Explanatory Memorandum to COM(2013)97 - Registered Traveller Programme - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2013)97 - Registered Traveller Programme. |
|---|---|
| source | COM(2013)97  |
| date | 28-02-2013 |
· Grounds for and objectives of the proposal
The potential offered by new technologies in the area of Integrated Border Management (IBM) has been under active consideration at EU level since 2008 when the Commission published its Communication 'Preparing the next steps in border management in the European Union' i. In its Communication the Commission suggested the establishment of a Registered Traveller Programme (RTP) for pre-vetted, frequent third country travellers in order to allow for facilitated border crossings.
The RTP was endorsed in the 'Stockholm Programme' agreed by the European Council in December 2009.
The European Council in June 2011 called for "pushing forward rapidly with work on smart borders". As the first response to this call, the Commission published a Communication on 25 of October 2011, on the implementation options for an Entry Exit System and the RTP.
This proposal is presented together with a proposal to establish an Entry Exit System 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; SBC) for the purpose of the functioning of the two new systems. Impact assessments are presented for each system.
This proposal does not affect Customs controls i.e. control of goods.
· General context
For the purpose of laying down the conditions, criteria and detailed rules governing checks at external border crossing points and surveillance at the external border, the SBC was adopted on 15 March 2006. In accordance with Article 7, all persons shall be subject to checks at the external borders.
Thorough checks are normally carried out on third-country nationals, and minimum checks on EU citizens and persons enjoying the right of free movement.[5] However, current rules for third-country nationals could be described as 'one-size-fits-all' as the same checks apply regardless of any differences in risk between different travellers or their frequency of travel. This is because current legislation does not allow for exceptions to the principle of thorough border checks except for those categories of third-country nationals that are specifically mentioned in the SBC or in the Local Border Traffic Regulation such as Heads of States, cross-border workers and border residents.
Only a very small minority of persons crossing the external border are able to benefit from the above-mentioned exceptions: approximately two million equivalent to 0,2 % of total passenger flows. This number can be expected to remain largely constant, with a marginal increase due to an increased take up of local border traffic regimes. By the end of 2010, 110 000 local border traffic permits were issued by Member States.
In order to fulfil the requirements of the SBC, a border guard shall establish that the third-country national fulfils all EU entry requirements on each entry (purpose of stay in the EU, whether he or she possesses sufficient means of subsistence and intention to return the country of origin). This is done by interviewing a traveller and checking necessary documents such as booking confirmation for an accomodation and for a return flight/ferry/train. The border guard shall also monitor the authorised stay in the Schengen area which is currently done by calculating stamps in the travel document.
Taking into account the foreseen increase in passenger flows at the external borders, an alternative border check procedure should be offered for frequent third-country travellers moving gradually away from a 'country-centric' approach towards a 'person-centric' approach.
In practice the RTP would work at the border the following way: A registered traveller would be issued a token in the form of a machine-readable card containing only a unique identifier (i.e. application number), which is swiped on arrival and departure at the border using an automated gate. The gate would read the token and the travel document (and visa sticker number, if applicable) and the fingerprints of the travellers, which would be compared to the ones stored in the Central Repository and other databases, including the Visa Information system (VIS) for visa holders. If all checks are successful, the traveller is able to pass through the automated gate. In case of any issue, the traveller would be assisted by a border guard.
Facilitation of border crossings would take place also during the manual border checks as border guards would not need to ask the 'additional' questions from the registered traveller such as the destination of travel and existence of sufficient means of subsistence.
The establishment of an Entry/Exit System (EES) with or without biometrics which would record entries and exits of third-country nationals for short stays at the external borders would be the precondition for allowing full automation of the border checks for registered travellers as described above. The EES would allow the elimination of the obligation to stamp the travel document foreseen under the Schengen Borders Code as the manual stamping would be replaced by automatic recording and calculation of stay. Once the stamping obligation has disappeared, consultation of the EES would become mandatory at the external border to ensure that the third-country national has not exceeded his/her legal entitlement of stay in the Schengen area. This consultation could be done automatically using the Machine Readable Zone of the travel document or fingerprints.
