Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2019/816 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders
Date: 2021-03-02
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Schengen Agreement, area of freedom, security and justice, criminal record, exchange of information, external border of the EU, foreign national, information system, personal data, right of asylum, stateless person

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   EUROPEAN COMMISSION  Brussels, 2.3.2021  COM(2021) 96 final 2021/0046 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulation (EU) 2019/816 establishing a centralised system for the identification of Member States holding conviction information on third-country nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal Records Information System and Regulation (EU) 2019/818 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country nationals at the external borders  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

On  23  September  2020,  the  Commission  adopted  a  Communication  on  a  New  Pact  on 
Migration and Asylum that aims, inter alia, to put in place a common framework for asylum 
and  migration  management  at  EU  level  and  to  promote  mutual  trust  between  the  Member 
States. One of the legislative proposals accompanying that Communication is the proposal for 
a Regulation of the European Parliament and of the Council introducing a screening of third 
country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 
2017/2226, (EU) 2018/1240 and (EU) 2019/817 (‘proposed Screening Regulation’1).  

The  proposed  Screening  Regulation  addresses  the  challenges  of  managing  mixed  flows  of 
migrants,  by  introducing  a  pre-entry  screening  at  external  borders,  as  an  important  step 
towards closing the gaps between external border controls and asylum and return procedures. 
The  objective  of  the  pre-entry  screening  is  to  ensure  that  the  identity  of  the  third-country 
nationals  who  cross  the  external  border  without  authorisation  as  well  as  any  health  and 
security  risks  are  quickly  established  and  that  the  third-country  nationals  concerned  are 
swiftly referred towards the applicable procedure (asylum, or procedures respecting Directive 
(EU) 2008/115/EC  (Return Directive))2. The proposed Screening Regulation  also  creates  an 
EU framework for the screening of irregular migrants apprehended within the territory of the 
Member States and who eluded border controls on entering the Schengen area, with a view to 
better protecting the Schengen area. 

The security checks as part of the screening should be at least of a similar level as the checks 
performed in respect of third country nationals that apply beforehand for an authorisation to 
enter the Union for a short stay, whether they are under a visa obligation or not. 

It follows from the above that the automated verifications for security purposes in the context 
of the screening should be carried out against the same systems as for applicants for a visa or 
for  a  travel  authorisation  under  the  European  Travel  Information  and  Authorisation  System 
(ETIAS) 3,  the  Visa  Information  System  (VIS) 4,  the  Entry/Exit  System  (EES) 5  and  the 
Schengen  Information  System  (SIS) 6.  Persons  submitted  to  the  screening  should  also  be 

1  COM(2020)612. 
2  Directive 2008/115/EC of the European Parliament and of  the Council of 16 December 2008 on common 
standards and procedures in Member States for returning illegally staying third-country nationals, OJ L 348, 
24.12.2008, p. 98–107 

3  Regulation  (EU)  2018/1240  of  the  European  Parliament  and  of  the  Council  of  12  September  2018 
establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations 
(EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226 (OJ L 236, 
19.9.2018, p. 1). 

4  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 
Regulation) OJ L 218, 13.8.2008, p. 60–81.    

5  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, OJ L 327, 9.12.2017, p. 20. 

6  Regulation (EC) No 1987/2006 of the European Parliament and of the Council of 20 December 2006 on the 
establishment, operation and use of the second generation Schengen Information System (SIS II), OJ L 381, 
28.12.2006, p. 4–23.  

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checked  against  the  European  Criminal  Records  Information  System  for  Third  Country 
Nationals  (ECRIS-TCN)7  as  regards  persons  convicted  in  relation  to  terrorist  offences  and 
other  forms  of  serious  criminal  offences,  Europol  data,  the  Interpol  Stolen  and  Lost  Travel 
Documents  database  (SLTD)  and  Interpol  Travel  Documents  Associated  with  Notices 
databases (TDAWN). 

Since  access  to  the  Entry/Exit  System  (‘EES’),  the  European  Travel  Information  and 
Authorisation  System  (‘ETIAS’),  the  Visa  Information  System  (‘VIS’)  and  the  European 
Criminal  Records  Information  System  for  third  country  nationals  (‘ECRIS-TCN’)  is 
necessary for the authorities designated to carry out the screening, the regulations establishing 
those databases need to be amended to provide for this additional access right. The proposed 
Screening  Regulation  amends  the  Regulations  establishing  the  VIS,  the  EES  and  ETIAS. 
Those  regulations  are  all  developments  of  the  Schengen  acquis  regarding  borders,  as  is  the 
proposed Screening Regulation as a whole. 

