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

CHAPTER VIII U.K. AMENDMENTS TO OTHER UNION INSTRUMENTS

Article 60 U.K. Amendment to the Convention implementing the Schengen Agreement

Article 20 of the Convention implementing the Schengen Agreement is amended as follows:

(1)

paragraph 2 is replaced by the following:

‘2. Paragraph 1 shall not affect each Contracting Party’s right to extend beyond 90 days in any 180-day period an alien’s stay on its territory:

(a) in exceptional circumstances; or

(b) in accordance with a bilateral agreement concluded before the entry into force of this Convention and notified to the Commission in accordance with paragraph 2d.’;

(2)

the following paragraphs are inserted:

‘2a. The stay of an alien on the territory of a Contracting Party may be extended in accordance with a bilateral agreement pursuant to point (b) of paragraph 2, upon request of the alien, and lodged with the competent authorities of that Contracting Party on entry or during the stay of the alien at the latest on the last working day of his or her 90-day stay in any 180-day period.

Where the alien has not lodged a request during the 90-day stay in any 180-day period, his or her stay may be extended pursuant to a bilateral agreement concluded by a Contracting Party and his or her stay beyond the 90-day stay in any 180-day period preceding that extension may be presumed lawful by the competent authorities of that Contracting Party, provided that that alien presents credible evidence which proves that during that time he or she stayed only on the territory of that Contracting Party.

2b. Where the stay is extended pursuant to paragraph 2 of this Article, the competent authorities of that Contracting Party shall enter the data related to the extension in the latest relevant entry/exit record linked to the alien’s individual file contained in the Entry/Exit System established by Regulation (EU) 2017/2226 of the European Parliament and of the Council(1). Such data shall be entered in accordance with Article 19 of that Regulation.

2c. Where the stay is extended pursuant to paragraph 2, the alien concerned shall be authorised to stay only on the territory of that Contracting Party and exit at the external borders of that Contracting Party.

The competent authority which extended the stay shall inform the alien concerned that the extension of stay authorises the alien concerned to stay only on the territory of that Contracting Party and that he or she is to exit at the external borders of that Contracting party.

2d. By 30 March 2018, the Contracting Parties shall notify the text of their relevant applicable bilateral agreements as referred to in point (b) of paragraph 2 to the Commission. If a Contracting Party ceases to apply any of those bilateral agreements, it shall notify the Commission thereof. The Commission shall publish information about such bilateral agreements in the Official Journal of the European Union, including at least the Member States and third countries concerned, the rights derived for aliens from those bilateral agreements, as well as any changes thereto.’.

Article 61 U.K. Amendments to Regulation (EC) No 767/2008

Regulation (EC) No 767/2008 is amended as follows:

(1)

Article 10(1) is amended as follows:

(a)

the following point is inserted:

‘(da)

if applicable, the information indicating that the visa has been issued with limited territorial validity pursuant to Article 25(1)(b) of Regulation (EC) No 810/2009;’;

(b)

the following point is added:

‘(l)

if applicable, the status of the person indicating that the third-country national is a member of the family of a Union citizen to whom Directive 2004/38/EC of the European Parliament and of the Council(2) applies or of a third-country national 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.’;

(2)

in Article 13, the following paragraph is added:

‘3. Where a decision has been taken to annul or to revoke a visa, the visa authority that has taken the decision shall immediately retrieve and export from the VIS into the Entry/Exit System established by Regulation (EU) 2017/2226 of the European Parliament and of the Council(3) (EES) the data listed under Article 19(1) of that Regulation.’;

(3)

in Article 14, the following paragraph is added:

‘3. The visa authority that has taken a decision to extend the period of validity, the duration of stay of an issued visa, or both, shall immediately retrieve and export from the VIS into the EES the data listed under Article 19(1) of Regulation (EU) 2017/2226.’;

(4)

Article 15 is amended as follows:

(a)

in paragraph 2, points (b) and (c) are replaced by the following:

‘(b)

surname (family name), first name or names (given names); date of birth; nationality or nationalities; sex;

(c)

the type and number of the travel document; three letter code of the issuing country of the travel document; and the date of expiry of the validity of the travel document;’;

(b)

the following paragraphs are added:

‘4. For the purposes of consulting the EES in order to examine and decide on visa applications in accordance with Article 24 of Regulation (EU) 2017/2226, the competent visa authority shall be given access to search the EES directly from the VIS with one or several of the data referred to in that Article.

