9.12.2017   

EN

Official Journal of the European Union

L 327/1

(1)

Regulation (EU) 2016/399 of the European Parliament and of the Council (3) lays down the conditions, criteria and detailed rules for the crossing of the external borders of the Member States.

(2)

Regulation (EU) 2017/2226 of the European Parliament and of the Council (4) aims at creating a centralised system for the registration of entry and exit data and refusal of entry data concerning third-country nationals crossing the external borders of the Member States of the Union for a short stay.

(3)

In order to carry out checks on third-country nationals pursuant to Regulation (EU) 2016/399, which include the verification of the identity of third-country nationals, their identification, or both, as well as the verification that a third-country national has not exceeded the maximum duration of authorised stay on the territory of the Member States, border guards should use all the information available, including data from the Entry/Exit System established by Regulation (EU) 2017/2226 (‘EES’), where required. The data stored in the EES should also be used to verify that third-country nationals holding a visa issued for one or two entries have respected the maximum number of authorised entries.

(4)

In certain cases, biometric data need to be provided by third-country nationals for the purpose of border checks. The entry conditions for third-country nationals should therefore be amended by including an obligation to provide those biometric data. Where a third-country national refuses to provide biometric data for the creation of his or her individual file or for the carrying out of border checks, a refusal of entry decision should be adopted.

(5)

To ensure the full effectiveness of the EES, entry and exit checks need to be carried out in a harmonised way at the borders at which the EES is operated.

(6)

The establishment of the EES requires the adaptation of the procedures for checking persons when crossing the borders at which the EES is operated. In particular, the EES aims to abolish on entry and exit the stamping of the travel documents of third-country nationals admitted for a short stay by replacing it by the electronic recording of the entry and exit directly in the EES. Furthermore, the interoperability between the EES and the Visa Information System (VIS) established by Council Decision 2004/512/EC (5) needs to be taken into account in the border check procedures. Lastly, the EES opens the possibility of using new technologies for the border crossings of short-stay travellers. Those adaptations to the border check procedures should become effective in the Member States operating the EES on the date of start of operations of the EES determined in accordance with Regulation (EU) 2017/2226.

(7)

For a period of six months after the EES has started operations, border guards should take into account the stays of third-country nationals on the territory of the Member States in the six months preceding the entry or the exit by checking the stamps in the travel documents in addition to the entry/exit data recorded in the EES. That measure should enable the required verifications to be carried out in those cases where a person would have been admitted for a short stay on the territory of the Member States in the six months before the EES started operations. In addition, there is a need to lay down specific provisions for those third-country nationals who, having entered the territory of the Member States, have not yet exited it before the EES has started operations. In those situations, the last entry should also be recorded in the EES when the third-country national exits the territory of the Member States.

(8)

Taking into account the different situations in the Member States and at the different border crossing points of the Member States concerning the number of third-country nationals crossing the borders, Member States should be able to decide whether and to what extent to make use of technologies such as self-service systems, e-gates and automated border control systems. When using such technologies, entry and exit checks at the external borders should be carried out in a harmonised way and an appropriate level of security should be ensured.

(9)

In addition, it is necessary to specify the tasks and roles of the border guards when making use of such technologies. In this regard, it should be ensured that the results of border checks carried out by automated means are available to border guards so as to enable them to take the appropriate decisions. In addition, there is a need to supervise the use of self-service systems, e-gates and automated border control systems by travellers so as to prevent fraudulent behaviour and uses. In addition, when carrying out this supervision, border guards should pay particular attention to minors and should be placed in a position that should enable them to identify persons needing protection.

(10)

Member States should also be able to establish national facilitation programmes on a voluntary basis in order to allow pre-vetted third-country nationals to benefit on entry from derogations from certain aspects of thorough checks. Where such national facilitation programmes are used, they should be established in accordance with a harmonised model and an appropriate level of security should be guaranteed.

(11)

This Regulation is without prejudice to the application of Directive 2004/38/EC of the European Parliament and of the Council (6).

(12)

Since the objective of this Regulation, namely to amend the existing rules of Regulation (EU) 2016/399, can only be 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 (TEU). 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 this objective.

(13)

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

(14)

This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (7); the United Kingdom is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(15)

This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (8); Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(16)

As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis  (9) which fall within the area referred to in Article 1, point A of Council Decision 1999/437/EC (10).

(17)

As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis  (11) which fall within the area referred to in Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC (12).