In view of the fact that Regulation (EU) No 2019/816, which establishes ECRIS-TCN, is not a 
development  of  the  Schengen  acquis,  its  amendment  could  not  be  part  of  the  proposed 
Screening Regulation. Therefore, there is a need for a self-standing amendment of Regulation 
2019/816 to provide for access rights in view of the proposed Screening Regulation. 

In  addition,  the  proposed  Screening  Regulation  introduces  an  obligation  to  check  the 
biometric  data  of  the  third  country  nationals  concerned  against  the  Common  Identity 
Repository  (CIR)  established  by  Regulations  (EU)  2019/8178  and  (EU)  2019/8189.  The 
purpose of consulting CIR in the context of the screening is to allow checking identity data 
present in the EES, VIS, ETIAS, Eurodac and ECRIS-TCN in one go, in a fast and reliable 
manner,  while  ensuring  a  maximum  protection  of  the  data  and  avoiding  unnecessary 
processing of or duplication of data. 

While the proposed Screening Regulation provides for changes to Regulation (EU) 2019/817 
which  applies  to  the  EES,  VIS,  ETIAS,  due  to  variable  geometry,  the  amendment  to 
Regulation 2019/818 which applies to ECRIS-TCN and Eurodac was not part of the proposed 
Screening Regulation.  

It follows from this that in order to provide access to all data stored in the Common Identity 
Repository (CIR) for the designated authorities in the context of screening, it is also necessary 
to amend Regulation (EU) 2019/818.  

• 

Consistency with existing policy provisions in the policy area 

The  proposal  contributes  to  achieving  the  objective  of  offering  Union  citizens  an  area  of 
freedom, security and justice without internal frontiers, where appropriate measures are taken 
to prevent and combat crime, including organised crime and terrorism. 

7  Regulation (EU) 2019/816 of the European Parliament and  of the Council of 17 April 2019 establishing a 
centralised system for the identification of Member States holding conviction information on third-country 
nationals  and  stateless  persons  (ECRIS-TCN)  to  supplement  the  European  Criminal  Records  Information 
System and amending Regulation (EU) 2018/1726, OJ L 135, 22.5.2019, p. 1–26. 

8  Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a 
framework for interoperability between EU information systems in the field  of borders and visa OJ L 135, 
22.5.2019, p. 27. 

9  Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a 
framework  for  interoperability  between  EU  information  systems  in  the  field  of  police  and  judicial 
cooperation, asylum and migration, OJ L 135, 22.5.2019, p. 85. 

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The proposal is in line with the purposes of the ECRIS-TCN as provided for in Article 7 of 
Regulation (EU) 2019/816, in particular paragraph 1 of that Article provides that authorities 
can  use  ECRIS-TCN  in  the  context  of  “visa,  acquisition  of  citizenship  and  migration 
procedures, including asylum procedures”. 

It is without prejudice to the mechanism of exchanging criminal records information on Union 
citizens between Member States through the European Criminal Records Information System 
(ECRIS),  as  established  by  the  Framework  Decision  2009/315/JHA10  and  Decision 
2009/316/JHA11. 

• 

Consistency with other Union policies 

The  proposal  enables  the  comprehensive  verification  of  the  relevant  databases  during  the 
screening at the external borders and within the territory in line with the proposed Screening 
Regulation. As such, it contributes to the protection of the external borders and the prevention 
of unauthorised movements within the Schengen area. It is also consistent with the objectives 
of Regulation (EU) 2019/816 to improve the European Criminal Records Information System 
with regard to third country nationals and to contribute to the development of interoperability 
between  all  centralised  EU  information  systems  for  security,  border  and  migration 
management. 

The proposal is also consistent with the modifications to be made by the proposed Screening 
Regulation in the interoperability framework as established by Regulations (EU) 2019/81712 
and  (EU)  2019/81813  by  ensuring  the  same  access  rights  to  the  European  Criminal  Records 
Information  System  for third country nationals during the screening  as  to  the other  relevant 
databases,  such  as  the  Entry/Exit  System  (EES),  the  European  Travel  Information  and 
Authorisation System (ETIAS), and the Visa Information System (VIS). 

The  proposal  also  takes  into  consideration  the  interoperability  framework  established  by 
Regulations (EU) 2019/817 and (EU) 2019/818.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Article 82(1), second subparagraph, point (d) of the Treaty on the 
Functioning  of  the  European  Union  (‘TFEU’)  which  concerns  facilitation  of  cooperation 
between judicial or equivalent authorities of the Member States in relation to proceedings in 
criminal matters and the enforcement of decisions. That is the Treaty provision which served 
as legal basis for the regulations which it is proposed to amend. 

