Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a temporary derogation from certain provisions of Regulation (EU) 2017/2226 and Regulation (EU) 2016/399 as regards a progressive start of operations of the Entry/Exit System
Date: 2024-12-04
Institutions: Directorate-General for Migration and Home Affairs, European Commission
Subjects: Schengen Agreement, biometrics, border control, data processing, derogation from EU law, external border of the EU, foreign national, information system, third country

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   EUROPEAN COMMISSION  Brussels, 4.12.2024  COM(2024) 567 final 2024/0315 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a temporary derogation from certain provisions of Regulation (EU) 2017/2226 and Regulation (EU) 2016/399 as regards a progressive start of operations of the Entry/Exit System   
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for the proposal 

The  Entry/Exit  System  (EES)  is  a  crucial  component  of  the  border  management  of  the 
Schengen  area,  laid  down  in  Regulation  2017/22261  (‘EES  Regulation’).  As  a  centralised 
database,  the  EES  registers  entries,  exits  and  refusals  of  entry  of  third-country  nationals 
crossing the external borders of 29 Schengen Member States for a short stay. The EES marks 
a  significant  milestone  in  the  EU’s  efforts  to  enhance  security  and  efficiency  at  its  external 
borders.  For  the  first  time,  a  system  will  collect  biometric  data,  such  as  facial  images  and 
fingerprints  of  third  country  nationals  crossing  the  external  borders.  The  EES  will  grant 
Schengen  Member  States  real-time  access  to  third-country  nationals’  personal  data,  travel 
history and information on whether they comply with the authorised short-stay period in the 
Schengen area. As a result, the EES will significantly reduce the likelihood of identity fraud 
and overstay, ultimately strengthening the security of the Schengen area.  

Despite  significant  efforts  from  Member  States,  the  European  Union  Agency  for  the 
Operational  Management  of  Large-Scale  IT  Systems  in  the  Area  of  Freedom,  Security  and 
Justice  (eu-LISA)  and  the  Commission,  it  is  not  possible  to  launch  the  EES  in  Q4  2024  as 
endorsed by the Justice and Home Affairs Council in October 20232. The Commission has not 
received all notifications from Member States as per Article 66(1)(c) of the EES Regulation, 
which is a legal requirement for the EES to start operations. While a large number of Member 
States have notified their readiness to the Commission, certain Member States have indicated 
that they are not in a position to do so. At the same time, a full start of operations overnight 
constitutes  a  risk  factor  for  the  resilience  of  a  complex  IT  system,  such  as  the  EES  Central 
System.  

In light of the above, stakeholders involved in the operations of the EES have made clear their 
preference that the introduction of new processes at the external borders should be preceded 
by  a  period  of  adjustment  for  national  authorities  and  travellers  to  give  a  greater  degree  of 
certainty.  Fully  launching  a  new  large-scale  IT  system  at  all  border  crossing  points  where 
technical adjustments are required in real-time could pose risks to secure and smooth travel, 
particularly  in  areas  where  the  existing  infrastructure,  a  lack  of  space  or  other  constraints 
already pose challenges. These challenges are exacerbated by the differences among Member 
States on the way that the EES is being implemented due to the diversity of border crossing 
points and different approaches to automation and to deployment of new technologies.  

However, the EES Regulation only allows for a full start of operations, requiring all Member 
States  to  start  using  the  EES  fully  and  simultaneously  for  all  travellers  who  are  subject  to 

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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, ELI: http://data.europa.eu/eli/reg/2017/2226/2021-08-03). 
The interoperability implementation involving the EES as the first system, followed by ETIAS, ECRIS-
TCN,  the  new  Eurodac,  the  revised  VIS  and  the  ‘Interoperability’  Regulations  rolled  out  in  parallel, 
follows a roadmap, which had been revised due to emerging complexities. 

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registration  in  the  EES  at  all  their  external  border  crossing  points.  It  does  not  foresee  the 
option of a period of adjustment. 

Considering  the  above,  it  appears  that  the  objectives  of  the  EES  can  be  achieved  more 
effectively and with greater certainty if a degree of flexibility is introduced at the start of the 
system’s operations. To that end, a Regulation enabling a progressive start of operations for a 
limited period of time is considered necessary. This proposed Regulation derogates from the 
EES Regulation to the extent necessary to enable a progressive start of operations. This will 
preserve the efforts made by both eu-LISA and Member States, while meeting the objectives 
of the EES to modernise the management of the external borders and contribute to the internal 
security of the European Union. 

Moreover, the proposed Regulation offers a flexible approach that accommodates the diverse 
needs of Member States. It enables those who wish to implement it gradually to do so, while 
enabling others to start operations fully from day one. It should however be noted that the full 
benefits of the EES will only be available once all Member States are applying it in full.  

This  proposal  also  introduces  measures  that  enable  Member  States  to  effectively  manage 
exceptional circumstances, such as technical problems or periods of peak travel. To mitigate 
such  risks,  Member  States  can  suspend  the  use  of  the  system,  fully  or  partially,  for  a  short 
period of time during the period of the progressive start of operations. This mechanism will 
also be retained for a limited period after the full start of operations. 

In  expert  and  technical  level  exchanges  as  well  as  in  the  Management  Board  of  eu-LISA, 
most  Member  States  expressed  support  for  a  progressive  start  of  operations  and 
acknowledged  that  it  will  allow  for  a  better  implementation  of  the  new  EES  rules  at  the 
external  borders.  The  progressive  approach  has  also  been  welcomed  by  most  carriers  and 
operators  of  infrastructure  hosting  border  crossing  points  during  a  dedicated  meeting  with 
these stakeholders. Member States should ensure appropriate coordination with the operators 
of  infrastructure  of  those  border  crossing  points  at  which  the  EES  is  deployed.    Member 
States  should  ensure  transparency  about  the  deployment  of  the  EES  at  their  external  border 
crossing points and make sure that the measures are effectively communicated to both carriers 
and travellers.  

• 

Objectives of the proposal 

The general objectives of this proposal result from the Treaty-based goals to further improve 
the management of the external borders of the Schengen area by starting to apply, as soon as 
possible, the EES harmonised rules on cross border movements and therefore contribute to the 
internal security of the European Union. 

This  initiative  lays  the  ground  for  a  progressive  start  of  the  EES  operations,  derogating 
temporarily  from  certain  provisions  of  the  EES  Regulation  and  Regulation  (EU)  2016/399 
(‘Schengen Borders Code3’) that require Member States to use the system fully.  

The  general  objective  of  the  proposal  is  to  facilitate  the  operationalisation  of  the  EES 
Regulation, thereby enabling Member States to achieve the system’s objectives set out in the 
EES Regulation in a timely and efficient manner. 

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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  (OJ  L  77,  23.3.2016,  p.  1–52, 
ELI:  http://data.europa.eu/eli/reg/2016/399/2024-07-10). 

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The specific objectives of the proposal are to: 

1. 

1. 

2. 

3. 

4. 

5. 

6. 

