CHAPTER II

ENTRY AND USE OF DATA BY COMPETENT AUTHORITIES

Procedures for entering data in the EES
Article 14
1
Border authorities shall verify, in accordance with Article 23, whether a previous individual file has been created in the EES for the third-country national as well as his or her identity. Where a third-country national uses a self-service system for the pre-enrolment of data or for the carrying out of border checks, the verification shall be carried out through the self-service system.
2
Where a previous individual file has been created for the third-country national, the border authority shall, where necessary:
a
update that individual file, namely the data referred to in Articles 16, 17 and 18, as applicable, and
b
enter an entry record for each entry and an exit record for each exit in accordance with Articles 16 and 17 or, where applicable, a refusal of entry record in accordance with Article 18.
The records referred to in point (b) of the first subparagraph of this paragraph shall be linked to the individual file of the third-country national concerned.
Where applicable, the data referred to in Article 19(1), (2), (4) and (5) shall be added to the entry/exit record of the third-country national concerned. The travel documents and identities used legitimately by a third-country national shall be added to the third-country national’s individual file.
Where a previous individual file is recorded and the third-country national presents a valid travel document which differs from the one that was previously recorded, the data referred to in point (d) of Article 16(1) and point (b) of Article 17(1) shall also be updated in accordance with Article 15.
3
Where it is necessary to enter or update the entry/exit record data of a visa holder, the border authorities may retrieve from the VIS and import into the EES the data provided for in points (c) to (f) of Article 16(2) of this Regulation in accordance with Article 8 of this Regulation and Article 18a of Regulation (EC) No 767/2008.
4
In the absence of a previous registration of a third-country national in the EES, the border authority shall create an individual file of that third-country national by entering the data referred to in Articles 16(1) and (6), 17(1) and 18(1) as applicable.
5
Where a third-country national uses a self-service system for the pre-enrolment of data, Article 8a of Regulation (EU) 2016/399 shall apply. In that case, the third-country national may pre-enrol the individual file data or, if applicable, the data in the entry/exit record that need to be updated. The data shall be confirmed by the border authorities when the decision to authorise or to refuse entry has been taken in accordance with Regulation (EU) 2016/399. The data listed in points (c) to (f) of Article 16(2) of this Regulation may be retrieved from the VIS and imported into the EES.
6
Where a third-country national uses a self-service system for the carrying out of the border checks, Article 8b of Regulation (EU) 2016/399 shall apply. In that case, the verification referred to in paragraph 1 of this Article shall be carried out through the self-service system.
7
Where a third-country national uses an e-gate for crossing the external borders or the internal borders where controls have not yet been lifted, Article 8b of Regulation (EU) 2016/399 shall apply. In that case, the corresponding registration of the entry/exit record and the linking of that record to the individual file concerned shall be carried out through the e-gate.
8
Without prejudice to Article 20 of this Regulation and Article 12(3) of Regulation (EU) 2016/399, where the short stay of a third-country national who is present on the territory of a Member State starts directly after a stay based on a residence permit or a long-stay visa and no previous individual file has been created, that third-country national may request the competent authorities referred to in Article 9(2) of this Regulation to create an individual file and an entry/exit record by entering the data referred to in Articles 16(1), (2) and (6) and 17(1) of this Regulation. Instead of the data referred to in point (a) of Article 16(2) of this Regulation, those competent authorities shall insert the date of the start of the short stay and, instead of the data referred to in point (b) of Article 16(2) of this Regulation, they shall insert the name of the authority that inserted those data.

