14.6.2021

Official Journal of the European Union

C 227/1

POSITION (EU) No 21/2021 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Regulation of the European Parliament and of the Council establishing, as part of the Integrated Border Management Fund, the instrument for financial support for customs control equipment

Adopted by the Council on 27 May 2021

2021/C 227/01

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 33, 114 and 207 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1)

The 2 140 customs offices situated at the external borders of the Union need to be properly equipped to ensure the efficient and effective operation of the customs union. The need for adequate customs controls with equivalent results is ever more pressing, not only because of the traditional function of customs, which is to collect revenue, but also increasingly because of the need to significantly reinforce the control of goods entering and exiting Union’s external borders in order to ensure both safety and security. However, at the same time, such controls on the movement of goods across the external borders should not impair but rather facilitate legitimate trade with third countries.

(2)

The customs union is one of the cornerstones of the Union, which is one of the largest trading blocks in the world. Since the customs union is essential for the proper functioning of the internal market, and for businesses and citizens to benefit from it, continuous steps to strengthen the customs union are needed.

(3)

There is currently an imbalance in the performance of customs control by Member States. This imbalance is due to differences between Member States both in terms of their geographic features, and their capacities and resources. The ability of Member States to react to challenges generated by the constantly evolving global business models and supply chains depends not only on the human component but also on the availability, and on the proper functioning, of modern and reliable customs control equipment. Challenges, such as the surge in e-commerce, increasing digitalisation and the need to improve resilience to cyber-attacks, will also increase demand for effective customs controls. The provision of equivalent customs control equipment is therefore an important element in addressing that current imbalance. It will improve equivalence in the performance of customs controls across the Member States and thereby contribute to preventing the diversion of flows of goods towards the weakest points in the customs control system, often referred to as ‘import point shopping’. Consequently, goods entering the customs territory of the Union should be subject to risk-based controls in accordance with Regulation (EU) No 952/2013 of the European Parliament and of the Council (3) (‘the Union Customs Code’).

(4)

Member States have repeatedly expressed the need for financial support, and have requested an in-depth analysis of the equipment needed. In its conclusions on customs funding on 23 March 2017, the Council invited the Commission to evaluate the possibility of funding technical equipment needs from future Commission financial programmes and improve coordination and cooperation between customs authorities and other law enforcement authorities for funding purposes.

(5)

Under the Union Customs Code, customs controls are to be understood not only as the enforcement of customs legislation but also as the enforcement of other legislation governing the entry, exit, transit, movement, storage and end-use of goods moved between the customs territory of the Union and countries or territories outside the customs territory of the Union, and the presence and movement within the customs territory of the Union of non-Union goods and goods placed under the end-use procedure. That other legislation empowers customs authorities to carry out specific control tasks and contains provisions on taxation, in particular as regards excise duties and value added tax, on the external aspects of the internal market, on the common trade policy and other common Union policies having a bearing on trade, on the overall supply chain security and on the protection of the financial and economic interests of the Union and its Member States.

(6)

Supporting the achievement of an adequate and equivalent level of customs control results at the Union’s external borders enables the benefits of the customs union to be maximised, thereby giving additional support to customs authorities acting as one to protect the interests of the Union. A dedicated Union fund for customs control equipment to correct current imbalances would contribute to the overall cohesion between Member States. That dedicated fund would take account of the different needs experienced at the different types of border, namely those at sea and on other waterways, in the air, and on land, including rail and road borders, as well as postal hubs. In view of the challenges facing the world, in particular the continued need to protect the financial and economic interests of the Union and its Member States while easing the flow of legitimate trade, the availability of modern and reliable control equipment at the external borders is indispensable.

(7)

It is therefore appropriate to establish a new Instrument for financial support for customs control equipment intended to be used at all types of borders. The Instrument should support the customs union and the work of the customs authorities, in particular helping them to protect the Union’s financial and economic interests, to ensure security and safety within the Union and to protect the Union from unfair and illegal trade, such as counterfeiting of goods, while facilitating legitimate business activity. It should contribute to adequate and equivalent results of customs controls. Furthermore, customs control equipment financed under this Instrument should support the implementation of the customs risk management framework as referred to in the Union Customs Code. This objective should be achieved through the transparent purchase, maintenance and upgrading of relevant, state-of-the-art and reliable customs control equipment, taking due account of the protection of data, cyber-resilience, and safety and environmental considerations, including the environmentally friendly disposal of the replaced equipment.

(8)

Customs authorities of the Member States have been taking on an increasing number of responsibilities which are carried out at the external border and which often extend into the security field. It is therefore important to provide Union financial support to the Member States in order to enable them to ensure equivalence in the performance of border control and customs control at the external borders of the Union. It is equally important to promote, at Union borders, as regards controls of goods and controls of persons, inter-agency cooperation among the national authorities in each Member State that are responsible for border control or for other tasks carried out at the border, with a view to maximising Union added value in the field of border management and customs controls.

(9)	It is therefore necessary to establish an Integrated Border Management Fund (‘the Fund’).

(10)	Due to the legal particularities of Title V of the Treaty on the Functioning of the European Union (TFEU), as well as the different applicable legal bases regarding the policies on external borders and on customs control, it is not legally possible to establish the Fund as a single instrument.

(11)

The Fund should therefore be established as a comprehensive framework for Union financial support in the field of border management, consisting of the Instrument for financial support for customs control equipment (‘the Instrument’) established by this Regulation and the Instrument for Financial Support for Border Management and Visa Policy established by Regulation (EU) …/… of the European Parliament and of the Council (4) (1).

(12)

In view of the importance of tackling climate change and in line with the Union’s commitments to implement the Paris Agreement under the United Nations Framework Convention on Climate Change (5), and to achieve the United Nations Sustainable Development Goals of the 2030 Agenda for Sustainable Development adopted on 25 September 2015, the actions under this Regulation should contribute to the achievement of the Union’s goal of spending at least 30 % of the total amount of the Union budget on supporting climate objectives and of the Union’s ambition to spend 7,5 % of the annual Union budget on biodiversity in 2024 and 10 % both in 2026 and in 2027, while taking into account the existing overlaps between climate and biodiversity goals.

(13)

This Regulation lays down a financial envelope for the entire duration of the Instrument, which is to constitute the prime reference amount, within the meaning of point 18 of the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources (6), for the European Parliament and the Council during the annual budgetary procedure. It should be possible for that financial envelope to cover necessary and duly justified expenses for activities for managing the Instrument and evaluating its performance, insofar as those activities are related to the general and specific objectives of the Instrument.

(14)

Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (7) (the ‘Financial Regulation’) applies to this Instrument. The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts.

(15)

Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 TFEU apply to this Regulation. These rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes and indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget. Funding under this Instrument should be subject to the principles referred to in the Financial Regulation and should ensure the optimal use of financial resources in achieving its objectives.

(16)

Regulation (EU) 2021/444 of the European Parliament and of the Council (8) establishes the Customs programme for cooperation in the field of customs (the ‘Customs programme’) to support the customs union and customs authorities. In order to preserve the coherence and horizontal coordination of cooperation actions relating to customs and customs control equipment, it is appropriate to implement such actions under a single legal act, namely, the Customs programme, containing a single set of rules. Therefore, only the purchase, maintenance and upgrade of the eligible customs control equipment should be supported under this Instrument, while all other related actions, such as cooperation actions for the assessment of needs or training relating to the equipment concerned, should be supported by the Customs programme.

(17)

In addition, and where appropriate, the Instrument should also support the purchase or upgrade of customs control equipment for testing new pieces of equipment or new functionalities for existing pieces of equipment in operational conditions before Member States start large-scale purchases of such new equipment. Testing in operational conditions should follow up in particular on the outcomes of research of customs control equipment in the framework of Regulation (EU)…/… of the European Parliament and of the Council (9) (2). The Commission should encourage the joint procurement and joint testing of customs control equipment by two or more Member States, making use of the cooperation tools under the Customs programme.

(18)

Most customs control equipment may be equally or incidentally fit for controls of compliance with other Union law, such as that on border management, visa or police cooperation. The Fund has therefore been conceived as two complementary instruments for the purchase of equipment, each with a distinct but complementary scope. On the one hand, the Instrument for Financial Support for Border Management and Visa Policy will only financially support the costs of equipment of which the primary aim or effect is integrated border management, but will also allow that equipment to be used for additional purposes, such as customs controls. On the other hand, the instrument for financial support for customs control equipment established by this Regulation will only financially support the costs of equipment of which the primary aim or effect is customs controls but will also allow that equipment to be used for additional purposes, such as border controls and security. This distribution of roles between the two instruments will foster inter-agency cooperation, as referred to in point (e) of Article 3(1) of Regulation (EU) 2019/1896 of the European Parliament and of the Council (10), as a component of the European integrated border management approach, thereby enabling customs and border authorities to work together and maximising the impact of the Union budget through co-sharing and inter-operability of control equipment. The sharing of equipment between customs and other border authorities should not be systematic.

