Regulation (EC) No 81/2009 of the European Parliament and of the Council of 14 January 2009 amending Regulation (EC) No 562/2006 as regards the use of the Visa Information System (VIS) under the Schengen Borders Code
Date: 2009-01-14
Institutions: European Parliament
Subjects: EU visa policy, Schengen Agreement, border control, customs formalities, external border of the EU, foreign national, information system

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REGULATION (EC) No 81/2009 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 14 January 2009

amending Regulation (EC) No 562/2006 as regards the use of the Visa Information System (VIS) under
the Schengen Borders Code

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(5)

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 62(2)(a) thereof,

Having regard to the proposal from the Commission,

Acting in accordance with the procedure laid down in Article 251
of the Treaty (1),

Whereas:

(1)

(2)

(3)

Regulation (EC) No 562/2006 of the European Parliament
and of the Council of 15 March 2006 establishing a Com-
munity Code on the rules governing the movement of per-
sons across borders (Schengen Borders Code) (2) lays down
the conditions, criteria and detailed rules governing checks
at border crossing points and surveillance at the border,
including checks in the Schengen Information System.

Regulation (EC) No 767/2008 of the European Parliament
and of the Council of 9 July 2008 concerning the Visa
Information System (VIS) and the exchange of data
between Member States on short-stay visas (VIS Regula-
tion) (3) aims at improving the implementation of the com-
mon visa policy. It also provides that the purposes of the
VIS include facilitating both checks at external border
crossing points and the fight against fraud.

Regulation (EC) No 767/2008 lays down search criteria
and conditions for the access of competent authorities, for
the purpose of carrying out checks at external border
crossing points, to data for verifying the identity of visa
holders, the authenticity of the visa and whether the entry
conditions are fulfilled, and for identifying any person who
may not fulfil, or who no longer fulfils, the conditions for
entry, stay or residence on the territory of the Member
States.

(4)

Since only a verification of fingerprints can confirm with
certainty that a person wishing to enter the Schengen area
is the person to whom the visa has been issued, provision
should be made for the use of the VIS at external borders.

(1) Opinion of the European Parliament of 2 September 2008 (not yet
published in the Official Journal) and Council Decision of 27 Novem-
ber 2008.

(2) OJ L 105, 13.4.2006, p. 1.
(3) OJ L 218, 13.8.2008, p. 60.

In order to verify whether the entry conditions for third-
country nationals laid down in Article 5 of Regulation (EC)
No 562/2006 are fulfilled and to manage their tasks suc-
cessfully, border guards should use all necessary informa-
tion available, including data which may be consulted in
the VIS.

(6)

(7)

(8)

In order to prevent circumvention of border crossing
points where the VIS may be used and to guarantee its full
effectiveness, there is a particular need to use the VIS in a
harmonised way when entry checks are carried out at the
external borders.

Since in cases of repeated visa applications it is appropri-
ate for biometric data to be reused and copied from the
first visa application in the VIS, use of the VIS for entry
checks at the external borders should be compulsory.

The use of the VIS should entail a systematic search in the
VIS using the number of the visa sticker in combination
with a verification of fingerprints. However, given the
potential impact of such searches on waiting times at bor-
der crossing points, it should be possible, for a transitional
period by way of derogation and in strictly defined circum-
stances, to consult the VIS without a systematic verifica-
tion of fingerprints. Member States should ensure that this
derogation is used only where the conditions therefor are
fully met and that the duration and frequency of applica-
tion of this derogation is kept to a strict minimum at the
individual border crossing points.

(9)

Regulation (EC) No 562/2006 should therefore be
amended accordingly.

(10)

Since the objectives of this Regulation, namely the estab-
lishment of the rules applicable on the use of the VIS at the
external borders, cannot be sufficiently achieved by the
Member States and can therefore be better achieved at
Community level, the Community may adopt measures, in
accordance with the principle of subsidiarity as set out in
Article 5 of the Treaty. 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.

(11)

This Regulation respects the fundamental rights and
observes the principles recognised by Article 6(2) of the
Treaty on European Union and reflected in the European
Convention for the Protection of Human Rights and Fun-
damental Freedoms as well as in the Charter of Fundamen-
tal Rights of the European Union.

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(12) 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 association of
those two States with the implementation, application and
development of the Schengen acquis (1), which fall within
the area referred to in Article 1, point A, of Council Deci-
sion 1999/437/EC of 17 May 1999 on certain arrange-
ments for the application of that Agreement (2).

(13) As regards Switzerland, this Regulation constitutes a devel-
opment of provisions of the Schengen acquis within the
meaning of the Agreement concluded between the Euro-
pean Union, the European Community and the Swiss Con-
federation on the Swiss Confederation’s association with
the implementation, application and development of the
Schengen acquis (3), 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 (4).

(14) As regards Liechtenstein, this Regulation constitutes a
development of provisions of the Schengen acquis within
the meaning of the Protocol signed 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 (5), 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
2008/261/EC (6).