5. Where the search with the data referred to in paragraph 2 of this Article indicates that data on the third-country national are not recorded in the VIS or where there are doubts as to the identity of the third-country national, the competent visa authority shall have access to data for identification in accordance with Article 20.’;

(5)

in Chapter III, the following Article is inserted:

‘Article 17a Interoperability with the EES

1. From the start of operations of the EES, as provided for in Article 66(1) of Regulation (EU) 2017/2226, interoperability between the EES and the VIS shall be established to ensure greater efficiency and rapidity of border checks. To that end, eu-LISA shall establish a Secure Communication Channel between the central system of the EES and the central VIS. Direct consultation between the EES and the VIS shall only be possible if both this Regulation and Regulation 2017/2226 so provide. Retrieval of visa-related data from the VIS, their exportation into the EES and the updating of data from the VIS in the EES shall be an automated process once the operation in question is launched by the authority concerned.

2. Interoperability shall enable the visa authorities using the VIS to consult the EES from the VIS:

(a) when examining and deciding on visa applications as referred to in Article 24 of Regulation (EU) 2017/2226 and Article 15(4) of this Regulation;

(b) in order to retrieve and export the visa-related data directly from the VIS into the EES in the event that a visa is annulled, revoked or extended in accordance with Article 19 of Regulation (EU) 2017/2226 and Articles 13 and 14 of this Regulation.

3. Interoperability shall enable the border authorities using the EES to consult the VIS from the EES in order to:

(a) retrieve the visa-related data directly from the VIS and import them into the EES so that an entry/exit record or refusal of entry record of a visa holder may be created or updated in the EES in accordance with Articles 14, 16 and 18 of Regulation (EU) 2017/2226 and Article 18a of this Regulation;

(b) retrieve the visa-related data directly from the VIS and import them into the EES in the event that a visa is annulled, revoked or extended in accordance with Article 19 of Regulation (EU) 2017/2226 and Articles 13 and 14 of this Regulation;

(c) verify the authenticity and validity of the visa, whether the conditions for entry to the territory of the Member States in accordance with Article 6 of Regulation (EU) 2016/399 of the European Parliament and of the Council(4) are fulfilled, or both, as referred to in Article 18(2) of this Regulation;

(d) check whether visa-exempt third-country nationals for whom an individual file is not recorded in the EES were previously registered in the VIS in accordance with Article 23 of Regulation (EU) 2017/2226 and Article 19a of this Regulation;

(e) verify, where the identity of a visa holder is verified using fingerprints, the identity of a visa holder with fingerprints against the VIS in accordance with Articles 23(2) and 23(4) of Regulation (EU) 2017/2226 and Article 18(6) of this Regulation.

4. For the operation of the EES web service referred to in Article 13 of Regulation (EU) 2017/2226, the VIS shall update on a daily basis the separate read-only database referred to in Article 13(5) of that Regulation via a one-way extraction of the minimum necessary subset of VIS data.

5. In accordance with Article 36 of Regulation (EU) 2017/2226, the Commission shall adopt the measures necessary for the establishment and the high level design of the interoperability. In order to establish interoperability with the EES, the Management Authority shall develop the required evolutions and adaptations of the central VIS, the national interface in each Member State, and the communication infrastructure between the central VIS and the national interfaces. The Member States shall adapt and develop the national infrastructures.’.

(6)

Article 18 is replaced by the following:

‘Article 18 Access to data for verification at borders at which the EES is operated

1. For the sole purpose of verifying the identity of the visa holders, the authenticity, temporal and territorial validity and status of the visa or whether the conditions for entry to the territory of the Member States in accordance with Article 6 of Regulation (EU) 2016/399 are fulfilled, or both, the competent authorities for carrying out checks at borders at which the EES is operated shall have access to the VIS to search using the following data:

(a) surname (family name), first name or names (given names); date of birth; nationality or nationalities; sex; type and number of the travel document or documents; three letter code of the issuing country of the travel document or documents; and the date of expiry of the validity of the travel document or documents; or

(b) the number of the visa sticker.

2. Solely for the purposes referred to in paragraph 1 of this Article, where a search is launched in the EES pursuant to Article 23(2) of Regulation (EU) 2017/2226, the competent border authority shall launch a search in the VIS directly from the EES using the data referred to in point (a) of paragraph 1 of this Article.

