Explanatory Memorandum to COM(2016)194 - Entry/Exit System (EES) to register entry and exit data of third country nationals and conditions for access to the EES for law enforcement purposes

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dossier COM(2016)194 - Entry/Exit System (EES) to register entry and exit data of third country nationals and conditions for access to the EES for ...
source COM(2016)194 EN
date 06-04-2016


1. CONTEXT OF THE PROPOSAL

• Background

In February 2013, the Commission tabled a package of legislative proposals on Smart Borders to modernise the Schengen area’s external border management. The package consisted 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 entering the Schengen area, (2) 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 1 in order to take into account the existence of the EES and RTP. 2

During the first examination of the package which was completed in February 2014, the co-legislators voiced technical, financial and operational concerns on certain aspects of the design of the systems. However the preferred policy options proposed in 2013 (i.e. centralised systems based on biometrics) were not questioned. The European Parliament (EP) referred the proposal to its Committee on Civil Liberties, Justice and Home Affairs (LIBE). It did not issue a legislative resolution on the proposals.

In order to further assess the technical, organisational and financial impacts of the proposed policy options, the Commission initiated, with the support of both co-legislators, a so-called ‘proof of concept’ exercise consisting of two stages:

A Commission-led Technical Study on Smart Borders (hereinafter The Technical Study) published in October 2014 3 , and

A testing phase led by eu-LISA on the impact of the use of various biometric identifiers on the border control processes (hereinafter The Pilot) for which a report was published in November 2015 4 .

Based on the findings of the Technical Study, the results of The Pilot, the technical discussions with co-legislators and stakeholders as well as a public consultation 5 , the Commission prepared a detailed Impact Assessment which is accompanying this proposal. This Impact Assessment builds on the Impact Assessments 6 accompanying the 2013 proposals, and focuses on elements of the 2013 proposals where modifications are proposed, notably (a) the architecture of the system, (b) biometrics to be used, (c) the use of process facilitators, (d) the retention of data and (e) access by law enforcement authorities.

On the basis of these extensive preparations, the Commission has considered necessary improvements and simplifications to the 2013 proposals. 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).


• Rationale for the establishment of an EU Entry/Exit System

As explained in the Impact Assessment, the establishment of an EU Entry/Exit System is considered necessary to address the following challenges:

Contents

1.

1. Addressing Border check delays and improving quality of border checks for third country nationals


Passenger flows at the external borders of the European Union have been growing and will continue to increase in the future. The total number of regular border crossings in 2025 is forecast to rise to 887 million, of which around one-third are expected to be by third country nationals traveling to Schengen countries for a short term visit. While minimum checks are performed on EU citizens and persons enjoying the right of free movement, third country nationals crossing the Schengen area external borders are subject to ‘thorough checks’ made today manually at borders (both at entry and exit).

The Schengen Borders Code has no provisions on the recording of travellers’ cross border movements into and out of the Schengen area. As a general rule, third country nationals have the right to enter for a short stay of up to 90 days within any 180 day period. Currently the stamping of the travel document indicating the dates of entry and exit is the sole method available to border guards and immigration authorities to calculate the duration of stay of third country nationals and to verify if someone is overstaying. These stamps can be difficult to interpret: they may be unreadable or the result of counterfeiting. Similarly, it is difficult for consulates having to process visa applications to establish the lawfulness of previous visas on the basis of stamps present in the travel document. As a result, the whole procedure is considered error prone and not always systematically implemented.

The introduction of the EES will ensure:

- precise information, rapidly delivered on demand 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;

- information to border guards on refusals of entry of third country nationals and will allow for refusals of entry to be checked electronically in the EES;

- precise information to travellers on the maximum length of their authorised stay;

- possibility for automated border controls for third country nationals under the supervision of the border guards in accordance with the conditions foreseen in Article 8d of the revised proposal to amend the Schengen Borders Code.

2. Ensuring systematic and reliable identification of ‘overstayers’

Irregular immigrants include both persons who crossed the borders irregularly – usually not at an official border crossing point - and the so-called “overstayers”: persons having legally entered the EU at an official border crossing point but who stayed after their entitlement to do so expired. The EES addresses this category of irregular migration. As border crossings by third country nationals are currently not registered, it is not possible to establish lists of overstayers.