10  Council  Framework  Decision  2009/315/JHA  of  26  February  2009  on  the  organisation  and  content  of  the 
exchange of information extracted from the criminal record between Member States, OJ L 93, 7.4.2009, p. 
23–32. 

11  Council  Decision  2009/316/JHA  of  6  April  2009  on  the  establishment  of  the  European  Criminal  Records 
Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA, OJ L 93, 
7.4.2009, p. 33–48. 

12  Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on  establishing a 
framework for interoperability between EU information systems in the field of borders and visa OJ L 135, 
22.5.2019, p. 27.  

13  Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a 
framework  for  interoperability  between  EU  information  systems  in  the  field  of  police  and  judicial 
cooperation, asylum and migration, OJ L 135, 22.5.2019, p. 85. 

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• 

Subsidiarity (for non-exclusive competence)  

Action in the area of freedom, security and justice falls within an area of competence shared 
between the EU and the Member States in accordance with Article 4(2) TFEU. Therefore, the 
subsidiarity principle is applicable by virtue of Article 5(3) of the Treaty on European Union: 
the  Union  shall  act  only  if  and  in  so  far  as  the  objectives  of  the  proposed  action  cannot  be 
sufficiently  achieved  by  the  Member  States  (either  at  central  level  or  at  regional  and  local 
level), but rather at Union level (by reason of the scale or effects of the proposed action). 

The objectives of this proposal cannot be sufficiently achieved by the Member States acting 
alone, and can be better achieved at the level of the Union. This is because they concern the 
access to information contained in an EU database and the facilitation of cooperation between 
judicial or equivalent authorities of the Member States in relation to proceedings in criminal 
matters and the enforcement of decisions. 

• 

Proportionality 

The proposal is proportionate to the identified objectives. 

The proposal aims at aligning the access rights to the European Criminal Records Information 
System for third country nationals (ECRIS-TCN) with other databases automatically verified 
for security purposes during the screening at the external borders and within the territory to 
the access rights already granted in the context of the screening of applicants for a visa or of 
the screening of applicants for a travel authorisation under the European Travel  Information 
and Authorisation System. 

In line with the proposed Screening Regulation, the security checks including the consultation 
of  the  the  European  Criminal  Records  Information  System  for  Third  Country  Nationals 
(ECRIS-TCN) database will be limited to identification of terrorist offences and other forms 
of  serious  criminal  offences.  Article  1  of  the  proposal  reflects  the  modification  made  in 
Article  5(1)(c)  of  Regulation  2019/816  by  the  Proposal  COM/2019/3  final14  (ETIAS 
consequential) which introduces a special flag for terrorist offences and other forms of serious 
criminal  offences.  Based  on  this  modification,  it  will  be  possible  to  limit  access  to  data 
records of third country nationals convicted of terrorism offences and other forms of serious 
criminal  offences,  only  to  those  records  which  are  relevant  for  security  checks  under  the 
proposed screening Regulation. The consultation of the ECRIS-TCN database should indeed 
be conducted in a manner that ensures that only data necessary for carrying out the security 
checks is retrieved from this database. This proposal reflects these requirements. 

The necessary changes to Regulation (EU) 2019/818 are limited to providing access rights to 
data  stored  in  the  Common  Identity  Repository  (CIR)  for  the  designated  authorities  in  the 
context of the screening. 

• 

Choice of the instrument 

This  proposal  specifies  the  conditions  of  accessing  the  European  Criminal  Records 
Information System for third country nationals (ECRIS-TCN) database which has been set up 

14  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  establishing  the  conditions  for 
accessing the other EU information systems and amending Regulation (EU) 2018/1862 and Regulation (EU) 
2019/816. 

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by  an  EU  regulation  with  a  view  to  ensure  uniform  application  across  the  Union  and  legal 
certainty by avoiding divergent interpretations in the Member States with regard to the use of 
this central database. 

The proposal also complements the uniform rules on security checks during the screening as 
set out in the proposed Screening Regulation. 

It follows that a regulation is the appropriate instrument. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

The  evidence-based  document  prepared  in  relation  to  the  legislative  proposals  adopted 
together  with  the  New  Pact  on  Migration  and  Asylum  remains  relevant  for  this  proposal 
which complements the proposed Screening Regulation. 

• 

Stakeholder consultations 

The consultations carried out by the Commission in relation to the New Pact on Migration and 
Asylum  remain  valid.  In  particular,  the  Commission  consulted  the  European  Parliament, 
Member States, and stakeholders on a number of occasions to gather their views on the New 
Pact on Migration and Asylum. In parallel, the Romanian, Finnish and Croatian Presidencies 
have held both strategic and technical exchanges on the future of various aspects of migration 
policy, including the screening proposal. These consultations showed support for a fresh start 
on European asylum and migration policy. 