Facial image of third-country nationals
Article 15
1
Where it is necessary to create an individual file or to update the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1), the facial image shall be taken live.
2
By way of derogation from paragraph 1, in exceptional cases where the quality and resolution specifications set for the enrolment of the live facial image in the EES cannot be met, the facial image may be extracted electronically from the chip of the electronic Machine Readable Travel Document (eMRTD). In such cases, the facial image shall only be inserted into the individual file after electronic verification that the facial image recorded in the chip of the eMRTD corresponds to the live facial image of the third-country national concerned.
3
Each Member State shall transmit once a year a report on the application of paragraph 2 to the Commission. That report shall include the number of third-country nationals concerned, as well as an explanation of the exceptional cases faced.
4
The facial image of third-country nationals shall have sufficient image resolution and quality to be used in automated biometric matching.
5
Within a period of two years following the start of operations of the EES, the Commission shall produce a report on the quality standards of facial images stored in the VIS and on whether they are such that they enable biometric matching with a view to using facial images stored in the VIS at borders and within the territory of the Member States for the verification of the identity of third-country nationals subject to a visa requirement, without storing such facial images in the EES. The Commission shall transmit that report to the European Parliament and to the Council. That report shall be accompanied, where considered appropriate by the Commission, by legislative proposals, including proposals to amend this Regulation, Regulation (EC) No 767/2008, or both, as regards the use of the facial images of third-country nationals stored in the VIS for the purposes referred to in this paragraph.

Personal data of third-country nationals subject to a visa requirement
Article 16
1
At the borders at which the EES is operated, the border authority shall create the individual file of a third-country national subject to a visa requirement by entering the following data:
a
surname (family name); first name or names (given names); date of birth; nationality or nationalities; sex;
b
the type and number of the travel document or documents and the three letter code of the issuing country of the travel document or documents;
c
the date of expiry of the validity of the travel document or documents;
d
the facial image as referred to in Article 15.
2
On each entry of a third-country national subject to a visa requirement at a border at which the EES is operated, the following data shall be entered in an entry/exit record:
a
the date and time of the entry;
b
the border crossing point of the entry and the authority that authorised the entry;
c
where applicable, the status of that third-country national indicating that he or she is a third-country national who:
1. is a member of the family of a Union citizen to whom Directive 2004/38/EC applies or of a national of a third country enjoying the right of free movement equivalent to that of Union citizens under an agreement between the Union and its Member States, on the one hand, and a third country, on the other; and
2. does not hold a residence card pursuant to Directive 2004/38/EC or a residence permit pursuant to Regulation (EC) No 1030/2002;
d
where applicable, the short-stay visa sticker number, including the three letter code of the issuing Member State, the type of short-stay visa, the end date of the maximum duration of the stay as authorised by the short-stay visa, which shall be updated at each entry, and the date of expiry of the validity of the short-stay visa;
e
on the first entry on the basis of a short-stay visa, the number of entries and the duration of stay authorised by the short-stay visa as indicated on the short-stay visa sticker;
f
where applicable, the information indicating that the short-stay visa has been issued with limited territorial validity pursuant to point (b) of Article 25(1) of Regulation (EC) No 810/2009;
g
for the Member States which do not yet apply the Schengen acquis in full but operate the EES, a notification, where applicable, indicating that the third-country national used a national short-stay visa for the entry.
The entry/exit record referred to in the first subparagraph shall be linked to the individual file of that third-country national using the individual reference number created by the EES upon creation of that individual file.
3
On each exit of a third-country national subject to a visa requirement at a border at which the EES is operated, the following data shall be entered in the entry/exit record:
a
the date and time of the exit;
b
the border crossing point of the exit.
Where that third-country national uses a visa other than the visa recorded in the last entry record, the data of the entry/exit record listed in points (d) to (g) of paragraph 2 shall be updated accordingly.
The entry/exit record referred to in the first subparagraph shall be linked to the individual file of that third-country national.
4
Where there is no exit data immediately following the date of expiry of the authorised stay, the entry/exit record shall be identified with a flag by the EES and the data of the third-country national subject to a visa requirement, who has been identified as an overstayer, shall be entered into the list referred to in Article 12.
5
In order to enter or update the entry/exit record of a third-country national subject to a visa requirement, the data provided for in points (c) to (f) of paragraph 2 of this Article may be retrieved from the VIS and imported into the EES by the border authority in accordance with Article 18a of Regulation (EC) No 767/2008.
6
Where a third-country national benefits from the national facilitation programme of a Member State in accordance with Article 8d of Regulation (EU) 2016/399, the Member State concerned shall insert a notification in the individual file of that third-country national specifying the national facilitation programme of the Member State concerned.
7
The specific provisions set out in Annex II shall apply to third-country nationals who cross the border on the basis of a valid FTD.

