EN Official Journal of the European Union L 327/20

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty of the Functioning of the European Union, and in particular, Article 77(2)(b) and (d) and Article 87(2)(a) thereof,

Having regard to the proposal from the European Commission,

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

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

After consulting the Committee of the Regions,

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

Whereas:

(1) In its Communication of 13 February 2008 entitled ‘Preparing the next steps in border management in the European Union’, the Commission outlined the need, as part of the Union’s integrated border management strategy, to establish an Entry/Exit System (EES) 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 European Council of 19 and 20 June 2008 underlined the importance of continuing to work on the development of the Union’s integrated border management strategy, including better use of modern technologies to improve the management of external borders.

(3) In its Communication of 10 June 2009 entitled ‘An area of freedom, security and justice serving the citizens’, the Commission advocated for the establishment of an electronic system for recording entry to and exit from the territory of the Member States at external borders to ensure a more effective management of access to that territory.

(4) The European Council of 23 and 24 of June 2011 called for work on ‘smart borders’ to be pushed forward rapidly. On 25 October 2011, the Commission published a Communication entitled ‘Smart borders – options and the way ahead’.

(5) In its strategic guidelines adopted in June 2014, the European Council stressed that the Schengen area, allowing people to travel without internal border controls, and the increasing numbers of people travelling to the Union require efficient management of the Union’s common external borders to ensure strong protection. It also stressed that the Union must mobilise all the tools at its disposal to support the Member States in their task and that, to this end, integrated border management of external borders should be modernised in a cost efficient way to ensure smart border management, inter alia, with an entry-exit system and supported by the new agency for large-scale IT systems (eu-LISA).

(6) In its Communication of 13 May 2015 entitled ‘A European agenda on migration’, the Commission noted that a new phase would come with the ‘Smart Borders’ initiative to increase the efficiency of border crossings, facilitating crossings for the large majority of ‘bona fide’ third country travellers, whilst at the same time strengthening the fight against irregular migration by creating a record of all cross-border movements by third-country nationals, fully respecting proportionality.

(7) With a view to further improving the management of the external borders and, in particular, in order to verify compliance with the provisions on the authorised period of stay on the territory of the Member States, an EES should be established, 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. It should replace the obligation to stamp the passports of third-country nationals which is applicable to all Member States.

(8) It is necessary to specify the objectives of the EES, the categories of data to be entered into the EES, the purposes for which the data are to be used, the criteria for their entry, the authorities authorised to access the data, further rules on data processing and the protection of personal data, as well as the technical architecture of the EES, rules concerning its operation and use, and interoperability with other information systems. It is also necessary to define responsibilities for the EES.

(9) The EES should apply to third-country nationals admitted for a short stay to the territory of the Member States. It should also apply to third-country nationals whose entry for a short stay has been refused.

(10) The EES should be operated at the external borders of the Member States which apply the Schengen acquis in full. It is desirable that Member States not yet applying the Schengen acquis in full apply it fully by the start of operations of the EES. However, in the event that the lifting of controls at internal borders cannot be achieved by the start of operations of the EES, it is necessary to specify the conditions for the operation of the EES by those Member States which do not apply the Schengen acquis in full and lay down the provisions for the operation and use of the EES at internal borders where controls have not yet been lifted. As regards the conditions for the operation of the EES, the EES should be operated at the external borders of the Member States which do not yet apply the Schengen acquis in full but for which the verification in accordance with the applicable Schengen evaluation procedure has already been successfully completed, to which passive access to the Visa Information System (VIS) established by Council Decision 2004/512/EC (3) has been granted for the purpose of operating the EES and for which the provisions of the Schengen acquis relating to the Schengen Information System (SIS), established by Regulation (EC) No 1987/2006 of the European Parliament and of the Council (4), have been put into effect in accordance with the relevant Act of Accession. As regards the provisions on the operation and use of the EES by the Member States fulfilling such conditions, the EES should be operated at all internal borders of those Member States where the controls have not yet been lifted. However, specific provisions on the operation and use of the EES at such borders should apply, in order to minimise the impact of the border check procedure at such borders, while not affecting the level of security and the proper functioning of the EES and without prejudice to the other border control obligations under Regulation (EU) 2016/399 of the European Parliament and of the Council (5).

