02017R2226 — EN — 09.10.2018 — 001.003

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Amended by:





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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







CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

1. This Regulation establishes an ‘Entry/Exit System’ (EES) for:

(a) the recording and storage of the date, time and place of entry and exit of third–country nationals crossing the borders of the Member States at which the EES is operated;

(b) the calculation of the duration of the authorised stay of such third-country nationals;

(c) the generation of alerts to Member States when the authorised stay has expired; and

(d) the recording and storage of the date, time and place of refusal of entry of third-country nationals whose entry for a short stay has been refused, as well as the authority of the Member State which refused the entry and the reasons therefor.

2. For the purposes of the prevention, detection and investigation of terrorist offences or of other serious criminal offences, this Regulation also lays down the conditions under which Member States’ designated authorities and Europol may obtain access to the EES for consultation.

Article 2

Scope

1. This Regulation applies to:

(a) third-country nationals admitted for a short stay to the territory of the Member States who are subject to border checks in accordance with Regulation (EU) 2016/399 when crossing the borders at which the EES is operated; and

(b) third-country nationals, on entry to and exit from the territory of the Member States, who:

(i) are members of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

(ii) do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Council Regulation (EC) No 1030/2002 ( 1 ).

2. This Regulation also applies to third-country nationals whose entry for a short stay to the territory of the Member States is refused in accordance with Article 14 of Regulation (EU) 2016/399.

3. This Regulation does not apply to:

(a) third–country nationals who are members of the family of a Union citizen to whom Directive 2004/38/EC applies and who hold a residence card pursuant to that Directive, whether or not they accompany or join that Union citizen;

(b) third-country nationals who are members of the family of a national of a third country, whether or not they accompany or join that national of a third country, where:

(i) that national of a third country enjoys the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

(ii) those third-country nationals hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002;

(c) holders of residence permits referred to in point 16 of Article 2 of Regulation (EU) 2016/399 other than those covered by points (a) and (b) of this paragraph;

(d) third-country nationals exercising their right to mobility in accordance with Directive 2014/66/EU of the European Parliament and of the Council ( 2 ) or Directive (EU) 2016/801 of the European Parliament and of the Council ( 3 );

(e) holders of long-stay visas;

(f) nationals of Andorra, Monaco and San Marino and ►C1 holders of a passport issued by the Vatican City State or the Holy See; ◄

(g) persons or categories of persons exempt from border checks or benefiting from specific rules in relation to border checks as referred to in point (g) of Article 6a(3) of Regulation (EU) 2016/399;

(h) persons or categories of persons referred to in points (h), (i), (j) and (k) of Article 6a(3) of Regulation (EU) 2016/399.

4. The provisions of this Regulation regarding the calculation of the duration of the authorised stay and the generation of alerts to Member States when the authorised stay has expired do not apply to third-country nationals who:

(a) are members of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

(b) do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002.

Article 3

Definitions

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

(1) ‘external borders’ means external borders as defined in point 2 of Article 2 of Regulation (EU) 2016/399;

(2) ‘internal borders’ means internal borders as defined in point 1 of Article 2 of Regulation (EU) 2016/399;

(3) ‘border authority’ means the border guard assigned in accordance with national law to carry out border checks as defined in point 11 of Article 2 of Regulation (EU) 2016/399;

(4) ‘immigration authority’ means the competent authority responsible, in accordance with national law, for one or more of the following:

(a) checking within the territory of the Member States whether the conditions for entry to, or stay on, the territory of the Member States are fulfilled;

(b) examining the conditions for, and taking decisions related to, the residence of third-country nationals on the territory of the Member States insofar as that authority does not constitute a ‘determining authority’ as defined in point (f) of Article 2 of Directive 2013/32/EU of the European Parliament and of the Council ( 4 ), and, where relevant, providing advice in accordance with Council Regulation (EC) No 377/2004 ( 5 );

(c) the return of third-country nationals to a third country of origin or transit;

(5) ‘visa authority’ means the visa authority as defined in point 3 of Article 4 of Regulation (EC) No 767/2008;

(6) ‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU, with the exception of persons who enjoy the right of free movement equivalent to that of Union citizens under agreements between the Union and its Member States, on the one hand, and third countries, on the other;

(7) ‘travel document’ means a passport or other equivalent document entitling the holder to cross the external borders and to which a visa may be affixed;

(8) ‘short stay’ means stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period as referred to in Article 6(1) of Regulation (EU) 2016/399;

(9) ‘short-stay visa’ means visa as defined in point (a) of point 2 of Article 2 of Regulation (EC) No 810/2009 of the European Parliament and of the Council ( 6 );

(10) ‘national short-stay visa’ means an authorisation issued by a Member State which does not apply the Schengen acquis in full with a view to an intended stay on the territory of that Member State of a duration of no more than 90 days in any 180-day period;

(11) ‘authorised stay’ means the exact number of days during which a third-country national is permitted to legally stay on the territory of the Member States, counting from the date of the entry in accordance with the applicable provisions;

(12) ‘Member State responsible’ means the Member State which has entered data in the EES;

(13) ‘verification’ means the process of comparing sets of data to establish the validity of a claimed identity (one-to-one check);

(14) ‘identification’ means the process of determining a person’s identity through a database search against multiple sets of data (one-to-many check);

(15) ‘alphanumeric data’ means data represented by letters, digits, special characters, spaces and punctuation marks;

(16) ‘fingerprint data’ means the data relating to the four fingerprints of the index, middle finger, ring finger and little finger from the right hand where present, and otherwise from the left hand;

(17) ‘facial image’ means digital images of the face;

(18) ‘biometric data’ means fingerprint data and facial image;

(19) ‘overstayer’ means a third-country national who does not fulfil or no longer fulfils the conditions relating to the duration of his or her authorised short stay on the territory of the Member States;

(20) ‘eu-LISA’ means the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by Regulation (EU) No 1077/2011;

(21) ‘supervisory authorities’ means the supervisory authority established in accordance with Article 51(1) of Regulation (EU) 2016/679 and the supervisory authority established in accordance with Article 41(1) of Directive (EU) 2016/680;

(22) ‘EES data’ means all data stored in the EES Central System in accordance with Article 14 and Articles 16 to 20;

(23) ‘law enforcement’ means the prevention, detection or investigation of terrorist offences or other serious criminal offences;

(24) ‘terrorist offence’ means an offence under national law which corresponds or is equivalent to one of the offences referred to in Directive (EU) 2017/541;

(25) ‘serious criminal offence’ means an offence which corresponds or is equivalent to one of the offences referred to in Article 2(2) of Framework Decision 2002/584/JHA, if it is punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years;

(26) ‘designated authority’ means an authority designated by a Member State pursuant to Article 29 as responsible for the prevention, detection or investigation of terrorist offences or of other serious criminal offences;

(27) ‘self-service system’ means a self-service system as defined in point 23 of Article 2 of Regulation (EU) 2016/399;

(28) ‘e-gate’ means an e-gate as defined in point 24 of Article 2 of Regulation (EU) 2016/399;

(29) ‘Failure To Enrol Rate’ (FTER) means the proportion of registrations with insufficient quality of the biometric enrolment;

(30) ‘False Positive Identification Rate’ (FPIR) means the proportion of returned matches during a biometric search which do not belong to the checked traveller;

(31) ‘False Negative Identification Rate’ (FNIR) means the proportion of missed matches during a biometric search even though the traveller’s biometric data were registered.

2. The terms defined in Article 4 of Regulation (EU) 2016/679 shall have the same meaning in this Regulation in so far as personal data are processed by the authorities of Member States for the purposes laid down in Article 6(1) of this Regulation.

3. The terms defined in Article 3 of Directive (EU) 2016/680 shall have the same meaning in this Regulation in so far as personal data are processed by the authorities of the Member States for the purposes laid down in Article 6(2) of this Regulation.

Article 4

Borders at which the EES is operated and use of the EES at those borders

1. The EES shall be operated at the external borders.

2. The Member States which apply the Schengen acquis in full shall introduce the EES at their internal borders with Member States which do not yet apply the Schengen acquis in full but operate the EES.

3. The Member States which apply the Schengen acquis in full and the Member States which do not yet apply the Schengen acquis in full but operate the EES shall introduce the EES at their internal borders with the Member States which do not yet apply the Schengen acquis in full and do not operate the EES.

4. Member States which do not yet apply the Schengen acquis in full but operate the EES shall introduce the EES at their internal borders as defined under points (b) and (c) of Article 2(1) of Regulation (EU) 2016/399.

5. By way of derogation from the third and fourth subparagraphs of Article 23(2) and from Article 27, a Member State which does not yet apply the Schengen acquis in full but operates the EES shall introduce the EES without biometric functionalities at its internal land borders with a Member State which does not yet apply the Schengen acquis in full but operates the EES. Where, at those internal borders, a third-country national has not yet been registered in the EES, that third-country national’s individual file shall be created without recording biometric data. Biometric data shall be added at the next border crossing point where the EES is operated with biometric functionalities.

