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Establishing an Entryexit 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 Regulation

Regulation 2017/2226

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Article 1: Subject matter

This Regulation establishes an ‘Entry/Exit System’ (EES) for:

the recording and storage of the date, time and place of entry and exit of third–country nationals crossing the borders of the Member States at which the EES is operated;

the calculation of the duration of the authorised stay of such third-country nationals;

the generation of alerts to Member States when the authorised stay has expired; and

the recording and storage of the date, time and place of refusal of entry of third-country nationals whose entry for a short stay has been refused, as well as the authority of the Member State which refused the entry and the reasons therefor.

For the purposes of the prevention, detection and investigation of terrorist offences or of other serious criminal offences, this Regulation also lays down the conditions under which Member States’ designated authorities and Europol may obtain access to the EES for consultation.

Article 2: Scope

This Regulation applies to:

third-country nationals admitted for a short stay to the territory of the Member States who are subject to border checks in accordance with Regulation 2016/399 when crossing the borders at which the EES is operated; and

third-country nationals, on entry to and exit from the territory of the Member States, who:

are members of the family of a Union citizen to whom Directive 2004/38 applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

do not hold a residence card pursuant to Directive 2004/38 or a residence permit pursuant to Regulation 2002/1030 ( 32 ) .

This Regulation also applies to third-country nationals whose entry for a short stay to the territory of the Member States is refused in accordance with Article 14 of Regulation 2016/399.

This Regulation does not apply to:

third–country nationals who are members of the family of a Union citizen to whom Directive 2004/38 applies and who hold a residence card pursuant to that Directive, whether or not they accompany or join that Union citizen;

third-country nationals who are members of the family of a national of a third country, whether or not they accompany or join that national of a third country, where:

that national of a third country enjoys the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

those third-country nationals hold a residence card pursuant to Directive 2004/38 or a residence permit pursuant to Regulation 2002/1030;

holders of residence permits referred to in point 16 of Article 2 of Regulation 2016/399 other than those covered by points (a) and (b) of this paragraph;

third-country nationals exercising their right to mobility in accordance with Directive 2014/66 ( 33 ) or Directive 2016/801 ( 34 ) ;

holders of long-stay visas;

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

persons or categories of persons exempt from border checks or benefiting from specific rules in relation to border checks as referred to in point (g) of Article 6a(3) of Regulation 2016/399;

persons or categories of persons referred to in points (h), (i), (j) and (k) of Article 6a(3) of Regulation 2016/399.

The provisions of this Regulation regarding the calculation of the duration of the authorised stay and the generation of alerts to Member States when the authorised stay has expired do not apply to third-country nationals who:

do not hold a residence card pursuant to Directive 2004/38 or a residence permit pursuant to Regulation 2002/1030.

Article 3: Definitions

For the purposes of this Regulation, the following definitions apply:

‘external borders’ means external borders as defined in point 2 of Article 2 of Regulation 2016/399;

‘internal borders’ means internal borders as defined in point 1 of Article 2 of Regulation 2016/399;

‘border authority’ means the border guard assigned in accordance with national law to carry out border checks as defined in point 11 of Article 2 of Regulation 2016/399;

‘immigration authority’ means the competent authority responsible, in accordance with national law, for one or more of the following:

checking within the territory of the Member States whether the conditions for entry to, or stay on, the territory of the Member States are fulfilled;

examining the conditions for, and taking decisions related to, the residence of third-country nationals on the territory of the Member States insofar as that authority does not constitute a ‘determining authority’ as defined in point (f) of Article 2 of CPGWIPD ( 35 ) , and, where relevant, providing advice in accordance with CILONR ( 36 ) ;

the return of third-country nationals to a third country of origin or transit;

‘visa authority’ means the visa authority as defined in point 3 of Article 4 of VIS;

‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU, with the exception of persons who enjoy the right of free movement equivalent to that of Union citizens under agreements between the Union and its Member States, on the one hand, and third countries, on the other;

‘travel document’ means a passport or other equivalent document entitling the holder to cross the external borders and to which a visa may be affixed;

‘short stay’ means stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period as referred to in Article 6(1) of Regulation 2016/399;

‘short-stay visa’ means visa as defined in point (a) of point 2 of Article 2 of VVCR ( 37 ) ;

‘national short-stay visa’ means an authorisation issued by a Member State which does not apply the Schengen acquis in full with a view to an intended stay on the territory of that Member State of a duration of no more than 90 days in any 180-day period;

‘authorised stay’ means the exact number of days during which a third-country national is permitted to legally stay on the territory of the Member States, counting from the date of the entry in accordance with the applicable provisions;

‘Member State responsible’ means the Member State which has entered data in the EES;

‘verification’ means the process of comparing sets of data to establish the validity of a claimed identity (one-to-one check);

‘identification’ means the process of determining a person’s identity through a database search against multiple sets of data (one-to-many check);

‘alphanumeric data’ means data represented by letters, digits, special characters, spaces and punctuation marks;

‘fingerprint data’ means the data relating to the four fingerprints of the index, middle finger, ring finger and little finger from the right hand where present, and otherwise from the left hand;

‘facial image’ means digital images of the face;

‘biometric data’ means fingerprint data and facial image;

‘overstayer’ means a third-country national who does not fulfil or no longer fulfils the conditions relating to the duration of his or her authorised short stay on the territory of the Member States;

‘eu-LISA’ means the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by IT;

‘supervisory authorities’ means the supervisory authority established in accordance with Article 51(1) of GDPR and the supervisory authority established in accordance with Article 41(1) of Directive 2016/680;

‘EES data’ means all data stored in the EES Central System in accordance with Article 14 and Articles 16 to 20;

‘law enforcement’ means the prevention, detection or investigation of terrorist offences or other serious criminal offences;

‘terrorist offence’ means an offence under national law which corresponds or is equivalent to one of the offences referred to in Directive 2017/541;

‘serious criminal offence’ means an offence which corresponds or is equivalent to one of the offences referred to in Article 2(2) of Framework Decision 2002/584/JHA, if it is punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years;

‘designated authority’ means an authority designated by a Member State pursuant to Article 29 as responsible for the prevention, detection or investigation of terrorist offences or of other serious criminal offences;

‘self-service system’ means a self-service system as defined in point 23 of Article 2 of Regulation 2016/399;

‘e-gate’ means an e-gate as defined in point 24 of Article 2 of Regulation 2016/399;

‘Failure To Enrol Rate’ (FTER) means the proportion of registrations with insufficient quality of the biometric enrolment;

‘False Positive Identification Rate’ (FPIR) means the proportion of returned matches during a biometric search which do not belong to the checked traveller;

‘False Negative Identification Rate’ (FNIR) means the proportion of missed matches during a biometric search even though the traveller’s biometric data were registered.

The terms defined in Article 4 of GDPR shall have the same meaning in this Regulation in so far as personal data are processed by the authorities of Member States for the purposes laid down in Article 6(1) of this Regulation.

The terms defined in Article 3 of Directive 2016/680 shall have the same meaning in this Regulation in so far as personal data are processed by the authorities of the Member States for the purposes laid down in Article 6(2) of this Regulation.

Article 4: Borders at which the EES is operated and use of the EES at those borders

The EES shall be operated at the external borders.

The Member States which apply the Schengen acquis in full shall introduce the EES at their internal borders with Member States which do not yet apply the Schengen acquis in full but operate the EES. acquis acquis

The Member States which apply the Schengen acquis in full and the Member States which do not yet apply the Schengen acquis in full but operate the EES shall introduce the EES at their internal borders with the Member States which do not yet apply the Schengen acquis in full and do not operate the EES. acquis acquis acquis

Member States which do not yet apply the Schengen acquis in full but operate the EES shall introduce the EES at their internal borders as defined under points (b) and (c) of Article 2(1) of Regulation 2016/399. acquis

By way of derogation from the third and fourth subparagraphs of Article 23(2) and from Article 27, a Member State which does not yet apply the Schengen acquis in full but operates the EES shall introduce the EES without biometric functionalities at its internal land borders with a Member State which does not yet apply the Schengen acquis in full but operates the EES. Where, at those internal borders, a third-country national has not yet been registered in the EES, that third-country national’s individual file shall be created without recording biometric data. Biometric data shall be added at the next border crossing point where the EES is operated with biometric functionalities. acquis acquis

Article 5: Set-up of the EES

eu-LISA shall develop the EES and ensure its operational management, including the functionalities for processing biometric data as referred to in point (d) of Article 16(1) and points (b) and (c) of Article 17(1), as well as the adequate security of the EES.

Article 6: Objectives of the EES

By recording and storing data in the EES and by providing Member States with access to such data, the objectives of the EES shall be to:

enhance the efficiency of border checks by calculating and monitoring the duration of the authorised stay on the entry and exit of third-country nationals admitted for a short stay;

assist in the identification of third-country nationals who do not or no longer fulfil the conditions for entry to, or for short stay on, the territory of the Member States;

allow the identification and detection of overstayers and enable the competent national authorities of the Member States to take appropriate measures;

allow refusals of entry in the EES to be checked electronically;

enable automation of border checks on third-country nationals;

enable visa authorities to have access to information on the lawful use of previous visas;

inform third-country nationals of the duration of their authorised stay;

gather statistics on the entries and exits, refusals of entry and overstays of third-country nationals in order to improve the assessment of the risk of overstays and support evidence-based Union migration policy making;

combat identity fraud and the misuse of travel documents.

By granting access to designated authorities in accordance with the conditions set out in this Regulation, the objectives of the EES shall be to:

contribute to the prevention, detection and investigation of terrorist offences or of other serious criminal offences;

enable the generation of information for investigations related to terrorist offences or other serious criminal offences, including the identification of perpetrators, suspects and victims of those offences who have crossed the external borders.

The EES shall, where relevant, support Member States in operating their national facilitation programmes established in accordance with Article 8d of Regulation 2016/399, in order to facilitate border crossing for third-country nationals, by:

enabling the national competent authorities referred to in Article 8d of Regulation 2016/399 to have access to information on previous short stays or refusals of entry for the purposes of the examination of applications for access to national facilitation programmes and the adoption of decisions referred to in Article 25 of this Regulation;

notifying the border authorities that access is granted to a national facilitation programme.

Article 7: Technical architecture of the EES

The EES shall be composed of:

a Central System (EES Central System);

a National Uniform Interface (NUI) in each Member State based on common technical specifications and identical for all Member States, enabling the connection of the EES Central System to the national border infrastructures in Member States in a secure manner;

a Secure Communication Channel between the EES Central System and the VIS Central System;

a Communication Infrastructure, which shall be secure and encrypted, between the EES Central System and the NUIs;

the web service referred to in Article 13;

the data repository, established at a central level, as referred to in Article 63(2).

The EES Central System shall be hosted by eu-LISA in its technical sites. It shall provide the functionalities laid down in this Regulation in accordance with the conditions of availability, quality and speed pursuant to Article 37(3).

Without prejudice to Commission Decision 2008/602/EC ( 38 ) , certain hardware and software components of the Communication Infrastructure of the EES shall be shared with the communication infrastructure of the VIS referred to in Article 1(2) of Decision 2004/512/EC. Logical separation of VIS data and EES data shall be ensured.

Article 8: Interoperability with the VIS

eu-LISA shall establish a Secure Communication Channel between the EES Central System and the VIS Central System to enable interoperability between the EES and the VIS. Direct consultation between the EES and the VIS shall only be possible where provided for by both this Regulation and VIS. The retrieval of visa-related data from the VIS, their importation into the EES and the updating of data from the VIS in the EES shall be an automated process once the operation in question is launched by the authority concerned.

Interoperability shall enable the border authorities using the EES to consult the VIS from the EES in order to:

retrieve the visa-related data directly from the VIS and import them into the EES in order to create or update the entry/exit record or the refusal of entry record of a visa holder in the EES in accordance with Articles 14, 16 and 18 of this Regulation and Article 18a of VIS;

retrieve the visa-related data directly from the VIS and import them into the EES in order to update the entry/exit record in the event that a visa is annulled, revoked or extended in accordance with Article 19 of this Regulation and Articles 13, 14 and 18a of VIS;

verify, pursuant to Article 23 of this Regulation and Article 18(2) of VIS, the authenticity and validity of the relevant visa or whether the conditions for entry to the territory of the Member States in accordance with Article 6 of Regulation 2016/399 are fulfilled;

verify at the borders at which the EES is operated whether a visa-exempt third-country national has been previously registered in the VIS in accordance with Article 23 of this Regulation and Article 19a of VIS; and

where the identity of a visa holder is verified using fingerprints, verify at the borders at which the EES is operated the identity of a visa holder by comparing the fingerprints of the visa holder with the fingerprints recorded in the VIS in accordance with Article 23 of this Regulation and Article 18(6) of VIS.

Interoperability shall enable the visa authorities using the VIS to consult the EES from the VIS in order to:

examine visa applications and adopt decisions relating to those applications in accordance with Article 24 of this Regulation and Article 15(4) of VIS;

examine, for the Member States which do not yet apply the Schengen acquis in full but operate the EES, applications for national short-stay visas and adopt decisions relating to those applications;

update the visa-related data in the entry/exit record in the event that a visa is annulled, revoked or extended in accordance with Article 19 of this Regulation and Articles 13 and 14 of VIS.

For the operation of the EES web service referred to in Article 13, the separate read-only database referred to in Article 13(5) shall be updated on a daily basis by the VIS via a one-way extraction of the minimum necessary subset of VIS data.

Article 9: Access to the EES for entering, amending, erasing and consulting data

Access to the EES for entering, amending, erasing and consulting the data referred to in Article 14 and Articles 16 to 20 shall be reserved exclusively for the duly authorised staff of the national authorities of each Member State which are competent for the purposes laid down in Articles 23 to 35. That access shall be limited to the extent necessary for the performance of the tasks of those national authorities in accordance with those purposes and shall be proportionate to the objectives pursued.

Each Member State shall designate the competent national authorities which shall be border authorities, visa authorities and immigration authorities for the purposes of this Regulation. The duly authorised staff of the competent national authorities shall have access to the EES to enter, amend, erase or consult data. Each Member State shall communicate a list of those competent national authorities to eu-LISA without delay. That list shall specify for which purpose each authority is to have access to the data stored in the EES.

The authorities entitled to consult or access the EES data in order to prevent, detect and investigate terrorist offences or other serious criminal offences shall be designated in accordance with Chapter IV.

Article 10: General principles

Each competent authority authorised to access the EES shall ensure that the use of the EES is necessary, appropriate and proportionate.

Each competent authority shall ensure that the use of the EES, including the capturing of biometric data, is in accordance with the safeguards laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms, in the Charter of Fundamental Rights of the European Union and in the United Nations Convention on the Rights of the Child. In particular, when capturing a child’s data, the best interests of the child shall be a primary consideration.

Article 11: Automated calculator and obligation to inform third-country nationals on the remaining authorised stay

The EES shall include an automated calculator that indicates the maximum duration of authorised stay for third-country nationals registered in the EES.

The automated calculator shall not apply to third-country nationals:

who are members of the family of a Union citizen to whom Directive 2004/38 applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

who do not hold a residence card pursuant to Directive 2004/38 or a residence permit pursuant to Regulation 2002/1030.

The automated calculator shall inform the competent authorities:

on entry, of the maximum duration of authorised stay of third-country nationals and whether the number of authorised entries of a short-stay visa issued for one or two entries has been exhausted;

during checks or verifications carried out within the territory of the Member States, of the remaining authorised stay or duration of overstay of the third-country nationals;

on exit, of any overstay of third-country nationals;

when examining and deciding on short-stay visa applications, of the maximum remaining duration of authorised stay based on intended entry dates.