(18)

As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis  (13) which fall within the area referred to in Article 1, point A, of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (14).

(19)

As regards Cyprus, Bulgaria, Romania and Croatia, the provisions of Regulation (EU) 2016/399 that relate to the EES should only apply where the conditions set out in Article 66(2) of Regulation (EU) 2017/2226 are met. As a result, for those Member States that do not fulfil the conditions set out in Article 66(2) of that Regulation by the date of start of operations of the EES, it is necessary to lay down specific transitional provisions on stamping pending their connection to the EES. Those transitional provisions should ensure that the stamping of travel documents has the same effect as an entry/exit record in the EES.

(20)

The Member States which do not meet the conditions set out in Article 66(2) of Regulation (EU) 2017/2226 at the date of the start of operations of the EES should continue to systematically stamp, on entry and exit, the travel documents of third-country nationals admitted for a short stay. Those Member States should examine the entry and exit stamps on the travel document of the third-country national concerned in order to verify, by comparing the dates of entry and exit, that the person has not exceeded the maximum duration of authorised stay on the territory of the Member State concerned. The stamping of travel documents and the examination of the stamps should continue until the Member State concerned is connected to the EES as referred to in Article 66(3) of Regulation (EU) 2017/2226.

(21)

Regulation (EU) 2016/399 should therefore be amended accordingly.

(22)

The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (15) and delivered an opinion on 21 September 2016,

(1)

in Article 2, the following points are added:

(2)

Article 6 is amended as follows:

(3)

the following Article is inserted:

‘Article 6a

Third-country nationals for whom data are to be entered in the EES

1.   On entry and exit, data on the following categories of persons shall be entered in the EES in accordance with Articles 16, 17, 19 and 20 of Regulation (EU) 2017/2226:

2.   Data on third-country nationals whose entry for a short stay has been refused in accordance with Article 14 of this Regulation shall be entered in the EES in accordance with Article 18 of Regulation (EU) 2017/2226.

3.   Data on the following categories of persons shall not be entered in the EES:

(4)

Article 8 is amended as follows:

(5)

the following Articles are inserted:

‘Article 8a

Use of self-service systems for pre-enrolling data in the EES

1.   Persons whose border crossing is subject to a registration in the EES in accordance with Article 6a may use self-service systems for the purpose of pre-enrolling in the EES the data referred in point (a) of paragraph 4 of this Article, provided that all of the following conditions are fulfilled:

2.   Pursuant to paragraph 1 of this Article, the self-service system shall verify whether the person has a previous registration in the EES and shall verify the identity of the third-country national in accordance with Article 23(2) of Regulation (EU) 2017/2226.

3.   In accordance with Article 23(4) of Regulation (EU) 2017/2226, the self-service system shall carry out an identification in accordance with Article 27 of that Regulation.

In addition, in accordance with Articles 23(4) of the Regulation (EU) 2017/2226, where an identification in the EES is carried out:

4.   In the event that data concerning the person referred to in paragraph 1 of this Article are not recorded in the EES pursuant to paragraphs 2 and 3:

5.   Where the operations provided for in paragraphs 2 and 3 indicate that data on the person referred to in paragraph 1 are recorded in the EES, the self-service system shall assess whether any of the data referred to in paragraph (4)(a) need to be updated.

6.   Where the assessment referred to in paragraph 5 reveals that the person referred to in paragraph 1 has an individual file registered in the EES but that his or her data need to be updated, the person shall:

7.   Self-service systems shall be operated under the supervision of a border guard who shall be in charge of detecting any inappropriate, fraudulent or abnormal use of the self-service system.

Article 8b

Use of self-service systems and e-gates for the border crossing by persons whose border crossing is subject to a registration in the EES

1.   Persons whose border crossing is subject to a registration in the EES in accordance with Article 6a may be permitted to use a self-service system for the carrying out of their border checks, where all of the following conditions are fulfilled:

2.   Where the conditions laid down in paragraph 1 of this Article are met, the border checks on entry provided for in Article 8(2) and Article 8(3)(a) and (b) and the border checks on exit provided for in Article 8(2) and Article 8(3)(g) and (h) may be carried out through a self-service system. When carried out through an automated border control system, the border checks on exit shall include the checks provided for in Article 8(3)(h).

Where a person is granted access to a national facilitation programme established by a Member State pursuant to Article 8d, the border checks carried out through a self-service system on entry may omit the examination of the aspects referred to in Article 8(3)(a)(iv) and (v) when that person crosses the external borders of that Member State or the external borders of a Member State which has concluded an agreement with the Member State which granted the access as referred to under Article 8d(9).