The introduction of EES will:

- provide precise information on who is overstaying their authorised stay, which will support controls within the territory and allow to apprehend irregular migrants more efficiently;

- support the identification of irregular migrants; by storing biometrics in the EES on all persons not subject to the visa requirement, and taking into account that the biometrics of visa holders are stored in the VIS, Member States' authorities will be able to identify any undocumented irregular migrant found within the territory that crossed the external border legally; this will in turn facilitate the return process;

- allow for an evidence-based approach through the analysis generated by the system. In the case of visa policy for instance, the EES will provide precise data on whether there is problem with overstayers of a given nationality or not, which would be an important element when deciding whether to impose or lift visa obligations on a third country in question;

2.

3. Reinforcing internal security and the fight against terrorism and serious crime.


Criminal activities such as trafficking in human beings, people smuggling or the smuggling of illicit goods involve numerous border crossings, which are facilitated by the absence of registration of the border crossings of the third country nationals concerned. Likewise, terrorist organisations and radicalised individuals can benefit from the absence of registration of border crossings. Controls of third country nationals at external borders involve identity checks and searches against various databases of known persons or groups posing a threat to public security that should be either apprehended or denied entry to the territory. However, if a third country national destroys his/her official documentation once inside the Schengen area, it can be very difficult for law enforcement authorities to identify that person in case he/she is suspected of a crime or is a victim of crime.

The introduction of EES will:

- support the reliable identification of terrorists, criminals as well as of suspects and victims;

- provide a record of travel histories of third country nationals including crime suspects. It would thus complement the information available in the Schengen Information System.


• Relevant developments since 2013

In preparing this revised proposal, the Commission also took account of relevant developments since 2013, which changed the political, legal and institutional environment compared to 2013, when the original Smart Borders proposals were submitted:

– The Visa Information System became fully operational. Its roll-out to Member States consulates in all relevant third countries was concluded in November 2015. The biometric verification of visa-holders against VIS at Schengen external borders is now compulsory. Law enforcement authorities increasingly use VIS for identification and investigation purposes.

– Visa liberalisation dialogues with countries in the Western Balkans and at the Eastern and South-Eastern borders of the EU were concluded or have been accelerated, which will lead to an increasing proportion of visa-exempt travellers to the EU. It is expected that this trend will continue in the coming years.

– The Internal Security Fund (ISF-B) was adopted, which earmarked € 791 million for the development of Smart Borders, to be used after the adoption of the relevant legal basis.

– The European Agenda on Migration 7 identified 'border management' as one of the 'four pillars to manage migration better'. Securing external borders and managing them more efficiently implies making better use of the opportunities offered by IT systems and technologies. Furthermore, at the Justice and Home Affairs and European Councils in December 2015, Member States emphasised the need to improve the controls at external borders through the use of new technologies.

– Rapid developments in the area of biometric technology opened up new possibilities for lighter and faster enrolment and verification of travellers, not only for fingerprints, but also for facial images.

– The Court judgment on the Data Retention Directive provided legal clarity on the conditions and safeguards that need to be respected for the storage and use of EES data.

– The December 2015 political agreement of the co-legislators on the reform of EU data protection rules will put in place a modern data protection framework across the EU. The General Data Protection Regulation and the Data Protection Directive will be formally adopted by the European Parliament and Council in the course of 2016.


• Main elements of the revised smart borders package

The scope of the new Entry Exit System includes border crossings by all third country nationals visiting the Schengen area for a short stay (maximum 90 days period in any period of 180 days), both visa-required and visa-exempt travellers,or eventually, on the basis of a touring visa 8 (up to one year).

Family members of EU citizens enjoying the right of free movement or of third country nationals who enjoy the same rights of free movement equivalent to those of Union citizens and who do not yet have a residence card should be registered in the EES but are not subject to the short stay rule, and checks on this category shall be carried out in accordance with Directive 2004/38/EC 9 . Such family members in possession of a residence card referred to in Directive 2004/38/EC are excluded from the EES.

The system will collect data and register entry and exit records with the view to both facilitating the border crossing of bona fide travellers, and better identifying overstayers. The EES will also record refusals of entry of third country nationals falling within its scope.

The main differences between this modified proposal and the 2013 proposals are:

- The architecture of the system: only one system is proposed, the Entry Exit System. The connection of the national border infrastructures to the EES central system will be done through a National Uniform Interface which will be identical for all Member States, and will allow the use of the existing national Entry Exit Systems. However, data from the central system cannot be copied into these existing national EES.

