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Dokument 52013SC0048
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an Entry/Exit system (EES) to register entry and exit data of third-country nationals crossing the external borders of the Member States of the European Union
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an Entry/Exit system (EES) to register entry and exit data of third-country nationals crossing the external borders of the Member States of the European Union
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an Entry/Exit system (EES) to register entry and exit data of third-country nationals crossing the external borders of the Member States of the European Union
/* SWD/2013/048 final */
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document PROPOSAL FOR A REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing an Entry/Exit system (EES) to register entry and exit data of third-country nationals crossing the external borders of the Member States of the European Union /* SWD/2013/048 final */
COMMISSION STAFF WORKING DOCUMENT EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT Accompanying the document PROPOSAL FOR A REGULATION OF THE
EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the entry/exit system
to register entry and exit data of third-country nationals crossing the
external borders of the Member States of the European Union
1.
Problem definition
1.1.
Background
In its Communication of 13 February 2008 preparing
the next steps in border management in the European Union[1] the Commission suggested the establishment of an entry/exit system
(EES). Such a system would entail the registration of the personal data
together with the dates of entry and exit of each third-country national
admitted for a short stay when they cross the external borders. The 2008 Communication
was accompanied by an impact assessment report[2]. The Conclusions of the European Council of
23 and 24 June 2011 called for work on "smart borders" to be moved
forward rapidly. In response, the Commission adopted on 25 October 2011 a new Communication
on the various options and the way ahead.[3] It
concluded that the implementation of an EES would provide the Union with
accurate data on travel flows in and out of the Schengen area at all parts of
its external borders and on overstayers.
1.2.
Why the creation of an EES is being examined
The 2008 impact assessment identified and
examined irregular immigration, including the lack of data for identifying
overstayers, and terrorism and serious crime as the main problems to be
addressed through the creation of an EES. As explained in the 2011
communication: 'An EES
would allow the accurate and reliable calculation of authorised stay as well as
the verification of the individual travel history for both visa holders and
visa exempted travellers as an essential part of first line risk-assessment. It
would do so by replacing the current system of stamping passports with an
electronic registry of the dates and places of third country national admitted
for short stays. While the main purpose of the system would be to monitor
respect of the authorised stay of third country nationals, the system would
also contribute to optimising border check procedures and enhance the security
at the moment of the crossing of the external borders. '[4] The 2008 impact
assessment assessed a wide range of policy options and identified the setting
up of an entry/exit system as the preferred option. This impact assessment
looks again at the overall problem definition as relevant for that conclusion
in the light of developments since 2008 with regard to border control aspects,
irregular migration, and technological developments, at European as well as
national level.
1.3.
Summary of overall problems related to border
control and irregular migration
· Absence of any electronic means for recording travel movements of third-country nationals admitted for a short stay; · The very limited value of national systems for such purposes in an area without internal border control between 26 countries; · The absence of means for identifying persons detected within the territory without travel documents who cannot be identified using the VIS; · The absence of any information of who is on EU territory and who complies with the maximum allowed short stay of three months per six months; · The complexity and slowness of the current stamping obligation, which does not guarantee that the border guard can assess the authorised stay at the border check of the traveller; · The absence of information on nationalities and groups (visa exempt/required) of travellers overstaying; · The absence of information that can support random checks within the territory to detect irregularly staying persons.
1.4.
Summary of overall problems related to law
enforcement aspects
· Lack of information on the travel and cross-border movements of suspect persons; · Difficulties in detecting persons subject to an alert who use different identities to cross the borders; · Difficulties identifying a suspect having destroyed his or her travel documents.
1.5.