The RTP together with the EES will improve management and control of travel flows at the border substantially by reinforcing checks while speeding up border crossings for frequent, pre-vetted non EU travellers.
The legislative financial statement annexed to this proposal is based on the study on the costs of an EES and an RTP carried out by an external contractor.
Based on the considerations above, the objective of the present proposal for a Regulation of the European Parliament and the Council is:
– to establish the procedures and conditions for access to the RTP,
– to define the purpose, the functionalities and responsibilities for a token[7]-Central Repository as a system for the storage of data on registered travellers and
– to confer on the Agency for the operational management of large-scale information systems in the area of freedom, security and justice[8] (the Agency), the development and operational management of the Central Repository and the definition of technical specifications for a token.
This Regulation shall constitute the core instrument for the legal framework for the RTP. In order to complement this legal framework, an amendment of the SBC is also necessary as regards facilitated border crossings for third-country nationals, and is presented in parallel with this proposal. Furthermore, a proposal for an Entry/Exit System which records the entries and exists of third-country nationals is presesented simultaneously.
· Existing provisions in the area of the proposal
Regulation of the European Parliament and of the Council (EC) No 562/2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code).
Regulation of the European Parliament and of the Council (EC) No 1931/2006 laying down rules on local border traffic at the external land borders of the Member States and amending the provisions of the Schengen Convention.
Regulation of the European Parliament and of the Council (EC) No 767/2008 concerning the Visa Information System (VIS) and the exchange of data between Member States on short-stay visas (VIS Regulation).
Regulation of the European Parliament and of the Council (EC) No 810/2009 establishing a Community Code on Visas.
Regulation of the European Parliament and of the Council (EU) No 1077/2011 establishing a European Agency for the operational management of large-scale IT systems in the area of freedom, security and justice.
· Consultation of interested parties
The consultation of interested parties is described in the accompanying impact assessment.
· Impact assessment
The first impact assessment[9] was carried out in 2008 when preparing the Commission Communication on this subject and the second one was finalised in 2013[10]. The former analysed the policy options and their most likely impacts and concluded that an RTP for third-country nationals should be established.
Following a consultation and pre-screening process the latter impact assessment analysed key implementation options.
After the analysis of the options and their sub-options, a fee based RTP for pre-vetted and pre-screened frequent third-country travellers with the data (biometrics, alphanumeric data and unique identifier number) stored in a Central Repository and the unique identifier (application number) stored in a token was found to be the most feasible option to guarantee smooth passenger flows at the external borders without decreasing the level of security at the EU. This option minimises the use of personal data in an EU IT-system as no personal data is retrieved by the border guards at the first line control and it avoids the main security drawbacks of the pure token-based system. The application of the same data protection provisions as for the VIS and the status quo including the retention of information for a maximum of five years would be necessary to ensure adequate data protection provisions for the preferred option. The personal data stored in the central repository (biometrics and alphanumeric data from applications) should be kept for no longer than is necessary for the purposes of the RTP. It is appropriate to keep the data for a maximum period of five years, in order to enable data on previous applications to be taken into account for the assessment of the subsequent RTP applications, renewal of the access to the RTP and also taking into account the re-use of fingerprints stored in the repository (59 months). Furthermore, a five year retention period would allow granting access to the RTP for five years without a new application. An initial access to the RTP should be granted for one year. Access may be extended for two years, followed by a further two years without a new application. A new application would need to be submitted to renew the access once the period of five years validity has expired.This would be in line with the issuance of a multiple-entry visa for travellers (maximum period five years) whose data is kept in the VIS for five years.
Four fingerprints should be stored in the central repository to ensure accurate verification of a registered traveller at the external border crossing point. The storage of fingerprints data for four fingers guarantees that sufficient data is available in every circumstances, while keeping the amount of data to a reasonable level. Storing only one or two fingerprints may cause problems for the travellers and for border authorities at the external borders as fingerprints may be smudged, distorted or fragmented. This is especially relevant with the RTP as the access can be granted for five years and the same fingerprints may be re-used (59 months) if a new application is lodged by the registered traveller.