Ahead of the launch of the New Pact on Migration and Asylum, the Commission has engaged 
in  continuous  discussions  with  the  European  Parliament.  Member  States  acknowledged, 
among others, the need for strong border protection and interest in having clear and efficient 
procedures at the external borders, notably to prevent unauthorised movements as well as  to 
contribute to the security of the Schengen area. Some Member States, however, stressed that 
one must not create any unnecessary administrative burden. 

• 

Fundamental rights 

The proposal complies with relevant provisions of the Charter of Fundamental Rights of the 
European  Union,  including  the  protection  of  personal  data,  and  the  principle  of  non-
refoulement,  protection  in  the  event  of  removal,  expulsion  or  extradition  and  other  relevant 
standards and guarantees enshrined in EU law on asylum, return and borders. 

As regards the protection of personal data (Article 8 of the Charter), the proposal affects this 
right in a manner that is strictly necessary and proportionate to offering EU citizens an area of 
freedom, security and justice without internal frontiers, where appropriate measures are taken 
to prevent and combat crime, including organised crime and terrorism.  

First, the proposed modification allows to search the European Criminal Records Information 
System  for  third  country  nationals  (ECRIS-TCN)  database  for  the  purpose  of  carrying  out 
security checks during the screening, which will complement the existing border management 
measures.  The  screening  implies  the  consultation  of  identity,  travel  or  other  documents  as 
well as processing of biometric data of persons subject to the check, and the consultation of 
databases, including ECRIS-TCN, in the context of security checks. This implies processing 

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of personal data. Such checks are required to verify whether that person would pose a threat to 
the security of the Member States under the proposed Screening Regulation.  

Secondly,  the  debriefing  form  to  be  filled  out  at  the  end  of  the  screening,  should  contain 
information  that  is  necessary  to  enable  the  Member  States’  authorities  to  refer  the  persons 
concerned to the appropriate procedure. The filling out and reading of the debriefing form by 
the  authorities  thus  constitute  forms  of  processing  of  personal  data  which  are  inherent  in 
referring  third-country  nationals  present  at  the  external  border  without  fulfilling  entry 
conditions  (or  apprehended  within  the  territory)  to  the  appropriate  procedures  regarding 
asylum  or  return.  The  debriefing  form  points  at  the  results  of  the  consultation  carried  out 
during the screening for security purposes.  The  results of such consultation are  reflected by 
hit/no  hit.  In  case  of  a  hit,  the  database  which  produced  the  hit  and  exact  reasons  for  that 
should be mentioned in the de-briefing form.  It should be underlined that in case of a hit in 
ECRIS-TCN the de-briefing form will include the result of the consultation only in case of a 
hit with data related to terrorism and other forms of serious criminal offences. 

This proposal is without prejudice to the Member States’ responsibilities under their national 
laws,  including  rules  on  entering  convictions  against  minors  and  children  into  the  national 
criminal  record  register.  Similarly,  it  does  not  prevent  the  application  of  Member  States' 
constitutional  law  or  international  agreements  to  which  they  are  bound,  in  particular  those 
deriving  from  the  European  Convention  on  Human  Rights  and  Fundamental  Freedoms,  to 
which all Member States are party. 

When reporting on the application of Regulation (EU) 2019/816 in line with Article 36(9) of 
that Regulation, the Commission will also need to take into account the impact of the use of 
the European Criminal Records Information System for third country nationals (ECRIS-TCN) 
database on the fundamental rights of third country nationals in the context of the screening.  

The use of this database in the context of the screening should be subject to the monitoring 
mechanism as set out by the proposed Screening Regulation, to ensure that the fundamental 
rights of third country nationals are complied with and that the principle of non-refoulement is 
observed in relation to the screening. 

4. 

BUDGETARY IMPLICATIONS 

The proposed Regulation has no implications for the EU budget. 

5. 

• 

OTHER ELEMENTS 

Detailed explanation of the specific provisions of the proposal 

Article  1  modifies  Regulation  (EU)  2019/816  by  adding  a  new  provision  allowing  the 
designated  authorities  in  the  context  of  the  screening  to  access  and  search  the  ECRIS-TCN 
database  for  records  relating  to  persons  who  have  been  convicted  for  a  terrorist  offence  or 
other serious criminal offences and sets out the conditions and safeguards in that respect. 

Article  2  modifies  Regulation  (EU)  2019/818  by  adding  a  new  provision  allowing  the 
designated  authorities  in  the  context  of  screening  to  access  data  stored  in  the  Common 
Identity Repository (CIR).  

Article 3 contains final provisions.  