The border authorities shall inform the third-country national of the maximum duration of authorised stay, which shall take into account the number of entries and the length of stay authorised by the visa in accordance with Article 8(9) of Regulation 2016/399. That information shall be provided either by the border guard at the moment of the border checks or by means of equipment installed at the border crossing point enabling the third-country national to consult the web service as referred to in Article 13(1) and (2) of this Regulation.

For third-country nationals subject to a visa requirement staying on the basis of a short-stay visa or a national short-stay visa in a Member State which does not yet apply the Schengen acquis in full but operates the EES, the automated calculator shall not indicate the authorised stay based on the short-stay visa or the national short-stay visa. acquis

In the case referred to in the first subparagraph, the automated calculator shall only verify:

compliance with the overall limit of 90 days in any 180-day period; and

for short-stay visas, compliance with the period of validity of such visas.

For the purpose of verifying whether third-country nationals holding a short-stay visa issued for one or two entries have already used the number of entries authorised by their short-stay visa, the automated calculator shall only take into account entries into the territory of Member States which apply the Schengen acquis in full. That verification shall not be carried out, however, at the entry into the territory of Member States which do not yet apply the Schengen acquis in full but operate the EES. acquis acquis

The automated calculator shall also apply to short stays based on a short-stay visa with limited territorial validity issued pursuant to point (b) of Article 25(1) of VVCR. In that case, the automated calculator shall take into account the authorised stay as defined by such a visa, irrespective of whether the cumulative stay of the third-country national concerned exceeds 90 days in any 180-day period.

Article 12: Information mechanism

The EES shall include a mechanism that shall automatically identify which entry/exit records do not have exit data immediately following the date of expiry of an authorised stay and automatically identify records for which the maximum duration of authorised stay was exceeded.

For third-country nationals who cross a border on the basis of a valid Facilitated Transit Document issued in accordance with FTD ( 39 ) (FTD), the EES shall include a mechanism which shall automatically identify which entry/exit records do not have exit data immediately following the time of expiry of authorised stay and automatically identify records for which the maximum duration of authorised stay has been exceeded.

A list generated by the EES containing the data referred to in Articles 16 and 17 of all persons identified as overstayers shall be available to the competent national authorities designated in accordance with Article 9(2) in order to enable those authorities to adopt appropriate measures.

Article 13: Web service

In order to enable third-country nationals to verify at any moment the remaining authorised stay, a secure internet access to a web service hosted by eu-LISA in its technical sites shall allow third-country nationals to provide the data required pursuant to point (b) of Article 16(1) together with their intended date of entry or exit, or both. On that basis, the web service shall provide third-country nationals with an OK/NOT OK answer, as well as the information on the remaining authorised stay.

By way of derogation from paragraph 1, for an intended stay in a Member State which does not yet apply the Schengen acquis in full but operates the EES, the web service shall not provide any information on the authorised stay based on a short-stay visa or a national short-stay visa. acquis

In the case referred to in the first subparagraph, the web service shall enable third-country nationals to verify the compliance with the overall limit of 90 days in any 180-day period and to receive information on the remaining authorised stay under that limit. This information shall be provided for stays in the 180-day period preceding the consultation of the web service or their intended date of entry or exit, or both.

In order to fulfil their obligation under point (b) of Article 26(1) of the Convention implementing the Schengen Agreement, carriers shall use the web service to verify whether third-country nationals holding a short-stay visa issued for one or two entries have already used the number of entries authorised by their visa. Carriers shall provide the data listed under points (a), (b) and (c) of Article 16(1) of this Regulation. On that basis, the web service shall provide carriers with an OK/NOT OK answer. Carriers may store the information sent and the answer received in accordance with the applicable law. Carriers shall establish an authentication scheme to ensure that only authorised staff may access the web service. It shall not be possible to regard the OK/NOT OK answer as a decision to authorise or refuse entry in accordance with Regulation 2016/399.

For the purpose of implementing Article 26(2) of the Convention implementing the Schengen Agreement or for the purpose of resolving any potential dispute arising from Article 26 of the Convention implementing the Schengen Agreement, eu-LISA shall keep logs of all data processing operations carried out within the web service by carriers. Those logs shall show the date and time of each operation, the data used for interrogation, the data transmitted by the web service and the name of the carrier in question.

Logs shall be stored for a period of two years. Logs shall be protected by appropriate measures against unauthorised access.

The web service shall make use of a separate read-only database updated on a daily basis via a one-way extraction of the minimum necessary subset of EES and VIS data. eu-LISA shall be responsible for the security of the web service, for the security of the personal data it contains and for the process of extracting the personal data into the separate read-only database.

The web service shall not enable carriers to verify whether third-country nationals holding a national short-stay visa issued for one or two entries have already used the number of entries authorised by that visa.

The Commission shall adopt implementing acts concerning the detailed rules on the conditions for the operation of the web service and the data protection and security rules applicable to the web service. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

Article 14: Procedures for entering data in the EES

Border authorities shall verify, in accordance with Article 23, whether a previous individual file has been created in the EES for the third-country national as well as his or her identity. Where a third-country national uses a self-service system for the pre-enrolment of data or for the carrying out of border checks, the verification shall be carried out through the self-service system.

Where a previous individual file has been created for the third-country national, the border authority shall, where necessary:

update that individual file, namely the data referred to in Articles 16, 17 and 18, as applicable, and

enter an entry record for each entry and an exit record for each exit in accordance with Articles 16 and 17 or, where applicable, a refusal of entry record in accordance with Article 18.

The records referred to in point (b) of the first subparagraph of this paragraph shall be linked to the individual file of the third-country national concerned.

Where applicable, the data referred to in Article 19(1), (2), (4) and (5) shall be added to the entry/exit record of the third-country national concerned. The travel documents and identities used legitimately by a third-country national shall be added to the third-country national’s individual file.

Where a previous individual file is recorded and the third-country national presents a valid travel document which differs from the one that was previously recorded, the data referred to in point (d) of Article 16(1) and point (b) of Article 17(1) shall also be updated in accordance with Article 15.

Where it is necessary to enter or update the entry/exit record data of a visa holder, the border authorities may retrieve from the VIS and import into the EES the data provided for in points (c) to (f) of Article 16(2) of this Regulation in accordance with Article 8 of this Regulation and Article 18a of VIS.

In the absence of a previous registration of a third-country national in the EES, the border authority shall create an individual file of that third-country national by entering the data referred to in Articles 16(1) and (6), 17(1) and 18(1) as applicable.

Where a third-country national uses a self-service system for the pre-enrolment of data, Article 8a of Regulation 2016/399 shall apply. In that case, the third-country national may pre-enrol the individual file data or, if applicable, the data in the entry/exit record that need to be updated. The data shall be confirmed by the border authorities when the decision to authorise or to refuse entry has been taken in accordance with Regulation 2016/399. The data listed in points (c) to (f) of Article 16(2) of this Regulation may be retrieved from the VIS and imported into the EES.

Where a third-country national uses a self-service system for the carrying out of the border checks, Article 8b of Regulation 2016/399 shall apply. In that case, the verification referred to in paragraph 1 of this Article shall be carried out through the self-service system.

Where a third-country national uses an e-gate for crossing the external borders or the internal borders where controls have not yet been lifted, Article 8b of Regulation 2016/399 shall apply. In that case, the corresponding registration of the entry/exit record and the linking of that record to the individual file concerned shall be carried out through the e-gate.

Without prejudice to Article 20 of this Regulation and Article 12(3) of Regulation 2016/399, where the short stay of a third-country national who is present on the territory of a Member State starts directly after a stay based on a residence permit or a long-stay visa and no previous individual file has been created, that third-country national may request the competent authorities referred to in Article 9(2) of this Regulation to create an individual file and an entry/exit record by entering the data referred to in Articles 16(1), (2) and (6) and 17(1) of this Regulation. Instead of the data referred to in point (a) of Article 16(2) of this Regulation, those competent authorities shall insert the date of the start of the short stay and, instead of the data referred to in point (b) of Article 16(2) of this Regulation, they shall insert the name of the authority that inserted those data.

Article 15: Facial image of third-country nationals

Where it is necessary to create an individual file or to update the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1), the facial image shall be taken live.

By way of derogation from paragraph 1, in exceptional cases where the quality and resolution specifications set for the enrolment of the live facial image in the EES cannot be met, the facial image may be extracted electronically from the chip of the electronic Machine Readable Travel Document (eMRTD). In such cases, the facial image shall only be inserted into the individual file after electronic verification that the facial image recorded in the chip of the eMRTD corresponds to the live facial image of the third-country national concerned.

Each Member State shall transmit once a year a report on the application of paragraph 2 to the Commission. That report shall include the number of third-country nationals concerned, as well as an explanation of the exceptional cases faced.

The facial image of third-country nationals shall have sufficient image resolution and quality to be used in automated biometric matching.

Within a period of two years following the start of operations of the EES, the Commission shall produce a report on the quality standards of facial images stored in the VIS and on whether they are such that they enable biometric matching with a view to using facial images stored in the VIS at borders and within the territory of the Member States for the verification of the identity of third-country nationals subject to a visa requirement, without storing such facial images in the EES. The Commission shall transmit that report to the European Parliament and to the Council. That report shall be accompanied, where considered appropriate by the Commission, by legislative proposals, including proposals to amend this Regulation, VIS, or both, as regards the use of the facial images of third-country nationals stored in the VIS for the purposes referred to in this paragraph.

Article 16: Personal data of third-country nationals subject to a visa requirement

At the borders at which the EES is operated, the border authority shall create the individual file of a third-country national subject to a visa requirement by entering the following data:

surname (family name); first name or names (given names); date of birth; nationality or nationalities; sex;

the type and number of the travel document or documents and the three letter code of the issuing country of the travel document or documents;

the date of expiry of the validity of the travel document or documents;

the facial image as referred to in Article 15.

On each entry of a third-country national subject to a visa requirement at a border at which the EES is operated, the following data shall be entered in an entry/exit record:

the date and time of the entry;

the border crossing point of the entry and the authority that authorised the entry;

where applicable, the status of that third-country national indicating that he or she is a third-country national who:

is a member of the family of a Union citizen to whom Directive 2004/38 applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and

does not hold a residence card pursuant to Directive 2004/38 or a residence permit pursuant to Regulation 2002/1030;

the short-stay visa sticker number, including the three letter code of the issuing Member State, the type of short-stay visa, the end date of the maximum duration of the stay as authorised by the short-stay visa, which shall be updated at each entry, and the date of expiry of the validity of the short-stay visa, where applicable;

on the first entry on the basis of a short-stay visa, the number of entries and the duration of stay authorised by the short-stay visa as indicated on the short-stay visa sticker;

where applicable, the information indicating that the short-stay visa has been issued with limited territorial validity pursuant to point (b) of Article 25(1) of VVCR;

for the Member States which do not yet apply the Schengen acquis in full but operate the EES, a notification, where applicable, indicating that the third-country national used a national short-stay visa for the entry.

The entry/exit record referred to in the first subparagraph shall be linked to the individual file of that third-country national using the individual reference number created by the EES upon creation of that individual file.

On each exit of a third-country national subject to a visa requirement at a border at which the EES is operated, the following data shall be entered in the entry/exit record:

the date and time of the exit;

the border crossing point of the exit.

Where that third-country national uses a visa other than the visa recorded in the last entry record, the data of the entry/exit record listed in points (d) to (g) of paragraph 2 shall be updated accordingly.

The entry/exit record referred to in the first subparagraph shall be linked to the individual file of that third-country national.

Where there is no exit data immediately following the date of expiry of the authorised stay, the entry/exit record shall be identified with a flag by the EES and the data of the third-country national subject to a visa requirement, who has been identified as an overstayer, shall be entered into the list referred to in Article 12.

In order to enter or update the entry/exit record of a third-country national subject to a visa requirement, the data provided for in points (c) to (f) of paragraph 2 of this Article may be retrieved from the VIS and imported into the EES by the border authority in accordance with Article 18a of VIS.

Where a third-country national benefits from the national facilitation programme of a Member State in accordance with Article 8d of Regulation 2016/399, the Member State concerned shall insert a notification in the individual file of that third-country national specifying the national facilitation programme of the Member State concerned.

The specific provisions set out in Annex II shall apply to third-country nationals who cross the border on the basis of a valid FTD.

Article 17: Personal data of visa-exempt third-country nationals

The border authority shall create the individual file of visa-exempt third-country nationals by entering the following:

the data provided for in points (a), (b) and (c) of Article 16(1);

the facial image as referred to in Article 15;

fingerprint data from the right hand, where present, and otherwise the corresponding fingerprint data from the left hand; fingerprint data shall have sufficient resolution and quality to be used in automated biometric matching;

where relevant, the data provided for in Article 16(6).

For visa-exempt third-country nationals, points (a), (b) and (c) of Article 16(2), points (a) and (b) of Article 16(3) and Article 16(4) shall apply mutatis mutandis . mutatis mutandis

Children under the age of 12 shall be exempt from the requirement to give fingerprints.

Persons for whom fingerprinting is physically impossible shall be exempt from the requirement to give fingerprints.

However, where the physical impossibility is of a temporary nature, that fact shall be recorded in the EES and the person shall be required to give the fingerprints on exit or at the subsequent entry. This information shall be deleted from the EES once the fingerprints have been given. The border authorities shall be entitled to request further clarification on the grounds for the temporary impossibility to give fingerprints. Member States shall ensure that appropriate procedures guaranteeing the dignity of the person are in place in the event of difficulties encountered in the capturing of fingerprints.

Where the person concerned is exempt from the requirement to give fingerprints pursuant to paragraphs 3 or 4, the specific data field shall be marked as ‘not applicable’.

Article 18: Personal data of third-country nationals who have been refused entry

Where a decision has been taken by the border authority, in accordance with Article 14 of and Annex V to Regulation 2016/399, to refuse the entry of a third-country national for a short stay on the territory of the Member States and where no previous file is recorded in the EES for that third-country national, the border authority shall create an individual file in which it shall enter:

for third-country nationals subject to a visa requirement, the alphanumeric data required pursuant to Article 16(1) of this Regulation and, where relevant, the data referred to in Article 16(6) of this Regulation;

for visa-exempt third-country nationals, the alphanumeric data required pursuant to Article 17(1) of this Regulation.

Where the third-country national is refused entry on the basis of a reason corresponding to point B, D or H of Part B of Annex V to Regulation 2016/399 and where no previous file with biometric data is recorded in the EES for that third-country national, the border authority shall create an individual file in which it shall enter the alphanumeric data required pursuant to Article 16(1) or Article 17(1) of this Regulation, as appropriate, as well as the following data:

for third-country nationals subject to a visa requirement, the facial image referred to in point (d) of Article 16(1) of this Regulation;

for visa-exempt third-country nationals, the biometric data required pursuant to points (b) and (c) of Article 17(1) of this Regulation;

for third-country nationals subject to a visa requirement who are not registered in the VIS, the facial image referred to in point (d) of Article 16(1) of this Regulation and the fingerprint data as referred to point (c) of Article 17(1) of this Regulation.

By way of derogation from paragraph 2 of this Article, where the reason corresponding to point H of Part B of Annex V to Regulation 2016/399 applies and the biometric data of the third-country national are recorded in the SIS alert that results in the refusal of entry, the biometric data of the third-country national shall not be entered in the EES.

