Regulation (EU) 2017/2226 of the European Parliament and of the CouncilShow full title

CHAPTER IX U.K. FINAL PROVISIONS

Article 63 U.K. Use of data for reporting and statistics

1. The duly authorised staff of the competent authorities of Member States, the Commission and eu-LISA shall have access to consult the following data, solely for the purposes of reporting and statistics without allowing for individual identification and in accordance with the safeguards related to non-discrimination referred to in Article 10(2):

(a) status information;

(b) nationality, sex and year of birth of the third-country national;

(c) date and border crossing point of the entry to a Member State and date and border crossing point of the exit from a Member State;

(d) the type of the travel document and the three letter code of the issuing country;

(e) the number of persons identified as overstayers referred to in Article 12, the nationalities of persons identified as overstayers and the border crossing point of entry;

(f) the data entered in respect of any stay revoked or any stay whose validity is extended;

(g) the three letter code of the Member State that issued the visa, if applicable;

(h) the number of persons exempt from the requirement to give fingerprints pursuant to Article 17(3) and (4);

(i) the number of third-country nationals refused entry, the nationalities of third-country nationals refused entry, the type of border (land, air or sea) of the border crossing point at which entry was refused and the reasons for which entry has been refused as referred to in point (d) of Article 18(6).

The duly authorised staff of the European Border and Coast Guard Agency established by Regulation (EU) 2016/1624 of the European Parliament and of the Council(1) shall have access to consult the data referred to in the first subparagraph of this paragraph for the purpose of carrying out risk analyses and vulnerability assessments as referred to in Articles 11 and 13 of that Regulation.

[F1 2. For the purpose of paragraph 1 of this Article, eu-LISA shall store the data referred to in that paragraph in the central repository for reporting and statistics referred to in Article 39 of the Regulation (EU) 2019/817.]

3. The procedures put in place by eu-LISA to monitor the development and the functioning of the EES referred to in Article 72(1) shall include the possibility to produce regular statistics for ensuring that monitoring.

4. Every quarter, eu-LISA shall publish statistics on the EES showing in particular the number, nationality, age, sex, duration of stay and border crossing point of entry of overstayers, of third-country nationals who were refused entry, including the grounds for refusal, and of third-country nationals whose authorisation for stay was revoked or extended, as well as the number of third-country nationals exempt from the requirement to give fingerprints.

[F2 The daily statistics shall be stored in the central repository for reporting and statistics.]

5. At the end of each year, statistical data shall be compiled in an annual report for that year. The statistics shall contain a breakdown of data for each Member State. The report shall be published and transmitted to the European Parliament, to the Council, to the Commission, to the European Border and Coast Guard Agency, to the European Data Protection Supervisor and to the national supervisory authorities.

6. At the request of the Commission, eu-LISA shall provide it with statistics on specific aspects related to the implementation of this Regulation as well as the statistics pursuant to paragraph 3.

Textual Amendments

F1 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.

F2 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.

Article 64 U.K. Costs

1. The costs incurred in connection with the establishment and operation of the EES Central System, the Communication Infrastructure, the NUI, the web service and the data repository referred to in Article 63(2) shall be borne by the general budget of the Union.

2. Costs incurred in connection with the integration of the existing national border infrastructure and its connection to the NUI as well as in connection with hosting the NUI shall be borne by the general budget of the Union.

The following costs shall be excluded:

(a) Member States’ project management office (meetings, missions, offices);

(b) hosting of national IT systems (space, implementation, electricity, cooling);

(c) operation of national IT systems (operators and support contracts);

(d) customisation of existing border checks and policing systems for national entry-exit systems;

(e) project management of national entry-exit systems;

(f) design, development, implementation, operation and maintenance of national communication networks;

(g) automated border control systems, self-service systems and e-gates.

3. The costs incurred by the central access points referred to in Articles 29 and 30 shall be borne, respectively, by each Member State and Europol. The costs for the connection of those central access points to the NUI and to the EES shall be borne by each Member State and Europol, respectively.

4. Each Member State and Europol shall set up and maintain at their expense the technical infrastructure necessary to implement Chapter IV and shall be responsible for bearing the costs resulting from access to the EES for that purpose.

[F3 5. Funding to be mobilised from the envelope referred to in point (b) of Article 5(5) of Regulation (EU) No 515/2014 to cover the costs referred to in paragraphs 1 to 4 of this Article shall be implemented under indirect management for the costs incurred by eu-LISA and under shared management for the costs incurred by the Member States.]

Textual Amendments

F3 Inserted by Regulation (EU) 2018/1240 of the European Parliament and of the Council of 12 September 2018 establishing a European Travel Information and Authorisation System (ETIAS) and amending Regulations (EU) No 1077/2011, (EU) No 515/2014, (EU) 2016/399, (EU) 2016/1624 and (EU) 2017/2226.