• 

provide flexibility to Member States to start using the EES according to their level of 
readiness  in  line  with  the  EES’s  high  standards  for  using  technologically  advanced 
equipment to collect data; 

facilitate  technical  and  operational  adjustments  during  the  first  period  of  the  EES 
operations by allowing the system to be gradually deployed;   

better manage and avoid potential long waiting times at the external borders; 

improve  the  current  situation  by  ensuring  that  end  users,  such  as  border  guards, 
immigration  officials,  visa  authorities  and  law  enforcement  officers,  have  access  to 
the most up-to-date information on travellers’ identities even if the data recorded in 
the system is incomplete due to the progressive deployment of the EES; 

ensure  that  solutions  are  in  place  for  the  Member  States  to  address  unexpected 
situations  that  may  arise  following  the  start  of  the  EES  operations  to  avoid 
disruptions at external borders and long waiting times;  

enable  national  authorities,  travellers  and  carriers  to  adjust  to  the  new  border 
management processes and technologies; 

preserve major investments made, in particular those in infrastructure, equipment and 
human resources, in preparation for the start of the EES operations.  

Consistency with existing policy provisions in the policy area 

The current EU legal framework in this area consists of EU legislation on controls at external 
borders.  The  proposed  legislation  also  contributes  to  achieving  the  objectives  set  out  in  the 
Schengen Borders Code and the Convention implementing the Schengen Agreement.4 

The  proposal  is  consistent  with  the  rules  laid  down  in  the  General  Data  Protection 
Regulation.5  

The  Regulation  is  fully  consistent  with  the  existing  legal  framework  for  data  protection.  It 
provides targeted temporary derogations from the EES Regulation and the Schengen Borders 
Code that are necessary to allow for a progressive start of the EES operations.  

• 

Consistency with other EU policies 

The progressive start of the EES operations will be consistent with the application of the Visa 
Information  System  (VIS)  and  the  future  European  Travel  Information  and  Authorisation 
System (ETIAS), as well as with the future interoperability components being developed by 
eu-LISA,  namely  the  European  Search  Portal,  the  shared  Biometric  Matching  Service,  the 
Common  Identity  Repository  and  the  Multiple-Identity  Detector6.  A  revised  integrated 

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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 
(OJ  L  239,  22.9.2000,  p. 19,  ELI: 
http://data.europa.eu/eli/convention/2000/922/oj). 
Regulation  (EU)  2016/679  of  the  European  Parliament  and  of  the  Council  of  27  April  2016  on  the 
protection of natural persons with regard to the processing of personal data and on the free movement of 
such  data,  and 
(OJ  L  119,  4.5.2016,  p.  1–88,  ELI: 
http://data.europa.eu/eli/reg/2016/679/2016-05-04). 
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) 

repealing  Directive  95/46/EC 

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planning of ETIAS as well as of all interoperability components will be discussed and agreed 
between the Commission, Member States and eu-LISA in the light of the expected entry into 
operations of the EES. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This  Regulation  provides  for  a  temporary  derogation  from  certain  provisions  of  the  EES 
Regulation  and  of  the  Schengen  Borders  Code,  which  were  adopted  on  the  basis  of 
Article 77(2)(b) and (d) of the Treaty on the Functioning of the European Union (TFEU) and 
Article 87(2)(a) of the TFEU, and of Article 77(2)(b) and (e) of the TFEU, respectively. It is 
appropriate  to  adopt  this  proposed  Regulation  on  the  basis  of  the  same  provisions  of  the 
TFEU as those of the EES Regulation.  

• 

Subsidiarity (for non-exclusive competence)  

According to the principle of subsidiarity, EU action may only be taken if the envisaged aims 
cannot be achieved by Member States alone.  

The  aim  of  the  proposed  Regulation  is  to  enable  implementation  of  the  rules  set  out  in  the 
EES  Regulation.  A  progressive  start  of  operations  of  a  common  information  system  with 
harmonised rules and timelines cannot be sufficiently achieved by the Member States alone. 
EU action is needed to ensure a progressive start of EES operations. 

• 

Proportionality 

The  proposal  complies  with  the  principle  of  proportionality  as  set  out  in  Article 5  of  the 
Treaty on European Union as it will not go beyond what is necessary for the set objectives to 
be achieved.  

In particular, the proposed Regulation creates a limited derogation from the EES Regulation 
and  the  Schengen  Borders  Code  with  the  aim  of  allowing  for  the  progressive  start  of  EES 
operations. 

• 

Choice of the instrument 

The objectives of the proposal can best be pursued through a Regulation. It will ensure direct 
applicability  of  the  provisions  and  a  uniform  and  consistent  approach  throughout  the 
Schengen area. This is of particular importance as the proposed Regulation derogates from the 
EES Regulation, which sets up a central system through which Member States cooperate and 
lays  down  rules  on  border  checks,  and  the  Schengen  Borders  Code.  As  the  proposed 
Regulation aims to introduce uniform obligations on Member States and transport operators, 
the  appropriate  instrument  to  be  used  to  achieve  the  objectives  of  this  initiative  is  a 
Regulation.  

2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and 
(OJ  L  135  22.5.2019,  p.  27,  ELI: 
Council  Decisions  2004/512/EC  and  2008/633/JHA 
http://data.europa.eu/eli/reg/2019/817/2024-04-25). 

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3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EVALUATIONS, 

EX POST 

OF 

STAKEHOLDER 

Ex post evaluations/fitness checks of existing legislation 

Not applicable. 

• 

Stakeholder consultations 

Not applicable. 

• 

Collection and use of expertise 

The proposal took into due consideration the results of a comprehensive consultation process 
during  the  design  and  development  of  the  EES.  This  process  included  discussions  with  IT 
experts, policy experts, operational and legal experts from Member States and eu-LISA within 
the context of the eu-LISA Advisory Group, the eu-LISA Programme Management Board, the 
eu-LISA Management Board and the Smart Borders Committee. There were also exchanges 
with stakeholders and discussions in the Council.  

• 

Impact assessment 

The  proposal  intends  to  introduce  a  limited  derogation  from  the  EES  Regulation  and  the 
Schengen Borders Code to ensure a progressive start of the EES operations. Given the policy 
objective, there are no other policy options available. An impact assessment  is therefore not 
appropriate or needed.  

The impact assessments for the EES were carried out starting in 2008, and together with the 
consultation  of  interested  parties  and  discussions  in  the  Council  and  European  Parliament, 
constituted  the  basis  for  a  detailed  impact  assessment  prepared  by  the  Commission 
accompanying  the  proposal  on  the  EES  Regulation7.  The  impact  assessment  focused  on 
crucial needs  for border  management to  be  addressed by  the establishment  of the EES.  The 
core commitments that need to be put in place are: (i) improving the quality of border checks; 
(ii) ensuring the reliable identification of individuals; and (iii) strengthening internal security 
and the fight against terrorism and serious crime. These needs will only be achieved through 
the entry into operation of the EES.  

• 

Regulatory fitness and simplification 

Not applicable. 

• 

Fundamental rights 

The  proposal  takes  full  account  of  the  fundamental  rights  and  principles  recognised  by  the 
Charter of Fundamental Rights of the European Union. In particular, the proposed measures 
take  into  account  Article 6  of  the  Charter  that  protects  the  fundamental  right  to  liberty  and 
security, Article 7 of the Charter that protects the fundamental right of everyone to the respect 
for his or her private and family life and Article 8 on the fundamental right to the protection 
of  personal  data.  The  proposed  measures  are  also  in  line  with  Article 16  TFEU  which 
guarantees everyone the right to the protection of their personal data. 

