriation of the objects seized on the basis of an alert in SIS II, since the review to be conducted by that court in the context of the dispute in the main proceedings is exclusively concerned with that aspect.

21.      It is indeed true that the applicants in the main proceedings contest the legality of the decision, adopted on the basis of Article 84(8) of the ZMVR, by which the Bulgarian police acted upon the written request for the return of the vehicle at issue sent by Norway. However, a number of paragraphs of the order for reference make clear, in my view, that their criticisms relate rather to unlawfulness arising from the failure to comply with the conditions justifying the entry of the alert in SIS II, which vitiated the execution of the alert in its entirety, since, if the competent authorities of the requested Member State had been able to argue the existence of such unlawfulness, neither the seizure of that vehicle nor its repatriation to Norway would have been possible. Accordingly, the Commission’s proposal to reformulate the question in such a way that it refers exclusively to the compatibility with Decision 2007/533 of the national provision as regards the unconditional nature of the repatriation of the objects seized in accordance with an alert in SIS II should be rejected.

22.      I am therefore of the view that the question submitted should be reformulated to the effect that the referring court asks the Court whether Article 39 of Decision 2007/533 precludes national legislation that does not allow the authorities of the requested Member State to refuse to execute an alert on an object registered in SIS II where the competent executing authority has valid reason to conclude that that alert is not covered by the objective laid down in Article 38 of that decision.

23.      I will return to this matter in what follows.

B.      The question referred for a preliminary ruling

24.      Set up by the Convention Implementing the Schengen Agreement (‘the CISA’) (6) and later developed into its current version, the second generation SIS (SIS II), the SIS is a common information system allowing the security authorities in the Member States to cooperate, by exchanging information for the implementation of the policies required in order to establish an area without internal border controls within the European Union. More specifically, the SIS allows those authorities, through an automatic query procedure, to access alerts relating to persons or objects entered by one of the other Member States. The information obtained is used for controls of persons at the external borders or on national territory and for the issuance of visas and residence permits, as well as for police and judicial cooperation in criminal matters. (7) The SIS is therefore an essential tool both for the application of the provisions of the Schengen acquis relating to the free movement of persons and to ensure a high level of security within that area. (8)

25.      Although it is a unique system, SIS II is governed by two separate legal acts: Regulation No 1987/2006 (9) and Decision 2007/533. Such duality is necessitated by the fact that that system is designed to support both the implementation of the policies connected with the free movement of persons, which come under the TFEU, and cooperation in criminal matters, which falls within the scope of the TEU. Those acts also apply to Iceland and Norway pursuant to Article 2 of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter’s’ association with the implementation, application and development of the Schengen acquis. (10)

26.      With regard to Decision 2007/533, which is the subject of the interpretation requested in the present case by the referring court, it should be observed first of all that Article 2(1) of that decision provides that the Decision establishes the conditions and procedures for the entry and processing in SIS II of alerts on persons and objects, the exchange of supplementary information and additional data for the purpose of police and judicial cooperation in criminal matters.

27.      The exchange of ‘supplementary information’ related to an alert is crucial to the implementation of certain provisions of Decision 2007/533. (11) Pursuant to Article 7(2) of that decision, each Member State is required to set up an authority called a ‘Sirene Bureau’, which carries out the exchange in question in accordance with the provisions of a manual called the ‘Sirene Manual’, as required under Article 8(1) of the Decision.

28.      Alerts are classified and regulated, within the context of Decision 2007/533, according to the reason for their registration in SIS II. Each category of alert thus identified is the subject of a chapter that necessarily includes a provision relating to the data allowing the person or the object concerned to be identified by the alert and a provision concerning the action to be taken by the competent authorities of the requested Member State in order to execute that alert.

29.      Where they concern objects, alerts are classified as alerts for the purposes of discreet checks or specific checks, which are governed by Articles 36 and 37 of Decision 2007/533, and as alerts for seizure or use as evidence in criminal proceedings, which are governed by Articles 38 and 39 of that decision. As regards that second category of alerts, the data that allows the object concerned to be identified or located are the categories of readily identifiable objects covered by Article 38(2) of that decision.