(19)

In accordance with Article 193(2) of the Financial Regulation, a grant may be awarded for an action which has already begun, provided that the applicant can demonstrate the need for starting the action prior to signature of the grant agreement. While in such cases the costs incurred prior to the date of submission of the grant application would in principle not be eligible, this should exceptionally be possible in view of the delayed entry into force of this Regulation as compared to the beginning of the multiannual financial framework 2021-2027. In order to allow implementation from the beginning of the multiannual financial framework 2021-2027 and to avoid any delay in Union support which could be prejudicial to the Union’s interest in being properly equipped to ensure the efficient and effective operation of the customs union, it should be possible, for a limited period of time at the beginning of the multiannual financial framework 2021-2027, to provide in the financing decision for costs incurred in respect of actions supported under this Regulation which have already begun to be considered eligible as of 1 January 2021, even if those actions were implemented and those costs were incurred before the grant application was submitted.

(20)

By way of derogation from the Financial Regulation, funding of an action by several Union programmes or instruments should be possible in order to allow and support, where appropriate, cooperation and interoperability across domains. However, in accordance with the principle of prohibition of double funding established by the Financial Regulation, in such cases, the contributions are not permitted to cover the same costs. If a Member State has already been awarded or has received contributions from another Union programme or support from a Union fund for the acquisition of the same equipment, that contribution or support should be communicated to the Commission, in accordance with Article 191 of the Financial Regulation.

(21)	Any funding in excess of the co-financing rate ceiling should be granted only in duly justified cases, which might include cases of joint procurement and of joint testing of customs control equipment by two or more Member States.

(22)

In view of the rapid evolution of technologies, threats and customs priorities work programmes should not extend over longer periods. At the same time, annual work programmes would not be necessary for the implementation of the Instrument and would increase the administrative burden on the Commission and Member States. Against that backdrop, work programmes should in principle cover more than one budgetary year, but not more than three.

(23)	In order to ensure uniform conditions for the implementation of the work programmes under this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (11).

(24)

Although central implementation is indispensable if the specific objective of ensuring equivalent results of customs controls is to be achieved, the technical nature of this Instrument means that preparatory work is required at technical level. Therefore, implementation should be supported by assessments of needs. Those assessments of needs are dependent on national expertise and experience through the involvement of customs authorities. They should be based on a clear methodology that includes a minimum number of steps ensuring the collection of the relevant information. The Commission should use this information to determine the allocation of the funds to Member States, taking into consideration in particular the volume of trade, the relevant risks and the administrative capacity of the customs authorities to use and maintain the equipment, with a view to achieving the most efficient use of the customs control equipment financed under the Instrument. To contribute to budgetary discipline, the conditions for the prioritisation of grants should be clearly defined and based on such an assessment of needs.

(25)

To ensure regular monitoring and reporting, a proper framework for monitoring the results achieved by the Instrument and actions under it should be put in place. Such monitoring and reporting should be based on quantitative and qualitative indicators for measuring the effects of the actions under the Instrument. Reporting requirements should include a requirement to provide the Commission with information on customs control equipment where the cost of a piece of customs control equipment exceeds EUR 10 000 exclusive of taxes. That information should be distinguished from the information required to be provided to the general public and to the media in order to promote the actions and the results of the Instrument.

(26)

Pursuant to paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (12), the Instrument should be evaluated on the basis of information collected in accordance with specific monitoring requirements, while avoiding an administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators as a basis for evaluating, in a comparable and complete manner, the effects of the Instrument on the ground. The interim and final evaluations, which should be performed no later than four years after the start of the implementation and the completion of the Instrument, respectively, should contribute to the efficient decision-making process concerning financial support for customs control equipment under the next multiannual financial frameworks. It is therefore of the utmost importance that the interim and final evaluations include satisfactory and sufficient information and that those evaluations are delivered in due time. The Commission should include in the interim and final evaluations details of the sharing between customs and other border authorities of equipment financed under the Instrument to the extent that relevant information has been provided by the Member States. In addition to the interim and final evaluations of the Instrument, annual progress reports should, as part of the performance reporting system, be issued, to monitor the implementation of the Instrument. Those reports should include a summary of the lessons learnt and, where appropriate, of the obstacles encountered, and shortfalls discovered in the context of the activities of the Instrument that took place in the year in question. Those annual progress reports should be communicated to the European Parliament and the Council.

(27)

In order to respond appropriately to evolving policy priorities, threats and technologies, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending the indicative list of customs control equipment that may be used to achieve the customs control purposes and the list of indicators to measure the achievement of the specific objective. It is of particular importance that the Commission carry out appropriate and fully transparent consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(28)

In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (13) and Council Regulations (EC, Euratom) No 2988/95 (14), (Euratom, EC) No 2185/96 (15) and (EU) 2017/1939 (16), the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities, including fraud, to the recovery of funds lost, wrongly paid or incorrectly used, and, where appropriate, to the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013, the European Anti-Fraud Office (OLAF) has the power to carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union.

The European Public Prosecutor’s Office (EPPO) is empowered, in accordance with Regulation (EU) 2017/1939, to investigate and prosecute criminal offences affecting the financial interests of the Union, as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (17). In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors and, in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, the EPPO, and ensure that any third parties involved in the implementation of Union funds grant equivalent rights.

(29)

The forms of funding and the methods of implementation under this Regulation should be chosen on the basis of their ability to achieve the specific objective of the actions and to deliver results, taking into account, in particular, the costs of controls, the administrative burden, and the expected risk of non-compliance. Those forms and methods should include consideration of the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in Article 125(1) of the Financial Regulation.

(30)

Since the objective of this Regulation, which is to establish an Instrument that supports the customs union and customs authorities, by providing financial support for the purchase, maintenance and upgrading of customs control equipment, cannot be sufficiently achieved by the Member States alone further to objective imbalances existing at geographical level amongst them, but can rather, by reason of the equivalent level and quality of results of customs controls that a coordinated approach and a centralised funding will help providing, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(31)

The recipients of Union funding should acknowledge the origin of those funds and ensure the visibility of the Union funding, in particular when promoting the actions and their results, by providing coherent, effective and proportionate targeted information to multiple audiences, including the media and the public. Such information should show the added value of the Instrument in supporting the customs union, and in particular, how it helps customs authorities to fulfil their missions, as well as the efforts of the Commission to ensure budgetary transparency. Furthermore, in order to ensure transparency the Commission should regularly provide information to the public relating to the Instrument, its actions and results, referring to, inter alia, the work programmes adopted under this Regulation.

(32)

In order to ensure continuity in providing support in the relevant policy area and to allow implementation to start from the beginning of the multiannual financial framework 2021-2027, this Regulation should enter into force as a matter of urgency and should apply, with retroactive effect, from 1 January 2021,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

General provisions

Article 1

Subject matter

Jointly with Regulation (EU) …/… (3), this Regulation establishes an Integrated Border Management Fund (the ‘Fund’) for the period from 1 January 2021 to 31 December 2027.

As part of that Fund, this Regulation establishes an Instrument to provide financial support for the purchase, maintenance and upgrading of customs control equipment (the ‘Instrument’) for the period from 1 January 2021 to 31 December 2027. The duration of the Instrument shall be aligned to the duration of the multiannual financial framework.

This Regulation lays down the objectives of the Instrument, the budget for the period 2021 2027, the forms of Union funding and the rules for providing such funding.

Article 2

Definitions

For the purposes of this Regulation, the following definitions apply:

(1)	‘customs authorities’ means the customs authorities as defined in point (1) of Article 5 of Regulation (EU) No 952/2013;

(2)	‘customs controls’ means the customs controls as defined in point (3) of Article 5 of Regulation (EU) No 952/2013;

(3)	‘customs control equipment’ means equipment intended primarily for performing customs controls;

(4)	‘mobile customs control equipment’ means any means of transport that, beyond its mobile capacities, is itself intended to be a piece of customs control equipment or that is fully equipped with customs control equipment;

(5)

‘maintenance’ means preventive, corrective and predictive interventions, including operational and functional checks, servicing, repair and overhaul of a piece of customs control equipment necessary in order for it to retain, or to be restored to, its specified operable condition with a view to it achieving its maximum useful life, but excluding any upgrading;

(6)	‘upgrade’ means evolutive interventions necessary for bringing an existing piece of customs control equipment from an outdated to a state-of-the-art specified operable condition.

