Explanatory Memorandum to COM(2016)196 - Amendment of Regulation (EU) 2016/399 as regards the use of the Entry/Exit System - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)196 - Amendment of Regulation (EU) 2016/399 as regards the use of the Entry/Exit System. |
|---|---|
| source | COM(2016)196  |
| date | 06-04-2016 |
1. CONTEXT OF THE PROPOSAL
Contents
- Grounds for and objectives of the proposal
- General context
- Existing provisions
- Summary
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instrument
- Consequences of the various protocols annexed to the Treaties and of the association agreements concluded with third countries
- Succinct overview of the proposed amendments of the Schengen Borders Code
- New Article 6a Third countries nationals for which data shall be entered into the EES
- Article 8, Border checks on persons
- New Article 8a Use of automated border control systems for EU/EEA/CH citizens and for third country nationals who hold a residence card
- New Article 8b Use of automated border control systems for third countries nationals who hold a residence permit
- New Article 8c Use of self-service systems for pre-enrolling data in the EES
- New Article 8d Use of self-service systems and/or e-gates for the border crossing of nationals of third countries whose border crossing is subject to a registration in the EES
- New Article 8e National facilitation programmes
- Article 9 Relaxation of border checks
- Article 10 Separate lanes and information on signs
- Article 11 Stamping of the travel document
- Article 12 Presumption as regards fulfilment of conditions for duration of stay
- Article 12a: Transitional period and measures
- Article 14 Refusal of entry
- Annex III Model signs indicating lanes at border crossing points
- Annex IV Affixing stamps
- Annex V Part A Procedures for refusing entry at the border
- Annex VIII is deleted
This proposal aims to amend Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) 1 . The proposed amendments are due to the proposed establishment of an Entry Exit System (EES) for which a legislative proposal is presented simultaneously.
In February 2013, the Commission tabled a Smart Borders package consisting of three proposals: (1) a Regulation for an Entry/Exit System (EES) for the recording of information on the time and place of entry and exit of third country nationals travelling to the Schengen area, i a Regulation for a Registered Traveller Programme (RTP) to allow third country nationals who have been pre-vetted to benefit from facilitation of border checks at the Union external border, (3) a Regulation amending the Schengen Borders Code in order to take into account the establishment of the EES and RTP. 2
In the meantime, the Commission has decided to;
– revise its 2013 proposal for a Regulation for the establishment of an Entry/Exit System (EES);
– revise its 2013 proposal for Regulation amending the Schengen Borders Code to integrate the technical changes that result from the new proposal for a Regulation establishing an Entry/Exit System (EES);
– withdraw its 2013 proposal for a Regulation for a Registered Traveller Programme (RTP).
The reasons for this decision are further explained in the explanatory memorandum for the updated legislative proposal on the establishment of an EES and in the impact assessment accompanying that proposal.
Consequently, the current proposal replaces the 2013 proposal 3 and integrates into the Schengen Borders Code the technical changes that result from the new proposal for a Regulation establishing an Entry/Exit System (EES), in particular, the recording in the EES of refusals of entry of third country nationals, new elements on the fall back procedures for the EES and the interoperability between the EES and the Visa Information System (VIS). By doing so, this new proposal takes into account the results of negotiations in the Council and in the European Parliament.
Because of the abolition of stamping the EES conveys, the establishment of this system opens the possibility to introduce an automation of border control operations for third country nationals admitted for a short stay (and eventually, on the basis of a touring visa 4 ). The conditions to use the automated border control systems nevertheless differ depending on the category of travellers (EU/EEA/CH citizens, third country nationals holding a residence card, third country nationals holding a residence permit or a long-stay visa or third country nationals admitted for short stay respectively) and each procedure shall be regulated separately.
The general context is explained in the explanatory memorandum for the legislative proposal on the establishment of an EES and in the impact assessment accompanying this proposal.
Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) and the Convention implementing the Schengen Agreement of 14 June 1985.