Article 5

Set-up of the EES

eu-LISA shall develop the EES and ensure its operational management, including the functionalities for processing biometric data as referred to in point (d) of Article 16(1) and points (b) and (c) of Article 17(1), as well as the adequate security of the EES.

Article 6

Objectives of the EES

1. By recording and storing data in the EES and by providing Member States with access to such data, the objectives of the EES shall be to:

(a) enhance the efficiency of border checks by calculating and monitoring the duration of the authorised stay on the entry and exit of third-country nationals admitted for a short stay;

(b) assist in the identification of third-country nationals who do not or no longer fulfil the conditions for entry to, or for short stay on, the territory of the Member States;

(c) allow the identification and detection of overstayers and enable the competent national authorities of the Member States to take appropriate measures;

(d) allow refusals of entry in the EES to be checked electronically;

(e) enable automation of border checks on third-country nationals;

(f) enable visa authorities to have access to information on the lawful use of previous visas;

(g) inform third-country nationals of the duration of their authorised stay;

(h) gather statistics on the entries and exits, refusals of entry and overstays of third-country nationals in order to improve the assessment of the risk of overstays and support evidence-based Union migration policy making;

(i) combat identity fraud and the misuse of travel documents.

2. By granting access to designated authorities in accordance with the conditions set out in this Regulation, the objectives of the EES shall be to:

(a) contribute to the prevention, detection and investigation of terrorist offences or of other serious criminal offences;

(b) enable the generation of information for investigations related to terrorist offences or other serious criminal offences, including the identification of perpetrators, suspects and victims of those offences who have crossed the external borders.

3. The EES shall, where relevant, support Member States in operating their national facilitation programmes established in accordance with Article 8d of Regulation (EU) 2016/399, in order to facilitate border crossing for third-country nationals, by:

(a) enabling the national competent authorities referred to in Article 8d of Regulation (EU) 2016/399 to have access to information on previous short stays or refusals of entry for the purposes of the examination of applications for access to national facilitation programmes and the adoption of decisions referred to in Article 25 of this Regulation;

(b) notifying the border authorities that access is granted to a national facilitation programme.

Article 7

Technical architecture of the EES

1. The EES shall be composed of:

(a) a Central System (EES Central System);

(b) a National Uniform Interface (NUI) in each Member State based on common technical specifications and identical for all Member States, enabling the connection of the EES Central System to the national border infrastructures in Member States in a secure manner;

(c) a Secure Communication Channel between the EES Central System and the VIS Central System;

(d) a Communication Infrastructure, which shall be secure and encrypted, between the EES Central System and the NUIs;

(e) the web service referred to in Article 13;

(f) the data repository, established at a central level, as referred to in Article 63(2).

2. The EES Central System shall be hosted by eu-LISA in its technical sites. It shall provide the functionalities laid down in this Regulation in accordance with the conditions of availability, quality and speed pursuant to Article 37(3).

3. Without prejudice to Commission Decision 2008/602/EC ( 7 ), certain hardware and software components of the Communication Infrastructure of the EES shall be shared with the communication infrastructure of the VIS referred to in Article 1(2) of Decision 2004/512/EC. Logical separation of VIS data and EES data shall be ensured.

Article 8

Interoperability with the VIS

1. eu-LISA shall establish a Secure Communication Channel between the EES Central System and the VIS Central System to enable interoperability between the EES and the VIS. Direct consultation between the EES and the VIS shall only be possible where provided for by both this Regulation and Regulation (EC) No 767/2008. The retrieval of visa-related data from the VIS, their importation into the EES and the updating of data from the VIS in the EES shall be an automated process once the operation in question is launched by the authority concerned.

2. Interoperability shall enable the border authorities using the EES to consult the VIS from the EES in order to:

(a) retrieve the visa-related data directly from the VIS and import them into the EES in order to create or update the entry/exit record or the refusal of entry record of a visa holder in the EES in accordance with Articles 14, 16 and 18 of this Regulation and Article 18a of Regulation (EC) No 767/2008;

(b) retrieve the visa-related data directly from the VIS and import them into the EES in order to update the entry/exit record in the event that a visa is annulled, revoked or extended in accordance with Article 19 of this Regulation and Articles 13, 14 and 18a of Regulation (EC) No 767/2008;

(c) verify, pursuant to Article 23 of this Regulation and Article 18(2) of Regulation (EC) No 767/2008, the authenticity and validity of the relevant visa or whether the conditions for entry to the territory of the Member States in accordance with Article 6 of Regulation (EU) 2016/399 are fulfilled;

(d) verify at the borders at which the EES is operated whether a visa-exempt third-country national has been previously registered in the VIS in accordance with Article 23 of this Regulation and Article 19a of Regulation (EC) No 767/2008; and

(e) where the identity of a visa holder is verified using fingerprints, verify at the borders at which the EES is operated the identity of a visa holder by comparing the fingerprints of the visa holder with the fingerprints recorded in the VIS in accordance with Article 23 of this Regulation and Article 18(6) of Regulation (EC) No 767/2008.

3. Interoperability shall enable the visa authorities using the VIS to consult the EES from the VIS in order to:

(a) examine visa applications and adopt decisions relating to those applications in accordance with Article 24 of this Regulation and Article 15(4) of Regulation (EC) No 767/2008;

(b) examine, for the Member States which do not yet apply the Schengen acquis in full but operate the EES, applications for national short-stay visas and adopt decisions relating to those applications;

(c) update the visa-related data in the entry/exit record in the event that a visa is annulled, revoked or extended in accordance with Article 19 of this Regulation and Articles 13 and 14 of Regulation (EC) No 767/2008.

4. For the operation of the EES web service referred to in Article 13, the separate read-only database referred to in Article 13(5) shall be updated on a daily basis by the VIS via a one-way extraction of the minimum necessary subset of VIS data.

Article 9

Access to the EES for entering, amending, erasing and consulting data

1. Access to the EES for entering, amending, erasing and consulting the data referred to in Article 14 and Articles 16 to 20 shall be reserved exclusively for the duly authorised staff of the national authorities of each Member State which are competent for the purposes laid down in Articles 23 to 35. That access shall be limited to the extent necessary for the performance of the tasks of those national authorities in accordance with those purposes and shall be proportionate to the objectives pursued.

2. Each Member State shall designate the competent national authorities which shall be border authorities, visa authorities and immigration authorities for the purposes of this Regulation. The duly authorised staff of the competent national authorities shall have access to the EES to enter, amend, erase or consult data. Each Member State shall communicate a list of those competent national authorities to eu-LISA without delay. That list shall specify for which purpose each authority is to have access to the data stored in the EES.

3. The authorities entitled to consult or access the EES data in order to prevent, detect and investigate terrorist offences or other serious criminal offences shall be designated in accordance with Chapter IV.

Article 10

General principles

1. Each competent authority authorised to access the EES shall ensure that the use of the EES is necessary, appropriate and proportionate.

2. Each competent authority shall ensure that the use of the EES, including the capturing of biometric data, is in accordance with the safeguards laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child. In particular, when capturing a child’s data, the best interests of the child shall be a primary consideration.

Article 11

Automated calculator and obligation to inform third-country nationals on the remaining authorised stay

1. The EES shall include an automated calculator that indicates the maximum duration of authorised stay for third-country nationals registered in the EES.

The automated calculator shall not apply to third-country nationals:

(a) who are members of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

(b) who do not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002.

2. The automated calculator shall inform the competent authorities:

(a) on entry, of the maximum duration of authorised stay of third-country nationals and whether the number of authorised entries of a short-stay visa issued for one or two entries has been exhausted;

(b) during checks or verifications carried out within the territory of the Member States, of the remaining authorised stay or duration of overstay of the third-country nationals;

(c) on exit, of any overstay of third-country nationals;

(d) when examining and deciding on short-stay visa applications, of the maximum remaining duration of authorised stay based on intended entry dates.

3. The border authorities shall inform the third-country national of the maximum duration of authorised stay, which shall take into account the number of entries and the length of stay authorised by the visa in accordance with Article 8(9) of Regulation (EU) 2016/399. That information shall be provided either by the border guard at the moment of the border checks or by means of equipment installed at the border crossing point enabling the third-country national to consult the web service as referred to in Article 13(1) and (2) of this Regulation.

4. For third-country nationals subject to a visa requirement staying on the basis of a short-stay visa or a national short-stay visa in a Member State which does not yet apply the Schengen acquis in full but operates the EES, the automated calculator shall not indicate the authorised stay based on the short-stay visa or the national short-stay visa.

In the case referred to in the first subparagraph, the automated calculator shall only verify:

(a) compliance with the overall limit of 90 days in any 180-day period; and

(b) for short-stay visas, compliance with the period of validity of such visas.