Article 3

Instrument objectives

1. As part of the Fund and with a view to achieving the long-term aim of the harmonised application of customs controls by the Member States, the general objective of the Instrument is to support the customs union and customs authorities in their mission to protect the financial and economic interests of the Union and its Member States, to ensure security and safety within the Union and to protect the Union from illegal trade while facilitating legitimate business activity.

2. The specific objective of the Instrument is to contribute to adequate and equivalent results of customs controls through the transparent purchase, maintenance and upgrading of relevant and reliable state-of-the-art customs control equipment that is secure, safe and environmental-friendly, thereby helping the customs authorities act as one to protect the interests of the Union.

Article 4

Budget

1. The financial envelope for the implementation of the Instrument for the period 2021 – 2027 shall be EUR 1 006 407 000 in current prices.

2. The amount referred to in paragraph 1 may also cover expenses for preparation, monitoring, control, audit, evaluation and other activities for managing the Instrument and evaluating the achievement of its objectives. It may also cover expenses linked to studies, meetings of experts, information and communication actions that are related to the objectives of the Instrument, as well as expenses linked to information technology networks focusing on information processing and exchange, including corporate information technology tools and other technical and administrative assistance needed in connection with the management of the Instrument.

Article 5

Implementation and forms of Union funding

1. The Instrument shall be implemented under direct management in accordance with the Financial Regulation.

2. The Instrument may provide funding in any of the forms laid down in the Financial Regulation and in particular by means of grants.

3. When the action that is supported under the Instrument involves the purchase or upgrade of customs control equipment, the Commission shall set up a coordination mechanism to ensure the interoperability of the customs control equipment purchased with the support of Union programmes and instruments, and therefore its efficient use.

CHAPTER II

Eligibility

Article 6

Eligible actions

1. In order for actions to be eligible for funding under the Instrument, those actions must comply with the following requirements:

(a)	implement the objectives set out in Article 3; and

(b)

support the purchase, maintenance or upgrading of customs control equipment including innovative detection technology equipment, that has one or more of the following customs control purposes:

(1)	non-intrusive inspection;

(2)	indication of hidden objects on humans;

(3)	radiation detection and nuclide identification;

(4)	analysis of samples in laboratories;

(5)	sampling and field analysis of samples;

(6)	handheld search.

Annex I contains an indicative list of customs control equipment that may be used to achieve the customs control purposes referred to in points (1) to (6) of the first subparagraph.

2. In duly justified cases, actions under the first subparagraph of paragraph 1 may also cover the transparent purchase, maintenance and upgrading of customs control equipment for testing new pieces of equipment or new functionalities for existing pieces of equipment in operational conditions.

3. In accordance with point (a) of the second subparagraph of Article 193(2) of the Financial Regulation, taking into account the delayed entry into force of this Regulation and in order to avoid any delay in Union support which could be prejudicial to the Union’s interest in being properly equipped to ensure the efficient and effective operation of the customs union, costs incurred in respect of actions supported under this Regulation may, for a limited period, exceptionally be considered eligible from 1 January 2021, even if those actions were implemented and those costs incurred before the grant application was submitted.

4. The Commission is empowered to adopt delegated acts in accordance with Article 14 to amend this Regulation by updating, where necessary, the indicative list of customs control equipment set out in Annex I.

5. Customs control equipment financed under this Instrument should be used primarily for customs controls, but may also be used for additional purposes, including, in support of the national border management authorities and investigation, for the control of persons. Such customs control equipment shall not be systematically shared between customs and other border authorities.

6. The Commission shall encourage the joint procurement and joint testing of customs control equipment by two or more Member States.

Article 7

Eligible entities

By way of derogation from Article 197 of the Financial Regulation, the eligible entities shall be the customs authorities on condition that they provide the information necessary for the assessment of needs referred to in Article 11(4) of this Regulation.

Article 8

Co-financing rate

1. The Instrument may finance up to 80 % of the total eligible costs of an action.

2. Any funding in excess of that ceiling shall be granted only in duly justified exceptional circumstances.

Article 9

Eligible costs

The costs directly related to actions referred to in Article 6 shall be eligible for funding under the Instrument.

The following costs shall not be eligible for funding under the Instrument:

(a)	costs related to the purchase of land;

(b)	costs relating to training or the upgrading of skills, other than the introductory training included in the purchase or upgrade contract;

(c)	costs relating to infrastructure, such as buildings or outdoor facilities, as well as to furniture;

(d)	costs associated with electronic systems, with the exception of software and software updates directly necessary to use the customs control equipment and with the exception of the electronic software and programming necessary to interlink existing software with the customs control equipment;

(e)	costs of networks, such as secured or unsecured communication channels, or subscriptions, with the exception of networks or subscriptions exclusively necessary to use the customs control equipment;

(f)	costs of transport means, such as vehicles, aircrafts or ships, with the exception of mobile customs control equipment;

(g)	costs of consumables, including reference or calibration material, for customs control equipment;

(h)	costs relating to personal protective equipment.

CHAPTER III

Grants

Article 10

Award, complementarity and combined funding

1. Grants under the Instrument shall be awarded and managed in accordance with Title VIII of the Financial Regulation.

2. In accordance with point (f) of the first paragraph of Article 195 of the Financial Regulation, grants shall be awarded without a call for proposals to the entities that are eligible under Article 7 of this Regulation.

3. An action that has received a contribution under the Instrument may also receive a contribution from the Customs programme or from another Union programme, provided that the contributions do not cover the same costs. The rules of the relevant Union programme shall apply to the corresponding contribution to the action. The cumulative financing shall not exceed the total eligible costs of the action. The support from the different Union programmes may be calculated on a pro-rata basis in accordance with the documents setting out the conditions for support.

4. The work of the evaluation committee referred to in Article 150 of the Financial Regulation shall be based on the general principles applicable to grants laid down in Article 188 of that Regulation and, in particular, on the principles of equal treatment and transparency laid down in points (a) and (b) of that Article, as well as on the principle of non-discrimination.

5. The evaluation committee shall evaluate proposals on the basis of the award criteria, taking into account, where appropriate, the relevance of the proposed action in view of the objectives pursued, the quality of the proposed action, its impact, including its economic, social and environmental impact, and its budget and cost-effectiveness.

CHAPTER IV

Programming, monitoring and evaluation

Article 11

Work programme

1. The Instrument shall be implemented through work programmes as referred to in Article 110(2) of the Financial Regulation.

2. The Commission shall adopt implementing acts establishing those work programmes. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 15(2).

3. The work programmes shall aim to achieve the objectives set out in Article 3 through actions in accordance with Article 6. The work programmes shall set out the total amount of the financing plan for all actions. In addition, they shall set out:

(a)

for each action:

(i)	the objectives pursued and the expected results, in accordance with the general and specific objectives set out in Article 3;

(ii)	a description of the actions to be financed;

(iii)

where appropriate, an indication of the amount allocated to each action; and

(iv)	the method of implementation and an indicative implementation timetable;

(b)	for grants, the maximum rate of co-financing referred to in Article 8.

4. The preparation of the work programmes referred to in paragraph 1 shall be supported by an assessment of the needs of the customs authorities. That assessment of needs shall be based on the following:

(a)	a common categorisation of border crossing points;

(b)	a comprehensive description of available customs control equipment;

(c)	a common list of customs control equipment that should be available, by reference to the category of border crossing points; and

(d)	an estimate of financial needs.

The assessment of needs shall be based on actions carried out under the Customs 2020 programme established by Regulation (EU) No 1294/2013 of the European Parliament and of the Council (18) or under the Customs programme and shall be updated regularly at least every three years.

Article 12

Monitoring and reporting

1. Indicators to report on the progress of the Instrument towards the achievement of the general and specific objectives set out in Article 3 are listed in Annex II.

2. To ensure effective assessment of the Instrument’s progress towards the achievement of its objectives, the Commission is empowered to adopt delegated acts in accordance with Article 14 to amend Annex II with regard to the indicators where considered necessary, as well as to supplement this Regulation with provisions on the establishment of a monitoring and evaluation framework.

3. The performance reporting system shall ensure that data for monitoring the implementation and results of the Instrument are collected efficiently, effectively and in a timely manner. To that end, proportionate reporting requirements shall be imposed on the recipients of Union funds.

4. Where the cost of a piece of customs control equipment exceeds EUR 10 000 exclusive of taxes, the reporting requirements referred to in paragraph 3 shall include at least the annual communication to the Commission of the following information:

(a)	a detailed list of the customs control equipment financed under the Instrument;

(b)	information on the use of the customs control equipment, including any related results, and supported, where appropriate, by relevant statistics.