3. By way of derogation from paragraph 2 of this Article, where a search is launched in the EES pursuant to Article 23(2) or (4) of Regulation (EU) 2017/2226, the competent border authority may search the VIS without making use of the interoperability with the EES, where specific circumstances so require, in particular, where it is more appropriate, due to the specific situation of a third-country national, to search using the data referred to in point (b) of paragraph 1 of this Article, or where it is technically impossible, on a temporary basis, to consult the EES data or in the event of a failure of the EES.

4. If the search with the data listed in paragraph 1 indicates that data are stored in the VIS on one or more issued or extended visas which are within their validity period and are under their territorial validity for the border crossing, the competent authority for carrying out checks at borders at which the EES is operated shall be given access to consult the following data contained in the application file concerned as well as in an application file or files linked pursuant to Article 8(4), solely for the purposes referred to in paragraph 1 of this Article:

(a) the status information and the data taken from the application form, [X1 referred to in points (2) and (4) of Article 9;]

(b) photographs;

(c) the data referred to in Articles 10, 13 and 14 and entered in respect of the visa(s) issued, annulled or revoked or of the visa or visas whose validity is extended.

In addition, for those visa holders for whom certain data are not required to be provided for legal reasons or factually cannot be provided, the competent authority for carrying out checks at borders at which the EES is operated shall receive a notification related to the specific data field or fields concerned which shall be marked as ‘not applicable’.

5. If the search with the data listed in paragraph 1 of this Article indicates that data on the person are recorded in the VIS but no valid visa is recorded, the competent authority for carrying out checks at borders at which the EES is operated shall be given access to consult the following data contained in the application file or files as well as in an application file or files linked pursuant to Article 8(4), solely for the purposes referred to in paragraph 1 of this Article:

(a) the status information and the data taken from the application form, [X1 referred to in points (2) and (4) of Article 9;]

(b) photographs;

(c) the data referred to in Articles 10, 13 and 14 and entered in respect of the visa(s) issued, annulled or revoked or of the visa or visas whose validity is extended.

6. In addition to the consultation carried out under paragraph 1 of this Article, the competent authority for carrying out checks at borders at which the EES is operated shall verify the identity of a person against the VIS if the search with the data listed in paragraph 1 of this Article indicates that data on the person are recorded in the VIS and one of the following conditions is met:

(a) the identity of the person cannot be verified against the EES in accordance with Article 23(2) of Regulation (EU) 2017/2226, because:

(i)

the visa holder is not yet registered into the EES;

(ii)

the identity is verified, at the border crossing point concerned, using fingerprints in accordance with Article 23(2) of Regulation (EU) 2017/2226;

(iii)

there are doubts as to the identity of the visa holder;

(iv)

of any other reason;

(b) the identity of the person can be verified against the EES but Article 23(5) of Regulation (EU) 2017/2226 applies.

The competent authorities for carrying out checks at borders at which the EES is operated shall verify the fingerprints of the visa holder against the fingerprints recorded in the VIS. For visa holders whose fingerprints cannot be used, the search referred to in paragraph 1 shall be carried out only with the alphanumeric data provided for in paragraph 1.

7. For the purpose of verifying the fingerprints against the VIS as provided for in paragraph 6, the competent authority may launch a search from the EES to the VIS.

8. Where verification of the visa holder or of the visa fails or where there are doubts as to the identity of the visa holder or the authenticity of the visa or travel document, the duly authorised staff of the competent authorities for carrying out checks at borders at which the EES is operated shall have access to data in accordance with Article 20(1) and (2).’;

(7)

the following Article is inserted:

‘Article 18a Retrieval of VIS data for creating or updating an entry/exit record or a refusal of entry record of a visa holder in the EES

Solely for the purpose of creating or updating an entry/exit record or a refusal of entry record of a visa holder in the EES in accordance with Article 14(2) and Articles 16 and 18 of Regulation (EU) 2017/2226, the competent authority for carrying out checks at borders at which the EES is operated shall be given access to retrieve from the VIS and import into the EES the data stored in the VIS and listed in points (c) to (f) of Article 16(2) of that Regulation.’;

(8)

the following Article is inserted:

‘Article 19a Use of the VIS before creating in the EES the individual files of visa-exempt third-country nationals

1. For the purpose of checking whether a person has been previously registered in the VIS, the competent authorities for carrying out checks at external border crossing points in accordance with Regulation (EU) 2016/399 shall consult the VIS before creating in the EES the individual file of visa-exempt third-country nationals as laid down in Article 17 of Regulation 2017/2226.