5. For the purpose of verifying whether third-country nationals holding a short-stay visa issued for one or two entries have already used the number of entries authorised by their short-stay visa, the automated calculator shall only take into account entries into the territory of Member States which apply the Schengen acquis in full. That verification shall not be carried out, however, at the entry into the territory of Member States which do not yet apply the Schengen acquis in full but operate the EES.

6. The automated calculator shall also apply to short stays based on a short-stay visa with limited territorial validity issued pursuant to point (b) of Article 25(1) of Regulation (EC) No 810/2009. In that case, the automated calculator shall take into account the authorised stay as defined by such a visa, irrespective of whether the cumulative stay of the third-country national concerned exceeds 90 days in any 180-day period.

Article 12

Information mechanism

1. The EES shall include a mechanism that shall automatically identify which entry/exit records do not have exit data immediately following the date of expiry of an authorised stay and automatically identify records for which the maximum duration of authorised stay was exceeded.

2. For third-country nationals who cross a border on the basis of a valid Facilitated Transit Document issued in accordance with Council Regulation (EC) No 693/2003 ( 8 ) (FTD), the EES shall include a mechanism which shall automatically identify which entry/exit records do not have exit data immediately following the time of expiry of authorised stay and automatically identify records ►C1 for which the maximum duration of authorised stay was exceeded. ◄

3. A list generated by the EES containing the data referred to in Articles 16 and 17 of all persons identified as overstayers shall be available to the competent national authorities designated in accordance with Article 9(2) in order to enable those authorities to adopt appropriate measures.

Article 13

Web service

1. In order to enable third-country nationals to verify at any moment the remaining authorised stay, a secure internet access to a web service hosted by eu-LISA in its technical sites shall allow third-country nationals to provide the data required pursuant to point (b) of Article 16(1) together with their intended date of entry or exit, or both. On that basis, the web service shall provide third-country nationals with an OK/NOT OK answer, as well as the information on the remaining authorised stay.

2. By way of derogation from paragraph 1, for an intended stay in a Member State which does not yet apply the Schengen acquis in full but operates the EES, the web service shall not provide any information on the authorised stay based on a short-stay visa or a national short-stay visa.

In the case referred to in the first subparagraph, the web service shall enable third-country nationals to verify the compliance with the overall limit of 90 days in any 180-day period and to receive information on the remaining authorised stay under that limit. This information shall be provided for stays in the 180-day period preceding the consultation of the web service or their intended date of entry or exit, or both.

3. In order to fulfil their obligation under point (b) of Article 26(1) of the Convention implementing the Schengen Agreement, carriers shall use the web service to verify whether third-country nationals holding a short-stay visa issued for one or two entries have already used the number of entries authorised by their visa. Carriers shall provide the data listed under points (a), (b) and (c) of Article 16(1) of this Regulation. On that basis, the web service shall provide carriers with an OK/NOT OK answer. Carriers may store the information sent and the answer received in accordance with the applicable law. Carriers shall establish an authentication scheme to ensure that only authorised staff may access the web service. It shall not be possible to regard the OK/NOT OK answer as a decision to authorise or refuse entry in accordance with Regulation (EU) 2016/399.

4. For the purpose of implementing Article 26(2) of the Convention implementing the Schengen Agreement or for the purpose of resolving any potential dispute arising from Article 26 of the Convention implementing the Schengen Agreement, eu-LISA shall keep logs of all data processing operations carried out within the web service by carriers. Those logs shall show the date and time of each operation, the data used for interrogation, the data transmitted by the web service and the name of the carrier in question.

Logs shall be stored for a period of two years. Logs shall be protected by appropriate measures against unauthorised access.

5. The web service shall make use of a separate read-only database updated on a daily basis via a one-way extraction of the minimum necessary subset of EES and VIS data. eu-LISA shall be responsible for the security of the web service, for the security of the personal data it contains and for the process of extracting the personal data into the separate read-only database.

6. The web service shall not enable carriers to verify whether third-country nationals holding a national short-stay visa issued for one or two entries have already used the number of entries authorised by that visa.

7. The Commission shall adopt implementing acts concerning the detailed rules on the conditions for the operation of the web service and the data protection and security rules applicable to the web service. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).







CHAPTER II

ENTRY AND USE OF DATA BY COMPETENT AUTHORITIES

Article 14

Procedures for entering data in the EES

1. Border authorities shall verify, in accordance with Article 23, whether a previous individual file has been created in the EES for the third-country national as well as his or her identity. Where a third-country national uses a self-service system for the pre-enrolment of data or for the carrying out of border checks, the verification shall be carried out through the self-service system.

2. Where a previous individual file has been created for the third-country national, the border authority shall, where necessary:

(a) update that individual file, namely the data referred to in Articles 16, 17 and 18, as applicable, and

(b) enter an entry record for each entry and an exit record for each exit in accordance with Articles 16 and 17 or, where applicable, a refusal of entry record in accordance with Article 18.

The records referred to in point (b) of the first subparagraph of this paragraph shall be linked to the individual file of the third-country national concerned.

Where applicable, the data referred to in Article 19(1), (2), (4) and (5) shall be added to the entry/exit record of the third-country national concerned. The travel documents and identities used legitimately by a third-country national shall be added to the third-country national’s individual file.

Where a previous individual file is recorded and the third-country national presents a valid travel document which differs from the one that was previously recorded, the data referred to in point (d) of Article 16(1) and point (b) of Article 17(1) shall also be updated in accordance with Article 15.

3. Where it is necessary to enter or update the entry/exit record data of a visa holder, the border authorities may retrieve from the VIS and import into the EES the data provided for in points (c) to (f) of Article 16(2) of this Regulation in accordance with Article 8 of this Regulation and Article 18a of Regulation (EC) No 767/2008.

4. In the absence of a previous registration of a third-country national in the EES, the border authority shall create an individual file of that third-country national by entering the data referred to in Articles 16(1) and (6), 17(1) and 18(1) as applicable.

5. Where a third-country national uses a self-service system for the pre-enrolment of data, Article 8a of Regulation (EU) 2016/399 shall apply. In that case, the third-country national may pre-enrol the individual file data or, if applicable, the data in the entry/exit record that need to be updated. The data shall be confirmed by the border authorities when the decision to authorise or to refuse entry has been taken in accordance with Regulation (EU) 2016/399. The data listed in points (c) to (f) of Article 16(2) of this Regulation may be retrieved from the VIS and imported into the EES.

6. Where a third-country national uses a self-service system for the carrying out of the border checks, Article 8b of Regulation (EU) 2016/399 shall apply. In that case, the verification referred to in paragraph 1 of this Article shall be carried out through the self-service system.

7. Where a third-country national uses an e-gate for crossing the external borders or the internal borders where controls have not yet been lifted, Article 8b of Regulation (EU) 2016/399 shall apply. In that case, the corresponding registration of the entry/exit record and the linking of that record to the individual file concerned shall be carried out through the e-gate.

8. Without prejudice to Article 20 of this Regulation and Article 12(3) of Regulation (EU) 2016/399, where the short stay of a third-country national who is present on the territory of a Member State starts directly after a stay based on a residence permit or a long-stay visa and no previous individual file has been created, that third-country national may request the competent authorities referred to in Article 9(2) of this Regulation to create an individual file and an entry/exit record by entering the data referred to in Articles 16(1), (2) and (6) and 17(1) of this Regulation. Instead of the data referred to in point (a) of Article 16(2) of this Regulation, those competent authorities shall insert the date of the start of the short stay and, instead of the data referred to in point (b) of Article 16(2) of this Regulation, they shall insert the name of the authority that inserted those data.

Article 15

Facial image of third-country nationals

1. Where it is necessary to create an individual file or to update the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1), the facial image shall be taken live.

2. By way of derogation from paragraph 1, in exceptional cases where the quality and resolution specifications set for the enrolment of the live facial image in the EES cannot be met, the facial image may be extracted electronically from the chip of the electronic Machine Readable Travel Document (eMRTD). In such cases, the facial image shall only be inserted into the individual file after electronic verification that the facial image recorded in the chip of the eMRTD corresponds to the live facial image of the third-country national concerned.

3. Each Member State shall transmit once a year a report on the application of paragraph 2 to the Commission. That report shall include the number of third-country nationals concerned, as well as an explanation of the exceptional cases faced.

4. The facial image of third-country nationals shall have sufficient image resolution and quality to be used in automated biometric matching.

5. Within a period of two years following the start of operations of the EES, the Commission shall produce a report on the quality standards of facial images stored in the VIS and on whether they are such that they enable biometric matching with a view to using facial images stored in the VIS at borders and within the territory of the Member States for the verification of the identity of third-country nationals subject to a visa requirement, without storing such facial images in the EES. The Commission shall transmit that report to the European Parliament and to the Council. That report shall be accompanied, where considered appropriate by the Commission, by legislative proposals, including proposals to amend this Regulation, Regulation (EC) No 767/2008, or both, as regards the use of the facial images of third-country nationals stored in the VIS for the purposes referred to in this paragraph.