It has to be taken into account that on 15 December 2015, the Commission submitted a proposal to amend the Schengen Borders Code as regards the reinforcement of checks against relevant databases at external borders 5 . The negotiations on this text will have an impact on this proposal, so particular attention should be paid to ensuring the necessary synergies between these two proposals during the negotiation process.
2. RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
The consultation with interested parties and impact assessments are described in the explanatory memorandum for the legislative proposal on the establishment of an EES and in the impact assessment accompanying that proposal.
3. LEGAL ELEMENTS OF THE PROPOSAL
The main proposed amendments concern the following issues:
– additional definitions of the EES, self-service system, e-gate and Automated Border Control (ABC) system (Article 2);
– third-country nationals for whom data shall be entered into the EES and derogations thereof (Article 6a);
– authenticity check of the chip in travel documents containing an electronic storage medium (Article 8 i 6 ;
– on entry and exit, for third country nationals, verification of the validity of the travel document by consulting the relevant databases and, in particular, the SIS; the Interpol database on stolen and lost travel documents; and national databases containing information on stolen, misappropriated, lost and invalidated travel documents. If their travel document contains a facial image recorded in the chip, verification of the recorded facial image, except for third country national whose entry or exit is subject to a registration in the EES (Articles 8(3)(a)(i) and 8(3)(g)(i));
– on entry, for third country nationals, authenticity check of the chip data in residence permits containing an electronic storage medium and verification of the validity of the residence permits and long stay visas in SIS and other relevant databases (Article 8(3)(a)(ii);
– on entry and exit, verification of the identity and/ or identification of a third country national admitted for a short stay{or on the basis of a touring visa} by consulting the EES and, where applicable, the VIS (Articles 8(3)(a)(iii) and 8(3)(g)(iv));
– verification on entry and exit, by consulting the EES, that a third country national has not already exceeded the maximum duration of authorised stay in the territory of the Member States and, verification at entry, by consulting the EES, that third country nationals holding a single or double entry visa have respected the maximum number of authorised entries (Articles 8(3)(a)(iiia), 8(3)(g)(v) and 8(3)(h)(ii);
– for visa holders [or persons holding a touring visa], on entry, verification of the authenticity, territorial and temporal validity and valid status of the visa [/ touring visa] and, if applicable, of the identity of the holder of the visa, by consulting the Visa Information System (VIS) (Article 8(3)(b));
– possibility to use the EES for identification purposes at the external borders (Article 8(3) (i))
– information to the traveller on the maximum number of days of the authorised stay, having regard to the results of the consultation of the EES (Article 8(9));
– the use of automated border control systems:
• for EU/EEA/CH citizens and third country nationals who hold a residence card (Article 8a);
• for third country nationals who hold a residence permit (Articles 8b);
– the use of self-service systems and e-gates for persons whose border crossing is subject to a registration in the EES (Articles 8c and 8d);
– introduction of national facilitation programmes that can be established by Member States on a voluntary basis (Article 8e);
– obligation of entering data into the EES even in the event border checks are relaxed (Article 9(3));
– fall-back procedures to be followed in case of technical impossibility to enter data in the Central System of the EES or in case of failure of the Central System of the EES (Article 9(3a);
– indications/pictogram for ABC systems, self-service systems and e-gates (Article 10(3a);
– deletion of the obligation to systematically stamp on entry and exit the travel documents of third country nationals admitted for a short stay. Where expressly provided under its national legislation, possibility for a Member State to stamp on entry and exit the travel documents of third country nationals holding a residence permit issued by that same Member State (Article 11);
– presumption of an irregular stay in the absence of the appropriate records in the EES and possibilities of rebuttal (Article 12);
– transitional period of six months after the EES has started operations and transitional measures to cover those cases where a third country national whose border crossing is subject to a registration in the EES has entered the territory of the Member States and has not yet exited it before the entry into operations of the EES (Article 12a);
– registration in the EES of data on third country nationals whose entry for a short stay {or on the basis of a touring visa} has been refused (Article 14 i;
– change of Annexes III, IV and V;
– deletion of Annex VIII.
Article 77 i (b) of the Treaty on the Functioning of the European Union; as the proposal lays down provisions on border checks of persons crossing the external border.