2. For the purpose of paragraph 1 of this Article, where Article 23(4) of Regulation 2017/2226 applies and the search referred to in Article 27 of that Regulation indicates that data on a third-country national are not recorded in the EES, the competent authority for carrying out checks at borders at which the EES is operated shall have access to search in the VIS using the following data: surname (family name); first name or names (given names); date of birth; nationality or nationalities; sex; type and number of the travel document; three letter code of the issuing country of the travel document; and the date of expiry of the validity of the travel document.

3. Solely for the purposes referred to in paragraph 1 of this Article, further to a search launched in the EES pursuant to Article 23(4) of Regulation (EU) 2017/2226, the competent authority for carrying out checks at borders at which the EES is operated may launch a search in the VIS directly from the EES using the alphanumeric data provided for in paragraph 2 of this Article.

4. In addition, if the search with the data referred to in paragraph 2 indicates that data concerning the third-country national are recorded in the VIS, the competent authority for carrying out checks at borders at which the EES is operated shall verify the fingerprints of the third-country national against the fingerprints recorded in the VIS. That authority may launch the verification from the EES. For third-country nationals whose fingerprints cannot be used, the search shall be carried out only with the alphanumeric data provided for in paragraph 2.

5. If the search with the data listed in paragraph 2 of this Article and the verification carried out under paragraph 4 of this Article indicate that data on the person are recorded in the VIS, the competent authority for carrying out checks at borders at which the EES is operated shall be given access to consult the following data contained in the application file concerned as well as in an application file or files linked pursuant to Article 8(4), solely for the purpose referred to in paragraph 1 of this Article:

(a) the status information and the data taken from the application form, [X1 referred to in points (2) and (4) of Article 9;]

(b) photographs;

(c) the data referred to in Articles 10, 13 and 14 and entered in respect of the visa or visas issued, annulled or revoked or of the visa or visas whose validity is extended.

6. Where the verification provided under paragraph 4 or 5 of this Article fails or where there are doubts as to the identity of the person or the authenticity of the travel document, the duly authorised staff of the competent authorities for carrying out checks at borders at which the EES is operated shall have access to data in accordance with Article 20(1) and (2). The competent authority for carrying out checks at borders at which the EES is operated may launch from the EES the identification referred to in Article 20.’;

(9)

in Article 20(1), the first subparagraph is replaced by the following:

‘1. Solely for the purposes of the identification of any person who may have been registered previously in the VIS or who may not, or may no longer, fulfil the conditions for the entry to, or stay or residence on, the territory of the Member States, the authorities competent for carrying out checks at borders at which the EES is operated or within the territory of the Member States as to whether the conditions for entry to, or stay or residence on, the territory of the Member States are fulfilled, shall have access to search in the VIS with the fingerprints of that person.’;

(10)

in Article 26, the following paragraph is inserted:

‘3a. From 30 June 2018, the Management Authority shall be responsible for the tasks referred to in paragraph 3.’;

(11)

Article 34 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘1. Each Member State and the Management Authority shall keep records of all data processing operations within the VIS. Those records shall indicate:

(a) the purpose of access referred to in Article 6(1) and in Articles 15 to 22;

(b) the date and time;

(c) the type of data transmitted as referred to in Articles 9 to 14;

(d) the type of data used for interrogation as referred to in Article 15(2), Article 17 and Articles 18(1) and (6), 19(1), 19a(2) and (4), 20(1), 21(1) and 22(1); and

(e) the name of the authority entering or retrieving the data.

In addition, each Member State shall keep records of the staff duly authorised to enter or retrieve the data.’;

(b)

the following paragraph is inserted:

‘1a. For the operations listed in Article 17a, a record of each data processing operation carried out in the VIS and the EES shall be kept in accordance with this Article and Article 46 of Regulation (EU) 2017/2226.’.

Editorial Information

X1 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).

Article 62 U.K. Amendments to Regulation (EU) No 1077/2011

Regulation (EU) No 1077/2011 is amended as follows:

(1)

in Article 1, paragraph 2 is replaced by the following:

‘2. The Agency shall be responsible for the operational management of the second-generation Schengen Information System (SIS II), the Visa Information System (VIS), Eurodac and the Entry/Exit System established by Regulation (EU) 2017/2226 of the European Parliament and of the Council(5) (EES).’;

(2)

the following Article is inserted:

‘Article 5a Tasks relating to the EES

In relation to the EES, the Agency shall perform:

(a)

the tasks conferred on it by Regulation (EU) 2017/2226;

(b)

tasks relating to training on the technical use of the EES.’;

(3)

in Article 7, paragraphs 5 and 6 are replaced by the following:

‘5. Tasks related to the operational management of the communication infrastructure may be entrusted to external private-sector entities or bodies in accordance with Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council(6). In such a case, the network provider shall be bound by the security measures referred to in paragraph 4 of this Article and shall have no access to SIS II, VIS, Eurodac or EES operational data, or to the SIS II-related SIRENE exchange, by any means.