(11) The duration of the authorised stay of third-country nationals on the territory of the Member States for the purpose of this Regulation results from the applicable Schengen acquis.

(12) An automated calculator should be included in the EES. The automated calculator should take into account stays on the territory of the Member States which operate the EES for the calculation of the overall limit of 90 days in any 180-day period. Any extensions of authorised stay should be taken into account for the purpose of calculation of that overall limit on the subsequent entry of the third-country national to the territory of the Member States. Stays on the territory of Member States which do not yet operate the EES should be counted separately on the basis of stamps affixed in the travel documents of third-country nationals.

(13) The automated calculator should only take into account stays on the territory of Member States which do not yet apply the Schengen acquis in full but operate the EES for the purposes of verifying compliance with the overall limit of 90 days in any 180-day period and for the purposes of verifying the period of validity of a Schengen short-stay visa. The automated calculator should not calculate the duration of stay as authorised by a national short-stay visa issued by a Member State which does not yet apply the Schengen acquis in full but operates the EES. When calculating the duration of stay authorised by a Schengen short-stay visa, the automated calculator should not take into account stays on the territory of Member States which do not yet apply the Schengen acquis in full but operate the EES.

(14) Precise rules should be laid down as regards the responsibility for the development and operation of the EES and the responsibility of the Member States for their connection to the EES. 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 of the European Parliament and of the Council (6), should be responsible for the development and operational management of a centralised EES in accordance with this Regulation. Regulation (EU) No 1077/2011 should therefore be amended accordingly.

(15) The objectives of the EES should be to improve the management of external borders, to prevent irregular immigration and to facilitate the management of migration flows. The EES should, in particular and when relevant, contribute to the identification of any person who does not fulfil or no longer fulfils the conditions of duration 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.

(16) The EES should consist of a Central System (EES Central System), which operates a computerised central database of biometric and alphanumeric data, a National Uniform Interface in each Member State, a Secure Communication Channel between the EES Central System and the central Visa Information System (VIS Central System) of the VIS, and a secure and encrypted Communication Infrastructure between the EES Central System and the National Uniform Interfaces. Each Member State should connect its national border infrastructures to the National Uniform Interface in a secure manner. In order to enable the generation of statistics and reporting, a data repository should be established at central level. In order to enable third–country nationals to verify at any moment the remaining authorised stay, a web service should be developed. The web service should also enable carriers to verify whether third-country nationals holding a Schengen short-stay visa issued for one or two entries have already used the number of entries authorised by their visa. Relevant stakeholders should be consulted in the development phase of that web service. In establishing the technical specifications for the access of carriers to the web service, the impact on passenger travel and carriers should be limited to the extent possible. For this purpose, appropriate integration with relevant systems should be considered.

(17) Interoperability should be established between the EES and the VIS by way of a direct communication channel between the VIS Central System and the EES Central System to enable the border authorities using the EES to consult the VIS in order to retrieve visa-related data to create or update entry/exit records or refusal of entry records, to enable the border authorities to verify the validity of the visa and the identity of the visa holder by directly searching the VIS with fingerprints at the borders at which the EES is operated and to enable the border authorities to verify the identity of visa-exempt third–country nationals against the VIS by using fingerprints. Interoperability should also enable the border authorities and visa authorities using the VIS to directly consult the EES from the VIS for the purposes of examining visa applications and of taking decisions relating to those applications, and of enabling visa authorities to update the visa-related data in the EES in the event that a visa is annulled, revoked or extended. Regulation (EC) No 767/2008 of the European Parliament and of the Council (7) should therefore be amended accordingly. 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 should be an automated process once the operation in question is launched by the authority concerned. The purpose limitation principle should be respected when establishing interoperability between the EES and the VIS.

(18) This Regulation should specify which authorities of the Member States may be authorised to have access to the EES in order to enter, amend, erase or consult data for the specific purposes of the EES and to the extent necessary for the performance of their tasks.

(19) Any processing of EES data should be proportionate to the objectives pursued and necessary for the performance of the tasks of the competent authorities. When using the EES, the competent authorities should ensure that the human dignity and integrity of the person whose data are requested are respected and should not discriminate against persons on grounds of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation.