- Interoperability is ensured between the EES and VIS in order to achieve more efficiency and rapidity at border checks. To this effect, a connection will be established between the central systems of the EES and the VIS and direct access between them will be regulated for specific purposes. This will reduce the duplication of personal data processing in accordance with the privacy by design principle.


- Biometric identifiers: while the 2013 EES proposals were relying on ten fingerprints, the revised EES proposals suggests a combination of four fingerprints and the facial image as biometric identifiers introduced from the start of operations of the EES. This choice will allow for sufficiently accurate verifications and identifications, considering the expected size of the EES, while keeping the amount of data to a reasonable level while at the same time speeding up border controls and enabling a wider use of self-service systems at border crossing points. The four fingerprints are used at enrolment to check if the third country national was already registered in the system while the facial image allows for a quick and reliable (automatic) verification at subsequent entry that the individual subject to the border control is the one already registered in the EES.

- Personal data protection: there is a significant reduction in the volume of personal data recorded in EES: 26 data items are to be recorded in EES instead of 36. The right of access, rectification and deletion of personal data are clearly defined and safeguarded. The European Data Protection Supervisor and the national data protection authorities will be in charge of supervision for data processing.

- Data retention period: The retention time for stored data is five years. The five year data retention period reduces the re-enrolment frequency and will be beneficial for all travellers, while allowing the border guard to perform the necessary risk analysis required by the Schengen Border Code before authorising a traveller to enter the Schengen area. For the border guard the systematic deletion of the EES record after 181 days as proposed in 2013 would have removed any trace of the third country national recent history of entries and exits from the Schengen area which is required for a risk analysis. It would be a regression of useful information compared to what the border guard currently uses: consulting stamps in a travel document gives in many cases information that stretches a period of several years. A longer data retention period is thus necessary to allow the border guard performing the necessary risk analysis requested by the Schengen Border Code before authorising a traveller entering the Schengen area. The processing of visa application in consular posts requires also analysing the travel history of the applicant to assess the use of previous visas and the respect of the conditions of stay. The abandoning of passport stamping will be compensated by a consultation of the EES. The travel history available in the system should therefore cover a period of time which is sufficient for the purpose of visa issuance.

The longer data retention period will reduce the re-enrolment frequency and will be beneficial for all travellers as the average border crossing time will decrease as will do the waiting time at border crossing points. Even for a traveller entering only once in the Schengen area, the fact that other travellers being already registered in the EES will not have to re-enrol will reduce the waiting time at border.

A longer data retention period will also be necessary to allow for facilitation at border crossing by using process accelerators and self-service systems. Facilitation is dependent of the data registered in the system. A short data retention period would reduce the group of travellers that can benefit of such facilitation and thereby undermine the stated objective of EES to facilitate border crossing.

For non EU family members of EU citizens who fall within the scope of the present Regulation, each entry/exit record shall be kept for a maximum period of one year after the last exit. Their individual file should be kept for five years so as to enable the family member to benefit of the facilitation for border crossing.

For overstayers not yet found at the end of the data retention period, following a national decision, an alert based on the EES data can be created in the Schengen Information System, based upon a national decision, before deletion of the EES data.

- The facilitation of border crossings: the approach for facilitation is based on the implementation of self-service systems and e-gates, which will allow third country nationals to initiate the procedure for border clearance, to be completed by providing additional information to the border guard on request. The use of these accelerators (introduced in the proposal amending the Schengen Borders Code) is optional for Member States, open to most of the travellers and does not require the development of any new system.

- In addition there will be a harmonised legal basis (again introduced in the amendments to the Schengen Borders Code) for the establishment of national Registered Travellers Programmes by Member States, on a voluntary basis.

- Law enforcement access: from the start of operations, Member States' law enforcement authorities and Europol will have access to the EES, under strictly defined conditions. The EES will contain reliable data on entry and exit dates of third country nationals falling within the scope of the EES that can be of decisive importance in individual law enforcement files, to which access should be given in accordance with the purpose of the instrument and with respect for data protection rules.

The access to VIS data for law enforcement purpose has already proven its usefulness. Member States have reported cases of people who died violently and whose identification was only possible through accessing the VIS. Other cases reported are related to human being trafficking, terrorism or drug trafficking for which the access to VIS data allowed the investigators to make substantial progress.

- The costs: in the 2013 proposals, 1,1 billion EUR was set aside as an indicative amount for the development of an EES and an RTP. For the revised proposal, based on the preferred option of a single EES system including the law enforcement access, the amount needed has been estimated at EUR 480 million.

