Explanatory Memorandum to 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) - Main contents
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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 ... |
|---|---|
| source | COM(2013)96  |
| date | 28-02-2013 |
This proposal aims to amend 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). The proposed amendments are due to the proposed establishment of an Entry Exit System (EES) and a Registered Travellers Programme (RTP) for which legislative proposals are presented simultaneuously.
The general context is explained in the explanatory memoranda for the legislative proposals on the establishment of an EES and an RTP and in the impact assessments accompanying those proposals.
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) and the Convention implementing the Schengen Agreement of 14 June 1985.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- Grounds for and objectives of the proposal
- General context
- Existing provisions
- Summary
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instrument
- 5. ADDITIONAL INFORMATION
- Succinct overview of the proposed amendments of the Schengen borders code
- New Article 5a Data to be entered into the EES
- Article 7, Border checks on persons
- Article 7a, Border checks on Registered Travellers and use of automated means for border checks
- Article 8 Relaxation of border checks
- Article 9 Separate lanes and information on signs
- Article 11, Presumption as regards fulfilment of conditions for duration of stay
- Annex III Model signs indicating lanes at border crossing points
The consultation with interested parties and impact assessments are described in the explanatory memoranda for the legislative proposals on the establishment of an EES and an RTP and in the impact assessments accompanying those proposals.
The main proposed amendments concern the following issues:
– Additional definitions of EES, RTP, Registered Traveller (RT), Automated Border Control (ABC) (Article 2)
– Entry of data for third-country nationals in the EES and exceptions thereof (Article 5a)
– Authenticity check of the chip in travel documents containing an electronic storage medium (Article 7(2))
– Replacement of the current stamping of the travel documents by the electronic recording and verification of data in the EES (Article 5a, Article 7(3)(a) and Article 7(3)(b)). Introduction of the obligation to check whether a person has been granted access to the RTP (Article 7(3) (aaa))
– Verification of the identity of a RT (Article 7(3)(b)(v))
– Information to the traveller on the remaining period of authorised stay (Article 7(8))
– Exemptions for RT from certain parts of the thorough check in Article 7a
– Obligation of entering data into the EES even in the event border checks are relaxed (Article 8(3))
– Extension of the use of the lanes indicated by the sign in parts A and B of Annex III (EU citizens lanes) (Article 9(2)(a))
– Indications/Pictogram for ABC gates (Article 9(6))
– Deletion of Article 10 (Stamping obligation)
– Presumption of an irregular stay in the absence of the appropriate records (Article 11)
– Change of Annex III
– Deletion of Annex II point (f), Annex IV and Annex VIII
Article 77 (2) 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 (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 of the Schengen Borders Code for the establishment of an EES and a RTP. 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.
The proposed amendment has no implications for the EU budget.
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; Bulgaria, Romania and Cyprus; Iceland and Norway; and Switzerland and Liechtenstein. The situation of each of these states is described in recitals 10-17 of this proposal and explained in further detail in the explanatory memoranda for the legislative proposals on the establishment of an EES and an RTP.
Article 2, Definitions
Additional definitions
Point 20: Definition of the new Entry/Exit System (EES)
Point 21: Definition of the new Registered Traveller Programme (RTP)
Point 22: Definition of Registered Traveller (RT)
Point 23: Definition of "'Automated Border Control' (ABC)
The general obligation for a third country national entering the Schengen area to be registered into the EES is added in a new Article 5a together with the exceptions concerning 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.
In Paragraph (2) the obligation to check the authenticity of the travel documents that contain an electronic storage medium using valid certificates has been added.
In Paragraph (3)(a)(iii) the obligation to check whether the third country national entering the Schengen area has not yet exceeded the maximum duration of authorised stay by checking the stamps in the passport has been replaced by an obligation to consult the EES.
The new Paragraph (3)(aaa) regulates the obligation for border guards to verify whether a third country national traveller has already been registered in the EES.
In Paragraph (3)(b)(iv) concerning the obligation for border guards to verify during the exit check whether a third country national exceeded the maximum duration of stay it is clarified that this check has to be made by consulting the EES.
In Paragraph (3)(b)(v) the verification of identity and participation in the RTP for a registered traveller is described.
The new Paragraph (8) foresees the obligation for borderguards to inform third country nationals on their request about the maximum number of days they are still allowed to stay within the Schengen area as set out in the EES and if applicable in the VIS.
The new Article 7a Paragraph 1 describes the following derogations from thorough checks foreseen in Article 7(3)(a) applicable to a registered traveller at entry of the Schengen area.
- thorough check of the travel document (Article 7(3)(a)(ii))
- verification of point of departure and destination, the purpose of the stay including supporting documents (Article 7(3)(a)(iv))
- verification of the possession of sufficient means of subsintence (Article 7(3)(a)(v))
Finally it provides a procedure for travelers that are identified by the ABC gate as non registered travellers or for registered travellers that do not fullfill all entry conditions. In these cases the normal procedures (carried out by a border guard) foreseen in Article 7(3)(a) shall be applicable.
Paragraph 2 opens the possibility to use ABC means in combination with 'self-service kiosks' by travellers where the fingerprints are stored in the VIS or in the travel document (biometric passport) and where these fingerprints can be accessed by the border guard authorities. The entry conditions determined in Artcle 7(3)(a) shall be fullfilled.
Paragraph 3 foresees the possibility to use ABC means for the exit checks of persons mentioned in Paragraphs 1 and 2. The checks foreseen in Artcle 7(3)(b) and (c) shall remain applicable except the verification of travel documents for signs of falsification or counterfeiting (Article7(3)(b)(ii)).
Paragraphs 2 and 3 are not technical amendements determined by the introduction of the EES and the RTP but additional provisions to further facilitate the border check procedures by using modern technologies. The entry and exit conditions for the travellers concerned as such remain unchanged.
The existing text is adapted to the establishment of the EES and the abolition of the stamping of passports. The obligation to always enter the data of the traveller into the EES while exiting the Schengen area is highlighted. Even in situations of relaxation of border check procedures the registration in the EES shall be carried out.
Paragraph 2(a) clarifies that registered travellers are allowed to use the lanes provided for EU-citizens.
A new paragraph 6 is added to take account of the introduction of ABC means. In order to have a harmonised approach Member States shall use for ABC lanes the signs contained in Annex III Part D shall be used by all MS at all border crossing points.
The existing text is adapted to the establishment of the EES. Today Article 11 regulates the procedures and assumptions in case of absence of entry or exit stamps. With the EES the stamping will be replaced by an entry in the EES.
The signs contained in annex III are completed by adding new signs for the use of ABC means and the introduction of the RTP.