(20) The EES should record and process alphanumeric data and biometric data primarily for the purposes of improving the management of external borders, preventing irregular immigration and facilitating the management of migration flows. Furthermore, it should also be possible to access personal EES data in order to contribute to the prevention, detection and investigation of terrorist offences and of other serious criminal offences only under the conditions laid down in this Regulation. The use of biometrics, despite its impact on the privacy of travellers, is justified for two reasons. First, biometrics are a reliable method of identifying third-country nationals who are present on the territory of the Member States but not in possession of travel documents or any other means of identification, a common situation for irregular migrants. Second, biometrics allow for a more reliable matching of entry and exit data of bona fide travellers. The use of facial images in combination with fingerprint data makes it possible to reduce the total number of fingerprints required to be registered, while enabling the same result in terms of accuracy of the identification.

(21) Four fingerprints per visa-exempt third–country national should be registered in the EES, if physically possible, to allow for accurate verification and identification, thus ensuring that the third–country national is not already registered under another identity or with another travel document, and to guarantee that sufficient data are available in order to ensure that the objectives of the EES are achieved in every circumstance. The fingerprints of visa-holding third-country nationals should be checked against the VIS. The facial image of both visa-exempt and visa holding third-country nationals should be registered in the EES. Fingerprints or facial images should be used as a biometric identifier for verifying the identity of third–country nationals who have been previously registered in the EES, for as long as their individual files have not been deleted. In order to take into account the specificities of each border crossing point and the different kinds of borders, the national authorities should establish for each border crossing point whether the fingerprints or the facial image are to be used as the main biometric identifier for carrying out the required verification.

(22) In the fight against terrorist offences and other serious criminal offences, it is necessary that designated authorities have the most up-to-date information if they are to perform their tasks. Access to VIS data for law enforcement purposes has already proven its usefulness in identifying people who died violently or in helping investigators to make substantial progress in cases related to trafficking in human beings, terrorism or illicit drug trafficking. Access to EES data is necessary to prevent, detect and investigate terrorist offences as referred to in Directive (EU) 2017/541 of the European Parliament and of the Council (8) or other serious criminal offences as referred to in Council Framework Decision 2002/584/JHA (9). It should be possible to use the EES data as an identity verification tool both in cases where the third–country national has destroyed his or her documents and where designated authorities are investigating a crime through the use of fingerprints or facial images and wish to establish an identity. It should also be possible to use such data as a tool to construct evidence by tracking the travel routes of a person suspected of having committed a crime or of a victim of crime. Therefore, the EES data should be available to the designated authorities of the Member States and the European Union Agency for Law Enforcement Cooperation established by Regulation (EU) 2016/794 of the European Parliament and of the Council (10) (‘Europol’), subject to the conditions and limitations set out in this Regulation. The conditions of access to the EES for the purposes of the prevention, detection or investigation of terrorist offences or of other serious criminal offences should be such as to allow the designated authorities of the Member States to tackle the cases of suspects using multiple identities. For this purpose, access to the EES should not be prevented where a hit is obtained during the consultation of a relevant database prior to accessing the EES. For law enforcement purposes and in order to prevent, detect and investigate terrorist offences or other serious criminal offences, a search of the database of the EES should be deemed proportionate if there is an overriding public security concern. Any search must be duly justified and proportionate in the light of the interest invoked.

(23) Only designated authorities which are responsible for the prevention, detection or investigation of terrorist offences or of other serious criminal offences, for which Member States can guarantee that all the provisions of this Regulation, as well as those of Directive (EU) 2016/680 of the European Parliament and of the Council (11), apply and for which the correct application of those provisions can be verified by the competent authorities, including the supervisory authority established in accordance with Directive (EU) 2016/680, should be entitled to consult EES data.

(24) Europol plays a key role with respect to cooperation between Member States’ authorities in the field of cross-border crime investigation through supporting Union-wide crime prevention, conducting analyses and carrying out investigations. Consequently, Europol should also have access to the EES within the framework of its tasks and in accordance with Regulation (EU) 2016/794. The European Data Protection Supervisor should monitor the processing of data by Europol and ensure full compliance with applicable data protection rules.

(25) Access to the EES for the purpose of preventing, detecting or investigating terrorist offences or other serious criminal offences constitutes an interference with the fundamental rights to respect for the private life of individuals and to protection of personal data of persons whose personal data are processed in the EES. Any such interference must be in accordance with the law, which must be formulated with sufficient precision to allow individuals to adjust their conduct, protect individuals against arbitrariness and indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner in which they are to exercise that discretion. Furthermore, any interference with those fundamental rights must be limited to that which is necessary in a democratic society to protect a legitimate and proportionate interest, and must be proportionate to the legitimate objective to be achieved.

