CHAPTER IV

PROCEDURE AND CONDITIONS FOR ACCESS TO THE EES FOR LAW ENFORCEMENT PURPOSES

Member States’ designated authorities
Article 29
1
Member States shall designate the authorities which are entitled to consult the EES data in order to prevent, detect and investigate terrorist offences or other serious criminal offences.
2
Each Member State shall keep a list of the designated authorities. Each Member State shall notify eu-LISA and the Commission of its designated authorities and may at any time amend or replace its notification.
3
Each Member State shall designate a central access point which shall have access to the EES. The central access point shall verify that the conditions to request access to the EES laid down in Article 32 are fulfilled.
The designated authority and the central access point may be part of the same organisation if permitted under national law, but the central access point shall act fully independently of the designated authorities when performing its tasks under this Regulation. The central access point shall be separate from the designated authorities and shall not receive instructions from them as regards the outcome of the verification which it shall carry out independently.
Member States may designate more than one central access point to reflect their organisational and administrative structures in the fulfilment of their constitutional or legal requirements.
4
Member States shall notify eu-LISA and the Commission of their central access points and may at any time amend or replace their notifications.
5
At national level, each Member State shall keep a list of the operating units within the designated authorities that are authorised to request access to EES data through the central access points.
6
Only duly empowered staff of the central access points shall be authorised to access the EES in accordance with Articles 31 and 32.

Europol
Article 30
1
Europol shall designate one of its operating units as the ‘Europol designated authority’ and shall authorise it to request access to the EES through the Europol central access point referred to in paragraph 2 in order to support and strengthen action by Member States in preventing, detecting and investigating terrorist offences or other serious criminal offences.
2
Europol shall designate a specialised unit with duly empowered Europol officials as the Europol central access point. The Europol central access point shall verify that the conditions to request access to the EES laid down in Article 33 are fulfilled.
The Europol central access point shall act independently when performing its tasks under this Regulation and shall not receive instructions from the Europol designated authority as regards the outcome of the verification.

Procedure for access to the EES for law enforcement purposes
Article 31
1
An operating unit as referred to in Article 29(5) shall submit a reasoned electronic or written request to a central access point as referred to in Article 29(3) for access to EES data. Upon receipt of a request for access, such a central access point shall verify whether the conditions for access referred to in Article 32 are fulfilled. If the conditions for access are fulfilled, such a central access point shall process the request. The EES data accessed shall be transmitted to an operating unit as referred to in Article 29(5) in such a way that the security of the data is not compromised.
2
In a case of urgency, where there is a need to prevent an imminent danger to the life of a person associated with a terrorist offence or another serious criminal offence, a central access point as referred to in Article 29(3) shall process the request immediately and shall only verify ex post whether all the conditions referred to in Article 32 are fulfilled, including whether a case of urgency actually existed. The ex post verification shall take place without undue delay and in any event no later than seven working days after the processing of the request.
3
Where an ex post verification determines that the access to EES data was not justified, all the authorities that accessed such data shall erase the information accessed from the EES and shall inform the relevant central access point of the Member State in which the request was made of the erasure.