7 

SWD(2016) 114 final, SWD(2016) 115 final, SWD(2016) 116 final. 

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The proposal does not change the strict access rules to the EES, and the necessary safeguards 
set out in the EES Regulation, including the respect for personal data as a fundamental right 
and the right to information.  

4. 

BUDGETARY IMPLICATIONS 

This proposal has no implications for the EU budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The  programme  for  monitoring  the  outputs,  results  and  impact  of  the  proposed  Regulation 
follows the one set out in Article 72 of the EES Regulation. 

In addition, a consistent mechanism based on roll-out plans and reporting obligations allows 
for  decision-making  and  overall  monitoring  before  and  during  the  progressive  start  of 
operations.  The  roll-out  plans  developed  at  central  and  national  level  are  the  result  of  close 
cooperation between Member States, eu-LISA and the Commission. 

• 

Detailed explanation of the specific provisions of the proposal 

The proposal is composed of the blocks described below. 

– 

– 

– 

Phased  deployment  (Articles  1,  2  and  4):  Member  States  will  progressively  start 
the  EES  operations,  beginning  with  a  minimum  registration  of  10%  of  estimated 
border  crossings  and  reaching  full  registration  of  all  individuals  by  the  end  of  the 
period of the progressive start  of operations. Refusals  of entry will be registered  at 
the border crossing points at which  the EES operates. Member States will have the 
possibility to  accelerate  implementation  at  national  level  or start  operating the EES 
fully. Europol will also start using the EES from the first day of the progressive start 
of operations.  

Roll-out plans, monitoring and reporting (Article 3): The details of a progressive 
entry into operation at central and national level will be set out in the roll-out plans 
of  eu-LISA  and  Member  States,  upon  consultation  with  the  Commission.  Member 
States  will  provide  monthly  progress  reports  to  the  Commission  and  eu-LISA.  In 
case a Member State decides to start operating the EES fully, the roll-out plan would 
only explain that choice. 

Temporary  rules  derogating  from  the  EES  Regulation  and  the  Schengen 
Borders  Code  (Article 5):  Mandatory  stamping  of  travel  documents  for  all 
individuals falling in the scope of the EES will remain in place until the end of the 
period  of  the  progressive  start  of  operations.  Where  the  EES  is  deployed,  Member 
States  will  record  travellers’  data  from  their  travel  documents.  Member  States  may 
record biometric data progressively. The authorities accessing the data registered in 
the EES during the period of the progressive start of the EES operations will consider 
stamps as prevailing over the data registered in the EES. Interoperability between the 
EES and the VIS will be used at border crossing points at which the EES is operated. 
The possible  consequences of the information  on the maximum remaining  duration 
of authorised stay provided by the automated calculator will be disregarded. Identity 
verification and previous registration of third-country nationals will only take place 
at  the  border  crossing  points  at  which  the  EES  is  operated  with  biometric 
functionalities.  The  website,  information  campaign  and  the  template  to  be  given  to 

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– 

– 

– 

travellers  will  be  adapted  to  reflect  the  progressive  start  of  operations.  To  ensure 
consistency across EU legal instruments and a clear application of the rules,  certain 
provisions  of  the  EES  Regulation  and  of  the  Schengen  Borders  Code  will  be 
suspended during the progressive start of operations of the EES. 

Access  to  the  EES  data  (Article  6):  Relevant  authorities  should  consider  that  the 
data registered in the EES during the progressive start of operations of the EES may 
be incomplete. Data registered in the EES during the period of the progressive start 
of operations will not be used by the European Border and Coast Guard Agency for 
risk  analysis  and  vulnerability  assessments.  The  use  of  several  EES  functionalities 
requiring the uniform application of the EES in all Member States will be suspended 
during  the  progressive  start  of  operations.  Carriers  may  only  start  using  the  web 
service 90 days after the start of the period of the progressive start of operations. 

Suspension of the EES operations (Article 7): In exceptional cases of failure of the 
EES Central System, national systems or communication infrastructure, or excessive 
waiting  times  at  borders,  Member  States  can  decide  not  to  record  any  data  (full 
suspension)  or  not  to  record  biometric  data  (partial  suspension).  Partial  suspension 
will  be  possible  after  the  end  of  the  progressive  start  of  operations  for  a  limited 
period  in  exceptional  circumstances  leading  to  traffic  of  such  intensity  that  the 
waiting times at borders become excessive.  

Entry into force and application (Article 8): The proposal sets out three phases of 
applicability:  (i)  the  preparatory  work  related  to  the  roll-out  plans  as  referred  to  in 
Article 3  would  be  triggered  by  the  date  of  the  entry  into  force  of  the  proposed 
Regulation;  (ii)  the  period  of  the  progressive  start  of  operations  will  start  from  the 
date  decided  by  the  Commission  in  accordance  with  Article 66(1)  of  the  EES 
Regulation after having received all notifications from Member States as per Article 
66(1)(c)  of  the  EES  Regulation;  and  (iii)  an  extended  period  of  applicability  will 
apply for some of the derogatory rules on the application of transitional period and 
transitional  measures,  access  to  and  use  of  incomplete  files  and  on  carriers’ 
obligation  to  verify  stamps  affixed  in  the  travel  documents  referred  to  in  Article 6 
and  the  suspension  mechanism  referred  to  in  Article 7.  The  notifications  from 
Member States as per Article 66(1)(c) of the EES Regulation should be seen in the 
light  of  the  progressive  start  of  operations.  Through  these  notifications,  Member 
States  confirm  their  ability  to  use  the  EES.  However,  this  does  not  entail  that  all 
border  crossing  points  need  to  be  fully  ready  and  equipped  from  the  start  of  the 
progressive approach. 

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2024/0315 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on a temporary derogation from certain provisions of Regulation (EU) 2017/2226 and 
Regulation (EU) 2016/399 as regards a progressive start of operations of the Entry/Exit 
System 

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 77(2) points (b) and (d) and Article 87(2) point (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 procedure1, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

1 

2 

Article  66(1)  of  Regulation  (EU)  2017/2226  of  the  European  Parliament  and  of  the 
Council2, establishing the Entry/Exit System (‘EES’), provides that the Commission is 
to  decide  the  date  from  which  the  EES  is  to  start  operations,  provided  that  certain 
conditions are met.  

However, the Commission has not received all notifications pursuant to Article 66(1), 
point (c), of Regulation (EU) 2017/2226, which is one of the conditions for deciding 
on the start of operations of the EES.  

Regulation  (EU)  2017/2226  only  allows  for  a  full  start  of  operations,  requiring  all 
Member  States  to  start  using  the  EES  fully  for  all  third-country  nationals  subject  to 
registration in the EES and to use the EES simultaneously at all their border crossing 
points.  