This revised proposal for a Regulation establishing an EES constitutes the core instrument for the legal framework of the EES. It also contains consequential amendments to existing EU legislation (i.e. to Regulation (EU) No 1077/2011 10 , to Regulation (EC) No 767/2008 11 and to the Convention implementing the Schengen Agreement). This complementary proposal to amend the Schengen Borders Code as regards the use of the system as part of the border management process is presented in parallel with this proposal.

• Existing provisions in the area of the 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).

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.

Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing as part of the Internal Security Fund, the Instrument for financial support for external borders and visa and repealing Decision No 574/2007/EC.

2. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT

• Consultation of interested parties

A detailed description of stakeholder consultation is included in the accompanying impact assessment in Annex 2. During 2015 the Commission carried out targeted consultations for the preparation of its revised Smart Borders proposals with the EDPS in a workshop on the preparation of the revised Smart Borders proposals of 20 March 2015, with civil society in a meeting of 5 May 2015, with carriers, transport, tourism and infrastructure operators in a meeting of 28 May 2015 and with the Fundamental Rights Agency in two meetings of 22 June and 23 July 2015. In addition, the Commission organised a meeting with law enforcement practitioners of the Member States on 9 July 2015 and two technical meetings with Member States’ experts on 24 September 2015 and on 26 October 2015

A public consultation, that took place from the 29 July to the 29 October 2015, collected the views of individuals, organisations, carriers and public authorities (the results of the public consultation are explained in detail in Annex 2 of the Impact Assessment).

The LIBE Committee of the European Parliament organised an inter-parliamentary committee with national parliaments on Smart Borders on 23-24 February 2015.

• Impact assessment

A first impact assessment 12 was carried out in 2008 when preparing the Commission Communication on this subject and a second one was finalised in 2012 13 in preparation of the 2013 proposals.

The third Impact Assessment was finalised in 2016. Taking into account the Technical Study, the report on the Pilot Project, the result of the consultation of interested parties and the discussions in the Council and the European Parliament, the impact assessment analysed key implementation options and suboptions for both the EES and the RTP. The preferred options resulting from the Impact Assessment are directly reflected in the main changes included in the current proposal as compared to the 2013 proposals (See point I 'Main elements of the revised proposal')

3.

The Regulatory Scrutiny Board (RSB) reviewed the draft impact assessment and delivered its positive opinion on 22 January 2016


3. LEGAL ELEMENTS OF THE PROPOSAL

• Summary of the proposed actions

The purposes, functionalities and responsibilities for the EES 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 (eu-LISA) to develop and operationally manage the system. A detailed explanation of the present revised proposal by article can be found in a separate Commission Staff Working Paper.

Consequential amendments to this proposal need to be adopted to Regulation (EU) No 1077/2011, Regulation (EC) No 767/2008 and the (Convention implementing the Schengen Agreement) as referred to under point 1.

• Legal basis

The present revised proposal uses Article 77(2)(b) and (d) of the Treaty on the Functioning of the European Union as the legal basis for this Regulation. Article 77(2)(b) and (d) is the appropriate legal basis for further specifying the measures on the crossing of the external borders of the Member States and developing standards and procedures to be followed by Member States in carrying out checks on persons at such borders. Article 77(2)(b) and (d) is the legal basis of the establishment of the EES. In addition, the revised proposal relies on Article 87(2)(a) as a legal basis to allow access for law enforcement purposes and Article 88(2)(a) to allow access by Europol, both under strict conditions Both these additional legal bases for the law enforcement and Europol access to EES data command the same ordinary legislative procedure which is applicable under Article 77(2)(b) and (d).

• Subsidiarity principle

Under Article 77(2)(b) 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 that there are currently no reliable means to monitor the travel movements of third country nationals admitted for a short stay given the complexity and slowness of the current stamping obligation, which is insufficient for allowing Members States' authorities to assess the authorised stay at the border check of the traveller or at checks within the territory and the very limited value of national systems for such purposes in an area without internal border control.

The information on who has been refused entry into EU territory, on who is on EU territory and who complies with the maximum allowed short stay of 90 days within 180 days, on nationalities and groups (visa exempt/required) of travellers overstaying and to support random checks within the territory to detect irregularly staying persons should be available to increase the efficiency of migration management.

A common regime is needed in order to establish harmonised rules on the records of refusals of entry, cross border movements and monitoring of authorised short stays for the Schengen area as a whole.

Therefore, this objective of the proposal cannot be sufficiently achieved by the Member States.