30.      It is established that the alert at issue in the case in the main proceedings was entered in SIS II by Norway for the seizure of the vehicle in question, and that that vehicle, as well as its registration certificate and number plates, come under the categories designated, respectively, as ‘motor vehicles with a cylinder capacity exceeding 50cc’ (Article 38(2)(a) of Decision 2007/533)) and ‘vehicle registration certificates and vehicle number plates which have been stolen, misappropriated, lost or invalidated’ (Article 38(2)(f) of that decision).

31.      The action to be taken based on an alert for seizure or use as evidence in criminal proceedings, such as the alert at issue here, forms the subject of Article 39 of Decision 2007/533. Paragraph 1 of that article reads as follows: ‘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 …’

32.      Although the wording of that provision does not remove all uncertainty as to the exact identification of the action to be taken by the competent authorities of the requested Member State, reference need simply be made to Section 2.2.2 of Appendix 2 to the Sirene Manuel to find that such action is structured around the following steps: firstly, the seizure of the object or the adoption of all necessary provisional measures; secondly, the identification of the person in possession of the object; and, thirdly, the contacting of the Sirene Bureau of the Member State that issued the alert (in order to agree on the measures to be taken).

33.      With regard to the execution of the action to be taken, Article 39(2) of Decision 2007/533 provides that, to that end, the competent authorities of the Member States concerned are to communicate with each other through the exchange of supplementary information. More specifically, Section 8.3 of the Sirene Manual states that a structured exchange of information takes place between the Sirene Bureau of the Member State that issued the alert and the Sirene Bureau of the requested Member State using Sirene forms. The requested Member State uses a G form to inform the Sirene Bureau of the Member State that issued the alert of the hit from an automated consultation of SIS II on an object for which an alert has been issued by that bureau. Where supplementary information is requested, the Sirene Bureau of the Member State provides it via a P form.

34.      It thus appears that, once an alert for seizure or use as evidence in criminal proceedings has been entered in SIS II, the competent authorities of the requested Member State are in principle obliged to execute the action based on that alert.

35.      In particular, a refusal by those authorities to execute that action cannot be based on their own assessment of the circumstances which justified entering an alert in SIS II, such as those relating to the existence of pending criminal proceedings in the Member State that issued the alert. That is apparent inter alia from the provisions of Article 49(1) and (2) of Decision 2007/533, under which only the Member State issuing an alert is to be responsible for ensuring that the data are accurate, up-to-date and entered in SIS II lawfully and authorised to modify, add to, correct, update or delete data which it has entered. (12) In the same vein, Article 21 of that decision establishes that the assessment preceding the entry of the alert and concerning whether the case in question is adequate, relevant and important enough to warrant such entry is a matter for the Member State issuing the alert.

36.      As the Court explained in the judgment in Commission v Spain, (13) a conclusion to that effect cannot come as a surprise.

37.      In that case, the Court was called upon to give a ruling on a failure to comply with the rules of the CISA – which are now incorporated into Regulation No 1987/2006 – governing the entry into a State’s territory and the refusal to issue a visa to any third-country national for whom an alert has been issued in the SIS for the purposes of refusing entry. In that regard, the Court began by observing that those rules provided, first, that the assessment of the circumstances justifying the entry of an alert into the SIS fell within the competence of the Member State issuing the alert (Article 94(1) and Article 105 of the CISA) and, secondly, that the other Contracting States were obliged, in the absence of exceptional circumstances, to refuse entry or a visa to an alien for whom an alert had been issued for the purposes of refusing him entry (Articles 5 and 15 of the CISA). It went on to explain that the fact that such a refusal was ‘automatic’ ‘reflect[ed] the principle of cooperation between the Contracting States’, which is a founding principle of the Schengen acquis and essential to the operation of the SIS. (14)

38.      Decision 2007/533 has, in my view, similarly automatic effect, since it too contains rules establishing the competence of the Member State issuing the alert as regards the assessment of the circumstances forming the grounds for an alert in SIS II (Article 49(1) and (2) and Article 21) and the obligation to execute the action based on that alert incumbent on the authorities of the requested Member State (Article 39). Accordingly, it must necessarily be stated, as the Court held in the judgment in Commission v Spain, (15) that there is some degree of automaticity in the execution of the action based on the alert, the need for which is justified by the fact that such action gives expression to the principle of sincere cooperation between Member States which underpins the Schengen acquis and is essential to the operation of an integrated management system intended to ensure a high level of security in the area of freedom, security and justice of the European Union, which is the corollary of the freedom to cross internal borders within the Schengen Area.

