Legal provisions of COM(2013)96 - Amending Regulation (EC) No 562/2006 as regards the use of the Entry/Exit System (EES) and the Registered Traveller Programme (RTP)

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dossier COM(2013)96 - Amending Regulation (EC) No 562/2006 as regards the use of the Entry/Exit System (EES) and the Registered Traveller Programme ...
document COM(2013)96 EN
date February 28, 2013

Contents

Article 1

Regulation (EC) No 562/2006 is amended as follows:

(1) in Article 2, the following points are added:

"20. Entry/Exit System (EES) means the system established in accordance with[Regulation N° XXX of the European Parliament and of the Council establishing the 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];

21. Registered Traveller Programme (RTP) means a programme as defined in Article 3 of [Regulation N° XXX of the European Parliament and the Council establishing a Registered Traveller Programme];

22. Registered Traveller means a third-country national as defined in Article 3 of Regulation XXX….[Regulation of the European Parliament and the Council establishing a Registered Traveller Programme];

23. Automated Border Control (ABC) means a fully automated system which authenticates the travel document, establishes that the traveller is the rightful holder of the document, queries border control records and on this basis automatically verifies the conditions governing entry laid down in Article 5(1)."

(2) The following Article 5a is inserted:

"Article 5 - a Data to be entered into the EES

1. Data on entry and exit of third-country nationals admitted for a short stay pursuant to Article 5(1) shall be entered into the EES in accordance with Articles 11 and 12 of [Regulation N° XXX of the European Parliament and of the Council establishing the 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].

2. By way of derogation from paragraph 1 data on the following categories of persons shall not be entered into the EES:

(a)     Heads of State and members of their delegation benefitting from the facilitation of border checks in accordance with Annex VII point 1;

(b)     pilots of aircraft and other crew members benefitting from the facilitation of border checks in accordance with Annex VII point 2;

(c)     seamen benefitting from the facilitation of border checks in accordance with Annex VII point 3;

(d)     crew members and passengers of cruise ships who are not subject to border checks in accordance with of Annex VI;

(e)      persons on board a pleasure boat who are not subject to border checks in accordance with Annex VI;

(f)      persons who are exempt from the obligation to cross external borders only at border crossing points and during the fixed opening hours pursuant to Article 4 (2).

3. Data concerning the entry and exit of holders of local border traffic permits in accordance with Regulation (EC) No 1931/2006 of the European Parliament and of the Council may be entered into the EES taking into account the facilitations provided for border crossings as referred to in Article 15 of that Regulation."

(3) Article 7 is amended as follows:

(a)          in paragraph 2, first subparagraph, the following sentence is added:

" If the passport or travel document contains an electronic storage medium (chip) the authenticity of the chip data shall be approved using the complete valid certificate chain, unless this is impossible, due to the non-availability of valid certificates or for other technical reasons." ;

(b)          paragraph 3 is amended as follows:

(i)       point (a)(iii) is replaced by the following:

"(iii) verification that the third country national has not already exceeded the maximum duration of authorised stay in the territory of the Member States, by consulting the EES in accordance with Article 15 of [Regulation N° XXX of the European Parliament and of the Council establishing the 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];"

(ii)      the following point (aaa) is inserted after point (aa):

"(aaa) The thorough checks on entry shall also comprise verification of the identity of the Registered Traveller and access granted to the RTP, in accordance with Article 32 of [Regulation N° XXX of the European Parliament and the Council establishing a Registered Traveller Programme], if applicable.";

(iii)     In point (b), the following points (iv) and (v) are added:

"(iv) verification that the third country national did not exceed the maximum duration of authorised stay in the territory of the Member States, by consulting the EES in accordance with Article 15 of [Regulation N° XXX of the European Parliament and of the Council establishing the 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.

(v) verification of the identity of the RT and access granted to the RTP, shall be carried out in accordance with Article 32 of [Regulation N° XXX of the European Parliament and the Council establishing a Registered Traveller Programme], if applicable.";

(iv)     in point (c), point (ii) is deleted;

(c)        The following paragraph 8 is added:

"8. Upon request, the border guard shall inform the third country national of the maximum number of days of authorised stay, having regard to the results of the consultation of the EES and the length of the stay authorised by the visa, as applicable. The third country national may also request a written record containing the date and place of entry or exit.";

(4) the following Article 7a is inserted:

"Article 7 - a Border checks on Registered Travellers and use of automated means for border checks

1. By way of derogation from Article 7(3)(a) checks on Registered Travellers shall not include examination of the aspects referred to in Article 7(3)(a) (ii), (iv) and (v) of that paragraph. Checks on Registered Travellers may be carried out through automated border control means, under the supervision of a border guard.