To  provide  Member  States  with  the  necessary  flexibility  to  start  using  the  EES 
according  to  their  level  of  readiness  and  facilitate  technical  and  operational 
adjustments when starting to operate the EES, it is necessary to lay down rules for a 
progressive  start  of  operations  of  the  EES.  To  ensure  these  adjustments  reflect 
potential  travel  flows  and  seasonal  peaks,  such  a  progressive  start  should  have  a 
duration of 180 calendar days.  

[placeholder] Position of the European Parliament of [date to be added after agreement] and decision of 
the Council of [date to be added after agreement]. 
Regulation   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, ELI: http://data.europa.eu/eli/reg/2017/2226/oj). 

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(5) 

To  enable  a  progressive  start  of  operations  of  the  EES  it  is  therefore  necessary  to 
derogate from certain provisions of Regulation (EU) 2017/2226 and Regulation (EU) 
2016/399 of the European Parliament and of the Council3 (‘Schengen Borders Code’). 
Other  rules  set  out  in  Regulation  (EU)  2017/2226  that  are  not  affected  by  this 
Regulation apply as provided for in that Regulation. In particular, the data recorded in 
the  EES  throughout  the  progressive  start  of  operations  follow  the  rules  set  out  in 
Regulation (EU) 2017/2226 and are considered reliable and accurate.  

(6)  Member  States  should  progressively  start  operating  the  EES  to  record,  on  entry  and 
exit,  the  data  of  third-country  nationals  subject  to  registration  in  the  EES  at  one  or 
more border crossing points. If possible and applicable, Member States should include 
a  combination  of  air,  land  and  sea  border  crossing  points.  To  ensure  a  controlled 
launch of the EES and to better manage and avoid potential long waiting times at the 
borders,  where  relevant,  Member  States  should  deploy  all  the  functionalities  of  the 
EES  progressively  and  register  the  data  of  all  third-country  nationals  subject  to 
registration in  the EES  gradually. To ensure a coordinated approach, the  progressive 
start  of  operations  should  be  implemented  in  phases,  which  should  set  the  minimum 
requirements to be reached by Member States. Member States will have the possibility 
to accelerate implementation at national level or start operating the EES fully from the 
beginning of the progressive approach.   

(7) 

(8) 

To  facilitate  a  smooth  deployment  of  the  EES,  the  European  Union  Agency  for  the 
Operational Management of Large-Scale IT Systems in the Area of Freedom, Security 
and Justice (eu-LISA) should develop a high-level roll-out plan to provide guidance to 
Member  States  and  Union  agencies  on  planning  and  executing  the  EES  deployment 
during  its  progressive  start  of  operations  and  should  submit  it  to  the  Commission, 
Member States and Union agencies. This plan should include the capacity limits of the 
Central  System  as  specified  by  eu-LISA  for  each  phase  of  deployment.  Member 
States’ decisions to start or advance operations should take into account  the capacity 
of the Central System as outlined in the high-level roll-out plan.  

To facilitate a smooth deployment of the EES, Member States should develop national 
roll-out  plans  in  consultation  with  the  Commission  and  eu-LISA.  For  each  of  the 
phases of the progressive start of the EES operations, the national roll-out plans should 
include  the  information  on  the  set  thresholds  and  requirements,  in  particular:  (i)  the 
date from which the EES will operate at each border crossing point; (ii) the percentage 
of the estimated number of border crossings to be registered in the EES out of the total 
number  of  third-country  nationals  subject  to  registration  in  the  EES;  and  (iii)  where 
applicable, the biometric functionalities to be operated at each selected border crossing 
point.  When  preparing  their  respective  national  roll-out  plans,  Member  States  are 
encouraged  to  appropriately  coordinate  with  the  operators  of  infrastructure  where 
border crossing points are located. To monitor compliance with the progressive start of 
operations,  Member  States  should  provide  the  Commission  and  eu-LISA  monthly 
reports  on  the  implementation  of  their  roll-out  plans.  Such  monthly  reports  should 
include  corrective  measures,  where  necessary,  to  ensure  compliance  with  the 
progressive start of operations. 

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, ELI: http://data.europa.eu/eli/reg/2016/399/oj). 

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(9) 

Due to the progressive start of operations of the EES and possible incompleteness of 
the  data  recorded  in  the  EES,  travel  documents  of  third-country  nationals  should  be 
systematically stamped on entry and exit during the progressive start of operations of 
the EES. National authorities should take into account the possible incompleteness of 
entry/exit  records  or  of  refusal  of  entry  records  and  should  consider  stamps  as 
prevailing  over  the  information  registered  in  the  EES.  In  addition,  when  providing 
information to third-country nationals about the maximum remaining duration of their 
authorised stay, national authorities should base their assessment on the stamps affixed 
in the travel documents. The data recorded in the EES should prevail in case a stamp is 
missing.  

(10)  Considering  that  the  data  registered  in  the  EES  during  the  progressive  start  of 
operations  of  the  EES  might  be  incomplete,  national  authorities  should  not  take  into 
account the results provided by the automated calculator  on the maximum remaining 
duration  of  the  authorised  stay  of  third-country  nationals  registered  in  the  EES. 
Similarly,  when  carrying  out  their  tasks,  national  authorities  should  not  take  into 
account the automated mechanism to identify or flag the lack of exit records following 
the date of expiry of an authorised stay or the records for which the maximum duration 
of authorised stay was exceeded, generating lists of persons identified as overstayers. 

(11)  To provide Member States with the necessary time to adjust to the start of the EES, for 
the first  60  calendar days  of the progressive start of operations,  the use of biometric 
functionalities  at  border  crossing  points  should  not  be  mandatory.  No  later  than  the 
90th  calendar  day  after  the  progressive  start  of  operations,  Member  States  should 
operate the EES with biometric functionalities at least at half of their border crossing 
points.  Providing  biometric  data  should  not  be  an  entry  condition  for  third-country 
nationals subject to registration in the EES at the border crossing points where the EES 
is operated without biometric functionalities.  

(12)  To  accommodate  the  need  to  progressively  deploy  the  EES  with  biometric 
functionalities  at  some  border  crossing  points,  the  biometric  verification  of  third-
country nationals  subject  to  registration in the EES should only be carried out  at  the 
border crossing points at which the EES is operated with biometric functionalities.  

(13)  To  ensure  coherence  of  the  operations  of  the  interoperability  between  the  Visa 
Information  System  (VIS)  established  by  Regulation  (EC)  No  767/2008  of  the 
European  Parliament  and  of  the  Council4  and  the  EES,  the  VIS  should  only  be 
accessed directly at those border crossing points at which the EES is not operated. At 
the  border  crossing  points  at  which  the  EES  is  operated,  border  authorities  should 
make use of the interoperability between the EES and the VIS. 

(14)  Third-country nationals whose data are to be recorded in the EES should be informed 
about their rights and obligations regarding the processing of their data in the form of 
a  template  as  provided  in  Article  50(5)  of  Regulation  (EU)  2017/2226.  The 
information  to  be  provided  to  third-country  nationals  subject  to  the  EES  registration 
should refer to the progressive start of operations of the EES. Third-country nationals 
should  be  informed  in  the  template  of  their  obligation  to  provide  biometric  data  at 
border  crossing  points  where  it  constitutes  an  entry  condition.  They  should  be  made 
aware  in  the  template  of  the  consequences  of  not  providing  biometric  data.  They 

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, ELI: http://data.europa.eu/eli/reg/2008/767/oj). 