Where the third-country national is refused entry on the basis of a reason corresponding to point I of Part B of Annex V to Regulation 2016/399 and where no previous file with biometric data is recorded in the EES for that third-country national, the biometric data shall only be entered in the EES where the entry is refused because the third-country national is considered to be a threat to internal security, including, where appropriate, elements of public policy.

Where a third-country national is refused entry on the basis of a reason corresponding to point J of Part B of Annex V to Regulation 2016/399, the border authority shall create the individual file of that third-country national without adding biometric data. If the third-country national possesses an eMRTD, the facial image shall be extracted from that eMRTD.

Where a decision has been taken by the border authority, in accordance with Article 14 of and Annex V to Regulation 2016/399, to refuse the entry of a third-country national for a short stay to the territory of the Member States, the following data shall be entered in a separate refusal of entry record:

the date and time of refusal of entry;

the border crossing point;

the authority that refused the entry;

the point or points corresponding to the reasons for refusing entry in accordance with Part B of Annex V to Regulation 2016/399.

In addition, for third-country nationals subject to a visa requirement, the data provided for in points (d) to (g) of Article 16(2) of this Regulation shall be entered in the refusal of entry record.

In order to create or update the refusal of entry record of third-country nationals subject to a visa requirement, the data provided for in points (d), (e) and (f) of Article 16(2) of this Regulation may be retrieved from the VIS and imported into the EES by the competent border authority in accordance with Article 18a of VIS.

The refusal of entry record provided for in paragraph 6 shall be linked to the individual file of the third-country national concerned.

Article 19: Data to be added where an authorisation for short stay is revoked, annulled or extended

Where a decision has been taken to revoke or annul an authorisation for short stay or a visa or to extend the duration of an authorised stay or visa, the competent authority that has taken such a decision shall add the following data to the latest relevant entry/exit record:

the status information indicating that the authorisation for short stay or the visa has been revoked or annulled or that the duration of the authorised stay or the visa has been extended;

the identity of the authority that revoked or annulled the authorisation for short stay or the visa or extended the duration of the authorised stay or the visa;

the place and date of the decision to revoke or annul the authorisation for short stay or the visa or to extend the duration of the authorised stay or the visa;

where applicable, the new visa sticker number, including the three letter code of the issuing country;

where applicable, the period of the extension of the duration of authorised stay;

where applicable, the new expiry date of the authorised stay or the visa.

Where the duration of authorised stay has been extended in accordance with Article 20(2) of the Convention implementing the Schengen Agreement, the competent authority that extended the authorised stay shall add the data regarding the period of extension of the authorised stay to the latest relevant entry/exit record and, where applicable, an indication that the authorised stay was extended in accordance with point (b) of Article 20(2) of the Convention implementing the Schengen Agreement.

Where a decision has been taken to annul, revoke or extend a visa, the visa authority which has taken the decision shall immediately retrieve the data provided for in paragraph 1 of this Article from the VIS and import them directly into the EES in accordance with Articles 13 and 14 of VIS.

The entry/exit record shall indicate the grounds for revocation or annulment of the short stay, which shall be:

a return decision adopted pursuant to Directive 2008/115 ( 40 ) ;

any other decision taken by the competent authorities of the Member State, in accordance with national law, resulting in the return, removal or voluntary departure of a third-country national who does not fulfil or no longer fulfils the conditions for the entry into or for the stay on the territory of the Member States.

The entry/exit record shall indicate the grounds for extending the duration of an authorised stay.

When a person has departed or has been removed from the territory of the Member States pursuant to a decision as referred to in paragraph 4 of this Article, the competent authority shall enter the data in accordance with Article 14(2) in the related entry/exit record of that specific entry.

Article 20: Data to be added in case of rebuttal of the presumption that a third-country national does not fulfil the conditions of duration of authorised stay

Without prejudice to Article 22, where no individual file has been created in the EES for a third-country national present on the territory of a Member State or where there is no last relevant entry/exit record for such a third-country national, the competent authorities may presume that the third-country national does not fulfil or no longer fulfils the conditions relating to duration of authorised stay within the territory of the Member States.

In the case referred to in the first paragraph of this Article, Article 12 of Regulation 2016/399 shall apply and, if the presumption is rebutted in accordance with Article 12(3) of that Regulation, the competent authorities shall:

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

update the latest entry/exit record by entering the missing data in accordance with Articles 16 and 17 of this Regulation; or

erase an existing file where Article 35 of this Regulation provides for such erasure.

Article 21: Fall-back procedures where it is technically impossible to enter data or in the event of failure of the EES

Where it is technically impossible to enter data in the EES Central System or in the event of a failure of the EES Central System, the data referred to in Articles 16 to 20 shall be temporarily stored in the NUI. Where that is not possible, the data shall be temporarily stored locally in an electronic format. In both cases, the data shall be entered in the EES Central System as soon as the technical impossibility or failure has been remedied. The Member States shall take the appropriate measures and deploy the required infrastructure, equipment and resources to ensure that such temporary local storage may be carried out at any time and for any of their border crossing points.

Without prejudice to the obligation to carry out border checks under Regulation 2016/399, the border authority, in the exceptional situation where it is technically impossible to enter data in both the EES Central System and in the NUI and it is technically impossible to temporarily store the data locally in an electronic format, shall manually store the data referred to in Articles 16 to 20 of this Regulation, with the exception of biometric data, and shall affix an entry or exit stamp in the travel document of the third-country national. That data shall be entered in the EES Central System as soon as technically possible.

Member States shall inform the Commission of the stamping of travel documents in the event of the exceptional situations referred to in the first subparagraph of this paragraph. The Commission shall adopt implementing acts concerning the detailed rules on the information to be provided to the Commission. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

The EES shall indicate that data referred to in Articles 16 to 20 were entered as a result of a fall-back procedure and that the individual file created pursuant to paragraph 2 of this Article is missing biometric data. The biometric data shall be entered in the EES at the next border crossing.

Article 22: Transitional period and transitional measures

For a period of 180 days after the EES has started operations, in order to verify, on entry and exit, that third-country nationals admitted for a short stay have not exceeded the maximum duration of authorised stay and, where relevant, to verify on entry that third-country nationals have not exceeded the number of entries authorised by the short-stay visa issued for one or two entries, the competent border authorities shall take into account the stays in the territory of the Member States during the 180 days preceding the entry or the exit by checking the stamps in the travel documents in addition to the entry/exit data recorded in the EES.

Where a third-country national has entered the territory of the Member States before the EES has started operations and exits it after the EES has started operations, an individual file shall be created on exit and the date of entry as stamped in the passport shall be entered in the entry/exit record in accordance with Article 16(2). This rule shall not be limited to the 180 days after the EES has started operations as referred to in paragraph 1 of this Article. In case of a discrepancy between the entry stamp and the EES data, the stamp shall prevail.

Article 23: Use of data for verification at the borders at which the EES is operated

Border authorities shall have access to the EES for verifying the identity and previous registration of the third-country national, for updating the EES data where necessary and for consulting the data to the extent required for the carrying out of border checks.

While performing the tasks referred to in paragraph 1 of this Article, the border authorities shall have access to search with the data referred to in points (a), (b) and (c) of Article 16(1) and point (a) of Article 17(1).

In addition, for the purposes of consulting the VIS for verification in accordance with Article 18 of VIS, for third-country nationals who are subject to a visa requirement, the border authorities shall launch a search in the VIS directly from the EES using the same alphanumeric data or, where applicable, consult the VIS in accordance with Article 18(2a) of VIS.

If the search in the EES with the data set out in the first subparagraph of this paragraph indicates that data on the third-country national are recorded in the EES, the border authorities shall compare the live facial image of the third-country national with the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1) of this Regulation or the border authorities shall, in the case of visa-exempt third-country nationals, proceed to a verification of fingerprints against the EES and, in the case of third-country nationals subject to a visa requirement, proceed to a verification of fingerprints directly against the VIS in accordance with Article 18 of VIS. For the verification of fingerprints against the VIS for visa holders, the border authorities may launch the search in the VIS directly from the EES as provided in Article 18(6) of that Regulation.

If the verification of the facial image fails, the verification shall be carried out using fingerprints and vice versa.

If the search with the data set out in paragraph 2 indicates that data on the third-country national are recorded in the EES, the border authority shall be given access to consult the data of the individual file of that third-country national and the entry/exit record or records or refusal of entry record or records linked to it.

Where the search with the alphanumeric data set out in paragraph 2 of this Article indicates that data on the third-country national are not recorded in the EES, where a verification of the third-country national pursuant to paragraph 2 of this Article fails or where there are doubts as to the identity of the third-country national, the border authorities shall have access to data for identification in accordance with Article 27 of this Regulation.

In addition to the identification referred to in first subparagraph of this paragraph, the following provisions shall apply:

for third-country nationals who are subject to a visa requirement, if the search in the VIS with the data referred to in Article 18(1) of VIS indicates that data on the third-country national are recorded in the VIS, a verification of fingerprints against the VIS shall be carried out in accordance with Article 18(5) of VIS. For this purpose, the border authority may launch a search from the EES to the VIS as provided for in Article 18(6) of VIS. Where a verification of a third-country national pursuant to paragraph 2 of this Article failed, the border authorities shall access the VIS data for identification in accordance with Article 20 of VIS.

for third-country nationals who are not subject to a visa requirement and for whom no data are found in the EES further to the identification run in accordance with Article 27 of this Regulation, the VIS shall be consulted in accordance with Article 19a of VIS. The border authority may launch a search from the EES to the VIS as provided for in Article 19a of VIS.

For third-country nationals whose data are already recorded in the EES but whose individual file was created in the EES by a Member State which does not yet apply the Schengen acquis in full but operates the EES and whose data were entered in the EES on the basis of a national short-stay visa, the border authorities shall consult the VIS in accordance with point (a) of the second subparagraph of paragraph 4 when, for the first time after the creation of the individual file, the third-country national intends to cross the border of a Member State which applies the Schengen acquis in full and operates the EES. acquis acquis

Article 24: Use of the EES for examining and deciding on visas

Visa authorities shall consult the EES for examining visa applications and adopting decisions relating to those applications, including decisions to annul, revoke or extend the period of validity of an issued visa, in accordance with VVCR.

In addition, visa authorities of a Member State which does not yet apply the Schengen acquis in full but operates the EES shall consult the EES when examining national short-stay visa applications and adopting decisions relating to those applications, including decisions to annul, revoke or extend the period of validity of an issued national short-stay visa. acquis

Visa authorities shall be given access to search the EES directly from the VIS with one or several of the following data:

the data referred to in points (a), (b) and (c) of Article 16(1);

the short-stay visa sticker number, including the three letter code of the issuing Member State referred to in point (d) of Article 16(2);

the fingerprint data or the fingerprint data combined with the facial image.

If the search with the data set out in paragraph 2 indicates that data on the third-country national are recorded in the EES, visa authorities shall be given access to consult the data of the individual file of that third-country national and the entry/exit records, as well as any refusal of entry records linked to that individual file. Visa authorities shall be given access to consult the automated calculator in order to check the maximum remaining duration of an authorised stay. Visa authorities shall also be given access to consult the EES and the automated calculator when examining and taking decisions on new visa applications, so as to automatically establish the maximum duration of authorised stay.

Visa authorities of a Member State which does not yet apply the Schengen acquis in full but operates the EES shall be given access to search the EES with one or several of the data set out in paragraph 2. If the search indicates that data on the third-country national are recorded in the EES, they shall be given access to consult the data of the individual file of that third-country national and the entry/exit records, as well as any refusal of entry records linked to that individual file. Visa authorities of a Member State which does not yet apply the Schengen acquis in full but operates the EES shall be given access to consult the automated calculator in order to establish the maximum remaining duration of an authorised stay. Visa authorities shall also be given access to consult the EES and the automated calculator when examining and taking decisions on new visa applications, so as to establish the maximum duration of authorised stay. acquis acquis

Article 25: Use of the EES for examining applications for access to national facilitation programmes

The competent authorities referred to in Article 8d of Regulation 2016/399 shall consult the EES for the purposes of the examination of applications for access to national facilitation programmes referred to in that Article and the adoption of decisions relating to those applications, including decisions to refuse, revoke or extend the period of validity of access to the national facilitation programmes in accordance with that Article.

The competent authorities shall be given access to search with one or several of the following:

the data referred to in points (a), (b) and (c) of Article 16(1) or the data referred to in point (a) of Article 17(1);

the fingerprint data or the fingerprint data combined with the facial image.

If the search with the data set out in paragraph 2 indicates that data on the third-country national are recorded in the EES, the competent authority shall be given access to consult the data of the individual file of that third-country national and the entry/exit records, as well as any refusal of entry records linked to that individual file.

Article 26: Access to data for verification within the territory of the Member States

For the purpose of verifying the identity of the third-country national, or checking or verifying whether the conditions for entry to, or stay on, the territory of the Member States are fulfilled, or both, the immigration authorities of the Member States shall have access to search with the data referred to in points (a), (b) and (c) of Article 16(1) and point (a) of Article 17(1).

If the search indicates that data on the third-country national are recorded in the EES, the immigration authorities may:

compare the live facial image of the third-country national with the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1) of this Regulation; or

verify the fingerprints of visa-exempt third-country nationals in the EES and of third-country nationals subject to a visa requirement in the VIS in accordance with Article 19 of VIS.

If the search with the data set out in paragraph 1 indicates that data on the third-country national are recorded in the EES, the immigration authorities shall be given access to consult the automated calculator, the data of the individual file of that third-country national, the entry/exit record or records and any refusal of entry record linked to that individual file.

Where the search with the data set out in paragraph 1 of this Article indicates that data on the third-country national are not recorded in the EES, where verification of the third-country national fails or where there are doubts as to the identity of the third-country national, the immigration authorities shall have access to data for identification in accordance with Article 27.

Article 27: Access to data for identification

The border authorities or immigration authorities shall have access to search with the fingerprint data or the fingerprint data combined with the facial image, for the sole purpose of identifying any third-country national who may have been registered previously in the EES under a different identity or who does not fulfil or no longer fulfils the conditions for entry to, or for stay on, the territory of the Member States.

Where the search with the fingerprint data or with the fingerprint data combined with the facial image indicates that data on that third-country national are not recorded in the EES, access to data for identification shall be carried out in the VIS in accordance with Article 20 of VIS. At borders at which the EES is operated, prior to any identification against the VIS, the competent authorities shall first access the VIS in accordance with Articles 18 or 19a of VIS.

Where the fingerprints of that third-country national cannot be used or the search with the fingerprint data or with the fingerprint data combined with the facial image has failed, the search shall be carried out with all or some of the data referred to in points (a), (b) and (c) of Article 16(1) and point (a) of Article 17(1).

If the search with the data set out in paragraph 1 indicates that data on the third-country national are recorded in the EES, the competent authority shall be given access to consult the data of the individual file and the entry/exit records and refusal of entry records linked to it.

Article 28: Keeping of data retrieved from the EES

 Data retrieved from the EES pursuant to this Chapter may be kept in national files only where necessary in an individual case, in accordance with the purpose for which they were retrieved and with relevant Union law, in particular on data protection, and for no longer than strictly necessary in that individual case. 

Article 29: Member States’ designated authorities

Member States shall designate the authorities which are entitled to consult the EES data in order to prevent, detect and investigate terrorist offences or other serious criminal offences.

Each Member State shall keep a list of the designated authorities. Each Member State shall notify eu-LISA and the Commission of its designated authorities and may at any time amend or replace its notification.