The data stored in the Central Repository would be available for border guards only when assessing an application, revoking/extending access to the RTP, a token is lost or stolen or any problems occur with facilitating registered travellers' border crossings. During the border check a border guard would receive only hit/no hit information from the Central Repository. Therefore, the preferred option provides for a proportionate balance between security, facilitation and data protection.
In order to guarantee easy access to the RTP, third-country nationals should be able to lodge an application for the RTP at the consulate of any Member State or at any external border crossing point. This would guarantee a larger number of participants in the programme, thus helping Member States to manage their passenger flows at the external border crossing points. Applications should be examined on the basis of the same criteria as for issuing multiple-entry visa. However, examination of applications lodged by family members of citizens of the Union shall be done by using the same criteria as used when examining their entry visa applications. Member States may decide whether to use and install Automated Border Control systems at their external border crossing points. It is clear that the total impact of combining the same vetting criteria as for multiple-entry visas with fully automated border control has the highest impact on facilitating registered travellers' border crossings. Furthermore, it maintains a high level of security while respecting fundamental rights. It is also the least expensive approach taking into account the costs associated with stricter vetting procedure and semi-automated border control. Full automation would be a cost-effective tool especially at the busiest border crossing points where capacity problem and queues exist already nowadays. However, each Member State would have to assess for each individual border crossing point, whether Automated Border Control system would bring added value to the throughput capacity of the border crossing point and thus decrease travellers’ border crossing time, release human resources and give a tool for a Member State to manage its increasing passenger flows. Whether or not Automated Border Control facilities are used, the facilitation of border crossing should apply at all external border crossing points for third-country nationals granted access to the RTP. In order to ensure reliable verification of applicants, it will be necessary to process biometric data (fingerprints) in the Central Repository and to verify biometrics at the external border crossing points.[11]
The Impact Assessment Board (IAB) reviewed the draft impact assessment and delivered its opinion on 14 March 2012. The recommendations for improvement were accommodated in the final version of the report. In particular, the following changes were made: baseline scenario was sharpened and clarified; problem definition was widened including lessons learnt from the development of other large scale IT-systems and lessons learnt from Automated Border Control systems and national RTPs implemented in Member States and non-EU states; links to the Annexes and to the 2008 impact assessment were improved; stakeholders views were reported as widely as possible taking into account that views expressed by the stakeholders were quite general; the explanation of method used for calculating the costs was expanded and the expected costs and benefits for different stakeholders were more rigorously reported; re-affectation of border guards taking into account the expected increase in travel flows was clarified; and finally a clear overview on the European Data Protection Supervisor's views was added.
Contents
· Summary of the proposed actions
The purpose and functionalities of the RTP including a token-Central Repository and the responsibilities for these must be defined. Furthermore, a mandate needs to be given to the Agency for the operational management of large-scale IT systems in the area of freedom, security and justice to develop, establish and operationally manage the Central Repository and to define technical specifications for a token on the basis of prior definition of business requirements. The procedures and conditions for examining an RTP application and the storage of data on registered travellers shall be established. A detailed explanation of the proposal by article can be found in a separate Commission Staff Working paper.
· Legal basis
Articles 74, 77(2)(b) and 77(2)(d) of the Treaty on the Functioning of the European Union are the legal basis for this Regulation. Article 77(2)(b) and (d) provides the appropriate legal basis for further specifying the measures on the crossing of the external borders of the Member States and develop standards and procedures to be followed by Member States in carrying out checks on persons at such borders. Article 74 provides the appropriate legal basis for setting-up and maintaining the RTP and for procedures for the exchange of information between Member States, ensuring cooperation between the relevant authorities of the Member States’ as well as between those authorities and the Commission in the areas covered by Title V of the Treaty.
· Subsidiarity principle
Under Articles 74, 77(2)(b) and 77(2)(d) of the Treaty on the Functioning of the European Union, the Union has the power to adopt measures relating to the checks on persons and efficient monitoring of the crossing of external borders of the Member States. The current EU provisions on the crossing of the external borders of the Member States need to be modified to take into account the increasing passenger flows and possibilities offered by the new technology. A common regime is needed in order to establish harmonised rules on facilitated border crossings for registered travellers so that the facilitation applies at all Schengen border crossing points without separate vetting and without decreasing security.