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should be informed in the template that it will not be possible for them to verify the 
remaining duration of the authorised stay by automated means. 

(15)  To  reflect  the  progressive  start  of  operations  of  the  EES,  the  Commission  should 

introduce relevant updates on the EES website. 

(16)  The  aim  of  raising  awareness  among  third-country  nationals  on  their  specific  rights 
and  obligations  would  be  best  achieved 
the 
implementation of the campaign based on how the EES will operate at their borders at 
which  the  EES  is  operated  in  accordance  with  Article  4  of  Regulation  (EU) 
2017/2226. The information materials developed by the Commission with the support 
of  Member  States  in  the  context  of  Article 51  of  Regulation  (EU)  2017/2226  should 
therefore  be  adapted  to  carry  out  the  information  campaign  accompanying  the 
progressive start of operations.  

if  Member  States  customise 

(17)  During the progressive start of operations of the EES, the web service will not enable 
third-country  nationals  to  electronically  verify  the  exact  duration  of  their  authorised 
stay. 

(18)  This  Regulation  does  not  affect  the  obligations  of  air  carriers,  sea  carriers  and 
international carriers transporting groups overland by coach as set out in Article 26(1) 
of  the  Convention  implementing  the  Schengen  Agreement5  and  Council  Directive 
2001/51/EC.6  In  this  respect,  carriers  should  verify  the  stamps  affixed  in  travel 
documents.  To  ensure  effective  communication  with  carriers  about  the  distinct 
application of the EES at the border crossing points, ultimately benefiting travellers, it 
is crucial that Member States are transparent about the deployment of the EES at their 
border crossing points. 

(19)  Article  22  of  Regulation  (EU)  2017/2226  and  Article  12a  of  Regulation  (EU) 
2016/399  provide  for  a  transitional  period  and  transitional  measures  referring  to  the 
start of operations of the EES. It is necessary to derogate from those Articles to ensure 
that the transitional period and the transitional measures apply only as of the end of the 
progressive start of operations. That derogation should cease to apply 5 years and 180 
calendar  days  after  the  date  decided  by  the  Commission  in  accordance  with  Article 
66(1) of Regulation (EU) 2017/2226. 

(20)  To ensure that national authorities and EU agencies, in the performance of their tasks, 
avoid  taking  decisions  exclusively  based  on  data  registered  in  the  EES,  they  should 
take  into  account  that  individual  files  registered  in  the  EES  may  contain  incomplete 
data sets. That derogation should cease to apply 5 years after the date decided by the 
Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226 to reflect 
the 5-year retention period for data sets for which the exit record is missing as set out 
in Article 34(3) of that Regulation.  

(21)  When ensuring compliance with the provisions in Regulation (EU) 2017/2226 on the 
amendment  of  data  and  advance  data  erasure,  Member  States  should  complete  the 

5 

6 

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 (‘the Convention implementing the Schengen 
Agreement’) (OJ L 239, 22.9.2000, p. 19, ELI: http://data.europa.eu/eli/convention/2000/922/oj). 
Council  Directive  2001/51/EC  of  28 June  2001  supplementing  the  provisions  of  Article 26  of  the 
Convention implementing the Schengen Agreement of 14 June 1985 (OJ L 187, 10.7.2001, p. 45, ELI: 
http://data.europa.eu/eli/dir/2001/51/oj). 

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incomplete data to  the extent permitted by the limited availability of the sets  of data 
registered in the EES during the progressive start of operations. 

(22)  The  European  Border  and  Coast  Guard  Agency  should  refrain  from  using  data 
registered  in  the  EES  during  the  progressive  start  of  operations  for  carrying  out  risk 
analyses and vulnerability assessments due to the incompleteness of the data that could 
lead to misleading risk and vulnerability assessments. 

(23)  To ensure effective management of the external borders during the progressive start of 
operations of the EES, at the border crossing points at which the EES is not operated, 
border checks should be carried out in accordance with Regulation (EU) 2016/399 as 
applicable  [the  day  before  the  date  from  which  the  EES  is  to  start  operations  as 
decided  by  the  Commission  in  accordance  with  Article  66(1)  of  Regulation  (EU) 
2017/2226]. At the border crossing points at which the EES is operated, border checks 
should  be  carried  out  in  accordance  with  Regulation  (EU)  2017/2226  and  the 
Schengen Borders Code. However, specific derogations from these Regulations should 
apply with regards to the verification at the border crossing points at which the EES is 
operated without biometric functionalities to enable the progressive start of operations. 
This  should  happen  without  prejudice  to  verifications  of  visa  holders  by  using 
fingerprints, in accordance with Regulation (EC) 787/2008. 

(24)  To enable an effective adjustment of technical and organisational arrangements during 
the  progressive  start  of  operations  of  the  EES  in  each  Member  State  and  to  address 
exceptional  circumstances  of  failure  of  the  EES  Central  System,  national  systems  or 
communication  infrastructure,  or  excessive  waiting  times  at  their  borders,  Member 
States  should  have  the  possibility  to  suspend  the  operations  of  the  EES  at  certain 
border crossing points, fully or partially. In case of partial suspension, the registration 
of biometric data in the EES should be suspended. In case of full suspension, no data 
should be registered in the EES. To mitigate additional risks related to the deployment 
of the EES with biometric functionalities, Member States should have the possibility, 
in exceptional circumstances leading to traffic of such intensity that the waiting times 
at borders become excessive, to suspend the registration of biometric data in the EES 
after  the  end  of  the  progressive  start  of  operations.  Such  a  suspension  should  be 
possible  for  a  limited  period  of  60  days  after  the  end  of  the  progressive  start  of 
operations  of  the  EES,  and  should  be  extended  by  60  days  if  less  than  80%  of  the 
individual files registered in the EES during the progressive start of operations of the 
EES contain biometric data.  

(25) 

eu-LISA should issue reports on the statistics on the use of the system, which should 
serve to evaluate the system’s performance, assess Member States compliance with the 
roll-out  plans,  identify  areas  for  improvement,  monitor  compliance  with  the 
progressive start of operations of the EES, and support decision-making relating to the 
system’s further development and optimisation. 

(26)  The preparatory work related to  the roll-out  plans  should  be triggered by the date of 
the entry into force of this Regulation. The progressive start of operations should apply 
from  the  date  decided  by  the  Commission  in  accordance  with  Article  66(1)  of  EES 
Regulation. As this Regulation provides for temporary derogations, it should cease to 
apply 180 calendar days after the date decided by the Commission in accordance with 
Article  66(1)  of  Regulation  (EU)  2017/2226.    However,  the  derogatory  rules  on  the 
application  of  transitional  period  and  transitional  measures,  access  to  EES  data, 
verification  by  the  carriers  of  stamps  affixed  in  the  travel  documents  and  the 

EN 

12 

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suspension  of  the  EES  should  apply  for  a  limited  period  after  the  end  of  the 
progressive start of operations.  