Fundamental rights issues
An EES would,
due to the personal data involved, in particular have an impact on the right to
the protection of personal data, enshrined in Article 8 of the Charter of
Fundamental Rights of the European Union. An EES would need to guarantee the
right to an effective remedy before a tribunal (Article 47 of the Charter) for
challenging a notification of an overstay, for example in cases of forced
overstay, errors or when a migrant has a legal right to stay. Directive
95/46/EC on the protection of individuals with regard to the processing of personal
data and on the free movement of such data[5] and the
Regulation (EC) 45/2001 would apply to the processing of personal data carried
out for the purpose of an EES respectively by the Member States and by the EU
institutions, bodies and agencies involved. Negative impacts of sharing
personal data have to be minimised by appropriate technical safeguards against
misuse, clear legal limitations for access, including purpose limitations and
data retention periods which are as short as possible. According to the
Commission Communication of July 2010 on information management[6], data protection rules should be embedded
in any new instruments relying on the use of information technology. This
implies the inclusion of appropriate provisions limiting data processing to what
is necessary for the specific purpose of that instrument and granting data
access only to those entities that ‘need to know.’ It also implies the choice
of limited data retention periods depending solely on the objectives of the instrument
and the adoption of mechanisms ensuring an accurate risk management and
effective protection of data subjects' rights. The system would have to comply with data
protection principles and the requirements of necessity, proportionality,
purpose limitation and quality of data. All safeguards and mechanisms should be
in place for the effective protection of the fundamental rights of travellers
particularly the protection of their private life and personal data. Third-country
nationals must be made aware of these rights.
1.6.
Subsidiarity
Under Articles 74 and 77(2) of the Treaty
on the Functioning of the European Union (TFEU), the Union has the power to
adopt measures relating to the crossing of the external borders of the Member
States. Under Articles 82 (1)(d) and 87(2)(a) TFEU the Union also has the power
to adopt measures to strengthen police and judicial cooperation by collecting,
storing, processing, analysing and exchanging relevant information. No Member State alone is able to cope with irregular
immigration and with combating international terrorism and serious crime. A
person may enter the Schengen area at a border crossing point in a Member State
where a national register of entry/exit data is used, but exit through a border
crossing point where no such system is used. The monitoring of compliance with
EU rules on authorised stays can therefore not be done by Member States acting
alone. Third-country nationals who enter the Schengen area are able to travel
freely within it. In an area without internal borders, action against irregular
immigration should in principle be undertaken on a common basis. Considering
all this the EU is better placed than Member States to take the appropriate
measures.
2.
Objectives of the Entry/Exit System
The general policy objectives are, in order
of priority: ·
To counteract irregular immigration; ·
To contribute to the fight against terrorism and
serious crime and ensure a high level of internal security. The specific objectives are: ·
To enhance the efficiency of border checks
through monitoring of the rights to authorised stay at entry and exit, and to
improve the assessment of the risk of overstay; ·
To monitor compliance with the authorised stay
of persons within the territory; ·
To generate reliable information to allow the EU
and Member States to make informed policy choices concerning visa and
migration; ·
To identify and detect irregular immigrants,
especially overstayers, also within the territory and to increase the
possibilities for return; ·
To identify and apprehend terrorist and criminal
suspects crossing the external borders; ·
To generate information that would reduce the
identification and verification gap concerning third country nationals that are
not covered by the Visa Information System (VIS) and that would contribute to
the apprehension of terrorist and criminal suspects. The operational objectives are: ·
To create entry and exit records of third
country nationals crossing the external borders; ·
To automatically calculate the authorised stay
and issue an alert when there is no exit record on the expiry of the third
country national's authorised stay; ·
To delete the EES data upon expiry of the
retention period; ·
To generate information on the size and trends
of movements across the external borders, especially with regard to irregular
immigration; ·
To inform third country nationals of their
rights and to implement effective appeal procedures.
3.