Article 16

Personal data of third-country nationals subject to a visa requirement

1. At the borders at which the EES is operated, the border authority shall create the individual file of a third-country national subject to a visa requirement by entering the following data:

(a) surname (family name); first name or names (given names); date of birth; nationality or nationalities; sex;

(b) the type and number of the travel document or documents and the three letter code of the issuing country of the travel document or documents;

(c) the date of expiry of the validity of the travel document or documents;

(d) the facial image as referred to in Article 15.

2. On each entry of a third-country national subject to a visa requirement at a border at which the EES is operated, the following data shall be entered in an entry/exit record:

(a) the date and time of the entry;

(b) the border crossing point of the entry and the authority that authorised the entry;

(c) where applicable, the status of that third-country national indicating that he or she is a third-country national who:

(i) is a member of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

(ii) does not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002;

▼C1

(d) where applicable, the short-stay visa sticker number, including the three letter code of the issuing Member State, the type of short-stay visa, the end date of the maximum duration of the stay as authorised by the short-stay visa, which shall be updated at each entry, and the date of expiry of the validity of the short-stay visa;

▼B

(e) on the first entry on the basis of a short-stay visa, the number of entries and the duration of stay authorised by the short-stay visa as indicated on the short-stay visa sticker;

(f) where applicable, the information indicating that the short-stay visa has been issued with limited territorial validity pursuant to point (b) of Article 25(1) of Regulation (EC) No 810/2009;

(g) for the Member States which do not yet apply the Schengen acquis in full but operate the EES, a notification, where applicable, indicating that the third-country national used a national short-stay visa for the entry.

The entry/exit record referred to in the first subparagraph shall be linked to the individual file of that third-country national using the individual reference number created by the EES upon creation of that individual file.

3. On each exit of a third-country national subject to a visa requirement at a border at which the EES is operated, the following data shall be entered in the entry/exit record:

(a) the date and time of the exit;

(b) the border crossing point of the exit.

Where that third-country national uses a visa other than the visa recorded in the last entry record, the data of the entry/exit record listed in points (d) to (g) of paragraph 2 shall be updated accordingly.

The entry/exit record referred to in the first subparagraph shall be linked to the individual file of that third-country national.

4. Where there is no exit data immediately following the date of expiry of the authorised stay, the entry/exit record shall be identified with a flag by the EES and the data of the third-country national subject to a visa requirement, who has been identified as an overstayer, shall be entered into the list referred to in Article 12.

5. In order to enter or update the entry/exit record of a third-country national subject to a visa requirement, the data provided for in points (c) to (f) of paragraph 2 of this Article may be retrieved from the VIS and imported into the EES by the border authority in accordance with Article 18a of Regulation (EC) No 767/2008.

6. Where a third-country national benefits from the national facilitation programme of a Member State in accordance with Article 8d of Regulation (EU) 2016/399, the Member State concerned shall insert a notification in the individual file of that third-country national specifying the national facilitation programme of the Member State concerned.

7. The specific provisions set out in Annex II shall apply to third-country nationals who cross the border on the basis of a valid FTD.

Article 17

Personal data of visa-exempt third-country nationals

1. The border authority shall create the individual file of visa-exempt third-country nationals by entering the following:

(a) the data provided for in points (a), (b) and (c) of Article 16(1);

(b) the facial image as referred to in Article 15;

(c) fingerprint data from the right hand, where present, and otherwise the corresponding fingerprint data from the left hand; fingerprint data shall have sufficient resolution and quality to be used in automated biometric matching;

(d) where relevant, the data provided for in Article 16(6).

2. For visa-exempt third-country nationals, points (a), (b) and (c) of Article 16(2), points (a) and (b) of Article 16(3) and Article 16(4) shall apply mutatis mutandis.

3. Children under the age of 12 shall be exempt from the requirement to give fingerprints.

4. Persons for whom fingerprinting is physically impossible shall be exempt from the requirement to give fingerprints.

However, where the physical impossibility is of a temporary nature, that fact shall be recorded in the EES and the person shall be required to give the fingerprints on exit or at the subsequent entry. This information shall be deleted from the EES once the fingerprints have been given. The border authorities shall be entitled to request further clarification on the grounds for the temporary impossibility to give fingerprints. Member States shall ensure that appropriate procedures guaranteeing the dignity of the person are in place in the event of difficulties encountered in the capturing of fingerprints.

5. Where the person concerned is exempt from the requirement to give fingerprints pursuant to paragraphs 3 or 4, the specific data field shall be marked as ‘not applicable’.

Article 18

Personal data of third-country nationals who have been refused entry

1. Where a decision has been taken by the border authority, in accordance with Article 14 of and Annex V to Regulation (EU) 2016/399, to refuse the entry of a third-country national for a short stay on the territory of the Member States and where no previous file is recorded in the EES for that third-country national, the border authority shall create an individual file in which it shall enter:

(a) for third-country nationals subject to a visa requirement, the alphanumeric data required pursuant to Article 16(1) of this Regulation and, where relevant, the data referred to in Article 16(6) of this Regulation;

(b) for visa-exempt third-country nationals, the alphanumeric data required pursuant to Article 17(1) of this Regulation.

2. Where the third-country national is refused entry on the basis of a reason corresponding to point B, D or H of Part B of Annex V to Regulation (EU) 2016/399 and where no previous file with biometric data is recorded in the EES for that third-country national, the border authority shall create an individual file in which it shall enter the alphanumeric data required pursuant to Article 16(1) or Article 17(1) of this Regulation, as appropriate, as well as the following data:

(a) for third-country nationals subject to a visa requirement, the facial image referred to in point (d) of Article 16(1) of this Regulation;

(b) for visa-exempt third-country nationals, the biometric data required pursuant to points (b) and (c) of Article 17(1) of this Regulation;

(c) for third-country nationals subject to a visa requirement who are not registered in the VIS, the facial image referred to in point (d) of Article 16(1) of this Regulation and the fingerprint data as referred to point (c) of Article 17(1) of this Regulation.

3. By way of derogation from paragraph 2 of this Article, where the reason corresponding to point H of Part B of Annex V to Regulation (EU) 2016/399 applies and the biometric data of the third-country national are recorded in the SIS alert that results in the refusal of entry, the biometric data of the third-country national shall not be entered in the EES.

4. Where the third-country national is refused entry on the basis of a reason corresponding to point I of Part B of Annex V to Regulation (EU) 2016/399 and where no previous file with biometric data is recorded in the EES for that third-country national, the biometric data shall only be entered in the EES where the entry is refused because the third-country national is considered to be a threat to internal security, including, where appropriate, elements of public policy.

5. Where a third-country national is refused entry on the basis of a reason corresponding to point J of Part B of Annex V to Regulation (EU) 2016/399, the border authority shall create the individual file of that third-country national without adding biometric data. If the third-country national possesses an eMRTD, the facial image shall be extracted from that eMRTD.

6. Where a decision has been taken by the border authority, in accordance with Article 14 of and Annex V to Regulation (EU) 2016/399, to refuse the entry of a third-country national for a short stay to the territory of the Member States, the following data shall be entered in a separate refusal of entry record:

(a) the date and time of refusal of entry;

(b) the border crossing point;

(c) the authority that refused the entry;

(d) the point or points corresponding to the reasons for refusing entry in accordance with Part B of Annex V to Regulation (EU) 2016/399.

In addition, for third-country nationals subject to a visa requirement, the data provided for in points (d) to (g) of Article 16(2) of this Regulation shall be entered in the refusal of entry record.

In order to create or update the refusal of entry record of third-country nationals subject to a visa requirement, the data provided for in points (d), (e) and (f) of Article 16(2) of this Regulation may be retrieved from the VIS and imported into the EES by the competent border authority in accordance with Article 18a of Regulation (EC) No 767/2008.

7. The refusal of entry record provided for in paragraph 6 shall be linked to the individual file of the third-country national concerned.

Article 19

Data to be added where an authorisation for short stay is revoked, annulled or extended

1. Where a decision has been taken to revoke or annul an authorisation for short stay or a visa or to extend the duration of an authorised stay or visa, the competent authority that has taken such a decision shall add the following data to the latest relevant entry/exit record:

(a) the status information indicating that the authorisation for short stay or the visa has been revoked or annulled or that the duration of the authorised stay or the visa has been extended;

(b) the identity of the authority that revoked or annulled the authorisation for short stay or the visa or extended the duration of the authorised stay or the visa;

(c) the place and date of the decision to revoke or annul the authorisation for short stay or the visa or to extend the duration of the authorised stay or the visa;

(d) where applicable, the new visa sticker number, including the three letter code of the issuing country;

(e) where applicable, the period of the extension of the duration of authorised stay;

(f) where applicable, the new expiry date of the authorised stay or the visa.