(15)

In accordance with Articles 1 and 2 of the Protocol on the
position of Denmark annexed to the Treaty on European
Union and to the Treaty establishing the European Com-
munity, Denmark does not take part in the adoption of
this Regulation and is therefore not bound by it or subject
to its application. Given that this Regulation builds upon
the Schengen acquis under the provisions of Title IV of Part
Three of the Treaty establishing the European Community,
Denmark should, in accordance with Article 5 of that Pro-
tocol, decide within a period of six months after the adop-
tion of this Regulation whether it will implement it in its
national law.

(16)

This Regulation constitutes a development of provisions of
the Schengen acquis in which the United Kingdom does not
in accordance with Council Decision
take part,
2000/365/EC of 29 May 2000 concerning the request of
the United Kingdom of Great Britain and Northern Ireland

(1) OJ L 176, 10.7.1999, p. 36.
(2) OJ L 176, 10.7.1999, p. 31.
(3) OJ L 53, 27.2.2008, p. 52.
(4) OJ L 53, 27.2.2008, p. 1.
(5) Council Document 16462/06;

to take part in some of the provisions of the Schengen
acquis (7). The United Kingdom is therefore not taking part
in its adoption and is not bound by it or subject to its
application.

(17)

This Regulation constitutes a development of provisions of
the Schengen acquis in which Ireland does not take part, in
accordance with Council Decision 2002/192/EC of 28 Feb-
ruary 2002 concerning Ireland’s request to take part in
some of the provisions of the Schengen acquis (8). Ireland
is therefore not taking part in its adoption and is not bound
by it or subject to its application.

(18) As regards Cyprus, this Regulation constitutes an act build-
ing on the Schengen acquis or otherwise related to it within
the meaning of Article 3(2) of the 2003 Act of Accession.

(19)

This Regulation constitutes an act building on the Schen-
gen acquis or otherwise related to it within the meaning
Article 4(2) of the 2005 Act of Accession,

HAVE ADOPTED THIS REGULATION:

Article 1

Amendment

Article 7(3) of Regulation (EC) No 562/2006 is hereby amended
as follows:

1. The following points shall be inserted after point (a):

‘(aa) if the third country national holds a visa referred to in
Article 5(1)(b), the thorough checks on entry shall also
comprise verification of the identity of the holder of the
visa and of the authenticity of the visa, by consulting the
Visa Information System (VIS)
in accordance with
Article 18 of Regulation (EC) No 767/2008 of the Euro-
pean Parliament and of the Council of 9 July 2008 con-
cerning the Visa Information System (VIS) and the
exchange of data between Member States on short-stay
visas (VIS Regulation) (*);

(ab) by way of derogation, where:

(i)

traffic of such intensity arises that the waiting time
at the border crossing point becomes excessive;

(ii) all resources have already been exhausted as regards

staff, facilities and organisation; and

accessible on http://register.consilium.europa.eu.

(6) OJ L 83, 26.3.2008, p. 3.

(7) OJ L 131, 1.6.2000, p. 43.
(8) OJ L 64, 7.3.2002, p. 20.

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(iii) on the basis of an assessment there is no risk related
to internal security and illegal immigration;

the VIS may be consulted using the number of the visa
sticker in all cases and, on a random basis, the number
of the visa sticker in combination with the verification
of fingerprints.

However, in all cases where there is doubt as to the
identity of the holder of the visa and/or the authenticity
of the visa, the VIS shall be consulted systematically
using the number of the visa sticker in combination
with the verification of fingerprints.

This derogation may be applied only at the border
crossing point concerned for as long as the above con-
ditions are met;

(ae) points (ab) and (ac) shall apply for a maximum period
of three years, beginning three years after the VIS has
started operations. The Commission shall, before the
end of the second year of application of points (ab)
and (ac), transmit to the European Parliament and to the
Council an evaluation of their implementation. On the
basis of that evaluation, the European Parliament or the
Council may invite the Commission to propose appro-
priate amendments to this Regulation.

(*) OJ L 218, 13.8.2008, p. 60.’.

2. The following sentence shall be added at

the end of

point (c)(i):

‘such verification may comprise consultation of the VIS in
accordance with Article
(EC)
No 767/2008;’.

of Regulation

18

(ac)

the decision to consult the VIS in accordance with
point (ab) shall be taken by the border guard in com-
mand at the border crossing point or at a higher level.

The Member State concerned shall immediately notify
the other Member States and the Commission of any
such decision;

(ad) each Member State shall transmit once a year a report
on the application of point (ab) to the European Parlia-
ment and the Commission, which shall
include the
number of third-country nationals who were checked in
the VIS using the number of the visa sticker only and
the length of the waiting time referred to in point (ab)(i);

3. The following point (d) shall be added:

‘(d)

for the purpose of identification of any person who may
not fulfil, or who may no longer fulfil, the conditions for
entry, stay or residence on the territory of the Member
States, the VIS may be consulted in accordance with
Article 20 of Regulation (EC) No 767/2008.’.

Article 2

Entry into force

This Regulation shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

It shall apply from the 20th day following the date referred to in
Article 48(1) of Regulation (EC) No 767/2008.

This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaty establishing the European Community.

Done at Strasbourg, 14 January 2009.

For the European Parliament
The President
H.-G. PÖTTERING

For the Council
The President
A. VONDRA