(27)  The  objective  of  this  Regulation,  authorising  derogations  from  Regulation  (EU) 
2017/2226  and  Regulation  (EU)  2016/299  to  provide  for  a  progressive  start  of 
operations  of  the  EES,  cannot  be  sufficiently  achieved  by  Member  States  but  can 
rather,  by  reason  of  the  scale  and  impact  of  the  action,  be  better  achieved  at  Union 
level. Therefore,  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 those objectives. 

(28) 

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 should, 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.  

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

(30)  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 those states association with the implementation, application and 
development  of  the  Schengen  acquis,  which  fall  within  the  area  referred  to  in 
Article 1, point A of Council Decision 1999/437/EC. 

(31)  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,  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.  

(32)  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 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. 

(33)  As  regards  Cyprus,  the  provisions  of  this  Regulation  relating  to  the  VIS  constitute 
provisions  building  upon,  or  otherwise  relating  to,  the  Schengen  acquis  within  the 
meaning  of  Article 3(2)  of  the  2003  Act  of  Accession.  The  operation  of  the  EES 
requires the granting of passive access to the VIS. As the EES is only to be operated 

EN 

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by  those  Member  States  that  fulfil  the  conditions  related  to  VIS  at  the  start  of  the 
operation  of  the  EES,  Cyprus  will  not  operate  the  EES  from  the  start  of  operations. 
Cyprus  is  to  be  connected  to  the  EES  as  soon  as  the  conditions  of  the  procedure 
referred to in Regulation (EU) 2017/2226 are met. 

(34)  The  European  Data  Protection  Supervisor  was  consulted  in  accordance  with 
Article 42(1) of Regulation (EU) 2018/1725 and delivered its opinion on [xx]. 

(35)  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.   

(36)  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: 

Article 1 
Subject matter 

This Regulation lays down rules on a progressive start of operations of the Entry/Exit System 
(EES) at the borders of the Member States at which the EES is operated in accordance with 
Article  4  of  Regulation  (EU)  2017/2226  and  temporary  derogations  from  Regulation  (EU) 
2017/2226 and Regulation (EU) 2016/399. 

Article 2 
Definitions 

For  the  purposes  of  this  Regulation,  the  definitions  in  Article 3(1)  of  Regulation  (EU) 
2017/2226 apply. In addition, the following definitions apply: 

(a) 

(b) 

(c) 

‘progressive start of operations of the EES’ means the  period of 180 calendar 
days  starting  from  the  date  decided  by  the  Commission  in  accordance  with 
Article 66(1) of Regulation (EU) 2017/2226; 

‘national  authorities’  means  the  authorities  referred  to  in  Article 9  of 
Regulation (EU) 2017/2226; 

‘estimated  number  of  border  crossings’  means  a  Member  State’s  estimate  of 
the  number  of  border  crossings  of  third-country  nationals  referred  to  in 
Article 2(1) and (2) of Regulation (EU) 2017/2226 in each Member State based 
on the yearly average of the total number of border crossings of third-country 
nationals  travelling  for  a  short  stay  in  that  Member  State    calculated  for  the 
preceding    3  years  from  the  date  of  application    referred  to  in  Article 8(1), 
second subparagraph, of this Regulation. 

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Article 3 
Roll-out plans 

By [the 30th calendar day after the entry into force of this Regulation], the European 
Union  Agency  for  the  Operational  Management  of  Large-Scale  IT  Systems  in  the 
Area  of  Freedom,  Security  and  Justice  (eu-LISA)  shall  provide  the  Commission, 
Member States, as well as Europol, with a high-level roll-out plan on the progressive 
start  of  operations  of  the  EES,  taking  into  account  the  phases  set  out  in  Article 4. 
That roll-out plan shall include guidance on the use of the EES to Member States and 
Europol, including capacity limits of the EES Central System.   
By [the 60th calendar day after the entry into force of this Regulation], in consultation 
with the Commission and eu-LISA, Member States shall develop a national roll-out 
plan on the progressive start of operations of the EES, taking into account the high-
level roll-out plan referred to in paragraph 1 of this Article and the phases set out in 
Article 4.  

For each of the phases set out in Article 4, the national roll-out plans shall include the 
information on the thresholds and requirements set out in that Article.  
From  the  30th  calendar  day  after  the  progressive  start  of  operations  of  the  EES, 
Member States shall provide monthly reports to the Commission and eu-LISA on the 
implementation of their national roll-out plans, including corrective measures where 
necessary to comply with the obligations set out in Article 4.  

At the request of the Commission, eu-LISA shall provide the Commission with the 
statistics  necessary  for  the  monitoring  of  the  national  roll-out  plans,  in  accordance 
with Article 63(6) of Regulation (EU) 2017/2226. 

Article  4 
Progressive start of operations 

By way of derogation from  Article 66(6) of Regulation  (EU) 2017/2226  during the 
progressive start of operations of the EES, the  Member States shall use the EES as 
set out in this Article.  

From  the  first  day  of  the  progressive  start  of  operations  of  the  EES,  each  Member 
State shall start using the EES on entry and exit at one or more border crossing points 
with,  if possible and applicable, a  combination of air, land and sea border crossing 
points, to record and store data of third-country nationals referred to in Article 2(1) 
and  (2)  of  Regulation  (EU)  2017/2226.  Member  States  shall  register  in  the  EES  at 
least 10% of the estimated number of border crossings in that Member State.  

For  the  first  60  calendar  days  of  the  progressive  start  of  operations  of  the  EES, 
Member States may operate the EES without biometric functionalities, and national 
authorities may create or update individual files without biometric data. 
No  later  than  the  90th  calendar  day  after  the  progressive  start  of  operations  of  the 
EES, Member States shall operate the EES with biometric functionalities at least at 
half of their border crossing points. Member States shall register at least 50% of the 
estimated number of border crossings in that Member State. The individual files of 
third-country  nationals  referred  to  in  Article 2(1)  and  (2)  of  Regulation  (EU) 
2017/2226 that are registered in the EES shall contain biometric data. 
No  later  than  the  150th  calendar  day  after  the  progressive  start  of  operations  of  the 
EES, Member States shall operate the EES with biometric functionalities at all their 

1. 

2. 

3. 

4. 

5. 

1. 

2. 

3. 

4. 

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5. 

6. 

7. 

1. 

2. 

3. 

4. 

border crossing points and shall continue registering in the EES at least 50% of the 
estimated number of border crossings in that Member State. 
No later than the 170th calendar days after the progressive start of operations of the 
EES, Member States shall operate the EES with biometric functionalities at all their 
border  crossing  points  and  shall  register  in  the  EES  all  third-country  nationals 
referred to in Article 2(1) and (2) of Regulation (EU) 2017/2226. 

Refusals  of entry, decided at  a border crossing  point at  which the EES  is  operated, 
shall be recorded in the EES, as set out in Article 18 of Regulation (EU) 2017/2226. 
Where the EES is operated with biometric functionalities, refusals of entry shall be 
recorded  with  biometric  data.  Where  the  EES  is  operated  without  biometric 
functionalities, refusals of entry shall be recorded without biometric data. 

From the first day of the progressive start of operations of the EES, Europol shall use 
the EES as provided for in Regulation (EU) 2017/2226.  

Article 5 
Other derogations from Regulation (EU) 2017/2226 and Regulation (EU) 2016/399 

In addition to the rules of Article 4, the rules set out in this Article shall apply during 
the progressive start of operations of the EES. 