Each Member State shall designate a central access point which shall have access to the EES. The central access point shall verify that the conditions to request access to the EES laid down in Article 32 are fulfilled.

The designated authority and the central access point may be part of the same organisation if permitted under national law, but the central access point shall act fully independently of the designated authorities when performing its tasks under this Regulation. The central access point shall be separate from the designated authorities and shall not receive instructions from them as regards the outcome of the verification which it shall carry out independently.

Member States may designate more than one central access point to reflect their organisational and administrative structures in the fulfilment of their constitutional or legal requirements.

Member States shall notify eu-LISA and the Commission of their central access points and may at any time amend or replace their notifications.

At national level, each Member State shall keep a list of the operating units within the designated authorities that are authorised to request access to EES data through the central access points.

Only duly empowered staff of the central access points shall be authorised to access the EES in accordance with Articles 31 and 32.

Article 30: Europol

Europol shall designate one of its operating units as the ‘Europol designated authority’ and shall authorise it to request access to the EES through the Europol central access point referred to in paragraph 2 in order to support and strengthen action by Member States in preventing, detecting and investigating terrorist offences or other serious criminal offences.

Europol shall designate a specialised unit with duly empowered Europol officials as the Europol central access point. The Europol central access point shall verify that the conditions to request access to the EES laid down in Article 33 are fulfilled.

The Europol central access point shall act independently when performing its tasks under this Regulation and shall not receive instructions from the Europol designated authority as regards the outcome of the verification.

Article 31: Procedure for access to the EES for law enforcement purposes

An operating unit as referred to in Article 29(5) shall submit a reasoned electronic or written request to a central access point as referred to in Article 29(3) for access to EES data. Upon receipt of a request for access, such a central access point shall verify whether the conditions for access referred to in Article 32 are fulfilled. If the conditions for access are fulfilled, such a central access point shall process the request. The EES data accessed shall be transmitted to an operating unit as referred to in Article 29(5) in such a way that the security of the data is not compromised.

In a case of urgency, where there is a need to prevent an imminent danger to the life of a person associated with a terrorist offence or another serious criminal offence, a central access point as referred to in Article 29(3) shall process the request immediately and shall only verify ex post whether all the conditions referred to in Article 32 are fulfilled, including whether a case of urgency actually existed. The ex post verification shall take place without undue delay and in any event no later than seven working days after the processing of the request. ex post ex post

Where an ex post verification determines that the access to EES data was not justified, all the authorities that accessed such data shall erase the information accessed from the EES and shall inform the relevant central access point of the Member State in which the request was made of the erasure. ex post

Article 32: Conditions for access to EES data by designated authorities

Designated authorities may access the EES for consultation where all of the following conditions are met:

access for consultation is necessary for the purpose of the prevention, detection or investigation of a terrorist offences or another serious criminal offence;

access for consultation is necessary and proportionate in a specific case;

evidence or reasonable grounds exist to consider that the consultation of the EES data will contribute to the prevention, detection or investigation of any of the criminal offences in question, in particular where there is a substantiated suspicion that the suspect, perpetrator or victim of a terrorist offence or other serious criminal offence falls under a category covered by this Regulation.

a prior search has been conducted in national databases; and

in the case of searches with fingerprints, a prior search has been launched in the automated fingerprint identification system of the other Member States under Decision 2008/615/JHA where comparisons of fingerprints are technically available, and either that search has been fully carried out, or that search has not been fully carried out within two days of being launched.

However, the additional conditions in points (a) and (b) of the first subparagraph shall not apply where there are reasonable grounds to believe that a comparison with the systems of the other Member States would not lead to the verification of the identity of the data subject or in a case of urgency where there is a need to prevent an imminent danger to the life of a person associated with a terrorist offence or another serious criminal offence. Those reasonable grounds shall be included in the electronic or written request sent by the operating unit of the designated authority to the central access point.

A request for consultation of the VIS on the same data subject may be submitted in parallel to a request for consultation of the EES in accordance with the conditions laid down in Council Decision 2008/633/JHA ( 41 ) .

Access to the EES as a tool to consult the travel history or the periods of stay on the territory of the Member States of a known suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed when the conditions listed in paragraph 1 are met.

Consultation of the EES for the purpose of identification as referred to in paragraph 2 shall be limited to searching in the individual file with any of the following EES data:

fingerprints of visa-exempt third-country nationals or of holders of an FTD. In order to launch this consultation of the EES, latent fingerprints may be used and may therefore be compared with the fingerprints stored in the EES;

facial images.

Consultation of the EES, in the event of a hit, shall give access to any other data taken from the individual file as listed in Article 16(1) and (6), Article 17(1) and Article 18(1).

Consultation of the EES for the travel history of the third-country national concerned shall be limited to searching with one or several of the following EES data in the individual file, in the entry/exit records or in the refusal of entry records:

surname (family name); first name or names (given names); date of birth; nationality or nationalities; sex;

type and number of travel document or documents, three letter code of the issuing country and date of expiry of the validity of the travel document;

visa sticker number and the date of expiry of the validity of the visa;

fingerprints, including latent fingerprints;

facial image;

date and time of entry, authority that authorised the entry and entry border crossing point;

date and time of exit and exit border crossing point.

Consultation of the EES shall, in the event of a hit, give access to the data listed in the first subparagraph as well as to any other data taken from the individual file, the entry/exit records and refusal of entry records, including data related to the revocation or extension of an authorisation for short stay in accordance with Article 19.

Article 33: Procedure and conditions for access to EES data by Europol

Europol shall have access to consult the EES where all the following conditions are met:

the consultation is necessary to support and strengthen action by Member States in preventing, detecting or investigating terrorist offences or other serious criminal offences falling under Europol’s mandate;

the consultation is necessary and proportionate in a specific case;

Access to the EES as a tool for the purpose of identifying an unknown suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed where the conditions listed in paragraph 1 are met and the consultation, as a matter of priority, of the data stored in the databases that are technically and legally accessible by Europol has not made it possible to identify the person in question.

A request for consultation of the VIS on the same data subject may be submitted in parallel to a request for consultation of the EES in accordance with the conditions laid down in Decision 2008/633/JHA.

The conditions laid down in Article 32(3), (4) and (5) shall apply accordingly.

The Europol designated authority may submit a reasoned electronic request for the consultation of all EES data or a specific set of EES data to the Europol central access point referred to in Article 30(2). Upon receipt of a request for access, the Europol central access point shall verify whether the conditions for access set out in paragraphs 1 and 2 of this Article are fulfilled. If all conditions for access are fulfilled, the duly authorised staff of the Europol central access point shall process the requests. The EES data accessed shall be transmitted to the Europol designated authority in such a way that the security of the data is not compromised.

Europol shall only process information obtained from a consultation of EES data subject to the authorisation of the Member State of origin. That authorisation shall be obtained via the Europol national unit of that Member State.

Article 34: Data retention period

Each entry/exit record or refusal of entry record linked to an individual file shall be stored in the EES Central System for three years following the date of the exit record or of the refusal of entry record, as applicable.

Each individual file together with the linked entry/exit record or records or refusal of entry records shall be stored in the EES Central System for three years and one day following the date of the last exit record or of the refusal of entry record if there is no entry record within three years from the date of the last exit record or refusal of entry record.

If there is no exit record following the date of expiry of the period of authorised stay, the data shall be stored for a period of five years following the date of expiry of the period of authorised stay. The EES shall automatically inform the Member States three months in advance of the scheduled erasure of data on overstayers in order to enable them to adopt the appropriate measures.

By way of derogation from paragraph 1, each entry/exit record registered for third-country nationals who have the status referred to in point (b) of Article 2(1) shall be stored in the EES for a maximum of one year after the exit of such third-country nationals. If there is no exit record the data shall be stored for a period of five years from the date of the last entry record.

Upon expiry of the retention period referred to in paragraphs 1 to 4, the data in question shall automatically be erased from the EES Central System.

Article 35: Amendment of data and advance data erasure

The Member State responsible shall have the right to amend data which it has entered in the EES by rectifying, completing or erasing the data.

If the Member State responsible has evidence to suggest that data recorded in the EES are factually inaccurate or incomplete or that data were processed in the EES in breach of this Regulation, it shall check the data concerned and shall, if necessary, rectify or complete them in, or erase them from, the EES without delay and, where applicable, from the list of identified persons referred to in Article 12(3). The data may also be checked and rectified, completed or erased at the request of the person concerned in accordance with Article 52.

By way of derogation from paragraphs 1 and 2 of this Article, where a Member State other than the Member State responsible has evidence to suggest that data recorded in the EES are factually inaccurate or incomplete or that data were processed in the EES in breach of this Regulation, it shall check the data concerned, provided it is possible to do so without consulting the Member State responsible and shall, if necessary, rectify or complete them in, or erase them from, the EES without delay and, where applicable, from the list of identified persons referred to in Article 12(3). Where it is not possible to check the data without consulting the Member State responsible, it shall contact the authorities of the Member State responsible within seven days, following which the Member State responsible shall check the accuracy of the data and the lawfulness of their processing within one month. The data may also be checked and rectified, completed or erased at the request of the third-country national concerned in accordance with Article 52.

Where a Member State has evidence to suggest that visa-related data recorded in the EES are factually inaccurate or incomplete or that such data were processed in the EES in breach of this Regulation, it shall first check the accuracy of those data against the VIS and shall, if necessary, rectify or complete them in, or erase them from, the EES. Where the data recorded in the VIS are the same as those recorded in the EES, it shall inform the Member State responsible for entering those data in the VIS immediately through the infrastructure of the VIS in accordance with Article 24(2) of VIS. The Member State responsible for entering the data in the VIS shall check those data and shall, if necessary, immediately rectify or complete them in, or erase them from, the VIS and inform the Member State concerned which shall, if necessary, rectify or complete them in, or erase them from, the EES without delay and, where applicable, the list of identified persons referred to in Article 12(3).

The data of identified persons referred to in Article 12 shall be erased without delay from the list referred to in that Article and shall be rectified or completed in the EES where the third-country national concerned provides evidence, in accordance with the national law of the Member State responsible or of the Member State to which the request has been made, that he or she was forced to exceed the duration of authorised stay due to unforeseeable and serious events, that he or she has acquired a legal right to stay or in case of errors. Without prejudice to any available administrative or non-judicial remedy, that third-country national shall have access to an effective judicial remedy to ensure the data are rectified, completed or erased.

Where a third-country national has acquired the nationality of a Member State or has fallen under the scope of Article 2(3) before the expiry of the applicable period referred to in Article 34, the individual file and the entry/exit records linked to that individual file in accordance with Articles 16 and 17 and the refusal of entry records linked to that individual file in accordance with Article 18 shall, without delay, and in any event not later than five working days from the date on which that third-country national has acquired the nationality of a Member State or has fallen under the scope of Article 2(3) before the expiry of the period referred to in Article 34, be erased from the EES, as well as, where applicable, from the list of identified persons referred to in Article 12(3), by:

the Member State the nationality of which he or she has acquired; or

the Member State that issued the residence permit or card or long-stay visa.

Where a third-country national has acquired the nationality of Andorra, Monaco or San Marino or where a third-country national is in a possession of a passport issued by the Vatican City State, he or she shall inform the competent authorities of the Member State he or she next enters of that change. That Member State shall erase his or her data without delay from the EES. The third-country national in question shall have access to an effective judicial remedy to ensure that the data are erased.

The EES Central System shall immediately inform all Member States of the erasure of EES data and where applicable from the list of identified persons referred to in Article 12(3).

Where a Member State other than the Member State responsible has rectified, completed or erased data in accordance with this Regulation, that Member State shall become the Member State responsible for the rectification, completion or erasure. The EES shall record all rectifications, completions and erasures of data.

Article 36: Adoption of implementing acts by the Commission prior to development

The Commission shall adopt the implementing acts necessary for the development and technical implementation of the EES Central System, the NUIs, the Communication Infrastructure, the web service referred to in Article 13 and the data repository referred to in Article 63(2), in particular measures for:

the specifications for the quality, resolution and use of fingerprints for biometric verification and identification in the EES;

the specifications for the quality, resolution and use of the facial image for biometric verification and identification in the EES, including where taken live or extracted electronically from the eMRTD;

entering the data in accordance with Articles 16 to 20;

accessing the data in accordance with Articles 23 to 33;

amending, erasing and advance erasure of data in accordance with Article 35;

keeping and accessing the logs in accordance with Article 46;

performance requirements, including the minimum specifications for technical equipment and requirements regarding the biometric performance of the EES, in particular in terms of the required False Positive Identification Rate, False Negative Identification Rate and Failure To Enrol Rate;

the specifications and conditions for the web service referred to in Article 13, including specific provisions for the protection of the data where provided by or to carriers;

the establishment and the high level design of interoperability as referred to in Article 8;

the specifications and conditions for the data repository referred in Article 63(2);

the establishment of the list of identified persons referred to in Article 12(3) and the procedure to make that list available to Member States;

the specifications for technical solutions to connect central access points in accordance with Articles 31, 32 and 33 and for a technical solution to collect the statistical data required pursuant to Article 72(8).

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

For the adoption of the implementing acts set out in point (i) of the first paragraph of this Article, the Committee set up by Article 68 of this Regulation shall consult the VIS Committee set up by Article 49 of VIS.

Article 37: Development and operational management

eu-LISA shall be responsible for the development of the EES Central System, the NUIs, the Communication Infrastructure and the Secure Communication Channel between the EES Central System and the VIS Central System. eu-LISA shall also be responsible for the development of the web service referred to in Article 13 and the data repository referred to in Article 63(2) in accordance with the detailed rules referred to in Articles 13(7) and 63(2) and the specifications and conditions adopted pursuant to points (h) and (j) of the first paragraph of Article 36.

eu-LISA shall define the design of the physical architecture of the EES including its Communication Infrastructure, as well as the technical specifications and their evolution regarding the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 of this Regulation and the data repository referred to in Article 63(2) of this Regulation. Those technical specifications shall be adopted by eu-LISA’s Management Board, subject to a favourable opinion of the Commission. eu-LISA shall also implement any necessary adaptations to the VIS deriving from the establishment of interoperability with the EES as well as from the implementation of the amendments to VIS set out in Article 61 of this Regulation.

eu-LISA shall develop and implement the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 and the data repository referred to Article 63(2) as soon as possible after the adoption by the Commission of the measures provided for in Article 36.

The development shall consist of the elaboration and implementation of the technical specifications, testing and overall project coordination.

When developing, and when implementing, the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 and the data repository referred to in Article 63(2), the tasks of eu–LISA shall also be to:

perform a security risk assessment;

follow the principles of privacy by design and by default during the entire lifecycle of the development of the EES;

conduct a security risk assessment regarding the interoperability with the VIS referred to in Article 8 and assess the required security measures needed for the implementation of the interoperability with the VIS.

During the designing and development phase, a Programme Management Board composed of a maximum of ten members shall be established. It shall be composed of seven members appointed by eu-LISA’s Management Board from among its members or alternate members, the Chair of the EES Advisory Group referred to in Article 69, a member representing eu-LISA appointed by its Executive Director and one member appointed by the Commission. The members appointed by eu-LISA’s Management Board shall be elected only from those Member States which are fully bound under Union law by the legislative instruments governing the development, establishment, operation and use of all the large-scale IT systems managed by eu-LISA and which comply with the conditions set out in Article 66(2).

The Programme Management Board shall meet regularly and at least three times per quarter. It shall ensure the adequate management of the design and development phase of the EES and ensure the consistency between central and national EES projects.