39.      Whilst there are alerts that can be called into question and give rise to a refusal to execute, that is not the case with alerts on objects for seizure or use as evidence in criminal proceedings.

40.      Indeed, it must be noted that Article 24 of Decision 2007/533, which allows the requested Member State to require that a ‘flag’ be added to an alert to the effect that the action to be taken on the basis of that alert will not be taken in its territory, where that State considers that to give effect to the alert is incompatible with its national law, its international obligations or essential national interests, does not cover those two categories. In the light of its wording, its applicability is limited to alerts entered pursuant to Article 26 (‘Alerts in respect of persons wanted for arrest for surrender or extradition purposes’), Article 32 (‘Alerts on missing persons’) or Article 36 (‘Alerts on persons and objects for discreet checks or specific checks’) of that decision.

41.      Article 48 of Decision 2007/533 provides for one case of non-execution of an alert, but it does not follow from a refusal to execute the alert by the authorities of the requested Member State. That provision imposes on the requested Member State the obligation to inform the Member State issuing the alert immediately ‘if a requested action cannot be performed’. In that connection, it must be noted that the situation covered is that in which the action is objectively impossible, as is borne out by the clarification provided in Section 2.4 of the Sirene Manual, which states that the obligation to inform laid down in that provision is incumbent upon the requested Member State, ‘which is on the basis of all available information definitely unable to follow the procedure [provided for in the event of a hit]’, (16) and that that obligation concerns the fact that the requested Member State ‘is not able to perform the requested action’ (17) (and the reasons for such inability). (18)

42.      For the sake of completeness, it should be pointed out that, where the conditions laid down by it are met, Article 49(3) of Decision 2007/533 by no means gives the competent authorities of the requested Member State the option to refuse to execute the action requested based on the alert. That provision in fact states that, if the requested Member State has evidence suggesting that an item of data is factually incorrect or has been unlawfully stored, that State must, through the exchange of supplementary information, inform the Member State that issued the alert thereof at the earliest opportunity (and not later than 10 days after the said evidence has come to its attention) and, in the event of disagreement with the latter State, the requested Member State must submit the matter to the European Data Protection Supervisor (EDPS) so that that body can act as mediator, jointly with the national supervisory authorities. In other words, the competent authorities of the requested Member State are required simply to inform the Member State that issued the alert that the data are incorrect or have been unlawfully stored, with the latter State remaining ultimately responsible for the correction or deletion of those data.

43.      It should be made clear that, in any case, Article 49(3) and (4) of Decision 2007/533 is not concerned with the situation in which the competent authorities of the requested Member State allege that the data are unlawful because the alert entered in SIS II is not covered by the objectives pursued by that decision. There are both literal and contextual grounds for that conclusion. From a literal perspective, I am bound to observe that paragraph 3 of Article 49 refers to an item of data that is ‘factually incorrect’ or has been ‘unlawfully stored’, and not ‘unlawfully entered’, which suggests that the unlawfulness in question does not relate to the conditions governing the entry of alerts in SIS II. From a contextual standpoint, I would observe, firstly, that Article 49 of Decision 2007/533 is part of Chapter XI of that decision, which is entitled ‘General data processing rules’, (19) and, secondly, that there are no grounds for arguing that the words ‘item of data unlawfully stored’ within the meaning of that article are to be interpreted differently from the similar wording contained in Article 58(5) of the same decision, under which ‘any person has the right to have … unlawfully stored data relating to him deleted’. It therefore follows, in my opinion, that the reason why those data are unlawful stems from the infringement of the – national or EU – rules on the protection of personal data, as is borne out by the fact that any mediation between the requested Member State and the Member State that issued the alert is entrusted to the EDPS.

44.      In the light of the foregoing, there can be scarcely any doubt, in my opinion, that Decision 2007/533 does not grant the competent authorities of the requested Member State any possibility of calling into question the legality of the entry of an alert for seizure or use as evidence in criminal proceedings, and thus of refusing to execute that alert, on the ground that the alert is incompatible with the objectives upon which the entry of an alert in SIS II can be justified. Furthermore, the effectiveness of SIS II would risk being seriously undermined if that decision were to be interpreted as meaning that Member States can refuse to execute an alert on the basis of the abovementioned ground.