(26) Comparisons of data on the basis of a dactyloscopic trace which may be found at a crime scene (‘latent fingerprint’) are fundamental in the field of police cooperation. The possibility to compare a latent fingerprint with the fingerprint data which are stored in the EES in cases where there are reasonable grounds for believing that the perpetrator or victim might be registered in the EES is necessary for the designated authorities of the Member States to prevent, detect or investigate terrorist offences or other serious criminal offences, where, for example, the only evidence at a crime scene consists of latent fingerprints.

(27) It is necessary to designate the competent authorities of the Member States, as well as the central access points through which the requests for access to EES data are to be made, and to keep a list of the operating units within the designated authorities that are authorised to request such access for the specific purposes for the prevention, detection or investigation of terrorist offences or of other serious criminal offences.

(28) Requests for access to EES data should be made by the operating units within the designated authorities to the central access point and should be duly justified. Operating units within the designated authorities that are authorised to request access to EES data should not act as a verifying authority. The central access point should be a body or entity entrusted by national law to exercise public authority and should be capable, by virtue of the quality and number of its staff, of effectively verifying whether the conditions to request access to the EES are fulfilled in each case. The central access points should act independently of the designated authorities and should be responsible for ensuring, in an independent manner, strict compliance with the conditions for access set out in this Regulation. In a case of urgency, where early access is necessary to respond to a specific and actual threat related to terrorist offences or other serious criminal offences, the central access point should be able to process the request immediately and carry out the verification afterwards.

(29) To protect personal data and to exclude systematic searches, the processing of EES data should only take place in specific cases and when it is necessary for the purposes of preventing, detecting or investigating terrorist offences or other serious criminal offences. The designated authorities and Europol should only request access to the EES when they have reasonable grounds to believe that such access will provide information that will substantially assist them in preventing, detecting or investigating terrorist offences or other serious criminal offences.

(30) In addition, access to the EES for the purposes of identifying unknown suspects, perpetrators or victims of terrorist offences or other serious criminal offences should be allowed only on the condition that searches in the national databases of the Member State have been carried out and the search with the automated fingerprinting identification systems of all other Member States under Council Decision 2008/615/JHA (12) has been fully conducted, or the search has not been fully conducted within two days of being launched.

(31) For the purpose of efficient comparison and exchange of personal data, Member States should fully implement and make use of the existing international agreements as well as of Union law concerning the exchange of personal data already in force, in particular Decision 2008/615/JHA.

(32) The personal data stored in the EES should be kept for no longer than strictly necessary for the purposes for which the data are processed. It is sufficient to keep the data related to third-country nationals who have respected the duration of authorised stay in the EES for a period of three years for border management purposes in order to avoid the need for third–country nationals to re-register in the EES before that period has lapsed. This three-year data retention period will reduce the need for frequent re-registrations and will be beneficial for all travellers as both the average border crossing time and the waiting time at border crossing points will decrease. Even for a traveller entering the territory of the Member States only once, the fact that other travellers already registered in the EES do not have to re-register before the expiry of this three-year data retention period will reduce the waiting time at the border crossing point. This three-year data retention period is also necessary to facilitate and expedite border crossings including by using automated and self-service systems. It is also appropriate to set a three-year data retention period for third-country nationals whose entry for a short stay has been refused. For third-country nationals who are members of the family of a Union citizen to whom Directive 2004/38/EC of the European Parliament and of the Council (13) applies or of a third-country national enjoying the right of free movement under Union law and who do not hold a residence card pursuant to Directive 2004/38/EC, it is appropriate to store each coupled entry/exit record for a maximum period of one year after the date of the exit from the territory of the Member States linked to that record. Following the expiry of the relevant data retention periods, the data should be automatically erased.

(33) It is necessary to keep data related to third-country nationals who have not exited the territory of the Member States within the authorised period of stay for a period of five years, in order to support the identification and return process. Those data should be automatically erased after the five–year period, unless there are grounds for erasing them earlier.