This proposal amends Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code)", which is the codified version of Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) which was based on the equivalent provisions of the Treaty establishing the European Community, i.e. Articles 62(1) and (2)(a).
Article 77 empowers the Union to develop a policy with a view to ‘ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders’ and ‘carrying out checks on persons and efficient monitoring of the crossing of external borders’.
The current proposal is within the limits set by these provisions. The objective of this proposal is to make the necessary amendments to the Schengen Borders Code for the establishment of an EES. It cannot be sufficiently achieved by the Member States acting alone, because an amendment to an existing Union Act (the Schengen Borders Code) can only be achieved by the Union.
Article 5 i of the Treaty on European Union states that the content and form of Union action must not exceed what is necessary to achieve the objectives of the Treaties. The form chosen for this action must enable the proposal to achieve its objective and be implemented as effectively as possible.
The creation of the Schengen Borders Code in 2006 had to be in the form of a Regulation, in order to ensure that it is applied in the same way in all the Member States that apply the Schengen acquis. The proposed initiative — amendment of the Schengen Borders Code — constitutes an amendment to an existing regulation and can only be achieved by means of a regulation. As to the content, this initiative is limited to improvements of the existing regulation and based on the policy orientations contained therein. The proposal therefore complies with the proportionality principle.
Proposed instrument: Regulation.
4. BUDGETARY IMPLICATION
The proposed amendment has no implications for the EU budget.
5. ADDITIONAL INFORMATION
Consequences of the various protocols annexed to the Treaties and of the association agreements concluded with third countries
This proposal builds on the Schengen acquis in that it concerns the crossing of external borders. The consequences for the various protocols and association agreements therefore have to be considered with regard to Denmark, Ireland and the United Kingdom; Iceland and Norway; and Switzerland and Liechtenstein. The situation of each of these states is described in recitals 11 to 16 of this proposal and explained in further detail in the explanatory memorandum for the legislative proposal on the establishment of an EES.
Article 2, Definitions
Additional definitions
Point 22: Definition of the new Entry/Exit System (EES)
Point 23: Definition of self-service system
Point 24: Definition of e-gate
Point 25: Definition of Automated Border Control (ABC) system
The obligation for a third country national admitted for a short stay [or on the basis of a touring visa] in the Schengen area to be registered into the EES is added in a new Article 6a. The same obligation is added as regards third country nationals who are refused entry on the basis of a short stay [or a touring visa]. Exceptions are foreseen for the following categories of persons: 1) third country nationals holding a residence card who are members of the family of a Union citizen or a third country national enjoying the right of free movement even if they are not accompanying or joining a Union citizen or a third country national enjoying the right of free movement; 2) nationals of Andorra, Monaco and San Marino; 3) third country nationals that are exempted from border checks or from the obligation to cross external borders only at border crossing points or during the fixed opening hours as well as third country national benefiting from facilitation of border crossing 4) local border traffic permit holders.
In Paragraph i the obligation to check the authenticity of all travel documents that contain an electronic storage medium using valid certificates has been added.
Paragraph (3)(a)(i) concerning the obligation for border guards to verify on entry that the third country national is in possession of a document which is valid for border crossing and which has not expired, is developed. Indeed, as regards the verification of the validity of the travel document, a consultation of relevant databases (in particular, the Schengen Information System; the Interpol database on stolen and lost travel documents; and national databases containing information on stolen, misappropriated, lost and invalidated travel documents ) is expressly foreseen. In addition, if the third country national holds an electronic travel document which contains a facial image recorded in the chip, the verification of the facial image recorded in the chip is foreseen. An exception is foreseen for third country nationals whose entry is subject to a registration into the EES and who hold an electronic travel document. Indeed, for this category of persons, the verification of the facial image stored in the chip of the travel document should be carried out when getting registered into the EES or when registering a new electronic passport in the EES (e.g., in case of expiry of an old passport). Further to that verification, the travel document and the biometrics of the person will be stored in the EES and will be used for the verification/ identification of the person at subsequent border crossings.