45.      It follows that the Bulgarian legislation applied in the circumstances that gave rise to the case in the main proceedings, that is to say, Article 84 of the ZMVR, cannot be regarded as being incompatible with Decision 2007/533 in so far as that legislation imposes on the national police authorities an unconditional obligation to proceed with the temporary seizure of an object located once they have established that an alert has been entered in SIS II in relation to that object.

46.      As for the repatriation of the vehicle seized by the Bulgarian police authorities in the case in the main proceedings, it must be observed that the repatriation comes under the ‘measures to be taken’, the content of which is to be agreed by the requested Member State and the Member State that issued the alert further to an exchange of information within the meaning of Article 39 of Decision 2007/533. Whereas the exchange of supplementary information between the Sirene Bureaux of those Member States in order to agree on such measures is one component of the action to be taken based on an alert on objects for seizure or use as evidence in criminal proceedings, (20) the implementation of those measures does not fall within the scope of the execution of that alert as provided for in Decision 2007/533. It follows that such implementation is, pursuant to Article 39(3) of that decision, exclusively governed by national law.

47.      This means that the Bulgarian legislation, as interpreted by the national courts, could in fact provide for the possibility, on the part of the competent national authorities, of not proceeding with the repatriation of the object concerned in order to respect the right to property of a purchaser acting in good faith, such as the applicants in the main proceedings. However, this also means that a different legislative choice, such as that made in the present case of an unconditional repatriation, cannot be regarded as being incompatible with Decision 2007/533. As the Commission rightly points out in its written observations, an obligation to repatriate objects does not follow from such a decision.

48.      That interpretation is, in my view, supported by the wording of the legal rules on the deletion of alerts.

49.      Article 45(1) and (3) of Decision 2007/533 provides that alerts on objects entered in SIS II are to be kept only for the time required to achieve the purposes for which they were entered, and for a maximum of 10 years in the case of alerts for seizure or use as evidence in criminal proceedings. With regard to the latter category of alerts, Section 8.4 of the Sirene Manual states that they are deleted, as well as upon expiry of the alert (point (b)) or upon the decision to delete by the competent authority of the issuing Member State (point (c)), upon ‘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’ (21) and refers, by way of example, to judicial procedure on good faith purchase, disputed ownership or judicial cooperation on evidence. In other words, where the object is the subject, in the requested Member State, of judicial proceedings initiated by a dispute as to the ownership of that object, as is the case here, the alert must be deleted.

50.      The explanation arising from the Sirene Manual must be supplemented by a reference to the catalogue of recommendations and best practices for the correct application of the second generation Schengen Information System (SIS II) and the exchange of supplementary information, (22) since that instrument itself states that ‘in the area of alert deletion [it] provides examples to support the more concise text held in the Sirene Manual’. (23) As far as the deletion of object alerts is concerned, that catalogue states that: ‘SIS locates persons and objects. It has no role in the subsequent procedures carried out by national judicial authorities. Accordingly, the object alerts exist to seize the designate object (or in some circumstances, to locate it) so that further non-SIS procedures can be carried out by national authorities’, (24) before adding that, ‘if there is a degree of complexity in the case, such as a dispute over ownership or a good faith purchase, these must be viewed as outside the scope of SIS’. (25)

51.      In other words, Articles 38 and 39 of Decision 2007/533 refer to alerts on objects for seizure or use as evidence in criminal proceedings. It follows that, once the seizure (or any equivalent measure) of the object concerned is carried out, the matter becomes a civil law case relating to ownership and the alert can be deleted because it has already achieved its objective. Decision 2007/533 thus yields entirely to national law.

52.      This means that, if national law, as interpreted by the relevant case-law, provides, as in the present case, that the object seized is to be handed over to the Member State that issued the alert without the competent authorities of the requested Member State having the possibility of challenging the compliance of the entry of the alert with the objective pursued by Decision 2007/533, that legislative choice can in no way be declared unlawful on the basis of that decision.

53.      It is therefore my view that the automatic nature of the legislative arrangements at issue, that is to say, Article 84 of the ZMVR, pursuant to which, when the Bulgarian police authority discovers a vehicle for which an alert has been issued in SIS II, it is to seize it and return it, if a request is made to the latter effect by the Member State that issued the alert, is entirely compatible with Article 39 of Decision 2007/533.

