PURPOSE: to establish an Entry/Exit System (EES) to
register entry and exit data of third-country nationals crossing
the external borders of the Member States of the European
Union.
PROPOSED ACT: Regulation of the European Parliament
and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: Parliament decides in
accordance with the ordinary legislative procedure and on an equal
footing with the Council.
BACKGROUND: according to the Schengen Borders
Code, EU citizens and other
persons enjoying the right of free movement under Union law
crossing the external border shall be subject to a minimum check,
both at entry and exit, consisting of the verification of the
travel document in order to establish the identity of the person.
On the other hand, all third country nationals however must be
subject, at entry, to a thorough check, which implies a check of
their purpose of stay, possession of sufficient means of
subsistence, as well as a search in the Schengen Information System
(SIS) and in national databases.
There are no provisions in the Schengen Borders Code
on the recording of travellers' cross border movements. Currently,
stamping the travel document is the sole method to indicate the
dates of entry and exit which can be used by border guards and
immigration authorities to calculate the duration of the stay of a
third-country national in the Schengen area, which shall not exceed
90 days within a period of 180 days. Other measures and tools
available at border crossing points, such as databases (SIS and the
Visa Information System VIS), the consultation of which is
compulsory at entry, but not at exit, are not intended for the
purpose of recording border crossings and do not provide for this
functionality.
There are currently no electronic means to check if,
where and when a third-country national has entered or left the
Schengen area. Reliable data on the
number of irregular immigrants currently staying in the EU does not
exist either (estimates of the number of irregular immigrants
within the EU vary between 1.9 and 3.8 million).
For these reasons, it is appropriate to create an
Entry/Exit System and to define the purpose, the
functionalities and responsibilities for its use.
It should be noted that this proposal has been
presented together with a proposal to establish a Registered Traveller
Programme and a proposal to amend the Community
Code on the rules governing checks at external border crossing
points and surveillance at the external border (Schengen Borders Code) for
the purpose of the functioning of the two new systems.
IMPACT ASSESSMENT: a first impact assessment was carried
out in 2008 when preparing the Commission Communication on
this subject (please refer to the European Parliaments
position on this question 2008/2181(INI)).
A
second was completed in 2012.
It analysed key implementation options. Analysis of the different
options and sub-options showed that the preferred solution for an
EES should be the following:
- the EES will be designed as a centralised system
containing both alphanumeric and biometric data;
- the data retention period would be for ordinary cases
six months and in case of overstay five years;
- the use of biometrics would be subject to a
transitional period of three years to allow for Member States'
adapting processes at the border crossing points;
- after a period of two years, the EES should be
evaluated and, in particular, the possible access to the system for
law enforcement purposes as well as the retention period, also
taking into account the experience of access for such purposes to
the VIS.
LEGAL BASIS: Articles 74 and 77(2)(b) and (d) of the
Treaty on the Functioning of the European Union (TFEU).
CONTENT: the proposal has three main
objectives:
- to create an EES and establish a legal basis for the
development and implementation of the technical system;
- to define the
purpose, the functionalities and responsibilities for use of the
EES; and
- to confer on the
Agency the development and operational management of the central
system.
Scope: the Regulation
shall apply to any third country national admitted for a short stay
in the territory of the Member States. Provisions are also included
to determine persons to whom the Regulation does not apply, in
particular third country nationals who are members of the family of
a Union citizen who holds a residence card, and holders of
residence permits referred to in the Schengen Borders Code, whose
stay is limited to 90 days within a period of 180 days.
Purpose of the system:
(a) improve the management of the external
borders: the EES will facilitate the
improvement of the management of the Unions external borders
by offering a system that will calculate the length of each
travellers authorised stay (the so-called automated
calculator):
- at entry, in the
case of a traveller who visits the Schengen area frequently, it
enables a quick and precise calculation of how many days there are
left out of the maximum of 90 days within 180 days;
- at exit, it
verifies that the traveller has respected the authorised stay, as
well as permitting, within the territory, where checks are carried
out on third-country nationals, the verification of the legality of
their stay.
(b) better control of illegal immigration:
the system will assist in the identification of
any person who may not, or may no longer, fulfil the conditions for
entry to, or stay on the territory of the Member States; this
concerns notably persons who are found during checks within the
territory not in possession of their travel documents or any other
means of identification;
(c) support the analysis of the entries and exits of
third-country nationals: the system
will provide a precise picture of travel flows at the external
borders and the number of overstayers.