Should the check carried out through automated border control means reveal that the third country national is not a Registered Traveller or that one or several entry conditions are not met the third country national shall be referred to a check according to Article 7(3)(a).

2. For third country nationals whose fingerprints are stored in the VIS or on a travel document from which fingerprints may be technically and legally accessed by the border guard, thorough checks on entry may be carried out through automated border control means in combination with self-service kiosks to examine the aspects referred to in Article 7(3)(a) points (ii), (iv) and (v) . The process shall be monitored and followed by an individual decision by the border guard to authorise or refuse entry.

3. By way of derogation from Article 7(3)(b)(ii), thorough checks on exit on Registered Travellers and for persons whose fingerprints are stored in the VIS, or on a travel document from which fingerprints may be technically and legally accessed by the border guard may be carried out through automated border control means under the supervision of a border guard."

(5) in Article 8, paragraph 3 is replaced by the following:

"3.        Even in the event that checks are relaxed, the border guard shall enter the data in the EES both on entry and exit, in accordance with Article 5a. Where the data cannot be entered by electronic means it shall be entered manually.

By way of derogation from Article 5a in case of technical impossibility or failure of the system the entry and exit data may be stored locally and entered into the EES as soon as the impossibility or failure has been remedied."

(6) Article 9 is amended as follows:

(a)          in paragraph 2, point (a) is replaced by the following:

“(a) Persons enjoying the right of free movement under Union law and registered travellers are entitled to use the lanes indicated by the signs in parts A and B of Annex III. If they are holding biometric passports they may also use the lanes indicated by the signs in Part D of Annex III”;

(b)          the following paragraph 6 is added:

"6. Where Member States decide to use automated border control means they shall use the signs provided for in part D of Annex III to identify the respective lanes."

(7) Article 10 is deleted.

(8) Article 11 is replaced by the following:

"Article 11 - Presumptions as regards fulfilment of conditions of duration of stay

1. If a third-country national present on the territory of a Member State does not have an entry record in the EES, or the entry record of the third-country national does not contain an exit date following the date of expiry of the authorised length of stay, the competent national authorities may presume that the third country-national does not fulfil, or no longer fulfils, the conditions relating to duration of stay on the territory of the Member States.

2. The presumption referred to in paragraph 1 may be rebutted where the third-country national provides, by any means, credible evidence, such as transport tickets or proof of his or her presence outside the territory of the Member State, that he or she has respected the conditions relating to the duration of a short stay.

The presumption may also be rebutted where the third-country national provides, by any means, credible evidence, that he or she enjoys the right of free movement under Union law.

In such cases the competent authorities shall create an EES file for that person, if necessary, and create an entry record, update the latest entry record by entering the following data in addition to the data referred to in Articles 11 and 12 of [Regulation N° XXX of the European Parliament and of the Council establishing the 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] or delete an existing file:

(a)        the date on which, and the border crossing point where, the third-country national crossed the external border of one of the Member States for entry or exit;

(b)        the authority that entered the data;

(c)        the date of entering the data;

(d)        the new expiry date of the authorisation to stay.

3. Should the presumption referred to in paragraph 1 not be rebutted, the third-country national may be expelled by the competent authorities from the territory of the Member States concerned.

A third-country national who claims to enjoy the right of free movement under Union law but fails to establish that, may only be expelled by the competent border and immigration authorities of the territory of the Member State concerned in accordance with Directive 2004/38/EC.";

(9) in Annex II, point (f) is deleted;

(10) Annex III is amended in accordance with the Annex to this Regulation;

(11) Annex IV is deleted;

(12) Annex VIII is deleted.

Article 2

The Decision of the Schengen Executive Committee of 21 November 1994 (SCH/Com-ex (94) 16 rev.) is repealed.

Article 3

This Regulation shall enter into force on the dates indicated in Article 48 of [Regulation N° XXX of the European Parliament and of the Council establishing the 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] and in Article 64 of [Regulation N° XXX of the European Parliament and the Council establishing a Registered Traveller Programme]. [concrete dates will be inserted when possible]

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