(34) It is necessary to keep the personal data of third-country nationals who have respected the duration of authorised stay and of third-country nationals whose entry for a short stay has been refused for a period of three years and to keep the personal data of third–country nationals who have not exited the territory of the Member States within the authorised period of stay for a period of five years, to allow the border guard to conduct the necessary risk analysis required by Regulation (EU) 2016/399 before authorising a traveller to enter the territory of the Member States. The processing of visa applications in consular posts also requires analysing the travel history of the applicant in order to assess the use of previous visas and whether the conditions of stay have been respected. The abandoning of passport stamping is to be compensated by a consultation of the EES. The travel history available in the EES should therefore cover a period of time which is sufficient for the purpose of visa issuance. While conducting risk analyses at the border and while processing visa applications, the travel history of third-country nationals should be checked in order to determine whether they have exceeded the maximum duration of their authorised stay in the past. It is thus necessary to keep the personal data of third-country nationals who have not exited the territory of the Member States within the authorised period of stay for the longer period of five years compared to that for the personal data of third-country nationals who have respected the duration of authorised stay and of third-country nationals whose entry for a short stay has been refused.

(35) Rules on the liability of the Member States for damage arising from any breach of this Regulation should be laid down.

(36) Without prejudice to more specific rules laid down in this Regulation for the processing of personal data, Regulation (EU) 2016/679 of the European Parliament and of the Council (14) should apply to the processing of personal data by the Member States in application of this Regulation unless such processing is carried out by the designated authorities or central access points of the Member States for the purposes of the prevention, investigation or detection of terrorist offences or of other serious criminal offences.

(37) Without prejudice to more specific rules laid down in this Regulation for the processing of personal data, the national laws, regulations and administrative provisions adopted pursuant to Directive (EU) 2016/680 should apply to the processing of personal data by the competent authorities of the Member States for the purposes of the prevention, investigation or detection of terrorist offences or of other serious criminal offences pursuant to this Regulation.

(38) Regulation (EC) No 45/2001 of the European Parliament and of the Council (15) should apply to the activities of the Union institutions or bodies when carrying out their tasks as responsible for the operational management of EES.

(39) Personal data obtained by a Member State pursuant to this Regulation should not be transferred or made available to any third country, international organisation or private entity established in or outside the Union. As an exception to that rule, however, it should be possible to transfer such personal data to a third country or to an international organisation where such a transfer is subject to strict conditions and necessary in individual cases in order to assist with the identification of a third-country national in relation to his or her return. In the absence of an adequacy decision by means of implementing act pursuant to Regulation (EU) 2016/679 or of appropriate safeguards to which transfers are subject pursuant to that Regulation, it should be possible to exceptionally transfer, for the purposes of return, EES data to a third country or to an international organisation, only where it is necessary for important reasons of public interest as referred to in that Regulation.

(40) It should also be possible to transfer personal data obtained by Member States pursuant to this Regulation to a third country in an exceptional case of urgency, where there is an imminent danger associated with a terrorist offence or where there is an imminent danger to the life of a person associated with a serious criminal offence. An imminent danger to the life of a person should be understood as covering a danger arising from a serious criminal offence committed against that person such as grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint and hostage-taking, sexual exploitation of children and child pornography, and rape. Such data should only be transferred to a third country if the reciprocal provision of any information on entry/exit records held by the requesting third country to the Member States operating the EES is ensured. It should be possible for the competent authorities of the Member States whose designated authorities have access to the EES pursuant to this Regulation to transfer the EES data to Member States not operating the EES and to Member States to which this Regulation does not apply. Such provision of information should be subject to a duly motivated request, and limited to where it is necessary for the prevention, detection or investigation of a terrorist offence or another serious criminal offence. It should be possible for a Member State that operates the EES to provide such information only if a reciprocal provision of any information on entry/exit records held by the requesting Member State to the Member States operating the EES is ensured. Directive (EU) 2016/680 applies to all the subsequent treatment of data obtained from the EES.

(41) In each Member State, the supervisory authority established in accordance with Regulation (EU) 2016/679 should monitor the lawfulness of the processing of personal data by the Member States, whilst the European Data Protection Supervisor should monitor the activities of the Union institutions and bodies in relation to the processing of personal data. The European Data Protection Supervisor and the supervisory authorities should cooperate with each other in the monitoring of the EES.

(42) In each Member State, the supervisory authority established in accordance with Directive (EU) 2016/680 should monitor the lawfulness of the processing by the Member States of personal data for law enforcement purposes.