3.   On entry and exit, the results of the border checks carried out through the self-service system shall be made available to a border guard. That border guard shall monitor the results of border checks and, taking into account those results, authorise the entry or exit or, otherwise, refer the person to a border guard who shall proceed with further checks.

4.   The person in question shall be referred to a border guard pursuant to paragraph 3 in any of the following situations:

5.   In addition to the situations referred to in paragraph 4, the border guard supervising the border crossing may decide, based on other reasons, to refer the person using the self-service system to a border guard.

6.   Persons whose border crossing is subject to a registration in the EES in accordance with Article 6a(1) and who used a self-service system for the carrying out of their border checks may be authorised to use an e-gate. Where an e-gate is used, the corresponding registration of the entry/exit record and the linking of that record to the corresponding individual file pursuant to Article 14 of Regulation (EU) 2017/2226 shall be carried out when crossing the border through the e-gate. Where the e-gate and the self-service system are physically separated, a verification of the identity of the user shall take place at the e-gate in order to verify that the person using the e-gate corresponds to the person who used the self-service system. The verification shall be carried out by using at least one biometric identifier.

7.   Where the conditions listed in point (a) or (b) of paragraph 1 of this Article, or in both, are not fulfilled, part of the border checks on entry pursuant to Article 8(3)(a) and (b) and part of the border checks on exit pursuant to Article 8(3)(g) and (h) may be carried out through a self-service system. The border guard may perform only those verifications pursuant to Article 8(3)(a) and (b) and Article 8(3)(g) and (h) that could not be carried out through the self-service system. In addition, the border guard shall verify that the travel document used at the self-service system corresponds to the one held by the person standing before that border guard.

8.   Self-service systems and e-gates shall be operated under the supervision of a border guard who shall be in charge of detecting any inappropriate, fraudulent or abnormal use of the self-service system, e-gate, or both.

9.   This Article is without prejudice to the possibility for Member States to allow for the use of self-service systems, e-gates, or both, for border crossings by Union citizens, by citizens of a European Free Trade Association State of the European Economic Area, by citizens of Switzerland and by third-country nationals whose border crossing is not subject to a registration in the EES.

Article 8c

Standards for automated border control systems

Automated border control systems shall, to the extent possible, be designed in such a way that they can be used by all persons, with the exception of children under 12 years of age. They shall also be designed in a way that fully respects human dignity, in particular in cases involving vulnerable persons. Where Member States decide to use automated border control systems, they shall ensure the presence of a sufficient number of staff to assist persons with the use of such systems.

Article 8d

National facilitation programmes

1.   Each Member State may establish a voluntary programme (‘national facilitation programme’) in order to allow third-country nationals, or nationals of a specific third country, who do not enjoy the right of free movement under Union law to benefit from the facilitations made pursuant to paragraph 2 when crossing the external border of a Member State.

2.   By way of derogation from Article 8(3)(a), for third-country nationals referred to in paragraph 1 of this Article who are granted access to the national facilitation programme, the thorough checks on entry do not have to include an examination of the aspects referred to in Article 8(3)(a)(iv) and (v) when such third-country nationals cross the external border of a Member State.

3.   The Member State shall pre-vet third-country nationals applying to the national facilitation programme in order to verify in particular that the conditions referred to in paragraph 4 are fulfilled.

Such third-country nationals shall be pre-vetted by border guards, by visa authorities as defined in point 3 of Article 4 of Regulation (EC) No 767/2008 or by immigration authorities as defined in point (4) of Article 3(1) of Regulation (EU) 2017/2226.

4.   The authorities referred to in paragraph 3 shall only grant a person access to the national facilitation programme where all of the following conditions are fulfilled:

5.   First access to the national facilitation programme shall be granted for a maximum of one year. Access may be extended for a maximum of a further five years or until the end of the validity period of the travel document or any issued multiple-entry visas, long-stay visas and residence permits, whichever is shorter.

In the case of an extension the Member State shall reassess every year the situation of each third-country national who is granted access to the national facilitation programme in order to ensure that, based on updated information, that third-country national still meets the conditions laid down in paragraph 4. This reassessment may be performed when border checks are carried out.

