Regulation (EU) 2024/1352 of the European Parliament and of the Council of 14 May 2024 amending Regulations (EU) 2019/816 and (EU) 2019/818 for the purpose of introducing the screening of third-country nationals at the external borders
Date: 2024-05-14
Institutions: Council of the European Union, European Parliament
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




L_202401352EN.000101.fmx.xml












Official Journal of the European Union


EN
L series













2024/1352


22.5.2024







            REGULATION (EU) 2024/1352 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
         
of 14 May 2024
         
amending Regulations (EU) 2019/816 and (EU) 2019/818 for the purpose of introducing the 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 Article 78(2)(e), Article 79(2)(c), Article 82(1), second subparagraph, point (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,


Acting in accordance with the ordinary legislative procedure (1),

Whereas:







(1)


Regulation (EU) 2024/1356 of the European Parliament and of the Council (2) provides for the identification or verification of identity, security checks, preliminary health checks and preliminary vulnerability checks of third-country nationals at the external borders or within the territory of the Member States who have not been subject to border checks at the external borders of the Member States, as well as of those third-country nationals who have made an application for international protection at border crossing points or in transit zones, without fulfilling the entry conditions set out in Regulation (EU) 2016/399 of the European Parliament and of the Council (3). Regulation (EU) 2024/1356 creates uniform rules allowing for a swift identification or verification of identity of third-country nationals and their referral to the applicable procedures. It aims to strengthen the control of third-country nationals crossing the external borders and to provide for the consultation of the relevant EU information systems and databases in order to verify whether the third-country nationals subject to the screening might pose a threat to internal security.












(2)


Regulation (EU) 2024/1356 provides that the verification of persons subject to screening for security purposes is to be carried out against the same systems as for applicants for visas or for travel authorisations under the European Travel Information and Authorisation System (ETIAS). In particular, Regulation (EU) 2024/1356 provides that the personal data of persons submitted to the screening are to be checked against the European Criminal Records Information System for third-country nationals (ECRIS-TCN) established by Regulation (EU) 2019/816 of the European Parliament and of the Council (4) as regards persons convicted in relation to terrorist offences or other serious criminal offences.












(3)


Access to the ECRIS-TCN is necessary for the screening authorities defined in Regulation (EU) 2024/1356 in order to establish whether a person might pose a threat to internal security.












(4)


A hit indicated by ECRIS-TCN should not by itself be taken to mean that the third-country national concerned as defined in Regulation (EU) 2019/816 has been convicted in the Member States that are indicated. The existence of previous convictions should be confirmed only on the basis of information received from the criminal records of the Member States concerned.












(5)


Regulation (EU) 2024/1356 constitutes a development of the provisions of the Schengen acquis regarding borders and amends Regulations (EC) No 767/2008 (5), (EU) 2017/2226 (6), (EU) 2018/1240 (7) and (EU) 2019/817 (8) of the European Parliament and of the Council, which also constitute developments of the provisions 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), in the Entry/Exit System (EES) and in ETIAS. However, the parallel amendment of Regulation (EU) 2019/816 to grant access rights for the purposes of the screening to the data contained in ECRIS-TCN could not be part of Regulation (EU) 2024/1356 for reasons of variable geometry, as Regulation (EU) 2019/816 does not constitute a development of the provisions of the Schengen acquis. Regulation (EU) 2019/816 should therefore be amended by a separate legal act.












(6)


Regulation (EU) 2024/1356 provides for specific rules concerning the identification or verification of identity of third-country nationals by means of consulting the Common Identity Repository (CIR) established by Regulations (EU) 2019/817 and (EU) 2019/818 of the European Parliament and of the Council (9) in order to facilitate and assist in the correct identification or verification of identity of persons registered in the EES, VIS, ETIAS, Eurodac and ECRIS-TCN, including of unknown persons who are unable to identify themselves.












(7)


Since access to data stored in the CIR for purposes of identification or verification of identity is necessary for the screening authorities, Regulation (EU) 2024/1356 amends Regulation (EU) 2019/817. For reasons of variable geometry it was not possible to amend Regulation (EU) 2019/818 in Regulation (EU) 2024/1356, as Regulation (EU) 2019/818 does not constitute a development of the provisions of the Schengen acquis. Regulation (EU) 2019/818 should therefore be amended by a separate legal act.












(8)


Since the objective of this Regulation, namely to enable the screening authorities to access the data contained in ECRIS-TCN or in the CIR for the purposes of identification or verification of identity and the security checks established by Regulation (EU) 2024/1356, cannot be sufficiently achieved by the Member States, but can rather, by reason of its scale and effects, 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 to achieve that objective.












(9)


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 (TFEU), Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.












(10)


In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, 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 is added:






‘(f)


the conditions under which data in ECRIS-TCN may be used by the screening authorities as defined in Article 2, point (10), of Regulation (EU) 2024/1356 of the European Parliament and of the Council (*1) for the purpose of performing a security check in order to assess whether a third-country national might pose a threat to internal security as referred to in Article 15 of that Regulation (EU).





(*1)  Regulation (EU) 2024/1356 of the European Parliament and of the Council of 14 May 2024 introducing the 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 L, 2024/1356, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1356/oj).’;"
                        










(2)


in Article 2, second subparagraph, the following point is added:






‘(d)


enables access to ECRIS-TCN for the purpose of supporting the performance of a security check established by Regulation (EU) 2024/1356.’