Personal data of visa-exempt third-country nationals
Article 17
1
The border authority shall create the individual file of visa-exempt third-country nationals by entering the following:
a
the data provided for in points (a), (b) and (c) of Article 16(1);
b
the facial image as referred to in Article 15;
c
fingerprint data from the right hand, where present, and otherwise the corresponding fingerprint data from the left hand; fingerprint data shall have sufficient resolution and quality to be used in automated biometric matching;
d
where relevant, the data provided for in Article 16(6).
2
For visa-exempt third-country nationals, points (a), (b) and (c) of Article 16(2), points (a) and (b) of Article 16(3) and Article 16(4) shall apply mutatis mutandis.
3
Children under the age of 12 shall be exempt from the requirement to give fingerprints.
4
Persons for whom fingerprinting is physically impossible shall be exempt from the requirement to give fingerprints.
However, where the physical impossibility is of a temporary nature, that fact shall be recorded in the EES and the person shall be required to give the fingerprints on exit or at the subsequent entry. This information shall be deleted from the EES once the fingerprints have been given. The border authorities shall be entitled to request further clarification on the grounds for the temporary impossibility to give fingerprints. Member States shall ensure that appropriate procedures guaranteeing the dignity of the person are in place in the event of difficulties encountered in the capturing of fingerprints.
5
Where the person concerned is exempt from the requirement to give fingerprints pursuant to paragraphs 3 or 4, the specific data field shall be marked as ‘not applicable’.

Personal data of third-country nationals who have been refused entry
Article 18
1
Where a decision has been taken by the border authority, in accordance with Article 14 of and Annex V to Regulation (EU) 2016/399, to refuse the entry of a third-country national for a short stay on the territory of the Member States and where no previous file is recorded in the EES for that third-country national, the border authority shall create an individual file in which it shall enter:
a
for third-country nationals subject to a visa requirement, the alphanumeric data required pursuant to Article 16(1) of this Regulation and, where relevant, the data referred to in Article 16(6) of this Regulation;
b
for visa-exempt third-country nationals, the alphanumeric data required pursuant to Article 17(1) of this Regulation.
2
Where the third-country national is refused entry on the basis of a reason corresponding to point B, D or H of Part B of Annex V to Regulation (EU) 2016/399 and where no previous file with biometric data is recorded in the EES for that third-country national, the border authority shall create an individual file in which it shall enter the alphanumeric data required pursuant to Article 16(1) or Article 17(1) of this Regulation, as appropriate, as well as the following data:
a
for third-country nationals subject to a visa requirement, the facial image referred to in point (d) of Article 16(1) of this Regulation;
b
for visa-exempt third-country nationals, the biometric data required pursuant to points (b) and (c) of Article 17(1) of this Regulation;
c
for third-country nationals subject to a visa requirement who are not registered in the VIS, the facial image referred to in point (d) of Article 16(1) of this Regulation and the fingerprint data as referred to point (c) of Article 17(1) of this Regulation.
3
By way of derogation from paragraph 2 of this Article, where the reason corresponding to point H of Part B of Annex V to Regulation (EU) 2016/399 applies and the biometric data of the third-country national are recorded in the SIS alert that results in the refusal of entry, the biometric data of the third-country national shall not be entered in the EES.
4
Where the third-country national is refused entry on the basis of a reason corresponding to point I of Part B of Annex V to Regulation (EU) 2016/399 and where no previous file with biometric data is recorded in the EES for that third-country national, the biometric data shall only be entered in the EES where the entry is refused because the third-country national is considered to be a threat to internal security, including, where appropriate, elements of public policy.
5
Where a third-country national is refused entry on the basis of a reason corresponding to point J of Part B of Annex V to Regulation (EU) 2016/399, the border authority shall create the individual file of that third-country national without adding biometric data. If the third-country national possesses an eMRTD, the facial image shall be extracted from that eMRTD.
6
Where a decision has been taken by the border authority, in accordance with Article 14 of and Annex V to Regulation (EU) 2016/399, to refuse the entry of a third-country national for a short stay to the territory of the Member States, the following data shall be entered in a separate refusal of entry record:
a
the date and time of refusal of entry;
b
the border crossing point;
c
the authority that refused the entry;
d
the point or points corresponding to the reasons for refusing entry in accordance with Part B of Annex V to Regulation (EU) 2016/399.
In addition, for third-country nationals subject to a visa requirement, the data provided for in points (d) to (g) of Article 16(2) of this Regulation shall be entered in the refusal of entry record.
In order to create or update the refusal of entry record of third-country nationals subject to a visa requirement, the data provided for in points (d), (e) and (f) of Article 16(2) of this Regulation may be retrieved from the VIS and imported into the EES by the competent border authority in accordance with Article 18a of Regulation (EC) No 767/2008.
7
The refusal of entry record provided for in paragraph 6 shall be linked to the individual file of the third-country national concerned.