Paragraph (3)(a)(ii) refers to the verification that the travel document is accompanied, where applicable, by the requisite visa or residence permit. Regarding residence permits, the obligation to check the authenticity of the residence permit that contains an electronic storage medium using valid certificates has been added. In addition, the validity of residence permits or long stay visas shall be verified by consulting the Schengen Information System and other relevant databases.
The new Paragraph (3)(a)(iii) regulates the obligation to carry out a verification and/or an identification of those third country nationals whose entry or whose refusal of entry is subject to a registration in the EES using biometric identifiers. Such verification and/ or identification shall be carried out in accordance with Article 21 of Regulation establishing the EES. As a result:
– for visa holders already registered in the EES, their biometrics will be verified against the EES or the VIS;
– for visa holders not yet registered in the EES, their biometrics will be verified against the VIS and an identification against the EES will be carried out;
– for visa exempt travellers already registered in the EES, their biometrics will be verified against the EES;
– for visa exempt travellers not yet registered in the EES, an identification against the EES shall be performed and, if the person is not found in the EES, a verification and, if applicable, an identification against the VIS will be carried out.
In Paragraph (3)(a) (iii a) the obligation to check the stamps in the passport to verify whether the third country national entering the Schengen area has not yet exceeded the maximum duration of authorised stay has been replaced by the requirement to consult the EES. In the same vein, because of the abolition of stamping, the EES will also need to be consulted to check whether third country nationals holding a single or double entry visa have respected the maximum number of authorised entries.
Paragraph 3(b) refers to the use made of VIS for verification at external borders. Because of the interoperability between the EES and the VIS and the possibility to use automated border control means at external borders, the VIS should provide information to the border guards not only on the authenticity but also on the territorial and temporal validity and on the status of the visa (or the touring visa) via a hit/no hit answer. In addition, in accordance with the EES proposal, this paragraph reflects the fact that the identity of visa holders will not be systematically verified against the VIS. In certain cases, the identity of visa holders will be verified against the EES, using their facial image.
Paragraph (3)(g)(i) concerning the obligation for border guards to verify at exit that the third country national is in possession of a document valid for crossing the border is developed, Indeed, as regards the verification of the validity of the travel document, a consultation of relevant databases (and in particular, the Schengen Information System; the Interpol database on stolen and lost travel documents; and national databases containing information on stolen, misappropriated, lost and invalidated travel documents) is expressly foreseen. In addition, if the third country national holds an electronic travel document which contains a facial image recorded in the chip, the verification of the facial image recorded in the chip is foreseen. An exception is foreseen for third country nationals whose entry is subject to a registration into the EES and who hold an electronic travel document. Indeed, for this category of persons, the verification of the facial image stored in the chip of the travel document should be carried out when getting registered into the EES or when registering a new electronic passport in the EES (e.g., in case of expiry of an old passport). Further to that verification, the travel document and the biometrics of the person will be stored in the EES and will be used for the verification/ identification of the person at subsequent border crossings.
The new Paragraph (3)(g)(iv) regulates the obligation to carry out a verification and/or an identification of those third country nationals whose exit is subject to a registration in the EES by using biometric identifiers. Such verification and/ or identification shall be carried out in accordance with Article 21 of Regulation establishing the EES. As a result, for visa holders already registered into the EES, their biometrics can be verified against the EES or, where applicable, against the VIS.
In the new Paragraph (3)(g)(v) the obligation to check the stamps in the passport to verify whether a third country national leaving the Schengen area has not yet exceeded the maximum duration of authorised stay has been replaced by the requirement to consult the EES.
Paragraph (3)(h)(ii) - which considered optional to check whether a third country national leaving the Schengen area had exceeded the maximum duration of authorised stay - is deleted. Indeed, with the EES this verification becomes compulsory.
Paragraph (3)(i) is adapted to foresee the possibility to also use the EES in addition to the VIS to identify any person who may not fulfil, or who may no longer fulfil, the conditions for entry, stay or residence on the territory of the Member States.
The new Paragraph (9) foresees the obligation for border guards to inform third country nationals about the maximum number of days of the authorized stay within the Schengen area as set out in the EES and, if applicable, in the VIS.