Therefore, the objective of the proposal cannot be sufficiently achieved by the Member States.
· Proportionality principle
Article 5 of the Treaty on the European Union states that action by the Union shall not go beyond what is necessary to achieve the objectives of the Treaty. The form chosen for this EU action must enable the proposal to achieve its objective and be implemented as effectively as possible. The proposed initiative constitutes a further development of the Schengen acquis in order to ensure that common rules at external borders are applied in the same way in all the Member States. The proposal therefore complies with the proportionality principle.
· Choice of instrument
Proposed instruments: regulation.
Other means would not be adequate for the following reason(s):
The present proposal will lay down rules on border checks at the external borders which are uniform for all Member States. As a consequence, only a Regulation can be chosen as a legal instrument.
· Fundamental rights
The proposed regulation may have an impact on fundamental rights, notably on the protection of personal data (Article 8 of the Charter of Fundamental Rights of the EU) and right to an effective remedy (Article 47 of the Charter).
The proposal contains safeguards, in particular under Articles 15 and 16 in cases the access granted to the RTP is refused or revoked, which provide for the right to an effective remedy, and under Articles 48 and 49 concerning the right of information, access, correction and deletion concerning the data used for the purpose of the Regulation which also include the right to an effective remedy as provided for under Article 51.
The Commission's proposal for the next multi-annual financial framework (MFF) includes a proposal of 4,6 billion EUR for the Internal Security Fund (ISF) for the period 2014-2020. In the proposal, 1,1 billion EUR is set aside as an indicative amount for the development of an EES and an RTP assuming development costs would only start from 2015.[12]
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. Providing financial support for national development costs would ensure that difficult economic circumstances at national level do not jeopardise or delay the projects. This includes an amount of 145 million EUR for costs at national level related to hosting the IT systems, the space for hosting the end-user equipment, and the space for operators' offices. It also includes an amount of 341 million EUR for costs at national level related to maintenance such as for hardware and software licenses.
Once the new systems would be operational, future operational costs in the Member States could be supported by their national programmes. It is proposed that Member States may use 50% of the allocations under the national programmes to support operating costs of IT systems used for the management of migration flows across the external borders of the Union. These costs may include the cost for the management of VIS, SIS and new systems set up in the period, staff costs, service costs, rental of secure premises etc. Thus, the future instrument would ensure continuity of funding, where appropriate.
The costs on automation would greatly vary depending on the number of automated gates that would be implemented.
· Participation
This proposal builds upon the Schengen acquis in that it concerns the crossing of external borders. Therefore the following consequences in relation to the various Protocols and Agreements with associated countries have to be considered:
Denmark:
In accordance with Articles 1 and 2 of the Protocol (no 22) on the position of Denmark, annexed to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), Denmark does not take part in the adoption by the Council of measures pursuant to Title V of part Three of the TFEU.
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.
United Kingdom and Ireland:
In accordance with Articles 4 and 5 of the Protocol integrating the Schengen acquis into the framework of the European Union and Council Decision 2000/365/EC of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland, and Council Decision 2002/192/EC of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis, the United Kingdom and Ireland do not take part in the adoption of the Registered Traveller Programme Regulation and are not bound by them or subject to its application.
Iceland and Norway:
The procedures laid down in the Association Agreement concluded by the Council and the Republic of Iceland and the Kingdom of Norway concerning the latter's association with the implementation, application and development of the Schengen acquis are applicable, since the present proposal builds on the Schengen acquis as defined in Annex A of this Agreement[13].
Switzerland:
This Regulation constitutes a development of the provisions of the Schengen acquis, as provided for by the Agreement between the European Union, the European Community and the Swiss Confederation on the latter's association with the implementation, application and development of the Schengen acquis[14].
Liechtenstein:
This Regulation constitutes a development of the provisions of the Schengen acquis, as provided for by 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[15].
Cyprus:
This Regulation constitutes an act building on the Schengen acquis or otherwise related to it, as provided for by Article 3 of the 2003 Act of Accession.
Bulgaria and Romania:
This Regulation constitutes an act building on the Schengen acquis or otherwise related to it, as provided for by Article 4 of the 2005 Act of Accession.