Conditions for access to EES data by designated authorities
Article 32
1
Designated authorities may access the EES for consultation where all of the following conditions are met:
a
access for consultation is necessary for the purpose of the prevention, detection or investigation of a terrorist offence or another serious criminal offence;
b
access for consultation is necessary and proportionate in a specific case;
c
evidence or reasonable grounds exist to consider that the consultation of the EES data will contribute to the prevention, detection or investigation of any of the criminal offences in question, in particular where there is a substantiated suspicion that the suspect, perpetrator or victim of a terrorist offence or other serious criminal offence falls under a category covered by this Regulation.
1a
In cases where the designated authorities have launched a query of the CIR in accordance with Article 22 of Regulation (EU) 2019/817, they may access the EES for consultation where the conditions laid down in this Article are met and where the reply received as referred to in Article 22(2) of Regulation (EU) 2019/817 reveals that data are stored in the EES.
2
Access to the EES as a tool for the purpose of identifying an unknown suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed where, in addition to the conditions listed in paragraph 1, the following conditions are met:
a
a prior search has been conducted in national databases; and
b
in the case of searches with fingerprints, a prior search has been launched in the automated fingerprint identification system of the other Member States under Decision 2008/615/JHA where comparisons of fingerprints are technically available, and either that search has been fully carried out, or that search has not been fully carried out within two days of being launched.
However, the additional conditions in points (a) and (b) of the first subparagraph shall not apply where there are reasonable grounds to believe that a comparison with the systems of the other Member States would not lead to the verification of the identity of the data subject or in a case of urgency where there is a need to prevent an imminent danger to the life of a person associated with a terrorist offence or another serious criminal offence. Those reasonable grounds shall be included in the electronic or written request sent by the operating unit of the designated authority to the central access point.
A request for consultation of the VIS on the same data subject may be submitted in parallel to a request for consultation of the EES in accordance with the conditions laid down in Council Decision 2008/633/JHA .
3
Access to the EES as a tool to consult the travel history or the periods of stay on the territory of the Member States of a known suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed when the conditions listed in paragraph 1 are met.
4
Consultation of the EES for the purpose of identification as referred to in paragraph 2 shall be limited to searching in the individual file with any of the following EES data:
a
fingerprints of visa-exempt third-country nationals or of holders of an FTD. In order to launch this consultation of the EES, latent fingerprints may be used and may therefore be compared with the fingerprints stored in the EES;
b
facial images.
Consultation of the EES, in the event of a hit, shall give access to any other data taken from the individual file as listed in Article 16(1) and (6), Article 17(1) and Article 18(1).
5
Consultation of the EES for the travel history of the third-country national concerned shall be limited to searching with one or several of the following EES data in the individual file, in the entry/exit records or in the refusal of entry records:
a
surname (family name); first name or names (given names); date of birth; nationality or nationalities; sex;
b
type and number of travel document or documents, three letter code of the issuing country and date of expiry of the validity of the travel document;
c
visa sticker number and the date of expiry of the validity of the visa;
d
fingerprints, including latent fingerprints;
e
facial image;
f
date and time of entry, authority that authorised the entry and entry border crossing point;
g
date and time of exit and exit border crossing point.
Consultation of the EES shall, in the event of a hit, give access to the data listed in the first subparagraph as well as to any other data taken from the individual file, the entry/exit records and refusal of entry records, including data related to the revocation or extension of an authorisation for short stay in accordance with Article 19.

Procedure and conditions for access to EES data by Europol
Article 33
1
Europol shall have access to consult the EES where all the following conditions are met:
a
the consultation is necessary to support and strengthen action by Member States in preventing, detecting or investigating terrorist offences or other serious criminal offences falling under Europol’s mandate;
b
the consultation is necessary and proportionate in a specific case;
c
evidence or reasonable grounds exist to consider that the consultation of the EES data will contribute to the prevention, detection or investigation of any of the criminal offences in question, in particular where there is a substantiated suspicion that the suspect, perpetrator or victim of a terrorist offence or other serious criminal offence falls under a category covered by this Regulation.
1a
In cases where Europol has launched a query of the CIR in accordance with Article 22 of Regulation (EU) 2019/817, it may access the EES for consultation where the conditions laid down in this Article are met and where the reply received as referred to in Article 22(2) of Regulation (EU) 2019/817 reveals that data are stored in the EES.
2
Access to the EES as a tool for the purpose of identifying an unknown suspect, perpetrator or suspected victim of a terrorist offence or other serious criminal offence shall be allowed where the conditions listed in paragraph 1 are met and the consultation, as a matter of priority, of the data stored in the databases that are technically and legally accessible by Europol has not made it possible to identify the person in question.
A request for consultation of the VIS on the same data subject may be submitted in parallel to a request for consultation of the EES in accordance with the conditions laid down in Decision 2008/633/JHA.
3
The conditions laid down in Article 32(3), (4) and (5) shall apply accordingly.
4
The Europol designated authority may submit a reasoned electronic request for the consultation of all EES data or a specific set of EES data to the Europol central access point referred to in Article 30(2). Upon receipt of a request for access, the Europol central access point shall verify whether the conditions for access set out in paragraphs 1 and 2 of this Article are fulfilled. If all conditions for access are fulfilled, the duly authorised staff of the Europol central access point shall process the requests. The EES data accessed shall be transmitted to the Europol designated authority in such a way that the security of the data is not compromised.
5
Europol shall only process information obtained from a consultation of EES data subject to the authorisation of the Member State of origin. That authorisation shall be obtained via the Europol national unit of that Member State.
Council Decision 2008/633/JHA of 23 June 2008 concerning access for consultation of the Visa Information System (VIS) by designated authorities of Member States and by Europol for the purposes of the prevention, detection and investigation of terrorist offences and of other serious criminal offences (OJ L 218, 13.8.2008, p. 129).
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).