Article 13

Evaluation

1. Evaluations shall be carried out in a timely manner so that they can be used in the decision-making process.

2. An interim evaluation of the Instrument shall be carried out by the Commission once there is sufficient information available about its implementation, but no later than four years after the start of that implementation. In its interim evaluation, the Commission shall assess the performance of the Instrument, including aspects such as its effectiveness, efficiency, coherence and relevance, as well as the synergies within the Instrument and Union added value.

3. At the end of the implementation of the Instrument, but no later than four years after the end of the period specified in Article 1, a final evaluation of the Instrument shall be carried out by the Commission.

4. The Commission shall communicate the conclusions of the evaluations, accompanied by its observations and lessons learnt, to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions.

CHAPTER V

Exercise of the delegation and committee procedure

Article 14

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Articles 6(4) and 12(2) shall be conferred on the Commission until 31 December 2027. The Commission shall draw up a report in respect of the delegation of power not later than nine months before that date. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Articles 6(4) and 12(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Articles 6(4) and 12(2) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 15

Committee procedure

1. The Commission shall be assisted by the Customs Programme Committee established by Article 17 of Regulation (EU) 2021/444.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

CHAPTER VI

Transitional and final provisions

Article 16

Information, communication and publicity

1. The recipients of Union funding shall acknowledge the origin of those funds and ensure the visibility of the Union funding, in particular when promoting the actions and their results, by providing coherent, effective and proportionate targeted information to multiple audiences, including the media and the public.

2. The Commission shall implement information and communication actions relating to the Instrument, to actions taken pursuant to the Instrument and to the results obtained.

3. Financial resources allocated to the Instrument shall also contribute to the corporate communication of the political priorities of the Union, insofar as those priorities are related to the objectives referred to in Article 3.

Article 17

Transitional provision

If necessary, appropriations may be entered in the Union budget beyond 2027 to cover the expenses provided for in Article 4(2), to enable the management of actions not completed by 31 December 2027.

Article 18

Entry into force

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.

It shall apply from 1 January 2021.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …, …

For the European Parliament

The President

…

For the Council

The President

…

(1) OJ C 62, 15.2.2019, p. 67.

(2) Position of the European Parliament of 16 April 2019 (not yet published in the Official Journal) and position of the Council at first reading of 27 May 2021. Position of the European Parliament of … (not yet published in the Official Journal).

(3) Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ L 269, 10.10.2013, p. 1).

(4) Regulation (EU) …/… of the European Parliament and of the Council of … establishing, as part of the Integrated Border Management Fund, the Instrument for Financial Support for Border Management and Visa Policy (OJ …).

(1) Regulation contained in document ST 6487/21 (2018/0249(COD)).

(5) OJ L 282, 19.10.2016, p. 4.

(6) OJ L 433 I, 22.12.2020, p. 28.

(7) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

(8) Regulation (EU) 2021/444 of the European Parliament and of the Council of 11 March 2021 establishing the Customs programme for cooperation in the field of customs and repealing Regulation (EU) No 1294/2013 (OJ L 87, 15.3.2021, p. 1).

(9) Regulation (EU) …/… of the European Parliament and of the Council of… establishing Horizon Europe – the Framework Programme for Research and Innovation, laying down its rules for participation and dissemination, and repealing Regulations (EU) No 1290/2013 and (EU) No 1291/2013 (OJ L …, p….).

(2) Regulation contained in document ST 7064/20 (2018/0224(COD))

(10) Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/2013 and (EU) 2016/1624 (OJ L 295, 14.11.2019, p. 1).

(11) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(12) OJ L 123, 12.5.2016, p. 1.

(13) Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).

(14) Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ L 312, 23.12.1995, p. 1).

(15) Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

(16) Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ L 283, 31.10.2017, p. 1).

(17) Directive (EU) 2017/1371 of the European Parliament and of the Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal law (OJ L 198, 28.7.2017, p. 29).

(3) Regulation contained in document ST 6487/21 (2018/0249(COD)).

(18) Regulation (EU) No 1294/2013 of the European Parliament and of the Council of 11 December 2013 establishing an action programme for customs in the European Union for the period 2014-2020 (Customs 2020) and repealing Decision No 624/2007/EC (OJ L 347, 20.12.2013, p. 209).

ANNEX I

Indicative list of customs control equipment that may be used to achieve the customs control purposes listed in point (b) of the first subparagraph of Article 6(1)

CUSTOMS CONTROL PURPOSE

CUSTOMS CONTROL EQUIPMENT

CATEGORY

APPLICATION

1.	Non-intrusive inspection

X-ray scanner – High energy

Containers, trucks, rail wagons and vehicles

X-ray scanner – Low energy

Pallets, boxes and parcels

Passenger baggage

Vehicles

X-ray backscatter

Containers

Trucks

Vehicles

Other

Automatic Number Plate/Container Recognition Systems

Vehicle weighting scales

Forklifts and similar mobile customs control equipment

2.	Indication of hidden objects on humans (1)

X-ray based backscatter portal

Mainly used in airports to detect hidden objects on humans (drugs, explosives, cash)

Body scanner

Millimetre wave-based security scanner

3.	Radiation detection and nuclide identification

Radiological and Nuclear Detectors

Personal Radiation Monitor/detector (PRM)

Handheld Radiation detector

Isotope Identification Device (RIID)

Radiation Portal Monitor (RPM)

Spectrometric Portal Monitor for isotope identification (SPM)

4.	Analysis of samples in laboratories

Equipment for the identification, quantification and verification of all possible goods

Gas and liquid chromatography (GC, LC, HPLC, etc.)

Spectrometry and techniques combined with spectrometry (IR, Raman, UV-VIS, Fluorescence, GC-MS, etc.)

X-ray equipment (XRF etc.)

NMR spectrometry and Stable isotope analyses

Other laboratory equipment (AAS, Distillation Analyser, DSC, Electrophoresis, Microscope, LSC, Smoking machine, etc.)

5.	Sampling and field analysis of samples

Trace detection based on Ion Mobility Spectrometry (IMS)

Portable equipment to screen traces of specific threat materials

Canine trace detection

Applied to a range of risks on small and larger objects

Sampling

Tools to take samples, fume hood, glovebox

Mobile laboratories

Vehicle fully housing equipment for field analysis of samples

Handheld detectors

Analysis of organic materials, metals and alloys

Chemical colorimetric tests

Raman spectroscopy

Infrared spectroscopy

X-ray fluorescence

Gas detectors for containers

6.	Handheld search

Personal hand tools

Pocket tools

Mechanics tool kit

Telescoping mirror

Devices

Endoscope

Stationary or handed metal detector

Cameras to check the under-side of vehicles

Ultrasonic device

Density meter

Other

Underwater search

(1) Subject to applicable legislative provisions and other recommendations as regards the protection of health and the respect of privacy.

ANNEX II

Indicators for reporting on the progress of the instrument in achieving the general and specific objectives set out in Article 3

To report on the progress of the Instrument towards the achievement of the general and specific objectives set out in Article 3, the following indicators shall be used:

Equipment

(a)	Availability at land border crossing points of customs control equipment meeting agreed standards (by type of equipment)

(b)	Availability at sea border crossing points of customs control equipment meeting agreed standards (by type of equipment)

(c)	Availability at air border crossing points of customs control equipment meeting agreed standards (by type of equipment

(d)	Availability at postal border crossing points of customs control equipment meeting agreed standards (by type of equipment)

(e)	Availability at rail border crossing points of customs control equipment meeting agreed standards (by type of equipment)

14.6.2021

Official Journal of the European Union

C 227/20

POSITION (EU) No 22/2021 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 as regards the establishment of the conditions for accessing other EU information systems for the purposes of the Visa Information System

Adopted by the Council on 27 May 2021

2021/C 227/03

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular point (e) of Article 78(2), point (d) of Article 82(1), point (a) of Article 87(2), and Article 88(2) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1)

The Visa Information System (VIS) was established by Council Decision 2004/512/EC (3) to serve as the technological solution for exchanging visa data between Member States. Regulation (EC) No 767/2008 of the European Parliament and of the Council (4) laid down the purpose, functionalities and responsibilities for the VIS, as well as the conditions and procedures for the exchange of short-stay visa data between Member States to facilitate the examination of applications for short-stay visas and related decisions. Regulation (EC) No 810/2009 of the European Parliament and of the Council (5) set out the rules on the registration of biometric identifiers in the VIS. The access of law enforcement authorities of the Member States and of the European Union Agency for Law Enforcement Cooperation (Europol) to the VIS was established by Council Decision 2008/633/JHA (6). That Decision should be integrated into Regulation (EC) No 767/2008, to bring it in line with the current Treaty framework.

