COMMISSION IMPLEMENTING DECISION (EU) 2019/327

of 25 February 2019

laying down measures for accessing the data in the Entry/Exit System (EES)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 Regulation (EC) No 767/2008 and (EU) No 1077/2011 (1), and in particular point (d) of the first paragraph of Article 36 thereof,

Whereas:

(1) Regulation (EU) 2017/2226 established the Entry/Exit System (EES) as a system which registers electronically the time and place of entry and exit of third-country nationals admitted for a short stay to the territory of the Member States and which calculates the duration of their authorised stay.

(2) The EES aims to improve the management of external borders, to prevent irregular immigration and to facilitate the management of migration flows. The EES should, in particular, contribute to the identification of any person who does not fulfil or no longer fulfils the conditions of the authorised stay on the territory of the Member States. Additionally, the EES should contribute to the prevention, detection and investigation of terrorist offences and of other serious criminal offences.

(3) Prior to the development of the EES it is necessary to adopt measures for the development and technical implementation of the EES.

(4) Based on those measures, the European agency for the operational management of large-scale information systems in the area of freedom, security and justice should then be able to define the design of the physical architecture of the EES including its Communication Infrastructure, as well as the technical specifications of the system and to develop the EES.

(5) The measures laid down by the present Decision for the development and technical implementation of the EES should be completed by the Technical Specifications and the Interface Control Document of the EES which will be developed by the European agency for the operational management of large-scale information systems in the area of freedom, security and justice.

(6) This Decision is without prejudice to the application of Directive 2004/38/EC of the European Parliament and of the Council (2).

(7) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark did not take part in the adoption of Regulation (EU) 2017/2226 and is not bound by it or subject to its application. However, given that Regulation (EU) 2017/2226 builds upon the Schengen acquis, Denmark, in accordance with Article 4 of that Protocol, notified on 30 May 2018 its decision to implement Regulation (EU) 2017/2226 in its national law. Denmark is therefore bound under international law to implement this Decision.

(8) This Decision constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (3); the United Kingdom is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(9) This Decision constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (4); Ireland is therefore not taking part in the adoption of this Decision and is not bound by it or subject to its application.

(10) As regards Iceland and Norway, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latter's association with the implementation, application and development of the Schengen acquis (5), which fall within the area referred to in Article 1, point A of Council Decision 1999/437/EC (6).

(11) As regards Switzerland, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (7), which fall within the area referred to in Article 1, point A of Decision 1999/437/EC, read in conjunction with Article 3 of Council Decision 2008/146/EC (8).

(12) As regards Liechtenstein, this Decision constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (9) which fall within the area referred to in Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU (10).

(13) As regards Cyprus, Bulgaria, Romania and Croatia, the operation of the EES requires the granting of passive access to the VIS and the putting into effect of all the provisions of the Schengen acquis relating to the SIS in accordance with the relevant Council Decisions. Those conditions can only be met once the verification in accordance with the applicable Schengen evaluation procedure has been successfully completed. Therefore, the EES should be operated only by those Member States which fulfil those conditions by the start of operations of the EES. Member States not operating the EES from the initial start of operations should be connected to the EES in accordance with the procedure set out in Regulation (EU) 2017/2226 as soon as all of those conditions are met.

(14) The European Data Protection Supervisor delivered an opinion on 20 July 2018.

(15) The measures provided for in this Decision are in accordance with the opinion of the Smart Borders Committee,

HAS ADOPTED THIS DECISION:

Article 1 Access to the EES by national authorities Competent national authorities shall have access to the EES for verifying the identity and previous registration of the third-country national and for consulting the data required for the performance of their duty. For this purpose, EES allows the searches to be executed by means of alphanumeric data (data referred to in Article 16(1)(a), (b) and (c), Article 16(2)(d) and Article 17(1)(a) of Regulation (EU) 2017/2226) and biometric data (data referred to in 16(1)(f) and 17(1) (b) of Regulation (EU) 2017/2226).

Article 2 Alphanumeric searches 1. Alphanumeric searches referred to in Article 23(2) of Regulation (EU) 2017/2226 Border authorities shall have access to search with the following data: (a) surname (family name); first name or names (given names); (b) date of birth; nationality or nationalities; sex; (c) 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; (d) the date of expiry of the validity of the travel document or documents. All data listed in the first subparagraph shall be used to initiate search. The data listed under point (a) may be searched in inexact mode while the other data shall be searched in exact mode. The CS-EES shall ensure that if there is a match based on the data listed under the points (a) and (b) of the first paragraph, the corresponding file shall be returned by the system even if there is no match based on the data listed under points (c) and (d) of the first subparagraph. 2. Alphanumeric searches referred to in Article 24 of Regulation (EU) 2017/2226 Visa authorities of a Member State which does not yet apply the Schengen acquis in full but operates the EES shall have access to the search with 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, the date of expiry of the validity of the travel document or documents; (c) the short-stay visa sticker number, including the three-letter code of the issuing Member State. Any combination of the data listed in the first subparagraph may be used as long as: — the date of birth and the sex is used in combination with other data; — the date of expiry of the validity of the travel document or documents is used together with the number of the travel document. The data listed in points (a), (b) and (c) of the first subparagraph may be searched in inexact mode. 3. Alphanumeric searches referred to in Article 25(2) of Regulation (EU) 2017/2226 Competent authorities shall have access to search with 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. Any combination of the data listed in the first subparagraph may be used as long as: — the date of birth and the sex is used in combination with other data; — the date of expiry of the validity of the travel document or documents is used together with the number of the travel document. The data listed in points (a), (b) and (c) of the first subparagraph may be searched in inexact mode. 4. Alphanumeric searches referred to in Article 26(1) of Regulation (EU) 2017/2226 Immigration authorities shall have access to search with 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. All data listed in the first subparagraph shall be used when performing this search. The data listed in points (a), (b) and (c) of the first subparagraph may be searched in inexact mode. 5. Alphanumeric searches referred to in Article 23(2) and the third subparagraph of Article 27(1) of Regulation (EU) 2017/2226 Border and/or immigration authorities will have access to search with 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. The data listed in points (a), (b) and (c) of the first subparagraph may be searched in inexact mode. 6. Alphanumeric searches referred to in Article 32(5) of Regulation (EU) 2017/2226 Designated authorities shall have access to search with 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, the date of expiry of the validity of the travel document or documents; (c) visa sticker number and the date of expiry of the validity of the visa; (d) date and time of entry, authority that authorised the entry and entry border crossing point; (e) date and time of exit and exit border crossing point. Any combination of the data listed in the first subparagraph may be used. The data listed in points (a), (b) and (c) of the first subparagraph may be searched in inexact mode.

Article 3 Biometric searches The conditions under which the biometric search may be performed shall be as set out in the Commission Implementing Decision laying down the specifications for the quality, resolution and use of fingerprints and facial image for biometric verification and identification in the Entry/Exit System (EES) (11).

Article 4 Entry into force This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Done at Brussels, 25 February 2019. For the Commission The President Jean-Claude JUNCKER

(1) OJ L 327, 9.12.2017, p. 20.

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

(3) Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis (OJ L 131, 1.6.2000, p. 43).

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

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

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

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

(8) Council Decision 2008/146/EC of 28 January 2008 on the conclusion, on behalf of the European Community, of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation's association with the implementation, application and development of the Schengen acquis (OJ L 53, 27.2.2008, p. 1).

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

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

(11) C(2019) 1280.