Policy options
The problem definition and the consultation
of stakeholders show that the key issues to decide are which data to be
processed in the system and for which precise purpose. The retention period
needs to be chosen as a function of the choices made with regard to these two
issues, that is, the shortest possible retention period needed to fulfill the
purpose. The four policy options are therefore the following: 1) An entry/exit system with alphanumeric data for the
purpose of border control and migration management; 2) Same as policy option 1, with the addition of biometric
data; 3) Same as policy option 1, with the purpose of the system
extended to also include the fight against terrorism and serious crime; 4) Same as policy option 1, with the addition of biometric
data and with the purpose of the system extended to also include the fight
against terrorism and serious crime (so a combination of policy options 2 and
3). Once the preferred policy option has been
identified – in other words, what the system will do – a choice needs to be
made how to implement the system technically. The retention period in relation to the
policy options would be the following: ·
For an entry/exit system set up on the basis of
either policy options 1 or 2, as a general rule 6 months, while for
travellers who have not exited the territory within the authorised stay the
period would be 5 years, and for participants in the RTP a period equivalent to
the time they are granted access to the system; ·
For an entry/exit system set up on the basis of
either policy options 3 or 4, the retention
period would be five years for all travellers.
4.
Comparison of options and identification of the
preferred policy option
4.1.
Comparison of options
Table 1 – Comparative assessment of the
policy options Objective/policy option || Baseline (Policy option 0) || Policy option 1 || Policy option 2 || Policy option 3 || Policy option 4 Policy objective: To counteract irregular immigration || 0 || √√ || √√√ || √√ || √√√ Policy objective: To fight against terrorism and serious crime || 0 || 0 || 0 || √√ || √√√ Impact on fundamental rights || 0 || -√ || -√√ || -√√ || -√√√√ Impact on border management || 0 || 0 || 0 || 0 || 0 Table 1 summarises the assessment of
impacts. The following comparison and identification of the preferred option
will also take into account the following criteria: ·
Effectiveness – the extent to which options
achieve the objectives of the proposal; ·
Efficiency – the extent to which objectives can
be achieved at least cost; ·
Coherence – the extent to which options are
coherent with overarching objectives of EU policy. A difficulty revealed by the assessment of
the impacts of each policy option is the lack of available data, which notably
influences the possibility for comparing the effectiveness of policy options
1-4. The assumption that a system with biometrics will have a higher impact on
counteracting irregular migration, and that as a consequence policy options 2
and 4 would be more effective, is influenced by the share of persons not
subject to the visa obligation that overstay, and this exact number is not
known. The negative impact on the border management process of verifying
biometrics of this group of travellers can only be fully assessed when the VIS
is fully implemented. Equally for assessing the impact of giving access for law
enforcement purposes comprehensive data is yet missing, as the input provided
by Member States' experts so far has mainly remained general and experiences of
access for law enforcement purposes to the VIS are not yet available. It can be
noted that entry/exit data can be necessary for the prevention, detection or
investigation of terrorist offences or other serious offences in case they
involve international travel. Furthermore, the positive impact on the objective
of detecting and identifying terrorist and criminal suspects is higher for a
system with biometrics. Assessing the preferred option with regard
to the inclusion of biometric data must start from the core purpose of the
system, related to border control and migration management. On that basis
option 2 has the highest positive impact on counteracting irregular migration.
The potential negative impacts on the border management process could be
managed through a transitional period, whereby the system would operate based
on alphanumeric data for the first three years and subsequently on the basis of
alphanumeric and biometric data. On that basis, with regard to access for
law enforcment purposes, the total negative impact on fundamental rights of
option 4 could be seen as potentially disproportionate, also taking into
account the need for a much longer retention period. An evaluation after a period of 2 years,
taking also into account the experiences of the implementation of the VIS with
regard to access for law enforcement purposes and overall experiences with
regard to operating the EES, would allow for returning to the question of law
enforcement access on the basis of more complete data and information to assess
the impacts in more detail. The need to give access for law enforcement
purposes to the system as well as the retention period could therefore be
reconsidered when the entry/exit system is evaluated after a period of 2 years.
In summary, the preferred option is therefore policy option 2, with an
evaluation to be foreseen after two years of operation, after which an
assessment will be made whether to move to policy option 4. Any such change
(i.e. to policy option 4) with regard to law enforcement purposes, and/or
changing the retention period will require a new legislative proposal from the
Commission.
4.2.