6. Without prejudice to the existing contracts on the network of SIS II, VIS, Eurodac and EES, the management of encryption keys shall remain within the competence of the Agency and shall not be outsourced to any external private-sector entity.’;

(4)

in Article 8, paragraph 1 is replaced by the following:

‘1. The Agency shall monitor the developments in research relevant for the operational management of SIS II, VIS, Eurodac, EES and other large-scale IT systems.’;

(5)

in Article 12, paragraph 1 is amended as follows:

(a)

the following point is inserted:

‘(sa)

adopt the reports on the development of the EES pursuant to Article 72(2) of Regulation (EU) 2017/2226;’;

(b)

point (t) is replaced by the following:

‘(t)

adopt the reports on the technical functioning of SIS II pursuant to Article 50(4) of Regulation (EC) No 1987/2006 and Article 66(4) of Decision 2007/533/JHA, of VIS pursuant to Article 50(3) of Regulation (EC) No 767/2008 and Article 17(3) of Decision 2008/633/JHA and of EES pursuant to Article 72(4) of Regulation (EU) 2017/2226;’;

(c)

point (v) is replaced by the following:

‘(v)

make comments on the European Data Protection Supervisor’s reports on the audits pursuant to Article 45(2) of Regulation (EC) No 1987/2006, Article 42(2) of Regulation (EC) No 767/2008, Article 31(2) of Regulation (EU) No 603/2013 and Article 56(2) of Regulation (EU) 2017/2226 and ensure appropriate follow-up to those audits;’;

(d)

the following point is inserted:

‘(xa)

publish statistics related to the EES pursuant to Article 63 of Regulation (EU) 2017/2226;’;

(e)

the following point is inserted:

‘(za)

ensure annual publication of the list of competent authorities pursuant to Article 65(2) of Regulation (EU) 2017/2226;’;

(6)

in Article 15, paragraph 4 is replaced by the following:

‘4. Europol and Eurojust may attend the meetings of the Management Board as observers when a question concerning SIS II, in relation to the application of Decision 2007/533/JHA, is on the agenda. Europol may also attend the meetings of the Management Board as an observer when a question concerning VIS, in relation to the application of Decision 2008/633/JHA, a question concerning Eurodac, in relation to the application of Regulation (EU) No 603/2013, or a question concerning the EES, in relation to the application of Regulation (EU) 2017/2226, is on the agenda.’;

(7)

Article 17 is amended as follows:

(a)

in paragraph 5, point (g) is replaced by the following:

‘(g)

without prejudice to Article 17 of the Staff Regulations, establish confidentiality requirements in order to comply with Article 17 of Regulation (EC) No 1987/2006, Article 17 of Decision 2007/533/JHA, Article 26(9) of Regulation (EC) No 767/2008, Article 4(4) of Regulation (EU) No 603/2013 and Article 37(4) of Regulation (EU) 2017/2226;’;

(b)

in paragraph 6, the following point is added:

‘(k)

reports on the state of play of the development of the EES referred to in Article 72(2) of Regulation (EU) 2017/2226.’;

(8)

Article 19 is amended as follows:

(a)

in paragraph 1, the following point is inserted:

‘(da)

EES Advisory Group;’;

(b)

paragraph 3 is replaced by the following:

‘Europol and Eurojust may each appoint a representative to the SIS II Advisory Group. Europol may also appoint a representative to the VIS, Eurodac and EES Advisory Groups.’.

(1)

Regulation (EU) 2017/2226 of the European Parliament and of the Council of 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 (OJ L 327, 9.12.2017, p. 20).’.

(2)

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ L 158, 30.4.2004, p. 77).’;

(3)

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 (OJ L 327, 9.12.2017, p. 20).’;

(4)

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) (OJ L 77, 23.3.2016, p. 1).’.

(5)

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 (OJ L 327, 9.12.2017, p. 20).’;

(6)

Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ L 298, 26.10.2012, p. 1).’;