Article 65 U.K. Notifications

1. Member States shall notify the Commission of the authority which is to be considered as controller as referred to in Article 39.

2. Member States shall notify the Commission and eu-LISA of the competent authorities referred to in Article 9(2) which have access to enter, rectify, complete, erase, consult or search data. Three months after the EES has started operations in accordance with Article 66, eu-LISA shall publish a consolidated list of those authorities in the Official Journal of the European Union. Member States shall also notify without delay any changes thereto. In the event of such changes, eu-LISA shall publish once a year an updated consolidated version of that information.

3. Member States shall notify the Commission and eu-LISA of their designated authorities and of their central access points referred to in Article 29 and shall notify without delay any amendments thereto.

4. Europol shall notify the Commission and eu-LISA of the authority it designates and its central access point referred to in Article 30 and shall notify without delay any amendments thereto.

5. eu-LISA shall notify the Commission of the successful completion of the test referred to in point (b) of Article 66(1).

6. The Commission shall publish the information referred to in paragraphs 1, 3 and 4 in the Official Journal of the European Union. In the event of changes thereto, the Commission shall publish once a year an updated consolidated version of that information. The Commission shall maintain a continuously updated public website containing that information.

Article 66 U.K. Start of operations

1. The Commission shall decide the date from which the EES is to start operations, after the following conditions are met:

(a) the measures referred to in Article 36 and Article 50(4) and (5) have been adopted;

(b) eu-LISA has declared the successful completion of a comprehensive test of the EES, which is to be conducted by eu-LISA in cooperation with the Member States;

(c) the Member States have validated the technical and legal arrangements to collect and transmit the data referred to in Articles 16 to 20 to the EES and have notified them to the Commission;

(d) the Member States have notified the Commission as referred to in Article 65(1), (2) and (3).

2. The EES shall be operated by:

(a) the Member States which apply the Schengen acquis in full; and

(b) the Member States which do not yet apply the Schengen acquis in full but for which all the following conditions are met:

(i)

the verification in accordance with applicable Schengen evaluation procedures has been successfully completed;

(ii)

the provisions of the Schengen acquis relating to the SIS have been put into effect in accordance with the relevant Act of Accession; and

(iii)

the provisions of the Schengen acquis relating to the VIS which are necessary for the operation of the EES as defined in this Regulation have been put into effect in accordance with the relevant Act of Accession.

3. A Member State which is not covered by paragraph 2 shall be connected to the EES as soon as the conditions referred to in points (b), (c) and (d) of paragraph 1 and point (b) of paragraph 2 are met. The Commission shall decide the date from which the EES is to start its operations in those Member States.

4. The Commission shall inform the European Parliament and the Council of the results of the test carried out pursuant to point (b) of paragraph 1.

5. The Commission decision referred to in paragraphs 1 and 3 shall be published in the Official Journal of the European Union.

6. The Member States and Europol shall start using the EES from the date determined by the Commission in accordance with paragraph 1 or, where applicable, with paragraph 3.

Article 67 U.K. Ceuta and Melilla

This Regulation shall not affect the special rules applying to the cities of Ceuta and Melilla, as defined in the Declaration of the Kingdom of Spain on the cities of Ceuta and Melilla in the Final Act to the Agreement on the Accession of the Kingdom of Spain to the Convention implementing the Schengen Agreement of 14 June 1985.

Article 68 U.K. Committee procedure

1. The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

Article 69 U.K. Advisory Group

An Advisory Group shall be established by eu-LISA in order to provide it with the expertise related to the EES, in particular in the context of the preparation of its annual work programme and its annual activity report. During the design and development phase of the EES, Article 37(2) shall apply.

Article 70 U.K. Training

eu-LISA shall perform tasks related to provision of training on the technical use of the EES in accordance with Regulation (EU) No 1077/2011.

Article 71 U.K. Practical handbook

The Commission shall, in close cooperation with the Member States, eu-LISA and other relevant agencies, make available a practical handbook for the implementation and management of the EES. The practical handbook shall provide technical and operational guidelines, recommendations and best practices. The Commission shall adopt the practical handbook in the form of a recommendation.

Article 72 U.K. Monitoring and evaluation

1. eu-LISA shall ensure that procedures are in place to monitor the development of the EES in light of objectives relating to planning and costs and to monitor the functioning of the EES in light of objectives relating to the technical output, cost-effectiveness, security and quality of service.

