Regulation (EU) 2018/1240 of the European Parliament and of the CouncilShow full title

Article 65 U.K. Communication of personal data to third countries, international organisations and private parties

1. Personal data stored in the ETIAS Central System shall not be transferred or made available to a third country, to an international organisation or to any private party with the exception of transfers to Interpol for the purpose of carrying out the automated processing referred to in points (b) and (l) of Article 20(2) of this Regulation. Transfers of personal data to Interpol are subject to the provisions of Article 9 of Regulation (EC) No 45/2001.

2. Personal data accessed from the ETIAS Central System by a Member State or by Europol for the purposes referred to in Article 1(2) shall not be transferred or made available to any third country, international organisation or private party. The prohibition shall also apply if those data are further processed at national level or between Member States.

3. By way of derogation from Article 49 of this Regulation, if necessary for the purpose of return, the immigration authorities may access the ETIAS Central System to retrieve data to be transferred to a third country in individual cases only where all of the following conditions are met:

(a) a prior search has been conducted in the EES in accordance with Article 26 of Regulation (EU) 2017/2226; and

(b) this search indicates that the EES does not contain data concerning the third-country national to be returned.

Where necessary, fulfilment of these conditions shall be verified by accessing the logs provided for in Article 46 of Regulation (EU) 2017/2226 corresponding to the search referred to in point (a) of the first subparagraph of this paragraph and to the answer corresponding to point (b) of that subparagraph.

If those conditions are met, the immigration authorities shall have access to query the ETIAS Central System with some or all of the data referred to in points (a) to (e) of Article 17(2) of this Regulation. If an ETIAS application file corresponds to those data, the immigration authorities will have access to the data referred to in points (a) to (g) of Article 17(2) of this Regulation and, in case of minors, point (k) of paragraph 2 of that Article.

By way of derogation from paragraph 1 of this Article, the data accessed from the ETIAS Central System by the immigration authorities may be transferred to a third country in individual cases if necessary in order to prove the identity of third-country nationals for the sole purpose of return, and only where one of the following conditions is satisfied:

(a) the Commission has adopted a decision on the adequate level of protection of personal data in that third country in accordance with Article 45(3) of Regulation (EU) 2016/679;

(b) appropriate safeguards have been provided as referred to in Article 46 of Regulation (EU) 2016/679, such as through a readmission agreement which is in force between the Union or a Member State and the third country in question;

(c) point (d) of Article 49(1) of Regulation (EU) 2016/679 applies.

The data referred to in [F1 points (a), (aa), (b), (d), (e) and (f) of Article 17(2)] of this Regulation may be transferred only where all of the following conditions are satisfied:

(a) the transfer of the data is carried out in accordance with the relevant provisions of Union law, in particular provisions on data protection, including Chapter V of Regulation (EU) 2016/679, readmission agreements, and the national law of the Member State transferring the data;

(b) the third country has agreed to process the data only for the purposes for which they were provided; and

(c) a return decision adopted pursuant to Directive 2008/115/EC of the European Parliament and of the Council(1) has been issued in relation to the third-country national concerned, provided that the enforcement of such a return decision is not suspended and provided that no appeal has been lodged which may lead to the suspension of its enforcement.

4. Transfers of personal data to third countries pursuant to paragraph 3 shall not prejudice the rights of applicants for and beneficiaries of international protection, in particular as regards non-refoulement.

5. By way of derogation from paragraph 2 of this Article, the data from the ETIAS Central System referred to in Article 52(4) accessed by the designated authorities for the purposes referred to in Article 1(2) may be transferred or made available by the designated authority to a third country in individual cases, but only where all of the following conditions are met:

(a) there is an exceptional case of urgency where there is:

(i)

an imminent danger associated with a terrorist offence; or

(ii)

an imminent danger to the life of a person and that danger is associated with a serious criminal offence;

(b) the transfer of data is necessary for the prevention, detection or investigation in the territory of the Member States or in the third country concerned of such a terrorist offence or serious criminal offence;

(c) the designated authority has access to such data in accordance with the procedure and the conditions set out in Articles 51 and 52;

(d) the transfer is carried out in accordance with the applicable conditions set out in Directive (EU) 2016/680, in particular Chapter V thereof;

(e) a duly motivated written or electronic request from the third country has been submitted;

(f) the reciprocal provision of any information in systems for travel authorisation held by the requesting third country to the Member States operating the ETIAS is ensured.

Where a transfer is made pursuant to the first subparagraph of this paragraph, such a transfer shall be documented and the documentation shall, on request, be made available to the supervisory authority established in accordance with Article 41(1) of Directive (EU) 2016/680, including the date and time of the transfer, information about the receiving competent authority, the justification for the transfer and the personal data transferred.

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.

(1)

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).