A revision of the 2013 EES proposal is also required in order to allow law enforcement access to data in the EES for the purpose of the fight against terrorism and serious crime and ensure a high level of internal security. This objective cannot be sufficiently achieved by the Member States, since such an amendment can only be proposed by the Commission.

• 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 which have abolished controls at internal borders. It creates an instrument providing to the European Union information on how many third country nationals enter and leave the territory of the EU, which is indispensible for sustainable and evidence based policy making in the field of migration and visa. It also grants access to the EES to law enforcement authorities, which is a timely, accurate, secure and cost-efficient way to identify visa exempt nationals who are suspects (or victims) of terrorism or of a serious crime and to enable them to consult the travel history of both visa holder and visa exempt third country nationals who are suspects (or victims) of such crimes.

The proposal which conception is driven by the privacy by design principles is proportionate in terms of the right to protection of personal data in that it does not require the collection and storage of more data for a longer period than is absolutely necessary to allow the system to function and meet its objectives. In addition, all the safeguards and mechanisms required for the effective protection of the fundamental rights of travellers particularly the protection of their private life and personal data will be foreseen and implemented.

No further processes or harmonisation will be necessary at EU level to make the system work; thus the envisaged measure is proportionate in that it does not go beyond what is necessary in terms of action at EU level to meet the defined objectives.

The preferred option is also proportionate in terms of costs, taking into account the benefits the system will provide to all Member States in managing the common external border and progressing towards a common EU migration policy.

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 set up a centralised system through which Member States cooperate with each other, something which requires a common architecture and operating rules. Moreover it will lay down rules on border checks at the external borders and on access to the system including for the purpose of law enforcement 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 has an impact on fundamental rights, notably on right to dignity (Article 1 of the Charter of Fundamental Rights of the EU); the prohibition of slavery and forced labour (Article 5 of the Charter); right to liberty and security (Article 6 of the Charter), respect for private and family life (Article 7 of the Charter), the protection of personal data (Article 8 of the Charter), right to asylum (Article 18 of the Charter) and protection in the event of removal, expulsion or extradition (Article 19 of the Charter), the right to non-discrimination (Article 21 of the Charter), the rights of the child (Article 24 of the Charter) and the right to an effective remedy (Article 47 of the Charter).

The prohibition of slavery and forced labour as well as the right to liberty and security are positively affected by the implementation of an EES. A better and more accurate identification (through the use of biometrics) of third country national crossing the external border of the Schengen area supports the detection of identity fraud, human being trafficking (particularly in the case of minors) and cross border criminality and thus contributes to improving the security of the citizens present in the Schengen area.

Concerning the right to protection of personal data, the proposal contains safeguards as regards personal data, in particular access thereto, which should be strictly limited only to the purpose of this Regulation and to the therein designated competent authorities. Safeguards as regards personal data also include the right of access to or the right of correction or deletion of data. The limitation of the retention period of data referred to above in chapter 1 of this explanatory memorandum also contributes to the respect for personal data as a fundamental right.

The proposal provides for access to the EES for the prevention, detection or investigation of terrorist offences or other serious criminal offences for the purposes of identification of third country nationals crossing the external borders and for the purpose of accessing data on their travel history. As stipulated by Article 52(1) of the Charter, any limitation to the right to the protection of personal data must be appropriate for attaining the objective pursued and not going beyond what is necessary to achieve it. Article 8(2) of the European Convention of Human Rights also recognises that interference by a public authority with a person’s right to privacy may be justified as necessary in the interest of national security, public safety or the prevention of crime, as it is the case in the current proposal. The ECJ has also recognised 14 that the fight against terrorism and serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques and hence, access to personal data granted for those specific purposes could be justified if considered necessary.

The proposal provides for access to the EES for the prevention, detection or investigation of terrorist offences or other serious criminal offences for the purposes of identification of third country nationals crossing the external borders and for the purpose of accessing data on their travel history. Access to the EES for identification purposes should only be possible where a prior search has been conducted in national databases without success and, in the case of searches with fingerprints where a prior search has been conducted in the automated fingerprint verification system under Decision 2008/615/JHA. Although data exist in the VIS on visa holders, neither data on visa exempt nationals or data on travel movements are available in any other EU database.