2. By 30 June 2018, and every six months thereafter during the development phase of the EES, eu-LISA shall submit a report to the European Parliament and to the Council on the state of play of the development of the EES Central System, the Uniform Interfaces and the Communication Infrastructure between the EES Central System and the Uniform Interfaces. That report shall contain detailed information about the costs incurred and information as to any risks which may impact the overall costs of the EES to be borne by the general budget of the Union in accordance with Article 64(1) and the first subparagraph of Article 64(2). Following the development of the EES, eu-LISA shall submit a report to the European Parliament and to the Council explaining in detail how the objectives, in particular relating to planning and costs, were achieved, as well as justifying any divergences.

3. For the purposes of technical maintenance, eu-LISA shall have access to the necessary information relating to the data processing operations performed in the EES.

4. Two years after the start of operations of the EES and every two years thereafter, eu-LISA shall submit to the European Parliament, to the Council and to the Commission a report on the technical functioning of EES, including the security thereof.

5. Three years after the start of operations of the EES and every four years thereafter, the Commission shall produce an overall evaluation of the EES. This overall evaluation shall include:

(a) an assessment of the application of this Regulation;

(b) an examination of the results achieved against objectives and the impact on fundamental rights;

(c) an assessment of the continuing validity of the underlying rationale of the EES;

(d) an assessment of the adequacy of the biometric data used for the proper functioning of the EES;

(e) an assessment of the use of stamps in the exceptional circumstances referred to in Article 21(2);

(f) an assessment of the security of the EES;

(g) an assessment of any implications, including any disproportionate impact on the flow of traffic at border crossing points and those with a budgetary impact on the Union budget.

The evaluations shall include any necessary recommendations. The Commission shall transmit the evaluation report to the European Parliament, to the Council, to the European Data Protection Supervisor and to the European Union Agency for Fundamental Rights established by Council Regulation (EC) No 168/2007(2).

Those evaluations shall also include an assessment of the use made of the provisions referred to in Article 60 both in terms of frequency — number of third-country nationals making use of these provisions per Member State, their nationality and average duration of their stay — and practical implications, and shall take into account any related developments in the Union’s visa policy. The first evaluation report may include options in view of phasing out the provisions referred to in Article 60 and replacing them with a Union instrument. It shall be accompanied, where appropriate, by a legislative proposal amending the provisions referred to in Article 60.

6. The Member States and Europol shall provide eu-LISA and the Commission with the information necessary to draft the reports referred to in paragraphs 4 and 5 according to the quantitative indicators predefined by the Commission, eu-LISA, or both. This information shall not jeopardise working methods or include information that reveals sources, staff members or investigations of the designated authorities.

7. eu-LISA shall provide the Commission with the information necessary to produce the overall evaluations referred to in paragraph 5.

8. While respecting the provisions of national law on the publication of sensitive information, each Member State and Europol shall prepare annual reports on the effectiveness of access to EES data for law enforcement purposes containing information and statistics on:

(a) whether the consultation was carried out for the purpose of identification or for entry/exit records, and the type of terrorist offence or serious criminal offence that led to the consultation;

(b) the grounds given to substantiate the suspicion that the person concerned was covered by this Regulation;

(c) the grounds given not to launch the consultation of other Member States’ automated fingerprint identification systems under Decision 2008/615/JHA in accordance with point (b) of Article 32(2) of this Regulation;

(d) the number of requests for access to the EES for law enforcement purposes;

(e) the number and type of cases in which access to the EES for law enforcement purposes led to successful identifications;

(f) the number and type of cases in which the urgency procedures referred to in Article 31(2) and in the second subparagraph of Article 32(2) were used, including those cases where that urgency was not accepted by the ex post verification carried out by the central access point.

A technical solution shall be made available to Member States in order to facilitate the collection of the data listed in the first subparagraph of this paragraph for the purpose of generating statistics referred to in this paragraph. The Commission shall adopt implementing acts concerning the specifications of the technical solution. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2).

Member States’ and Europol’s annual reports shall be transmitted to the Commission by 30 June of the subsequent year.

Article 73 U.K. Entry into force and applicability

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall apply from the date decided by the Commission in accordance with Article 66(1) thereof, with the exception of the following provisions, which shall apply from 29 December 2017: Articles 5, 36, 37, 38, 43, 51 of this Regulation; point (5) of Article 61 of this Regulation, as regards Article 17a(5) of Regulation (EC) No 767/2008; point (10) of Article 61 of this Regulation, as regards Article 26(3a) of Regulation (EC) No 767/2008; and Articles 62, 64, 65, 66, 68, 69 and 70 and Article 72(2) of this Regulation.

(1)

Regulation (EU) 2016/1624 of the European Parliament and of the Council of 14 September 2016 on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC (OJ L 251, 16.9.2016, p. 1).

(2)

Council Regulation (EC) No 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights (OJ L 53, 22.2.2007, p. 1).