6.   The thorough checks on entry pursuant to Articles 8(3)(a) and (b) and the thorough checks on exit pursuant to Article 8(3)(g) shall also comprise verification that the third-country national has valid access to the national facilitation programme.

Border guards may carry out the verification of the third-country national benefiting from the national facilitation programme on entry pursuant to Articles 8(3)(a) and (b) and on exit pursuant to Article 8(3)(g) without comparing biometrics electronically but by comparing the facial image taken from the electronic storage medium (chip) and the facial image in the third-country national's individual EES file with that third-country national’s face. Full verification shall be carried out at random and on the basis of a risk analysis.

7.   The authorities referred to in paragraph 3 shall immediately revoke the access granted to a third-country national to the national facilitation programme if it becomes evident that the conditions for granting access to that programme were not met or are no longer met.

8.   When verifying in accordance with paragraph 3 whether the applicant fulfils the conditions set out in paragraph 4, particular consideration shall be given to assessing whether the applicant presents a risk of illegal immigration or a risk to the security of any of the Member States and whether the applicant intends to leave the territory of the Member States during the authorised stay.

The means of subsistence for the intended stays shall be assessed according to the duration and the purpose of the envisaged stay or stays and by reference to average prices in the Member States concerned for board and lodging in budget accommodation, on the basis of the reference amounts set by the Member States in accordance with Article 39(1)(c). Proof of sponsorship, private accommodation, or both, may also constitute evidence of sufficient means of subsistence.

The examination of an application shall be based, in particular, on the authenticity and reliability of the documents submitted and on the veracity and reliability of the statements made by the applicant. If a Member State responsible for examining an application has any doubts about the applicant, the applicant’s statements or supporting documents that have been provided, it may consult other Member States before any decision on the application is taken.

9.   Two or more Member States having established their own national facilitation programme pursuant to this Article may conclude among themselves an agreement in order to ensure that the beneficiaries of their national facilitation programmes may benefit from the facilitations recognised by another national facilitation programme. Within the time-limit of one month from the conclusion of the agreement, a copy of the agreement shall be transmitted to the Commission.

10.   When establishing a national facilitation programme, Member States shall ensure that their system operating the programme meets the data security standards laid down in Article 43 of Regulation (EU) 2017/2226. Member States shall conduct a proper information security risk assessment and security responsibilities shall, for all steps of the process, be made clear.

11.   The Commission shall, by the end of the third year of the application of this Article, transmit to the European Parliament and to the Council an evaluation of its implementation. On the basis of that evaluation, the European Parliament or the Council may invite the Commission to propose the establishment of a Union programme for frequent and pre-vetted third-country national travellers.’.

(6)

Article 9 is amended as follows:

(7)

in Article 10, the following paragraphs are inserted:

‘3a.   Where Member States decide to use e-gates, self-service systems or automated border control systems, they shall use the signs provided for in part D of Annex III to identify the respective lanes.

3b.   Where Member States decide to establish a national facilitation programme in accordance with Article 8d, they may decide to use specific lanes for the third-country nationals benefiting from such a national facilitation programme. They shall use the signs provided for in part E of Annex III to identify the respective lanes.’;

(8)

Article 11 is replaced by the following:

‘Article 11

Stamping of travel documents

1.   Where provided expressly by its national law, a Member State may, on entry and exit, stamp the travel document of third-country nationals holding a residence permit or long-stay visa issued by that Member State.

2.   The travel document of a third-country national who is a holder of a Facilitated Rail Transit Document issued in accordance with Regulation (EC) No 693/2003 shall be stamped on entry and exit. Furthermore, the travel document of a third-country national who is a holder of a valid Facilitated Transit Document issued in accordance with Regulation (EC) No 693/2003 and who transits by train and does not disembark within the territory of a Member State shall be stamped on entry and exit.

3.   The travel documents of third-country nationals entering or exiting, on the basis of a national short-stay visa issued for one or two entries, the territory of a Member State not yet fully applying the Schengen acquis but operating the EES shall be stamped on entry and on exit.

4.   The practical arrangements for stamping are set out in Annex IV.’;

(9)

Article 12 is replaced by the following:

‘Article 12

Presumption as regards fulfilment of conditions of duration of short stay

1.   Without prejudice to Article 12a, if no individual file has been created in the EES for a third-country national present on the territory of a Member State or the entry/exit record of that third-country national does not contain an exit date following the date of expiry of the authorised length of stay, the competent authorities may presume that third-country national does not fulfil, or no longer fulfils, the conditions of duration of authorised stay within the territory of the Member States.