2. Where the duration of authorised stay has been extended in accordance with Article 20(2) of the Convention implementing the Schengen Agreement, the competent authority that extended the authorised stay shall add the data regarding the period of extension of the authorised stay to the latest relevant entry/exit record and, where applicable, an indication that the authorised stay was extended in accordance with point (b) of Article 20(2) of the Convention implementing the Schengen Agreement.

3. Where a decision has been taken to annul, revoke or extend a visa, the visa authority which has taken the decision shall immediately retrieve the data provided for in paragraph 1 of this Article from the VIS and import them directly into the EES in accordance with Articles 13 and 14 of Regulation (EC) No 767/2008.

4. The entry/exit record shall indicate the grounds for revocation or annulment of the short stay, which shall be:

(a) a return decision adopted pursuant to Directive 2008/115/EC of the European Parliament and of the Council ( 9 );

(b) any other decision taken by the competent authorities of the Member State, in accordance with national law, resulting in the return, removal or voluntary departure of a third-country national who does not fulfil or no longer fulfils the conditions for the entry into or for the stay on the territory of the Member States.

5. The entry/exit record shall indicate the grounds for extending the duration of an authorised stay.

6. When a person has departed or has been removed from the territory of the Member States pursuant to a decision as referred to in paragraph 4 of this Article, the competent authority shall enter the data in accordance with Article 14(2) in the related entry/exit record of that specific entry.

Article 20

Data to be added in case of rebuttal of the presumption that a third-country national does not fulfil the conditions of duration of authorised stay

Without prejudice to Article 22, where no individual file has been created in the EES for a third-country national present on the territory of a Member State or where there is no last relevant entry/exit record for such a third-country national, the competent authorities may presume that the third-country national does not fulfil or no longer fulfils the conditions relating to duration of authorised stay within the territory of the Member States.

In the case referred to in the first paragraph of this Article, Article 12 of Regulation (EU) 2016/399 shall apply and, if the presumption is rebutted in accordance with Article 12(3) of that Regulation, the competent authorities shall:

(a) create an individual file for that third-country national in the EES, if necessary;

(b) update the latest entry/exit record by entering the missing data in accordance with Articles 16 and 17 of this Regulation; or

(c) erase an existing file where Article 35 of this Regulation provides for such erasure.

Article 21

Fall-back procedures where it is technically impossible to enter data or in the event of failure of the EES

1. Where it is technically impossible to enter data in the EES Central System or in the event of a failure of the EES Central System, the data referred to in Articles 16 to 20 shall be temporarily stored in the NUI. Where that is not possible, the data shall be temporarily stored locally in an electronic format. In both cases, the data shall be entered in the EES Central System as soon as the technical impossibility or failure has been remedied. The Member States shall take the appropriate measures and deploy the required infrastructure, equipment and resources to ensure that such temporary local storage may be carried out at any time and for any of their border crossing points.

2. Without prejudice to the obligation to carry out border checks under Regulation (EU) 2016/399, the border authority, in the exceptional situation where it is technically impossible to enter data in both the EES Central System and in the NUI and it is technically impossible to temporarily store the data locally in an electronic format, shall manually store the data referred to in Articles 16 to 20 of this Regulation, with the exception of biometric data, and shall affix an entry or exit stamp in the travel document of the third-country national. That data shall be entered in the EES Central System as soon as technically possible.

Member States shall inform the Commission of the stamping of travel documents in the event of the exceptional situations referred to in the first subparagraph of this paragraph. The Commission shall adopt implementing acts concerning the detailed rules on the information to be provided to the Commission. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

3. The EES shall indicate that data referred to in Articles 16 to 20 were entered as a result of a fall-back procedure and that the individual file created pursuant to paragraph 2 of this Article is missing biometric data. The biometric data shall be entered in the EES at the next border crossing.

Article 22

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 third-country nationals admitted for a short stay have not exceeded the maximum duration of authorised stay and, where relevant, to verify on entry that third-country nationals have not exceeded the number of entries authorised by the short-stay visa issued for one or two entries, the competent border authorities shall take into account the stays in 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 third-country national 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 and the date of entry as stamped in the passport shall be entered in the entry/exit record in accordance with Article 16(2). This rule shall not be limited to the 180 days after the EES has started operations as referred to in paragraph 1 of this Article. In case of a discrepancy between the entry stamp and the EES data, the stamp shall prevail.

Article 23

Use of data for verification at the borders at which the EES is operated

1. Border authorities shall have access to the EES for verifying the identity and previous registration of the third-country national, for updating the EES data where necessary and for consulting the data to the extent required for the carrying out of border checks.

2. While performing the tasks referred to in paragraph 1 of this Article, the border authorities shall have access to search with the data referred to in points (a), (b) and (c) of Article 16(1) and point (a) of Article 17(1).

In addition, for the purposes of consulting the VIS for verification in accordance with Article 18 of Regulation (EC) No 767/2008, for third-country nationals who are subject to a visa requirement, the border authorities shall launch a search in the VIS directly from the EES using the same alphanumeric data or, where applicable, ►C1 consult the VIS in accordance with Article 18(3) of Regulation (EC) No 767/2008. ◄

If the search in the EES with the data set out in the first subparagraph of this paragraph indicates that data on the third-country national are recorded in the EES, the border authorities shall compare the live facial image of the third-country national with the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1) of this Regulation or the border authorities shall, in the case of visa-exempt third-country nationals, proceed to a verification of fingerprints against the EES and, in the case of third-country nationals subject to a visa requirement, proceed to a verification of fingerprints directly against the VIS in accordance with Article 18 of Regulation (EC) No 767/2008. For the verification of fingerprints against the VIS for visa holders, the border authorities may launch the search in the VIS directly from the EES as provided in Article 18(6) of that Regulation.

If the verification of the facial image fails, the verification shall be carried out using fingerprints and vice versa.

3. If the search with the data set out in paragraph 2 indicates that data on the third-country national are recorded in the EES, the border authority shall be given access to consult the data of the individual file of that third-country national and the entry/exit record or records or refusal of entry record or records linked to it.

4. Where the search with the alphanumeric data set out in paragraph 2 of this Article indicates that data on the third-country national are not recorded in the EES, where a verification of the third-country national pursuant to paragraph 2 of this Article fails or where there are doubts as to the identity of the third-country national, the border authorities shall have access to data for identification in accordance with Article 27 of this Regulation.

In addition to the identification referred to in first subparagraph of this paragraph, the following provisions shall apply:

(a) for third-country nationals who are subject to a visa requirement, if the search in the VIS with the data referred to in Article 18(1) of Regulation (EC) No 767/2008 indicates that data on the third-country national are recorded in the VIS, a verification of fingerprints against the VIS shall be carried out in accordance with Article 18(5) of Regulation (EC) No 767/2008. For this purpose, the border authority may launch a search from the EES to the VIS as provided for in Article 18(6) of Regulation (EC) No 767/2008. Where a verification of a third-country national pursuant to paragraph 2 of this Article failed, the border authorities shall access the VIS data for identification in accordance with Article 20 of Regulation (EC) No 767/2008.

(b) for third-country nationals who are not subject to a visa requirement and for whom no data are found in the EES further to the identification run in accordance with Article 27 of this Regulation, the VIS shall be consulted in accordance with Article 19a of Regulation (EC) No 767/2008. The border authority may launch a search from the EES to the VIS as provided for in Article 19a of Regulation (EC) No 767/2008.

5. For third-country nationals whose data are already recorded in the EES but whose individual file was created in the EES by a Member State which does not yet apply the Schengen acquis in full but operates the EES and whose data were entered in the EES on the basis of a national short-stay visa, the border authorities shall consult the VIS in accordance with point (a) of the second subparagraph of paragraph 4 when, for the first time after the creation of the individual file, the third-country national intends to cross the border of a Member State which applies the Schengen acquis in full and operates the EES.







CHAPTER III

USE OF THE EES BY OTHER AUTHORITIES

Article 24

Use of the EES for examining and deciding on visas

1. Visa authorities shall consult the EES for examining visa applications and adopting decisions relating to those applications, including decisions to annul, revoke or extend the period of validity of an issued visa, in accordance with Regulation (EC) No 810/2009.

In addition, visa authorities of a Member State which does not yet apply the Schengen acquis in full but operates the EES shall consult the EES when examining national short-stay visa applications and adopting decisions relating to those applications, including decisions to annul, revoke or extend the period of validity of an issued national short-stay visa.

2. Visa authorities shall be given access to search the EES directly from the VIS with one or several of the following data:

(a) the data referred to in points (a), (b) and (c) of Article 16(1);

(b) the short-stay visa sticker number, including the three letter code of the issuing Member State referred to in point (d) of Article 16(2);

(c) the fingerprint data or the fingerprint data combined with the facial image.

3. If the search with the data set out in paragraph 2 indicates that data on the third-country national are recorded in the EES, visa authorities shall be given access to consult the data of the individual file of that third-country national and the entry/exit records, as well as any refusal of entry records linked to that individual file. Visa authorities shall be given access to consult the automated calculator in order to check the maximum remaining duration of an authorised stay. Visa authorities shall also be given access to consult the EES and the automated calculator when examining and taking decisions on new visa applications, so as to automatically establish the maximum duration of authorised stay.