Border  authorities  shall  systematically  stamp  the  travel  documents  of  third-country 
nationals referred to in  Article 2(1) and (2) of Regulation (EU) 2017/2226 on entry 
and exit.  

The  stamping  obligations  referred  to  in  Article 42a(1),  second  subparagraph,  and 
Article 42a(2), (5) and (6) of Regulation (EU) 2016/399 shall apply mutatis mutandis 
in the Member States operating the EES. 

For  entering,  amending,  erasing  and  consulting  the  data  in  the  EES,  national 
authorities  that  are  competent  for  the  purposes  laid  down  in  Articles  23  to  35  of 
Regulation  (EU)  2017/2226  shall  consider  stamps  as  prevailing  over  the  EES  data, 
including  in  cases  of  discrepancy  or  in  cases  referred  to  in  Article 16(4)  of  that 
Regulation. The data recorded in the EES shall prevail in case a stamp is missing.  

In  the  absence  of  a  stamp  affixed  in  the  travel  document  and  of  an  individual  file 
created in the EES for a third-country national present in the territory of the Member 
States,  national  authorities  may  presume  that  the  third-country  national  does  not 
fulfil  or  no  longer  fulfils  the  conditions  relating  to  entry  or  stay  in  the  Member 
States. 

This presumption shall not apply to third-country nationals who can provide, by any 
means,  credible  evidence  that  they  enjoy  the  right  of  free  movement  under  Union 
law, have a right of residence in a host Member State under the EU–UK Withdrawal 
Agreement, or that they hold a residence permit or a long-stay visa. 

This presumption may be rebutted where the third-country nationals provide, by any 
means,  credible  evidence  that  they  have  respected  the  conditions  relating  to  the 
duration of a short stay. 

Where the presumption is rebutted, national authorities shall perform one or more of 
the following tasks at the border crossing points at which the EES is operated, to the 
extent allowed by this Regulation: 

(a) 

create an individual file for that third-country national in the EES, if necessary; 

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(b)  update the latest entry/exit record by entering the missing data;  

(c) 

erase an existing file where Article 35 of Regulation (EU) 2017/2226 provides 
for such erasure. 

5. 

Border  authorities  shall  make  use  of  the  interoperability  between  the  EES  and  the 
VIS  referred  to  in  Article 8(2)  of  Regulation  (EU)  2017/2226  only  at  the  border 
crossing  points  at  which  the  EES  is  operated.  Border  authorities  shall  continue 
accessing the VIS directly: 

(a) 

at the border crossing points at which the EES is not operated; 

(b)  where the EES is suspended in accordance with Article 7 of this Regulation. 

6. 

National authorities and Europol shall disregard the following:  

7. 

8. 

9. 

(a) 

(b) 

the  results  of  the  automated  calculator  that  provides  information  on  the 
maximum  duration  of  the  authorised  stay  referred  to  in  Article  11  of 
Regulation (EU) 2017/2226;  

the  automatically  generated  list  of  overstayers  and  its  consequences  in 
particular  as  referred  to  in  Article 6(1),  points  (c)  and  (h),  Article  12(3), 
Article 16(4),  Article 34(3),  Article 50(1),  points  (i)  and  (k),  Article 63(1), 
point (e) of that Regulation. 

Processing operations by Member States  that comply with this Regulation shall not 
be considered as unlawful or not compliant with Regulation (EU) 2017/2226 for the 
purposes of Articles 45 and 48 of that Regulation. 

Verification  of  the  identity  and  previous  registration  of  third-country  nationals 
pursuant  to  Article  23  of  Regulation  (EU)  2017/2226  shall  be  carried  out  on  the 
third-country  nationals  referred  to  in  Article 2(1)  and  (2)  of  that  Regulation  at  the 
border  crossing  points  at  which  the  EES  is  operated  with  biometric  functionalities, 
including through self-service systems, where available.  

In addition to the specific information referred to in Article 50(5) of Regulation (EU) 
2017/2226  that  is  to  be  added  by  the  Member  States  in  the  template  to  provide 
information to third-country nationals about the processing of their personal data in 
the  EES,  Member  States  shall  accompany  the  template  to  be  handed  over  to  third-
country  nationals  at  the  time  the  individual  file  of  the  person  concerned  is  being 
created  with the following information:  

‘The Entry/Exit System is being progressively rolled out. During this roll-out period 
[from …], your personal data, including your biometric data, might not be collected 
for the purposes of the Entry/Exit System at all Member States’ external borders. If 
we need to mandatorily collect this information and you choose not to provide it, you 
will be refused entry. During this period of the progressive roll-out your data will not 
be  automatically  added  to  a  list  of  overstayers.  In  addition,  you  will  not be  able  to 
check  how  much  longer  you  are  authorised  to  stay  using  the  website  or  equipment 
available at border crossing points. 

Please note that when the progressive roll-out of the EES is completed, your personal 
data  will  be  processed  according  to  the  information  provided  in  the  document 
accompanying this form.’ 

10. 

The information on the EES website referred to in Article 50(3) of Regulation (EU) 
2017/2226  shall  be  adapted  by  the  Commission  to  reflect  the  progressive  start  of 
operations.  

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11. 

12. 

13. 

14. 

The  information  campaign  referred  to  in  Article 51  of  Regulation  (EU)  2017/2226 
accompanying the start of operations of the EES, shall reflect the specific conditions 
at the border crossing points, ensuring that the relevant information is communicated 
to  those  affected,  and  taking  into  account  the  phases  set  out  in  Article 4  of  this 
Regulation. The Commission shall support Member States in preparing the adapted 
materials of the information campaign. 

The  application  of  Article 12(1)  and  (2),  Article 13(1)  and  (2),  Article 20  and 
Article 21 of Regulation (EU) 2017/2226 shall be suspended. 

By way of derogation from Article 22 of Regulation (EU) 2017/2226 and Article 12a 
of  Regulation  (EU)  2016/399,  the  transitional  period  and  the  transitional  measures 
set  out  in  those  Articles  shall apply  from  the  first  day  after  the progressive start  of 
operations of the EES has ended. 

At the border crossing points at which the EES is not operated, border checks shall 
be carried out in accordance with Regulation (EU) 2016/399 as applicable on the day 
before  the  date  from  which  the  EES  is  to  start  operations  as  decided  by  the 
Commission in accordance with Article 66(1) Regulation (EU) 2017/2226.  

At the border crossing  points at  which the EES  is operated, border checks shall be 
carried  out  in  accordance  with  Regulation  (EU)  2017/2226  and  Regulation  (EU) 
2016/399.  

By  way  of  derogation  from  the  second  subparagraph,  at  the  border  crossing  points 
where the EES is operated without biometric functionalities, Article 6(1), point (f)(i), 
and the provisions on the verification of third-country nationals based on biometric 
data, solely for the purposes of the EES,  referred to  in  Articles 6, point (f) (ii) and 
Article 8 (3), points (a) and (g) of Regulation (EU) 2016/399 shall not apply.  

For the purposes of this Regulation, Article 9(3) and Article 12 of Regulation (EU) 
2016/399 shall be suspended. 