2.   The presumption referred to in paragraph 1 of this Article shall not apply to a third-country national who can provide, by any means, credible evidence that he or she enjoys the right of free movement under Union law or that he or she holds a residence permit or a long-stay visa. Where relevant, Article 35 of Regulation (EU) 2017/2226 shall apply.

3.   The presumption referred to in paragraph 1 may be rebutted where the third-country national provides, by any means, credible evidence, such as transport tickets or proof of presence outside the territory of the Member States or of the date of expiry of a previous residence permit or long-stay visa, that he or she has respected the conditions relating to the duration of a short stay.

In the case of a rebuttal, the competent authorities shall create an individual file in the EES if necessary or indicate in the EES the date on which, and the place where, the third-country national crossed the external border of one of the Member States or the internal border of a Member State not yet fully applying the Schengen acquis but operating the EES in accordance with Article 20 of Regulation (EU) 2017/2226.

4.   Where the presumption referred to in paragraph 1 is not rebutted, a third-country national present on the territory of the Member States may be returned in accordance with Directive 2008/115/EC of the European Parliament and of the Council (*7).

A third-country national enjoying the right of free movement under Union law may only be returned in accordance with Directive 2004/38/EC.

(10)

the following Article is inserted:

‘Article 12a

Transitional period and transitional measures

1.   For a period of 180 days after the EES has started operations, in order to verify on entry and exit, that persons admitted for a short stay have not exceeded the maximum duration of authorised stay and, where relevant, to verify on entry that persons have not exceeded the number of entries authorised by the short-stay visa issued for one or two entries, the border guards shall take into account the stays on the territory of the Member States during the 180 days preceding the entry or the exit by checking the stamps in the travel documents in addition to the entry/exit data recorded in the EES.

2.   Where a person has entered the territory of the Member States before the EES has started operations and exits it after the EES has started operations, an individual file shall be created on exit in the EES and the date of that entry shall be entered in the entry/exit record in accordance with Article 16(2) of Regulation (EU) 2017/2226. The application of this paragraph shall not be limited to the 180-day period after the EES has started operations as referred to in paragraph 1. In the case of a discrepancy between the date of the entry stamp and the data recorded in the EES, the date of the entry stamp shall prevail.’;

(11)

Article 14 is amended as follows:

(12)

in Article 20(1), point (a) is replaced by the following:

(13)

the following Article is inserted:

‘Article 42a

Transitional measures for the Member States not yet operating the EES

1.   The travel documents of third-country nationals crossing the borders of the Member States referred to in Article 66(3) of Regulation (EU) 2017/2226 shall be systematically stamped on entry and exit.

The travel documents of third-country nationals referred to in Article 6a(1)(b) and (c) of this Regulation crossing the borders of the Member States referred to in Article 66(3) of Regulation (EU) 2017/2226 shall be stamped on entry and exit.

These stamping obligations shall also apply when border checks are relaxed in accordance with Article 9 of this Regulation.

2.   By way of derogation from paragraph 1 of this Article, no stamp shall be affixed to the travel documents of third-country nationals referred to in Article 6a(3)(a), (b) and (f), Article 6a(3)(g)(i), (ii), (iii) and (vii) and Article 6a(3)(j).

3.   The provisions of this Regulation that relate to the entry/exit data recorded in the EES and to the absence of such data in the EES, in particular Article 8(3)(a)(iiia) and (g)(iv), Article 8d(4)(d) and Article 12, shall apply mutatis mutandis to entry and exit stamps.

4.   When a presumption as regards the fulfilment of conditions of duration of stay is rebutted in accordance with Article 12(2), the third-country national present on the territory of a Member State not yet operating the EES shall be entitled to have an indication inserted in his or her travel document of the date on which, and the place where, he or she crossed the external border or internal border of that Member State. A form as shown in Annex VIII may also be given to the third-country national.

5.   The provisions on stamping set out in Annex IV shall apply.

6.   The Member States referred to in Article 66(3) of Regulation (EU) 2017/2226 shall stamp the travel documents of third-country nationals whose entry for a short stay is refused at their border. The stamping shall be carried out in accordance with the specifications laid down in Annex V, part A, point 1(d).

7.   The stamping obligations under paragraphs 1 to 6 shall apply until the date of start of operations of the EES in the Member State concerned.’;

(14)

Annexes III, IV, V and VII are amended in accordance with the Annex to this Regulation.