(2)

Interoperability between certain EU information systems was established by Regulations (EU) 2019/817 (7) and (EU) 2019/818 (8) of the European Parliament and of the Council so that those systems and their data supplement each other with a view to improving the effectiveness and efficiency of border checks at the external borders of the Union, contributing to preventing and combating illegal immigration and contributing to a high level of security within the area of freedom, security and justice of the Union, including the maintenance of public security and public policy and safeguarding security in the territories of the Member States.

(3)

Interoperability between the EU information systems allows those systems to supplement each other in order to facilitate the correct identification of persons, contribute to fighting identity fraud, improve and harmonise data quality requirements of the relevant EU information systems, facilitate the technical and operational implementation by Member States of existing and future EU information systems, strengthen and simplify the data security and data protection safeguards that govern the relevant EU information systems, streamline the law enforcement access to the VIS, the Entry/Exit System (EES), the European Travel Information and Authorisation System (ETIAS) and Eurodac, and support the purposes of the VIS, Schengen Information System (SIS) the EES, the ETIAS, Eurodac, and the European Criminal Records Information System for third-country nationals (ECRIS-TCN).

(4)

The interoperability components cover the VIS, the SIS, the EES, the ETIAS, Eurodac, and ECRIS-TCN, as well as Europol data to enable Europol data to be queried simultaneously with those EU information systems. It is therefore appropriate to use those interoperability components for the purpose of carrying out automated queries and when accessing the VIS for law enforcement purposes. The European search portal (ESP) established by Regulation (EU) 2019/818 should be used to enable fast, seamless, efficient, systematic and controlled access by Member States’ authorities to the EU information systems, the Europol data and the Interpol databases needed to perform their tasks, in accordance with their access rights, and to support the objectives of the VIS.

(5)	The ESP will enable the data stored in the VIS and the data stored in the other EU information systems concerned to be queried in parallel.

(6)

The comparison of data stored in the VIS against data stored in other information systems and databases should be automated. If such a comparison reveals the existence of a correspondence, known as a ‘hit’, between any of the personal data or combination thereof in an application and a record, file or alert in those other information systems or databases, or with personal data in the ETIAS watchlist, the application should be verified manually by an operator from the competentauthority. The assessment of hits performed by the competent authority should be taken into account for the decision whether to issue a short-stay visa, a long-stay visa or a residence permit.

(7)

This Regulation lays down the manner in which interoperability and the conditions for the consultation of the data stored in SIS, Eurodac and ECRIS-TCN as well as of the Europol data by the VIS automated process for the purpose of identifying hits are to be implemented. As a result, it is necessary to amend Regulations (EU) No 603/2013 (9), (EU) 2016/794 (10), (EU) 2018/1862 (11), (EU) 2019/816 (12) and (EU) 2019/818 of the European Parliament and of the Council in order to connect the VIS to the other EU information systems and to Europol data.

(8)

The conditions under which, on the one hand, the visa authorities are able to consult data stored in Eurodac and, on the other, the VIS designated authorities are able to consult Europol data, certain SIS data and data stored in ECRIS-TCN for the purposes of the VIS should be safeguarded by clear and precise rules regarding the access by those authorities to those data, the type of queries and categories of data, all of which should be limited to what is strictly necessary for the performance of the duties of those authorities. In the same vein, the data stored in the VIS application file should be visible only to those Member States that are operating the underlying information systems in accordance with the arrangements for their participation.

(9)

Regulation (EU) 2021/… of the European Parliament and of the Council (13) (1) allocates new tasks to Europol such as the provision of opinions following consultation requests by the VIS designated authorities and the ETIAS National Units. To implement those tasks, it is therefore necessary to amend Regulation (EU) 2016/794 accordingly.

(10)

In order to support the VIS objective of assessing whether an applicant for a short-stay visa, a long-stay visa or a residence permit could pose a threat to public policy or public security, the VIS should be able to verify whether any correspondence exists between data in the VIS application files and the ECRIS-TCN data in the Common Identity Repository (CIR) established by Regulation (EU) 2019/818 in regard to which Member States hold information on third-country nationals and stateless persons concerning convictions for a terrorist offence or any other criminal offence listed in the Annex to Regulation (EU) 2018/1240 of the European Parliament and of the Council (14) if it is punishable by a custodial sentence or a detention order for a maximum period of at least three years under national law.

(11)

A hit indicated by ECRIS-TCN should not by itself be taken to mean that the third-country national concerned has been convicted in the Member States that are indicated. The existence of previous convictions should be confirmed only on the basis of information received from the criminal records of the Member States concerned.

(12)	This Regulation is without prejudice to Directive 2004/38/EC of the European Parliament and of the Council (15).

(13)

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union (TEU) and to the Treaty on the Functioning of the European Union (TFEU), Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. Given that this Regulation, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, builds upon the Schengen acquis, Denmark shall, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

(14)

Insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, Ireland is taking part in this Regulation, in accordance with Article 5(1) of Protocol No 19 on the Schengen acquis integrated into the framework of the European Union, annexed to the TEU and to the TFEU, and Article 6(2) of Council Decision 2002/192/EC (16). Furthermore, insofar as it relates to Europol, Eurodac and ECRIS-TCN, in accordance with Articles 1 and 2 of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(15)

As regards Iceland and Norway, this Regulation constitutes, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (17) which fall within the area referred to in Article 1, point G of Council Decision 1999/437/EC (18).

(16)

As regards Switzerland, this Regulation constitutes, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (19) which fall within the area referred to in Article 1, point G of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/149/JHA (20).

(17)

As regards Liechtenstein, this Regulation constitutes, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (21) which fall within the area referred to in Article 1, point G of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (22).

(18)	For this Regulation to fit into the existing legal framework, Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 should be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Amendments to Regulation (EU) No 603/2013

Regulation (EU) No 603/2013 is amended as follows:

(1)

the following Chapter is inserted:

‘CHAPTER VIa

Access by VISA authorities

Article 22a

Access to Eurodac by the competent visa authorities

The competent visa authorities shall have access to Eurodac to consult data in a read-only format for the purposes of manually verifying hits triggered by the automated queries carried out by VIS pursuant to Article 9a of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*1) and examining and deciding on visa applications in accordance with Article 21 of Regulation (EC) No 810/2009 (*2).

Article 22b

Interoperability with VIS

From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/ … of the European Parliament and of the Council (*3) (2) Eurodac shall be connected to the European search portal established by Article 6 of Regulation (EU) 2019/818 of the European Parliament and of the Council (*4) to enable the automated processing pursuant to Article 9a of Regulation (EC) No 767/2008.

(*1) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas, and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60)."

(*2) Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ L 243, 15.9.2009, p. 1)."

(*3) Regulation (EU) 2021/… of the European Parliament and of the Council of … amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L …)."

(*4) Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 (OJ L 135, 22.5.2019, p. 85).’;"

(2)

the following Article is inserted:

‘Article 28a

Keeping of records or logs for the purposes of interoperability with VIS

When consulting Eurodac as referred to in Article 22a of this Regulation, a record or log of each data processing operation carried out within Eurodac and VIS shall be kept in accordance with Article 28 of this Regulation and Article 34 of Regulation (EC) No 767/2008.’.

Article 2

Amendments to Regulation (EU) 2016/794

Regulation (EU) 2016/794 is amended as follows:

(1)

in Article 4(1), the following point is added:

‘(q)	provide an opinion following a consultation request referred to in Article 9e(4), Article 9g(4) and Article 22b(14) and (16) of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*5).

(*5) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas, and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).’;"

(2)

Article 21 is amended as follows:

(a)	the title is replaced by the following: ‘Access by Eurojust, OLAF and, only for purposes of ETIAS, by the European Border and Coast Guard Agency and, only for purposes of VIS, by the VIS designated authorities to information stored by Europol’;

(b)

the following paragraph is inserted:

‘1b. Europol shall take all appropriate measures to enable the VIS designated authorities, for the purposes of Regulation (EC) No 767/2008, to have indirect access on the basis of a hit/no hit system to data provided for the purposes of point (a) of Article 18(2) of this Regulation, without prejudice to any restrictions indicated by the Member State, Union body, third country or international organisation providing the information in question, in accordance with Article 19(2) of this Regulation.

In the case of a hit, Europol shall initiate the procedure by which the information that generated the hit may be shared, in accordance with the decision of the provider of the information to Europol. Such information may be shared only to the extent that the data generating the hit are necessary for the performance of the VIS designated authorities’ tasks related to VIS.

Paragraphs 2 to 7 of this Article shall apply accordingly.’.