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2021/0046 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EU) 2019/816 establishing a centralised system for the 
identification of Member States holding conviction information on third-country 
nationals and stateless persons (ECRIS-TCN) to supplement the European Criminal 
Records Information System and Regulation (EU) 2019/818 on establishing a framework 
for interoperability between EU information systems in the field of police and judicial 
cooperation, asylum and migration and amending Regulations (EU) 2018/1726, (EU) 
2018/1862 and (EU) 2019/816 for the purpose of introducing a screening of third country 
nationals at the external borders 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
second 
Article 16(2),  Article 74,  Article 78(2)(e),  Article 79(2)(c),  Article  82(1), 
subparagraph, point (d), Article 85(1), Article 87(2)(a) and Article 88(2) thereof, 

Having regard to the proposal from the European Commission, 

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

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

Regulation (EU) …/… [Regulation on Screening]15 provides for identity, security and 
health  checks  of  third  country  nationals  who  are  at  the  external  border  without 
fulfilling the entry conditions or who are apprehended within the territory, and where 
there  are  no  indications  that  they  have  been  subject  to  controls  at  external  borders. 
Regulation  (EU)  …/…  [Regulation  on  Screening]16  addresses  the  challenges  of 
managing  mixed  flows  of  migrants  and  creates  uniform  rules  allowing  for  a  quick 
identification of third country nationals and referral to the applicable procedures.  
The Regulation (EU) …/… [Regulation on Screening]17 provides that verifications for 
security purposes in the framework of the screening should be carried out against the 
same  systems  as  for  applicants  for  visas  or  for  travel  authorisations  under  the 
European  Travel  Information  and  Authorisation  System.  In  particular,  Regulation 
(EU) …/… [Regulation on Screening]18 provides that the personal data of the persons 
submitted to the screening should be checked against Europol data, Interpol Stolen and 
Lost  Travel  Documents  database (SLTD) and  Interpol Travel  Documents Associated 
with  Notices  database  (TDAWN),  as  well  as  the  European  Criminal  Records 

15  Regulation  (EU)  …/…of  the  European  Parliament  and  of  the  Council  introducing  a  screening  of  third 
country  nationals  at  the  external  borders  and  amending  Regulations  (EC)  No  767/2008,  (EU)  2017/2226, 
(EU) 2018/1240 and (EU) 2019/817, OJ [...] 

16  Op. cit. 15. 
17  Op. cit. 15. 
18  Op. cit. 15. 

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(3) 

(4) 

(5) 

(6) 

Information  System  for  third  country  nationals  (ECRIS-TCN)  as  regards  persons 
convicted in relation to terrorist offences and other forms of serious criminal offences. 

Access to the ECRIS-TCN is necessary for the authorities designated to carry out the 
screening provided for in Regulation (EU) …/… [Regulation on Screening]19 in order 
to  establish  whether  a  person  could  pose  a  threat  to  internal  security  or  to  public 
policy.  
Regulation (EU) …/… [Regulation on Screening]20, which constitutes a development 
of  the  Schengen  acquis  regarding  borders,  amends  Regulations  (EC)  No  767/200821, 
(EU) 2017/222622, (EU) 2018/124023 and (EU) 2019/81724, which likewise constitute 
developments of the Schengen acquis regarding borders, to grant access rights for the 
purposes of the screening to the data contained in the Visa Information System (VIS), 
to the Entry-Exit System (EES) and to European Travel Information and Authorisation 
System  (ETIAS)  respectively.  However,  the  parallel  amendment  of  Regulation  (EU) 
No 2019/816  to  grant access  rights  for the purposes of the screening to  ECRIS-TCN 
could  not  be  part  of  the  same  regulation  for  reasons  of  variable  geometry,  as  the 
regulation  establishing  ECRIS-TCN  does  not  constitute  a  development  of  the 
Schengen acquis. Regulation 2019/816 should therefore be amended by a distinct legal 
instrument. 

Since the objective of this Regulation, namely to enable access to the ECRIS-TCN for 
the purposes of the security checks established by Regulation (EU) …/… [Regulation 
on Screening]25, which in turn aims at the strengthening of the control of persons who 
are about to enter the Schengen area and their referral to the appropriate procedures, 
cannot  be  sufficiently  achieved  by  the  Member  States,  but  can  only  be  achieved  at 
Union  level,  the  Union  may  adopt  measures,  in  accordance  with  the  principle  of 
subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In  accordance 
with the principle of proportionality, as set out in that Article, this Regulation does not 
go beyond what is necessary to achieve that objective. 
Regulation  (EU)  …/…  [Regulation  on  Screening]26  provides  for  specific  rules 
concerning  the  identification  of  third-country  nationals  by  means  of  consulting  the 
Common  Identity  Repository  (CIR)  established  by  Regulations  (EU)  2019/817  and 

19  Op. cit. 15. 
20  Op. cit. 15. 
21  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 
Regulation) OJ L 218, 13.8.2008, p. 60–81. 