Introduction of new Articles 8a, 8b, 8c and 8d so as to foresee a harmonised automation of border checks for different categories of travellers.
The entry and exit conditions for the travellers concerned as such remain unchanged.
Articles 8a and 8b are not technical amendments determined by the introduction of the EES but additional provisions to further facilitate the border check procedures by using modern technologies.
New Article 8a Use of automated border control systems for EU/EEA/CH citizens and for third country nationals who hold a residence card
Paragraph (1) sets the personal scope of this article (i.e. Union citizens, nationals of third-countries who enjoy rights of free movement equivalent to those of a Union citizen and third country nationals in possession of a residence card and who are members of the family of a Union citizen or of third countries enjoying rights of free movement equivalent to those of Union citizens).
Paragraph i lists the cumulative conditions that must be met in order to use automated border control systems. In particular, the person concerned must be in possession of an electronic travel document whose chip data shall be authenticated. In addition, the facial image stored in the chip shall be accessed in order to verify the identity of the holder by comparing the facial image recorded in the chip and the live facial image of the holder of the travel document. For third countries enjoying the right of free movement under Union law who hold a residence card, the residence card hold must be an electronic card (valid and not expired) whose chip data shall be authenticated. In addition, the facial image stored in the chip shall be accessed so as to verify the identity of the holder of the residence card, by comparing the facial image recorded in the chip and his/her live facial image.
Paragraph (3) stipulates that the checks on entry and exit shall be carried out pursuant to Article 8 i. However, it is expressly foreseen that, when carried out through an automated border control system, the border checks on entry and exit shall systematically include the verification that the persons crossing do not represent a genuine, present and sufficiently serious threat to the internal security, public policy, international relations of the Member States or a threat to the public health, including by consulting the relevant Union and national databases, in particular the Schengen Information System 7 .
On entry and exit, the results of the automated border checks shall be made available to a border guard who shall take into account those results and authorise the entry or exit or, otherwise, refer the person to a border guard (paragraph 4).
Paragraph (5) lists the conditions under which a person shall be referred to a border guard However, Paragraph (6) foresees that a border guard supervising the border crossing of a person using an automated border control system may decide to refer that person to a border guard based on other reasons.
Paragraph (7) contains the obligation to ensure a supervision of the use made of the system so as to detect inappropriate, fraudulent or abnormal use of the system.
New Article 8b Use of automated border control systems for third countries nationals who hold a residence permit
Paragraph (1) lists the cumulative conditions that must be met by third country nationals who hold a residence permit in order to use the automated border control systems. In particular, the person concerned must be in possession of an electronic travel document whose chip data shall be authenticated. In addition, the facial image stored in the chip shall be accessed in order to verify the identity of the holder by comparing the facial image recorded in the chip and the live facial image of the holder of the travel document. For third countries that hold a residence permit, the chip of the residence permit shall be also accessed to verify the authenticity of its data and the identity of the residence permit holder.
Paragraph i details the border checks that shall be performed on entry and exit.
On entry and exit, the results of the border checks shall be made available to a border guard who shall take into account those results and authorise the entry or exit or, otherwise, refer the person to a border guard (paragraph 3).
The conditions for a person to be referred to a border guard are listed in Paragraph i. However, Paragraph (5) foresees that a border guard supervising the border crossing of a person using the automated border control system may decide to refer that person to a border guard based on other reasons.
Paragraph (6) contains the obligation to ensure a supervision of the use made of the system as to detect inappropriate, fraudulent or abnormal use of the system.
The possibility for persons whose border crossing is subject to a registration in the EES to use self-service systems for the purpose of pre-enrolling their individual file data in the EES are added in a new Article 8c.
Paragraph 1 lists the cumulative conditions that must be met by persons whose crossing is subject to a registration in the EES to use self-service systems for the purpose of pre-enrolling their individual file data in the EES. In particular, the person concerned must be in possession of an electronic travel document whose chip data shall be authenticated. In addition, the facial image stored in the travel document shall be accessed in order to verify the identity of the holder by comparing the facial image recorded in the chip and the live facial image of the holder of the travel document.