4. Visa authorities of a Member State which does not yet apply the Schengen acquis in full but operates the EES shall be given access to search the EES with one or several of the data set out in paragraph 2. If the search indicates that data on the third-country national are recorded in the EES, they shall be given access to consult the data of the individual file of that third-country national and the entry/exit records, as well as any refusal of entry records linked to that individual file. Visa authorities of a Member State which does not yet apply the Schengen acquis in full but operates the EES shall be given access to consult the automated calculator in order to establish the maximum remaining duration of an authorised stay. Visa authorities shall also be given access to consult the EES and the automated calculator when examining and taking decisions on new visa applications, so as to establish the maximum duration of authorised stay.

Article 25

Use of the EES for examining applications for access to national facilitation programmes

1. The competent authorities referred to in Article 8d of Regulation (EU) 2016/399 shall consult the EES for the purposes of the examination of applications for access to national facilitation programmes referred to in that Article and the adoption of decisions relating to those applications, including decisions to refuse, revoke or extend the period of validity of access to the national facilitation programmes in accordance with that Article.

2. The competent authorities shall be given access to search with one or several of the following:

(a) the data referred to in points (a), (b) and (c) of Article 16(1) or the data referred to in point (a) of Article 17(1);

(b) the fingerprint data or the fingerprint data combined with the facial image.

3. If the search with the data set out in paragraph 2 indicates that data on the third-country national are recorded in the EES, the competent authority shall be given access to consult the data of the individual file of that third-country national and the entry/exit records, as well as any refusal of entry records linked to that individual file.

Article 26

Access to data for verification within the territory of the Member States

1. For the purpose of verifying the identity of the third-country national, or checking or verifying whether the conditions for entry to, or stay on, the territory of the Member States are fulfilled, or both, the immigration authorities of the Member States shall have access to search with the data referred to in points (a), (b) and (c) of Article 16(1) and point (a) of Article 17(1).

If the search indicates that data on the third-country national are recorded in the EES, the immigration authorities may:

(a) compare the live facial image of the third-country national with the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1) of this Regulation; or

(b) verify the fingerprints of visa-exempt third-country nationals in the EES and of third-country nationals subject to a visa requirement in the VIS in accordance with Article 19 of Regulation (EC) No 767/2008.

2. If the search with the data set out in paragraph 1 indicates that data on the third-country national are recorded in the EES, the immigration authorities shall be given access to consult the automated calculator, the data of the individual file of that third-country national, the entry/exit record or records and any refusal of entry record linked to that individual file.

3. Where the search with the data set out in paragraph 1 of this Article indicates that data on the third-country national are not recorded in the EES, where verification of the third-country national fails or where there are doubts as to the identity of the third-country national, the immigration authorities shall have access to data for identification in accordance with Article 27.

Article 27

Access to data for identification

1. The border authorities or immigration authorities shall have access to search with the fingerprint data or the fingerprint data combined with the facial image, for the sole purpose of identifying any third-country national who may have been registered previously in the EES under a different identity or who does not fulfil or no longer fulfils the conditions for entry to, or for stay on, the territory of the Member States.

Where the search with the fingerprint data or with the fingerprint data combined with the facial image indicates that data on that third-country national are not recorded in the EES, access to data for identification shall be carried out in the VIS in accordance with Article 20 of Regulation (EC) No 767/2008. At borders at which the EES is operated, prior to any identification against the VIS, the competent authorities shall first access the VIS in accordance with Articles 18 or 19a of Regulation (EC) No 767/2008.

Where the fingerprints of that third-country national cannot be used or the search with the fingerprint data or with the fingerprint data combined with the facial image has failed, the search shall be carried out with all or some of the data referred to in points (a), (b) and (c) of Article 16(1) and point (a) of Article 17(1).

2. If the search with the data set out in paragraph 1 indicates that data on the third-country national are recorded in the EES, the competent authority shall be given access to consult the data of the individual file and the entry/exit records and refusal of entry records linked to it.

Article 28

Keeping of data retrieved from the EES

Data retrieved from the EES pursuant to this Chapter may be kept in national files only where necessary in an individual case, in accordance with the purpose for which they were retrieved and with relevant Union law, in particular on data protection, and for no longer than strictly necessary in that individual case.







CHAPTER IV

PROCEDURE AND CONDITIONS FOR ACCESS TO THE EES FOR LAW ENFORCEMENT PURPOSES

Article 29

Member States’ designated authorities

1. Member States shall designate the authorities which are entitled to consult the EES data in order to prevent, detect and investigate terrorist offences or other serious criminal offences.

2. Each Member State shall keep a list of the designated authorities. Each Member State shall notify eu-LISA and the Commission of its designated authorities and may at any time amend or replace its notification.

3. Each Member State shall designate a central access point which shall have access to the EES. The central access point shall verify that the conditions to request access to the EES laid down in Article 32 are fulfilled.

The designated authority and the central access point may be part of the same organisation if permitted under national law, but the central access point shall act fully independently of the designated authorities when performing its tasks under this Regulation. The central access point shall be separate from the designated authorities and shall not receive instructions from them as regards the outcome of the verification which it shall carry out independently.

Member States may designate more than one central access point to reflect their organisational and administrative structures in the fulfilment of their constitutional or legal requirements.

4. Member States shall notify eu-LISA and the Commission of their central access points and may at any time amend or replace their notifications.

5. At national level, each Member State shall keep a list of the operating units within the designated authorities that are authorised to request access to EES data through the central access points.

6. Only duly empowered staff of the central access points shall be authorised to access the EES in accordance with Articles 31 and 32.

Article 30

Europol

1. Europol shall designate one of its operating units as the ‘Europol designated authority’ and shall authorise it to request access to the EES through the Europol central access point referred to in paragraph 2 in order to support and strengthen action by Member States in preventing, detecting and investigating terrorist offences or other serious criminal offences.

2. Europol shall designate a specialised unit with duly empowered Europol officials as the Europol central access point. The Europol central access point shall verify that the conditions to request access to the EES laid down in Article 33 are fulfilled.

The Europol central access point shall act independently when performing its tasks under this Regulation and shall not receive instructions from the Europol designated authority as regards the outcome of the verification.

Article 31

Procedure for access to the EES for law enforcement purposes

1. An operating unit as referred to in Article 29(5) shall submit a reasoned electronic or written request to a central access point as referred to in Article 29(3) for access to EES data. Upon receipt of a request for access, such a central access point shall verify whether the conditions for access referred to in Article 32 are fulfilled. If the conditions for access are fulfilled, such a central access point shall process the request. The EES data accessed shall be transmitted to an operating unit as referred to in Article 29(5) in such a way that the security of the data is not compromised.

2. In a case of urgency, where there is a need to prevent an imminent danger to the life of a person associated with a terrorist offence or another serious criminal offence, a central access point as referred to in Article 29(3) shall process the request immediately and shall only verify ex post whether all the conditions referred to in Article 32 are fulfilled, including whether a case of urgency actually existed. The ex post verification shall take place without undue delay and in any event no later than seven working days after the processing of the request.

3. Where an ex post verification determines that the access to EES data was not justified, all the authorities that accessed such data shall erase the information accessed from the EES and shall inform the relevant central access point of the Member State in which the request was made of the erasure.

Article 32

Conditions for access to EES data by designated authorities

1. Designated authorities may access the EES for consultation where all of the following conditions are met:

(a) access for consultation is necessary for the purpose of the prevention, detection ►C1 or investigation of a terrorist offence or another serious criminal offence; ◄

(b) access for consultation is necessary and proportionate in a specific case;

(c) evidence or reasonable grounds exist to consider that the consultation of the EES data will contribute to the prevention, detection or investigation of any of the criminal offences in question, in particular where there is a substantiated suspicion that the suspect, perpetrator or victim of a terrorist offence or other serious criminal offence falls under a category covered by this Regulation.

2. Access to the EES as a tool for the purpose of identifying an unknown suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed where, in addition to the conditions listed in paragraph 1, the following conditions are met:

(a) a prior search has been conducted in national databases; and

(b) in the case of searches with fingerprints, a prior search has been launched in the automated fingerprint identification system of the other Member States under Decision 2008/615/JHA where comparisons of fingerprints are technically available, and either that search has been fully carried out, or that search has not been fully carried out within two days of being launched.

However, the additional conditions in points (a) and (b) of the first subparagraph shall not apply where there are reasonable grounds to believe that a comparison with the systems of the other Member States would not lead to the verification of the identity of the data subject or in a case of urgency where there is a need to prevent an imminent danger to the life of a person associated with a terrorist offence or another serious criminal offence. Those reasonable grounds shall be included in the electronic or written request sent by the operating unit of the designated authority to the central access point.