22  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, OJ L 327, 9.12.2017, p. 20. 

23  Regulation  (EU)  2018/1240  of  the  European  Parliament  and  of  the  Council  of  12  September  2018 
establishing a European Travel Information and Authorisation System (ETIAS) and amending  Regulations 
(EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU)  2017/2226 (OJ L 236, 
19.9.2018, p. 1). 

24  Regulation  (EU)  2019/817  of  the  European  Parliament  and  of  the  Council  of  20  May  2019  on 
establishing  a  framework  for  interoperability  between  EU  information  systems  in  the  field  of  borders  and 
visa  and  amending  Regulations  (EC)  No 767/2008,  (EU) 2016/399,  (EU) 2017/2226,  (EU) 2018/1240, 
(EU) 2018/1726  and  (EU) 2018/1861  of  the  European Parliament  and  of  the  Council  and  Council 
Decisions 2004/512/EC and 2008/633/JHA, OJ L 135, 22.5.2019, p. 27. 

25  Op. cit. 15. 
26  Op. cit. 15. 

EN 

8 

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(7) 

(8) 

(9) 

(EU) 2019/818 of the European Parliament and of the Council in order to facilitate and 
assist in the correct identification of persons registered in EES, VIS, ETIAS, Eurodac 
and  ECRIS-TCN,  including  of  unknown  persons  who  are  unable  to  identify 
themselves. 

Since access to data stored in the Common Identity Repository (CIR) for identification 
purposes  is  necessary  for  the  authorities  designated  to  carry  out  the  screening,  the 
Regulation  (EU)  …/…  [Regulation  on  Screening]27  amends  Regulation  (EU) 
2019/817. For reasons of variable geometry it was not possible to amend Regulation 
(EU) 2019/818 in the same Regulation, therefore Regulation (EU) 2019/818 should be 
amended by a distinct legal instrument. 

In  accordance  with  Articles  1  and  2  of  Protocol  No  22  on  the  position  of  Denmark, 
annexed to the Treaties, Denmark is not taking part in the adoption of this Regulation 
and is not bound by it or subject to its application. 

In  accordance  with  Articles  1  and  2  and  Article  4a(1)  of  Protocol  No  21  on  the 
position of Ireland in respect of the area of freedom, security and justice, annexed to 
the Treaties, and without prejudice to Article 4 of that Protocol, Ireland is not taking 
part  in  the  adoption  of  this  Regulation  and  is  not  bound  by  it  or  subject  to  its 
application, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Amendments to Regulation (EU) 2019/816 

Regulation (EU) 2019/816 is amended as follows: 

1. 

In Article 1, the following point (e) is added: 

‘(e)  
the conditions under which ECRIS-TCN shall be used by the competent authorities in 
order to perform a security check in accordance with Regulation (EU) …/…28 [Regulation on 
Screening]*.’ 

_____________ 

*  Regulation  (EU)  …/…  [Regulation  introducing  a  screening  of  third  country  nationals  at 
the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 
2018/1240 and (EU) 2019/817] (OJ …) 

2. 

Article 2 is replaced by the following: 

27 
28 

Op. cit. 15. 
OJ … 

EN 

9 

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“Article 2 
Scope 

This  Regulation  applies  to  the  processing  of  identity  information  of  third-country  nationals 
who have been subject to convictions in the Member States for the purpose of identifying the 
Member States  where  such  convictions  were  handed  down  [as  well  as  for  the  purposes  of 
border  management]29.  With  the  exception  of  point  (b)(ii)  of  Article 5(1),  the  provisions  of 
this Regulation that apply to third-country nationals also apply to citizens of the Union who 
also  hold  the nationality of a third country and  who have been subject  to  convictions in the 
Member States. 

This Regulation also: 

(a) 

(b) 

facilitates and assists in the correct identification of persons in accordance with 
this Regulation and with Regulation (EU) 2019/818; 

supports the objectives of Regulation (EU) …/… [Regulation on Screening] as 
regards the carrying out of the security checks. 

3. 

In Article 3, point 6 is replaced by the following: 

(6)  ‘competent  authorities’  means  the  central  authorities  and  Eurojust,  Europol,  the 
EPPO [, the ETIAS Central Unit established within the European Border and Coast 
Guard  Agency]30  and  the  authorities  referred  to  in  Article  6(7)  subparagraph  1  of 
Regulation (EU) …/… [Regulation on Screening], which are competent to access or 
query ECRIS-TCN in accordance with this Regulation; 

4. 