The Programme Management Board shall submit written reports every month to eu-LISA’s Management Board on the progress of the project. The Programme Management Board shall have no decision-making power nor any mandate to represent the members of eu-LISA’s Management Board.

eu-LISA’s Management Board shall establish the rules of procedure of the Programme Management Board which shall include in particular rules on:

its chairmanship;

meeting venues;

the preparation of meetings;

the admission of experts to meetings;

communication plans ensuring full information to non-participating members of eu-LISA’s Management Board.

The chairmanship of the Programme Management Board shall be held by a Member State which is fully bound under Union law by the legislative instruments governing the development, establishment, operation and use of all the large-scale IT systems managed by eu-LISA.

All travel and subsistence expenses incurred by the members of the Programme Management Board shall be paid by eu-LISA and Article 10 of the eu-LISA Rules of Procedure shall apply mutatis mutandis . eu-LISA shall provide the Programme Management Board with a secretariat. mutatis mutandis

During the designing and development phase, the EES Advisory Group referred to in Article 69 shall be composed of national EES project managers and chaired by eu-LISA. It shall meet regularly and at least three times per quarter until the start of operations of the EES. It shall report after each meeting to the Programme Management Board. It shall provide the technical expertise to support the tasks of the Programme Management Board and shall follow-up on the state of preparation of the Member States.

eu-LISA shall be responsible for the operational management of the EES Central System, the NUIs and the Secure Communication Channel between the EES Central System and the VIS Central System. It shall ensure, in cooperation with the Member States, that at all times the best available technology, subject to a cost-benefit analysis, is used for the EES Central System, the NUIs, the Communication Infrastructure, the Secure Communication Channel between the EES Central System and the VIS Central System, the web service referred to in Article 13 and the data repository referred to Article 63(2). eu-LISA shall also be responsible for the operational management of the Communication Infrastructure between the EES Central System and the NUIs, for the web-service referred to in Article 13 and the data repository referred to Article 63(2).

Operational management of the EES shall consist of all the tasks necessary to keep the EES functioning 24 hours a day, 7 days a week in accordance with this Regulation, in particular the maintenance work and technical developments necessary to ensure that the EES functions at a satisfactory level of operational quality, in particular as regards the response time for interrogation of the EES Central System by border authorities, in accordance with the technical specifications.

Without prejudice to Article 17 of the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the Union, laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 ( 42 ) , eu-LISA shall ensure that those members of its staff who are required to work with EES data or with data stored in the EES apply appropriate rules of professional secrecy or other equivalent duties of confidentiality. That obligation shall also apply after such staff leave office or employment or after the termination of their activities.

Article 38: Responsibilities of Member States and Europol

Each Member State shall be responsible for:

the integration of the existing national border infrastructure and its connection to the NUI;

the organisation, management, operation and maintenance of its existing national border infrastructure and of its connection to the EES for the purpose of Article 6 with the exception of Article 6(2);

the organisation of central access points and their connection to the NUI for the purpose of law enforcement;

the management of, and arrangements for, access by the duly authorised staff, and by the duly empowered staff, of the competent national authorities to the EES in accordance with this Regulation and the creation and regular update of a list of those staff and their profiles.

Each Member State shall designate a national authority, which shall provide the competent authorities referred to in Article 9(2) with access to the EES. Each Member State shall connect that national authority to the NUI. Each Member State shall connect their respective central access points referred to in Article 29 to the NUI.

Each Member State shall use automated procedures for processing EES data.

Member States shall ensure that the technical performance of the border control infrastructure, its availability, the duration of the border checks and the data quality are closely monitored in order to ensure that they meet the overall requirements for the proper functioning of the EES and an efficient border check procedure.

Before being authorised to process data stored in the EES, the staff of the authorities having a right to access the EES shall be given appropriate training on, in particular, data security and data protection rules, as well as on relevant fundamental rights.

Member States shall not process the data in or from the EES for purposes other than those laid down in this Regulation.

Europol shall assume the responsibilities provided for in point (d) of paragraph 1 and in paragraphs 3, 5 and 6. It shall connect, and be responsible for the connection of, the Europol central access point to the EES.

Article 39: Responsibility for data processing

In relation to the processing of personal data in the EES, each Member State shall designate the authority which is to be considered as controller in accordance with point (7) of Article 4 of GDPR and which shall have central responsibility for the processing of data by that Member State. Each Member State shall communicate the details of that authority to the Commission.

Each Member State shall ensure that the data collected and recorded in the EES is processed lawfully and, in particular, that only duly authorised staff have access to the data for the performance of their tasks. The Member State responsible shall ensure, in particular, that the data are:

collected lawfully and in full respect of the human dignity of the third-country national concerned;

registered lawfully in the EES;

accurate and up-to-date when they are transmitted to the EES.

eu-LISA shall ensure that the EES is operated in accordance with this Regulation and the implementing acts referred to in Article 36. In particular, eu-LISA shall:

take the necessary measures to ensure the security of the EES Central System and the Communication Infrastructure between the EES Central System and the NUI, without prejudice to the responsibilities of the Member States;

ensure that only duly authorised staff have access to data processed in the EES.

eu-LISA shall inform the European Parliament, the Council and the Commission, as well as the European Data Protection Supervisor, of the measures it takes pursuant to paragraph 2 in view of the start of operations of the EES.

Article 40: Keeping of data in national files and national entry/exit systems

A Member State may keep the alphanumeric data which that Member State entered in the EES, in accordance with the purposes of the EES, in its national entry/exit system or equivalent national files, in full respect of Union law.

The data shall not be kept in the national entry/exit systems or equivalent national files for longer than they are kept in the EES.

Any use of data which does not comply with paragraph 1 shall be considered a misuse under the national law of each Member State as well as under Union law.

This Article shall not be construed as requiring any technical adaptation of the EES. Member States may keep data in accordance with this Article at their own cost and risk and using their own technical means.

Article 41: Communication of data to third countries, international organisations and private entities

Data stored in the EES shall not be transferred or made available to any third country, to any international organisation or to any private entity.

By way of derogation from paragraph 1 of this Article, the data referred to in Article 16(1) and points (a), (b) and (c) of Article 17(1) of this Regulation may be transferred by border authorities or immigration authorities to a third country or to an international organisation listed in the Annex I to this Regulation in individual cases, if necessary in order to prove the identity of third-country nationals for the sole purpose of return, only where one of the following conditions is satisfied:

the Commission has adopted a decision on the adequate protection of personal data in that third country in accordance with Article 45(3) of GDPR;

appropriate safeguards as referred to in Article 46 of GDPR have been provided, such as through a readmission agreement which is in force between the Union or a Member State and the third country in question; or

point (d) of Article 49(1) of GDPR, applies.

The data referred to in Article 16(1) and points (a), (b) and (c) of Article 17(1) of this Regulation may be transferred in accordance with paragraph 2 of this Article only where all of the following conditions are satisfied:

the transfer of the data is carried out in accordance with the relevant provisions of Union law, in particular provisions on data protection, including Chapter V of GDPR, and readmission agreements, and the national law of the Member State transferring the data;

the third country or international organisation has agreed to process the data only for the purposes for which they were provided; and

a return decision adopted pursuant to Directive 2008/115 has been issued in relation to the third-country national concerned, provided that the enforcement of such a return decision is not suspended and provided that no appeal has been lodged which may lead to the suspension of its enforcement.

Transfers of personal data to third countries or to international organisations pursuant to paragraph 2 shall not prejudice the rights of applicants for and beneficiaries of international protection, in particular as regards non-refoulement . non-refoulement

Personal data obtained from the EES Central System by a Member State or by Europol for law enforcement purposes shall not be transferred or made available to any third country, international organisation or private entity established in or outside the Union. The prohibition shall also apply where those data are further processed at national level or between Member States pursuant to Directive 2016/680.

By way of derogation from paragraph 5 of this Article, the data referred to in points (a), (b) and (c) of Article 16(1), points (a) and (b) of Article 16(2), points (a) and (b) of Article 16(3) and point (a) of Article 17(1) may be transferred by the designated authority to a third country in individual cases, only where all of the following conditions are met:

there is an exceptional case of urgency where there is:

an imminent danger associated with a terrorist offence; or

an imminent danger to the life of a person and that danger is associated with a serious criminal offence;

the transfer of data is necessary for the prevention, detection or investigation in the territory of the Member States or in the third country concerned of such a terrorist offence or serious criminal offence;

the designated authority has access to such data in accordance with the procedure and the conditions set out in Articles 31 and 32;

the transfer is carried out in accordance with the applicable conditions set out in Directive 2016/680, in particular Chapter V thereof;

a duly motivated written or electronic request from the third country has been submitted; and

the reciprocal provision of any information on entry/exit records held by the requesting third country to the Member States operating the EES is ensured.

Where a transfer is made pursuant to the first subparagraph of this paragraph, such a transfer shall be documented and the documentation shall, on request, be made available to the supervisory authority established in accordance with Article 41(1) of Directive 2016/680, including the date and time of the transfer, information about the receiving competent authority, the justification for the transfer and the personal data transferred.

Article 42: Conditions for communication of data to a Member State which does not yet operate the EES and to a Member State to which this Regulation does not apply

The data referred to in points (a), (b) and (c) of Article 16(1), points (a) and (b) of Article 16(2), points (a) and (b) of Article 16(3) and point (a) of Article 17(1) may be transferred by a designated authority to a Member State which does not yet operate the EES and to a Member State to which this Regulation does not apply, in individual cases, only where all of the following conditions are met:

there is an exceptional case of urgency where there is:

an imminent danger associated with a terrorist offence; or

a serious criminal offence;

the transfer of data is necessary for the prevention, detection or investigation of such a terrorist offence or serious criminal offence;

the designated authority has access to such data in accordance with the procedure and the conditions set out in Articles 31 and 32;

Directive 2016/680 applies;

a duly motivated written or electronic request has been submitted; and

the reciprocal provision of any information on entry/exit records held by the requesting Member State to the Member States operating the EES is ensured.

Where data is provided pursuant to this Article, the same conditions as provided for in Article 43(1), Article 45(1) and (3), Article 48 and Article 58(4) shall apply mutatis mutandis . mutatis mutandis

Article 43: Data security

The Member State responsible shall ensure the security of the data before and during the transmission to the NUI. Each Member State shall ensure the security of the data it receives from the EES.

Each Member State shall, in relation to its national border infrastructure, adopt the necessary measures, including a security plan and a business continuity and disaster recovery plan, in order to:

physically protect data, including by making contingency plans for the protection of critical infrastructure;

deny unauthorised persons access to data-processing equipment and national installations in which the Member State carries out operations in accordance with the purposes of the EES;

prevent the unauthorised reading, copying, modification or removal of data media;

prevent the unauthorised entering of data and the unauthorised inspection, modification or erasure of stored personal data;

prevent the use of automated data-processing systems by unauthorised persons using data communication equipment;

prevent the unauthorised processing of data in the EES and any unauthorised modification or erasure of data processed in the EES;

ensure that persons authorised to access the EES have access only to the data covered by their access authorisation, by means of individual and unique user identities and confidential access modes only;

ensure that all authorities with a right of access to the EES create profiles describing the functions and responsibilities of persons who are authorised to enter, amend, erase, consult and search the data and make their profiles available to the supervisory authorities;

ensure that it is possible to verify and establish to which bodies personal data may be transmitted using data communication equipment;

ensure that it is possible to verify and establish which data have been processed in the EES, as well as when, by whom and for what purpose they have been processed;

prevent the unauthorised reading, copying, modification or erasure of personal data during the transmission of personal data to or from the EES or during the transport of data media, in particular by means of appropriate encryption techniques;

ensure that, in the event of an interruption, installed systems can be restored to normal operation;

ensure reliability by making sure that any faults in the functioning of the EES are properly reported;

monitor the effectiveness of the security measures referred to in this paragraph and take the necessary organisational measures related to internal monitoring to ensure compliance with this Regulation.

As regards the operation of the EES, eu-LISA shall take the necessary measures in order to achieve the objectives set out in paragraph 2, including the adoption of a security plan and a business continuity and disaster recovery plan. eu-LISA shall also ensure reliability by making sure that necessary technical measures are put in place to ensure that personal data can be restored in the event of corruption due to a malfunctioning of the EES.

eu-LISA and the Member States shall cooperate in order to ensure a harmonised data security approach based on a security risk management process encompassing the entire EES.

Article 44: Security incidents

Any event that has or may have an impact on the security of the EES and may cause damage or loss to data stored in the EES shall be considered to be a security incident, in particular where unauthorised access to data may have occurred or where the availability, integrity and confidentiality of data has or may have been compromised.

Security incidents shall be managed so as to ensure a quick, effective and proper response.

Without prejudice to the notification and communication of a personal data breach pursuant to Article 33 of GDPR, Article 30 of Directive 2016/680, or both, Member States shall notify the Commission, eu-LISA and the European Data Protection Supervisor of security incidents. In the event of a security incident in relation to the EES Central System, eu-LISA shall notify the Commission and the European Data Protection Supervisor.

Information regarding a security incident that has or may have an impact on the operation of the EES or on the availability, integrity and confidentiality of the data shall be provided to the Member States and reported in compliance with the incident management plan to be provided by eu-LISA.

The Member States concerned and eu-LISA shall cooperate in the event of a security incident.

Article 45: Liability

Any person or Member State that has suffered material or immaterial damage as a result of an unlawful processing operation or any act not compliant with this Regulation shall be entitled to receive compensation from the Member State which is responsible for the damage suffered. That Member State shall be exempted from liability, in whole or in part, if it proves that it is not in any way responsible for the event which gave rise to the damage.

If any failure of a Member State to comply with its obligations under this Regulation causes damage to the EES, that Member State shall be held liable for such damage, unless and insofar as eu-LISA or another Member State participating in the EES failed to take reasonable measures to prevent the damage from occurring or to minimise its impact.

Claims for compensation against a Member State for the damage referred to in paragraphs 1 and 2 shall be governed by the provisions of national law of the defendant Member State.

Article 46: Keeping of logs by eu-LISA and Member States

eu-LISA shall keep logs of all data processing operations within the EES. Those logs shall include the following:

the purpose of access referred to in Article 9(2);

the date and time;

the data transmitted as referred to in Articles 16 to 19;

the data used for interrogation as referred to in Articles 23 to 27; and

the name of the authority entering or retrieving the data.

For the consultations listed in Article 8, a log of each data processing operation carried out within the EES and the VIS shall be kept in accordance with this Article and Article 34 of VIS. eu-LISA shall ensure, in particular, that the relevant log of the concerned data processing operations is kept when the competent authorities launch a data processing operation directly from one system to the other.

In addition to paragraphs 1 and 2, each Member State shall keep logs of the staff duly authorised to process the EES data.

Such logs may be used only for data protection monitoring, including checking the admissibility of a request and the lawfulness of data processing, and for ensuring data security pursuant to Article 43. Those logs shall be protected by appropriate measures against unauthorised access and erased one year after the retention period referred to in Article 34 has expired, unless they are required for monitoring procedures which have already begun.

Article 47: Self-monitoring

Member States shall ensure that each authority entitled to access EES data takes the measures necessary to comply with this Regulation and cooperates, where necessary, with the supervisory authorities.

Article 48: Penalties

Member States shall take the necessary measures to ensure that any use of data entered in the EES in a manner contrary to this Regulation is punishable by effective, proportionate and disuasive penalties in accordance with national law, Article 84 of GDPR and Article 57 of Directive 2016/680.

Article 49: Data Protection

Regulation 2001/45 shall apply to the processing of personal data by eu-LISA on the basis of this Regulation.