A request for consultation of the VIS on the same data subject may be submitted in parallel to a request for consultation of the EES in accordance with the conditions laid down in Council Decision 2008/633/JHA ( 10 ).

3. Access to the EES as a tool to consult the travel history or the periods of stay on the territory of the Member States of a known suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed when the conditions listed in paragraph 1 are met.

4. Consultation of the EES for the purpose of identification as referred to in paragraph 2 shall be limited to searching in the individual file with any of the following EES data:

(a) fingerprints of visa-exempt third-country nationals or of holders of an FTD. In order to launch this consultation of the EES, latent fingerprints may be used and may therefore be compared with the fingerprints stored in the EES;

(b) facial images.

Consultation of the EES, in the event of a hit, shall give access to any other data taken from the individual file as listed in Article 16(1) and (6), Article 17(1) and Article 18(1).

5. Consultation of the EES for the travel history of the third-country national concerned shall be limited to searching with one or several of the following EES data in the individual file, in the entry/exit records or in the refusal of entry records:

(a) surname (family name); first name or names (given names); date of birth; nationality or nationalities; sex;

(b) type and number of travel document or documents, three letter code of the issuing country and date of expiry of the validity of the travel document;

(c) visa sticker number and the date of expiry of the validity of the visa;

(d) fingerprints, including latent fingerprints;

(e) facial image;

(f) date and time of entry, authority that authorised the entry and entry border crossing point;

(g) date and time of exit and exit border crossing point.

Consultation of the EES shall, in the event of a hit, give access to the data listed in the first subparagraph as well as to any other data taken from the individual file, the entry/exit records and refusal of entry records, including data related to the revocation or extension of an authorisation for short stay in accordance with Article 19.

Article 33

Procedure and conditions for access to EES data by Europol

1. Europol shall have access to consult the EES where all the following conditions are met:

(a) the consultation is necessary to support and strengthen action by Member States in preventing, detecting or investigating terrorist offences or other serious criminal offences falling under Europol’s mandate;

(b) the consultation is necessary and proportionate in a specific case;

(c) evidence or reasonable grounds exist to consider that the consultation of the EES data will contribute to the prevention, detection or investigation of any of the criminal offences in question, in particular where there is a substantiated suspicion that the suspect, perpetrator or victim of a terrorist offence or other serious criminal offence falls under a category covered by this Regulation.

2. Access to the EES as a tool for the purpose of identifying an unknown suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed where the conditions listed in paragraph 1 are met and the consultation, as a matter of priority, of the data stored in the databases that are technically and legally accessible by Europol has not made it possible to identify the person in question.

A request for consultation of the VIS on the same data subject may be submitted in parallel to a request for consultation of the EES in accordance with the conditions laid down in Decision 2008/633/JHA.

3. The conditions laid down in Article 32(3), (4) and (5) shall apply accordingly.

4. The Europol designated authority may submit a reasoned electronic request for the consultation of all EES data or a specific set of EES data to the Europol central access point referred to in Article 30(2). Upon receipt of a request for access, the Europol central access point shall verify whether the conditions for access set out in paragraphs 1 and 2 of this Article are fulfilled. If all conditions for access are fulfilled, the duly authorised staff of the Europol central access point shall process the requests. The EES data accessed shall be transmitted to the Europol designated authority in such a way that the security of the data is not compromised.

5. Europol shall only process information obtained from a consultation of EES data subject to the authorisation of the Member State of origin. That authorisation shall be obtained via the Europol national unit of that Member State.







CHAPTER V

RETENTION AND AMENDMENT OF THE DATA

Article 34

Data retention period

1. Each entry/exit record or refusal of entry record linked to an individual file shall be stored in the EES Central System for three years following the date of the exit record or of the refusal of entry record, as applicable.

2. Each individual file together with the linked entry/exit record or records or refusal of entry records shall be stored in the EES Central System for three years and one day following the date of the last exit record or of the refusal of entry record if there is no entry record within three years from the date of the last exit record or refusal of entry record.

3. If there is no exit record following the date of expiry of the period of authorised stay, the data shall be stored for a period of five years following the date of expiry of the period of authorised stay. The EES shall automatically inform the Member States three months in advance of the scheduled erasure of data on overstayers in order to enable them to adopt the appropriate measures.

4. By way of derogation from paragraph 1, each entry/exit record registered for third-country nationals who have the status referred to in point (b) of Article 2(1) shall be stored in the EES for a maximum of one year after the exit of such third-country nationals. If there is no exit record the data shall be stored for a period of five years from the date of the last entry record.

5. Upon expiry of the retention period referred to in paragraphs 1 to 4, the data in question shall automatically be erased from the EES Central System.

Article 35

Amendment of data and advance data erasure

1. The Member State responsible shall have the right to amend data which it has entered in the EES by rectifying, completing or erasing the data.

2. If the Member State responsible has evidence to suggest that data recorded in the EES are factually inaccurate or incomplete or that data were processed in the EES in breach of this Regulation, it shall check the data concerned and shall, if necessary, rectify or complete them in, or erase them from, the EES without delay and, where applicable, from the list of identified persons referred to in Article 12(3). The data may also be checked and rectified, completed or erased at the request of the person concerned in accordance with Article 52.

3. By way of derogation from paragraphs 1 and 2 of this Article, where a Member State other than the Member State responsible has evidence to suggest that data recorded in the EES are factually inaccurate or incomplete or that data were processed in the EES in breach of this Regulation, it shall check the data concerned, provided it is possible to do so without consulting the Member State responsible and shall, if necessary, rectify or complete them in, or erase them from, the EES without delay and, where applicable, from the list of identified persons referred to in Article 12(3). Where it is not possible to check the data without consulting the Member State responsible, it shall contact the authorities of the Member State responsible within seven days, following which the Member State responsible shall check the accuracy of the data and the lawfulness of their processing within one month. The data may also be checked and rectified, completed or erased at the request of the third-country national concerned in accordance with Article 52.

4. Where a Member State has evidence to suggest that visa-related data recorded in the EES are factually inaccurate or incomplete or that such data were processed in the EES in breach of this Regulation, it shall first check the accuracy of those data against the VIS and shall, if necessary, rectify or complete them in, or erase them from, the EES. Where the data recorded in the VIS are the same as those recorded in the EES, it shall inform the Member State responsible for entering those data in the VIS immediately through the infrastructure of the VIS in accordance with Article 24(2) of Regulation (EC) No 767/2008. The Member State responsible for entering the data in the VIS shall check those data and shall, if necessary, immediately rectify or complete them in, or erase them from, the VIS and inform the Member State concerned which shall, if necessary, rectify or complete them in, or erase them from, the EES without delay and, where applicable, the list of identified persons referred to in Article 12(3).

5. The data of identified persons referred to in Article 12 shall be erased without delay from the list referred to in that Article and shall be rectified or completed in the EES where the third-country national concerned provides evidence, in accordance with the national law of the Member State responsible or of the Member State to which the request has been made, that he or she was forced to exceed the duration of authorised stay due to unforeseeable and serious events, that he or she has acquired a legal right to stay or in case of errors. Without prejudice to any available administrative or non-judicial remedy, that third-country national shall have access to an effective judicial remedy to ensure the data are rectified, completed or erased.

6. Where a third-country national has acquired the nationality of a Member State or has fallen under the scope of Article 2(3) before the expiry of the applicable period referred to in Article 34, the individual file and the entry/exit records linked to that individual file in accordance with Articles 16 and 17 and the refusal of entry records linked to that individual file in accordance with Article 18 shall, without delay, and in any event not later than five working days from the date on which that third-country national has acquired the nationality of a Member State or has fallen under the scope of Article 2(3) before the expiry of the period referred to in Article 34, be erased from the EES, as well as, where applicable, from the list of identified persons referred to in Article 12(3), by:

(a) the Member State the nationality of which he or she has acquired; or

(b) the Member State that issued the residence permit or card or long-stay visa.

Where a third-country national has acquired the nationality of Andorra, Monaco or San Marino ►C1 or where a third-country national is in possession of a passport issued by the Vatican City State or the Holy See, he or she shall inform ◄ the competent authorities of the Member State he or she next enters of that change. That Member State shall erase his or her data without delay from the EES. The third-country national in question shall have access to an effective judicial remedy to ensure that the data are erased.

7. The EES Central System shall immediately inform all Member States of the erasure of EES data and where applicable from the list of identified persons referred to in Article 12(3).

8. Where a Member State other than the Member State responsible has rectified, completed or erased data in accordance with this Regulation, that Member State shall become the Member State responsible for the rectification, completion or erasure. The EES shall record all rectifications, completions and erasures of data.