Article 5 is amended as follows:  

(a) 

in paragraph 1, the following point is added: 

 ‘(c)  a flag indicating, for the purpose of [Regulation (EU) 2018/1240 and 
of  Article  11  and  12  of  Regulation  (EU)  …/…  [Regulation  on 
Screening],  that  the  third-country  national  concerned  has  been 
convicted for a terrorist offence or any other  criminal offence listed 
in  the  annex  to  Regulation  (EU)  2018/1240  if  they  are  punishable 
under national law by a custodial sentence or a detention order for a 
maximum period of at least three years, and in those cases the code 
of the convicting Member State(s).’; 

(b) 

the following paragraph 7 is added after paragraph 6: 

‘7.  Where hits are identified following the security checks referred to in 
Articles  11  and  12  of  Regulation  (EU)  …/…  [Regulation  on 
Screening]  flags  and  the  code(s)  of  convicting  Member  State(s)  as 
referred to in point (c) of paragraph 1 of this article shall be accessible 
and  searchable  only,  respectively,  by  the  competent  authorities 
referred  to  in  Article  6(7)  of  Regulation  (EU)  …/…  [Regulation  on 
Screening] for the purpose of that Regulation.’ 

29  COM/2019/3 final. 
30  Op. cit. 29. 

EN 

10 

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5. 

In Article 7, paragraph 7 is replaced by the following: 

‘7.      In  the  event  of  a  hit,  the  central  system  shall  automatically  provide  the 
competent  authority  with  information  on the Member States holding criminal 
records  information  on  the  third  country  national,  along  with  the  associated 
reference  numbers  referred  to  in  Article  5(1)  and  any  corresponding  identity 
information.  Such  identity  information  shall  only  be  used  for  the  purpose  of 
verifying the identity of  the third country national  concerned. The result  of  a 
search in the central system may only be used for the purposes of: 

(a)  making  a  request  according  to  Article  6  of  Framework  Decision 

2009/315/JHA; 

(b)  making a request referred to in Article 17(3) of this Regulation; 

(c) 

(d) 

[border management]31; 

assessing  whether  a  third  country  national  subject  to  screening  checks 
would  pose  a  threat  to  public  policy  or  public  security,  in  accordance 
with Regulation (EU) …/… [Regulation on Screening]. 

6. 

The following Article 7a is inserted after Article 7: 

‘Article 7a 

Use of ECRIS-TCN for the purposes of the Screening 

‘The  competent  authorities  referred  to  in  Article  6(7)  of  Regulation  (EU)  …/… 
[Regulation  on  Screening]  shall  have  the  right  to  access  and  search  the  European 
Criminal  Records  Information  System  for  third  country  nationals  (ECRIS-TCN) 
database  using  the  European  Search  Portal  provided  for  in  Article  6  of  Regulation 
(EU)  2019/818,  for  the  purpose  of  performing  the  tasks  conferred  upon  them  by 
Article 11 of Regulation (EU) …/… [Regulation on Screening]. 

For  the  purpose  of  the  security  check  referred  to  in  Article  11  of  Regulation  (EU) 
…/…  [Regulation  on  Screening],  the  competent  authorities  referred  to  in  the  first 
subparagraph shall  only  have access  to  data records in  the CIR to  which a flag has 
been added in accordance with Article 5(1)(c) of this Regulation. 

The consultation of national criminal records based on the flagged ECRIS-TCN data 
shall  take  place  in  accordance  with  national  law  and  using  national  channels.  The 
relevant  national  authorities  shall  provide  an  opinion  to  the  competent  authorties 
referred  to  in  Article  6(7)  of  Regulation  (EU)  …/…  [Regulation  on  Screening]  
within  two  days  where  the  screening  takes  place  on  the  territory  of  the  Member 
States or within  four days  where the screening takes place at  external  borders.  The 
absence  of  opinion  within  these  deadlines  shall  mean  that  there  are  no  security 
grounds to be taken into account.’ 

7. 

In Article 24, paragraph 1 is replaced by the following: 

31 

Op. cit.  29. 

EN 

11 

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‘1.   The data entered into the central system and the CIR shall only be processed for 

the purposes of:  

(a) 

(b) 

(c) 

the  identification  of  the  Member States  holding  the  criminal  records 
information of third-country nationals 
[border management] 32 or  

screening  pursuant  to  Article  11  of  Regulation  (EU)  …/…  [Regulation 
on Screening].’ 

Article 2 

Amendments to Regulation (EU) 2019/818 

Regulation (EU) 2019/818 is amended as follows: 

1. 