IV.    Conclusion

54.      In the light of the foregoing, I propose that the Court answer the question referred by the Administrativen sad Silistra (Administrative Court, Silistra, Bulgaria) for a preliminary ruling as follows:

Article 39 of Council Decision 2007/533/JHA of 12 June 2007 on the establishment, operation and use of the second generation Schengen Information System (SIS II) does not preclude national legislation that does not allow the authorities of the requested Member State to refuse to execute an alert on an object registered in SIS II where the competent executing authority has valid reason to conclude that that alert is not covered by the objective laid down in Article 38(1) of that decision.

The repatriation of the object is part of the measures to be taken, which must be agreed on between the Member States further to an exchange of supplementary information and the implementation of which does not fall within the scope of Decision 2007/553.

1      Original language: French.

2      OJ 2007 L 205, p. 63.

3      Other specific provisions of Decision 2007/533, namely Articles 41(2) and 45(2), were interpreted by the Court in the order of 7 June 2018, Gaki v Europol (C‑671/17 P, not published, EU:C:2018:416, paragraphs 24 to 30).

4      DV No 53 of 27 June 2014, law last amended and supplemented (DV No 58 of 23 July 2019).

5      In this regard, the referring court observes that the conduct of the borrower EF, that is to say, the non-performance of a loan contract with a bank, had been classed, inter alia, as ‘serious fraud’ and ‘misappropriation’, criminal classifications that could not be used under Bulgarian law in the context of the abovementioned legal relationship.

6      Convention 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 (OJ 2000 L 239, p. 19), Articles 92 to 119.

7      See Proposal for a Council Decision on the establishment, operation and use of the second generation Schengen Information System (SIS II) (COM/2005/230 final – CNS 2005/0103), pp. 2 and 4.

8      See, in this regard, recital 5 of Decision 2007/533.

9      Regulation (EC) 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 2006 L 381, p. 4).

10      OJ 1999 L 176, p. 36.

11      Article 3(1)(b) of Decision 2007/533 defines the concept of ‘supplementary information’ as follows: ‘information not stored in SIS II, but connected to SIS II alerts, which is to be exchanged: (i) in order to allow Member States to consult or inform each other when entering an alert; (ii) following a hit in order to allow the appropriate action to be taken; (iii) when the required action cannot be taken; (iv) when dealing with the quality of SIS II data; (v) when dealing with the compatibility and priority of alerts; (vi) when dealing with rights of access’.

12      See, to that effect, order of 7 June 2018, Gaki v Europol (C‑671/17 P, not published, EU:C:2018:416, paragraph 29), in which the Court of Justice confirmed the General Court’s finding that Europol was not competent to deal with claims that the data entered in SIS II were not well founded, after essentially observing, inter alia, that the assessment relating to the merits of those data falls, pursuant to Article 49(2) of Decision 2007/533, within the exclusive competence of the Member State that issued the alert.

13      Judgment of 31 January 2006, Commission v Spain (C‑503/03, EU:C:2006:74).

14      Judgment of 31 January 2006, Commission v Spain (C‑503/03, EU:C:2006:74, paragraphs 36 and 37).

15      Judgment of 31 January 2006 (C‑503/03, EU:C:2006:74).

16      Emphasis added.

17      Emphasis added.

18      Section 2.4 of the Sirene Manual also states that, once the requested Member State has complied with its obligation to inform as laid down in Article 48 of Decision 2007/533, the Member States concerned agree, where possible, on the action to be taken in line with their own national laws and the SIS II legal instruments.

19      Emphasis added.

20      See, in this regard, SIS II Supervision Coordination Group, Common Position No 1/2016 on the deletion of alerts on vehicles sought for seizure or use as evidence in criminal proceedings and the interpretation of Article 38 of Council Decision 2007/533/JHA, paragraphs 17 and 18, which make clear, in essence, that the objective of the alert is not achieved, and that alert cannot therefore be deleted, if a decision has not been reached regarding the measures to be taken further to the exchange of information provided for in Article 39 of Decision 2007/533.

21      Emphasis added.

22      Annex to Commission Recommendation of 16 December 2015 establishing a catalogue of recommendations and best practices for the correct application of the second generation Schengen Information System (SIS II) and the exchange of supplementary information by the Member States’ competent authorities implementing and using SIS II [C(2015) 9169 final].

23      More generally, that catalogue can provide, according to page 2 of the Commission Recommendation to which it forms the annex, ‘legally non-binding guidance to Member States on the various aspects of the use of SIS and the exchange of supplementary information’.

24      Emphasis added.

25      Emphasis added.

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