Data to be added where an authorisation for short stay is revoked, annulled or extended
Article 19
1
Where a decision has been taken to revoke or annul an authorisation for short stay or a visa or to extend the duration of an authorised stay or visa, the competent authority that has taken such a decision shall add the following data to the latest relevant entry/exit record:
a
the status information indicating that the authorisation for short stay or the visa has been revoked or annulled or that the duration of the authorised stay or the visa has been extended;
b
the identity of the authority that revoked or annulled the authorisation for short stay or the visa or extended the duration of the authorised stay or the visa;
c
the place and date of the decision to revoke or annul the authorisation for short stay or the visa or to extend the duration of the authorised stay or the visa;
d
where applicable, the new visa sticker number, including the three letter code of the issuing country;
e
where applicable, the period of the extension of the duration of authorised stay;
f
where applicable, the new expiry date of the authorised stay or the visa.
2
Where the duration of authorised stay has been extended in accordance with Article 20(2) of the Convention implementing the Schengen Agreement, the competent authority that extended the authorised stay shall add the data regarding the period of extension of the authorised stay to the latest relevant entry/exit record and, where applicable, an indication that the authorised stay was extended in accordance with point (b) of Article 20(2) of the Convention implementing the Schengen Agreement.
3
Where a decision has been taken to annul, revoke or extend a visa, the visa authority which has taken the decision shall immediately retrieve the data provided for in paragraph 1 of this Article from the VIS and import them directly into the EES in accordance with Articles 13 and 14 of Regulation (EC) No 767/2008.
4
The entry/exit record shall indicate the grounds for revocation or annulment of the short stay, which shall be:
a
a return decision adopted pursuant to Directive 2008/115/EC of the European Parliament and of the Council ;
b
any other decision taken by the competent authorities of the Member State, in accordance with national law, resulting in the return, removal or voluntary departure of a third-country national who does not fulfil or no longer fulfils the conditions for the entry into or for the stay on the territory of the Member States.
5
The entry/exit record shall indicate the grounds for extending the duration of an authorised stay.
6
When a person has departed or has been removed from the territory of the Member States pursuant to a decision as referred to in paragraph 4 of this Article, the competent authority shall enter the data in accordance with Article 14(2) in the related entry/exit record of that specific entry.