The mechanism set in place will provide:
- precise information in a rapid way to border guards
during border checks, by replacing the current slow and unreliable
system of manual stamping of passports; this will allow for both a
better monitoring of the authorised stay as well as more efficient
border checks;
- precise information to travellers on the maximum
length of their authorised stay;
- precise information on who is overstaying their
authorised stay, which will support controls within the
territory and to apprehend irregular migrants.
EESs technical architecture: provisions are made to define the EESs technical
architecture. It will consist of the following main components: (i)
a Central Unit and a Back-up Central Unit; (ii) a National System
comprising the required hardware, software and national
communication infrastructure to connect the end user devices of the
competent authorities with the Network Entry Points in each Member
State; (iii) the Uniform Interfaces in each Member State based on
common technical specifications and identical for all Member
States; (iv) the Network Entry Points, connecting the National
System of each Member State to the Central System; and (v) the
Communication Infrastructure between the Central EES and the
Network Entry Points.
Personal files and fingerprints: the proposal lays down the procedures for the drawing
up of personal files and entry/exit records of those
concerned:
- for visa holders, an
individual file will be created entering the data of third county
nationals (alphanumeric data: name, passport number,
etc.);
- for nationals of third countries exempted from visa
requirements, an individual file will
be created, and ten fingerprints will be entered, in addition to
alphanumeric data.
Children under the age of 12 shall be exempt from the
requirement to give fingerprints for legal reasons, as will persons
for whom fingerprinting is physically impossible.
For a period of three years after the EES has
started operation only the alphanumeric data shall be
recorded.
Data protection: the
proposal includes a number of provisions on data protection, as
well as defining strictly those persons with exclusive access to
the EES having the right to enter, amend, delete and consult
data depending on the objectives pursued. National authorities
should be designated to this end:
- Retention of data: in
principle, each entry/exit record shall be stored for a maximum of
181 days. Each individual file together with the linked
entry/exit record(s) shall be stored in the EES for a maximum of
91 days after the last exit record, if there is no entry
record within 90 days following that last exit record. If there is
no exit record following the date of expiry of the authorised
period of stay, the data shall be stored for a maximum period of
five years following the last day of the authorised stay.
However, where, before expiry of the period in question, a third
country national has acquired the nationality of a Member State,
his details shall be deleted without delay from the
EES.
- Communication of data to third parties:
data stored in the EES shall not be transferred
or made available to a third country, to an international
organisation or any private party, except under certain specified
circumstances.
Provision is also made for data security, control of
the use of data, as well as for sanctions in the event of their
inappropriate use and for procedural guarantees for persons whose
data have been used (including appeal mechanisms, etc.).
Role of the Agency: the
European Agency for the operational management of large-scale
information systems in the area of freedom, security and justice
shall be entrusted with the tasks of development and operational
management of the EES. The Agency shall be responsible for the
development of the Central Unit, the Back-Up Central Unit, the
Uniform Interfaces including the Network Entry Points and the
Communication Infrastructure. Technical provisions lay down the
tasks, mission and responsibilities of the Agency in this context.
Provisions are also included defining the Member States
responsibilities in regard to the EES infrastructure and its
use.
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.
Evaluation: two years
after the start of operations of the EES and every two years
thereafter, the Agency shall submit to the European Parliament, the
Council and the Commission a report on the technical functioning of
EES, including the security thereof. For its part, , the Commission
shall produce an overall evaluation of the EES two years after the
EES is brought into operation and every four years
thereafter.
Territorial measures: given that the proposal constitutes a further
development of the Schengen acquis, it will have direct
consequences for certain Member States and associated countries, in
accordance with the relevant texts of the Treaties, Protocols and
Agreements concluded with third countries:
- Denmark shall decide
within a period of six months after the Council has decided on this
proposal whether it will implement it in its national
law;
- Ireland and the United Kingdom: these Member States are not taking part in the
adoption of this Regulation and are not bound by it or subject to
its application;
- Iceland, Norway, Switzerland and
Liechtenstein shall be associated
with the application of this Regulation;
- Cyprus, Bulgaria and Romania shall apply this Regulation because it replaces the
requirement to check the length of stay of third country
nationals.
BUDGETARY
IMPLICATION: the Commission's proposal for the next multi-annual
financial framework (MFF) includes a proposal of EUR 4.6 billion
for the Internal Security Fund (ISF) for the period 2014-2020. In
the proposal, EUR 1.1 billion is set aside as an indicative
amount for the development of an EES and an RTP assuming
development costs would start from 2015.
This financial support would cover not only the costs
of central components for the entire MFF period (EU level, both
development and operational cost) but also the development costs
for the national, Member States, components of these two systems,
within the resources available.