GDPR shall apply to the processing of personal data by national authorities on the basis of this Regulation, with the exception of processing for the purposes referred to in Article 1(2) of this Regulation.

Directive 2016/680 shall apply to the processing of personal data by Member States’ designated authorities on the basis of this Regulation for the purposes referred to in Article 1(2) of this Regulation.

Regulation 2016/794 shall apply to the processing of personal data by Europol on the basis of this Regulation.

Article 50: Right of information

Without prejudice to the right of information in Article 13 of GDPR, third-country nationals whose data are to be recorded in the EES shall be informed by the Member State responsible of the following:

the fact that the EES may be accessed by the Member States and Europol for law enforcement purposes;

the obligation on visa-exempt third-country nationals and on holders of an FTD to have their fingerprints taken;

the obligation on all third-country nationals subject to registration in the EES to have their facial image recorded;

that the collection of the data is mandatory for the examination of entry conditions;

the fact that entry will be refused if a third-country national refuses to provide the requested biometric data for registration, verification or identification in the EES;

the right to receive information about the maximum remaining duration of their authorised stay in accordance with Article 11(3);

the fact that personal data stored in the EES may be transferred to a third country or an international organisation listed in Annex I for the purposes of return, to a third country in accordance with Article 41(6) and to Member States in accordance with Article 42;

the existence of the right to request from the controller access to data relating to them, the right to request that inaccurate data relating to them be rectified, that incomplete personal data relating to them be completed, that unlawfully processed personal data concerning them be erased or that the processing thereof be restricted, as well as the right to receive information on the procedures for exercising those rights, including the contact details of the controller and the supervisory authorities, or of the European Data Protection Supervisor if applicable, which shall hear complaints concerning the protection of personal data;

the fact that EES data will be accessed for border management and facilitation purposes and that overstays will automatically lead to the addition of their data to the list of identified persons referred to in Article 12(3), as well as the possible consequences of overstaying;

the data retention period set for entry and exit records, refusal of entry records, and for individual files pursuant to Article 34;

the right for overstayers to have their personal data erased from the list of identified persons referred to in Article 12(3) and rectified in the EES, where they provide evidence that they exceeded the authorised duration of stay due to unforeseeable and serious events;

the right to lodge a complaint to the supervisory authorities.

The information provided in paragraph 1 of this Article shall be provided in writing, by any appropriate means, in a concise, transparent, intelligible and easily accessible form, and it shall be made available, using clear and plain language, in a linguistic version the person concerned understands or is reasonably expected to understand, in order to ensure that third-country nationals are informed of their rights, at the time when the individual file of the person concerned is being created in accordance with Article 16, 17 or 18.

The Commission shall also set up a website containing the information referred to paragraph 1.

The Commission shall adopt implementing acts drawing up the information referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

The Commission shall provide the information referred to in paragraph 1 of this Article in a template. The template shall be drawn up in such a manner as to enable Member States to complete it with additional Member State specific information. That Member State specific information shall include at least the rights of the data subject, the possibility of assistance by the supervisory authorities, as well as contact details of the office of the controller and of the data protection officer and the supervisory authorities. The Commission shall adopt implementing acts concerning the specifications and conditions for the website referred to in paragraph 3 of this Article. Those implementing acts shall be adopted prior to the start of operations of the EES in accordance with the examination procedure referred to in Article 68(2).

Article 51: Information campaign

The Commission shall, in cooperation with the supervisory authorities and the European Data Protection Supervisor, accompany the start of operations of the EES with an information campaign informing the public and, in particular, third-country nationals, about the objectives of the EES, the data stored in the EES, the authorities having access and the rights of persons concerned. Such information campaigns shall be conducted regularly.

Article 52: Right of access to, rectification, completion and erasure of personal data, and of restriction of the processing thereof

The requests of third-country nationals in relation to the rights set out in Articles 15 to 18 of GDPR may be addressed to the competent authority of any Member State.

The Member State responsible or the Member State to which the request has been made shall reply to such requests within 45 days of receipt of the request.

If a request for rectification, completion or erasure of personal data or restriction of the processing thereof is made to a Member State other than the Member State responsible, the authorities of the Member State to which the request has been made shall check the accuracy of the data and the lawfulness of the data processing in the EES within 30 days of the receipt of the request where that check can be done without consulting the Member State responsible. Otherwise, the Member State to which the request has been made shall contact the authorities of the Member State responsible within seven days and the Member State responsible shall check the accuracy of the data and the lawfulness of the data processing within 30 days of such contact.

In the event that data recorded in the EES are factually inaccurate, incomplete or have been recorded unlawfully, the Member State responsible or, where applicable, the Member State to which the request has been made shall rectify, complete or erase the personal data or restrict the processing of personal data in accordance with Article 35. The Member State responsible or, where applicable, the Member State to which the request has been made shall confirm in writing to the person concerned without delay that it has taken action to rectify, complete or erase the personal data of that person or to restrict the processing of such personal data.

In the event that visa-related data recorded in the EES are factually incorrect, incomplete or have been recorded unlawfully, the Member State responsible or, where applicable, the Member State to which the request has been made shall first check the accuracy of these data against the VIS and shall, if necessary, amend them in the EES. Should the data recorded in the VIS be the same as in the EES, the Member State responsible or, where applicable, the Member State to which the request has been made, shall contact the authorities of the Member State which is responsible for entering these data in the VIS within seven days. The Member State which is responsible for entering the data in the VIS shall check the accuracy of the visa-related data and the lawfulness of their processing in the EES within 30 days of such contact and inform the Member State responsible or the Member State to which the request has been made which shall, if necessary, rectify or complete the personal data of the person concerned or restrict the processing of such data in, or erase such data from, the EES without delay and, where applicable, from the list of identified persons referred to in Article 12(3).

If the Member State responsible or, where applicable, the Member State to which the request has been made does not agree that data recorded in the EES are factually inaccurate, incomplete or have been recorded unlawfully, that Member State shall adopt an administrative decision explaining in writing to the third-country national concerned without delay why it is not prepared to rectify, complete or erase the personal data relating to him or her or restrict the processing of such data.

The Member State which has adopted the administrative decision pursuant to paragraph 4 of this Article shall also provide the third-country national concerned with information explaining the steps which he or she can take if he or she does not accept the explanation. This shall include information on how to bring an action or a complaint before the competent authorities or courts of that Member State and any assistance that is available in accordance with the laws, regulations and procedures of that Member State, including from the supervisory authority established in accordance with Article 51(1) of GDPR.

Any request made pursuant to paragraphs 1 and 2 shall contain the minimum information necessary to identify the third-country national concerned. Fingerprints may be requested for this purpose only in duly justified cases and where there are substantive doubts as to the identity of the applicant. That information shall be used exclusively to enable that third-country national to exercise the rights referred to in paragraph 1 and shall be erased immediately afterwards.

Whenever a person makes a request in accordance with paragraph 1 of this Article, the competent authority of the Member State responsible or of the Member State to whom the request has been made shall keep a record in the form of a written document that such a request was made. That document shall contain information on how that request was dealt with and by which authority. The competent authority shall make that document available to the supervisory authority established in accordance with Article 51(1) of GDPR, within seven days.

Article 53: Cooperation to enforce the rights on data protection

The competent authorities of the Member States shall cooperate actively to enforce the rights laid down in Article 52.

In each Member State, the supervisory authority established in accordance with Article 51(1) of GDPR shall, upon request, assist and advise the data subject in exercising his or her right to rectify, complete or erase personal data relating to him or her or to restrict the processing of such data in accordance with GDPR.

In order to achieve the aims referred to in the first subparagraph, the supervisory authority of the Member State responsible which transmitted the data and the supervisory authority of the Member State to which the request has been made shall cooperate with each other.

Article 54: Remedies

Without prejudice to Articles 77 and 79 of GDPR, in each Member State any person shall have the right to bring an action or a complaint before the competent authorities or courts of that Member State which refused the right of access to, or right of rectification, completion or erasure of, data relating to him or her provided for in Article 52 and Article 53(2) of this Regulation. The right to bring such an action or complaint shall also apply in cases where requests for access, rectification, completion or erasure were not responded to within the deadlines provided for in Article 52 or were never dealt with by the data controller.

The assistance of the supervisory authority established in accordance with Article 51(1) of GDPR shall remain available throughout the proceedings.

Article 55: Supervision by the supervisory authority

Each Member State shall ensure that the supervisory authority established in accordance with Article 51(1) of GDPR independently monitors the lawfulness of the processing of personal data referred to in Chapters II, III, V and VI of this Regulation by the Member State concerned, including their transmission to and from the EES.

The supervisory authority established in accordance with Article 51(1) of GDPR shall ensure that an audit of the data processing operations in the national border infrastructure is carried out in accordance with relevant international auditing standards at least every three years from the start of operations of the EES. The results of the audit may be taken into account in the evaluations conducted under the mechanism established by Regulation 2013/1053 ( 43 ) . The supervisory authority established in accordance with Article 51(1) of GDPR shall publish annually the number of requests for rectification, completion or erasure, or restriction of processing of data, the action subsequently taken and the number of rectifications, completions, erasures and restrictions of processing made in response to requests by the persons concerned.

Member States shall ensure that their supervisory authority established in accordance with Article 51(1) of GDPR has sufficient resources to fulfil the tasks entrusted to it under this Regulation and has access to advice from persons with sufficient knowledge of biometric data.

Member States shall supply any information requested by the supervisory authority established in accordance with Article 51(1) of GDPR and shall, in particular, provide it with information on the activities carried out in accordance with Article 38, Article 39(1) and Article 43. Member States shall grant the supervisory authority established in accordance with Article 51(1) of GDPR access to their logs pursuant to Article 46 and allow it access at all times to all their EES related premises.

Article 56: Supervision by the European Data Protection Supervisor

The European Data Protection Supervisor shall be responsible for monitoring the personal data processing activities of eu-LISA concerning the EES and for ensuring that such activities are carried out in accordance with Regulation 2001/45 and with this Regulation.

The European Data Protection Supervisor shall ensure that an audit of eu-LISA’s personal data processing activities is carried out in accordance with relevant international auditing standards at least every three years. A report of that audit shall be sent to the European Parliament, to the Council, to the Commission, to eu-LISA and to the supervisory authorities. eu-LISA shall be given an opportunity to make comments before the report is adopted.

eu-LISA shall supply information requested by the European Data Protection Supervisor, give him or her access to all documents and to its logs referred to in Article 46 and allow him or her access to all its premises at any time.

Article 57: Cooperation between supervisory authorities sssand the European Data Protection Supervisor

The supervisory authorities and the European Data Protection Supervisor shall, each acting within the scope of their respective competences, cooperate actively within the framework of their respective responsibilities and shall ensure coordinated supervision of the EES and the national border infrastructures.

The supervisory authorities and the European Data Protection Supervisor shall exchange relevant information, assist each other in carrying out audits and inspections, examine any difficulties concerning the interpretation or application of this Regulation, assess problems in the exercise of independent supervision or in the exercise of the rights of the data subject, draw up harmonised proposals for joint solutions to any problems and promote awareness of data protection rights, as necessary.

For the purpose of paragraph 2, the supervisory authorities and the European Data Protection Supervisor shall meet at least twice a year within the framework of the European Data Protection Board established by GDPR (the ‘European Data Protection Board’). The costs of those meetings shall be borne and their organisation shall be undertaken by that Board. Rules of procedure shall be adopted at the first meeting. Further working methods shall be developed jointly as necessary.

A joint report of activities shall be sent by the European Data Protection Board to the European Parliament, to the Council, to the Commission and to eu-LISA every two years. That report shall include a chapter on each Member State prepared by the supervisory authorities of that Member State.

Article 58: Protection of personal data accessed in accordance with Chapter IV

Each Member State shall ensure that the national laws, regulations and administrative provisions adopted pursuant to Directive 2016/680 are also applicable to the access to the EES by its national authorities in line with Article 1(2) of this Regulation, including in relation to the rights of the persons whose data are so accessed.

The supervisory authority established in accordance with Article 41(1) of Directive 2016/680 shall monitor the lawfulness of the access to personal data by the Member States in accordance with Chapter IV of this Regulation, including their transmission to and from the EES. Article 55(3) and (4) of this Regulation shall apply accordingly.

The processing of personal data by Europol pursuant to this Regulation shall be carried out in accordance with Regulation 2016/794 and shall be supervised by the European Data Protection Supervisor.

Personal data accessed in the EES in accordance with Chapter IV shall only be processed for the purposes of the prevention, detection or investigation of the specific case for which the data have been requested by a Member State or by Europol.

The EES Central System, the designated authorities, the central access points and Europol shall keep records of the searches for the purpose of enabling the supervisory authority established in accordance with Article 41(1) of Directive 2016/680 and the European Data Protection Supervisor to monitor the compliance of data processing with Union and national data protection rules. With the exception of that purpose, personal data, as well as the records of searches, shall be erased from all national and Europol files after 30 days, unless those data and records are required for the purposes of the specific ongoing criminal investigation for which they were requested by a Member State or by Europol.

Article 59: Logging and documentation

Each Member State and Europol shall ensure that all data processing operations resulting from requests to access to EES data in accordance with Chapter IV are logged or documented for the purposes of checking the admissibility of the request, monitoring the lawfulness of the data processing and data integrity and security, and self-monitoring.

The log or documentation shall show, in all cases:

the exact purpose of the request for access to EES data, including the terrorist offence or other serious criminal offence concerned and, for Europol, the exact purpose of the request for access;

the reasonable grounds given for not making comparisons with other Member States under Decision 2008/615/JHA, in accordance with point (b) of Article 32(2) of this Regulation;

the national file reference;

the date and exact time of the request for access by the central access point to the EES Central System;

the name of the authority which requested access for consultation;

where applicable, the use of the urgency procedure referred to in Article 31(2) of this Regulation and the decision taken with regard to the ex-post verification;

the data used for consultation;

in accordance with national rules or with Regulation 2016/794, the unique user identity of the official who carried out the search and of the official who ordered the search.

Logs and documentation shall be used only for monitoring the lawfulness of data processing and for ensuring data integrity and security. Only logs which do not contain personal data may be used for the monitoring and evaluation referred to in Article 72 of this Regulation. The supervisory authority established in accordance with Article 41(1) of Directive 2016/680, which is responsible for checking the admissibility of the request and monitoring the lawfulness of the data processing and data integrity and security, shall have access to these logs at its request for the purpose of fulfilling its duties.

Article 60: Amendment to the Convention implementing the Schengen Agreement

Article 20 of the Convention implementing the Schengen Agreement is amended as follows:

paragraph 2 is replaced by the following:

the following paragraphs are inserted: ( *1 ) Regulation 2017/2226 of 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 VIS and IT ( OJ L 327, 9.12.2017, p. 20 ).’."

Article 61: Amendments to Regulation (EC) No 767/2008

VIS is amended as follows:

Article 10(1) is amended as follows:

the following point is inserted:

‘da

if applicable, the information indicating that the visa has been issued with limited territorial validity pursuant to Article 25(1)(b) of VVCR;’;

the following point is added: ( *2 ) Directive 2004/38 of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation 1968/1612 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC ( OJ L 158, 30.4.2004, p. 77 ).’;"

‘l

if applicable, the status of the person indicating that the third-country national is a member of the family of a Union citizen to whom Directive 2004/38 ( *2 ) applies or of a third-country national enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other.

in Article 13, the following paragraph is added: ( *3 ) Regulation 2017/2226 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 VIS and IT ( OJ L 327, 9.12.2017, p. 20 ).’;"

in Article 14, the following paragraph is added:

Article 15 is amended as follows:

in paragraph 2, points (b) and (c) are replaced by the following:

‘b

surname (family name), first name or names (given names); date of birth; nationality or nationalities; sex;

the type and number of the travel document; three letter code of the issuing country of the travel document; and the date of expiry of the validity of the travel document;’;

the following paragraphs are added:

in Chapter III, the following Article is inserted: ( *4 ) Regulation 2016/399 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 ).’."