CHAPTER VI

DEVELOPMENT, OPERATION AND RESPONSIBILITIES

Article 36

Adoption of implementing acts by the Commission prior to development

The Commission shall adopt the implementing acts necessary for the development and technical implementation of the EES Central System, the NUIs, the Communication Infrastructure, the web service referred to in Article 13 and the data repository referred to in Article 63(2), in particular measures for:

(a) the specifications for the quality, resolution and use of fingerprints for biometric verification and identification in the EES;

(b) the specifications for the quality, resolution and use of the facial image for biometric verification and identification in the EES, including where taken live or extracted electronically from the eMRTD;

(c) entering the data in accordance with Articles 16 to 20;

(d) accessing the data in accordance with Articles 23 to 33;

(e) amending, erasing and advance erasure of data in accordance with Article 35;

(f) keeping and accessing the logs in accordance with Article 46;

(g) performance requirements, including the minimum specifications for technical equipment and requirements regarding the biometric performance of the EES, in particular in terms of the required False Positive Identification Rate, False Negative Identification Rate and Failure To Enrol Rate;

(h) the specifications and conditions for the web service referred to in Article 13, including specific provisions for the protection of the data where provided by or to carriers;

(i) the establishment and the high level design of interoperability as referred to in Article 8;

(j) the specifications and conditions for the data repository referred in Article 63(2);

(k) the establishment of the list of identified persons referred to in Article 12(3) and the procedure to make that list available to Member States;

(l) the specifications for technical solutions to connect central access points in accordance with Articles 31, 32 and 33 and for a technical solution to collect the statistical data required pursuant to Article 72(8).

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

For the adoption of the implementing acts set out in point (i) of the first paragraph of this Article, the Committee set up by Article 68 of this Regulation shall consult the VIS Committee set up by Article 49 of Regulation (EC) No 767/2008.

Article 37

Development and operational management

1. eu-LISA shall be responsible for the development of the EES Central System, the NUIs, the Communication Infrastructure and the Secure Communication Channel between the EES Central System and the VIS Central System. eu-LISA shall also be responsible for the development of the web service referred to in Article 13 and the data repository referred to in Article 63(2) in accordance with the detailed rules referred to in Articles 13(7) and 63(2) and the specifications and conditions adopted pursuant to points (h) and (j) of the first paragraph of Article 36.

eu-LISA shall define the design of the physical architecture of the EES including its Communication Infrastructure, as well as the technical specifications and their evolution regarding the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 of this Regulation and the data repository referred to in Article 63(2) of this Regulation. Those technical specifications shall be adopted by eu-LISA’s Management Board, subject to a favourable opinion of the Commission. eu-LISA shall also implement any necessary adaptations to the VIS deriving from the establishment of interoperability with the EES as well as from the implementation of the amendments to Regulation (EC) No 767/2008 set out in Article 61 of this Regulation.

eu-LISA shall develop and implement the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 and the data repository referred to Article 63(2) as soon as possible after the adoption by the Commission of the measures provided for in Article 36.

The development shall consist of the elaboration and implementation of the technical specifications, testing and overall project coordination.

When developing, and when implementing, the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 and the data repository referred to in Article 63(2), the tasks of eu–LISA shall also be to:

(a) perform a security risk assessment;

(b) follow the principles of privacy by design and by default during the entire lifecycle of the development of the EES;

(c) conduct a security risk assessment regarding the interoperability with the VIS referred to in Article 8 and assess the required security measures needed for the implementation of the interoperability with the VIS.

2. During the designing and development phase, a Programme Management Board composed of a maximum of ten members shall be established. It shall be composed of seven members appointed by eu-LISA’s Management Board from among its members or alternate members, the Chair of the EES Advisory Group referred to in Article 69, a member representing eu-LISA appointed by its Executive Director and one member appointed by the Commission. The members appointed by eu-LISA’s Management Board shall be elected only from those Member States which are fully bound under Union law by the legislative instruments governing the development, establishment, operation and use of all the large-scale IT systems managed by eu-LISA and which comply with the conditions set out in Article 66(2).

The Programme Management Board shall meet regularly and at least three times per quarter. It shall ensure the adequate management of the design and development phase of the EES and ensure the consistency between central and national EES projects.

The Programme Management Board shall submit written reports every month to eu-LISA’s Management Board on the progress of the project. The Programme Management Board shall have no decision-making power nor any mandate to represent the members of eu-LISA’s Management Board.

eu-LISA’s Management Board shall establish the rules of procedure of the Programme Management Board which shall include in particular rules on:

(a) its chairmanship;

(b) meeting venues;

(c) the preparation of meetings;

(d) the admission of experts to meetings;

(e) communication plans ensuring full information to non-participating members of eu-LISA’s Management Board.

The chairmanship of the Programme Management Board shall be held by a Member State which is fully bound under Union law by the legislative instruments governing the development, establishment, operation and use of all the large-scale IT systems managed by eu-LISA.

All travel and subsistence expenses incurred by the members of the Programme Management Board shall be paid by eu-LISA and Article 10 of the eu-LISA Rules of Procedure shall apply mutatis mutandis. eu-LISA shall provide the Programme Management Board with a secretariat.

During the designing and development phase, the EES Advisory Group referred to in Article 69 shall be composed of national EES project managers and chaired by eu-LISA. It shall meet regularly and at least three times per quarter until the start of operations of the EES. It shall report after each meeting to the Programme Management Board. It shall provide the technical expertise to support the tasks of the Programme Management Board and shall follow-up on the state of preparation of the Member States.

3. eu-LISA shall be responsible for the operational management of the EES Central System, the NUIs and the Secure Communication Channel between the EES Central System and the VIS Central System. It shall ensure, in cooperation with the Member States, that at all times the best available technology, subject to a cost-benefit analysis, is used for the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 and the data repository referred to Article 63(2). eu-LISA shall also be responsible for the operational management of the Communication Infrastructure between the EES Central System and the NUIs, for the web-service referred to in Article 13 and the data repository referred to Article 63(2).

Operational management of the EES shall consist of all the tasks necessary to keep the EES functioning 24 hours a day, 7 days a week in accordance with this Regulation, in particular the maintenance work and technical developments necessary to ensure that the EES functions at a satisfactory level of operational quality, in particular as regards the response time for interrogation of the EES Central System by border authorities, in accordance with the technical specifications.

4. Without prejudice to Article 17 of the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 ( 11 ), eu-LISA shall ensure that those members of its staff who are required to work with EES data or with data stored in the EES apply appropriate rules of professional secrecy or other equivalent duties of confidentiality. That obligation shall also apply after such staff leave office or employment or after the termination of their activities.

Article 38

Responsibilities of Member States and Europol

1. Each Member State shall be responsible for:

(a) the integration of the existing national border infrastructure and its connection to the NUI;

(b) the organisation, management, operation and maintenance of its existing national border infrastructure and of its connection to the EES for the purpose of Article 6 with the exception of Article 6(2);

(c) the organisation of central access points and their connection to the NUI for the purpose of law enforcement;

(d) the management of, and arrangements for, access by the duly authorised staff, and by the duly empowered staff, of the competent national authorities to the EES in accordance with this Regulation and the creation and regular update of a list of those staff and their profiles.

2. Each Member State shall designate a national authority, which shall provide the competent authorities referred to in Article 9(2) with access to the EES. Each Member State shall connect that national authority to the NUI. Each Member State shall connect their respective central access points referred to in Article 29 to the NUI.

3. Each Member State shall use automated procedures for processing EES data.

4. Member States shall ensure that the technical performance of the border control infrastructure, its availability, the duration of the border checks and the data quality are closely monitored in order to ensure that they meet the overall requirements for the proper functioning of the EES and an efficient border check procedure.

5. Before being authorised to process data stored in the EES, the staff of the authorities having a right to access the EES shall be given appropriate training on, in particular, data security and data protection rules, as well as on relevant fundamental rights.

6. Member States shall not process the data in or from the EES for purposes other than those laid down in this Regulation.

7. Europol shall assume the responsibilities provided for in point (d) of paragraph 1 and in paragraphs 3, 5 and 6. It shall connect, and be responsible for the connection of, the Europol central access point to the EES.

Article 39

Responsibility for data processing

1. In relation to the processing of personal data in the EES, each Member State shall designate the authority which is to be considered as controller in accordance with point (7) of Article 4 of Regulation (EU) 2016/679 and which shall have central responsibility for the processing of data by that Member State. Each Member State shall communicate the details of that authority to the Commission.

Each Member State shall ensure that the data collected and recorded in the EES is processed lawfully and, in particular, that only duly authorised staff have access to the data for the performance of their tasks. The Member State responsible shall ensure, in particular, that the data are:

(a) collected lawfully and in full respect of the human dignity of the third-country national concerned;

(b) registered lawfully in the EES;

(c) accurate and up-to-date when they are transmitted to the EES.

2. eu-LISA shall ensure that the EES is operated in accordance with this Regulation and the implementing acts referred to in Article 36. In particular, eu-LISA shall:

(a) take the necessary measures to ensure the security of the EES Central System and the Communication Infrastructure between the EES Central System and the NUI, without prejudice to the responsibilities of the Member