Technical implementation
Overall the centralised approach is the
most efficient and cost-effective solution. It is also coherent with the
development and management of other IT systems in the field of migration, ie
Eurodac, the VIS, and the SIS/SIS II.
4.3.
Preferred option
The preferred solution for an EES is to
start with a system based on policy option 2 and assessing the need to move to
policy option 4 after two years of operation: · The EES would at first operate as a centralised database containing alpha numeric data only and without access by law enforcement authorities. The data retention period for ordinary cases would be 6 months and in case of overstay 5 years. · After three years of operations, the EES would operate with alphanumeric and biometric data (the latter as concerns persons not subject to the visa obligation). · After two years of operations, the EES would be evaluated. At this time the issue of the access for law enforcement purposes as well as the retention period would be reconsidered. · However, in order to grant law enforcement authorities access to the data generated by the entry/exit system in a second phase, the necessity and proportionality of the use of this data must be clearly demonstrated with solid evidence and the access must be combined with appropriate safeguards and limitations.
4.4.
Costs of the preferred option
Table 2 – Costs for the preferred option || One time development cost at central and national level. (3 years of development) (in EUR million) || Yearly operational cost at central and national level (5 years of operation) (in EUR million) || Total costs at central and national level (in EUR million) Centralised system biometrics added later || 183 (MS 146 EU 37) || 88 (MS 74 EU 14) || 623 The
Commission's proposal for the next multi-annual financial framework (MFF)
includes a proposal of 4,6 billion EUR for the Internal security Fund (ISF) for
the period 2014-2020. In the proposal, 1,1 billion EUR is set aside as an indicative
amount for the development of an EES and an RTP assuming development costs
would start from 2015, and covering 4 years of operation. Moreover, outside the
scope of the ISF, a separate amount of 822 million EUR is set aside for the
management of existing large scale-IT systems (Schengen Information System II,
Visa Information System and EURODAC). The Commission envisages entrusting the
implementation tasks for these systems to the Agency for the Operational
Management of Large-Scale IT-Systems in the area of Freedom, Security and
Justice established by Regulation (EU) N° 1077/2011 of the European Parliament
and the Council.[7]
Providing financial support for national development costs would ensure that
difficult economic circumstances at national level do not jeopardise or delay
the projects. Cost savings could also be achieved if the
entry/exit system is built together with the registered traveller programme,
compared to the situation in which both systems would be built totally
independently. The main cost savings come at the central level (EU) from
reduced costs for hardware, software and infrastructure and at Member States'
level from administrative and office space cost savings.
5.
Monitoring and evaluation
The Commission shall ensure that systems
are in place to monitor the functioning of the entry/exit system and evaluate
them against the main policy objectives. Two years after the system starts
operations and every two years thereafter, the Management Authority should
submit to the European Parliament, the Council and the Commission a report on
the technical functioning of the system. Moreover, two years after the
entry/exit system starts operations and every four years thereafter, the
Commission should produce an overall evaluation of the system including on
fundamental rights impacts and on examining results achieved against objectives
and assessing the continuing validity of the underlying rationale and any
implications for future options. The first evaluation should focus on whether access for law enforcement purposes should be granted and whether
the retention period should be extended and would be accompanied by legislative
proposals as appropriate. The Commission should submit the reports on the
evaluation to the European Parliament and the Council. [1] COM (2008) 69 final. [2] SEC(2008) 153 and Preparatory
study to inform an Impact Assessment in relation to the creation of an
automated entry/exit system at the external borders of the EU and the
introduction of a border crossing scheme for bona fide travellers ('Registered
Traveller Programme') made by GHK and Entry/Exit Technical Feasibility study
made by Unisys. Studies are published on the website:
http://ec.europa.eu/home-affairs/doc_centre/borders/borders_schengen_en.htm [3] COM(2011) 680 final [4] COM(2011) 680 final [5] OJ L 281, 23.11.1995, p.31 [6] COM(2010) 385 final. [7] OJ L 286, 1.11.2011, p.1.