Article 3

Amendments to Regulation (EU) 2018/1862

Regulation (EU) 2018/1862 is amended as follows:

(1)

the following article is inserted:

‘Article 18a

Keeping of logs for the purposes of interoperability with VIS

Logs of each data processing operation carried out within SIS and VIS pursuant to Article 50a of this Regulation shall be kept in accordance with Article 18 of this Regulation and Article 34 of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*6).

(*6) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).’;"

(2)

in Article 44(1), the following point is added:

‘(g)	manually verifying hits triggered by automated queries from the VIS and assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or public security, in accordance with Articles 9d and 9g or Article 22b, of Regulation (EC) No 767/2008.’;

(3)

the following article is inserted:

‘Article 50a

Interoperability with VIS

From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/ … of the European Parliament and of the Council (*7) (3) the SIS Central System shall be connected to the ESP to enable the automated processing pursuant to in Articles 9a and 22b of Regulation (EC) No 767/2008.

(*7) Regulation (EU) 2021/… of the European Parliament and of the Council of … amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L …).’."

Article 4

Amendments to Regulation (EU) 2019/816

Regulation 2019/816 is amended as follows:

(1)

in Article 1, the following point is added:

‘(d)

the conditions under which data in ECRIS-TCN may be used by the VIS designated authorities as referred to in Article 9d and Article 22b(13) of Regulation (EC) No 767/2008 of the European Parliament and of the Council (*8) for the purpose of assessing whether an applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security as referred to in point (i) of Article 2(1) and point (a) of Article 2(2) of that Regulation.

(*8) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of information between Member States on short-stay visas, long-stay visas and residence permits (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).’;"

(2)	in Article 2, the following paragraph is added: ‘This Regulation also supports the VIS objective of assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security, in accordance with Regulation (EC) No 767/2008.’;

(3)

in Article 3, point (6) is replaced by the following:

‘(6)	“competent authorities” means the central authorities, Eurojust, Europol and the EPPO, and the VIS designated authorities as referred to in Article 9d and Article 22b(13) of Regulation (EC) No 767/2008, which are competent to access or query ECRIS-TCN in accordance with this Regulation;’;

(4)

Article 5 is amended as follows:

(a)

in paragraph 1, the following point is added:

‘(c)

a flag indicating, for the purpose of Regulation (EC) No 767/2008, that the third-country national concerned has been convicted of a terrorist offence or any other criminal offence listed in the Annex to Regulation (EU) 2018/1240 if it is punishable by a custodial sentence or a detention order for a maximum period of at least three years under national law, including the code of the convicting Member State.’;

(b)

paragraph 1a is replaced by the following:

‘1a. The CIR shall contain the data referred to in point (b) of paragraph 1 and the following data of point (a) of paragraph 1: surname (family name), first names (given names), date of birth, place of birth (town and country), nationality or nationalities, gender, previous names, if applicable, where available pseudonyms or aliases, where available, the type and number of the person’s travel documents, as well as the name of the issuing authority.

The CIR may contain the data referred to in paragraph 3 as well as, in the cases referred to in point (c) of paragraph 1, the code of the convicting Member State. The remaining ECRIS-TCN data shall be stored in the central system.’;

(c)

the following paragraph is added:

‘7. Where hits are identified following the automated processing referred to in Article 27a of Regulation (EC) No 767/2008, the flags and the code of the convicting Member State referred to in point (c) of paragraph 1 of this Article shall be accessible and searchable only by the VIS Central System for the purpose of the verifications pursuant to Article 7a of this Regulation in conjunction with point (e) of Article 9a(4) or point (e) of Article 22b(3) of Regulation (EC) No 767/2008.

Without prejudice to the first subparagraph of this paragraph, the flags and the code of the convicting Member State referred to in point (c) of paragraph 1 shall not be visible to any authority other than the central authority of the convicting Member State having created the flagged record.’;

(5)

in Article 7, paragraph 7 is replaced by the following:

‘7. In the event of a hit, the central system or the CIR shall automatically provide the competent authority with information on the Member States holding criminal record information on the third-country national, along with the associated reference numbers referred to in Article 5(1) and any corresponding identity information. Such identity information shall be used only for the purpose of verifying the identity of the third-country national concerned. The result of a search in the central system shall be used only for the purpose of:

(a)	making a request pursuant to Article 6 of Framework Decision 2009/315/JHA;

(b)	making a request as referred to in Article 17(3) of this Regulation; or

(c)	assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security, in accordance with Regulation (EC) No 767/2008.’;

(6)

the following Article is inserted:

‘Article 7a

Use of ECRIS-TCN for VIS verifications

1. From the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/… of the European Parliament and of the Council (*9) (4) ECRIS-TCN shall be connected to the ESP to enable the automated processing pursuant to Articles 9a and 22b of Regulation (EC) No 767/2008 to query ECRIS-TCN and compare the relevant data in the VIS with the relevant ECRIS-TCN data in the CIR flagged pursuant to point (c) of Article 5(1) of this Regulation.

2. For the purpose of performing the tasks pursuant to Regulation (EC) No 767/2008, the VIS designated authorities as referred to in Article 9d and Article 22b(13) of that Regulation shall have the right to access only those ECRIS-TCN data in the CIR to which a flag has been added pursuant to point (c) of Article 5(1) of this Regulation.

(*9) Regulation (EU) 2021/… of the European Parliament and of the Council of … amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L …).’;"

(7)

Article 8 is amended as follows:

(a)

paragraph 2 is replaced by the following:

‘2. Upon expiry of the retention period referred to in paragraph 1, the central authority of the convicting Member State shall erase the data record, including any fingerprint data, facial images or flags as referred to in point (c) of Article 5(1), from the central system and the CIR. In cases where the data related to a conviction for a terrorist offence or any other criminal offence as referred to in point (c) of Article 5(1) are erased from the national criminal record, but information on other convictions of the same person is retained, only the flag referred to in point (c) of Article 5(1) shall be removed from the data record. Where possible the erasure shall be done automatically, and in any event no later than one month after the expiry of the retention period.’;

(b)

the following paragraph is added:

‘3. By way of derogation from paragraphs 1 and 2, the flags referred to in point (c) of Article 5(1) shall be erased automatically 25 years after the creation of the flag as regards convictions related to terrorist offences, and 15 years after the creation of the flag as regards convictions related to other criminal offences.’;

(8)

in Article 24, paragraph 1 is replaced by the following:

‘1. The data entered into the central system and the CIR shall be processed only for the purposes of the identification of the Member States holding the criminal records information of third-country nationals, or to support the VIS objective of assessing whether the applicant for a visa, a long-stay visa or a residence permit could pose a threat to public policy or internal security in accordance with Regulation (EC) No 767/2008. The data entered into the CIR shall also be processed in accordance with Regulation (EU) 2019/818 for facilitating and assisting in the correct identification of persons registered in the ECRIS-TCN in accordance with this Regulation.’;

(9)

the following Article is inserted:

‘Article 31a

Keeping of logs for the purpose of interoperability with VIS

For the consultations referred to in Article 7a of this Regulation, a log of each ECRIS-TCN data processing operation carried out within the CIR and VIS shall be kept in accordance with Article 34 of Regulation (EC) No 767/2008.’.

Article 5

Amendments to Regulation (EU) 2019/818

Regulation (EU) 2019/818 is amended as follows:

(1)

in Article 4, point 20 is replaced by the following:

‘(20)

“designated authorities” means the Member State designated authorities as defined in point (26) of Article 3(1) of Regulation (EU) 2017/2226, point (3a) of Article 4 of Regulation (EC) No 767/2008 and point (21) of Article 3(1) of Regulation (EU) 2018/1240;’;

(2)

in Article 18, the following paragraph is inserted:

‘1a. For the purpose of Articles 9a and 22b of Regulation (EC) No 767/2008, the CIR shall also store, logically separated from the data referred to in paragraph 1 of this Article, the data referred to in point (c) of Article 5(1) of Regulation (EU) 2019/816. The data referred to in point (c) of Article 5(1) of Regulation (EU) 2019/816 shall be accessible only in the manner referred to in Article 5(7) of that Regulation.’;

(3)

in Article 68, the following paragraph is inserted:

‘1a. Without prejudice to paragraph 1 of this Article, the ESP shall start operations, for the purposes of the automated processing pursuant to Articles 9a and 22b of Regulation (EC) No 767/2008 only, from the date of the start of operations of VIS pursuant to Article 11 of Regulation (EU) 2021/ … of the European Parliament and of the Council (*10) (5).

(*10) Regulation (EU) 2021/… of the European Parliament and of the Council of … amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L …).’."

Article 6

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall apply from the date of the start of operation of VIS pursuant to Article 11 of Regulation (EU) 2021/… (6).