In Article 7, paragraph 2 is replaced by the following:  

“(2) The Member State authorities and Union agencies referred to in paragraph 1 shall 
use the ESP to search data related to persons or their travel documents in the central 
systems of Eurodac and ECRIS-TCN in accordance with their access rights as referred 
to  in  the  legal  instruments  governing  those  EU  information  systems  and  in  national 
law.  They  shall  also  use  the  ESP  to  query  the  CIR  in  accordance  with  their  access 
rights  under  this  Regulation  for  the  purposes  referred  to  in  Articles  20,  20a,  21  and 
22.” 

2. 

Article 17 is amended as follows: 

(a) 

paragraph 1 is replaced by the following: 

“A common identity repository (CIR), creating an individual file for each person that 
is registered in the EES, VIS, ETIAS, Eurodac or ECRIS-TCN containing  the  data 
referred to in Article 18, is established for the purpose of facilitating and assisting in 
the correct identification of persons registered in the EES, VIS, ETIAS, Eurodac and 
ECRIS-TCN in accordance with Articles 20 and 20a of this Regulation, of supporting 
the  functioning  of  the  MID  in  accordance  with  Article  21  and  of  facilitating  and 
streamlining  access  by  designated  authorities  and  Europol  to  the  EES,  VIS,  ETIAS 
and Eurodac, where necessary for the prevention, detection or investigation of terrorist 
offences or other serious criminal offences in accordance with Article 22.” 

(b)  paragraph 4 is replaced by the following: 

“  Where it is technically impossible because of a failure of the CIR to query the CIR 
for  the  purposes  of  identifying  a  person  pursuant  to  Article 20  or  of  verifying  or 

32 

Op. cit. 29. 

EN 

12 

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establishing the identity of a person pursuant to Article 20a of this Regulation, for the 
detection  of  multiple  identities  pursuant  to  Article 21  or  for  the  purposes  of 
preventing,  detecting  or  investigating  terrorist  offences  or  other  serious  criminal 
offences  pursuant  to  Article 22,  the  CIR  users  shall  be  notified  by  eu-LISA  in  an 
automated manner. 

3. 

In Article 18, paragraph 3 is replaced by the following:  

“(3)  The  authorities  accessing  the  CIR  shall  do  so  in  accordance  with  their  access 
rights  under  the  legal  instruments  governing  the  EU  information  systems,  and  under 
national law and in  accordance with their access rights under this Regulation for the 
purposes referred to in Articles 20, 20a, 21 and 22.” 

4. 

The following Article 20a is inserted after Article 20: 

Access  to  the  common  identity  repository  for  identification  according  to  Regulation  
(EU) …/… [Regulation on Screening]  

“Article 20a 

1. Queries of the CIR shall be carried out by the designated competent authority as 
referred  to  in  Article  6(7)  of  Regulation  (EU)  …/…  [Regulation  on  Screening], 
solely for the purpose of verifying or establishing the identity of a person according 
to  Article  10  of  that  Regulation,  provided  that  the  procedure  was  initiated  in  the 
presence of that person. 

2.  Where  the  query  indicates  that  data  on  that  person  are  stored  in  the  CIR,  the 
competent authority referred to in paragraph 1 shall have access to consult the data 
referred to in Article18(1) of this Regulation.” 

5. 

Article 24 is amended as follow:   

(a) 

paragraph 1 is replaced by the following:  

‘1.   Without  prejudice  to  Article  29  of  Regulation  (EU)  2019/816,  eu-LISA 
shall keep logs of all data processing operations in the CIR in accordance 
with paragraphs 2, 2a, 3 and 4 of this Article.’ 

(b) 

the following paragraph 2a is inserted after paragraph 2: 

“2a.  eu-LISA  shall  keep  logs  of  all  data  processing  operations  pursuant  to 
Article 20a in the CIR. Those logs shall include the following elements: 

(a) 

the Member State launching the query; 

(b) 

the purpose of access of the user querying via the CIR; 

(c) 

the date and time of the query; 

(d) 

the type of data used to launch the query; 

(e) 

the results of the query.” 

EN 

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(c) 

in paragraph 5, the first sub-paragraph is replaced by the following: 

“(5)  Each  Member  State  shall  keep  logs  of  queries  that  its  authorities  and  the 
staff of those authorities duly authorised to use the CIR make pursuant to 
Articles 20, 20a, 21 and 22. Each Union agency shall keep logs of queries 
that its duly authorised staff make pursuant to Articles 21 and 22.” 

Article 3 

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

This Regulation shall be binding in its entirety and directly applicable in the Member States in 
accordance with the Treaties. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

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