Article 18 is replaced by the following:

the following Article is inserted:

in Article 20(1), the first subparagraph is replaced by the following:

in Article 26, the following paragraph is inserted:

Article 34 is amended as follows:

paragraph 1 is replaced by the following:

the following paragraph is inserted:

Article 62: Amendments to Regulation (EU) No 1077/2011

IT is amended as follows:

in Article 1, paragraph 2 is replaced by the following: ( *5 ) Regulation 2017/2226 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 VIS and IT ( OJ L 327, 9.12.2017, p. 20 ).’;"

the following Article is inserted:

in Article 7, paragraphs 5 and 6 are replaced by the following: ( *6 ) Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 ( OJ L 298, 26.10.2012, p. 1 ).’;"

in Article 8, paragraph 1 is replaced by the following:

in Article 12, paragraph 1 is amended as follows:

the following point is inserted:

‘sa

adopt the reports on the development of the EES pursuant to Article 72(2) of Regulation 2017/2226;’;

point (t) is replaced by the following:

‘t

adopt the reports on the technical functioning of SIS II pursuant to Article 50(4) of Regulation 1987/2006 and Article 66(4) of Decision 2007/533/JHA, of VIS pursuant to Article 50(3) of VIS and Article 17(3) of Decision 2008/633/JHA and of EES pursuant to Article 72(4) of Regulation 2017/2226;’;

point (v) is replaced by the following:

‘v

make comments on the European Data Protection Supervisor’s reports on the audits pursuant to Article 45(2) of Regulation 1987/2006, Article 42(2) of VIS, Article 31(2) of Regulation 2013/603 and Article 56(2) of Regulation 2017/2226 and ensure appropriate follow-up to those audits;’;

the following point is inserted:

‘xa

publish statistics related to the EES pursuant to Article 63 of Regulation 2017/2226;’;

the following point is inserted:

‘za

ensure annual publication of the list of competent authorities pursuant to Article 65(2) of Regulation 2017/2226;’;

in Article 15, paragraph 4 is replaced by the following:

Article 17 is amended as follows:

in paragraph 5, point (g) is replaced by the following:

‘g

without prejudice to Article 17 of the Staff Regulations, establish confidentiality requirements in order to comply with Article 17 of Regulation 1987/2006, Article 17 of Decision 2007/533/JHA, Article 26(9) of VIS, Article 4(4) of Regulation 2013/603 and Article 37(4) of Regulation 2017/2226;’;

in paragraph 6, the following point is added:

‘k

reports on the state of play of the development of the EES referred to in Article 72(2) of Regulation 2017/2226.’;

Article 19 is amended as follows:

in paragraph 1, the following point is inserted:

‘da

EES Advisory Group;’;

paragraph 3 is replaced by the following: ‘Europol and Eurojust may each appoint a representative to the SIS II Advisory Group. Europol may also appoint a representative to the VIS, Eurodac and EES Advisory Groups.’.

Article 63: Use of data for reporting and statistics

The duly authorised staff of the competent authorities of Member States, the Commission and eu-LISA shall have access to consult the following data, solely for the purposes of reporting and statistics without allowing for individual identification and in accordance with the safeguards related to non-discrimination referred to in Article 10(2):

status information;

nationality, sex and year of birth of the third-country national;

date and border crossing point of the entry to a Member State and date and border crossing point of the exit from a Member State;

the type of the travel document and the three letter code of the issuing country;

the number of persons identified as overstayers referred to in Article 12, the nationalities of persons identified as overstayers and the border crossing point of entry;

the data entered in respect of any stay revoked or any stay whose validity is extended;

the three letter code of the Member State that issued the visa, if applicable;

the number of persons exempt from the requirement to give fingerprints pursuant to Article 17(3) and (4);

the number of third-country nationals refused entry, the nationalities of third-country nationals refused entry, the type of border (land, air or sea) of the border crossing point at which entry was refused and the reasons for which entry has been refused as referred to in point (d) of Article 18(6).

The duly authorised staff of the European Border and Coast Guard Agency established by EBCGR ( 44 ) shall have access to consult the data referred to in the first subparagraph of this paragraph for the purpose of carrying out risk analyses and vulnerability assessments as referred to in Articles 11 and 13 of that Regulation.

For the purpose of paragraph 1 of this Article, eu-LISA shall establish, implement and host a data repository at a central level in its technical sites containing the data referred to in paragraph 1 of this Article. That data repository shall not allow for the identification of individuals, but it shall allow the authorities listed in paragraph 1 of this Article to obtain customisable reports and statistics on the entries and exits, refusals of entry and overstays of third-country nationals, to enhance the efficiency of border checks, to help consulates processing the visa applications and to support evidence-based Union migration policymaking. That data repository shall also contain daily statistics on the data referred to in paragraph 4. Access to that data repository shall be granted by means of secured access through TESTA with control of access and specific user profiles solely for the purpose of reporting and statistics. Detailed rules on the operation of that data repository and the data protection and security rules applicable to it shall be adopted in accordance with the examination procedure referred to in Article 68(2).

The procedures put in place by eu-LISA to monitor the development and the functioning of the EES referred to in Article 72(1) shall include the possibility to produce regular statistics for ensuring that monitoring.

Every quarter, eu-LISA shall publish statistics on the EES showing in particular the number, nationality, age, sex, duration of stay and border crossing point of entry of overstayers, of third-country nationals who were refused entry, including the grounds for refusal, and of third-country nationals whose authorisation for stay was revoked or extended, as well as the number of third-country nationals exempt from the requirement to give fingerprints.

At the end of each year, statistical data shall be compiled in an annual report for that year. The statistics shall contain a breakdown of data for each Member State. The report shall be published and transmitted to the European Parliament, to the Council, to the Commission, to the European Border and Coast Guard Agency, to the European Data Protection Supervisor and to the national supervisory authorities.

At the request of the Commission, eu-LISA shall provide it with statistics on specific aspects related to the implementation of this Regulation as well as the statistics pursuant to paragraph 3.

Article 64: Costs

The costs incurred in connection with the establishment and operation of the EES Central System, the Communication Infrastructure, the NUI, the web service and the data repository referred to in Article 63(2) shall be borne by the general budget of the Union.

Costs incurred in connection with the integration of the existing national border infrastructure and its connection to the NUI as well as in connection with hosting the NUI shall be borne by the general budget of the Union.

The following costs shall be excluded:

Member States’ project management office (meetings, missions, offices);

hosting of national IT systems (space, implementation, electricity, cooling);

operation of national IT systems (operators and support contracts);

customisation of existing border checks and policing systems for national entry-exit systems;

project management of national entry-exit systems;

design, development, implementation, operation and maintenance of national communication networks;

automated border control systems, self-service systems and e-gates.

The costs incurred by the central access points referred to in Articles 29 and 30 shall be borne, respectively, by each Member State and Europol. The costs for the connection of those central access points to the NUI and to the EES shall be borne by each Member State and Europol, respectively.

Each Member State and Europol shall set up and maintain at their expense the technical infrastructure necessary to implement Chapter IV and shall be responsible for bearing the costs resulting from access to the EES for that purpose.

Article 65: Notifications

Member States shall notify the Commission of the authority which is to be considered as controller as referred to in Article 39.

Member States shall notify the Commission and eu-LISA of the competent authorities referred to in Article 9(2) which have access to enter, rectify, complete, erase, consult or search data. Three months after the EES has started operations in accordance with Article 66, eu-LISA shall publish a consolidated list of those authorities in the Official Journal of the European Union . Member States shall also notify without delay any changes thereto. In the event of such changes, eu-LISA shall publish once a year an updated consolidated version of that information. Official Journal of the European Union

Member States shall notify the Commission and eu-LISA of their designated authorities and of their central access points referred to in Article 29 and shall notify without delay any amendments thereto.

Europol shall notify the Commission and eu-LISA of the authority it designates and its central access point referred to in Article 30 and shall notify without delay any amendments thereto.

eu-LISA shall notify the Commission of the successful completion of the test referred to in point (b) of Article 66(1).

The Commission shall publish the information referred to in paragraphs 1, 3 and 4 in the Official Journal of the European Union . In the event of changes thereto, the Commission shall publish once a year an updated consolidated version of that information. The Commission shall maintain a continuously updated public website containing that information. Official Journal of the European Union

Article 66: Start of operations

The Commission shall decide the date from which the EES is to start operations, after the following conditions are met:

the measures referred to in Article 36 and Article 50(4) and (5) have been adopted;

eu-LISA has declared the successful completion of a comprehensive test of the EES, which is to be conducted by eu-LISA in cooperation with the Member States;

the Member States have validated the technical and legal arrangements to collect and transmit the data referred to in Articles 16 to 20 to the EES and have notified them to the Commission;

the Member States have notified the Commission as referred to in Article 65(1), (2) and (3).

The EES shall be operated by:

the Member States which apply the Schengen acquis in full; and

the Member States which do not yet apply the Schengen acquis in full but for which all the following conditions are met:

the verification in accordance with applicable Schengen evaluation procedures has been successfully completed;

the provisions of the Schengen acquis relating to the SIS have been put into effect in accordance with the relevant Act of Accession; and

iii

the provisions of the Schengen acquis relating to the VIS which are necessary for the operation of the EES as defined in this Regulation have been put into effect in accordance with the relevant Act of Accession.

A Member State which is not covered by paragraph 2 shall be connected to the EES as soon as the conditions referred to in points (b), (c) and (d) of paragraph 1 and point (b) of paragraph 2 are met. The Commission shall decide the date from which the EES is to start its operations in those Member States.

The Commission shall inform the European Parliament and the Council of the results of the test carried out pursuant to point (b) of paragraph 1.

The Commission decision referred to in paragraphs 1 and 3 shall be published in the Official Journal of the European Union . Official Journal of the European Union

The Member States and Europol shall start using the EES from the date determined by the Commission in accordance with paragraph 1 or, where applicable, with paragraph 3.

Article 67: Ceuta and Melilla

 This Regulation shall not affect the special rules applying to the cities of Ceuta and Melilla, as defined in the Declaration of the Kingdom of Spain on the cities of Ceuta and Melilla in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985. 

Article 68: Committee procedure

The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation 2011/182.

Where reference is made to this paragraph, Article 5 of Regulation 2011/182 shall apply.

Article 69: Advisory Group

An Advisory Group shall be established by eu-LISA in order to provide it with the expertise related to the EES, in particular in the context of the preparation of its annual work programme and its annual activity report. During the design and development phase of the EES, Article 37(2) shall apply.

Article 70: Training

eu-LISA shall perform tasks related to provision of training on the technical use of the EES in accordance with IT.

Article 71: Practical handbook

The Commission shall, in close cooperation with the Member States, eu-LISA and other relevant agencies, make available a practical handbook for the implementation and management of the EES. The practical handbook shall provide technical and operational guidelines, recommendations and best practices. The Commission shall adopt the practical handbook in the form of a recommendation.

Article 72: Monitoring and evaluation

eu-LISA shall ensure that procedures are in place to monitor the development of the EES in light of objectives relating to planning and costs and to monitor the functioning of the EES in light of objectives relating to the technical output, cost-effectiveness, security and quality of service.

By 30 June 2018, and every six months thereafter during the development phase of the EES, eu-LISA shall submit a report to the European Parliament and to the Council on the state of play of the development of the EES Central System, the Uniform Interfaces and the Communication Infrastructure between the EES Central System and the Uniform Interfaces. That report shall contain detailed information about the costs incurred and information as to any risks which may impact the overall costs of the EES to be borne by the general budget of the Union in accordance with Article 64(1) and the first subparagraph of Article 64(2). Following the development of the EES, eu-LISA shall submit a report to the European Parliament and to the Council explaining in detail how the objectives, in particular relating to planning and costs, were achieved, as well as justifying any divergences.

For the purposes of technical maintenance, eu-LISA shall have access to the necessary information relating to the data processing operations performed in the EES.

Two years after the start of operations of the EES and every two years thereafter, eu-LISA shall submit to the European Parliament, to the Council and to the Commission a report on the technical functioning of EES, including the security thereof.

Three years after the start of operations of the EES and every four years thereafter, the Commission shall produce an overall evaluation of the EES. This overall evaluation shall include:

an assessment of the application of this Regulation;

an examination of the results achieved against objectives and the impact on fundamental rights;

an assessment of the continuing validity of the underlying rationale of the EES;

an assessment of the adequacy of the biometric data used for the proper functioning of the EES;

an assessment of the use of stamps in the exceptional circumstances referred to in Article 21(2);

an assessment of the security of the EES;

an assessment of any implications, including any disproportionate impact on the flow of traffic at border crossing points and those with a budgetary impact on the Union budget.

The evaluations shall include any necessary recommendations. The Commission shall transmit the evaluation report to the European Parliament, to the Council, to the European Data Protection Supervisor and to the European Union Agency for Fundamental Rights established by EUAFRR ( 45 ) .

Those evaluations shall also include an assessment of the use made of the provisions referred to in Article 60 both in terms of frequency — number of third-country nationals making use of these provisions per Member State, their nationality and average duration of their stay — and practical implications, and shall take into account any related developments in the Union’s visa policy. The first evaluation report may include options in view of phasing out the provisions referred to in Article 60 and replacing them with a Union instrument. It shall be accompanied, where appropriate, by a legislative proposal amending the provisions referred to in Article 60.

The Member States and Europol shall provide eu-LISA and the Commission with the information necessary to draft the reports referred to in paragraphs 4 and 5 according to the quantitative indicators predefined by the Commission, eu-LISA, or both. This information shall not jeopardise working methods or include information that reveals sources, staff members or investigations of the designated authorities.

eu-LISA shall provide the Commission with the information necessary to produce the overall evaluations referred to in paragraph 5.

While respecting the provisions of national law on the publication of sensitive information, each Member State and Europol shall prepare annual reports on the effectiveness of access to EES data for law enforcement purposes containing information and statistics on:

whether the consultation was carried out for the purpose of identification or for entry/exit records, and the type of terrorist offence or serious criminal offence that led to the consultation;

the grounds given to substantiate the suspicion that the person concerned was covered by this Regulation;

the grounds given not to launch the consultation of other Member States’ automated fingerprint identification systems under Decision 2008/615/JHA in accordance with point (b) of Article 32(2) of this Regulation;

the number of requests for access to the EES for law enforcement purposes;

the number and type of cases in which access to the EES for law enforcement purposes led to successful identifications;

the number and type of cases in which the urgency procedures referred to in Article 31(2) and in the second subparagraph of Article 32(2) were used, including those cases where that urgency was not accepted by the ex post verification carried out by the central access point.

A technical solution shall be made available to Member States in order to facilitate the collection of the data listed in the first subparagraph of this paragraph for the purpose of generating statistics referred to in this paragraph. The Commission shall adopt implementing acts concerning the specifications of the technical solution. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

Member States’ and Europol’s annual reports shall be transmitted to the Commission by 30 June of the subsequent year.