This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Done at Brussels, …

For the European Parliament

The President

…

For the Council

The President

…

(1) OJ C 440, 6.12.2018, p. 154.

(2) Position of the European Parliament of 13 March 2019 (not yet published in the Official Journal) and position of the Council at first reading of 27 May 2021. Position of the European Parliament of … (not yet published in the Official Journal).

(3) Council Decision 2004/512/EC of 8 June 2004 establishing the Visa information System (VIS) (OJ L 213, 15.6.2004, p. 5).

(4) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).

(5) Regulation (EC) No 810/2009 of the European Parliament and of the Council of 13 July 2009 establishing a Community Code on Visas (Visa Code) (OJ L 243, 15.9.2009, p. 1).

(6) Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (OJ L 218, 13.8.2008, p. 129).

(7) Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa and amending Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA (OJ L 135, 22.5.2019, p. 27).

(8) Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 (OJ L 135, 22.5.2019, p. 85).

(9) Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States' law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 180, 29.6.2013, p. 1).

(10) Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).

(11) Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU (OJ L 312, 7.12.2018, p. 56).

(12) Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 (OJ L 135, 22.5.2019, p. 1).

(13) Regulation (EU) 2021/… of the European Parliament and of the Council of … amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (OJ L …).

(1) Regulation contained in document ST 5950/21 (2018/0152A(COD)).

(14) Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236, 19.9.2018, p. 1).

(15) Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77).

(16) Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis (OJ L 64, 7.3.2002, p. 20).

(17) OJ L 176, 10.7.1999, p. 36.

(18) Council Decision 1999/437/EC of 17 May 1999 on certain arrangements for the application of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the association of those two States with the implementation, application and development of the Schengen acquis (OJ L 176, 10.7.1999, p. 31).

(19) OJ L 53, 27.2.2008, p. 52.

(20) Council Decision 2008/149/JHA of 28 January 2008 on the conclusion on behalf of the European Union of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 50).

(21) OJ L 160, 18.6.2011, p. 21.

(22) Council Decision 2011/350/EU of 7 March 2011 on the conclusion, on behalf of the European Union, of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis, relating to the abolition of checks at internal borders and movement of persons (OJ L 160, 18.6.2011, p. 19).

(2) Regulation contained in document ST 5950/21 (2018/0152A(COD)).

(3) Regulation contained in document ST 5950/21 (2018/0152A(COD))

(4) Regulation contained in document ST 5950/21 (2018/0152A(COD)).

(5) Regulation contained in document ST 5950/21 (2018/0152A(COD)).

(6) Regulation contained in document ST 5950/21 (2018/0152A(COD)).

14.6.2021

Official Journal of the European Union

C 227/29

Statement of the Council’s reasons: Position (EU) No 22/2021 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 as regards the establishment of the conditions for accessing other EU information systems for the purposes of the Visa Information System

(2021/C 227/04)

I. INTRODUCTION

After a thorough evaluation of the VIS, on 16 May 2018 the Commission submitted a legislative proposal to amend the VIS Regulation (1) (hereinafter ‘Regulation amending the VIS’).

At its meeting on 19 December 2018, the Committee of Permanent Representatives adopted a mandate to enter into negotiations with the European Parliament (2).

The European Economic and Social Committee adopted its opinion on 19 September 2018 (3).

The European Data Protection Supervisor delivered its opinion on 12 December 2018 (4).

At the request of the European Parliament, the EU Agency for Fundamental Rights delivered an opinion on 30 August 2018 (5).

On 13 March 2019, the European Parliament adopted its Position at first reading (6).

The Council and the European Parliament entered into negotiations in October 2019 with a view to reaching an agreement at the stage of the Council’s position at first reading (‘early second reading agreement’).

During the course of the negotiations it became clear that certain provisions were missing from the Commission proposal – the so-called ‘VIS consequential amendments’. These are the amendments to be made to the legal acts on the EU information systems and databases as a consequence of the automated queries by VIS to these other systems. Similar consequential amendments had been proposed by the Commission for ETIAS (7).

Due to the variable geometry in Member States’ participation in EU policies in the area of freedom, security and justice, it was legally possible to include only one set of consequential amendments concerning the modification of legal instruments in the area of the Schengen acquis related to external borders in the Regulation amending the VIS, while other provisions not belonging to that acquis had to be included in a separate legal instrument, namely the Regulation on the VIS consequential amendments (subject matter of this Statement of the Council’s reasons).

10.

On 17 June 2020, the Committee of Permanent Representatives amended the Council’s mandate, in order to include the ‘VIS consequential amendments’ (8). Having already adopted its Position at first reading, the European Parliament negotiating team indicated that it would define its position on this new set of provisions during the course of the interinstitutional negotiations.

11.

After six political trilogues and numerous technical meetings, the negotiations were successfully concluded on 8 December 2020, with the European Parliament and Council reaching a compromise on the text of two Regulations:

—

Regulation amending Regulations (EC) No 767/2008, (EC) No 810/2009, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1860, (EU) 2018/1861, (EU) 2019/817 and (EU) 2019/1896 of the European Parliament and of the Council and repealing Council Decisions 2004/512/EC and 2008/633/JHA, for the purpose of reforming the Visa Information System (hereinafter ‘the Regulation amending the VIS’), and

—

Regulation amending Regulations (EU) 603/2013, 2016/794, 2018/1862, 2019/816 and 2019/818 as regards the establishment of the conditions for accessing other EU information systems for VIS purposes (hereinafter ‘the Regulation on the VIS consequential amendments’, subject matter of the present Statement of the Council’s reasons).

12.

On 22 January 2021, the Committee of Permanent Representatives carried out an analysis of the final compromise text with a view to agreement.

13.

On 27 January 2021 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE committee) confirmed the political agreement and on 1 February the LIBE Chair sent a letter to the Chair of the Committee of Permanent Representatives confirming that, should the Council approve the two Regulations at first reading, after legal-linguistic revision, the Parliament would approve the Council’s position at its second reading.

14.

On 3 February 2021 Committee of Permanent Representatives confirmed the political agreement on the compromise text of the Regulations.

15.

Denmark is not taking part in the adoption of the Regulation on the VIS consequential amendments and is not bound by it or subject to its application. Given that this Regulation, insofar as its provisions relate to SIS as governed by Regulation (EU) 2018/1862, builds upon the Schengen acquis, Denmark will, in accordance with Article 4 of that Protocol, decide within a period of six months after the Council has decided on this Regulation whether it will implement it in its national law.

16.

Insofar as its provisions relate to SIS as governed by Regulation (EU) 2018/1862, Ireland is taking part in the Regulation on the VIS consequential amendments. Insofar as its provisions relate to Europol, Eurodac and to ECRIS-TCN, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

17.

As regards Iceland, Norway, Switzerland and Liechtenstein, the Regulation on the VIS consequential amendments constitutes, insofar as it relates to SIS as governed by Regulation (EU) 2018/1862, a development of the provisions of the Schengen acquis.

II. OBJECTIVE

18.

The VIS – established by Council Decision 2004/512/EC (the VIS Decision) and by Regulation (EC) No 767/2008 – is the EU information system for facilitating the short-stay (‘Schengen’) visa procedure and helping visa, border, asylum and migration authorities to check third-country nationals who need a visa to travel to the Schengen area. The VIS connects Member States’ consulates around the world and all their external border crossing points.

19.

The Regulation amending the VIS aims at further developing the VIS to better respond to new challenges in visa, border and security policies.

20.

The Regulation on the VIS consequential amendments lays down the conditions under which the VIS consults the data stored in Eurodac, SIS and ECRIS-TCN, as well as Europol data, for the purposes of identifying hits under the automated queries specified in the Regulation amending the VIS.

21.

The conditions of access to other EU information systems and databases queried by VIS were missing in the Commission proposal, mainly because it had been presented before the adoption of several legal acts on other EU information systems and databases and the Interoperability Regulations.

22.

The Council Position at first reading closes this gap and takes into account the new legislative landscape for interoperability, which has evolved since the tabling of the proposal.

23.

While the technical amendments to the Regulations which are part of the Schengen acquis related to borders (VIS (9), EES (10), ETIAS (11), SIS Return (12), SIS Borders (13) and Interoperability Borders (14)) are included in the Regulation amending the VIS, the amendment to the Regulations which are not part of the Schengen acquis or constitute Schengen-Police texts (Eurodac (15), Europol Regulation (16), SIS Police (17), ECRIS-TCN (18) and Interoperability Police (19)) are included in this separate legal instrument due to the variable geometry of Member States’ participation in EU policies in the area of freedom, security and justice.

24.