Access to EES data for law enforcement purposes may only be granted for the prevention, detection or investigation of criminal offences or other serious criminal offences as defined in Council Framework Decisions 2002/475/JHA on combatting terrorism and 2002/584/JHA on the European arrest warrant and only if it is necessary for a specific case. Moreover, designated law enforcement authorities may only request access to EES data if there are reasonable grounds to consider that such access will substantially contribute to the prevention, detection or investigation of the criminal offence in question. Such request are verified by a designated law enforcement authority in order to check whether the strict conditions for requesting access to the EES for law enforcement purposes are fulfilled.

Furthermore, the proposal also lays down strict data security measures to ensure the security of personal data processed and establishes supervision of the processing activities by independent public data protection authorities and documentation of all searches conducted. The proposal also states that the processing of all personal data carried out by law enforcement authorities on the EES once they have been extracted is subject to Council Framework Decision 2008/977/JHA.

The proposal establishes strict access rules to the EES system and the necessary safeguards. It also foresees the individuals' rights of access, correction, deletion and redress in particular the right to a judicial remedy and the supervision of processing operations by public independent authorities,. Therefore, the proposal fully complies with the Charter of Fundamental Rights of the European Union, in particular as regards the right to the protection of personal data, and is also in line with Article 16 TFEU which guarantees everyone the right to protection of personal data concerning them.

4. BUDGETARY IMPLICATIONS

In the 2013 EES proposal, reference was made to the Commission's proposal for the next multi-annual financial framework (MFF) which included a proposal of 4,6 billion EUR for the Internal security Fund (ISF) for the period 2014-2020. In the 2013 EES proposal, 1,1 billion EUR was set aside as an indicative amount for the development of an EES and an RTP assuming development costs would start from 2015. This amount was calculated on the basis of the development and operational management of two separate systems and on 3 years of development and 4 years of operations.

Regulation (EU) No 515/2014 of the European Parliament and of the Council of 16 April 2014 establishing as part of the Internal Security Fund, the instrument for financial support for external borders and visa and repealing Decision No 574/2000/EC (ISF Borders Regulation) provided in Article 5.5b) that EUR 791 million should be allocated for developing IT systems, based on existing and/or new IT systems, supporting the management of migration flows across the external borders. The amount of EUR 791 million corresponded to 3 years of development (2017-2019 inclusive) with already some preparatory activities in 2016 with operations starting in 2020.

Following the technical study and the Impact Assessment, the current proposal is based on the preferred option of a single EES system and the amount needed has been assessed as EUR 480 million which takes also into account the purpose of law enforcement access. Consequently, a proposal for the amendment of the ISF Borders Regulation is included in the present proposal to align it to the new reduced amount.

This financial support would cover not only the costs of central components for the entire MFF period (EUR 288 million – at EU level, both development and operational cost via indirect management) but also the costs for the integration of the existing national border infrastructures in Member States with the EES via the National Uniform Interfaces (NUI) (EUR 120 million - via direct management). Providing financial support for national integration costs would ensure that difficult economic circumstances at national level do not jeopardise or delay the projects. During the development phase (2017-2019) the Commission will spend a total amount of 52,7 mio € (via direct management) for the expenses related to the operations in the Member States.

Once the new system would be operational, future operational costs in the Member States could be supported by their national programmes in the framework of the ISF (shared management). An amount of EUR 20 million has been earmarked for this purpose within the overall envelope of EUR 480 million. This will include operational support for one year.

The cost model applied is explained in Annex 6 - Cost Model for EES System of the Impact Assessment.

5. ADDITIONAL INFORMATION

• 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 Regulation (EU) 2016/399 (Schengen Borders Code) nor in any other of the legal instruments which are commonly known as the 'Schengen acquis', viz. the legal instruments organising and supporting the abolition of controls at internal borders and the flanking measures regarding the controls at external borders.

This Regulation constitutes a development of this acquis, and therefore, the United Kingdom and Ireland are not taking part in the adoption of this Regulation and are not bound by it or subject to its application.

In line with the judgment of the Court of Justice in case C-482/08, United Kingdom v. Council, ECLI:EU:C:2010:631, the circumstance that this Regulation has Articles 87(2)a) and Article 88(2)a) as legal bases alongside Article 77(2)b) and (d) TFEU does not affect the above conclusion, as the access for law enforcement purposes is ancillary to the establishment of the Entry/Exit System.

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 15 .

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 16 .

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 17 .

Croatia, Cyprus, Bulgaria and Romenia: This Regulation establishing the EES replaces the obligation to stamp the passport of third country nationals. This provision was to be applied by the acceding Member States upon accession to the European Union.