Data to be added in case of rebuttal of the presumption that a third-country national does not fulfil the conditions of duration of authorised stay
Article 20
Without prejudice to Article 22, where no individual file has been created in the EES for a third-country national present on the territory of a Member State or where there is no last relevant entry/exit record for such a third-country national, the competent authorities may presume that the third-country national does not fulfil or no longer fulfils the conditions relating to duration of authorised stay within the territory of the Member States.
In the case referred to in the first paragraph of this Article, Article 12 of Regulation (EU) 2016/399 shall apply and, if the presumption is rebutted in accordance with Article 12(3) of that Regulation, the competent authorities shall:
1. create an individual file for that third-country national in the EES, if necessary;
2. update the latest entry/exit record by entering the missing data in accordance with Articles 16 and 17 of this Regulation; or
3. erase an existing file where Article 35 of this Regulation provides for such erasure.

Fall-back procedures where it is technically impossible to enter data or in the event of failure of the EES
Article 21
1
Where it is technically impossible to enter data in the EES Central System or the CIR or in the event of a failure of the EES Central System or the CIR, the data referred to in Articles 16 to 20 shall be temporarily stored in the NUI. Where that is not possible, the data shall be temporarily stored locally in an electronic format. In both cases, the
data shall be entered in the EES Central System or the CIR as soon as the technical impossibility or failure has been remedied. The Member States shall take the appropriate measures and deploy the required infrastructure, equipment and resources to ensure that such temporary local storage may be carried out at any time and for any of their border crossing points.
2
Without prejudice to the obligation to carry out border checks under Regulation (EU) 2016/399, the border authority, in the exceptional situation where it is technically impossible to enter data in either the EES Central System and the CIR or in the NUI and it is technically impossible to temporarily store the data locally in an electronic format, shall manually store the data referred to in Articles 16 to 20 of this Regulation, with the exception of biometric data, and shall affix an entry or exit stamp in the travel document of the third-country national. That data shall be entered in the EES Central System and the CIR as soon as technically possible.
Member States shall inform the Commission of the stamping of travel documents in the event of the exceptional situations referred to in the first subparagraph of this paragraph. The Commission shall adopt implementing acts concerning the detailed rules on the information to be provided to the Commission. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).
3
The EES shall indicate that data referred to in Articles 16 to 20 were entered as a result of a fall-back procedure and that the individual file created pursuant to paragraph 2 of this Article is missing biometric data. The biometric data shall be entered in the EES at the next border crossing.

Transitional period and transitional measures
Article 22
1
For a period of 180 days after the EES has started operations, in order to verify, on entry and exit, that third-country nationals admitted for a short stay have not exceeded the maximum duration of authorised stay and, where relevant, to verify on entry that third-country nationals have not exceeded the number of entries authorised by the short-stay visa issued for one or two entries, the competent border authorities shall take into account the stays in the territory of the Member States during the 180 days preceding the entry or the exit by checking the stamps in the travel documents in addition to the entry/exit data recorded in the EES.
2
Where a third-country national has entered the territory of the Member States before the EES has started operations and exits it after the EES has started operations, an individual file shall be created on exit and the date of entry as stamped in the passport shall be entered in the entry/exit record in accordance with Article 16(2). This rule shall not be limited to the 180 days after the EES has started operations as referred to in paragraph 1 of this Article. In case of a discrepancy between the entry stamp and the EES data, the stamp shall prevail.