However, the two Regulations were negotiated as a package and are meant to work seamlessly together to enable the comprehensive operation and use of the VIS system.

III. ANALYSIS OF THE COUNCIL’S POSITION AT FIRST READING

A. General

25.

The European Parliament and the Council conducted negotiations with the aim of concluding an agreement on the basis of a position of the Council at first-reading that the Parliament could approve as such at its second reading. The text of the Council Position at first reading on the Regulation on the VIS consequential amendments fully reflects the compromise reached between the two co-legislators, assisted by the European Commission.

B. Key issues

Amendments to Regulation (EU) 603/2013

26.

The Council Position at first reading amends the Eurodac Regulation in order to:

—	grant access to Eurodac to the competent visa authorities in order to consult data in a read-only format,

—	connect Eurodac to the European search portal established by Article 6 of Regulation (EU) 2019/818 to enable automated processing by the VIS, and

—	keep a record or log of each data processing operation carried out within Eurodac and VIS.

Amendments to Regulation (EU) 2016/794

27.

The Council Position at first reading amends the Europol Regulation in order to:

—	allow Europol to provide an opinion following a consultation by VIS under the automated processing, and

—	enable the VIS designated authorities, for the purposes of the VIS Regulation, to have indirect access to Europol data on the basis of a hit/no hit system.

Amendments to Regulation (EU) 2018/1862

28.

The Council Position at first reading amends the SIS Police Regulation in order to:

—	keep logs of each data processing operation carried out within SIS and VIS,

—

grant national competent authorities access to data entered in SIS for the purpose of manually verifying hits triggered by automated queries from the VIS and assessing whether an applicant for a visa, a long-stay visa or a residence permit would pose a threat to public policy or public security, and

—	connect the Central System of SIS to the European search portal (ESP) established by Article 6 of Regulation (EU) 2019/818 to enable VIS automated processing.

Amendments to Regulation (EU) 2019/816

29.

The Council Position at first reading amends the ECRIS-TCN Regulation in order to:

—	include in the data record of a convicted third-country national a flag indicating, for the purpose of VIS, if the third-country national concerned has been convicted for a terrorist offence or a serious criminal offence,

—	indicate that this flag will be erased automatically 25 years after the creation of the flag, as far as convictions related to terrorist offences are concerned, and 15 years after the creation of the flag, as far as convictions related to other serious criminal offences are concerned,

—	make the flags and the code of the convicting Member State(s) accessible and searchable by the VIS Central System for the purpose of the verifications, where hits are identified following automated processing by VIS,

—	in the event of a hit, allow the central system or the CIR to automatically provide the competent authority with information on the Member States holding criminal record information on the third-country national,

—	connect ECRIS-TCN to the European search portal (ESP) established by Article 6 of Regulation (EU) 2019/818 to enable automated processing by VIS,

—	grant the VIS designated authorities the right to access ECRIS-TCN data in the CIR for the purpose of performing the tasks pursuant to the VIS Regulation, and

—	keep a log of each ECRIS-TCN data processing operation carried out within the CIR and VIS.

30.

The European Parliament initially called for a provision to be inserted in the ECRIS-TCN Regulation tasking the Commission to evaluate, within one year after the start of operations of ECRIS-TCN, whether the querying of ECRIS-TCN by the VIS was necessary in supporting the VIS’s objective of assessing whether an applicant for a visa, a long-stay visa or a residence permit would pose a threat to public policy or public security under Regulation (EC) No 767/2008. The Council Position at first reading integrates the assessment of whether the querying of ECRIS-TCN by the VIS has contributed to supporting the abovementioned objective into the report the Commission is required to present three years after the start of operations of the revised VIS.

Amendments to Regulation (EU) 2019/818

31.

The Council Position at first reading amends the Interoperability (Police) Regulation in order to adapt it for the purposes of revised VIS.

IV. CONCLUSION

32.

The Council’s Position at first reading fully reflects the compromise reached in the negotiations between the European Parliament and the Council, facilitated by the Commission. The Council believes that its position at first reading represents a balanced package and that, once adopted, the Regulation amending Regulations (EU) 603/2013, 2016/794, 2018/1862, 2019/816 and 2019/818 as regards the establishment of the conditions for accessing other EU information systems for VIS purposes, will make it possible to connect the VIS and data from other EU information systems and Europol and, by doing so, to allow the systems to supplement each other with a view to improving the management of the external borders, contributing to preventing and combating illegal immigration and ensuring a high level of security within the area of freedom, security and justice of the Union, including the maintenance of public security and public policy and safeguarding the security in the territories of the Member States.

33.

This compromise is confirmed by the letter that the Chair of the LIBE Committee addressed to the Chair of the Committee of Permanent Representatives on 1 February 2021. In this letter, the Chair of the LIBE Committee indicates that he will recommend to the members of his Committee, and subsequently to the plenary, that they accept the Council’s position at first reading without amendments in the Parliament’s second reading, subject to verification by the lawyer-linguists of both institutions.

(1) 8853/18.

(2) 15726/18.

(3) EESC 2018/03954 (OJ C 440, 6.12.2018, p. 154).

(4) Summary of the Opinion of the European Data Protection Supervisor on the Proposal for a new Regulation on the Visa Information System (OJ C 50, 8.2.2019, p. 4).

(5) FRA Opinion – 2/2018. https://fra.europa.eu/en/publication/2018/revised-visa-information-system-and-its-fundamental-rights-implications

(6) T8-0174/2019, 7401/19.

(7) See COM (2019) 3 final and COM (2019) 4 final.

(8) 8787/20.

(9) Regulation (EC) No 767/2008 of the European Parliament and of the Council of 9 July 2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation) (OJ L 218, 13.8.2008, p. 60).

(10) Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011(OJ L 327, 9.12.2017, p. 20).

(11) Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236, 19.9.2018, p. 1).

(12) Regulation (EU) 2018/1860 of the European Parliament and of the Council of 28 November 2018 on the use of the Schengen Information System for the return of illegally staying third-country nationals (OJ L 312, 7.12.2018, p. 1).

(13) Regulation (EU) 2018/1861 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of border checks, and amending the Convention implementing the Schengen Agreement, and amending and repealing Regulation (EC) No 1987/2006 (OJ L 312, 7.12.2018, p. 14).

(14) Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa and amending Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA (OJ L 135, 22.5.2019, p. 27).

(15) Regulation (EU) No 603/2013 of the European Parliament and of the Council of 26 June 2013 on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes, and amending Regulation (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice (OJ L 180, 29.6.2013, p. 1).

(16) Regulation (EU) 2016/794 of the European Parliament and of the Council of 11 May 2016 on the European Union Agency for Law Enforcement Cooperation (Europol) and replacing and repealing Council Decisions 2009/371/JHA, 2009/934/JHA, 2009/935/JHA, 2009/936/JHA and 2009/968/JHA (OJ L 135, 24.5.2016, p. 53).

(17) Regulation (EU) 2018/1862 of the European Parliament and of the Council of 28 November 2018 on the establishment, operation and use of the Schengen Information System (SIS) in the field of police cooperation and judicial cooperation in criminal matters, amending and repealing Council Decision 2007/533/JHA, and repealing Regulation (EC) No 1986/2006 of the European Parliament and of the Council and Commission Decision 2010/261/EU (OJ L 312, 7.12.2018, p. 56).

(18) Regulation (EU) 2019/816 of the European Parliament and of the Council of 17 April 2019 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and amending Regulation (EU) 2018/1726 (OJ L 135, 22.5.2019, p. 1).

(19) Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 (OJ L 135, 22.5.2019, p. 85).

		ISSN 1977-091X
Official Journal of the European Union		C 227

English edition	Information and Notices	Volume 64 14 June 2021

Contents		page
	III Preparatory acts
	COUNCIL
2021/C 227/01	Position (EU) No 21/2021 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council establishing, as part of the Integrated Border Management Fund, the instrument for financial support for customs control equipment Adopted by the Council on 27 May 2021	1
2021/C 227/02	Statement of the Council’s reasons: Position (EU) No 21/2021 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council establishing, as part of the Integrated Border Management Fund, the instrument for financial support for customs control equipment	18
2021/C 227/03	Position (EU) No 22/2021 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 as regards the establishment of the conditions for accessing other EU information systems for the purposes of the Visa Information System Adopted by the Council on 27 May 2021	20
2021/C 227/04	Statement of the Council’s reasons: Position (EU) No 22/2021 of the Council at first reading with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulations (EU) No 603/2013, (EU) 2016/794, (EU) 2018/1862, (EU) 2019/816 and (EU) 2019/818 as regards the establishment of the conditions for accessing other EU information systems for the purposes of the Visa Information System	29