Article 73: Entry into force and applicability

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

This Regulation shall apply from the date decided by the Commission in accordance with Article 66(1) thereof, with the exception of the following provisions, which shall apply from 29 December 2017: Articles 5, 36, 37, 38, 43, 51 of this Regulation; point (5) of Article 61 of this Regulation, as regards Article 17a(5) of VIS; point (10) of Article 61 of this Regulation, as regards Article 26(3a) of VIS; and Articles 62, 64, 65, 66, 68, 69 and 70 and Article 72(2) of this Regulation.

Recitals

Recital 1

In its Communication of 13 February 2008 entitled ‘Preparing the next steps in border management in the European Union’, the Commission outlined the need, as part of the Union’s integrated border management strategy, to establish an Entry/Exit System (EES) which registers electronically the time and place of entry and exit of third-country nationals admitted for a short stay to the territory of the Member States and which calculates the duration of their authorised stay.

Recital 2

The European Council of 19 and 20 June 2008 underlined the importance of continuing to work on the development of the Union’s integrated border management strategy, including better use of modern technologies to improve the management of external borders.

Recital 3

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

Recital 4

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

Recital 5

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

Recital 6

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

Recital 7

With a view to further improving the management of the external borders and, in particular, in order to verify compliance with the provisions on the authorised period of stay on the territory of the Member States, an EES should be established, which registers electronically the time and place of entry and exit of third-country nationals admitted for a short stay to the territory of the Member States and which calculates the duration of their authorised stay. It should replace the obligation to stamp the passports of third-country nationals which is applicable to all Member States.

Recital 8

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

Recital 9

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

Recital 10

The EES should be operated at the external borders of the Member States which apply the Schengen acquis in full. It is desirable that Member States not yet applying the Schengen acquis in full apply it fully by the start of operations of the EES. However, in the event that the lifting of controls at internal borders cannot be achieved by the start of operations of the EES, it is necessary to specify the conditions for the operation of the EES by those Member States which do not apply the Schengen acquis in full and lay down the provisions for the operation and use of the EES at internal borders where controls have not yet been lifted. As regards the conditions for the operation of the EES, the EES should be operated at the external borders of the Member States which do not yet apply the Schengen acquis in full but for which the verification in accordance with the applicable Schengen evaluation procedure has already been successfully completed, to which passive access to the Visa Information System (VIS) established by Council Decision 2004/512/EC ( 3 ) has been granted for the purpose of operating the EES and for which the provisions of the Schengen acquis relating to the Schengen Information System (SIS), established by Regulation 1987/2006 ( 4 ) , have been put into effect in accordance with the relevant Act of Accession. As regards the provisions on the operation and use of the EES by the Member States fulfilling such conditions, the EES should be operated at all internal borders of those Member States where the controls have not yet been lifted. However, specific provisions on the operation and use of the EES at such borders should apply, in order to minimise the impact of the border check procedure at such borders, while not affecting the level of security and the proper functioning of the EES and without prejudice to the other border control obligations under Regulation 2016/399 ( 5 ) .

Recital 11

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

Recital 12

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

Recital 13

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

Recital 14

Precise rules should be laid down as regards the responsibility for the development and operation of the EES and the responsibility of the Member States for their connection to the EES. The European agency for the operational management of large-scale information systems in the area of freedom, security and justice, established by IT ( 6 ) , should be responsible for the development and operational management of a centralised EES in accordance with this Regulation. IT should therefore be amended accordingly.

Recital 15

The objectives of the EES should be to improve the management of external borders, to prevent irregular immigration and to facilitate the management of migration flows. The EES should, in particular and when relevant, contribute to the identification of any person who does not fulfil or no longer fulfils the conditions of duration of the authorised stay on the territory of the Member States. Additionally, the EES should contribute to the prevention, detection and investigation of terrorist offences and of other serious criminal offences.

Recital 16

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

Recital 17

Interoperability should be established between the EES and the VIS by way of a direct communication channel between the VIS Central System and the EES Central System to enable the border authorities using the EES to consult the VIS in order to retrieve visa-related data to create or update entry/exit records or refusal of entry records, to enable the border authorities to verify the validity of the visa and the identity of the visa holder by directly searching the VIS with fingerprints at the borders at which the EES is operated and to enable the border authorities to verify the identity of visa-exempt third–country nationals against the VIS by using fingerprints. Interoperability should also enable the border authorities and visa authorities using the VIS to directly consult the EES from the VIS for the purposes of examining visa applications and of taking decisions relating to those applications, and of enabling visa authorities to update the visa-related data in the EES in the event that a visa is annulled, revoked or extended. VIS ( 7 ) should therefore be amended accordingly. The retrieval of visa-related data from the VIS, their importation into the EES and the updating of data from the VIS in the EES should be an automated process once the operation in question is launched by the authority concerned. The purpose limitation principle should be respected when establishing interoperability between the EES and the VIS.

Recital 18

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

Recital 19

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

Recital 20

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

Recital 21

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

Recital 22

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

Recital 23

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

Recital 24

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

Recital 25

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

Recital 26

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

Recital 27

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

Recital 28

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

Recital 29

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

Recital 30

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

Recital 31

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

Recital 32

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

Recital 33

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

Recital 34

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

Recital 35

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

Recital 36

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

Recital 37

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

Recital 38

Regulation 2001/45 ( 15 ) should apply to the activities of the Union institutions or bodies when carrying out their tasks as responsible for the operational management of EES.

Recital 39

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

Recital 40

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

Recital 41

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

Recital 42

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

Recital 43

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

Recital 44

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

Recital 45

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

Recital 46

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation 2011/182 ( 16 ) .

Recital 47

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

Recital 48

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

Recital 49

The projected costs of the EES are lower than the budget earmarked for Smart Borders in Regulation 2014/515 ( 18 ) . Accordingly, following the adoption of this Regulation, the Commission should, by means of a delegated act provided for in Regulation 2014/515, re-allocate the amount currently attributed for developing IT systems supporting the management of migration flows across the external borders.

Recital 50

This Regulation is without prejudice to the application of Directive 2004/38.

Recital 51

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

Recital 52

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

Recital 53

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

Recital 54

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

Recital 55

As regards Switzerland, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ( 23 ) which fall within the area referred to in Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2008/146/EC ( 24 ) and with Article 3 of Council Decision 2008/149/JHA ( 25 ) .

Recital 56

As regards Liechtenstein, this Regulation constitutes a development of the provisions of the Schengen acquis within the meaning of the Protocol between the European Union, the European Community, the Swiss Confederation and the Principality of Liechtenstein on the accession of the Principality of Liechtenstein to the Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implementation, application and development of the Schengen acquis ( 26 ) which fall within the area referred to in Article 1, point A of Decision 1999/437/EC read in conjunction with Article 3 of Council Decision 2011/350/EU ( 27 ) and with Article 3 of Council Decision 2011/349/EU ( 28 ) .

Recital 57

As regards Cyprus, Bulgaria, Romania and Croatia, the provisions of this Regulation relating to the SIS and the VIS constitute provisions building upon, or otherwise relating to, the Schengen acquis within, respectively, the meaning of Article 3(2) of the 2003 Act of Accession, Article 4(2) of the 2005 Act of Accession and Article 4(2) of the 2011 Act of Accession read in conjunction with Council Decisions 2010/365/EU ( 29 ) , (EU) 2017/733 ( 30 ) and (EU) 2017/1908 ( 31 ) . In addition, the operation of the EES requires the granting of passive access to the VIS and the putting into effect of all the provisions of the Schengen acquis relating to the SIS in accordance with the relevant Council Decisions. Those conditions can only be met once the verification in accordance with the applicable Schengen evaluation procedure has been successfully completed. Therefore, the EES should be operated only by those Member States which fulfil those conditions by the start of operations of the EES. Member States not operating the EES from the initial start of operations should be connected to the EES in accordance with the procedure set out in this Regulation as soon as all of those conditions are met.

Recital 58

The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation 2001/45 and delivered an opinion on 21 September 2016.

Recital 59

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

Recital 60

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

Definitions

alphanumeric data

data represented by letters, digits, special characters, spaces and punctuation marks;

authorised stay

the exact number of days during which a third-country national is permitted to legally stay on the territory of the Member States, counting from the date of the entry in accordance with the applicable provisions;

biometric data

fingerprint data and facial image;

border authority

the border guard assigned in accordance with national law to carry out border checks as defined in point 11 of Article 2 of Regulation 2016/399;

designated authority

an authority designated by a Member State pursuant to Article 29 as responsible for the prevention, detection or investigation of terrorist offences or of other serious criminal offences;

e-gate

an e-gate as defined in point 24 of Article 2 of Regulation 2016/399;

EES data

all data stored in the EES Central System in accordance with Article 14 and Articles 16 to 20;

eu-LISA

the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by IT;

facial image

digital images of the face;

fingerprint data

the data relating to the four fingerprints of the index, middle finger, ring finger and little finger from the right hand where present, and otherwise from the left hand;

identification

the process of determining a person’s identity through a database search against multiple sets of data (one-to-many check);

immigration authority

the competent authority responsible, in accordance with national law, for one or more of the following:

checking within the territory of the Member States whether the conditions for entry to, or stay on, the territory of the Member States are fulfilled;

the return of third-country nationals to a third country of origin or transit;

internal borders

internal borders as defined in point 1 of Article 2 of Regulation 2016/399;

law enforcement

the prevention, detection or investigation of terrorist offences or other serious criminal offences;

Member State responsible

the Member State which has entered data in the EES;

national short-stay visa

an authorisation issued by a Member State which does not apply the Schengen acquis in full with a view to an intended stay on the territory of that Member State of a duration of no more than 90 days in any 180-day period;

overstayer

a third-country national who does not fulfil or no longer fulfils the conditions relating to the duration of his or her authorised short stay on the territory of the Member States;

self-service system

a self-service system as defined in point 23 of Article 2 of Regulation 2016/399;

serious criminal offence

an offence which corresponds or is equivalent to one of the offences referred to in Article 2(2) of Framework Decision 2002/584/JHA, if it is punishable under national law by a custodial sentence or a detention order for a maximum period of at least three years;

short stay

stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period as referred to in Article 6(1) of Regulation 2016/399;

short-stay visa

visa as defined in point (a) of point 2 of Article 2 of VVCR ( 37 ) ;

supervisory authorities

the supervisory authority established in accordance with Article 51(1) of GDPR and the supervisory authority established in accordance with Article 41(1) of Directive 2016/680;

terrorist offence

an offence under national law which corresponds or is equivalent to one of the offences referred to in Directive 2017/541;

third-country national

any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU, with the exception of persons who enjoy the right of free movement equivalent to that of Union citizens under agreements between the Union and its Member States, on the one hand, and third countries, on the other;

travel document

a passport or other equivalent document entitling the holder to cross the external borders and to which a visa may be affixed;

verification

the process of comparing sets of data to establish the validity of a claimed identity (one-to-one check);

visa authority

the visa authority as defined in point 3 of Article 4 of VIS;

Annexes

LIST OF INTERNATIONAL ORGANISATIONS REFERRED TO IN ARTICLE 41(2) LIST OF INTERNATIONAL ORGANISATIONS REFERRED TO IN ARTICLE 41(2)

 1. 
 UN organisations (such as the UNHCR); 
 2. 
 The International Organization for Migration (IOM); 
 3. 
 The International Committee of the Red Cross. 

SPECIFIC PROVISIONS FOR THIRD-COUNTRY NATIONALS WHO CROSS THE BORDER ON THE BASIS OF A VALID FTD SPECIFIC PROVISIONS FOR THIRD-COUNTRY NATIONALS WHO CROSS THE BORDER ON THE BASIS OF A VALID FTD

By way of derogation from Article 16(1) to (3) of this Regulation, for third-country nationals who cross a border on the basis of a valid FTD, the border authorities shall: In order to calculate the maximum duration of the transit, the date and time of entry shall be considered as the starting point of that duration. The date and time of expiry of the authorised transit shall be calculated automatically by the EES in accordance with Article 3(2) of FTD.

create or update their individual file containing the data referred to in points (a), (b) and (c) of Article 17(1) of this Regulation. In addition, their individual file shall indicate that the third-country national concerned holds an FTD. That indication shall automatically result in the addition of the multiple entry characteristic of the FTD to the entry/exit record,

enter in an entry/exit record for each of the entries performed on the basis of a valid FTD the data set out in points (a), (b) and (c) of Article 16(2) of this Regulation, as well as the indication that the entry was performed on the basis of an FTD.

In addition, at the first entry on the basis of an FTD, the date of expiry of the validity of the FTD shall be entered into the entry/exit record.

Article 16(3) and (4) shall apply mutatis mutandis to third-country nationals holding an FTD.

For verification at a border at which the EES is operated and within the territory of the Member States, third-country nationals who cross the border on the basis of a valid FTD shall be subject, mutatis mutandis , to the verifications and identifications provided for under Articles 23 and 26 of this Regulation and Article 19a of VIS that are applicable to visa-exempt third-country nationals.

Points (1) to (4) shall not apply to third-country nationals who cross the border on the basis of a valid FTD, provided that all of the following conditions are met:

they transit by train; and

they do not disembark within the territory of a Member State.

Footnote p0: This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.

Definitions

alphanumeric data

data represented by letters, digits, special characters, spaces and punctuation marks;

authorised stay

biometric data

fingerprint data and facial image;

border authority

the border guard assigned in accordance with national law to carry out border checks as defined in point 11 of Article 2 of Regulation 2016/399;

designated authority

an authority designated by a Member State pursuant to Article 29 as responsible for the prevention, detection or investigation of terrorist offences or of other serious criminal offences;

e-gate

an e-gate as defined in point 24 of Article 2 of Regulation 2016/399;

EES data

all data stored in the EES Central System in accordance with Article 14 and Articles 16 to 20;

eu-LISA

the European Agency for the operational management of large-scale information systems in the area of freedom, security and justice established by IT;

facial image

digital images of the face;

fingerprint data

the data relating to the four fingerprints of the index, middle finger, ring finger and little finger from the right hand where present, and otherwise from the left hand;

identification

the process of determining a person’s identity through a database search against multiple sets of data (one-to-many check);

immigration authority

the competent authority responsible, in accordance with national law, for one or more of the following:

checking within the territory of the Member States whether the conditions for entry to, or stay on, the territory of the Member States are fulfilled;

the return of third-country nationals to a third country of origin or transit;

internal borders

internal borders as defined in point 1 of Article 2 of Regulation 2016/399;

law enforcement

the prevention, detection or investigation of terrorist offences or other serious criminal offences;

Member State responsible

the Member State which has entered data in the EES;

national short-stay visa

overstayer

a third-country national who does not fulfil or no longer fulfils the conditions relating to the duration of his or her authorised short stay on the territory of the Member States;

self-service system

a self-service system as defined in point 23 of Article 2 of Regulation 2016/399;

serious criminal offence

short stay

stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period as referred to in Article 6(1) of Regulation 2016/399;

short-stay visa

visa as defined in point (a) of point 2 of Article 2 of VVCR ( 37 ) ;

supervisory authorities

the supervisory authority established in accordance with Article 51(1) of GDPR and the supervisory authority established in accordance with Article 41(1) of Directive 2016/680;

terrorist offence

an offence under national law which corresponds or is equivalent to one of the offences referred to in Directive 2017/541;

third-country national

travel document

a passport or other equivalent document entitling the holder to cross the external borders and to which a visa may be affixed;

verification

the process of comparing sets of data to establish the validity of a claimed identity (one-to-one check);

visa authority

the visa authority as defined in point 3 of Article 4 of VIS;