Paragraphs 2 to 4 describe the operations to be performed by the self-service systems.
Paragraph 5 refers to the case where it is verified, through the self-service system, that the person is not registered into the EES. In that case, the required data are collected and pre-enrolled in the EES through the self-service system. The person shall always be referred to a border guard who shall verify that the travel document used in the self-service system corresponds to the one held and that the biometric identifiers registered in the EES correspond to the live biometric identifiers of the person concerned.
Paragraph 6 and 7 refer to the case where it is verified, through the self-service system, that the person is already registered into the EES but that his/her individual file needs to be updated.
Paragraph 8 contains the obligation to ensure a supervision of the use made of the system so as to detect inappropriate, fraudulent or abnormal use of the system.
New Article 8d Use of self-service systems and/or e-gates for the border crossing of nationals of third countries whose border crossing is subject to a registration in the EES
The possibility for persons whose crossing is subject to a registration in the EES to use a self-service system to have their border checks performed is added in a new Article 8d. In addition, the possibility to use e-gates to perform the border crossing is also foreseen. With this two-step approach, Member States could decide to establish a fully automated border crossing for this category of travellers (if the use of the self-service system is followed by the possibility to use an e-gate) or a semi-automated border crossing (if the use of e an e-gate is never envisaged and the person has always to be authorised to perform his/ her border crossing by a border guard). However, third country nationals not yet registered into the EES shall always be referred to a border guard (even if they use self-service systems for their pre-enrolling) to have their registration into the EES completed. As a result, for these travellers, only a semi-automatic border crossing can be foreseen.
Paragraph 1 lists the cumulative conditions that must be met by persons whose crossing is subject to a registration in the EES to use a self-service system to have their border checks performed. In particular, the person concerned must be in possession of an electronic travel document whose chip data shall be authenticated. In addition, the facial image stored in the chip shall be accessed in order to verify the identity of the holder by comparing the facial image recorded in the chip and the live facial image of the holder of the travel document. Lastly, the person shall be already registered or pre-enrolled in the EES.
Paragraph 2 details the border checks that shall be performed on entry and exit.
On entry and exit, the results of the border checks shall be made available to a border guard who shall take into account those results and authorise the entry or exit or, otherwise, refer the person to a border guard (Paragraph 3).
Paragraph i lists the conditions under which a person shall be referred to a border guard. However, Paragraph (5) foresees that a border guard supervising the border crossing of a person using the automated border control system may decide to refer that person to a border guard based on other reasons.
Paragraph (6) foresees that Member States can decide to install these e-gates and that persons whose border crossing is subject to a registration in the EES may be authorized to use e-gates. Paragraph 6 specifies therefore the link that should be established between the e-gates and the EES. In addition, where a Member State decides to install e-gates, it has the possibility to aggregate these e-gates to the self-service systems or not to aggregate them. If the e-gates are not aggregated to the self-service systems, this means that the verification process and the crossing of the actual border take place at separate locations. Consequently, for the cases where these two components are not aggregated, paragraph 6 foresees the obligation to establish a system in the e-gate so as to verify that the person using the e-gate corresponds to the person who used the self-service systems. In order to carry out such verification, at least one biometric identifier shall be used.
Paragraph (7) refers to the situation where the person does not hold an electronic travel document or when the authenticity of the travel document of the identity of its holder cannot be verified. In this case, where the border guard can retrieve the results of the border checks that were carried out through the self-service system, the border guard may perform only those verifications that could not be carried out through the self-service system. In any case, the border guard shall verify that the travel document used at the self-service system corresponds to the one hold by the person in front of the border guard.
Paragraph (8) contains the obligation to ensure a supervision of the use made of self-service and e-gates as to detect inappropriate, fraudulent or abnormal use of the system.
Article 8e foresees the possibility for each Member State to establish a national voluntary programme to allow third country nationals to benefit from the following two facilitations when crossing at entry the border of such Member State:
– verification of point of departure and destination, the purpose of the stay including supporting documents (Article 8(3)(a)(iv));
– and verification of the possession of sufficient means of subsistence (Article 8(3)(a)(v)).