(43) In addition to the provisions on information to be provided in accordance with Regulation (EU) 2016/679, third–country nationals whose data are to be recorded in the EES should be provided with appropriate information in relation to the recording of those data. This information should be provided by Member States in writing by any appropriate means, including leaflets, posters or any other appropriate electronic means.

(44) In order to ensure the effective monitoring of the application of this Regulation, this Regulation should be evaluated at regular intervals.

(45) The Member States should lay down rules on penalties applicable to infringements of the provisions of this Regulation and ensure that they are implemented.

(46) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (16).

(47) Since the objectives of this Regulation, namely the establishment of the EES and the creation of common obligations, conditions and procedures for use of data cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and impact of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(48) Following the start of operations of the EES, the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (17) (‘the Convention implementing the Schengen Agreement’) should be amended with regard to bilateral agreements concluded by Member States and the authorised length of stay beyond 90 days in any 180-day period of visa-exempt third–country nationals. In its overall evaluation of the EES, the Commission should include an assessment of the use made of the bilateral agreements of Member States. It should be possible for the Commission to include options in the first evaluation report in view of phasing out such bilateral agreements and replacing them with a Union instrument.

(49) The projected costs of the EES are lower than the budget earmarked for Smart Borders in Regulation (EU) No 515/2014 of the European Parliament and of the Council (18). Accordingly, following the adoption of this Regulation, the Commission should, by means of a delegated act provided for in Regulation (EU) No 515/2014, re-allocate the amount currently attributed for developing IT systems supporting the management of migration flows across the external borders.

(50) This Regulation is without prejudice to the application of Directive 2004/38/EC.

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

(52) This Regulation constitutes a development of the provisions of the Schengen acquis in which the United Kingdom does not take part, in accordance with Council Decision 2000/365/EC (19); the United Kingdom is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(53) This Regulation constitutes a development of the provisions of the Schengen acquis in which Ireland does not take part, in accordance with Council Decision 2002/192/EC (20); Ireland is therefore not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

(54) As regards Iceland and Norway, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement concluded by the Council of the European Union and the Republic of Iceland and the Kingdom of Norway concerning the latters’ association with the implementation, application and development of the Schengen acquis (21) which fall within the area referred to in Article 1, point A of Council Decision 1999/437/EC (22).

(55) As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (23) 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 (24) and with Article 3 of Council Decision 2008/149/JHA (25).

(56) As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis (26) 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 (27) and with Article 3 of Council Decision 2011/349/EU (28).

(57) As regards Cyprus, Bulgaria, Romania and Croatia, the provisions of this Regulation relating to the SIS and the VIS constitute provisions building upon, or otherwise relating to, the Schengen acquis within, respectively, the meaning of Article 3(2) of the 2003 Act of Accession, Article 4(2) of the 2005 Act of Accession and Article 4(2) of the 2011 Act of Accession read in conjunction with Council Decisions 2010/365/EU (29), (EU) 2017/733 (30) and (EU) 2017/1908 (31). In addition, 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 this Regulation as soon as all of those conditions are met.

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

(59) This Regulation establishes strict rules concerning access to the EES, as well as the necessary safeguards for such access. It also sets out the individuals’ rights of access, rectification, completion, erasure and redress, in particular the right to a judicial remedy and the supervision of processing operations by public independent authorities. This Regulation therefore respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, in particular the right to human dignity, the prohibition of slavery and forced labour, the right to liberty and security, respect for private and family life, the protection of personal data, the right to non-discrimination, the rights of the child, the rights of the elderly, the integration of persons with disabilities and the right to an effective remedy and to a fair trial.

(60) This Regulation is without prejudice to the obligations deriving from the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967,

HAVE ADOPTED THIS REGULATION:

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 (32).

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 (33) or Directive (EU) 2016/801 of the European Parliament and of the Council (34);

(e) holders of long-stay visas;

(f) nationals of Andorra, Monaco and San Marino and holders of a passport issued by the Vatican City State;

(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 (35), and, where relevant, providing advice in accordance with Council Regulation (EC) No 377/2004 (36); (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 (37);

(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 (38), 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 (39) (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 for which the maximum duration of authorised stay has been 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;

(d) 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, where applicable;

(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 (40);

(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, consult the VIS in accordance with Article 18(2a) 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