;










(3)


in Article 3, point (6) is replaced by the following:






‘(6)


“competent authorities” means the central authorities, Eurojust, Europol, the EPPO, the VIS designated authorities as referred to in Article 9d and Article 22b(13) of Regulation (EC) No 767/2008, the ETIAS Central Unit and the screening authorities as defined in Article 2, point (10), of Regulation (EU) 2024/1356, 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, point (c) is replaced by the following:






‘(c)


a flag indicating, for the purpose of Regulations (EC) No 767/2008 and (EU) 2018/1240 and of Articles 15 and 16 of Regulation (EU) 2024/1356, that the third-country national concerned has been convicted in the previous 25 years of a terrorist offence or in the previous 15 years of any other criminal offence listed in the Annex to Regulation (EU) 2018/1240 if it is punishable by a custodial sentence or a detention order for a maximum period of at least three years under national law, including the code of the convicting Member State.’




;










(b)


in paragraph 7, first subparagraph, the following point is added:






‘(c)


the screening authorities, as defined in Article 2, point (10), of Regulation (EU) 2024/1356, for the purpose of assessing whether a third-country national might pose a threat to internal security where hits are reported following the security check referred to in Articles 15 and 16 of that Regulation.’




;














(5)


in Article 7(7), the following point is added:






‘(e)


supporting the objective of assessing whether a third-country national subject to a security check might pose a threat to internal security, in accordance with Regulation (EU) 2024/1356.’




;










(6)


the following Article is inserted:

‘Article 7c
Use of ECRIS-TCN for the purposes of the screening
The screening authorities, as defined in Article 2, point (10), of Regulation (EU) 2024/1356, shall have the right to access and search ECRIS-TCN data 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 Articles 15 and 16 of Regulation (EU) 2024/1356.
For the purpose of performing such tasks, the screening authorities, as defined in Article 2, point (10), of Regulation (EU) 2024/1356, shall have the right to access only those ECRIS-TCN data records in the CIR to which a flag has been added in accordance with Article 5(1), point (c), of this Regulation.
In the event of a hit, 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 of communication. The relevant national authorities of the convicting Member State shall provide an opinion to the screening authorities, as defined in Article 2, point (10), of Regulation (EU) 2024/1356, on whether the presence of that person on the territory of the Member States might pose a threat to internal security, within two days where the screening takes place on the territory of the Member State or within three days where the screening takes place at external borders. Where the relevant national authorities of the convicting Member State do not provide such an opinion within those deadlines, it shall be understood that there are no security grounds to be taken into account. National criminal records shall be consulted by the relevant national authorities of the convicting Member State prior to providing an opinion to the screening authorities, as defined in Article 2, point (10), of Regulation (EU) 2024/1356. Where, following a hit, no opinion has been provided and there are no security grounds to be taken into account, that absence of opinion and security grounds shall be recorded in the screening form as referred to in Article 17(1), point (h), of Regulation (EU) 2024/1356.’
;









(7)


in Article 24(1), first subparagraph, the following point is added:






‘(d)


supporting the objective of assessing whether a third-country national subject to a security check might pose a threat to internal security, in accordance with Regulation (EU) 2024/1356.’.










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:

‘1.   A 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 purposes of facilitating and assisting in the correct identification or verification of identity of persons registered in the EES, VIS, ETIAS, Eurodac and ECRIS-TCN in accordance with Articles 20 and 20a, 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:

‘4.   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 identifying or verifying the identity of a person pursuant to Article 20a, 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 is inserted:

‘Article 20a
Access to the common identity repository for the identification or verification of identity in accordance with Regulation (EU) 2024/1356

1.   Queries of the CIR shall be carried out by the screening authorities, as defined in Article 2, point (10), of Regulation (EU) 2024/1356 of the European Parliament and of the Council (*2), solely for the purpose of identifying or verifying the identity of a person in accordance with Article 14 of that Regulation, provided that the process was initiated in the presence of that person.


2.   Where the query indicates that data on that person are stored in the CIR, the screening authorities, as defined in Article 2, point (10), of Regulation (EU) 2024/1356, shall have access to consult the data referred to in Article 18(1) of this Regulation as well as the data referred to in Article 18(1) of Regulation (EU) 2019/817 of the European Parliament and the Council.



(*2)  Regulation (EU) 2024/1356 of the European Parliament and of the Council of 14 May 2024 introducing the 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 L, 2024/1356, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1356/oj).’;"
                        










(5)


Article 24 is amended as follows:






(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 is inserted:

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






(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.’




;









(c)


in paragraph 5, the first subparagraph is replaced by the following:

                                          ‘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

Entry into force and application

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
It shall apply from 12 June 2026.




This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.
Done at Brussels, 14 May 2024.


For the European Parliament


The President

R. METSOLA
            



For the Council


The President

H. LAHBIB
            





(1)  Position of the European Parliament of 10 April 2024 (not yet published in the Official Journal) and decision of the Council of 14 May 2024.

(2)  Regulation (EU) 2024/1356 of the European Parliament and of the Council of 14 May 2024 introducing the 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 L, 2024/1356, 22.5.2024, ELI: http://data.europa.eu/eli/reg/2024/1356/oj).

(3)  Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) (OJ L 77, 23.3.2016, p. 1).

(4)  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).

(5)  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).

(6)  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 (OJ L 327, 9.12.2017, p. 20).

(7)  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).

(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 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).

(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 and amending Regulations (EU) 2018/1726, (EU) 2018/1862 and (EU) 2019/816 (OJ L 135, 22.5.2019, p. 85).


ELI: http://data.europa.eu/eli/reg/2024/1352/oj
ISSN 1977-0677 (electronic edition)