Paragraph i contains the obligation to ensure a pre-vetting of the third country nationals applying to the programme. It details the minimum conditions that shall be met by any third country national to be granted access to a national facilitation programme.
Paragraph i foresees the possibility for two or more Member States having established their own national programme to conclude agreements among them so that the beneficiaries of their national programmes can benefit from the facilitations recognized by the other national programmes.
The existing text is adapted to the establishment of the EES. The obligation to always enter the data of the traveller into the EES while entering or exiting the Schengen area is highlighted. Even in situations of relaxation of border check procedures the registration in the EES shall be carried out.
The new Paragraph 3a foresees the fall-back solutions in case of technical impossibility to enter data in the Central System of the EES or in case of failure of the Central System of the EES, which includes the storage of data in the National Uniform Interface, where possible, or otherwise the local storage of data. Where possible, the consultation of the Visa Information System for the verification of the identity of visa holders shall be ensured.
A new Paragraph 3a is added to take account of the introduction of ABC systems, self-service systems and e-gates. In order to have a harmonised approach, Member States shall use in those situations the signs contained in Annex III Part D.
The new Article 11 reflects the fact that the EES targets the abolition of stamping on entry and exit of the travel documents of third country nationals admitted for a short stay as it replaces it by the electronic recording of the entry and exit. Consequently, the obligation to systematically stamp on entry and exit the travel documents of third country nationals admitted for a short stay is deleted.
However, where expressly provided under national legislation, the new Article 11 foresees the possibility, for each Member State to stamp on entry and exit the travel document of those third country nationals holding a residence permit issued by that same Member State. The practical arrangements of that stamp are set in Annex IV.
The existing text is adapted to the establishment of the EES. Today Article 12 regulates the procedures for rebuttal of the presumption of irregular stay in case of absence of entry or exit stamps. With the EES, the stamping will be replaced by an electronic record in the EES.
– Paragraph 1 refers to a transitional period of six months after the EES has started operations. During this transitional period, border guards will have to take into account the stamps affixed into the travel documents as well as the data recorded into the EES. Such course of action will enable border guards to verify if the length of the maximum authorised stay is respected and, for third country nationals holding a single or double entry visa, to verify if the number of the maximum authorised entries is respected. Indeed, persons may have stayed in the territory of the Member States within the 180 days preceding the entry into operations of the EES. In such a case, their travel document should have been stamped accordingly. These stamps need therefore to be taken into consideration for the abovementioned verifications.
– Paragraph 2 refers to the case where a person has entered the territory of the Member States prior to the start of operations of the EES and has not yet exited it before the entry into operations of the system. In that case, when the person exits, the individual file of the person will be recorded into the EES and the date of that last entry will be entered in the entry/exit record so as to have a 'completed' entry / exit record.
In Paragraph 2, a new subparagraph foresees that data on third country nationals whose entry for a short stay [or for a stay on the basis of a touring visa] has been refused shall be registered in the EES.
In paragraph 3, the correction of the data inserted into the EES is expressly foreseen where an appeal concludes that a decision to refuse entry was ill-founded.
The signs contained in annex III are completed by adding new signs for the use of ABC lanes.
The existing text is adapted to the establishment of the EES. With the new system, Annex IV should only concern: 1) the stamps to be affixed by all Member States in cases of refusals of entry, 2) when expressly provided under national legislation, the stamps that a Member State could affix on entry and exit on the travel document of those third country nationals holding a residence permit issued by that same Member State.
The existing text is adapted to the establishment of the EES:
• Paragraph 1(b) is modified and now concerns those categories of persons whose data on refusal shall be registered into the EES. The obligation to affix an entry stamp on the passport by the border guard is maintained.
• Paragraph 1(d) is modified and now concerns those categories of persons whose data on refusal shall not be registered into the EES and that require an entry stamp on the passport as well as a record of the refusal of entry in a national register.
This information will be recorded in the EES.