Use of data for verification at the borders at which the EES is operated
Article 23
1
Border authorities shall have access to the EES for verifying the identity and previous registration of the third-country national, for updating the EES data where necessary and for consulting the data to the extent required for the carrying out of border checks.
2
While performing the tasks referred to in paragraph 1 of this Article, the border authorities shall have access to search with the data referred to in points (a), (b) and (c) of Article 16(1) and point (a) of Article 17(1).
In addition, for the purposes of consulting the VIS for verification in accordance with Article 18 of Regulation (EC) No 767/2008, for third-country nationals who are subject to a visa requirement, the border authorities shall launch a search in the VIS directly from the EES using the same alphanumeric data or, where applicable, consult the VIS in accordance with Article 18(3) of Regulation (EC) No 767/2008.
If the search in the EES with the data set out in the first subparagraph of this paragraph indicates that data on the third-country national are recorded in the EES, the border authorities shall compare the live facial image of the third-country national with the facial image referred to in point (d) of Article 16(1) and point (b) of Article 17(1) of this Regulation or the border authorities shall, in the case of visa-exempt third-country nationals, proceed to a verification of fingerprints against the EES and, in the case of third-country nationals subject to a visa requirement, proceed to a verification of fingerprints directly against the VIS in accordance with Article 18 of Regulation (EC) No 767/2008. For the verification of fingerprints against the VIS for visa holders, the border authorities may launch the search in the VIS directly from the EES as provided in Article 18(6) of that Regulation.
If the verification of the facial image fails, the verification shall be carried out using fingerprints and vice versa.
2a
For the purpose of the verifications in accordance with paragraph 1 of this Article, the border authority shall launch a query by using the ESP to compare the data on the third-country national with the relevant data in the EES and the VIS.
3
If the search with the data set out in paragraph 2 indicates that data on the third-country national are recorded in the EES, the border authority shall be given access to consult the data of the individual file of that third-country national and the entry/exit record or records or refusal of entry record or records linked to it.
4
Where the search with the alphanumeric data set out in paragraph 2 of this Article indicates that data on the third-country national are not recorded in the EES, where a verification of the third-country national pursuant to paragraph 2 of this Article fails or where there are doubts as
to the identity of the third-country national, the border authorities shall have access to data for identification in accordance with Article 27 in order to create or update an individual file in accordance with Article 14.
In addition to the identification referred to in first subparagraph of this paragraph, the following provisions shall apply:
a
for third-country nationals who are subject to a visa requirement, if the search in the VIS with the data referred to in Article 18(1) of Regulation (EC) No 767/2008 indicates that data on the third-country national are recorded in the VIS, a verification of fingerprints against the VIS shall be carried out in accordance with Article 18(5) of Regulation (EC) No 767/2008. For this purpose, the border authority may launch a search from the EES to the VIS as provided for in Article 18(6) of Regulation (EC) No 767/2008. Where a verification of a third-country national pursuant to paragraph 2 of this Article failed, the border authorities shall access the VIS data for identification in accordance with Article 20 of Regulation (EC) No 767/2008.
b
for third-country nationals who are not subject to a visa requirement and for whom no data are found in the EES further to the identification run in accordance with Article 27 of this Regulation, the VIS shall be consulted in accordance with Article 19a of Regulation (EC) No 767/2008. The border authority may launch a search from the EES to the VIS as provided for in Article 19a of Regulation (EC) No 767/2008.
5
For third-country nationals whose data are already recorded in the EES but whose individual file was created in the EES by a Member State which does not yet apply the Schengen acquis in full but operates the EES and whose data were entered in the EES on the basis of a national short-stay visa, the border authorities shall consult the VIS in accordance with point (a) of the second subparagraph of paragraph 4 when, for the first time after the creation of the individual file, the third-country national intends to cross the border of a Member State which applies the Schengen acquis in full and operates the EES.
Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348, 24.12.2008, p. 98).
Inserted by Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa and amending Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA.
Substituted by Corrigendum to Regulation (EU) 2017/2226 of the European Parliament and of the Council of 30 November 2017 establishing an Entry/Exit System (EES) to register entry and exit data and refusal of entry data of third-country nationals crossing the external borders of the Member States and determining the conditions for access to the EES for law enforcement purposes, and amending the Convention implementing the Schengen Agreement and Regulations (EC) No 767/2008 and (EU) No 1077/2011 (Official Journal of the European Union L 327 of 9 December 2017).
Substituted by Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa and amending Regulations (EC) No 767/2008, (EU) 2016/399, (EU) 2017/2226, (EU) 2018/1240, (EU) 2018/1726 and (EU) 2018/1861 of the European Parliament and of the Council and Council Decisions 2004/512/EC and 2008/633/JHA.