Article 6 
Access to the EES data 

1. 

When  accessing  the  entry  and  exit  records  registered  in  the  EES  during  the 
progressive start of operations of the EES in the performance of their tasks: 

(a) 

national authorities and Europol shall take into account that, due to the variable 
operations  of  the  EES  in  each  Member  State  during  the  progressive  start  of 
operations of the EES, the data could be incomplete;  

(b)  national  authorities  shall  take  into  account  that  the  data  could  be  incomplete 
when communicating data in accordance with Articles 41 and 42 of Regulation 
(EU) 2017/2226;  

(c) 

the ETIAS Central Unit shall take into account that the entry and exit records 
registered  in  the  EES  during  the  progressive  start  of  operations  of  the  EES 
could  include  incomplete  sets  of  data  for  the  purpose  of  verification  in 
accordance with Article 25a(2) of Regulation (EU) 2017/2226.  

2. 

Competent authorities, the Commission and relevant Union  agencies shall take into 
account that the data registered in the EES during the progressive start of operations 
of  the  EES  may  be  incomplete  when  accessing  data  for  reporting  and  statistics  as 
referred in Article 63 of Regulation EU 2017/2226.  

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3. 

4. 

5. 

1. 

By  way  of  derogation  from  Article 13(3)  of  Regulation  (EU)  2017/2226,  carriers 
may start using the web service referred to in that Article from the 90th calendar day 
of  the  progressive  start  of  operations  of  the  EES.  Carriers  shall  verify  the  stamps 
affixed  in  the  travel  documents  with  a  view  to  fulfilling  their  obligations  under 
Article 26(1)  of  the  Convention  implementing  the  Schengen  Agreement  and  under 
Council Directive 2001/51/EC for the duration of the progressive start of operations 
of the EES. 

For a period of 180 calendar days after the end of the progressive start of operations 
of  the  EES,  carriers  shall,  in  addition  to  using  the  web  service  as  referred  to  in 
Article 13(3) of Regulation (EU) 2017/2226 continue verifying the stamps affixed in 
travel documents with a view to fulfilling their obligations under Article 26(1) of the 
the  Schengen  Agreement  and  Council  Directive 
Convention 
2001/51/EC. 

implementing 

When  fulfilling  the  obligations  referred  in  Articles  35  and  52  of  Regulation  (EU) 
2017/2226  in  relation  to  the  completion  of  personal  data  recorded  in  the  EES, 
Member States shall complete the relevant data only to the extent possible taking into 
account  the  limited  availability  of  the  sets  of  data  collected  during  the  progressive 
start of operations of the EES. Where applicable, the administrative decision referred 
to in Article 52(4) of Regulation (EU) 2017/2226 shall refer to the conditions set out 
in Article 4 of this Regulation that allow for the registration of incomplete files. 

By way of derogation from Article 63(1), second subparagraph, of Regulation (EU) 
2017/2226,  the  duly  authorised  staff  of  the  European  Border  and  Coast  Guard 
Agency shall not access the data registered in the EES during the progressive start of 
operations of the EES for the purpose of carrying out risk analyses and vulnerability 
assessments. 

Article 7 
Suspension of the EES 

During  the progressive start  of operations of the  EES,  Member States may fully or 
partially suspend operating the EES at certain border crossing points in exceptional 
circumstances  of  failure  of  the  EES  Central  System,  national  systems  or 
communication  infrastructure,  or  events  leading  to  traffic  of  such  intensity  that  the 
waiting time at a border crossing point becomes excessive.  

In case of partial suspension, the data referred to in Articles 16 to 20 of Regulation 
(EU) 2017/2226 shall be collected, with the exception of biometric data.  

In  case  of  full  suspension,  Member  States  shall  completely  suspend  the  EES 
operations  and  shall  not  collect  the  data  referred  to  in  Articles 16  to  20  of  that 
Regulation.  

In both cases, Member States shall promptly and no later than 6 hours after the start 
of the suspension notify to the Commission and eu-LISA the reason for the partial or 
full  suspension  and  its  expected  duration  and  ensure  that  the  operators  of 
infrastructure hosting border crossing points and  carriers are duly informed of such 
suspension.  Once  the  exceptional  circumstances  that  led  to  the  suspension  cease, 
Member States shall promptly notify the Commission and eu-LISA. 

2. 

For a period of 60 calendar days after the end of the progressive start of operations of 
the  EES,  Member  States  may  partially  suspend  operating  the  EES  as  referred  to  in 
paragraph  1,  second  subparagraph,  at  a  certain  border  crossing  point  for  a  limited 

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time of maximum 6 hours and only in exceptional circumstances leading to traffic of 
such  intensity  that  the  waiting  time  at  a  border  crossing  point  becomes  excessive. 
Member  States  shall  be  relieved  of  their  obligation  set  out  in  Article 21(1)  of 
Regulation (EU) 2017/2226 as regards biometric data. In those cases, Member States 
shall promptly and no later than 6 hours after the start of suspension notify the reason 
for the suspension and its expected duration to the Commission and eu-LISA.  

If less than 80% of the individual files registered in the EES during the progressive 
start of operations of the EES contain biometric data, the period set out in paragraph 
2 of this Article shall be automatically extended by 60 calendar days.  
At  the  latest  by  the  10th  calendar  day  after  the  end  of  the  progressive  start  of 
operations  of  the  EES,  eu-LISA  shall  provide  the  Commission  with  statistics 
allowing the Commission to verify if this percentage has been reached. No later than 
by  the  30th  calendar  day  after  the  end  of  the  progressive  start  of  operations  of  the 
EES,  the  Commission  shall  inform  the  Member  States  of  the  outcome  of  its 
verification. 

3. 

4. 

Article 8 
Entry into force and application 

1. 

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

It shall apply from the date from which the EES is to start operations as decided by 
the Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226. 

However,  Article 3  of  this  Regulation  shall  apply  from  the  entry  into  force  of  this 
Regulation.  

2. 

This Regulation shall cease to apply 180 calendar days from the date from which the 
EES is to start operations as decided by the Commission in accordance with Article 
66(1) Regulation (EU) 2017/2226. However: 

(a)  Article 5(13) shall cease to apply 5 years and 180 calendar days after the date 
decided  by  the  Commission  in  accordance  with  Article  66(1)  of  Regulation 
(EU) 2017/2226; 

(b)  Article 6(1), (2), (4) and (5) shall cease to apply 5 years and 180 calendar days 
after the date decided by the Commission in accordance with Article 66(1) of 
Regulation (EU) 2017/2226; 

(c)  Article 6(3), second subparagraph, shall cease to apply 360 calendar days after 
the  date  decided  by  the  Commission  in  accordance  with  Article 66(1)  of 
Regulation (EU) 2017/2226; 

(d)  Article  7(2)  and  (3)  shall  cease  to  apply  300  calendar  days  after  the  date 
decided  by  the  Commission  in  accordance  with  Article 66(1)  of  Regulation 
(EU) 2017/2226; 

(e)  Article 7(4) shall cease to apply 210 calendar days after the date decided by the 

Commission in accordance with Article 66(1) of Regulation (EU) 2017/2226. 

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This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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